DARLINGTON - Three area residents were given the right to sell baked goods made in their home without the use of a license and commercial kitchen Wednesday after Lafayette County Judge Duane Jorgenson declared a Wisconsin statute unconstitutional.
In his ruling, the result of a lawsuit against the state, Jorgenson quoted a former United States Supreme Court Justice.
"To borrow from Thurgood Marshall, 'Legislation has the right to adopt stupid laws,'" Jorgenson said.
Jorgenson stated there was no connection between the law's intended results and the regulation it imposes. The provision requiring a conventional kitchen was unconstitutional, he said, though the ruling only applies to the three plaintiffs in the case.
"It bears no rational, substantial or reasonable connection with the purpose of the statutory scheme," Jorgenson said, adding that it indicated an "unintended consequence of economic preservationism."
He is referring to, namely, an exception within the law for roughly 400,000 homemade cream puffs to be sold at the Wisconsin State Fair. A cycle of special interest between the nonprofits creating the pastries and state organizations provides a financial incentive for the legislation to keep the law in place, Jorgenson said.
He added that because food processors are not held to higher standards, the plaintiffs should not be either. Jorgenson said there has been virtually no evidence of cross-contamination in home-baked goods.
Dela Ends of Brodhead, Lisa Kivirist of Browntown and Kriss Marion of Blanchardville brought the suit against the Wisconsin Department of Agriculture, Trade and Consumer Protection in January 2016. The plaintiffs contend a state prohibition on the public sale of home-baked goods places unequal restrictions when compared to other homemade foods, like pickles, honey or sorghum.
Wisconsin is only one of two states to place these regulations on bakers through law. The other state is New Jersey.
"You know, Wisconsin is dead last in start-ups," Marion said, referencing a report by leading U.S. entrepreneurship advocacy and research group the Ewing Marion Kauffman Foundation. The report, released in May, ranks Wisconsin as last in business creation for the third year in a row.
"We should be first in start-ups," Marion said. "This (law) is an example of the type of anti-competition legislation we have."
A measure commonly referred to as the "Cookie Bill" to change the state law has failed to come to a vote twice in four years within the Wisconsin Assembly. Ends said after that failure she was happy to witness a positive outcome.
"It just felt like we would never get anything done," Ends said. "I'm glad it turned out the way it did."
Marion expressed disappointment with Wisconsin officials for fighting against removing a burdensome regulation at the cost of taxpayers. She said influential special interests likely pressured the state into rallying against the measure.
Wisconsin Assistant Attorney General Gabe Johnson-Karp indicated the problem is the potential hazard home-baked goods can have on the public. Arguing for a stay against the judgment before the state files an appeal, he drew a slight gasp from the plaintiffs' side of the courtroom as he indicated that without a stay, "the public faces irreparable harm."
Jorgenson said he would not immediately grant a stay of the decision but would consider one after arguments from the state. The brief will be filed by June 9. Plaintiff lawyer Erica Smith will have until June 23 to respond. Jorgenson said to expect his decision soon after that date.
In his ruling, the result of a lawsuit against the state, Jorgenson quoted a former United States Supreme Court Justice.
"To borrow from Thurgood Marshall, 'Legislation has the right to adopt stupid laws,'" Jorgenson said.
Jorgenson stated there was no connection between the law's intended results and the regulation it imposes. The provision requiring a conventional kitchen was unconstitutional, he said, though the ruling only applies to the three plaintiffs in the case.
"It bears no rational, substantial or reasonable connection with the purpose of the statutory scheme," Jorgenson said, adding that it indicated an "unintended consequence of economic preservationism."
He is referring to, namely, an exception within the law for roughly 400,000 homemade cream puffs to be sold at the Wisconsin State Fair. A cycle of special interest between the nonprofits creating the pastries and state organizations provides a financial incentive for the legislation to keep the law in place, Jorgenson said.
He added that because food processors are not held to higher standards, the plaintiffs should not be either. Jorgenson said there has been virtually no evidence of cross-contamination in home-baked goods.
Dela Ends of Brodhead, Lisa Kivirist of Browntown and Kriss Marion of Blanchardville brought the suit against the Wisconsin Department of Agriculture, Trade and Consumer Protection in January 2016. The plaintiffs contend a state prohibition on the public sale of home-baked goods places unequal restrictions when compared to other homemade foods, like pickles, honey or sorghum.
Wisconsin is only one of two states to place these regulations on bakers through law. The other state is New Jersey.
"You know, Wisconsin is dead last in start-ups," Marion said, referencing a report by leading U.S. entrepreneurship advocacy and research group the Ewing Marion Kauffman Foundation. The report, released in May, ranks Wisconsin as last in business creation for the third year in a row.
"We should be first in start-ups," Marion said. "This (law) is an example of the type of anti-competition legislation we have."
A measure commonly referred to as the "Cookie Bill" to change the state law has failed to come to a vote twice in four years within the Wisconsin Assembly. Ends said after that failure she was happy to witness a positive outcome.
"It just felt like we would never get anything done," Ends said. "I'm glad it turned out the way it did."
Marion expressed disappointment with Wisconsin officials for fighting against removing a burdensome regulation at the cost of taxpayers. She said influential special interests likely pressured the state into rallying against the measure.
Wisconsin Assistant Attorney General Gabe Johnson-Karp indicated the problem is the potential hazard home-baked goods can have on the public. Arguing for a stay against the judgment before the state files an appeal, he drew a slight gasp from the plaintiffs' side of the courtroom as he indicated that without a stay, "the public faces irreparable harm."
Jorgenson said he would not immediately grant a stay of the decision but would consider one after arguments from the state. The brief will be filed by June 9. Plaintiff lawyer Erica Smith will have until June 23 to respond. Jorgenson said to expect his decision soon after that date.