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Videos of Panels on Sanctuary Cities and Constitutional Property Rights

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities,” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with leading takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

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Videos of Panels on Sanctuary Cities and Constitutional Property Rights

Volokh Conspiracy readers may be interested to see videos of two panels I participated in at this year’s recently concluded Federalist Society National Lawyers Convention: “The Wisdom and Legality of Sanctuary Cities,” and “Originalism and Constitutional Property Rights.”

In the sanctuary cities panel, I crossed swords with former Attorney General Jeff Sessions, among others, and explained why the Trump administration’s attacks on sanctuary cities violate constitutional limits on federal power, and have—fortunately—led to a long series of defeats in court, at the hands of both liberal and conservative judges. I also described why sanctuary jurisdictions have good policy and moral reasons for refusing to cooperate with some aspects of federal immigration enforcement, including the fact that involving local police in immigration enforcement undercuts ordinary law enforcement. Sanctuary jurisdictions are also justified in rejecting cooperation with federal deportation efforts, given the horrific abuses in its immigration detention facilities, and the government’s history of wrongfully detaining and deporting even US citizens.

At the property rights panel, I discussed and debated the original meaning of constitutional protections for property rights with leading takings scholars Tom Merrill (Columbia), Richard Lazarus (Harvard), and my George Mason University colleague Eric Claeys.  I argued that the original meaning of the Takings Clause requires judicial enforcement of tight limits on government power to take property for “public use,” a concept which should be given a narrow construction encompassing only publicly owned projects, while excluding most condemnations that transfer property to private parties. My talk was in large part based on my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

On the property rights panel, I advocated what might be seen as a right-wing position (defending strong constitutional protection for property rights). On the sanctuary cities panel, I defended what is usually considered a  “left-wing” perspective on sanctuary cities. But, despite the seeming contradiction, I think there is actually an underlying coherence between the two positions: both advocate strong judicial enforcement of constitutional limits on government power, and both protect poor and vulnerable populations against the sometimes overwhelming power of the state.

Of course this year’s Federalist Society Convention will probably be best remembered for Attorney General William Barr’s seriously flawed speech extolling an extraordinarily broad theory of executive power. Among other things, he ignores the many ways in which executive power has grown far beyond the Founders’ design and argues for near-total judicial (and often also congressional) deference to the president on anything involving “foreign relations” and “exigent circumstances.” This is a misreading of the Constitution, and such deference has historically led to grave abuses of power. If time permits, I may have more to say on Barr’s speech later.

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“Bad Writing Does Not Normally Warrant Sanctions, but We Draw the Line at Gibberish”

A line from Judge Diane Sykes’ opinion a week ago in McCurry v. Kenco Logistics Services, LLC; see pp. 11-16 for more details. The opinion closes with:

Because we have a duty to “maintain public confidence in the legal profession” and “protect[] the integrity of the judicial proceeding,” we confronted [lawyer Jordan T.] Hoffman about his brief at oral argument. He replied that he is a “solo practitioner” who tries “to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.” Whatever that means, it in no way excuses this unprofessional conduct.

Hoffman’s filings fall far below the reasonable standards of practice. We therefore order him to show cause within 14 days why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission for any action it deems appropriate.

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When Do Courts Lack Jurisdiction Over Torts Physically Committed in the State?

Vermont has recently repealed its statute of limitations for childhood sexual abuse. As a result, Martin Giroux sued Paul Foley for allegedly assaulting him 35 years before, apparently when the Giroux and Foley families were vacationing in Vermont (from Kansas, where both families lived). Now normally Vermont would have jurisdiction over civil lawsuits stemming from alleged torts that physically took place within Vermont; but the question is whether the matter should be different here, given the parties’ lack of any continuing connection with Vermont, and given the defendant’s age and health problems. Here’s the defendant’s description of the facts:

Defendant Paul Foley is an 84-year-old man, and a resident of the Wichita, Kansas metropolitan area since the age of 5. Plaintiff’s family lived in the Wichita area as well when Plaintiff was growing up, and in the early 1980s, Defendant and Plaintiff’s father became friends through their work at a local college. The parties’ families socialized together in Kansas and occasionally vacationed together. During one such vacation to Vermont over one weekend thirty-five years ago, Plaintiff now alleges that Defendant sexually abused him ….

The parties’ relationship was centered entirely in Kansas. Neither party lived in Vermont at the time of the alleged conduct; Defendant has never spent any significant time in Vermont, nor to his knowledge has the Plaintiff. Plaintiff does not allege that the parties were ever in Vermont together other than the one weekend in 1984, or that Defendant was ever in the State again. At this juncture, Defendant is an ailing octogenarian who requires 24-hour assistance with his healthcare and activities of daily living. In addition, Defendant is not ambulatory, requiring an electronic mobility scooter to move independently. He still lives in Wichita; Plaintiff lives in New Jersey; and there are no known potential witnesses living in Vermont….

And here’s defendant’s jurisdiction argument:

Defendant moves to dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. Personal jurisdiction “concerns the authority of the court to hear and determine the controversy.” …

Vermont courts (and therefore the federal court in Vermont) would normally have “specific personal jurisdiction,” because the alleged tort took place in Vermont (despite defendant’s argument that, “Defendant’s de minimis alleged contacts with Vermont—a weekend in the Green Mountain State over 35 years ago—are insufficient for him to reasonably anticipate being haled into Court in Vermont”); but the defendant argues that this presumption is rebutted under the “reasonableness” prong of the jurisdiction inquiry:

The second part of the Due Process inquiry “asks whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice’—that is, whether it is reasonable under the circumstances of the particular case.” As part of the “reasonableness” analysis, the U.S. Supreme Court has directed lower courts to evaluate the following factors:

[1] the burden that the exercise of jurisdiction will impose on the defendant;

[2] the interests of the forum state in adjudicating the case;

[3] the plaintiff’s interest in obtaining convenient and effective relief;

[4] the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and

[5] the shared interest of the states in furthering substantive social policies….

Here, the burden on Defendant—a long-time resident of the greater Wichita metropolitan area—is substantial. As an ailing, non-ambulatory octogenarian, Defendant will find long distance travel to Vermont extremely difficult. His travel difficulties are compounded by his need for 24-hour assistance with his healthcare and activities of daily living, rendering litigation in Vermont highly burdensome, expensive, and potentially detrimental to his health. While any defendant would suffer a significant personal and financial burden litigating a case over 1,500 miles from his home, that burden is especially acute in this case as a result of Mr. Foley’s physical limitations. Contra Glinka v. Abraham & Rose Co., Ltd., 199 B.R. 484, 487 (D. Vt. 1996) (explaining that burden on defendant to defend in Vermont was slight, because its offices were in Montreal). Moreover, it is unlikely that there are any potential witnesses in Vermont with information about the litigation. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573–74 (2d Cir. 1996) (first factor weighs in out-of-state defendant’s favor when no witnesses or evidence located in Vermont).

With regards to the second factor, Vermont has a limited interest in regulating the conduct between two out-of-state residents whose relationship centered in Kansas, particularly when the purported conduct is over 35 years old. As neither of the parties is a Vermont resident, the forum state’s interest in providing redress to its own citizens is entirely absent. Id. at 574; Bechard, 810 F.Supp. 579, 586 (D. Vt. 1992).

Turning to the third factor, Plaintiff’s interest in convenient and effective relief is hindered by litigating the matter in Vermont—no known witnesses are located in the Green Mountain State. Moreover, Plaintiff himself is not a resident of Vermont. Metro. Life, 84 F.3d at 574 (third factor carries less weight when plaintiff not resident of forum state). It appears that his only interest in litigating in Vermont “stems from [his] belief that the forum offers a more generous statute of limitations;” in fact, it may be the only forum in which Plaintiff’s claim is not barred. However, such a consideration is irrelevant and impermissible in the context of a jurisdictional inquiry. Id. (“‘The question of the applicability of [the forum state’s] statute of limitations … presents itself in the course of litigation only after jurisdiction over respondent is established, and we do not think that such choice of law concerns should complicate or distort the jurisdictional inquiry.'”).

When evaluating the fourth factor, “courts generally consider where witnesses and evidence are likely to be located.” As aforementioned, Plaintiff is a resident of New Jersey and Defendant is a resident of Kansas. As the parties’ entire relationship was based in Kansas, the vast majority, if not all, of the witnesses and evidence are likely to be located there—or at least outside of Vermont—thus this factor strongly favors Defendant.

Finally, with respect to the fifth factor, there is no shared interest of the states in furthering substantive social policies. While Vermont may have an interest in providing recourse for torts purportedly committed within its borders, other interested states—Kansas, for example—have a substantial interest in freeing their citizens from litigating stale claims and in giving individuals repose for ancient breaches of law. Consequently, there is not a shared interest in furthering a given substantive social policy in the present matter.

The unreasonableness of pursuing Defendant in Vermont is exacerbated by the extremely limited contacts asserted by the Plaintiff. Because Plaintiff asserts only de minimis contact by Defendant with Vermont, the Court should give particular weight to the unreasonableness of requiring Defendant to litigate here. See Ticketmaster–New York, Inc., 26 F.3d at 210 (“the weaker the plaintiff’s showing [on minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction.”)

In sum, because Defendant’s contacts with Vermont are de minimis, the reasonableness factors should carry greater weight in the Court’s Due Process inquiry. Metro. Life, 84 F.3d at 568. Those factors evince the unreasonableness of this Court exercising personal jurisdiction over Defendant. Put differently, Plaintiff’s interest in pursuing his action in Vermont and Vermont’s interest in adjudicating the matter are so attenuated that the assertion of personal jurisdiction does not comport with traditional notions of fair play and justice. Exercising jurisdiction over the Defendant on these facts is unreasonable and thus violates Defendant’s Due Process rights. Accordingly, Plaintiff’s Complaint should be dismissed for lack of personal jurisdiction over Defendant….

I’m not an expert on jurisdiction, but some people I asked suggest that a court would likely not reject personal jurisdiction in a lawsuit over a tort that allegedly physically took place within that very state; and the cases cited in the motion don’t persuade me to the contrary. We’ll see soon what this court concludes.

Note that a court with jurisdiction might decline to exercise it on the grounds of forum non conveniens (which, unsurprisingly, more or less means “the forum is not convenient”), based on factors such as the ones the defendant is arguing above. But that’s not the argument the defendant is making in this motion.

This, by the way, is the case in which I’ve moving to unseal the Complaint; but this motion was not filed under seal, likely because the sealing order in the case (and the state statute on which the sealing order relied) doesn’t seem to cover motions to dismiss.

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“Bad Writing Does Not Normally Warrant Sanctions, but We Draw the Line at Gibberish”

A line from Judge Diane Sykes’ opinion a week ago in McCurry v. Kenco Logistics Services, LLC; see pp. 11-16 for more details. The opinion closes with:

Because we have a duty to “maintain public confidence in the legal profession” and “protect[] the integrity of the judicial proceeding,” we confronted [lawyer Jordan T.] Hoffman about his brief at oral argument. He replied that he is a “solo practitioner” who tries “to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.” Whatever that means, it in no way excuses this unprofessional conduct.

Hoffman’s filings fall far below the reasonable standards of practice. We therefore order him to show cause within 14 days why he should not be sanctioned or otherwise disciplined under Rules 28 and 38 of the Federal Rules of Appellate Procedure. We also direct the clerk of this court to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission for any action it deems appropriate.

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Do Courts Sometimes Lack Jurisdiction Over Torts Physically Committed in the State?

Vermont has recently repealed its statute of limitations for childhood sexual abuse. As a result, Martin Giroux sued Paul Foley for allegedly assaulting him 35 years before, apparently when the Giroux and Foley families were vacationing in Vermont (from Kansas, where both families lived). Now normally Vermont would have jurisdiction over civil lawsuits stemming from alleged torts that physically took place within Vermont; but the question is whether the matter should be different here, given the parties’ lack of any continuing connection with Vermont, and given the defendant’s age and health problems. Here’s the defendant’s description of the facts:

Defendant Paul Foley is an 84-year-old man, and a resident of the Wichita, Kansas metropolitan area since the age of 5. Plaintiff’s family lived in the Wichita area as well when Plaintiff was growing up, and in the early 1980s, Defendant and Plaintiff’s father became friends through their work at a local college. The parties’ families socialized together in Kansas and occasionally vacationed together. During one such vacation to Vermont over one weekend thirty-five years ago, Plaintiff now alleges that Defendant sexually abused him ….

The parties’ relationship was centered entirely in Kansas. Neither party lived in Vermont at the time of the alleged conduct; Defendant has never spent any significant time in Vermont, nor to his knowledge has the Plaintiff. Plaintiff does not allege that the parties were ever in Vermont together other than the one weekend in 1984, or that Defendant was ever in the State again. At this juncture, Defendant is an ailing octogenarian who requires 24-hour assistance with his healthcare and activities of daily living. In addition, Defendant is not ambulatory, requiring an electronic mobility scooter to move independently. He still lives in Wichita; Plaintiff lives in New Jersey; and there are no known potential witnesses living in Vermont….

And here’s defendant’s jurisdiction argument:

Defendant moves to dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(b)(2), for lack of personal jurisdiction. Personal jurisdiction “concerns the authority of the court to hear and determine the controversy.” …

Vermont courts (and therefore the federal court in Vermont) would normally have “specific personal jurisdiction,” because the alleged tort took place in Vermont (despite defendant’s argument that, “Defendant’s de minimis alleged contacts with Vermont—a weekend in the Green Mountain State over 35 years ago—are insufficient for him to reasonably anticipate being haled into Court in Vermont”); but the defendant argues that this presumption is rebutted under the “reasonableness” prong of the jurisdiction inquiry:

The second part of the Due Process inquiry “asks whether the assertion of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice’—that is, whether it is reasonable under the circumstances of the particular case.” As part of the “reasonableness” analysis, the U.S. Supreme Court has directed lower courts to evaluate the following factors:

[1] the burden that the exercise of jurisdiction will impose on the defendant;

[2] the interests of the forum state in adjudicating the case;

[3] the plaintiff’s interest in obtaining convenient and effective relief;

[4] the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and

[5] the shared interest of the states in furthering substantive social policies….

Here, the burden on Defendant—a long-time resident of the greater Wichita metropolitan area—is substantial. As an ailing, non-ambulatory octogenarian, Defendant will find long distance travel to Vermont extremely difficult. His travel difficulties are compounded by his need for 24-hour assistance with his healthcare and activities of daily living, rendering litigation in Vermont highly burdensome, expensive, and potentially detrimental to his health. While any defendant would suffer a significant personal and financial burden litigating a case over 1,500 miles from his home, that burden is especially acute in this case as a result of Mr. Foley’s physical limitations. Contra Glinka v. Abraham & Rose Co., Ltd., 199 B.R. 484, 487 (D. Vt. 1996) (explaining that burden on defendant to defend in Vermont was slight, because its offices were in Montreal). Moreover, it is unlikely that there are any potential witnesses in Vermont with information about the litigation. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 573–74 (2d Cir. 1996) (first factor weighs in out-of-state defendant’s favor when no witnesses or evidence located in Vermont).

With regards to the second factor, Vermont has a limited interest in regulating the conduct between two out-of-state residents whose relationship centered in Kansas, particularly when the purported conduct is over 35 years old. As neither of the parties is a Vermont resident, the forum state’s interest in providing redress to its own citizens is entirely absent. Id. at 574; Bechard, 810 F.Supp. 579, 586 (D. Vt. 1992).

Turning to the third factor, Plaintiff’s interest in convenient and effective relief is hindered by litigating the matter in Vermont—no known witnesses are located in the Green Mountain State. Moreover, Plaintiff himself is not a resident of Vermont. Metro. Life, 84 F.3d at 574 (third factor carries less weight when plaintiff not resident of forum state). It appears that his only interest in litigating in Vermont “stems from [his] belief that the forum offers a more generous statute of limitations;” in fact, it may be the only forum in which Plaintiff’s claim is not barred. However, such a consideration is irrelevant and impermissible in the context of a jurisdictional inquiry. Id. (“‘The question of the applicability of [the forum state’s] statute of limitations … presents itself in the course of litigation only after jurisdiction over respondent is established, and we do not think that such choice of law concerns should complicate or distort the jurisdictional inquiry.'”).

When evaluating the fourth factor, “courts generally consider where witnesses and evidence are likely to be located.” As aforementioned, Plaintiff is a resident of New Jersey and Defendant is a resident of Kansas. As the parties’ entire relationship was based in Kansas, the vast majority, if not all, of the witnesses and evidence are likely to be located there—or at least outside of Vermont—thus this factor strongly favors Defendant.

Finally, with respect to the fifth factor, there is no shared interest of the states in furthering substantive social policies. While Vermont may have an interest in providing recourse for torts purportedly committed within its borders, other interested states—Kansas, for example—have a substantial interest in freeing their citizens from litigating stale claims and in giving individuals repose for ancient breaches of law. Consequently, there is not a shared interest in furthering a given substantive social policy in the present matter.

The unreasonableness of pursuing Defendant in Vermont is exacerbated by the extremely limited contacts asserted by the Plaintiff. Because Plaintiff asserts only de minimis contact by Defendant with Vermont, the Court should give particular weight to the unreasonableness of requiring Defendant to litigate here. See Ticketmaster–New York, Inc., 26 F.3d at 210 (“the weaker the plaintiff’s showing [on minimum contacts], the less a defendant need show in terms of unreasonableness to defeat jurisdiction.”)

In sum, because Defendant’s contacts with Vermont are de minimis, the reasonableness factors should carry greater weight in the Court’s Due Process inquiry. Metro. Life, 84 F.3d at 568. Those factors evince the unreasonableness of this Court exercising personal jurisdiction over Defendant. Put differently, Plaintiff’s interest in pursuing his action in Vermont and Vermont’s interest in adjudicating the matter are so attenuated that the assertion of personal jurisdiction does not comport with traditional notions of fair play and justice. Exercising jurisdiction over the Defendant on these facts is unreasonable and thus violates Defendant’s Due Process rights. Accordingly, Plaintiff’s Complaint should be dismissed for lack of personal jurisdiction over Defendant….

I’m not an expert on jurisdiction, but some people I asked suggest that a court would likely not reject personal jurisdiction in a lawsuit over a tort that allegedly physically took place within that very state; and the cases cited in the motion don’t persuade me to the contrary. We’ll see soon what this court concludes.

Note that a court with jurisdiction might decline to exercise it on the grounds of forum non conveniens (which, unsurprisingly, more or less means “the forum is not convenient”), based on factors such as the ones the defendant is arguing above. But that’s not the argument the defendant is making in this motion.

This, by the way, is the case in which I’ve moving to unseal the Complaint; but this motion was not filed under seal, likely because the sealing order in the case (and the state statute on which the sealing order relied) doesn’t seem to cover motions to dismiss.

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Oklahoma’s ‘Cottage Food’ Restrictions Are Hurting Food Producers and Sellers

Oklahomans who want to take advantage of the state’s cottage food law are finding some surprising obstacles in their way.

The obstacles came to light when Farm Hippie, a new market in Collinsville, about a half-hour’s drive north of Tulsa, sought to be designated as a farmers market.

The designation made sense: Farm Hippie sells a variety of farmed and artisanal goods, including homemade baked goods produced by locals. (Farm Hippie appears to operate at least in part on something of a consignment model.)

But the state denied Farm Hippie’s application to operate as a farmers market, designating it instead as a garden-variety retail store. That status change meant foods Farm Hippie sold that were produced legally in local home kitchens—known as cottage foods—were suddenly illegal.

The owners of the market are confused and upset.

“Many of these people, they’re making these products to try and have additional income,” said Ash Winfield, one of the owners of Farm Hippie, in remarks reported by News on 6, Tulsa’s CBS affiliate. “That’s really what we want to do is just bring attention to the current legislation, and let’s remove some of those current barriers and allow people to sell where they choose to sell.”

Bakers who’ve sold their homemade foods through Farm Hippie are also at a loss. Coze Hamilton, a retiree who sold homemade rum cakes at Farm Hippie, told KJRH that her $4.50 rum cakes don’t make her enough profit for her to take on added expenses.

“If… I have to [bake in] a commercial kitchen, I don’t think I’ll be able to afford to do it,” Hamilton says.

Cottage foods are increasingly common. A report released last year by Harvard Law School’s Food Law & Policy Clinic details the ins and outs of 50 state cottage food laws around the country. (Though the District of Columbia has a cottage food law in place, New Jersey remains the only state that doesn’t allow some type of cottage food sales.)

The Harvard report examines common elements within all 50 state laws, including regulations pertaining to permissible sales venues, types of foods (typically “non-hazardous” in nature) allowed to be sold, licensing requirements, and labeling rules.

While many state cottage food laws are problematic, as I first noted in a 2011 Reason post, Oklahoma’s law isn’t half bad. But that doesn’t mean it can’t—or shouldn’t—be improved. As the Harvard report notes, for example, Oklahoma caps gross annual cottage food sales at $20,000. That’s quite low. In fact, most states have no cap at all.

Given that Oklahoma’s sales cap is needlessly low, and the state’s crackdown on sales at venues such as Farm Hippie makes little sense, maybe it’s time to remember why the state—why any state—adopted a cottage food law in the first place. Simply put, these laws are intended to benefit farmers, home cooks, budding entrepreneurs, and consumers alike. As I detailed in my 2016 book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, cottage food laws have the potential both to allow greater access to and choices in the marketplace. 

Now consider the purpose of cottage food laws in light of several Oklahoma realities. Last week, The New York Times reported that Oklahoma is one of several states that’s studying ways to improve rural residents’ access to fresh foods. Some Oklahoma farmers, meanwhile, are hard at work “making local organic food more accessible” to Oklahomans. At the same time, many Oklahoma farmers are struggling.

Oklahoma’s cottage food law can and should be one vehicle to help consumers and farmers deal with these issues. If the state wants to realize the full benefits of cottage food sales, though, Oklahoma lawmakers will have to amend the law to make it easier for markets such as Farm Hippie and vendors like Coze Hamilton—and the consumers both serve—to succeed.

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Oklahoma’s ‘Cottage Food’ Restrictions Are Hurting Food Producers and Sellers

Oklahomans who want to take advantage of the state’s cottage food law are finding some surprising obstacles in their way.

The obstacles came to light when Farm Hippie, a new market in Collinsville, about a half-hour’s drive north of Tulsa, sought to be designated as a farmers market.

The designation made sense: Farm Hippie sells a variety of farmed and artisanal goods, including homemade baked goods produced by locals. (Farm Hippie appears to operate at least in part on something of a consignment model.)

But the state denied Farm Hippie’s application to operate as a farmers market, designating it instead as a garden-variety retail store. That status change meant foods Farm Hippie sold that were produced legally in local home kitchens—known as cottage foods—were suddenly illegal.

The owners of the market are confused and upset.

“Many of these people, they’re making these products to try and have additional income,” said Ash Winfield, one of the owners of Farm Hippie, in remarks reported by News on 6, Tulsa’s CBS affiliate. “That’s really what we want to do is just bring attention to the current legislation, and let’s remove some of those current barriers and allow people to sell where they choose to sell.”

Bakers who’ve sold their homemade foods through Farm Hippie are also at a loss. Coze Hamilton, a retiree who sold homemade rum cakes at Farm Hippie, told KJRH that her $4.50 rum cakes don’t make her enough profit for her to take on added expenses.

“If… I have to [bake in] a commercial kitchen, I don’t think I’ll be able to afford to do it,” Hamilton says.

Cottage foods are increasingly common. A report released last year by Harvard Law School’s Food Law & Policy Clinic details the ins and outs of 50 state cottage food laws around the country. (Though the District of Columbia has a cottage food law in place, New Jersey remains the only state that doesn’t allow some type of cottage food sales.)

The Harvard report examines common elements within all 50 state laws, including regulations pertaining to permissible sales venues, types of foods (typically “non-hazardous” in nature) allowed to be sold, licensing requirements, and labeling rules.

While many state cottage food laws are problematic, as I first noted in a 2011 Reason post, Oklahoma’s law isn’t half bad. But that doesn’t mean it can’t—or shouldn’t—be improved. As the Harvard report notes, for example, Oklahoma caps gross annual cottage food sales at $20,000. That’s quite low. In fact, most states have no cap at all.

Given that Oklahoma’s sales cap is needlessly low, and the state’s crackdown on sales at venues such as Farm Hippie makes little sense, maybe it’s time to remember why the state—why any state—adopted a cottage food law in the first place. Simply put, these laws are intended to benefit farmers, home cooks, budding entrepreneurs, and consumers alike. As I detailed in my 2016 book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, cottage food laws have the potential both to allow greater access to and choices in the marketplace. 

Now consider the purpose of cottage food laws in light of several Oklahoma realities. Last week, The New York Times reported that Oklahoma is one of several states that’s studying ways to improve rural residents’ access to fresh foods. Some Oklahoma farmers, meanwhile, are hard at work “making local organic food more accessible” to Oklahomans. At the same time, many Oklahoma farmers are struggling.

Oklahoma’s cottage food law can and should be one vehicle to help consumers and farmers deal with these issues. If the state wants to realize the full benefits of cottage food sales, though, Oklahoma lawmakers will have to amend the law to make it easier for markets such as Farm Hippie and vendors like Coze Hamilton—and the consumers both serve—to succeed.

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