BARABOO — 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.

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reporters Chris Rickert and George Hesselberg had been subpoenaed in the same case, but those subpoenas were later withdrawn.

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 eyewitness accounts of Hershberger's alleged actions from others who were on scene, such as customers.

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.

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