Editorial: Sacrificing two kayaks and a Toyota for free speech

 TAMPA BAY TIMES EDITORIAL,  Published: July 17, 2018


Courtesy of Maggy Hurchalla Maggy Hurchalla, right, a former Martin County commissioner, spoke out against the county's deal with Lake Point Restoration, a mining company owned by billionaire George Lindemann Jr., left, and wound up being sued by the company, which claimed she had interfered with a legal contract. The jury agreed.

 


Maggy Hurchalla joked this spring that all she could offer a billionaire who won a $4.4 million judgment against her after she exercised her free speech rights were "two kayaks and an aging Toyota.’’ The billionaire didn’t laugh. This week, Martin County sheriff’s deputies armed with a court order seized the 14-year-old car and the kayaks — the only property owned by the 77-year-old sister of late Attorney General Janet Reno.

This bullying should send a chill through every Floridian who cherishes their constitutional rights to free speech and to petition their government, and the Florida Supreme Court ultimately will have to correct this miscarriage of justice.

The David vs. Goliath drama played out on Florida’s east coast with themes that include the environment and the water supply, open government and a citizen’s right to protest to their elected officials.

 

As the Tampa Bay Times’ Craig Pittman reported in May, billionaire George Lindemann Jr. put together a group to buy 2,200 acres of sugar cane fields near Lake Okeechobee in Martin County that is known as Lake Point. The idea was to dig up rocks to sell for construction projects and use the mining pits to store and clean water from the lake. By 2009, the South Florida Water Management District and the Martin County Commission signed off on the deal.

 

Then it got more complicated. Lake Point came up with a new idea in 2011 to sell the water in the pits. Lindemann told Pittman that Lake Point actually would have been paid for storing and cleaning the water, because nobody can sell water without state permission. But the idea didn’t sit well with the water management district or Martin County, and Hurchalla protested after the concept became public in 2012.

Hurchalla sent emails to Martin County commissioners urging them to get out of their agreement with Lake Point, and the deal fell apart. Lake Point sued the water management district, Martin County and Hurchalla. It turned out that Hurchalla sent some emails to the county commissioners’ personal accounts and the county failed to turn them over.

Two commissioners have been charged with violating public records laws, and the water management district and Martin County settled for millions with Lake Point in 2017. Hurchalla refused to apologize and went to trial, where Lake Point lawyers suggested there was something "sinister’’ about her deleting her emails to county commissioners — which as a private citizen she had no obligation to keep. Yet a circuit court jury in Martin County ruled against her in February and awarded Lake Point absurd damages of $4.4 million.

Talbot "Sandy’’ D’Alemberte, the former American Bar Association president working pro bono on Hurchalla’s appeal, accurately calls this a classic SLAPP lawsuit — a strategic lawsuit against public participation aimed at intimidating and silencing critics.

 

"She did nothing but send emails to county commissioners,’’ he told the Times editorial board Tuesday. "What they’re really coming after is your rights to petition the government and free speech.’’ The First Amendment Foundation (disclosure: Times Editor of Editorials Tim Nickens serves on the foundation’s board), the Florida League of Women Voters and the Florida Press Association are among the organizations planning to file a brief in support of Hurchalla’s appeal.

 

That appeal to the Fourth District Court of Appeal based in West Palm Beach isn’t likely to be heard until early next year, and then the case is likely to move to the Florida Supreme Court. Hurchalla could have posted a bond to protect her car and kayaks, but D’Alemberte said the cost would have been prohibitive.

So deputies towed away the Toyota Monday, and they picked up the old kayaks, including one Hurchalla and her sister used on the Potomac River as Secret Service agents protecting the attorney general trailed behind.

"There is something very childish about thinking that if they take away my car and my toys I will burst into tears and stop defending the First Amendment,’’ Hurchalla wrote in an email to several reporters. "The car and the kayaks can be replaced. The First Amendment cannot.’’

Agreed. Florida needs more engaged citizens like Maggy Hurchalla who aren’t afraid to tell government officials what they think — not fewer.

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Verdict in rock-mine lawsuit chills free speech in Florida | Editorial

By Sun Sentinel Editorial Board - September 7, 2018

Hardly anyone was paying attention to a billionaire developer’s lawsuit against environmentalist Maggy Hurchalla until she lost it. Then a jury awarded him $4.4 million for her attempts to block his plan to dig and sell rocks from a sugar cane field near Lake Okeechobee, store water there and sell it to a city. Be very careful what you say about the public’s business, the verdict seemed to mean, or you could be ruined financially.

Hurchalla, a former Martin County Commissioner who’s the surviving sister of former U.S. Attorney General Janet Reno, joked that she had nothing to lose but two kayaks and a 14-year-old Toyota. But understanding the stakes, an impressively broad array of public interest groups and individuals rallied to her appeal after the verdict came down earlier this year in favor of George Lindemann Jr.’s Lake Point project.

The case is pending before the Fourth District Court of Appeal in West Palm Beach, which agreed Friday to accept three friend-of-the-court briefs representing 12 organizations and four individuals. They include Florida’s most prominent environmentalist, Nathaniel P. Reed, speaking from the grave. He filed his motion before his accidental death last month. The appeals court initially denied it, then changed its mind Friday.

There are now 21 attorneys involved on the two sides. It is a very big deal.

The organizations represented are the Florida Wildlife Federation, Friends of the Everglades, Bullsugar, the Pegasus Foundation, the Guardians of Martin County, The First Amendment Foundation, the American Civil Liberties Foundation of Florida, the Florida Society of News Editors, the Sierra Club, the Natural Resources Defense Council, and the Brechner Center for Freedom of Information at the University of Florida.

The other private citizens are Fane Lozeman of Riviera Beach, who has won two First Amendment cases before the U.S. Supreme Court, and academic authors Penelope Canan and George W. Pring, who published a book on so-called SLAPP suits. That’s an acronym for Strategic Lawsuits against Public Participation, a tactic prohibited in some states, for silencing opposition to projects such as Lake Point’s rock mine.

Lindemann’s has all the attributes of a SLAPP suit. He didn’t accuse Hurchalla of libel, which would have required proof not only that she defamed his character, but that she also was recklessly wrong on the facts. The law favors robust commentary where public figures are involved.

Instead, his tactic was to accuse her of “tortious interference” in the contracts he signed with two public agencies. It seems a lot easier to convince a judge and jury that someone messed with your business, though it shouldn’t be when the public’s business is at stake.

Never mind, for now, that two government agencies responsible for water and the environment folded in the face of this lawsuit and he got what he wanted.

Never mind, for now, whether she was right or wrong about the environmental consequences, or even whether the plan would be good for the Everglades, as Lindemann and his supporters claim.

Never mind, for now, whether the outcome could overturn Florida’s historic doctrine that water belongs to all the people, rather than to a developer who means to collect it in a rock pit and sell it to a city.

The central issue, vastly greater, is whether the lawsuit and the staggering judgment are a frightful warning to citizens who exercise their First Amendment rights to speak out and petition the government about what they think is wrong.

The court’s Friday decision to open its doors to Florida’s environmentalists, good government advocates and defenders of freedom of speech and press signifies the public importance of this verdict.

It is not often that a party to a case opposes friend-of-the-court motions and less often that they are denied. However, Lake Point’s attorney did object. Among other things, he said Hurchalla had enough lawyers without the intervenors.

The unusual objection to would-be friends of the court who clearly have vast interests at stake is consistent with the aggressive history of Lindemann’s suit. Hurchalla couldn’t afford to post an enormous bond while she appealed the verdict. So Lake Point sent the sheriff to seize the only tangible possessions she owned in her name — the kayaks and the old Toyota, and even inquired into the value of her wedding ring. Lindemann’s lawyers also glommed onto bank accounts she shared with her husband and peered into their safety deposit box.

Lindemann doesn’t need the money. The entire population of Florida, nearly 20 million people, can’t afford to let him win it. And they are fortunate that so many people have rallied to Hurchalla’s side.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O'Hara, Andy Reid and Editor-in-Chief Julie Anderson.

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St. Augustine Record, September 18, 2018
RECORD EDITORIAL: $4.4 million settlement no SLAPP on the wrist

Here’s a story more people need to hear. It happened down in Martin County, but it could happen in any county, at least in the state of Florida.

It’s a kind of David and Goliath tale, but the ending is different. Goliath stomps on David, and then kicks him when he’s down.

Goliath is represented here by billionaire George Lindemann. The part of David is played by a 77-year-old grandmother and environmentalist Maggy Hurchalla.

Years ago, Lindemann bought a big piece of property near Lake Okeechobee on which to build a polo club. The bottom fell out of the economy making polo grounds, apparently, beaucoup passé. He switched gears, planning instead to build a rock quarry. The business model includes selling the rock and using the quarry to store water when the pits run dry — then selling water back to municipalities (which, most contend, own it anyway).

Up popped Hurchalla, a former county commissioner and sister to former U.S. Attorney General Janet Reno. She’s fought the rock-mine development plan for years. Along the way, Rock Pointe sued Hurchalla in what many legal minds are calling the worst kind of SLAPP (an acronym for Strategic Lawsuits Against Public Participation) suit. Lindemann’s stable of attorneys was careful not to sue Hurchalla for slander or libel. That requires proof she defamed him and that her defamation was careless or lacking facts. She was accused of “tortious interference” in his contracts with two public agencies.

SLAPP suits are prohibited in some states. Florida Politics defines them this way: ”... SLAPP suits are nuisance suits on steroids — intended to harass and burden with thick, unremitting legal filings and perpetually rising legal costs people who criticize or otherwise oppose consumer products, government agencies or, as in this case, business executives or their projects.”

In the spring, a jury found Hurchalla guilty in the suit —which usually means only the gagging of opposition. But this one went further. Hurchalla was fined $4,391,708 for her careless acts of conservation and energetic environmentalism.

It might be instructive at this point to add that plaintiff Lindemann served 33 months in prison for a conviction of hiring a hit man to electrocute a show horse named Charisma for a $250,000 insurance bond.

Following the SLAPP verdict Hurchalla couldn’t afford to post bond while she appealed it, and Lindemann’s lawyers went after her personal property. Lake Point sent the sheriff to seize her only tangible property — a 14-year-old Toyota with 207,000 miles on the odometer, and two kayaks. The Sun-Sentinel reported at the time they also inquired about the value of her wedding ring.

The plaintiff team also denied the action had any similarity to a SLAPP suit and would never bury opponents in paperwork. This was outlined in a 593-page court filing the Sun-Sentinel noted weighed six pounds.

This week the newspaper reported help is rallying to her cause. These include the Florida Wildlife Federation, Friends of the Everglades, Bullsugar, Pegasus Foundation, The First Amendment Foundation, the Florida Society of Newspaper Editors (fake news and all), the Sierra Club, the Natural Resources Defense Council, the Brechner Center for Freedom of Information of the University of Florida and the Guardians of Martin County.

The heavy lifting in court will be handled free by Miami attorney Richard Overmen, among the country’s leading First Amendment lawyers, and Sandy D’Albemberte, former president of the American Bar Association and FSU president. He said “I’ve been practicing law since 1962 and I’ve never seen anything quite like it. If we can’t win this case, I should be disbarred.”

We’ll see ...

But another point our residents might consider is this: Lake Point has also sued Martin County, contending the project is not regulated by county land development rules. Apparently there is some concern the plaintiffs have deeper pockets than Martin County. Local attorney Ginny Sherlock told the press they ”... want to force the county to let them do whatever they want without regard for our comprehensive plan and land development regulations.”

Sound familiar?

“The real question,” she said, ”... is not whether we can afford to preserve the Martin County difference, to defend our urban boundaries, our rivers and our estuary, our wetlands, wildlife and quality of life. The real question is: ‘Can we afford not to?’”

Indeed.
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OCALA STAR BANNER .  Opinion - October 16, 2018

Editorial: $4 million no SLAPP on wrist

Here’s a story more people need to hear. It happened down in Martin County, but it could happen in any county, at least in the state of Florida.

It’s a kind of David and Goliath tale, but the ending is different. Goliath stomps on David, and then kicks him when he’s down.

Goliath is represented here by billionaire George Lindemann. The part of David is played by a 77-year-old grandmother and environmentalist Maggy Hurchalla.

Years ago, Lindemann bought a big piece of property near Lake Okeechobee on which to build a polo club. He switched gears, planning instead to build a rock quarry. The business model includes selling the rock and using the quarry to store water when the pits run dry — then selling water back to municipalities (which, most contend, own it anyway).

Up popped Hurchalla, a former county commissioner and sister to former U.S. Attorney General Janet Reno. She’s fought the rock-mine development plan for years. Along the way, Rock Pointe sued Hurchalla in what many legal minds are calling the worst kind of SLAPP (an acronym for Strategic Lawsuits Against Public Participation) suit.

Lindemann’s stable of attorneys was careful not to sue Hurchalla for slander or libel. That requires proof she defamed him and was careless or lacking facts. She was accused of “tortious interference” in his contracts with two public agencies.

SLAPP suits are prohibited in some states. Florida Politics defines them this way: ”... SLAPP suits are nuisance suits on steroids — intended to harass and burden with thick, unremitting legal filings and perpetually rising legal costs people who criticize or otherwise oppose consumer products, government agencies or, as in this case, business executives or their projects.”

In the spring, a jury found Hurchalla guilty in the suit — which usually means only the gagging of opposition.

But this one went further. Hurchalla was fined $4,391,708 for her careless acts of conservation and energetic environmentalism.

It might be instructive at this point to add that plaintiff Lindemann served 33 months in prison for a conviction of hiring a hit man to electrocute a show horse named Charisma for a $250,000 insurance bond.

Following the SLAPP verdict, Hurchalla couldn’t afford to post bond while she appealed it, and Lindemann’s lawyers went after her personal property. They sent the sheriff to seize her only tangible property — a 14-year-old Toyota with 207,000 miles on the odometer, and two kayaks. The South Florida Sun-Sentinel reported they also inquired about the value of her wedding ring.


The plaintiff team also denied the action had any similarity to a SLAPP suit and would never bury opponents in paperwork. This was outlined in a 593-page court filing that weighed six pounds.

Help is rallying to her cause. These include the Florida Wildlife Federation, Friends of the Everglades, Bullsugar, Pegasus Foundation, The First Amendment Foundation, the Florida Society of Newspaper Editors, the Sierra Club, the Natural Resources Defense Council and the Brechner Center for Freedom of Information of the University of Florida.

The case will be handled free by Miami attorney Richard Overmen, among the country’s leading First Amendment lawyers, and Sandy D’Albemberte, former president of the American Bar Association and FSU president.

He said: “I’ve been practicing law since 1962 and I’ve never seen anything quite like it. If we can’t win this case, I should be disbarred.”

We’ll see.

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    Gov. DeSantis gets taste of water board's contempt for the public | Editorial

    Sun Sentinel Editorial Board, January 15, 2019
    “It is not fit that you sit here any longer… you shall now give place to better men.” — Oliver Cromwell to Parliament, January 1654
    It was a breathtaking act of hubris when the governing board of the South Florida Water Management District insulted Ron DeSantis, two days after he won the governor’s race, by refusing to delay a vote on an eight-year extension of a land lease to the sugar company Florida Crystals — land that’s vital to the Everglades cleanup project. DeSantis’ subsequent demand for the nine-member board to resign was surprising only to those intoxicated by their own power.
    But the board’s arrogant disdain for the new governor and for U.S. Rep Brian Mast, who appealed in person to delay the vote, served a public purpose. It showed DeSantis how the board typically treats citizens who aren’t developers or representatives of Big Sugar.
    There are two other current examples of its public-be-damned mindset.
    • According to the environmental lobby Bullsugar.org, the district blocked e-mails from citizens attempting to protest the lease extension and the board’s high-handed decision to ask a federal court to release the district from oversight of the pollution, most of it from farms, that’s draining into Everglades National Park.
    • When the Everglades Law Center Inc., sought the transcript of a closed-door meeting where the district capitulated to a controversial rock-mining project, the agency refused to comply and went judge-shopping for an order, now on appeal, that blasts a giant hole in Florida’s open-meetings and public-records laws.
    The good news, though, is that the entire nine-member board is either gone or going, the only question being how soon. One seat was already vacant. Two more members, Dan O’Keefe and Carlos Diaz, resigned Friday. The terms of three more, including two who refuse to resign, expire March 1. That’s six of the nine seats that DeSantis can fill right away.
    In his resignation letter, O’Keefe unwittingly crystalized our point about the board’s coziness with Big Sugar. In it, O’Keefe made clear that he had not voted for the lease extension because his law firm represents New Hope Sugar, a Florida Crystals affiliate that leases the tract of some 16,000 acres in Palm Beach County.
    As we previously said, as he considers board appointments, we encourage DeSantis to pick at least one with solid environmental or conservation credentials. Historically, the board has included all constituencies. But former Gov. Scott chose to stack the board with industry representatives.
    It’s questionable whether DeSantis can purge the remaining members before their terms expire next year and in 2021. But there are plenty of ways that a governor can bring pressure to bear. According to one report, DeSantis was thinking of asking the Florida Department of Law Enforcement to investigate the land lease decision.
    The land is needed for a reservoir that could accept polluted water from Lake Okeechobee when it reaches its brim. As it stands, the water is released into rivers flowing east and west, contributing to algae blooms in estuaries and red tide outbreaks on the coasts.
    This is hardly the first time we’ve seen the arrogance of this board.
    We saw it when a team of independent scientists monitoring Everglades restoration for Congress warned that more water storage alternatives would be needed to deal with the effects of climate change. In response, the district decided to stop collaborating with the National Academy of Sciences team.
    We saw it when the district decided to pursue an untested plan to pump polluted lake water more than half a mile into the ground north, east and west of the lake.
    And we saw it in the the board’s decision to bail out of a lawsuit against it, Martin County and environmentalist Maggy Hurchalla, who questioned a billionaire’s plan to collect and store water from Lake Okeechobee in a rock mine, and sell it to municipalities.
    After Hurchalla objected, the district and Martin County rescinded their approvals. The billionaire sued, alleging breach of contract and tortious interference. A jury awarded him a $4.3 million judgment against her. It’s on appeal. The core issue is whether contract law can be wielded as a weapon against the public’s right to speak up on issues.
    The district’s settlement decision came at a closed-door meeting, allowed under Florida law when litigation strategy is to be discussed. But transcripts are supposed to be kept and released to the public after the litigation ends. The district went to court to prevent its release. A judge ruled that because mediation was discussed — he had ordered it — the record of the meeting is sealed forever even though the mediator was not at the meeting.
    Rather than simply turn over the transcript, as it should have, this so-called public agency fought public disclosure and created a major threat to open government in Florida. If not overturned, every public agency could keep the proceedings of its closed-door meetings secret forever simply by finding a way to get court-ordered mediation into the mix.
    We deserve better from the board that oversees water resources from Orlando to the Florida Keys. We deserve members who believe public service means serving the public.
    Change on the SFWMD board cannot come swiftly enough.