Property rights? Nah, Says Court.
The King Prawn ·
Oct 5, 2011 at 8:21am
Raw milk is a staple of hippie diets and liberal angst. There are great arguments for and against the marketing of raw milk, but when it comes to a person's right to consume raw milk from his own cow such a right does not exist, at least according to a Wisconsin judge. In fact, the judge stated in his decision on a clarification motion that "no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd." Where one stands on raw milk seems to me irrelevant to the question of whether or not the state can forbid the owning of benign property like a cow. This may be one issue on which even I could take up my bongos.
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Oct '10
Re: Property rights? Nah, Says Court.
Put a black robe on a politician and he thinks he is emperor. God ---- these creatures who infest modern American jurisprudence.
On the other hand, these poor, dumb creatures, the farmers, not the cows, that is, need some oversight from their betters.
Sep '11
Re: Property rights? Nah, Says Court.
I had not seen your post before I uploaded mine. Margins in the dairy business are so small (or non-existent) that selling shares to a cow, so you can sell the milk directly to the consumer, has been a great way to make sure the business stays afloat. The folks drinking the milk are taking a calculated risk, and frankly, healthy adults and kids are never going to have a problem with it. Those of us who grew up drinking it have turned out just fine, thank you.
The arrogance of this judge just flabbergasts me.
Aug '10
Re: Property rights? Nah, Says Court.
Ah, this is obviously some strange usage of the words 'fundamental right' that I was not previously aware of.
Aug '10
Re: Property rights? Nah, Says Court.
You wanna get hippies to stop drinking raw milk?
Simply encourage right-wingers to start campaigning in favour of it.
The hippies will start protesting raw milk as "corporate poison" in a flash.
Re: Property rights? Nah, Says Court.
Not to engage in auto-pimpery, but that's the subject of my last column in the National Review. (the mag, not the website.)
May '10
Re: Property rights? Nah, Says Court.
My mother-in-law lives in New Hampshire and is friends with a farmer. When we visit him we get raw milk direct from his cows. It is extremely tasty.
May '10
Re: Property rights? Nah, Says Court.
Nice choice of metaphor, there, Dutch: a milk business staying "afloat". Perfect!
I'm sympathetic to raw milk drinkers. However, I've said it before, and I'll say it again:
Mar '11
Re: Property rights? Nah, Says Court.
The Plaintiffs argued that they had been denied a "fundamental right" to possess, use and enjoy their property (i.e.: their cow). The Court's answer:
"They do not simply own a cow that they board at a farm. Instead, Plaintiffs operate a dairy farm. ... [t]hey must do so in a way that complies with the laws of Wisconsin."
The court transformed the fundamental right to the ownership and enjoyment of private property and contract into an entity subject to administrative control by an intermediate requirement of something beyond the relationship between the parties to the contract. This was done by what appears to be a sleight of hand, finding that "if a holder of a milk producer license makes a 'legitimate agreement to share responsibilities of owning a milk producer license' and if 'the potential purchaser understands the benefits and risks of full disclosure...then all are in a position to make the informed choice to obtain their milk in its ungraded raw form.'" So far, so good.
However, by ruling this way, the court found that the first requirement of the arrangement is that one of the parties must own a valid producer's license...
Edited on Oct 5, 2011 at 1:05pmMar '11
Re: Property rights? Nah, Says Court.
...The court ruled that the main purpose of holding a milk producer license is to produce milk for sale or distribution to the public, and went on to say that investment in an entity to share a milk producer’s license can be for the purpose of purchasing non-pasteurized milk but cannot be for the sole purpose of purchasing non-pasteurized milk, noting that the Plaintiffs' license had been voided because it didn't have a dairy plant where it had a contract to ship milk. Absent a valid producer's license, the Plaintiffs couldn't contract with the Plaintiffs despite their agreement as to the risk.
Granted, this was just a ruling on a motion for summary judgment. There’s a long way to go in this case. However, it does seem that there is an unwarranted interference in the right to contract and the right to possess and use one’s own property. I think the fundamental rights argument can prevail. I’d be interested to know the opinion of Ricochet’s resident Constitutional authorities.
Edited on Oct 5, 2011 at 1:05pmRe: Property rights? Nah, Says Court.
A horrible decision by a hack judge from - surprise! - Madison. The original decision was denying the plaintiff's motion for summary judgment. All that means is that the plaintiffs had not, at that stage of the proceedings, established a slam-dunk case on their constitutional claims. But in his "clarification" the judge flatly stated that there is no right to consume milk from your own cow. In other words, the judge didn't just deny plaintiff's summary judgment motion, he effectively granted summary to the defendants -- at least on the constitutional claims.
And on the merits? It's absurd. The Constitution's privilege and immunities provisions + ninth amendment creates a "presumption of liberty" (see this great book by Randy Barnett). The burden is on the government to establish why on earth a farmer does not have the right to own a cow and consume the milk from that cow.
ps - Fiedler has apparently retired from the bench, so this "clarification" was his last - and cowardly - shot at property rights.
Mar '11
Re: Property rights? Nah, Says Court.
It would be nice if you'd place a link to that article here so we can read it; it might encourage us to subscribe to the magazine.
Mar '11
Re: Property rights? Nah, Says Court.
It's been a million years since I took Civil Procedure, and my practice takes place in the office, not the court room, so I'm probably wrong. But I don't recall that a denial of a summary judgment motion automatically grants summary judgment to the non-moving party. The case goes on and the denial constitutes grounds for appeal, right?
Apr '11
Re: Property rights? Nah, Says Court.
You own bongos, King?
Dec '10
Re: Property rights? Nah, Says Court.
I like (read amass) musical instruments. Something like this might move me to get some percussion as well. Djembe's are actually quite fun.
Re: Property rights? Nah, Says Court.
Illiniguy
It's been a million years since I took Civil Procedure, and my practice takes place in the office, not the court room, so I'm probably wrong. But I don't recall that a denial of a summary judgment motion automatically grants summary judgment to the non-moving party. The case goes on and the denial constitutes grounds for appeal, right? · Oct 5 at 11:30am
That's the way it's supposed to work. But it appears that Judge Fiedler wasn't content to say that plaintiffs had failed to establish the "fundamental right" at that stage of the proceedings -- he's reaching the opposite conclusion as a matter of law. As I read it, the plaintiffs are now precluded from asserting their constitutional claims. Ergo, summary judgment for defendants on the constitutional claims.
Mar '11
Re: Property rights? Nah, Says Court.
Adam Freedman
Illiniguy
That's the way it's supposed to work. But it appears that Judge Fiedler wasn't content to say that plaintiffs had failed to establish the "fundamental right" at that stage of the proceedings -- he's reaching the opposite conclusion as a matter of law. As I read it, the plaintiffs are now precluded from asserting their constitutional claims. Ergo, summary judgment for defendants on the constitutional claims. · Oct 5 at 1:59pm
Which judgment is appealable. From the clarification:
"While it is true that the cited cases (Stanley, Roe, Cruzan, Lawrence) do in fact stand for the propositions of law they argued, the Plaintiffs have failed to adequately explain why those propositions support their argument that there is a fundamental right to consume the food of one's choice...This court is unwilling to declare that there is a fundamental right to consume the food of one's choice without first being presented with significanly more developed arguments on both sides."
This is absurd; you're altogether correct to call this a hack decision. I can't see an appeals court upholding it.
Edited on Oct 5, 2011 at 2:39pmAug '10
Re: Property rights? Nah, Says Court.
I dunno, this sounds to me like the sort of thing that should be handled by the political branches. If lots of people wish to drink raw milk, I doubt many voters would be scandalized by it, and it should be possible to get the legislature to carve out an exception to whatever law currently prohibits it. To say that drinking raw milk is a fundamental right is appealing in the abstract, but then so is the idea that smoking pot is a fundamental right. Yet we've never lived in a legal regime in which that was considered to be the case.
Mar '11
Re: Property rights? Nah, Says Court.
You're right; it wouldn't be hard to carve an exception into the Wisconsin statute that would allow situations such as exist here (a closed loop, so to speak) to do what they wished.