We’ve made two court appearances since the last post and more are promised for the future. On Jan 22, 2008 there was a hearing in Seneca County Superior Court on a declaratory judgment we have filed against NY Dept of Ag & Mkts and the Div of Milk Control (hereafter, the Dept) in which we were asking the court to rule that the Dept does not have the authority to regulate the activity of Meadowsweet Dairy, LLC since all distributions of milk and milk products from the herd of Jerseys the LLC owns are all done privately and only to the members of the LLC. The Dept had filed a motion for dismissal of the entire matter since they believe they are entitled to such authority. Judge Bender ruled that the case should not be dismissed but should be transferred to Albany Superior Court as that is the proper venue for a case involving a NY State agency. To transfer the case to Albany, Judge Bender ordered the Dept attorney to prepare an Order of Entry and submit it to Judge Bender for signature. This postponement of the hearing of the merits of the case by an independent party was a bit discouraging but also hopeful in that the case was not dismissed.
Then, on Valentine’s Day we were served papers requesting us to appear in Albany court on Feb 28 at a hearing with “THE PURPOSE OF THE HEARING IS TO PUNISH STEVEN AND BARBARA SMITH…FOR CONTEMPT OF COURT” (caps are original). Our attorney, Gary Cox, constructed a solid case on short notice and was prepared to call both Barb and me as witnesses at the hearing and calmed us a bit by saying the above phrasing was legalese for ‘the hearing will be to figure out what to do with you guys’.
The hearing was scheduled for 3:30 pm and several area dairy farmers and a blogger (David Gumpert, www.thecompletepatient.com) showed up in support. Due to the preceding trial, our hearing did not begin until 4:40 pm. The presiding justice, Judge John Egan, decided to simply hear oral arguments by the opposing attorneys and dispensed with witnesses and their testimony. The Dept attorney presented the facts about how I had shown contempt for a court order by refusing to unlock the door to our processing room when the Dept’s inspectors had surprised us with an administrative inspection warrant on Dec 19, 2007. While the warrant was for the inspection of the “dairy farm and milk plant”, the inspectors had not bothered to inspect the unlocked dairy farm but rather had turned around at the front door of our house when I refused to help them. My refusal was based on the fact that the warrant did not require my cooperation, only that I allow the inspection to proceed, which I had done by not standing in their way. The Dept attorney went on to enhance the facts by stating that not unlocking the door was the same as locking the farm gate (we don’t have one) and thus denying the Dept access to facilities that the Law requires the Dept to inspect. Gary Cox then presented the summary of our case and the argument that the warrant was facially invalid because it was directed at the wrong parties (Meadowsweet Yogurt, which hasn’t been in business since Jan 2007), it was to permit the Dept to inspect on “a continuing basis”, whereas warrants are generally only valid for 10 days from the day they are signed, and it allowed the Dept to determine the probable cause for warrant execution, which determination is a power reserved for the court to make not an agency. During his presentation, Gary referred to the Seneca County declaratory judgment action being transferred to Albany and requested a stay of the contempt hearing until the complete case could be heard. This prompted the judge to question the Dept attorney, who stated that by law the Dept had 60 days or until March 21 to initiate the transfer. On being prompted by Gary and Judge Egan, he further stated that Judge Bender had ordered the Dept to do their job and get the Order to him by March 6 since it was a simple matter and there was no need for delay. Finally, after the Court House building closed at 5:30, Judge Egan told Gary we were running out of time and Gary hastily completed his arguments. The Judge then said he would issue a written decision and asked both attorneys to keep him informed of the progress of the case transfer, to direct the transfer to his jurisdiction and to include reference to this contempt hearing on the transfer paperwork.
Since the contempt hearing, the LLC marked the 1st anniversary of its incorporation on Mar 1, 2008 by the members continuing to drink the realmilk of the LLC herd and the herd has continued to produce milk and is eagerly anticipating the greening grass of Spring. Today, Mar 5, we saw the first redwing blackbird at the feeder.
And the Dept has apparently wasted as much time as possible before sending the required Order to Judge Bender. Eventually, our contention that Meadowsweet Dairy, LLC is engaged in private and legal activity that the Dept has no authority to meddle with will be aired in the New York Supreme Court in Albany before Judge Egan but probably not before this summer. Stay tuned.