John Tuma’s Capitol Update – the Fall Version
In the final installment in a series about Minnesota’s role in the local food movement, John continues his journey through the history and meaning of a state constitutional provision and its impact on locally grown foods.
“…the majority opinion, by upholding the custom meat processing regulations in the context of the present dispute, guts the constitutional protections granted to farmers to sell their own products…”
G. Barry Anderson
State v. Hartmann
700 N.W.2d 449, 460
Well said, G. Barry Anderson; more on that a little later. First, for the final article in this series, let’s lay out that “context,” as G. Barry put it, to better understand the significance of the very interesting split decision of the Minnesota Supreme Court in State v. Hartmann interpreting Article 13 Section 7 of our State’s Constitution.
With the rebirth of the concept of buying food directly from farmers locally, now known as the Locavore movement, Minnesota farmers have a unique state constitutional protection from overregulation. It was during the heyday of market gardening, where farmers would commonly sell the bounty of their labor directly to consumers, that the concept for Article 13 Section 7 of our State Constitution was hatched. In the late 1800s and early 1900s, these enterprising farmers were faced with excessive “peddler” licensure fees from local units of government. It was farmer Peter Jensen who challenged a Minneapolis license fee all the way to the Supreme Court, but he lost his case in 1904. In response to these excessive license fees and the indignity of being called a lowly peddler, fellow market gardener and freshman legislator Alwin Rowe, with the help of the savvy House Judiciary chair Rep. William “Tall Pine of Minnesota” Anderson, secured passage in 1905 of a short little constitutional amendment. Though slightly watered down on the House floor, it still packs a punch by stating:
“Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
The constitutional amendment was overwhelmingly supported by Minnesota voters in 1906. There have been very few reported cases around this constitutional amendment and none of recent history until the case of State v. Hartmann. With the concept of farmers selling directly to consumers having faded nearly into obscurity for several decades, this little constitutional amendment was all but forgotten. As a result, state regulators slowly and methodically filled the void with several new regulations and license requirements all in the name of health and market protection for the new commodity-driven agricultural business model.
The thought that this archaic constitutional amendment still had any meaning in today’s marketplace was viewed as quite laughable and “different” in the eyes of our army of 21st century regulators. Therefore, when a couple of somewhat “different” organic farmers from Gibbon, Diane and Michael Hartmann, had the audacity to make the silly argument that the right to sell their custom-processed meat directly to consumers was constitutionally protected, I’m sure there were a few eyes rolling and wry little smiles on the faces of the guardians of our agricultural system.
Despite their manifesto to the Department of Agriculture explaining their constitutional right to market their products directly to consumers, the Hartmanns were convicted on two counts for selling their custom-processed meat on the streets of Hutchinson, Minnesota in 2001. The first count was failure to obtain a license for the sale of food products pursuant to Minnesota Chapter 28. The second count was the sale of custom-processed beef in violation of Chapter 31A. Custom processing is where a particular consumer provides an animal for slaughtering and all the processed meat from that animal is returned to that individual to be eaten by their family and, in the case of farmers, by their employees, if any. Chapter 31A indicates that a farmer may not sell this meat on the open market and must specifically stamp the meat package with the words “not for sale.”
The Hartmanns were soundly defeated in their first appeal of their two convictions to the Court of Appeals, where the three-judge panel gave their constitutional argument little weight. The Court of Appeal’s interpretation of Article 13 Section 7 was so narrow that it would likely only protect someone selling door-to-door raw vegetables they grew in their garden. I’m sure when the Hartmanns appealed to the Supreme Court, the Department of Agriculture was supremely confident the “different” arguments of these slightly odd organic farmers would be soundly ignored.
Therefore, it must have been quite a shock to Minnesota’s army of food regulators when the Supreme Court, in its July 28, 2005 decision, sent a strong message that the state’s agricultural regulations were on thin ice as it relates to farmers marketing directly to consumers. The regulators continued to spin it as if they could regulate most farmer-to-consumer transactions, but the Supreme Court’s decision was squarely against them despite the Court’s mixed opinions. I must be honest, when I first saw the decision I only gave it a cursory reading, noticing it was a classic 3-1-3 split decision and thought it would not be a strong message in favor of local marketing farmers, despite the fact that one of the convictions was overturned. A “3-1-3” split decision means three judges were for the majority opinion with one judge concurring with some caveats. Additionally, there were three judges in dissension putting forward a different opinion meaning, in most cases, there was not a clear consensus.
The three majority judges opined that the license required under Chapter 28 was clearly unconstitutional and I took a much broader view of the significance of the Constitution amendment than the lower courts. Unfortunately, the majority opinion upheld the conviction for the violation of the health regulations under 31A. I just assumed that the dissenters were supporting the very narrow determination put forward by the Court of Appeals. One of my former law professors always told us never to make such broad assumptions without first reading the case. Sorry, Professor.
What actually occurred was an opinion that strongly supports the right of farmers to market directly to consumers by all seven judges. What unfortunately happened was that the Hartmanns’ attorney failed to put forward probably one of the most critical arguments for full success in their case. The three majority judges led by the opinion written by Justice Helen Mayer said that the licensure under Chapter 28 was clearly unconstitutional, but that the state had a right to establish some parameters of what products are illegal. This right to sell a farmer’s product didn’t mean a farmer could sell anything he wants just because he grew it on his farm. For example, growing marijuana cultivated in a farmer’s own garden does not therefore make it legal to sell. For various reasons that are perfectly constitutional, the State can declare some products illegal.
The question came down to whether the classification of custom-processed meat was an appropriate health regulation, such that the product would be illegal to sell in all cases, or whether the regulations were too broad as to act as a prohibition on the direct sales by farmers to their consumers as protected by our Constitution. Unfortunately, the Hartmanns’ attorney failed to articulate this argument on appeal. A significant part of the three different opinions of the justices was spent debating whether they could take up an issue not argued, but was so obvious from the circumstances that it should be part of the ruling. Unfortunately, correctly put by the three majority judges and the one concurring judge, it is a long-standing judicial precedent that an issue not argued could not be the basis of the court’s determination.
Nonetheless, G. Barry Anderson, the drafter of the minority opinion, was compelled to make the point in the dissent that the custom-processing regulations were in clear violation of our state’s constitution in this case. G. Barry Anderson was the newest justice and probably still had the fire in his belly to want to argue a good case as an attorney. Interestingly, prior to his appointment into the judicial system, he was the city attorney for Hutchinson — the very city where the Hartmanns were selling their illicit contraband.
As someone from the rural landscape, Anderson probably better understood more than the others that custom-processed organic meat is in most cases superior to anything you can buy in the supermarket. He even hinted at this idea that custom meat is superior in his dissent, but sadly noted that evidence was not brought forth to establish this fact nor were appropriate arguments made on appeal to support it. His point in the dissent was that the state cannot use some other regulation other than licensure to do an end around to, in effect, prohibit farmers from selling their products directly to consumers, creating a de facto license in a sense. He argued that if a product is safe to consume by the farming family and their employees, then on its face there could be no compelling health rationale to prohibit its sale to the farmer’s neighbors. He argued the state must show that there is a rational reason for the regulation and that it is actually necessary to protect public safety. He pointed out that a few farmers selling their custom-processed meat would not present any public-health concerns and such regulations act very much like licensure prohibited by the Constitution in this case. He poignantly concluded his opinion by stating:
“…where the Minnesota Constitution has protected the commercial relationship between a farmer and the farmer’s customers, there needs to be at least some minimal showing that the regulation in question actually addresses public safety issues. This is not a difficult burden to impose on the state; to hold otherwise, however, is to ignore the intent of the voters as expressed in article XIII, section 7, which recognized ‘the fact that the tillers of the soil stand in a peculiar position in reference to the marketing of their products’” [quoting Minnesota Wheat Growers Co-Op Marketing Assn. v. Huggins 203 N.W. 420, 424 (1925)]
In the long line of Andersons who have had a hand in the history of this interesting constitutional amendment, it was Justice Paul H. Anderson who gave the concurring opinion. A concurring opinion is where he supported the final decision put forth by Justice Meyer to only overturn the licensure conviction, but with some caveats. He essentially said he had to side with the majority because the court should not get into arguments not made. Nonetheless, he wrote his concurring opinion to indicate his “attraction” with the argument of the dissenters to overturn both convictions. In other words, the three dissenting judges were correct and he would have gladly supported the right of farmers to sell custom-processed meat directly to consumers had the issue been appropriately raised and argued.
Therefore, in 2005 there appeared to be a majority on the Supreme Court who were ready to overturn the prohibition on the sale of custom-processed meat by farmers directly to consumers if given the right case and the appropriate arguments. Such a line of reasoning would also seem to indicate that several other regulations promulgated by our State Legislature and the Department of Agriculture may also be in jeopardy as unreasonable regulations impairing the right of farmers to sell their products directly to consumers as supported by Article 13 Section 7. This decision is an unambiguous message to the Legislature to take seriously this constitutional amendment or face the consequences.
Certainly the court makeup has changed since this 2005 decision, but possibly for the better as it relates to this free market progressive constitutional dictum. I’m certainly not a regular court watcher and I don’t know how the new justices appointed since 2005 would respond to the philosophies expounded by the dissent in State v. Hartmann. However, it is worthy to note that two of the justices in the majority have since retired and have been replaced by two appointments from Governor Tim Pawlenty: Justice Christopher Dietzen and the new Chief Justice Eric Magnuson. As Pawlenty appointees, one could fairly assume they have a stricter constitutional interpretation philosophy and likely a belief in a smaller regulatory role for government. Paul Anderson, who was sympathetic in his concurrence to the right of farmers, is still on the bench as is G. Barry Anderson. Justice Alan Page was one of the three dissenters and is still on the court. Page is considered the most progressive member of the bench, which shows again how this issue can cross political and philosophical divides. The only dissenter who is no longer on the court was former Chief Justice Kathleen Blatz, considered by many a moderate to conservative justice. The Associate Justice who replaced her is a renowned conservative jurist, Lorie Skjerven Gildea.
Now to bring this story full circle regarding my curiosity about this farmer’s constitutional amendment, which was piqued when it was used to support the adoption of the Clean Water, Land and Legacy constitutional amendment. The playbook for passage of that clean water initiative may be the one the local farming movement needs to implement to help eliminate needless regulations and expand their markets. The playbook used by the Clean Water Crusaders had as its centerpiece a strategic lawsuit against the cities of Annandale and Maple Lake when the Legislature failed to recognize their obligations under the federal Clean Water Act. It was this strategic lawsuit that began a long legislative, legal and electoral process that over a decade led to the nation’s best dedicated funding source for clean water.
Certainly state legislators should uphold the Constitution and start to adjust our laws to recognize the depth of the constitutional provision protecting the right of “the tillers of the soil” to market directly to consumers after this landmark 2005 decision. If the Legislature doesn’t step forward, however, then marketers of local farmers’ produce should not be afraid to use the courts to demand change. This short little constitutional amendment may after all play a big role in Minnesota to expand the progressive Locavore movement. The Hartmanns could be the ones in the end wearing wry little smiles. Further, maybe that long forgotten St. Paul legislator Alwin Rowe, thrown out of office because he was one of the machine politicians of his day, will go down in history as one of our most renowned and effective progressive legislators for giving us this little gem tucked away in our Constitution under Article 13 Section 7.