TN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CIRCUIT CIVIL DIVISION AG CASE NO. 50-2019-CA-014681-XXXX-MB CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST,¶
Plaintiff/Petitioner¶
vs. DAVE ARONBERG, SHARON R BOCK, Defendant/Respondents.¶
ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS CQUNT II OF PLAINTIFF’S FIRST AMENDED COMPLAINT WITILPIL5THCIF,¶
Beach County’s (“State Attorney”) and Sharon R. Bock, as County’s, (“Clerk’) respective Motions to Dismiss C Publisher of the Palm Beach Post’s (“The Post” case is assigned to Division AG, which is c Hafele. However, the undersigned, as City J over the June 3, 2020 hearing on t Nttomcy and Clerk’s Motions as the Motions implicate records of the Palm Beach County grand jury, over which the Chief Judge presides. See § 905.01, Fla. Stat. (2019). After careful consideration of the pleadings and the arguments presented at the hearing, the Court grants the Motions for the following reasons. THIS CAUSE cant before the Court on Dave Aronbe tomcy of Palm omptroller of Palm Beach A Florida Holdings, LLC, cd Complaint (DE## 22, 24). This sided over by the Honorable Donald e of the Fifteenth Judicial Circuit, presided¶
Background¶
The Post outlet which has heavily reported on the 2006 Palm Beach County criminal prosec Jeffrey Epstein. Through the instant civil lawsuit, The Post seeks “imntdiate access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury” in Mr. Epstein’s case and alleges that both the State Attorney and Clerk arc “in possession and/or control of [those] documents.” (DE # 17, First Amended Complaint at ill 3,4, and 77). Specifically, The Post seeks declaratory judgment as to its rights to obtain the grand jury testimony in Mr. Epstein’s case from the State Attorney and Clerk (Count I) as well as judgment against the State Attorney and the Clerk pursuant to section 90527, Florida Statutes, which sets forth the parameters of grand jury secrecy in Florida. (Count II). Both the State Attorney and the Clerk move to dismiss Count II of The Post’s First Amended Complaint, arguing that that section 90527 does not create a private cause of action. (DE## 22, 24). The Court agrees.¶
Analysis¶
“In reviewing a motion to dismiss for failure to state a cause of action, the court t ccept the allegations of the complaint as true and construe them in the light most favors the Miff.”¶
Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So. 2d 703, 704-0 4 DCA 2006). The motion should only be granted if the moving party demo t the plaintiff cannot provide any facts that would support a cause of action. fo ows that if the cause of action alleged is nonexistent under Florida law, dismissal d. Cummings v. Dawson, 444 So. 2d 565, 566 (Fla. 1st DCA 1984) (aft f cause of action not recognized by Florida law).¶
Section 90527, Florida Statutes (2019), is `Te3rtimony not to be disclosed, exceptions,” and states:¶
- (1) A grand juror, state alto iEtant state attorney, reporter, stenographer, interpreter, or any other non caring before the grand jury shall not disclose the testimony of a witness e d before the grand jury or other evidence received by it except when requir by a court to disclose the testimony for the purpose of: whether it is consistent with the testimony given by the witness before rung whether the witness is guilty of perjury; or ring justice.
(2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or contramicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or conununicated to any other person, in any manner whatsoever, any testimony of a witness examined before the grand jury, or the content, gist, or import thereof, except when such testimony is or has been disclosed in a court proceeding. When a court orders the disclosure of such testimony pursuant to subsection (1) for use in a criminal case, it may be disclosed to the prosecuting attorney of the court in which such criminal case is pending, and by the prosecuting attorney to his or her assistants, legal associates, and employees, and to the defendant and the defendant’s¶
attorney, and by the latter to his or her legal associates and employees. When such disclosure is ordered by a court pursuant to subsection (I) for use in a civil case, it may be disclosed to all parties to the case and to their attorneys and by the latter to their legal associates and employees. However, the grand jury testimony afforded such persons by the court can only be used in the defense or prosecution of the civil or criminal case and for no other purpose whatsoever.¶
(3) Nothing in this section shall affect the attorney-client relationship. A client shall have the right to communicate to his or her attorney any testimony given by the client to the grand jury, any matters involving the client discussed in the clients presence be ore the grand jury, and any evidence involving the client received by or proffered to grand jury in the clients presence.¶
(4) Persons convicted of violating this section shall be guilty of a degree, punishable as provided in s. 775.083, or by fine not exec r of the first ,000, or both.¶
(5) A violation of this section shall constitute criminal contemp¶
§ 90527, Fla. Stat. (2019).¶
As the State Attorney and Clerk argue t concedes, section 90527 nnkcs no express provision for a civil suit or c y. Nonetheless, The Post maintains that it is entitled to seek the grand jury records cause of action pursuant to the “furthering justice” exception to grand jury secre din subsection 90527(IXc). Therefore, the limited question for this Court’s on is whether a cause of action under section 90527 should be judicially implied. Se u y v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994).¶
In advocating that it intain a cause of action against the State Attorney and Clerk under section 90 The ost urges the Court to examine three factors “(1) whether the plaintiff is o o ass for whose special benefit the statute was enacted; (2) whether there is any a ether explicit or implicit, of a legislative intent to create or deny such a remedy; 3) whether judicial implication is consistent with the underlying purposes of the legislative scheme.” (Plaintiff’s Opposition to Defendant, Dave Aronberg, As State Attorney of Palm Beach County, Florida’s Motion to Dismiss Count II of the First Amended Complaint at page 13 (citing Fischer v. Metcalf, 543 So. 2d 785 (Fla. 3d DCA 1989)). Within these three factors, The Post recognizes that there is no indication of legislative intent to create a cause of action, but leans heavily on the benefit factor, arguing that the “furthering justice” exception to¶
grand jury secrecy outlined in section 90527(1Xc) was meant to benefit the public at large, for which the press acts as a surrogate. The Post’s arguments are unpersuasive as to the discrete issue of whether a private cause of action lies in section 90527.¶
To begin with, The Post’s reliance on the benefit factor is misplaced. Per the Florida Supreme Court’s 1994 opinion in Murthy, “the question of whether a statute establishes a duty to take precautions to protect or benefit a particular class of persons is no longer determinative on the question of whether a cause of action should be recognized?’ Sorenson v. Pro Compounding Pharmacists of W. Pa., Inc., 191 So. 3d 929 (Fla. 2d DCA 2016 ng Murthy, 644 So. 2d at 985). Instead, “whether a statutory cause of action should i. y implied is a question of legislative intent.” Horowitz v. Plantation Gen. Hosp. L tp, 959 So. 2d 176, 182 (Fla. 2007). See also QBE Ins. Corp. v. Chalfonte Condo. en Asstn, Inc., 94 So. 3d 541, 551 (Fla. 2012) (“Since Murthy, we have reaffirmed e that whether a statutory cause of action should be judicially implied is a ques lative intent”); Universal Prop. & Cas. Ins. Co. v. Loftus, 276 So. 3d 849, 851 D A 2019).¶
As is always the case when a court e s a legislative intent analysis, the plain language of the statute is the starting, riding, point. See Horowitz, 959 So. 2d at 182. “When the statute is clear and courts will not look behind the statute’s plain language for legislative intent s to rules of statutory construction to ascertain intent.” Loftus, 276 So. 3d at 851 rth DCA 2019)Xquoting Daniels v. Ma. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 20 ). “H wever, a single part of a statute should not be read in isolation.” Id. “Instead, ‘all f statute roust be read together in order to achieve a consistent whole.”’ Id. (quotinit Fo Longboat Key Beach Erosion Control Dist, 604 So. 2d 452, 455 (Fla. 1992)).¶
As The Post acknowledges, “there is a dearth of legislative history surrounding Section 90527 and the The Palm Beach Post was unable to locate any documents capturing any legislative intent regarding the possibility of a private right of action.” (Plaintiff’s Opposition to Defendant, Dave Aronberg, As State Attorney of Palm Beach County, Florida’s Motion to Dismiss Count Il of the First Amended Complaint at page 14). While the lack of any legislative¶
history indicating an intent to create a private right of action is telling, it is not dispositive as the plain language of the section 90527 is clear an unambiguous and, therefore, controls. Horowitz, 959 So, 2d at 182.¶
Examining the plain language of section 90527 in its entirety, which requires the Court to look at more than just the “furthering justice” provision of section 90527(lXc) relied on by The Post, it is clear that the intent of the Legislature in passing section 90527 was to limit, not facilitate, disclosure of grand July records. In no uncertain terms, the Legislature •ded that no “person appearing before the grand jury” may “disclose” testimony or evi p ented except when “required by a court” under certain limited circumstances. § , Fla. Stat. In solidifying that its intent was to prohibit disclosure without coat pe sio Legislature provided that disclosure without a court order is a criminal off v§ 9 27(4), Fla. Stat. Therefore, to the extent section 90527 could be read as pqs 1 duty on the State Attorney and Clerk, the duty imposed is one of secrecy, not di’¶
In sum, there is nothing in the text of sec 7 from which one can deduce that the Legislature contemplated a member of the r or one else for that matter, having a private cause of action to compel the State Clerk to disclose grand jury records. Indeed, to the contrary, section 90527 p State Attorney and the Clerk (assuming that, as pleaded by The Post, they hay cuments) from disclosing the documents without first being ordered to do so b urtfil Reading section 90527 as creating a private cause of action against the te Att y and Clerk is, therefore, not only unsupported by the language of section 905 is ctually paradoxical to its plain language of the statute. As such, this Court lacks t4jconstrue the unambiguous language of section 90527 in a way that would extend its ress terms and create a cause of action where none exists. “To do so would be an abrogation of legislative power.” Horowitz. 959 So. 2d 176. 182 (quoting Holly v. Auld. 450 So, 2d 217. 219 (FIa. 1984)),¶
Conclusion¶
Based on the foregoing, the Court finds Count II of The Post’s First Amended Complaint trust be dismissed with prejudice as it pursues a nonexistent cause of action under section¶
- In arriving at this conclusion, the Court does not suggest The Post has no available mechanism to obtain a court order granting it access to the grand jury proceedings. The Court also does not render any opinion as to whether releasing these records is appropriate for the purpose of “furthering justice” within the meaning of section 90527. Rather, the Court’s dismissal of Count II is necessitated by precedent and the simple fact that a civil lawsuit against the State Attorney and Clerk under section 90527 is not the proper mechanism for The Post to pursue its goal.
Therefore, it is hereby¶
ORDERED AND ADJUDGED that Dave Aronberg, as State Att aim Beach County’s and Sharon R. Bock, as Clerk & Comptroller of Palm Beac s, respective Motions to Dismiss Count II of CA Florida Holdings, LLC, P r o the Palm Beach Post’s First Amended Complaint are GRANTED and Count H o first Amended Complaint is hereby DISMISSED with prejudice.¶
DONE AND ORDERED, in West Palr a Palm Beach County, Florida this 8th day of June, 2020.¶
(se¶
/000G11B_, 0 0 ((rata Map( sly go¶
50-2019-CA-014681-XXXX-MB 06/082020 KrIsta Marx Chief Judge¶
COPIES TO:¶
No Address Available No E-mail Address Available¶
DOUGLAS A. WYLER 961687 GATEWAY BLVD doug.wyler@comcast.net SUITE 201-I FERNANDINA BEACH, FL¶
{sup}111 The notes that, if there was a court order directing the State Attorney or the Clerk to disclose re rds and the State Attorney or the Clerk refused, the remedy for disobeying a court order is contempt or, in some instances, a mandamus proceedings — not a civil lawsuit.¶
MICHAEL GRYGIEL¶
MICHAEL J. GRYGIEL¶
NICOLE R. FINGERHUT¶
32034¶
54 STATE STREET 6TH FLOOR ALBANY, NY 12207¶
No Address Available¶
POST OFFICE BOX 229 WEST PALM BEACH, FL 33401¶
NINA D. BOYAJIAN No Address Available¶
NINA D. BOYAJIAN¶
STEPHEN A. MENDELSOHN, ESQ 1840 CENTURY PARK EAST SUITE 1900 LOS ANGELES, CA 90067¶
5100 TOWN CENTER CIR SUITE 400 BOCA RATON, FL 3¶
CLERK E-SERVICE@MYPALMBEACH CLERK.COM rifingerhut@rnypalrnbeachclerk. corn¶
boyajiann@gtla¶
riveraal@gt1¶
No E Available¶
elsolms@gtlaw.com @gtlaw.com ervice@gtlaw.com¶