In one of the first tests of Wisconsin’s reporter shield law, a Sauk County judge ruled Thursday that state attorneys may not subpoena three journalists who covered the case of an Amish farmer facing criminal charges.

However, depending on what happens during the trial of Loganville raw milk farmer Vernon Hershberger, the judge said he may reconsider the Wisconsin Department of Justice’s request to subpoena the reporters.

“The state has not shown — and I’m not persuaded — that the information they seek in these reports is not attainable from any other source,” Sauk County Circuit Court Judge Guy Reynolds said in court Thursday.

Wisconsin Department of Agriculture, Trade and Consumer Protection investigators raided Hershberger’s shop in June 2010 and placed seals on his coolers. They said Hershberger failed to renew state licenses to produce and sell dairy products.

In the days that followed, television and newspaper journalists who visited Hershberger’s farm reported that he had defied the order, broken the seals, and was again selling to customers. Hershberger said he was not required to have a license because store members leased his animals and were therefore part owners of the products they received at his store.

In December 2011, Hershberger was charged with four misdemeanors related to the unlicensed production and sale of dairy products, as well as violation of the hold order placed on his products during the raid. A trial is slated for January.

DOJ attorneys filed motions to request that Reynolds authorize the issuance of subpoenas to Capital Times reporter Jessica Vanegeren, WISC-TV NEWS 3 reporter Marc Lovicott, and WMTV NBC 15 reporter Chris Woodard. But that request only could be granted if circumstances met criteria established in the state’s reporter shield law, which was signed into law by then Gov. Jim Doyle just weeks before the raid on Hershberger’s farm.

The law only permits the subpoena of journalists if the information sought is not available from any other source. Attorneys for the reporters said the state could get the same eye-witness accounts of Hershberger’s alleged actions from others who were on scene, such as customers.

“We’re pleased,” WISC Channel 3 General Manager Tom Bier said in a phone interview following Thursday’s ruling. “The judge appreciated that calling on a journalist should be a last resort under the statute.”

Wisconsin State Journal reporters Chris Rickert and George Hesselberg had been subpoenaed in the same case, but those subpoenas were later withdrawn.

In legal documents, DOJ attorneys compared the dairy farmer’s case to a 1972 U.S. Supreme Court case that involved a journalist who refused to reveal the sources of illicit drug manufacturers he interviewed. In that case, the court ruled that the public interest in capturing criminals outweighed the First Amendment privilege of the journalist.

In court Thursday, Reynolds said the Hershberger is not as pressing. Although the case is serious to the parties involved, it concerns misdemeanor — not felony — charges, he said.

Reynolds said without journalist testimony the state will be forced to call on Hershberger’s customers, who may be hostile witnesses.

“It interferes with the perfect case,” Reynolds said. “But as a lawyer and a judge, I have yet to see the perfect case.”

If in the course of the trial it becomes clear that the state may not get the information it seeks from non-journalist witnesses, Reynolds said, he may reconsider the subpoena request.

Madison attorney Bob Dreps, who represented WISC-TV NEWS 3 and the Capital Times, said the Hershberger matter was one of the first to test the state’s reporter shield law — aside from a Racine case that involved an Internet blogger.

The shield law was intended to protect journalists from being forced to reveal the identities of whistle-blowers, Dreps said. It also establishes criteria that must be met before a judge can authorize the subpoena of a news person.

Dreps said the law “leaves journalists free to do their jobs and not be compelled to spend time in court simply because they cover events that end up in litigation, whether civil or criminal.”

Send email to tdamos@capitalnewspapers.com

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