On the surface, it appears to be a legal dispute between the South Florida Water Management District and the Everglades Law Center -- then again, this is Martin County, where things aren’t often as they appear, and where misinformation and hyperbole seem to rule.
The argument over whether the transcript of a SFWMD mediation meeting among its attorneys and the district's governing board should be made public under the state's Sunshine Laws, Chapter 119, or remain confidential under the state's mediation laws, Chapter 44, is now before the Fourth District Court of Appeal.
The law center filed the appeal Thursday, challenging Martin County Circuit Court Judge William Roby's ruling March 6 that Chapter 44 prevails, thus denying a writ of mandamus brought by Everglades Law Center in December that would have forced SFWMD to hand over the Aug. 23 transcript, the only meeting transcript not already released to the public in the Lake Point case.
After the law center's appeal, the Water Management District on Friday opted to suspend its case in circuit court. The case had grown increasingly complicated and controversial over the past five months.
District attorneys will look to the appellate court to make the final decision on the transcript's release.
The case began as SFWMD’s rather simple, straightforward declaratory action, which had asked for direction from the court in answering a public records request The Everglades Law Center filed Oct. 4. The law center wanted five transcripts of its governing board's shade meetings over the previous five years of Lake Point litigation, which ended with a settlement announced Aug. 23.
At the time, Martin County was still in mediation with Lake Point, seeking to settle Lake Point's suit against them for breach of contract, and the trial to settle Lake Point's claims against former commissioner Maggy Hurchalla had been moved to Feb. 5 due to the county's pending settlement.
In addition, a grand jury had been convened to investigate some county commissioners' handling of public records, which ultimately led to the filing of criminal charges.
“We're sensitive to the issue of public records,” said SFWMD attorney Brian Accardo, after filing for declaratory relief Oct. 18, “and the SFWMD respects and abides by public records laws; however, we also do not want to jeopardize Martin County's potential settlement with Lake Point by releasing records that could reveal some aspects of their confidential negotiations.”
The lawsuit named all the parties with an interest in the court's ruling: the Everglades Law Center, Lake Point, Martin County and Maggy Hurchalla. They also invited Hurchalla ally Donna Melzer, whose son is on Hurchalla's defense team, to be an intervener in the case, according to court records.
Ordinarily, the Law Center would have filed an “answer” stating its point of view on the issue. Each “side” of the argument would have an opportunity to give the court its perspective, cite particular points of law and applicable court cases for the judge to review. Each side also would pay its own attorney fees and no monetary damages would be either sought or considered.
Except, that's not what happened.
Legal Gamesmanship Takes Hold
Instead, Hurchalla and the Law Center both filed motions to have the case dismissed, which were denied Dec. 6. That ruling escalated an ongoing smear campaign against the Water Management District, and a flurry of legal wrangling that ultimately would drag more than a dozen citizens into the fray.
The case did not start with the District's Oct. 18 filing, however, or even with the Oct. 4 public records request by the Law Center.
The case began with the Aug. 23 announcement by then-vice chair of the SFWMD Governing Board, Jim Moran, that SFWMD and Lake Point Restoration had settled, adding, “there was a chance” that the District could have prevailed in the lawsuit, but a settlement was in “the public's and the taxpayers' best interest.”
Virginia Sherlock, Hurchalla's defense attorney, as well as Melzer and Hurchalla herself, seized on the comment as “proof” that something fishy had happened in the attorney-client, closed-door session immediately prior to the settlement announcement.
Blog posts and emails began demanding that the District release the transcripts of all its closed door meetings regarding Lake Point. Among the posts was the declaration that the SFWMD had already “won” its case, so why agree to a settlement with Lake Point?
Indeed, Judge Shields McManus had ruled that no specific contract existed between Lake Point and SFWMD that would allow the project to clean the polluted C-44 canal water in its limestone pits, then sell it to drought-stricken cities for drinking water, although he conceded that the contract did state that Lake Point could conduct any business on its property to create revenue over the next 20 years in order to profit eventually from its $48 million investment.
Part of the Lake Point contract, according to court records, also stated that Lake Point had the right “to convey water,” thus attorneys expected McManus' ruling to be appealed. The ruling also had left open another claim of the district's alleged interference with mining.
Prior to the onset of litigation, Lake Point had intended to donate the entire 2,200 acres to the Water Management District in 20 years. The settlement changed that term to 50 years, as well as other concessions valued at about $6 million to Lake Point.
Lake Point's legal case was laid out in its entirety during the confidential mediation, as was the district's. The state's mediation statutes were written on the premise that mediation that's been ordered by a court cannot take place if litigants are aware that their confidential information can or would potentially expose them to future litigation, and a court of law cannot ethically demand that a citizen following a court's orders to mediate could be harmed for doing so, as long as the settlement itself is made public, according to court records.
SFWMD attorney Brian Accardo explained shortly after the settlement, “I'm not sure people understand that we were facing a $60 million damages claim.”
The incensed reactions by Sherlock, Hurchalla and Melzer to the SFWMD settlement seemed not to take hold among the public, however -- perhaps because they were weary of the five-year litigation that had already had cost them more than $5 million in outside attorney fees with no end in sight.
Perhaps, also, they had learned that the Lake Point project would have moved polluted water out of the C-44 canal, which seemed not such a terrible idea in the face of the declining health of the estuaries.
Whatever the reason, there just wasn’t much public outcry, until the Everglades Law Center got interested, which began with a letter.
The Nathaniel Reed Letter
Famed environmentalist Nathaniel Reed of Jupiter Island wrote a letter to four heavyweight conservation organizations, the Florida Chapter of the National Audubon Society, the National Wildlife Federation, the 1,000 Friends of Florida, and the Everglades Foundation, copying the letter to the Everglades Law Center, urging them to get involved now in the Lake Point case.
Reed asserted that he had been intently watching the Lake Point case for more than three years and that the SFWMD mediated settlement, which had no public comment or input, “will cost taxpayers millions” and would allow what he considered to be the “illegal sale of water.”
In Reed's sworn testimony just two months earlier, Reed testified he had not followed the Lake Point case, had lost interest, and had never read the agreements. The information he got about the project came only from newspapers and from Maggy Hurchalla, he testified.
Although Hurchalla's name was not mentioned in the letter, the impending settlements could affect Hurchalla directly. She was part of a joint defense agreement with Martin County and SFWMD that gave her access to their experts, their attorneys, and their forensic reports, which could impact her own impending trial.
If both Martin County and SFWMD settled with Lake Point prior to the trial, Hurchalla and her attorneys would stand alone in the courtroom with few resources.
The same day Reed sent the letter, the Everglades Law Center filed its public records request.
The case escalated to a near frenzy by December.
After Roby denied Hurchalla's and the Law Center's motions for dismissal on Dec. 6, the Law Center on Dec. 14 filed a counter-claim and writ of mandamus, demanding release of the transcripts and payment of its attorney fees.
Hurchalla filed her own public records request, although the issue had been before the court since Oct. 18. She also threatened to file suit against the SFWMD for violating public records laws if they did not release the transcripts within five days, indicating also that she wanted her attorney fees paid, according to court records.
Within a week, around 16 other citizens filed public records requests for district meeting transcripts, specifying the dates of the meetings: March 9, 2013; Oct. 8, 2015; Aug. 11, 2016; April 13, 2017; and Aug. 23, 2017, which seemed to Water Management District attorneys to be the result of a “coordinated effort,” according to court records.
The District responded to Hurchalla's public records request and the Law Center's claims by asserting the issue was already before the court, thus their actions were made only for the “improper purpose” of collecting attorney fees. The District also responded to each requester with a letter stating that the court must rule whether the District is allowed to release the transcripts, inviting each to become an intervener, if they so chose.
The District asked the court for time to file a supplement to their original complaint, which was granted Jan. 11, coincidentally the same day that Martin County and SFWMD signed a new interlocal agreement regarding Lake Point, thus ending the Lake Point litigation and any perceived threat of litigation by Martin County over its own settlement with Lake Point.
The SFWMD released all the transcripts of their shade meetings regarding Lake Point -- except the Aug. 23 attorney-client session -- to all who had asked for them.
So why were subpoenas sent to citizens who had submitted public records requests, as had been reported in multiple news reports? The answer is, they weren't. The claim is part of the misinformation so easily spread in Martin County politics.
After the Law Center's, Hurchalla's and Melzer's request for attorney fees, Water Management District attorneys had asked the court permission to send subpoenas to citizens for information to prove that Hurchalla's and the Law Center's public records requests were for the “improper purpose” of collecting attorney fees. Those subpoenas were never sent, according to court records, but the phone calls and emails to media outlets ensued. Editorials, emails and news stories blasting SFWMD's “aggressive” action toward citizens were published.
The Water Management District had intended to seek payment of their own attorney fees, tapping a new amendment to Florida's Sunshine Laws enacted in July 2017, that allows public agencies to collect attorney fees for frivolous public records requests that had been made for improper purposes.
Melzer Threatens SFWMD with Additional Lawsuit
Melzer, who had filed a public records request for the same transcripts on Dec. 17, threatened a lawsuit for public records violations, then withdrew her request Dec. 20 after she received a letter from the District reminding her the issue was before the Martin County court.
Melzer subsequently filed another public records request in January and also went to Palm Beach County to file a petition for an emergency hearing and a writ of mandamus against SFWMD, asking the judge to order the release of the Aug. 23 transcript.
The judge dismissed the case after learning the same issue was being heard in Martin County. Melzer asked for a rehearing, which was denied.
On Jan. 30, the District responded by filing for a declaratory judgment regarding the release of the Aug. 23 transcript, this time claiming Melzer's actions were based on “improper purposes.” The District asked the court for payment of their attorney fees under the new amendment to the Sunshine Laws.
Melzer sought to have the case dismissed, which was denied April 6. Melzer now has 30 days to respond. That case remains pending in Martin County Circuit Court.
The Argument Grows
In the meantime, Hurchalla went to court Feb. 5 on Lake Point's allegations that she interfered in its contracts, and a jury found her liable for $4.3 million in damages to Lake Point's business, which she has appealed. She also filed Feb. 20 to have Roby, who presided at her trial, removed from the Everglades Law Center case, which he denied Feb. 22.
On Feb. 28, the Law Center demanded an emergency hearing in circuit court on its writ of mandamus, asking for release of the Aug. 23 transcript within 48 hours, arguing that a “private” attorney-client meeting does not exist when the client is a public agency, and that the state's public records laws provide no exemption for mediation.
The Law Center also asked for payment of their attorney fees. Roby ruled March 6 that the SFWMD had just cause to hold onto the transcript, denying the Law Center's writ of mandamus.
Now the legal issue will be settled in the appellate court as to which state law will prevail; however, the issue of trust and what to believe in Martin County will not be settled so soon.
Barbara Clowdus, who has covered the Lake Point story and its repercussions from the beginning, is editor and publisher of Martin County Currents. The publication is available online and in print.
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