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Hershberger First Amendment Brief

Hershberger First Amendment Brief

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Published by Eddie Free

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Published by: Eddie Free on Mar 05, 2013
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07/10/2013

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 1
STATE OF WISCONSIN CIRCUIT COURT, BR. 3 SAUK COUNTYSTATE OF WISCONSIN
,Plaintiff,v.
VERNON HERSHBERGER 
,Defendant.Case No. 11 CM 696
Defendant’s Supplemental Brief in Response to the State’s First Supplemental
Motions in Limine
 
The Defendant, Vernon Hershberger, by his attorneys, Elizabeth Gamsky Rich, GlennReynolds, and Amy Salberg, submits the following Supplemental Brief in Response to the
State’s First Supplemental Motions
in Limine.
 
I.
 
INTRODUCTION
The criminal Complaint filed against Mr. Hershberger alleged three licensure violationsand a holding order violation. The issues addressed in this brief arise in connection withevidence Mr. Hershberger seeks to present to defend against Count 4 of the Complaint, thealleged holding order violation. The State filed a Motion
in Limine
seeking to exclude theevidence, and at a hearing on December 21, 2012, the Court called for briefing on the issue of 
whether its ruling in favor of excluding the proffered evidence implicates Mr. Hershberger’s
freedom of religion as protected by the Wisconsin Constitution.This Brief and the accompanying Affidavit of Vernon Hershberger address Mr.
Hershberger’s sincerely held religious beliefs and the significance of those beliefs in connection
with (1) the proposed expert testimony; (2) the ability to present evidence regarding the facts setforth in the holding order and the Summary Special Order (as opposed to challenging the
 
 2
validity of the orders themselves); and (3) Mr. Hershberger’s privilege to act in preservati
on of  private property as it relates to the holding order.
1
 
II.
 
STANDARD
The Wisconsin Constitution
2
includes broad protections for freedom of religion and therights of conscience. W.S.A. Const. Art. 1, §18 provides, in pertinent part:The right of every person to worship Almighty God according to thedictates of conscience shall never be infringed; nor shall any person becompelled to attend, erect or support any place of worship, or to maintainany ministry, without consent; nor shall any control of, or interference with,the rights of conscience be permitted, or any preference be given by law to
any religious establishment or modes of worship . . .”
 
Wisconsin’s seminal case regarding freedom of religion under Article 1, §18 of the Wisconsin
Constitution is
State v. Miller,
202 Wis. 2d 56, 549 N.W.2d 235 (1996). Under 
 Miller,
thechallenger carries the burden to prove (1) that he or she has a sincerely held religious belief; (2)that is burdened by the application of the state law at issue. Upon such proof, the burden shiftsto the State to prove: (3) that the law is based on a compelling state interest, (4) which cannot beserved by a less restrictive alternative.
3
 
 Miller 
at 70.
1
 
This last issue was not mentioned at the December 21 hearing; however, since this defense also implicates Mr.
Hershberger’s religious beliefs it is addressed here along with the other issues.
 
2
 
The First Amendment to the United States Constitution provides a separate, independent protection for Mr.
Hershberger’s Right to Religious Freedom
.
State v. Miller 
, 202 Wis. 2d 56, 65-66, 549 N.W.2d 235, 239 (1996).The test under the First Amendment is the same as under the Wisconsin Constitution: a compelling governmental
interest must be shown to overcome Mr. Hershberger’s religious liberty chall
enge to the administrative procedure.As discussed herein, there is no compelling governmental interest sufficient to require Mr. Hershberger to violate hisconscience. In the interest of avoiding repetition, Mr. Hershberger hereby preserves his First Amendment claimwithout repeating the argument made under the Wisconsin Constitution.
3
 
The
 Miller 
test is articulated, and is typically applied, in the context of application of a state law. TheConstitutional provision, however, is broader and applies to
“any control of, or interference with, the rights of conscience”. Mr. Hershberger argues that exclusion of the evidence at issue here would violate Mr. Hershberger’s
constitutional rights. Even if it would not, however, the evidence should be allowed based on the equitable factorsarticulated
infra
at 9,11.
 
 3
III.
 
FACTS AND PROCEDURAL HISTORY
On June 2, 2010, representatives of the Wisconsin Department of Agriculture, Trade andConsumer Protection (DATCP) conducted a raid at the Hershberger farm. The agents destroyed2,000 gallons of fresh milk in the bulk tank by pouring blue dye into the tank, claiming the milk 
was “adulterated and misbranded”— 
even though there was no logical, factual, or scientific basisfor this conclusion. The milk was unpasteurized, as is all milk on all farms that is stored in bulk tanks. The agents then proceeded to place a holding order on fresh, wholesome food in coolers
on the property, most of which belonged to members of the Hershberger’s private buying club,
and some of which belonged to the Hershberger family.On June 8, 2010, DATCP issued a Summary Special Order against Mr. Hershberger. TheOrder recited that it was issued pursuant to Wis. Stat. §97.12(2)(c), and included the followingspecific findings of fact:7. Consumption of unpasteurized raw milk is dangerous to health.8. The sale or distribution of unpasteurized raw milk creates animminent health hazard. The public health value of pasteurizationis a significant factor in the prevention of disease which may betransmitted through consumption of raw milk. Pasteurizationand processing milk in a licensed dairy plant substantiallyreduces the risk to public health.The Order also included a notice of appeal rights, indicating that Mr. Hershberger couldchallenge whether the Order was justified by demanding a hearing pursuant to Wis. Admin.Code ATCP 1.03(3).On October 18, 2012, Mr. Hershberger filed a witness list which included Ted Beals, amicrobiologist who would offer expert testimony regarding the question of whether raw milk isdangerous. Pursuant to Wis. Stats. §97.12(2)(a), the inspector issuing the holding order musth
ave “reasonable cause to believe that any food examined by him or her is adulterated or 

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Jonas Stoltzfus added this note
lookd like a real case of the state being the aggressor and violator of personal and private property rights
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