Butter lawsuit heading to Ozaukee County courtroom next week

By MELAINE BOYUNG - Conley News Service

August 8, 2017

The suit filed March 16 by four Wisconsin residents — including Grafton’s Kathleen McGlone, owner of Slow Pokes Local Food — is against Wisconsin Department of Agriculture, Trade and Consumer Protection Secretary Ben Brancel, in his official capacity.

The law requires a brand of butter may only be legally sold in the state of Wisconsin if it has been graded by a state-licensed taster based on 35 characteristics pertaining to flavor, aroma, appearance and texture, and the package marked with that grade. The statute makes no reference to safety or health.

Jake Curtis, a lawyer for the Wisconsin Institute for Law & Liberty, who is representing the plaintiffs in the lawsuit, has called the law protectionist. He said that requiring a Wisconsin test, grade and label promotes Wisconsin brands, which can easily attain the required grading, while creating an unreasonable hurdle for nonlocal butter makers.

The lawsuit was triggered by prohibition of the sale of Kerrygold, an Irish butter. McGlone had sold the butter at Slow Pokes for years, until she was informed she could be punished for it with heavy fines; the law has long been on the books, but went years without active enforcement until about two years ago, according to Curtis.

The other three plaintiffs are consumer who prefer Kerrygold. They argue they now have to stock up the bands with out-of-state trips.

In May, the defense filed a motion to dismiss two of the three claims, making no argument pertaining to the third. WILL filed a brief opposing the motion July 26. The hearing is set for 11 a.m. Aug. 15 at the Ozaukee County Justice Center. Judge Paul Malloy will hear the case.

WILL argues the butter law, limiting options of butter sales based solely on a subjective opinion of taste that must be printed on butter packaging, violates the state constitution in three ways:

Violates due process, limiting a seller’s economic liberty to make sales and consumers’ liberty to make their own choices of product without interference. Mc-Glone has lost sales because of Kerrygold’s absence, and the three other plaintiffs have to travel great distances to obtain the product of their choice, when there is no reason of health or safety for it to be prohibited.

The defense, represented by Wisconsin Assistant Attorney General General Katherine Spitz, argued to dismiss the claim because courts consistently defer to the legislature in due process matters, “as long as there is some conceivable, legitimate basis for the law. Even if the legislative decision is made without empirical data or for a different reason, the existence of a rational reason for the law should cause the court to favor the law’s legitimacy.”

The plaintiffs argue against dismissal of the charge on the grounds that no rational reason exists for mandating a subjective grading. According to the brief, at this point in the process, the facts of the argument are assumed true, that dismissal requires an argument showing that no valid claim exists in light of those facts; the defense has not met the burden, having simply contradicted the plaintiffs’ argument; not shown the absence of a claim.

Violates the equal protection clause, creating unnecessary restrictions for sellers of butter, and only butter, thereby treating that group of people differently than all others in similar pursuits.

The defense requested dismissal on the same argument as under due process — courts consistently side with the legislature — as well as disclaiming the argument that there is inequality. The defense’s motion stated all butter sellers are treated the same under the taste-test requirement, and it would make no sense to apply a butter- specific law to businesses that do not sell butter.

Violates constitutional guarantees of freedom of speech, by mandating speech that serves no substantial government interest. The defense’s motion did not address the freedom of speech claim.