Dorian's dark clouds over Florida are gone now, but the cloud hanging over environmental icon Maggy Hurchalla just grew darker.
The pithy Sept. 6 order by the Fourth District Court of Appeal ruled that Hurchalla is not entitled to a rehearing before all 12 judges in her quest to overturn a lower court's $4.4 million award against her. (See the order in the "Download" attachment below the story.)
The judges denied her July 15 motion for en banc rehearing, denied acceptance of a myriad of amicus curiae “friend of the court” briefs offered by state environmental and free speech organizations, and rejected her attorney's arguments that a “question of great public importance” could be settled only by the Florida Supreme Court.
Hurchalla still could seek to have her case heard by the state's highest court without certification by the appeals court that the question of determining malice as it pertains to state and federal free-speech protections is warranted for their review.
Whether they will agree is left to speculation, although it seems unlikely based on other state supreme court decisions.
Hurchalla's intent, according to her previous public statements, is to have her case heard by the U.S. Supreme Court.
“I will appeal,” she told a small throng of supporters bearing chocolates, roses and balloons outside of the Martin County courthouse Feb. 14, 2018. They gathered immediately following a jury's Valentine's Day ruling that Hurchalla's actions had harmed Lake Point Restoration, concluding a five-year civil case that charged her with tortious interference in Lake Point's agreements with Martin County and the South Florida Water Management District.
“I will take this all the way to the U.S. Supreme Court if I have to,” Hurchalla added, “which really is where this (case) needs to be.”
Her first steps in that quest, however, were to ask the appellate court for a retrial on three separate motions and to remove Martin County Circuit Court Judge William Roby from her case, all of which were denied in 2018.
Hurchalla's appeal to see if the jury's ruling could be overturned was argued March 12 by the state's then-leading First Amendment expert, the late Talbot “Sandy” D'Alemberte, in the District's West Palm Beach courthouse before a three-judge panel.
The appellate court affirmed the Martin County Circuit Court jury's ruling in favor of Lake Point Restoration three months later on June 19. The judges also did not reduce the amount of the $4.4 million award.
With the Sept. 6 order, Hurchalla's options now are limited.
According to the Fourth District's opinion published June 19, Hurchalla did not engage in public protest as protected by both the U.S. Constitution's First Amendment and Florida's common law.
Trial testimony confirmed that she used false information behind the scenes to damage the relationship between Martin County officials and Lake Point, a public-private project to mine rock on 2,000 acres of land near Indiantown that would eventually convert rock-pits to stormwater treatment areas.
Most of the acreage would have been donated to the state and to Martin County over the 20-year term of the contract.
Lake Point filed suit in 2013 against Martin County and the South Florida Water Management District for breach of contract and against Hurchalla for deliberately interfering in those contracts.
The county and SFWMD both settled the civil suits out of court in 2017. The county agreed to pay $12 million to Lake Point, and SFWMD gave around $6 million in concessions to the mining operation, extending their contract from 20 to 50 years.
After refusing to apologize to Lake Point for seven alleged misstatements in return for dropping their lawsuit, Hurchalla proceeded to trial in February 2018.
The six-person jury deliberated 90 minutes after a five-day trial before ruling that Hurchalla had directly caused Lake Point to suffer nearly $4.4 million in damages due to her actions.
In response to Hurchalla's appeal of that judgment, the appellate court's ruling in July focused on two conflicting statements by Hurchalla as “examples of competent substantial evidence that clearly and convincingly proved that Hurchalla demonstrated actual malice … by making statements she either knew were false or with reckless disregard as to whether they were false.”
In public emails to Martin County commissioners Jan. 4, 2013, Hurchalla charged that no studies had been conducted on the Lake Point project, yet on the witness stand during her trial, Hurchalla admitted she had seen the studies that demonstrated the Lake Point project would increase the efficiency of the proposed C-44 water restoration project adjacent to Lake Point by 20 percent.
The 12-page ruling, written by Judge Burton Conner and joined by judges Dorian Damoorgian and Alan Forst, tackled the standards of actual malice and express malice required by state or federal law that would negate First Amendment and common law protections in Hurchalla's case.
“Hurchalla’s comments were represented as statements of fact, as opposed to statements of pure opinion,” Conner wrote. “Even if we viewed the statements as ‘mixed opinions,’ the statements would not be privileged under the First Amendment.”
Hurchalla attorney Richard Ovelman, of Carlton Fields PA in Miami, wrote in his motion for a rehearing, “Just because facts are untrue, does not constitute actual malice,” the standard required to lose First Amendment rights under federal law.
He also disagreed with the appellate judges' determination that “the use of improper means” does not show express malice, which is the standard to nullify Florida's common law protection of a citizen's right to petition government officials.
Conner, who was the primary author of the appellate court's decision, noted that Hurchalla's attorneys had argued she did not act with the purpose of harming Lake Point, but “to promote the public interest in the environment,” and he conceded that although some of her environmental arguments could weigh in Hurchalla's favor, her use of “wrongful means to interfere in Lake Point's contract” by misrepresenting facts demonstrated malice.
The judges also noted that Lake Point entered into the contract with Martin County in 2009 and was monitored for four years by the county with no issues, little concern, and no public protests by Hurchalla. Controversy arose after the 2012 election that put Hurchalla's friend, Anne Scott of Jupiter Island, on the commission, and Commissioner Sarah Heard was elected chair.
In a separate but related case, a civil court ruled in 2017 that the actions of three county commissioners, including Scott and Heard, had caused the county to violate public records laws in an apparent attempt to hide their private email correspondence with Hurchalla.
The county was sanctioned $502,000 in that case; however, a criminal court jury found in April that they could not convict Heard as charged on two misdemeanor counts of violating public records laws.
Subsequently, the state attorney's office in Martin County refused to proceed to trial on the misdemeanor criminal indictments against Scott and former commissioner Ed Fielding on public records violations. Without convictions, the county is obligated to pay the commissioners' legal fees in those cases.
Barbara Clowdus, who has covered every stage of the Lake Point case since its inception, is editor and publisher of Martin County Currents newspaper.
Barbara Clowdus stories about this case since Feb. 1, 2018:
Has Maggy Hurchalla's Army of Supporters Actually Read the Trial Transcripts (column/commentary)
A Big Ol' 'Pants on Fire' for Tampa Bay Times' Craig Pittman (column/commentary)
Finally, Martin Activist Maggy Hurchalla Goes to Trial (column/commentary)