Court battle over butter to proceed
Judge rejects motion to dismiss lawsuit

By Melanie Boyung - Conley News Service

August 18, 2017

PORT WASHINGTON — Ozaukee County Circuit Judge Paul Malloy on Tuesday rejected a motion to dismiss a lawsuit challenging the state requirement for butter taste tests, allowing the case to move forward into discovery.

Wisconsin currently has a statute requiring that butter carry a label indicating the grade given by a government-licensed taste tester to be legally sold in Wisconsin. The criteria for grading listed in the statute pertain entirely to flavor, appearance, scent and texture, with no reference to safety or health. A lawsuit was filed in March by four Wisconsin residents, including Kathleen McGlone, Grafton owner of Slow Pokes Local Foods, challenging the statute. McGlone sold Kerrygold, an Irish butter, in her store, and the three other plaintiffs were consumers. McGlone did not know about the butter law or that Kerrygold was illegal until about a year ago, when enforcement ticked up. She said she has lost sales from no longer carrying a popular product, and consumers must now get Kerrygold from outside the state. Represented by the Wisconsin Institute for Law & Liberty, the suit claims the law is unconstitutional by violating: due process by limiting business and consumer freedom of choice absent compelling need; equal protection by creating restrictions for butter sellers and no others, therefore treating that select group differently than all others without compelling reason; and freedom of speech, by compelling a government-mandated message serving no valid government interest.

Case enters discovery phase

The hearing Tuesday concerned the motion to dismiss the first two claims filed by Katherine Spitz, a Wisconsin assistant attorney general. She filed the motion in May and WILL filed the plaintiff’s response in July, at which time Tuesday’s hearing to consider the motion was scheduled.

While Spitz argued the law has a reasonable basis in providing information to consumers and does not violate due process or equal protection, Malloy denied the motion; as such, the case now moves into the discovery phase. “This was a big hurdle,” Jake Curtis, litigator for WILL, said Tuesday. Had Malloy approved motion for dismissal, the first two counts — due process and equal protection — would have ended there. Instead, the case now enters discovery, which Curtis said will likely take about six months as both sides research and build their arguments. After discovery, the judge can either grant a summary judgment in favor of either plaintiff or defendant in the case, or the case can go to trial.

“Typically, both parties will file opposing motions for summary judgment,” Curtis said. Where there is dispute of facts in a case it must go to trial, according to Curtis, though in the current case, the facts themselves are not in question. Curtis said the question in the butter lawsuit is about the law itself, and so Malloy may issue summary judgment when those requests are made.

The butter law has been compared in the lawsuit to the state’s attempt to ban oleomargarine, which was struck down in 1927; Curtis has said such laws are promoted by the local industry to inhibit competitors from other states or countries, by creating restrictions — such as state-mandated taste tests and labeling specific to Wisconsin — more difficult to meet for those who are not in Wisconsin.

Email: mboyung@conleynet.com