12th Circuit judge orders attorney in Whole Foods case to provide list of Manasota-88 members to defendants

Ralf Brookes had cited legal precedent and concerns about harassment of the individuals

Judge Rochelle Curley. Image from the 12th Judicial Circuit website
Judge Rochelle Curley. Image from the 12th Judicial Circuit website

A judge has ordered an attorney to disclose the names of members of an environmental organization challenging the Sarasota County Commission’s decision to allow a new Whole Foods to be built on what county staff has called a rare forested wetland site on University Parkway.

The decision came on July 20, as the case heads to a two-day, non-jury trial set to begin on Aug. 22.

Twelfth Judicial Circuit Court Judge Rochelle Curley upheld an order Magistrate Deborah Bailey issued on June 21. Bailey’s decision followed a June 3 hearing on a motion by Intervenors in the case to compel Manasota-88 attorney Ralf Brookes of Cape Coral to provide the names. However, Bailey directed that the list is “to be used solely for the purposes of litigating this matter …” In the absence of a subsequent court order, she added that “the parties are prohibited from filing, either publicly or in the court file,” the membership list, as well as a list of all persons supporting Manasota-88’s challenge of the County Commission decision. The Intervenors also had sought the latter compilation of names.

Brookes had cited numerous legal precedents to try to make his case that turning over the lists could lead to harassment of the members and potentially induce them to leave the nonprofit.

Along with three individuals, Manasota-88 has argued that the County Commission violated provisions of the county’s Comprehensive Plan in voting 4-1 on Jan. 26 to allow the project to proceed on a site that includes 4.5 acres of wetlands. As explained in the county staff report prepared in advance of the public hearing — which Brookes filed with the court on July 15 — the focus of the board’s decision was 8.24 acres located to the southwest of the intersection of University Parkway and Honore Avenue.

The project entails not only Whole Foods’ second Sarasota store but also a Wawa and possibly a Zoes Kitchen restaurant, according to the material presented to the County Commission on Jan. 26.

Commissioner Charles Hines cast the lone “No” vote that day, citing what he called “the potential domino effect on other areas that we have protected …” He added, “This is a good location for [a Whole Foods store], except there’s a wetland right on it,” and staff testimony had shown that wetland “still has value; it still has use.”

The original plan called for Whole Foods to open its second Sarasota location in the summer of 2017. Owners of the property comprising the site asked the Office of the County Attorney to press for an expedited trial. With no objection from the County Commission or Brookes, Curley agreed. Those property owners are termed “Intervenors” because they requested the court to allow them to be involved in the case as defendants with Sarasota County.

The motions

An engineering drawing shows the Whole Foods/Wawa site plan. Image courtesy Sarasota County
An engineering drawing shows the Whole Foods/Wawa site plan. Image courtesy Sarasota County

In a May 17 motion, the Intervenors asked the court to compel Manasota-88 to provide a number of items they had sought in an earlier motion. Among them was a “complete membership list” of the environmental organization as of Jan. 1. Brookes’ response, the motion says, was that one of the individual plaintiffs, Geraldine Swormstedt, already is a member of Manasota-88 and that other members directly involved in the case would be identified later. However, Brookes asserted that the organization could not be compelled to provide a complete list, because that was protected under the U.S. Constitution and laws of the State of Florida, as established in Matthews v. City of Maitland, a 2006 decision of Florida’s Fifth Circuit Court of Appeal. That ruling quashed a trial court’s order requiring disclosure of the names and contributors of an organization as “an inseparable aspect of the liberty assured by the due process clause and held that the compelled disclosure of membership in an organization engaged in advocacy constitutes an interference with the right to freedom of assembly.”

In a later filing with the court, citing other legal precedents, he argued that the “‘First Amendment associational privilege emerges when a discovery request specifically asks for a list of a group’s anonymous members or requests any similar information that goes to the heart of an organization’s associational activities …’” He wrote in a June 7 filing that such disclosure could lead to inducing members to withdraw from the organization or dissuading others from joining it.

Brookes also cited as legal precedent a case involving the NAACP and the State of Alabama, dating to 1958.

In a formal response to the motion to compel the list — filed on June 7 — Brookes wrote, “In cases involving the government and a private party, the Supreme Court has announced that the balancing of interests must reveal that the government has a compelling interest in disclosure and that the interest in disclosure bears a substantial relation to the information sought [his emphasis].”

A graphic and section of the Comprehensive Plan explain staff's objection to destruction of the wetlands. Image courtesy Sarasota County
A graphic and section of the Comprehensive Plan explain staff’s objection to destruction of the wetlands. Image courtesy Sarasota County

He also cited a 1978 California court ruling that said, “[I]n some respects, the threat to the First Amendment rights may be more severe in a discovery context, since the party directing the inquiry is a litigation adversary who may well attempt to harass his opponent … by probing deeply into areas which an individual may prefer to keep confidential.”

Additionally, Brookes argued that courts must rely on three factors when handling requests to compel membership lists: the relevance of the information sought, the need for the information and “the extent of injury that disclosure may cause to associational rights.” He cited other court cases as the basis for his argument.

The magistrate’s decision

Two days prior to a June 3 hearing before her, Bailey pointed out in her decision, Brookes provided a list of names of 12 Manasota-88 members — in addition to Swormstedt — who had agreed to disclose their names “‘as members who will be adversely affected by the permanent filling of 100% of the subject wetland for [a] parking lot, buildings and structures.’” Additionally, four of them executed affidavits “attesting to their enjoyment of the wetland,” she wrote. The chair of Manasota-88, Glenn Compton, also executed such an affidavit, Bailey noted. Otherwise, the environmental organization reiterated its objection to disclosing names of members or supporters.

Bailey wrote that the Intervenors had argued that Manasota-88 “cannot demonstrate an improper infringement on its associational rights, i.e., a showing that disclosure of its membership list or the identity of its supporters will lead to ‘reprisal or harassment’”; and even if it could, the balancing test Brookes had cited earlier “weighs in favor of disclosure of the requested information.”

Ralf Brookes. Image from his law firm's website
Ralf Brookes. Image from his law firm’s website

Bailey added that Manasota-88 “has not made the threshold showing of infringement of a constitutionally protected right,” and that the list is relevant to the case, so it should be part of the discovery material turned over by the organization to the Intervenors.

After Bailey issued her order, Brookes filed exceptions to it on June 30.

In her July 20 order, Judge Curley wrote, “The Magistrate’s findings of fact and conclusions of law come to the trial court clothed with a presumption of correctness, and the trial court may only reject them if they are clearly erroneous or if the Magistrate has misconceived the legal effect of the evidence presented.” She cited a Florida court case as the basis for that assertion.

Curley continued, “The Court finds that the record contains substantial competent evidence supporting the findings by the General Magistrate and compliance with relevant legal authority.” Therefore, she affirmed Bailey’s order entered in court files on June 21.

Brookes did not return a Sarasota News Leader request for comment.