The Arrest of Rachelle Merle

The Food Co-op On Trial

by Jim Scarantino | May 1, 2021 | General

Calling police to arrest one of its co-owners for trespassing has put the The Food Co-op on trial.

On April 5, 2021, Rachelle Merle, one of the Co-op’s member-owners, refused to wear a mask while shopping in the store. The store’s manager told her she would have to leave. Mrs. Merle said she would not. During the episode she asserted religious, scientific and political reasons for her stance.

The store’s manager called police. Mrs. Merle told the responding officer that she would not wear a mask and gave him her reasons. She also informed him she was “a member.” He informed her that he would arrest her if she did not don a mask or leave. She repeated her refusal to wear a mask and insisted she had the right to be in the store. He handcuffed and arrested her and walked her outside to his patrol car. She continued to state her reasons for refusing to wear a mask and to tell him that what he was doing was wrong.

She was placed in the back seat of his patrol car. A second patrol car arrived. The officers consulted. One went to the street, away from the people observing events, presumably to confer with a supervisor. He returned and stood by the car holding Mrs. Merle while the arresting officer went inside with a clipboard, presumably to confer with store management. He returned and told Merle she was being charged with trespassing and that, at the request of The Food Co-op, she was being “trespassed” from the store for a year. If she returned during that time she would be in violation of the order to stay off the property and arrested.

Merle was arraigned on April 26 on a single count of Trespass in the Second Degree. This is a misdemeanor criminal offense with penalties of up to 90 days in jail and a fine up to $1,000. To understand the offense one must first know what constitutes Trespass in the First Degree:  “A person is guilty of trespass in the first degree if he or she knowingly enters or remains unlawfully in a building.” Trespass in the Second Degree is when “he or she knowingly enters or remains unlawfully in or upon the premises of another under circumstances not constituting criminal trespass in the first degree.” (Emphasis added for reasons that follow.)

Merle was not charged with not wearing a mask inside a public place of business, which would be a gross misdemeanor under the Governor’s emergency order. It remains to be seen if the Governor can unilaterally dictate new criminal offenses that could put a citizen in jail for up to a year. Merle’s case does not raise that question.

Mrs. Merle is represented by Caleb Vandebos of Chehalis, Washington. He specializes in criminal defense. Mrs. Merle will be demanding a jury trial.

Eyewitnesses for Good Reason  

Merle had told people at the Freedom Rally in downtown Port Townsend the previous Saturday that she would be shopping in The Food Co-op without a mask. Freedom Rallies had been held every Saturday in recent months at the Tyler Street plaza to protest the Governor’s lockdown and masking mandates and distribute information about the vaccines.

I was there that day playing guitar with other musicians.

Merle wanted observers because she was afraid of being assaulted. She said she and, if I recall correctly, an older man had been verbally assaulted and physically intimidated for not wearing masks outside in the Co-op’s parking lot.

I decided to observe and take video for Port Townsend Free Press. I posted a video of her being escorted in handcuffs out of the store. (You can see it at our Facebook page). Shortly afterwards, in comments to the same video posted on my personal FB page, a Co-op employee attempted to start a false narrative that Mrs. Merle “literally took off her mask and coughed on an employee.” I responded that this was false and let the employee know that Mrs. Merle had been watched by a half dozen witnesses, several of whom had video evidence that his statement was false. The Co-op employee attempted to erase his attempt to smear Mrs. Merle, but it was captured by another reader before he could take it down.

Mr. Woolf did not respond to my question. Nor did the President of the Board of Directors respond to my questions about the incident. As a member-owner of The Food Co-op and editor of this site, I wrote him to receive clarification on the rights of member-owners to shop in the store.

The President, Owen Rowe, who is also a member of the Port Townsend City Council, did not respond. I received a vague and noncommittal response from the secretary, Claire Thomas, who said it was her duty to correspond with members. She wrote:

“As you can imagine, the Board of Directors has gotten several emails regarding the incident involving you and Mrs. Merle last week and we want to read all concerns from our member-owners and have thoughtful conversation about them as a group as well as with our General Manager at the Co-op. I will be answering emails in the order in which they were received and I truly appreciate your patience while we discuss your issue as a board. We take all comments and concerns from our fellow member-owners very seriously and we want to give each person the time and attention they deserve. I will follow up with a more detailed email soon.”

That was April 14. I had written Mr. Rowe on April 7. On April 26 Mrs. Merle was arraigned on the charge of criminal trespass. I still have not received the “more detailed” answer promised by the Co-op. The fact the case is going forward apparently is their answer.

The Food Co-op On Trial

How can the Food Co-op justify having one of its owners arrested for trespassing in a store she co-owns?  The definition of criminal trespass requires that the property be “premises of another.” The Food Co-op is her property as much as it is the property of the employee who ejected her, as I am sure all Co-op employees are also member-owners. This will most definitely be a key point of Mrs. Merle’s defense.

Mrs. Merle’s case is not analogous to that of a member-owner caught stealing from the store. The charge would be some level of the criminal offense of theft. The Co-op’s governing documents give its member-owners the right to shop in the store, in addition to voting rights and some other ancillary benefits. Shopping means paying for what is taken, not stealing.

The By-Laws and Articles of Incorporation set forth the rights and responsibilities of being a member-owner. The Articles of Incorporation create a single class of membership. Members of the corporation have the right “To purchase goods from the Corporation at prices generally available to members and otherwise to benefit from participation in the activities of the Corporation.” That right most definitely includes the right to shop in the store during the hours the Co-op is open to other patrons. This right can only be taken away involuntarily, “[f]or reasonable and sufficient cause, including willful violation of the Corporation’s Articles or Bylaws, by a two thirds’ vote of the Board of Directors, after a fair hearing at which the member has had the opportunity to speak and present evidence.”

The By Laws are more expansive on how a member’s ownership rights may be terminated: “Membership may be terminated involuntarily by a two-thirds’ (2/3rds’) vote of the Board for cause after the member-owner is provided fair notice of the reasons for proposed termination and has an opportunity to respond in person or in writing. Cause may include intentional or repeated violation of any provision of the Co-op’s bylaws or policies, actions that will impede the Co-op from accomplishing its purposes, actions or threats that adversely affect the interests of the Co-op or its member-owners, willful obstruction of any lawful purpose or activity of the Co-op, breach of any contract with the Coop, or failure to patronize the business for more than five (5) years.” If a member shoplifts, they could be arrested for shoplifting, but they would not be trespassing and they would retain their ownership rights until revoked by the Board on a 2/3 vote after due process had been provided to the member.

Mrs. Merle was not only charged with trespassing on a property she owns, she was handcuffed and forcibly (although professionally and gently) removed from the store against her will. Furthermore, the Co-op store manager had her “trespassed” from the Co-op, meaning she is denied all of her rights to enter a store she still co-owns. That was done without any due process or action by the Board, as required by the Co-op’s governing documents.

Somebody from the Co-op is going to have to explain themselves at trial and be subject to cross-examination. The Co-op’s actions and internal communications are also fair game for discovery by Mrs. Merle’s defense counsel. Their discussions with the arresting officer and any subsequent communications between Co-op leadership, the Jefferson County Prosecuting Attorney, police and the Jefferson County Health Department, if they occurred, must also be disclosed to the defense, and will be subject to examination at trial.

Did they intentionally disregard Mrs. Merle’s rights under the Co-op’s governing documents to make an example of her? Are they proceeding knowing they could well lose, but with the belief that the deterrent value of taking Mrs. Merle to trial is somehow “worth it”? Are they disregarding Mrs. Merle’s member-owner rights out of malice because of the religious or political beliefs she has asserted in her refusal to wear a mask?

It would be interesting to examine any other cases where the Co-op has called police to remove and arrest a member-owner, and those instances where it might have followed its governing documents in terminating the rights of a member-owner instead of calling police and “trespassing” the member-owner.

Ammunition for the Defense

The Co-op in unambiguous terms tells members they are owners. It has an entire section on its website entitled, “Ownership.”  The Co-op provides an “Owners Guide,” that prominently proclaims, “Welcome, Owner!” It goes on to say, “As an owner of The Food Co-op of Port Townsend, you’re part of a community of over 6500 people on the Quimper Peninsula who believe in the value of owning our own grocery store.”

Two important people in the Co-op’s origins and history agree with the view that Mrs. Merle should not have been charged with trespassing. Stephen Schumacher served as Co-op President for two and a half years, was Secretary for four years, and served on the committee that reviewed and revised the Co-op’s governing documents. He is also an expert and published author on the principles of food co-ops. He was a witness to Mrs. Merle’s arrest. He wrote in protest to the acting chief of the Port Townsend Police Department, Troy Surber. His letter is quoted at length:

“I believe the police were misunderstanding the situation when they arrested Rachelle, because as a member-owner of the Co-op she was not and could not have been trespassing while exercising her rights as owner on property she co-owns.  As explained in my [attached] article, member-owned cooperatives are a special kind of organization operating on different principles than standard shareholder corporations.

“The Co-op’s attached Bylaws make clear ‘1.2. The Co-op shall be owned by its members’ and its Articles of Incorporation state ‘3. Members of the Corporation shall have the right: (a) To purchase goods from the corporation at prices generally available to members and otherwise to benefit from participation in the activities of the Corporation.  That is precisely what Rachelle was peacefully doing when staff illegitimately called in a trespassing complaint against one of their storeowners.

“As Rachelle attempted to explain to the arresting officer, the situation with a cooperative is analogous to a wife asking the police to arrest a husband for trespassing on his own property; if the husband is doing something else wrong, he can be arrested for that, but not for trespassing.  Unfortunately Rachelle’s status as co-owner was not made clear, so the arresting officer waved the matter aside along with any grounds for separate offense, saying ‘They can ask you to leave because you are wearing a purple shirt, and you have to leave.’  But that is not true for owners exercising their ownership rights guaranteed in the Co-op’s governing documents.

“This was in fact a matter that should have been handled internally among co-owners without involving the police.  Staff had many options, including refusing her check-out at the register, or arranging a meeting to discuss the underlying issues per cooperative principles.  The Co-op’s Bylaws themselves provide that ‘2.6. Membership can be terminated non-voluntarily by a two-thirds’ vote of the Board for cause after the member-owner is provided fair notice of the reasons for proposed termination and has an opportunity to respond in person or writing’, after which Rachelle would have been legally subject to a trespassing complaint.

“Given that police were misinformed about how the Co-op’s governing documents make member-owners immune from trespassing complaints, please summarily drop the inapplicable trespassing charge against Co-op co-owner Rachelle Merle and remove it from her legal record.  Moreover, it would be good if you could advise the Food Co-op that police will not respond to any future calls from them about member-owners trespassing on their own property.

“If this matter ever comes to court, I would be happy to testify as an expert witness on Rachelle Merle’s behalf that as a co-owner she did not and could not trespass by exercising her ownership rights to shop at the Food Co-op.”

Ana Wolpin was a founder of the Co-op, its first General Manager and a member of its Board of Directors. She also wrote to the acting police chief, likewise citing provisions of the governing document she believes the Co-op violated. She wrote:

Mr. Schumacher and Ms. Wolpin have contributed articles to the Free Press. They provided copies of their letters to the chief, and his response. They also provided copies to the Co-op Board. Former Acting Chief Troy Surber similarly responded to Schumacher and Wolpin.  “I understand,” he wrote, that “the Co-op has nuances” and that Mrs. Merle would have the opportunity to present her arguments if the case proceeded to trial and that the prosecutor was aware of the issues they raise.

If the Board reached the 2/3 vote against her, she could then be “trespassed” as the Co-op has trespassed other non-members, principally transients. It would have complied with its governing documents, respected the rights of member-owners, and put Mrs. Merle in a position where, if she returned to the property after being trespassed, her attorney would have little more to do than try to negotiate a plea. But because the Co-op acted in violation of the very documents that brought it into existence, Mrs. Merle’s attorney will have significantly more to work with in her defense.