Saturday, May 8, 2010

Reminders of the Nazi Occupation

This article was published in VICFA Voice, a newsletter for Virginia Independent Consumers and Farmers Association and has been reprinted dozens of times for VICFA’s marketing purposes. United Caprine News also printed it in 2005.

Reminders of the Nazi Occupation
By Larisa Sparrowhawk

Mary Van der Woude-Hill and James Hill are preserving many acres of Fauquier County farmland and recently restored a beautiful 1800’s house on one of their two properties. They raise attractive heritage breeds of poultry, cattle, goats and sheep on pasture. They do not grow any genetically engineered crops or spray pesticides that might drift onto nearby properties or pollute streams. So why is Virginia taking them to court?

When I drove up, a half dozen floppy-eared Nubian goat babies stretched their necks out of the first paddock fence to watch me get out of my truck. I let the kids nibble on my fingers a moment before knocking on the door. Mary invited me into the living room, where we admired two new goat kids in a wooden box next to a cozy woodstove. James sat down next to them and the kids busied themselves for the next hour and a half trying to climb out of the box and into his lap.

Mary grew up on a farm in Holland during the Nazi Occupation. Although she came to America in 1953, when she was 20, she still has an endearing accent. I was surprised to learn the Hills were in their seventies since they look and work like they are much younger.

Mary met James in California; they married and moved to Virginia to start a farm together. Mary bought some dairy goats, milked them and learned to make cheese. After several years, Mary started selling cheese at Archwood Greens Barns, a Sunday farmers’ market in The Plains.

The Hills researched Virginia state milk processing requirements and spent over $23,000 constructing a state approved building separate from their farm and home. It has heat and air conditioning, stainless steel sinks and counters, concrete floors with drains and a refrigerator dedicated to milk products. The Virginia Department of Agriculture (VDACS) now wants Mary to use a specific pasteurization machine that costs $8,000.00, heats the milk up to 165 degrees and requires a minimum of seven gallons of milk to operate. With only six does, Mary would have to store her milk longer than she likes in order to acquire enough. She showed food inspectors two alternatives:  a stainless steel pasteurizer designed for small dairies and her own stove. She asked, “Why would I buy an $8,000.00 machine when it does not heat to the temperature I need to make my cheese – 185 degrees?” For years, she has achieved excellent results with a stove, a stainless steel pot and a good thermometer.

Virginia food inspectors have listed her lack of an “approved” pasteurizer as a violation every time they have made a report, even though a scientific test that checks for pasteurization proves Mary is heating the milk to a temperature above the legal requirements. If the new and more restrictive regulations VDACS is pushing at the General Assembly become effective, neither Mary’s method of heating the milk nor the building in which she processes it would meet requirements.

In 1999 two food inspectors arrived at the Hill’s doorstep – with an armed sheriff! Mary was immediately reminded of growing up in Holland when Nazi police showed up unannounced to terrorize the citizenry. She asked why the sheriff was there and was told “to protect the inspectors”.  She reminded them of the Fourth Amendment, which states, in full:

The right of the people to be secure in their persons, houses, papers
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported
by oath or affirmation, and particularly describing the place to be searched
and the persons or things to be seized.

Since the inspectors did not have an appointment, the Hills did not allow them into their house. The sheriff threatened them with a misdemeanor, but he and the two inspectors left.

A few days later, the Hills received a letter from VDACS asking them to explain themselves. An attorney who offered to represent the Hills pro bono arranged for the inspectors to return at an appointed time and was present when the inspectors returned. The inspectors spent four hours searching the milk processing building and the house, even opening the bathroom medicine cabinet!

The attorney required the inspectors to buy the cheese at market prices, to take one sample for the Commissioner of Agriculture, one for the state lab and to leave a sample for the Hills so they could have their own tests performed. The inspectors sent the cheese by UPS in a little cooler without dry ice to the state laboratory. If the shipping had been delayed, would the cheese have failed inspection? Fortunately, the cheese was frozen, arrived adequately chilled and passed testing with no findings of pathogens, filth or bacteria. The cheese also passed a subsequent inspection.

The Hills are not against inspection per se. They have never turned away an inspector who had an appointment.  They point out that other states allow small farmers to register with their state’s department of agriculture. The farms are inspected either by appointment or when there is a complaint. Twenty three states allow sales of uninspected, unpasteurized milk or milk products at farms and farmers’ markets. Virginia, however, is extreme. In Virginia, although police need a search warrant to come into the home of a drug dealer, VDACS inspectors often come to homes and farms unannounced.

VDACS has initiated prosecutions in Virginia Court against three other families who refused to allow warrantless inspections of their homes. All of these cases were thrown out on the refusal charge, but are pending on other Fourth Amendment Constitutional issues.

In 2003, inspectors showed up unannounced at the Hill’s during breakfast once and also during a birthday party for a grandchild.  The Hills refused entry both times. Then someone tipped them off that the Hills were hosting a program for sixteen children from Wakefield School on July 9th at 10:30 am. The inspectors arrived that morning, again without an appointment. Mary said they were busy with the children, but the inspectors insisted there would be an inspection that very moment. James told them they were trespassing so they left.

Shortly thereafter, the Hills each received a summons saying they had violated three inspections requests. They were summoned to General District Court October 9, 2003 before Judge Foley. There was no court reporter present. This particular judge normally handles small violations like traffic tickets, not Constitutional issues. When the Hills quoted the Fourth Amendment, the judge told them to stop “hiding behind the flag”. He entered the Ruling of the Court on the back of the original summonses. James Hill’s ruling was “Not Guilty” and Mary’s ruling was “Guilty of _____”. It literally had a blank line, as if he needed time to think of a verdict. James was fined $314.00 and received a 30-day suspended jail sentence. Mary was fined $250.00 with a 30-day suspended jail sentence.

Christine Solem, a small farm activist who co-owns a goat dairy in Charlottesville, was present to assist the Hills.  She recommended they appeal immediately on the grounds that the Hills had a Constitutional right to refuse entry from inspectors who had no warrant. The Hills obtained copies of the summonses and appealed before leaving the building.

At the Hill’s Motion to Dismiss hearing on January 22, 2004, they were shocked to discover that someone had used white out to change James Hill’s verdict to “Guilty as Charged”! Their attorney, Norman Lamson of Charlottesville, told the appeals court judge that a higher court cannot legally change the opinion of a lower court, nor can a lower court change the opinion of a higher court. Judge Parker said he himself did not change the record. However, he refused to admit anything was wrong.

The Hills later learned a court clerk had changed the summons without consulting any judge. The Hills decided not to pursue the matter since the judge said he would hold an evidentiary hearing which would prove James had been found guilty.

At the Motion to Dismiss hearing, the first step in the appeals process, the prosecutor asked Mary, “Are you aware that contaminated goat cheese can kill people?” Mary did not know how to answer; if she said yes, it would sound like an admission of guilt, but if she said no, she would sound ignorant. She was silent.  Later, she wished she had said, “Not on my farm! We are inspected!”  There have never been any complaints of people becoming sick after eating their cheese.

Judge Parker denied the Hill’s Motion to Dismiss. With the financial help of Christine Solem, the Hills' attorney filed a Writ of Prohibition, which, if granted, would have blocked, on Constitutional grounds, any further proceedings in the case. The writ was denied the day before the trial, and the Hills went back to court on April 8th.

A VDACS employee who had bought cheese from Mary “undercover” at the market testified at both trials. The purpose of his sting operation was unclear, since the Hills were never legally prohibited from selling their cheese. Mary indignantly told me later, “They act like I am selling drugs or prostitution!”

The prosecution asked Mary, “How did you learn to make cheese?  By trial and error?” Mary answered yes, although what she meant was over the course of years, some learning in Holland, some here in the States, many total years before she sold even one ounce of cheese. The prosecution loved her partial answer and implied that her customers had been lucky to survive.

Legal precedents exist for finding the Hills not guilty: The United States Supreme Court ruled in Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523 (1967), that a person may not Constitutionally be convicted for refusing to allow inspectors into their residence without a warrant. In Christine Solem’s Declaratory Action in Albemarle Circuit Court, Judge Paul Peatross enjoined VDACS agents from entering her property for an inspection without a warrant.  The Hills were convicted of refusing to allow inspectors in, a "crime" with no victim.

I called Mary the day they lost their appeal to ask how she was holding up. She sounded dejected. Her health had been shaky of late.  She was tired of expending so much effort fighting for her way of life, only to lose repeatedly. The only good news was that the Circuit Court reduced the fines to $100.00 each and dropped all jail time.

“So now,” Mary sighed, “We just sit and wait for them to show up again, those rude inspectors, interrupting our breakfast and prowling through our stuff.”

The Hills are considering appealing the decision on the Writ of Prohibition and the Circuit Court Decision.

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