• May 22, 2015

512px-Potato_and_corn_chowderImagine Grandma thrown into the slammer (or maybe merely fined) for selling her wicked good home-made chowder at her garage sale. Give her one warning and, if she does not repent and mend her ways, then it’s off to Shakopee? Most of us would find this to be grotesque, over-reaching, state intervention into a relatively innocuous interaction. Such informal human interaction should be entirely free from government intrusion.

Some garage sale participants might look at the crock-pot and wonder how long since the contents were refrigerated and at what temperature the chowder is kept at. (And where is sweet old Mormor Linnea getting her “fresh” shellfish?) They might decide to take a pass.

Others might buy a cup and enjoy some wonderful home-cooking.

Still others might get food poisoning and die. Tough quahog. Caveat emptor, am I right? (Mormor Linnea wouldn’t hurt a fly. She can be a little forgetful about the details of good food hygiene. But she’s not evil…)

What if Mormor Linnea were making chowder by the 100-gallon vat and selling it in mason jars out of the back of her truck year-round? Do you think at some point it is appropriate that she might be regulated by the state, that she might be required to get a license from the state to sell the her death potion chowder, that she might have to put up with food inspectors checking out her operation, making sure she carries appropriate insurance, and so forth? At what point do we all welcome and embrace government involvement in our day-to-day interactions?

How about when Mormor Linnea is making more than $5,000/year selling her foodstuffs or when she sells “outside of community events or farmers’ markets”?

The thing that I find farcical about hard-core civil libertarians who seem to oppose all government regulation is that we all (well, very nearly all, I guess) agree with them at the extremes. The government does not get to inspect my kitchen before allowing me to serve guests who come to my house for dinner, for example. We’re all good with that, am I right?

By the same token, though, we all (well, very nearly all, I guess) disagree with absolutist civil libertarians in the vast majority of real-life government/private actor interactions that occur throughout our society. Most of us understand that food safety laws and food supply protection are appropriate areas for government oversight. It is just a matter of moderation.

Enter “Jane Dough,” actually known as Janie Astramecki, owner of Jane Dough Bakery, who, along with Mara Hack, are represented by the libertarian group, Institute for Justice. Plaintiffs want to sell their products without licensure directly to customers “outside of farmers markets or community events,” so they are challenging Minnesota’s  Consolidated Food Licensing Law, Minn. Stat. §§ 28A.01-.16 (2014).

They lost at the district court but won a reprieve (for now) at the Court of Appeals, which remanded the lawsuit to the district court.

Because the Minnesota test requires a factual assessment of the connection between a statute’s effect and its purpose, there must be a sufficient record before the court to allow it to make that assessment.

So it is back to the district court for Jane Dough because, in my view, the district court simply recognized the obvious on the first go-round. Now the state will have to actually put on evidence (that is, “make a record”) of the obvious…

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