What Does Raw Milk Have to Do with Group Sex?…and Why Connection May Make Appeal of Schmidt Case Unlikely
Friday, January 22, 2010 at 11:28PM 
Michael Schmidt displays cow manure he credits with replenishing his farm's soil, during a tour of Glencolton Farm's dairy operations Wednesday evening. Americans tend to view Canada as a socialist version of the United States, what with its universal health care system and high taxes. In this view, it’s the U.S. that epitomizes individual rights and capitalist opportunity.
Yet it took a Canadian judge Tursday to provide the strongest affirmation yet of individual food rights via its ruling in favor of raw dairy farmer Michael Schmidt. The Ontario judge, Paul Kowarsky, stepped into a void left by the failure of American judges in New York, California, Maryland, and Pennsylvania to show anything near the Canadian judge’s backbone and legal sophistication in ruling on consumer rights with regard to raw milk.
The only American judicial ruling in a raw milk case even beginning to approach the Ontario ruling came in late 2006, when an Ohio judge ruled in favor of dairy farmer Carol Schmitmeyer and her herdshare. But the ruling was based more on the state’s inconsistent approach to regulating herdshares than to a major endorsement of the arrangement.
But there is one important similarity I believe the two cases will wind up sharing: Just as the Ohio Department of Agriculture decided not to appeal the Schmitmeyer ruling, I predict Ontario officials won’t appeal the Michael Schmidt ruling. The reason has to do with the very strong ruling put together by Judge Paul Kowarsky. Generally speaking in countries with well established legal systems like Canada and the U.S., it’s difficult to appeal a well-reasoned and documented lower court opinion. Appeals court judges don’t like to overrule lower court judges who have done their homework.
One of the most significant case law matters for the judge was to examine conditions under which consumers might organize themselves privately to avoid public health restrictions and regulations. He pointed to a case involving a private club in Toronto organized so smokers would be able to avoid the city’s anti-smoking laws in public places. The effort was struck down because the club advertised and had minimal dues.
But another case that seemed to fascinate the judge involved a Montreal club organized for members to engage in group sex. The club was similar to Michael Schmidt’s cow share in that it wasn’t advertised and required members to pay dues. Two lower courts ruled that the club was illegal because of concerns about public health risks from sexually transmitted diseases But Canada’s Supreme Court ruled in favor of the club, the judge said. “The risks of contracting a sexually transmitted disease were unrelated to the issue of decency,” he said. In other words, even though society might frown on the activity, individuals who decided to join the club were entitled to make their own determinations about health risks.
The judge asked at one point: “Are cow share members bound to accept protection” from public health authorities? The answer was that, so long as the cow share was organized properly—not advertising, explaining risks, well structured—the answer was no.
The four lawyers representing Ontario’s Ministry of Health who sat at the legal table while Judge Kowarsky read his opinion were noticeably squirming toward the end of his two-and-a-half hour oration. As well they should have been. Michael Schmidt had represented himself, and outmaneuvered them.
He had taken on the task of representing himself not out of principal, but out of financial necessity. The high-powered firm he originally engaged raised its rate from $100,000 in anticipation of the trial last year, to $400,000 once the trial was about to get under way. Michael determined he couldn’t afford the extra money, and decided to go his own way.
The government’s lawyers have already been humiliated by a farmer. I have difficulty imagining them wanting to risk a second or third humiliation in front of higher courts, especially since Michael Schmidt on an appeal has the commitment of the Canadian Constitution Foundation, the equivalent of the American Civil Liberties Union, to represent him.
And as you can see from the photo I published yesterday of Michael Schmidt meeting the media, Canada’s media has given the matter wide publicity. For an excellent summary of Canadian coverage, see The Bovine blog.
Also, the ruling, while encouraging for herdshare/cow share arrangements, has little obvious wider applicability. It’s not as if Canada’s tightly regulated and heavily government supported dairy industry has been de-regulated in any significant way, and the judge affirmed that notion.
On a personal note, I’d like to thank Michael and Elisa Schmidt for their hospitality while I visited at their farm Wednesday evening. In the midst of their preparations for the court appearance yesterday, Michael even insisted on giving me a tour of their Glencolton Farm (see photo above). And thanks to Richard Chomko of The Bovine blog for driving me the nearly three hours from the Toronto airport to the Schmidts’ Glencolton Farm.
Reader Comments (28)
MvC is being billed as a 2nd amendment case (sort of a follow-up to the 2008 Heller decision on an individual's right to keep and bear arms) but it may become more a 14th amendment case, hinging on the true meaning of the "privileges and immunities" clause. That clause was intended to assure citizens that their federally-guaranteed rights would not be abridged by the states, but was subsequently, some would say aggressively, ignored by the courts. The salient portion is:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
If the Supreme Court is courageous enough to allow the intent of the privileges and immunities clause to hold, then we shall have taken a giant step toward taking our country back. States' attempts to control private property (like, for example, milk) will then necessarily be seen in a very different light by American courts. In considering MvC, the US Supreme Court might take some encouragement from the actions of Judge Kowarsky in Ontario.
And on a related note: Bill Marler's apparent sense that he is being vilified for his belief's (per Mark's comment on David's last post) may be relevant here. Is Bill really being assailed for his personal ideology, or because the actions he takes on those personal beliefs work to abridge the guaranteed rights of others?
There is no reason of course to think that Marler is anything but a nice guy and a loving father and a kind neighbor. But we have ample reason also to see him as a product of the current and very flawed ethos of American law and jurisprudence that allows, and even encourages, self-righteous majorities (or powerful minorities) to trample citizens' natural rights. My hope is that MvC will instigate a careful revisiting of the privileges and immunities clause by the Supreme Court, and thereby give legislators, lawyers, and judges a more proper view of American constitutional freedoms. Perhaps then Marler's personal beliefs will not be so damaging, and he can enjoy relief from vilification.
http://foodrightsalliance.ca/regina_v_schmidt.pdf
The other aspect that made Michael’s case very strong was that the judge viewed that Michael’s cow share program was run in a very responsible manner. Illnesses have never been reported, he didn’t advertize, the risks of consuming raw milk were explained to anyone purchasing a share, and it was properly organized.
I wonder if Michael would be willing to post on this blog the information he gives his cow share owners about the risks of raw milk consumption. How detailed is this information? Does he list the different pathogens that can be found in raw milk and the illnesses that can be caused? I’m also curious if he tests his milk for pathogens.
I know you all think I’m against people’s right to choose raw milk. I’m really not. I’m against producing, selling, advocating and advertizing for raw milk in an irresponsible manner. Michael Schmidt has been responsible and I can support that. I congratulate him on his victory.
cp
Spreading disease and illness; PBA is toxic, many of the chemicals added to our soil/food supply are toxic, our water, etc. Unfortunately there are many "member of the so-called "humiliated" public health club." and they pay with their health/life unknowingly.
"Marler's apparent sense that he is being vilified for his belief's "
Isn't that what Marler has done on this blog and others, towards those with differing beliefs than his?
Kudos to Mr. Schmidt.
http://www.ewg.org/reports/bisphenola
Thank you for taking time to clarify the issue, Dave. You are right... I'm sure that everyone who's reacted to Marler's comments, including myself, don't have have an issue with him personally, but with his attacks on any kind of commercial raw milk.
And also with his seeming hypocrisy. Marler likes to present himself as a moderate on raw milk--he grew up on raw milk himself, apparently it didn't do him or his family any harm, yet his actions prove anything but a moderate. You can't be a moderate if you're all over the net, threatening to sue raw milk dairymen.
That's what I have an issue with. Some time ago, Marler made an online comment to Mark of Organic Pastures, which I still find offensive: "I'm going to OWN you!" Practically the same implication which Marler posted as the very first comment on the Whole Foods article, which upset Edwin Shank, as it was designed to do: “It seems he [Marler] somehow feels the need to create as much fear as possible."
Aside from the fact that lawyers are trained not to take responses personally, even to thrive on controversy, we're now supposed to believe Marler's feelings are hurt because everyone reacts negatively to his comments? He said it himself on the Jan.19th blogpost: "I suppose if I had feelings they would be hurt."
Even Marler says Marler doesn't have feelings. lol
Jenny
"THESE ARE HARD TIMES TO BE A FARMER"
WHY? We all eat therefore there is a never ending customer based. WHY? Price controls middlemen farm policy. What drove this farmer to give up and end his life? There is something awfully wrong with the SYSTEM.
This is just the next step in having raw milk products available in retail stores in every state and Canada.
Let's keep this momentum going.
I don't want to be picky, but (like Dr. Strangelove, who couldn't control his saluting renegade arm) I can't control my flying fingers :-). Those whose eyes glaze easily at legalese are forgiven for passing over.
First, although I would wish it, I'm not sure Justice of the Peace ("His Worship") Kowarsky ruled on issues of rights as David seems to suggest. He ruled more precisely in this context concerning the competing concepts of public vs. private, as applied to the statutes in question. The statutes are unmoved. "Rights" under these laws, such as they are, were preserved by clarifying the correct extent of the laws in the case of Michael's admirable facts - but, in the sense that a right to choice was somehow considered, I didn't see it. In fact, Michael's constitutional rights argument ("Charter Challenge") was explicitly NOT considered. Thankfully, he didn't need it.
Second, short shrift was given to competing health-benefits arguments. The judge counted the score as 2-2, evenly split between Michael's evidence and the Crown's. At one point he observed, that if he had seen 22 witnesses, they would probably have ended up evenly split.
What was interesting is that Canada apparently has a rule of statutory interpretation ("The Law is Always Speaking") which permitted the magistrate leeway to interpret the current meaning of statutes written many years ago. Constitutional strict constructionists might raise their eyebrows, but hey, this ain't the Constitution, and it is Canada. (Anyway, the US Supreme Court doesn't really believe in strict construction either - but I digress.)
There have been judges who have faced the distinction between public and private in a raw milk case and showed backbone - quoting, "The statute covers selling the milk to the 'public,' - that is, to all those who have occasion to purchase, within the limits of the defendant's capacity or ability to furnish it. [citations omitted] I think this statute was not intended to be so construed as to compel every farmer who sells a pint of milk to his neighbor to take out a license and be placed under public regulation."
Earlier in the case this particular judge of yore noted some now-familiar concepts - "Defendant's friends were not solicited to buy milk. They get the milk by reason of their own request and intimate friendship with the defendant who does not have a milk wagon, does not advertise, has no dairy lettering of any kind upon his delivery-pickup truck. They furnish and bring their own containers, either cans or regular milk bottles. Defendant's cattle are under Federal supervision, tested and inspected every 90 days, and are free from Bang's disease [brucellosis]."
As the quoted excerpts suggest, this case is not contemporary, but a Michigan Supreme Court case from 1937 (People v. Powell, 280 Mich 699), a brisk seven-pager ruling on application of a pre-pasteurization milk licensing statute. The facts included the farmer's de minimis selling of 6% of his excess milk to neighbors, but the principles of the judge's argument are similar to the thoroughgoing ruling entered in Ontario.
As chief judge Fead said in 1937 when examining the public and private concepts before him, "Where possible, statutes must be given a reasonable interpretation and be so construed as not to lead to absurd consequences."
Amen, and thanks for judges with backbone.
Since Marler is so concerned about making folks pay, and since deli meat is, according to the CDC, the most dangerous food in the US, I'm sure Shyster Marler will be running right down to the courthouse to persecute Daniele first thing Monday morning...after all, he IS concerned about food safety, right?
Prices drop, hope fails, individual responsibility becomes irrelevent and life ends.
Today this raw milk dairyman ( me ) hugged six kids, spoke to a room full of very excited and happy moms and presented another Share the Secret raw milk outreach presentation to a group of OPDC Raw Milk customers.
Producing and selling raw milk is so much more than just raw milk. It is personal responsibilty for production and consumption. It is consciuos and deliberate nourishment and construction of the human immune system. It is most of all...the conection of the farmer to his consumer and the respect and care given to that close and loving relationship.
If that dairyman and had been selling raw milk to connected caring loving consumers he would never have taken his life or the lives of his cows. He would have had so much to live for.
His tragic lonely death lays at the feet of Monsanta, DFA, John Sheehan, NCIMS and must be counted as a food safety death in the CDC "pastuerized milk" category.
With much sadness for the empty tragedies of the present dirty dead milk system and great celebration for the relevence of producer responsibility and his ( or hers ) clean raw milk which nourishingly embraces all that produce and consume it.
Mark McAfee
"The price of milk is set by the USDA"
According to this article. Last year farmers were paid 85 cents per gallon of milk while average production cost were $1.85. A +.85 and a -1.85 = bankruptcy elementary math?
What don't the price setting bureaucrats understand about this math or do they.?
If this farm policy continues we will all be drinking melamine laced powdered milk from China.
“...I'm not sure Justice of the Peace ("His Worship") Kowarsky ruled on issues of rights as David seems to suggest. He ruled more precisely in this context concerning the competing concepts of public vs. private, as applied to the statutes in question.”
Seems to me yes, and no. Here in the good old USA we had a whopper of a decision along the same lines as Canada's Schmidt case, in the infamous Kelo v. City of New London, in which the public-private division was blurred by the court into a broad continuum, essentially because statutory rule was raised above constitutional principles. In a sense, no ruling that places an action on one side or the other of the public-private divide can be seen as anything BUT a constitutional decision. Since statutes have a habit of standing athwart competing principles, that His Worship ruled in the context of the statutes simply begs the question. Kelo is ample evidence of that.
Of course I say all this as a highly qualified legal professional who has thought about applying to law school at least twice. So Steve, is there not reason to acknowledge His Worship's care in applying base principles properly?
http://www.pasafarming.org/resource/PDF/CAREstatement.pdf
Specifically the distinction between government created "persons"(corporations) which the government has a duty to regulate and people who have not been created by government and therefore have inherent rights.These rights include the right to private contracts that are not regulated by government.
Statutes always refer to "persons"."Persons" are by definition public.People are private and not under the jurisdiction of the statutes unless they choose to be considered as a "person".
"… Daniele spokesman says there's "no evidence" that points to his company as the source. He says two of the company's three plants have been tested and found free of bacteria. The spokesman says the recall is being issued in case more evidence implicates the salami. …
[However,] Daniele plans to start irradiating its pepper next week, which would kill salmonella and any other harmful bacteria."
Pepper-covered salami recalled for salmonella dangers
http://www.todaysthv.com/news/local/story.aspx?storyid=98280&provider=top
A 2009 black and white pepper spice recall:
Spice recall expanded due to salmonella threat
33 people sickened in California, Nevada, Oregon and Washington
http://www.msnbc.msn.com/id/30245664/
Spices sicken 184 people in 38 states???
Irradiated spices???
I wonder if the label will disclose the irradiation?
This company just irradiated its market share. The core natural market will not consume an irradiated food.
If this had been raw milk there would be public floggings and executions. This is not even news.
Mark
as for the kelo case, that was unusual. the state of connecticut had a statutory program in place that authorized the taking of private property to alleviate "blight," even if the taking resulted in selling the private property to a real estate developer to build a shopping mall/office center. thus, the us supreme court deferred to the connecticut legislators' statutory program to find that no constitutional violation occurred. (however, a similar fact pattern in ohio was found by ohio's supreme court to be unconstitutional. see norwood v. harney.)
as for the private v. public debate, that's what the legal defense fund has been arguing for over three years. the state's police powers are meant to protect the "public's" health, safety and welfare. if the "public" is not involved then there's no police power protection. the police power can't reach to private conduct.
i guess lykke would have the state regulate sneezes and snot coming out of everybody's nose in order to protect the "public." watch out for the next law that mandates carrying a handkerchief in your pocket at all times, even if your clothes don't have pockets! (but i guess even that kind of law would be good for the economy right lykke, i.e., we would all then have to buy clothes that have pockets because for gosh's sake we can't carry our own snot ridden handkerchiefs in our own hands. my goodness, we'll get sick!).