More than one Martin County judge warned environmental icon Maggy Hurchalla over the past six years that lies and misrepresentations of fact are not protected free speech. The Fourth District Court of Appeals concurred today in a 12-page, unanimous opinion that Hurchalla's free speech privileges “were negated by malice on the part of Hurchalla.”
The Martin County Circuit Court jury's award of $4.4 million in damages to Lake Point Restoration will stand in Lake Point's civil case against Hurchalla for interfering with their agreements with the Martin County Commission and the South Florida Water Management District. The jury's initial ruling came on Valentine's Day 2018.
Hurchalla's attorneys, who now include state and nationally recognized experts in First Amendment law, argued the case March 12 before three judges of the appellate court, Burton C. Conner, Dorian Damoorgian, and Alan O. Forst, in West Palm Beach. Written primarily by Conner, the opinion can now be challenged by Hurchalla “in a timely manner.”
If a rehearing of her case is rejected by the Fourth District, Hurchalla also has the option of petitioning the Florida Supreme Court to hear her case.
Martin County and the SFWMD both were parties to a lawsuit filed by Lake Point in February 2013 for breach of contract, and against Hurchalla for her alleged role in causing the county and SFWMD to attempt to void their agreements with Lake Point. Both the county and the water district settled with Lake Point out of court in 2017.
IT'S ABOUT THE ENVIRONMENT
Conner, in his opinion, conceded that Hurchalla had a history of championing environmental causes, noting that her attorneys had argued that she did not act with the purpose of harming Lake Point, but “to promote the public interest in the environment.”
He conceded that some of her environmental arguments presented to the appellate court could weigh in Hurchalla's favor; however, because Hurchalla used “wrongful means to interfere in Lake Point's contract” with the county by misrepresenting facts, she had demonstrated malice.
The judge pointed out that when the county entered into the interlocal agreement in 2009, Hurchalla knew of the project and expressed a few concerns, but took no action in protest. She also made no public comment on Lake Point's permits with the Florida Department of Environmental Protection and the federal Army Corps of Engineers to mine rock on its land near Lake Okeechobee in western Martin County, thus turning Lake Point into a public-private water restoration and conveyance project and part of the Indian River Restoration initiative.
Over the next several years, Lake Point worked to implement the project, commissioning additional engineering reports. During this time, the county monitored the project and never identified any problems, even reporting to the BOCC that all wetlands were being protected.
A change occurred after the 2012 county commission election that put Hurchalla's friend, Anne Scott of Jupiter Island, on the commission, and electing Commissioner Sarah Heard as chairwoman. Hurchalla had reacted vehemently to a newspaper report in September 2012 that markets were being sought for excess water from the C-44 canal, which would be cleansed in the Lake Point rock pits, sold and stored for later use during droughts, as experienced by West Palm Beach in 2011.
The water in the C-44 currently goes to tide, other than what is diverted to the Caulkins Water Farm during Lake Okeechobee discharges.
Hurchalla had stated in private emails that Martin County was the rightful beneficiary of such a deal, and that a new contract to benefit Martin County should be written -- in excess of just the environmental fee Lake Point had agreed to pay to the county. Publicly, Hurchalla cited environmental concerns with the project.
The judge pointed specifically to Hurchalla's public email to the Board of County Commissioners on Jan. 4, 2013, that Lake Point said was false. Hurchalla stated in her email that a study that documented the benefits of Lake Point's stormwater treatment areas had not been conducted, and “Neither the storage nor the treatment benefits have been documented.”
Yet the evidence presented to the jury showed that Hurchalla admitted there were actually documented treatment benefits. At trial, she stated: “As far as the treatment benefits, there is a study (documenting treatment benefits), and I did review that study . . . it’s a preliminary study and other studies would need to be done.” Even her own expert agreed that the 2008 models showed storage and treatment benefits.
“Therefore, even if Hurchalla thought there should have been more studies,” Conner wrote, “she admitted that she had reviewed the study showing treatment benefits.”
Hurchalla had been aware, therefore, that her statement to commissioners that there were no documented benefits was false. Those emails “are examples of competent substantial evidence that clearly and convincingly proved that Hurchalla demonstrated actual malice” in interfering with Lake Point's contracts, Conner wrote, “by making statements she either knew were false or with reckless disregard as to whether they were false.”
COMMUNICATING WITH HER GOVERNMENT OFFICIALS
Hurchalla, who was using her status as a locally recognized authority on the environment, had made comments to her government representatives that were represented as statements of fact, not her opinion, and without any foundation, according to court records.
Since the false statements had been emailed to two recently elected commissioners, Anne Scott and John Haddox, neither of whom admittedly had read the permits or studies, the appellate court determined “there was sufficient clear and convincing evidence to refute Hurchalla’s First Amendment privilege to petition her government as to those two statements.”
In addition to her Jan. 4, 2013, public email, there were private emails she sent to her commissioner friends instructing them in detail how to void the Interlocal Agreement, one of which was to former Commissioner Ed Fielding, signed by Hurchalla as “Deep Rockpit.”
She also referred to herself in other private emails as “Ms. Machiavelli,” invoking an historical figure who justified any means to reach his desired end.
The court carefully crafted its description of Hurchalla's actions: “... there was sufficient evidence presented for the jury to decide the issue of express malice based on Hurchalla using wrongful means … by the use of misrepresentations to the BOCC in her January 4, 2013 email to the commissioners.”
In simpler terms, however, the opinion stated that the ends do not justify the means, if done with the intent to harm.
AN OPPORTUNITY TO SETTLE
A forensics accountant testified during Hurchalla's 2018 trial that the Lake Point business had been harmed with a loss of more than $23 million, of which nearly $4.4 million was due to Hurchalla's actions. The county paid $12 million to settle Lake Point's claims, and SFWMD gave concessions to Lake Point that were valued at around $6 million over the next 20 years.
Lake Point offered to drop the lawsuit against Hurchalla in 2013 in return for admitting that her claims had been false in a letter of apology to Lake Point. Hurchalla refused.
After opening arguments in Hurchalla's civil trial that began Feb. 8, 2018, Circuit Court Judge William Roby held a private conference with Hurchalla and her attorneys out of sight of jurors to see if Hurchalla again would consider writing a letter of apology to Lake Point, in return for Lake Point dropping its lawsuit.
Hurchalla refused, accusing the judge of bias for suggesting it. The appellate court rejected Hurchalla's claims of bias, and refused to order a new trial with a new judge.
Lake Point again agreed to drop the lawsuit and not seek reimbursement of attorney fees in return for the apology; however, Hurchalla had demanded a payment of $1.7 million in return for settling, which Lake Point had rejected, according to the Feb. 9, 2018, trial testimony.
Barbara Clowdus, who has covered every stage of the Lake Point case since its inception, is editor and publisher of Martin County Currents newspaper.
