The Complete Patient

The vagaries of our legal system were on full display for Barbara and Steve Smith and members of Meadowsweet Dairy LLC yesterday afternoon at the Seneca County courthouse in tiny Waterloo, NY.

About 25 of their supporters were on hand—a good deal fewer than the 200 or more who likely would have turned out had the case proceeded on schedule, at 1:30, instead of 4 (due to a flight delay for Gary Cox, the Smiths’ lawyer). A few of the supporters are pictured here, outside the courthouse.

At stake was the future of their legal liability company (LLC) established to provide raw milk products to its 120 or so shareholders. If the judge agreed with Ag and Markets to dismiss the case, then the LLC approach would be dead in the water, and the Smiths would be deemed under the thumb of the agency, which has adamantly refused to recognize any kind of private herd-share-type arrangement.

I traveled to Waterloo, somewhere between Syracuse and Rochester, to observe the proceedings, and at long last meet the Smiths and some of their supporters, including Elizabeth McInerney, who runs a Rochester food listerve, and Lori and Darren McGrath, owners of a New York raw milk dairy that had a run-in with Ag and Markets over a listeria accusation, along with Gary Cox.

Larry Swartz, the Ag and Markets lawyer, went first, arguing that Judge Dennis Bender should dismiss the case, that the agency had the authority to regulate the dairy. If the court disagreed on that, it should at least move the case to a court in Albany, which normally hears agriculture-type cases, he maintained.

Gary Cox of the Farm-to-Consumer Legal Defense Fund, then made his presentation, asking the court to issue a preliminary injunction preventing Ag and Markets from interfering with the Smiths’ operations via their ongoing searches and attempts to confiscate product. He pointed out that the Smiths last week argued their case to Ag and Markets, but that the matter of the LLC fell outside the agency’s authority, since the LLC is a private arrangement.

“No one knows what the law is in this situation,” he told the judge. “Other farmers are out there in New York state wanting to make raw milk available under private contract. So this does not just affect the Smiths.”

He added, “It’s not a prohibition we are after. We’re not seeking to keep the department from applying its regulations. We’re seeking a judgment as to whether the regulations even apply.”

Each lawyer spoke for only about eight or ten minutes. Judge Bender then summarized the case—how the Meadowsweet Dairy LLC was created last March 1, has 120 members, provides raw milk products only to its members, and seeks a preliminary injunction preventing Ag and Markets from interfering in operations.

I had wondered whether this guy (or any judge) would really care, or even understand, what was going on, but it was clear from his recitation that he had at least reviewed the facts in the case.

His decision? Well, the good news was his recognition that “the plaintiff relief sought is broader” than anything Ag and Markets could provide. Thus, he refused to dismiss the case and leave decisions to the agency.

The bad news was his decision “to convert the matter to a separate proceeding”—in other words, transferring it to a state court in Albany. That court would have to rule on the preliminary injunction request and the overall case.

The Smiths could exhale. They were still alive, legally speaking.

But they’ll have to get used to a world much different than what the movies and television shows present. In this real legal world, you get a few minutes before a judge, if you’re lucky. Then, you often move in very small steps. Or in this case, about 175 miles east, from one court to another.

There, Gary Cox will have to start over, with a new judge.