The Food Co-op insists it is not pressing charges against Rachelle Merle. It is soley the prosecutor who’s pushing this, they have asserted in correspondence with Co-op members. But, this doesn’t get the Co-op out of the dock. What will be its position when its general manager is on the stand testifying under oath? Or the President of its Board of Directors? Somebody from the Co-op will have to testify that Rachelle Merle was a trespasser for the case to get past a motion to dismiss.

Are Co-op member-owners owners or not? And, if they are owners, how can they be guilty of trespassing when that offense requires being or remaining upon “the premises of another“? How can the Co-op exclude Mrs. Merle from the Co-op for a year–as it has with a “trespassing” order–if she is a co-owner of that same property?

In my previous article I wrote that the Co-op had not answered written inquiries as to why Mrs. Rachelle Merle was handcuffed, marched out of the store and charged with second degree trespassing. Did not the Co-op’s foundational documents, and the Co-op’s repeated statements that members are “owners,” give her a property and/or contractual right to be in the store during regular hours? And was not her status as a co-owner protected against being stripped except in accordance with the Articles of Incorporation and By-laws of the Co-op? Those documents guarantee that a person remains a member-owner until such time as they have been given notice that the Board will consider terminating their member-ownership for cause, a chance to respond, and no less than a 2/3 vote by the Board in favor of termination.

Now the Co-op has answered….sort of.

Following publication of that article, I received a written response form Claire Thomas, the Co-op’s Secretary. First, my inquiry, then her answer. My inquiry of April 7 was addressed to Owen Rowe, the Co-op’s President:

Mrs. Merle had requested observers out of fear that she would be physically harmed or subjected to intimidation or threats of violence. I had been present to cover the event for Port Townsend Free Press. Mrs. Merle had lined up other observers for her protection. Good thing she did. In my previous article I wrote how one Co-op employee, Corvus Woolf,  had immediately started spreading flat out lies, stating Mrs. Merle “literally took off her mask and coughed on an employee.” When notified that Mrs. Merle had been under continuous observation by a half dozen witnesses who would expose his lie, he tried to remove that statement from comments to posting of the video of Mrs. Merle’s arrest.

Is the Co-op now adopting a strategy of lying about the incident? From the moment Mrs. Merle, maskless, entered the store she minded her own business and was by herself, away from other customers and staff almost the whole time. She was approached by store employees and the manager. She did not at any time threaten them or any other customer. When she did interact with an employee, it was when she approached the counter in the back and made a request courteously. The response from the employee was also courteous. Mrs. Merle stated her position to management and the police, and did not offer resistance when handcuffed and obliged the officer when he walked her out of the store to his patrol car.

What Mrs. Merle did was try to do her shopping without wearing a mask. That was it.

Is the Co-op going to maintain that not wearing a mask is “threatening the safety of our customers and staff”?  Will trial now involve the science of masking? The Co-op only requires a simple cloth mask, nothing more. As reported here and in many medical and scientific studies, those masks are pretty useless in stopping a virus. And, since Mrs. Merle would no doubt testify that she was in fine health and not suffering any symptoms of a viral infection, there was in fact no threat of her harming anyone. Will they have employees testify that they felt threatened by her maskless presence, even though they were wearing masks and she had not approached within six feet of them? Is there a single reported case of someone being infected because a shopper in a store had not worn a mask? The data on transmission from retail store customers is almost nonexistent. Seriously, this could turn into a farce

But Mrs. Merle was not charged with any offense involving making threats or engaging in threatening behavior. She was charged with second degree trespassing. The absolutely necessary element of that offense is that she entered or remained upon “the premises of another.” For the Co-op there’s no avoiding the fact that to this day Mrs. Merle remains a co-owner of the Co-op because the necessary action to terminate that status has not even been started by the Board.

Helpless Bystander Nonsense

The Co-op is not a helpless bystander in this. The prosecution would not be going forward without their support. The Co-op will have to take a position at trial. What it means to be a member-owner is really the only issue in dispute in this case–unless, of course, the Co-op’s witnesses choose to lie on the stand.

The blogpost referred to by Ms. Thomas was written by the Co-op’s general manager, Kenna Eaton. It is entitled, “What it means to be a member of the Co-op”  Missing from that title is the word “owner.”

The omission of the word “owner” is not insignificant. Mrs. Merle’s case brings into sharp focus an abandonment of the foundational principles of the Food Co-op that has raised concern among many of its long-time members and some of those who helped create it or steered it in its early years. They were always careful to use the term “member-owner” because it was ownership that made it a co-op.  It was supposed to be much, much more than a frequent buyer program for groovy food. The Co-op’s current website devotes an entire page to “Ownership.” “Why Be An Owner?” it asks. Membership is ownership and it is protected by the By-Laws.

But the general manager’s blogpost never mentions those rights and how they are protected. It is all about how members have responsibilities. Not once are the responsibilities of management and the Board mentioned. Not one mention is made of the prohibition against management or the Board depriving an owner of their ownership rights except in accordance with the procedures required in the By-Laws. When she uses the phrase “member-owner” Ms. Eaton says, “Being a member-owner comes with responsibility. Members are expected to treat staff and each other civilly and respectfully, and they must follow rules and procedures.”

The general manager and Board must also follow rules and procedures. They have not in Mrs. Merles’ case.

A Co-op or a Whole Foods with a Rewards Club?

While the Co-op unpersuasively claims no role in the prosecution of Mrs. Merle, it is responsible for “trespassing” Mrs. Merle. At the time of her arrest Mrs. Merle was notified that she was being excluded from the Co-op for one year. Were she to return during that time, she would be charged with trespassing. Police don’t have authority to issue such an order except at the request of the property owner. It is the Co-op that has deprived one of its co-owners of her rights to use the store. Nothing in the Articles of Incorporation or By-laws permit this. It may not be a termination of membership, but it is definitely a suspension. There is no provision in the Co-op’s governing documents for suspension of membership.

Effectively, a one-year trespass order is a termination. A member would have to continue to pay their membership dues for a year even though they would not get anything in return. If they stopped paying for receiving nothing in exchange their membership would expire.  Even if they kept up their membership, by not patronizing the store for a year they would no longer be a member in good standing and would be denied their right to vote in any matter submitted to member-owners. If the Co-op holds any member-owner meetings or other events on its property during that year, Mrs. Merle would be arrested for trespassing were she to attend.

Mrs. Merle has entered a not guilty plea. She has a good attorney. There will be a trial, and Mrs. Merle is demanding a jury. The Co-op will be on trial every bit as much as Mrs. Merle. And while it does not face the prospect of jail time (the potential perjury of witnesses aside), it is in jeopardy of becoming just a miniature Whole Foods with a forgotten history of cooperative ownership.

Co-ops were birthed out of a spirit of rebellion and free thinking. They were revolution, an economic uprising and a refusal to conform. They were the alternative to Big Ag and Big Pharma and defiance of government control over our diets and health. The Port Townsend Food Co-op was once an expression of independence and self-determination. It pushed back and sought to cut its own path. Has it been transmogrified by financial success into an expression of affluence and conformity, aligned now with the very powers it once resisted?

Mrs. Merle was challenging the Co-op to change its policies. There have been many complaints that the Co-op has been unnecessarily rigid and draconian–perhaps even fanatical–and has failed to make reasonable accommodations for those who will not or cannot wear a mask. Other stores provide opportunities for such people to shop under controlled conditions. The Co-op makes no exceptions. Mrs. Merle’s peaceful act of civil disobedience, a mother shopping for her children while showing her face, was intended to prompt an internal dialogue and liberalization the Co-op’s leaders have avoided or blocked. It was met by calling in men with guns.

Mrs. Merle’s trial is set for July 1, 2021.

Jim Scarantino

Jim Scarantino was the editor and founder of Port Townsend Free Press. He is happy in his new role as just a contributor writing on topics of concern to him. He spent the first 25 years of his professional life as a trial attorney, then launched an online investigative news website that broke several national stories. He is also the author of three crime novels. He resides in Jefferson County. See our “About” page for more information.