# IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA v. CASE NO.: 19-CA-014681 DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida. # MOTION TO SET CASE MANAGE cT l FERENCE COMES NOW, the Defendant, DAVE AR , as State Attorney of Palm Beach County, Florida, by and through the undersign , and hereby files this Motion to Set Case Management Conference, and in suppo t : - I. Despite conferring counsel have reached an imp other, counsel for the Plaintiff and the undersigned ng the scheduling of Defendant Aronberg's Motion for Summary Judgment and n for Attorneys' Fees. - 2. nt to 57.105, Florida Statutes, on June 8, 2020, the undersigned counsel served Plain a demand to voluntarily dismiss/withdraw the First Amended Complaint, filed Jatf 7, 2020, along with a Motion for Attorneys' Fees. See, Exhibit "A". Specifically, Defendant Aronberg's § 57.105 demand was served immediately after Chief Judge Krista Marx entered her Order Granting Defendants Motions to Dismiss Count II of Plaintiff's First Amended Complaint with Prejudice, ("Order"). See, Exhibit "B". - 4. Consequently, only Count I of Plaintiff's Amended Complaint remains, which seeks Declaratory Relief pursuant to § 86.011, Florida Statutes. 5. On June 23, 2020, Plaintiff's counsel sent a response refusing to withdraw the remainder of the Amended Complaint. See, Exhibit "C". 6. § 57.105, Florida Statutes states the following: A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. § 57.105(4), Florida Statutes. 7. Accordingly, after waiting the requisite "21 days after Defendant Aronberg's Motion for Attorneys' Fees was filed with thi Exhibit "0". S f i the motion" on July 1, 2020. See, 8. Thereafter, on August 18, 2020, Defend 1 rg filed his Motion for Summary Judgment. See, Exhibit "E". 9. Although no substantive he h en place since Judge Marx entered her Order and no prevailing party has , Plaintiff nonetheless insists on scheduling for hearing Defendant Aronberg's t or Attorneys' Fees prior to a hearing on Defendant Aronberg's Motion for Summ gment. A 10. The dersterd counsel has discussed this matter with Plaintiff's counsel and strenuously o the scheduling of the Motion for Attorneys' Fees prior to a hearing on Defendan g's Motion for Summary Judgment. 11. Nonetheless, the parties arc unable to reach an agreement as to which motion should be heard first and have no other option than to seek judicial intervention regarding the scheduling of the above-referenced motions to be heard. WHEREFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests that this Honorable Court grant the instant Motion to Set Case Management Conference in order to determine a proper path for the scheduling of the motions discussed herein to be heard by the Court. # CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 18th day of September, 2020, a copy of the foregoing Motion to Set Case Management Conference has been electronically filed with the AimaFl c rida , E-File Portal for e-service on all parties of record herein. SCHOLZ CSSR, LLC /s/ Douglas A. W Arthur Fla. Bar 49 Rich z, Esq. Fl : 0021261 Wyler, Esq. No.: 119979 ( {sup}`s` N, N6iernan87dGinateBweacy hFBlvido.1,idaSui3te2023041-I (904) 261-3693 (904) 261-7879 Fax Primary: jacobsscholzlaw@comcast.net General Counsel for the Florida Prosecuting Attorney's Association +6s # EXHIBIT “A” # EXHIBIT “A” Subject: SERVICE OF COURT DOCUMENT; CASE NO. 2019-CA-014681; CA FLORIDA HOLDINGS, LLC V. DAVE ARONBERG ET AL. Date: Monday, June 8, 2020 at 3:58:58 PM Eastern Daylight Time From: Douglas Wyler To: 'mendelsohns@gtlaw.com', smithl@gtlaw.com, flservice@gtlaw.com, BoyajianN@gtlaw.com, riveraal@gtlaw.com, GRYGIELM@gtlaw.com Attachments: 2020-06-08 Aronberg 57.105 Demand and Motion for Attorneys' Fees.pdf Please see attached and below in this matter. | Court: | Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida | | ------------------------------------- | ---------------------------------------------------------------------------------------------------------------------- | | Case No: | Case No. 2020-CA-014681 | | Plaintiff: | CA Florida Holdings, LLC | | Defendant: | Dave Aronberg | | Title of Documents Served: | | | Sender's Name and Telephone Number: | Douglas Wyler
(904) 261-3693 | Sincerely, a yler, Esq. Scholz & Wyler, LLC 961687 Gateway Blvd., STE 201-I Fernandina Beach, FL 32034 904-261-3693 904-261-7879 (fax) dougalerPcomcast.net Please be advised that this e- any files transmitted with it are confidential attorney-client communication or may otherwi be privileged or confidential and are intended solely for the individual or entity to whom they are addressed. If you are not the intended recipient, please do not read, copy or retransmit this communication but destroy it immediately. Any unauthorized dissemination, distribution or copying of this communication is strictly prohibited. # JACOBS SCHOLZ 8c WYLER, LLC. THE LAW °mots OF S ASSOCIATES. P.A. MINIM I. A LIMITED LIABILITY COMPANY OF PROFESSIONAL ASSOCIATIONS ATTORNEYS AT LAW GATEWAY TO AMELIA 901587 GATEWAY BLVD.. SUITE 201.1 FIDDIA-NDENA BEACH. FLORIDA 02034 TELEPHONE (904/ 261.3693 FAX NO. (904) 261.7679 June 8, 2020 # VIA ELECTRONIC & U.S. MAIL Stephen A. Mendelsohn, Esq. Greenburg Traurig, P.A. 5100 Town Center Circle, Suite 400 Boca Raton, FL 33486 RE: CA Florida Holdings, LLC v. Dave Aronbe Palm Beach County, Case No.: 2019-CA ,,i Dear Mr. Mendelsohn: As you are aware our firm represents the intere County, Florida, in the above referenced ma dismissal of your First Amended Complaj is made pursuant to section 57.105, Fl Arenberg, as State Attorney of Palm Beach rpose of this letter is to demand the voluntary omplaint"), dated January 17, 2020. This demand As you know, Section 57 - (1) Upon the court's reasonable a rney's prevailing pa on anyj1aim o the h e or motion of any party, the court shall award a ee, including prejudgment interest, to be paid to the ual amounts by the losing party and the losing party's attorney efense at any time during a civil proceeding or action in which Inds that the losing party or the losing party's attorney knew or should that a claim or defense when initially presented to the court or at any ore trial: Was not supported by the material facts necessary to establish the claim or defense; or Would not be supported by the application of then-existing law to those material facts. RICHARD J. SCHOLZ. P.A. RICHARD J. SCHOLZ DOUGLAS A. WYLER, P.A. DOUGLAS A. WYLCR A Cos Today, Judge Marx granted, with prejudice, Defendant Aronberg's Motion to Dismiss Count II of the Plaintiff's Complaint. Pursuant to the Court's ruling, the Plaintiff's only remaining cause of action consists of Count I, for Declaratory Relief. Accordingly, we believe that the Complaint filed herein and its sole remaining Count for Declaratory Relief is not supported by the material facts necessary to establish the claims asserted, and that your claims are not supported by the application of current law to said material facts. First and foremost, the Complaint is not supported by the material facts necessary to establish the claims asserted because neither Defendant Aronberg, nor The Office of the State Attorney for the Fifteenth Judicial Circuit is in custody or control of the 2006 grand jury materials sought therein. Simply put, the declaratory relief sought by the Plaintiff, seeks records from my client that are impossible for him or his office to produce. Accordingly, Defendant Aronberg is not a proper party to this action because no matter what, he and his office do not have possession, custody, or control of the requested materials. In addition to the foregoing material facts that negate the claims asserted in the Complaint, your claims are also not supported by the application of current law. Specifically, your action for declaratory relief fails based on the clear, unambiguous statutory language found in Section 905.27(2), Florida Statutes, which states: When such disclosure is ordered by a court pursuant to subsection (1) 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. Moreover, even if the Plaintiff were to prevail in the declaratory action, Mr. Aronberg would be unable to comply with any court order granting disclosure of the requested documents because neither Mr. Aronberg nor The Office of the State Attorney for the Fifteenth Judicial Circuit have possession, custody, or control of the 2006 Epstein grand jury records. Based on the foregoing, if the Complaint is not dismissed within 21 days of the service of this letter, the enclosed Motion for Attorney's Fees will be filed and we will seek as sanctions, from your client and your firm, recovery of the legal expenses incurred in defending this frivolous action. Please govern yourself accordingly. Douglas A. Wyler, Esq. For the Firm Encl.: Defendant's Motion for Attorneys' Fees # IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida. CASE NO.: 19-CA-O14681 O SA C # DEFENDANT, DAVE ARONBERG'S M R ATTORNEYS' FEES Defendant, DAVE ARONBERG, as S of Palm Beach County, Florida, by and through the undersigned attorneys, mov Co , pursuant to Florida Statutes, Section 57.105, to award him reasonable attorneys' e defense of Plaintiff's First Amended Complaint, (the "Complaint"), and as rods r, would show that on June 8, 2020, Plaintiff was served {sup}`a`copy of this Motion, togeth a letter from the undersigned attorney, in accordance with subsection (4) of abo'tute, demanding dismissal of the Complaint, at least 21 days prior to the filing {sup}`o`s on. In said letter, Defendant's attorney advised Plaintiff of the facts which establis mplaint is without support of the facts or the law. REFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion. **CERTIFICATE OF SERVICE** I hereby certify that on this \_\_\_\_ day \_\_\_\_\_, 2020, the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein. **[REDACTED] SCHOLZ & WYLER, LLC** */s/ Douglas A. Wyler* \_\_\_\_\_ Arthur I. [REDACTED]'s, Esquire Fla. Bar No.: 108249 Richard J. Scholz, Esquire Fla. Bar No.: 0021261 Douglas A. Wyler, Esquire Fla. Bar No.: 119979 961687 Gateway Blvd., Suite 201-I Fernandina Beach, Florida 32034 (904) 261-3693 (904) 261-7879 jacobsscholzlaw@comcast.net *Attorneys for Defendant* NOTA CERTIFIED # EXHIBIT “B” # EXHIBIT “B” # IN 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 LIC PUBLISHER OF THE PALM BEACH POST, Plaintiff/Petitioner vs. DAVE ARONBERG, SHARON R BOCK, Defendant/Respondents. # ORDER GRANTING DEFENDANTS MOTIONS TO DISMIS\$ COUNT II OF PLAINTIFF'S FIRST AMENDED COMPLAINT WITH PlItUUDICE THIS CAUSE came before the Court on Dave Aronbe c StStriAttorney of Palm Beach County's ("State Attorney") and Sharon R. Bock, le Comptroller of Palm Beach County's, ("Clerk") respective Motions to Dismiss CA Florida Holdings, LW, Publisher of the Palm Beach Post's ("The Post" i Amended Complaint (DE## 22, 24). This case is assigned to Division AG, which is y sided over by the Honorable Donald Hafele. However, the undersigned, as ge of the Fifteenth Judicial Circuit, presided over the June 3, 2020 hearing on Stat ttomcy and Clerk's Motions as the Motions implicate records of the Palm ch ounty grand jury, over which the Chief Judge presides. See § 905.01, Fla. Stat. ( ter careful consideration of the pleadings and the arguments presented at the In ing, ourt grants the Motions for the following masons. 0 Background The Post is outlet which has heavily reported on the 2006 Palm Beach County criminal prosecutio f Jeffrey Epstein. Through the instant civil lawsuit, The Post seeks "ftranediate 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 are "in possession and/or control of [those] documents:' (DE # 17, First Amended Complaint at ¶¶ 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 444 So. 2d 565, 566 (Fla. 1st DCA 1984) (affi by Florida law). 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, f cause of action not recognized Section 90527, Florida Statutes (2019), is title "To3rtimony not to be disclosed, exceptions," and states: - (1) A grand juror, state atto ietant state attorney, reporter, stenographer, interpreter, or any other rson earing before the grand jury shall not disclose the testimony of a witness e before the grand jay or other evidence received by it except when requir jby a court to disclose the testimony for the purpose of: g whether it is consistent with the testimony given by the witness before ning whether the witness is guilty of perjury; or ring justice. 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 M. 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 aintiff." (2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or comnunicate to any other person, or knowingly to cause or permit to be published, broadcast, disclosed, divulged, or communicated 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 (1) 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 client's presence be ore the grand jury, and any evidence involving the client received by or proffered to grand jury in the client's 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 exce r of the first 00, or both. (5) A violation of this section shall constitute criminal contemp § 90527, Fla. Stat. (2019). As the State Attorney and Clerk argue makes no express provision for a civil suit or c • liiihjy. Nonetheless, The Post maintains that it is entitled to seek the grand July records sv cause of action pursuant to the "furthering justice" exception to grand jury secre 77d in subsection 90527(1Xc). Therefore, the limited question for this Court's a 'ion 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). t concedes, section 90527 In advocating that it ataintain a cause of action against the State Attorney and Clerk under section 90 The rt os 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 i 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 aigurnents 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 20 16 ng urthy, 644 So. 2d at 985). Instead, "whether a statutory cause of action should y implied is a question of legislative intent." Horowitz v. Plantation Gen. Hosp. L co, 959 So. 2d 176, 182 (Fla. 2007). See also QBE Ins. Corp. v. Chalfonte Condo. ent Ass 'n, Inc., 94 So. 3d 541, 551 (Fla. 20 12) ("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, Sing, 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. Fla. 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 last be read together in order to achieve a consistent whole."" Id. (quoting F . 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 Amnberg, As State Attorney of Palm Beach County, Florida's Motion to Dismiss Count II 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 diapositive 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 entire y, which requires the Court to look at mom than just the "furthering justice" provision of section 90527(1Xc) 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 jury records. In no uncertain terns, the Legislature ded that no "person appearing before the grand jury" may "disclose" testimony or ev\* Kilt p ented except when "required by a court" under certain limited circumstances. § solidifying that its intent was to prohibit disclosure without court pe provided that disclosure without a court order is a criminal off Ay § 94527(4), Fla. Stat. Therefore, to the extent section 90527 could be mad as s duty on the State Attorney and Clerk, the duty imposed is one of secrecy, not ( , Fla. Stat. In Legislature In sum, there is nothing in the text of sect' 9 7 from which one can deduce that the Legislature contemplated a member of the 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 State Attorney and the Clerk (assuming that, as pleaded by The Post, they hav currents) from disclosing the documents without first being ordered to do so b ourt4ll Reading section 90527 as creating a private cause of action against the to A 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 UDC p construe the unambiguous language of section 90527 in a way that would extend its I press 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 Holiv v. Auld. 450 So 2d 217. 219 (Fla. 198411 # Conclusion Based on the foregoing, the Court finds Count II of The Post's First Amended Complain Trust be dismissed with prejudice as it pursues a nonexistent cause of action under section 90527. 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 H 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 Au me t alm Beach County's and Sharon R. Bock, as Clerk & Comptroller of Palm Beac p Co 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 II o first Amended Complaint is hereby DISMISSED with prejudice. DONE AND ORDERED, in West Pa Palm Beach County, Florida this 8th day of June, 2020. > 40(xx.mei • 4 Inseittici Hata Meat Chief ely go 50-2019•CA•014661-XXXX•MB 06/08/2020 KrIsta Marx Chief Judge # COPIES TO: No Address Available No E-mail Address Available DOUGLAS A. WYLER 961687 GATEWAY BLVD doug.wyler®comcasthet SUITE 201-I FERNANDINA BEACH, FL W The Cw notes that, if there was a court order directing the State Attorney or the Clerk to disclose records and the State Attorney or the Clerk refused, the remedy for disobeying a court order is contempt or, in some Stances, a mandamus proceedings — not a civil lawsuit. MICHAEL GRYGIEL MICHAEL J. GRYGIEL NICOLE R. FINGERHUT NINA D. BOYAJIAN NINA D. BOYAJIAN STEPHEN A. MENDELSOHN, ESQ 32034 54 STATE STREET 6TH FLOOR ALBANY, NY 12207 No Address Available POST OFFICE BOX 229 WEST PALM BEACH, FL 33401 No Address Available 1840 CENTURY PARK EAST SUITE 1900 LOS ANGELES, CA 90067 5100 TOWN CENTER CIR SUITE 400 BOCA RATON, FL 3 GRYGIELM@GTLAW.COM grygielm@gtlaw.com CLERK E-SERVICE@MYPALMBEACH CLERK.COM nfingerhut@mypalrnbeachclerk. corn boyajianri@gtla riveraal@gt1 No E-n\*. Available lsolms@gtlaw.com ®gtlaw.com service@gtlaw.com # EXHIBIT “C” # EXHIBIT “C” Stephen A. Mendelsohn Tel 561.955.7629 Fax 561.659.9119 mendelsohnegtlaw.com June 23, 2020 Douglas A. Wyler Jacob Scholz & Wyler, LLC 961687 Gateway Blvd. Suite 201-1 Fernandina Beach, Fl. 32034 Re: CA Florida Holdings, LLC v. Dave Aronberg ei at Case No. 2019-CA-014681 Dear Mr. Wyler: We are in receipt of your letter of June 8, 2020 with y In your letter and your proposed motion, you firm of Greenberg Traurig, P.A. should be li Attorney Aronberg after the date of your I (a) and (b) for support. As shown below and we expect that if the State Attom ed Fla. Stat. section 57.105 motion. Florida Holdings, LIE and the law attorneys' fees to be incurred by State letter cites to Fla. Stat. sections 57.105(1) o basis for a Fla. Stat. section 57.105 motion, make such a motion, the court should deny it. Your letter omits a citation to may not be awarded where th reversal of existing law or the es a reasonable expectation 5(3). Subsection 57.105(3Xa) provides that sanctions good faith argument for the extension, modification or shment of new law, as it is applied to the material facts, with " We have such a good faith argument. Contrary to your lysis of Fla. Stat. section 905.27, there are actually three instances where a court may ord' se of grand jury materials. As we argue, the court may order release "in furtherance t. just e.' There are few cases in Florida reviewing this provision and its scope. It is an open t t uestion as to whether the court may order release of grand jury transcripts to them r both the statute and the First Amendment to the US Constitution in furtherance of justice. e statutory language you cite refers to instances where a person is seeking grand jury materials for use in a civil or in a criminal case. In these limited situations, the statute allows for such uses and for no other reason. However, the statute does not state, as you assert, that where the media seeks grand jury materials based upon its constitutional standing, which the Circuit Court acknowledged at the June 2, 2020 hearing includes The Palm Beach Post, that the statutory Greenberg thaurig, P.A. I Attorneys at Law 5100 Town Center Circle I Stite 400 I Boca Raton, Florida 33486 I T +1 561.955.7600 I F +1 561.338.7099 Albany. Amsterdam. Atlanta. Austin. Berlin: Boot Raton. Boston. Chicago. Dallas. Delaware. Denver. Fon Lauderdale. Houston. Las Vegas. London: Los Angeles. Mexico City: Miami. Milan: Minneapolis. Nashville. New Jersey. New York. Northern Virginia. Orange County. Orlando. Philadelphia. Phoenix. Sacramento. San Francisco. Seoul' Shanghai. Silicon Valley. Tallahassee.Tampa. Tel Aviv: Tokio: Warsaw: Washington, D.C. West Palm Beach. Westchester County. use limitation you cite applies. No reported Florida case has addressed this issue and there is a good faith basis for our view of Fla. Stat. section 905.27 Your letter also argues that sanctions are applicable because the State Attorney has alleged that it does not possess the Jeffrey Epstein grand jury transcripts. This allegation is also contained in the State Attorney's Answer. Assuming that the State Attorney does not currently have physical possession of the Epstein grand jury materials, which has yet to be demonstrated, this does not end the matter. The State Attorney was named as a party not simply as a custodian of grand jury records. The State Attorney was named in his official capacity as his office has "as its *primary* interest the protection of its grand jury system." [Italics in original.] In re Grand Jury Proceedings, 832 F. 3d 554, 559 (11{sup}`th` Circuit 1987). In that case, the US petitioned a state judge to order the State Attorney to turn over grand jury transcripts. The State Attorney argued against their release citing to Fla. Stat. section 905.27. Later, a federal grand jury subpoenaed the Broward County State Attorney for delivery of state grand jury testimony. The Broward State Attorney advised the federal court that it would produce the transcripts, thereby demonstrating that while it may not have physical possession of the materials, he had legal authority to obtain and deliver them. It should also be noted that the State Attorney moved to quash the subpoena arguing that it was unlawful under Florida law and Fla. Stat. section 905.27. This case indicates that where one seeks grand jury materials, the relevant State Attorney is a necessary party in order to protect the grand jury that the Office of State Attorney supervised and to make arguments, if need be, against release of the grand jury materials. These are some of the same reasons why the State Attorney was named in this case. Also, assuming the State Attorney does not have physical possession of the grand jury materials, there is nothing in Florida law that prohibits the State Attorney from requesting that the Clerk provide copies to the State Attorney. Chapter 905, Fla. Stats. does not contain a prohibition against a State Attorney demand that the Clerk grant his office access to grand jury materials, even after a criminal case has concluded. Upon information and belief, the Clerk's office maintains a log that tracks release of grand jury materials to the State Attorney upon its request. Please confirm whether the State Attorney has accessed grand jury materials from the Clerk's office in other instances or that it has never done so. If the Clerk has such a log, then its contents should be discoverable, or subject to Florida Public records laws. Correspondence to Douglas A. Wyler June 23, 2020 Page 3 For these reasons, we decline your Fla. Stat. section 57.105 demand that the case be dismissed against the Office of the State Attorney. We expect that your demand will be withdrawn. Thank you, Very truly yours, */s/Stephen Mendelsohn* Stephen Mendelsohn SAM:ls ACTIVE 51081659v1 # EXHIBIT “D” # EXHIBIT “D” # IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA v. CASE NO.: 19-CA-014681 DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida. cos # DEFENDANT. DAVE ARONBERG'S MO Ol ATTORNEYS' FEES Defendant, DAVE ARONBERG, as State y f Palm Beach County, Florida, by and through the undersigned attorneys, moves tlt Qurt, ursuant to Florida Statutes, Section 57.105, to award him reasonable attorneys' f defense of Plaintiff's First Amended Complaint, (the "Complaint"), and as grotmCd served a , would show that on June 8, 2020, Plaintiff was copy of this Motion, together ' a letter from the undersigned attorney, in accordance with subsection (4) of th bov ute, demanding dismissal of the Complaint, at least 21 days prior to the filing of • n. YYYY In said letter, Defendant's attorney advised Plaintiff of the facts which establish mplaint is without support of the facts or the law. WW REFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plaintiff's attorneys to pay said Defendant's attorneys' fees incurred herein after service of this Motion. # CERTIFICATE OF SERVICE I hereby certify that on this 1st day July, 2020, the foregoing was electronically filed via the Florida E-File Portal for electronic service on the parties of record herein. SCHOLZ & WYLER, LLC /s/ Douglas A. Wyler Arthur I. ME, Esquire At Fla. Bar No.: 108249 its Richard J. Scholz, Esqui Fla. Bar No.: 002126 Douglas A. Wyle Fla. Bar No.: 11 Femandi h, Florida 32034 (904) ( 961687 Gateway ., Suite 201-I Gs' zlaw@comcast.net eys for Defendant, Dave Aronberg # EXHIBIT “E” # EXHIBIT “E” # IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida. # DEFENDANT DAVE ARONBERG'S MOTION Me Y FINAL JUDGMENT AND MEMORANDUM OF LAW I T THEREOF CASE NO.: 19-CA-014681 CO SA cc Defendant DAVE ARONBERG, as S te tto ey of Palm Beach County, Florida, (hereinafter "Aronberg"), by and through co lo and pursuant to Rule 1.510 Florida Rules of Civil Procedure, moves for entry of judgment in his favor as to the remaining claim for Declaratory Relief in Plaintiff's F C r ed Complaint', and in support thereof states as follows: # STATE OF THE UNDISPUTED FACTS The following is a s et ent of facts material to this motion for summary judgment as to which there is no genum - I of Plaintiff's First Amended Complaint, (hereinafter "Complaint"), filed January 1t 202U, seeks Declaratory Relief pursuant to Section 86.011, Florida Statutes. - 2. Specifically, Plaintiffs Count I seeks a court order "declaring that pursuant to Fla. Stat. Section 905.27(1)(c) and the Court's inherent authority, The Palm Beach Post may gain access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury" that On Junc 8, 2020, this Court entered its Order Granting Defendants Motion to Dismiss Count II of the Plaintiff's First Amended Complaint with Prejudice. "Clerk"). 4. Plaintiff seeks the above-referenced declaratory relief, including copies of the Requested Materials, from both Aronberg, as State Attorney of Palm Beach Cou lorida, and Defendant, Sharon R. Bock, as Clerk and Comptroller of Palm Beach County, Fl dli ((yhereinafter the 0 was empaneled during the first Jeffrey Epstein, (hereinafter "Epstein"), sex abuse investigation, (hereinafter "Requested Materials"). Complaint pg. 20 3. Plaintiff seeks to use the Requested Materials "for the purpose of informing the public." Id. 5. Neither Aronberg nor the Office of the State Attorney for C F.heenth Judicial Circuit, ("SAO"), is in control, custody, or possession of the Request A as Exhibit "A". 4. Aronberg Aff. ¶ 3, attached 6. The declaratory relief sought by t i seeks materials that are impossible for Aronberg or the SAO to produce. Exhibit "A 7. Neither Aronberg nor as the legal authority to obtain and/or deliver the Requested Materials. Exhibit "A" . 8. The undisputed f t forth above in paragraphs 6-7 have been repeatedly made evident by Aronberg to the r iff and the public through not only the pleadings and correspondence in this matter, but }trough an office press release and Aronberg's public social media accounts. Exhibit" either Aronberg nor the SAO has the authority to demand that the Clerk grant the SAO access to grand jury materials after a criminal case has concluded. Exhibit "A" ¶ 7. 10. During Aronberg's administration, neither he nor his office has accessed grand jury materials from the Clerk's office in this or any other instance. Exhibit "A" ¶ 8. 11. As provided in section 905.17(1), Florida Statutes (2020), the Clerk has sole custody and possession of the Requested Materials, which can only be released by the Clerk pursuant to an order of the Court. Exhibit "A"1 9. # MEMORANDUM OF LAW # I. Legal Standard Governing Motions For Summary Judgment "The judgment sought shall be rendered forthwith if the pleadings, deposit' answers to interrogatories, and admissions on file together with the affidavits, if any, show th is no genuine issue of material fact and that the moving party is entitled to a judgmen er of law." Rule 1.510, Fla. R. Civ. P. It is appropriate to resolve a declaratory action on my judgment when, as here, the decree seeks a legal interpretation of a statute. Rahimj 1 Discoveries, Ltd., LLC, 252 So. 3d 804 (Fla. 5th DCA 2018). # IL The Requested Materials Can Only Be Order Ned y The Clerk Pursuant To A Court Notably, neither Arenberg nor the O is control, custody, or possession of the Requested Materials. Exhibit "A" 13. None ant to Section 905.27(1)(c), Florida Statutes and the Court's inherent authority, Plain ff a court order declaring that Aronberg provide copies of the Requested Materials to Th tZ isir lm Beach Post for the purpose of informing the public. Complaint pg. 20-21. Plaintiff i king eclaratory relief alleging its entitlement to the Requested Materials pursuant to th e g justice" exception to grand jury secrecy. § 905.27, Fla. Stat. (2020). nging its declaratory relief claim pursuant to Section 905.27, Florida Statutes, "a single part dfa statute should not be read in isolation." Universal Prop. & Cas. Ins. Co. v. Loftus, 276 So. 3d 849, 851 (Fla. 4th DCA 2019). "Instead, `all parts of a statute must be read together in order to achieve a consistent whole!" Id. (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). Section 905.17(1), Florida Statutes makes clear that grand jury records, like the Requested Materials in this matter, are to be maintained with the Clerk, and can only be released by the Clerk pursuant to a court order. To wit: The stenographic records, notes, and transcriptions made by the court reporter or stenographer shall be filed with the clerk who shall keep them in a sealed container not subject to public inspection. The notes, records, and transcriptions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), An. I of the tate Constitution and shall be released by the clerk only on request by a grand ju by the grand jury or on order of the court pursuant to s. 905.27. Section 905.17(1), Florida Statutes (2020). (Emphasis added.) Text, context, and purpose are the ordinary tools used for disce ing tory meaning, with the overarching principle being "that judges lack the power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms i able and obvious implications. To do so would be an abrogation of legislative power." , the plain language of section 905.17 is clear and unambiguous and, therefore, contro witz v. Plantation Gen. Hosp. Ltd. P 'ship, 959 So. 2d 176, 182 (Ha. 2007). Accordingly, based on the cl a iguous statutory language set forth in section 905.17(1), only the Clerk, not the State At rney ay release grand jury materials pursuant to an order of the court. Thus, it is apparent f 44". Aronberg and the SAO lack the legal authority to obtain and deliver the Requested Materia xhib7 "A" ¶ 5. Likewise, the declaratory relief sought by the Plaintiff seeks materials that ible for Aronberg or the SAO to produce. Exhibit "A" ¶ 4. Again, the Clerk has sol d possession of the Requested Materials. These facts have been repeatedly made evident by nberg to the Plaintiff and the public through not only the pleadings and correspondence in this matter, but also through an office press release and Aronberg's public social media accounts. Exhibit "A" ¶ 6. Although the above-referenced statutory authority illuminates the fact that only the Clerk may release grand jury records like the Requested Materials herein, it remains significant to note that neither Aronberg nor the SAO has the authority to demand that the Clerk grant the SAO access to grand jury materials after a criminal case has concluded. Exhibit "A" 1 7. Hence, during Aronberg's administration, neither he nor his office has accessed grand jury materials from the Clerk's office in this or any other instance. Exhibit "A" ¶ 8. # HI. Conclusion The ultimate facts underlying the lawsuit are not in dispute. The Court is ful ered to dispose of this matter based on application of the undisputed facts to the plain ge of Section 905.17, Florida Statutes, which renders the Plaintiff's action for declaratc impossibility for Aronberg to perform and that must be denied as a matter of law. WHEREFORE, Defendant, DAVE ARONBERG, as rney of Palm Beach County, Florida, respectfully requests that this motion be grantteed\$ t,5 immary final judgment be entered N in his favor consistent with this motion, and here et lt t Ily requests that this Court dismiss the Complaint with prejudice and grant such othe ' f, i t1uding attorney's fees and costs, as this Court deems fit and proper under the circums # R IFI ATE F ERVI E I HEREBY CERTIFY th is 18th day of August, 2020, a copy of the foregoing has been electronically filed with the ,ittiao E-File Portal for e-service on all parties of record herein. AS No.) SCHOLZ & WYLER, LLC /s/ Douglas A. Wyler ThArtInrEsq. Fla. Bar No.: 10249 Richard J. Scholz, Esq. Fla. Bar No.: 0021261 Douglas A. Wyler, Esq. Fla. Bar No.: 119979 961687 Gateway Blvd., Suite 201-I Fernandina Beach, Florida 32034 (904) 261-3693 (904) 261-7879 Fax Primary: jacobsscholzlaw@comcast.net *General Counsel for the Florida Prosecuting Attorney's Association* # EXHIBIT “A” # EXHIBIT “A” # IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida. STATE OF FLORIDA COUNTY OF PALM BEACH CASE NO.: I9-CA-014681 II # AFFIDAVIT OF DAVID AROV 0 Before me, the undersigned authority personally apps DAIrID ARONBERG, being first duly sworn, states: - I. My name is David (Dave) Ar6n add I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County, Florida, si 13, a Defendant in the above-captioned matter. - 2. Plaintiff is seeking declariT ry relief, pursuant to Ha. Stat. 905.2 I( I )(c) and the Court's inherent authority, allowing Plaintiff access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury, (the "Requested Materials"), and to use those materials for the purpose of informing thepublic. - 3. Despite plaintiff's above-described action for declaratory relief, neither myself nor the Office of the 'ta ttomey for the Fifteenth Judicial Circuit, ("SAO"), is in control, custody, or possession of the R M rials. As such, the declaratory relief sought by the Plaintiff seeks materials that are impossible y office to produce. - 5. To be clear, neither myself nor the SAO has the legal authority to obtain and deliver the Requested Materials. - 6. I have repeatedly made these facts evident to the Plaintiff and the public through not only the pleadings and correspondence in this matter, but also through an office press release and my public social media accounts. 7. Despite the contentions of Plaintiff, neither myself nor the SAO has the authority to demand that the Clerk grant the SAO access to grand jury materials after a criminal case has concluded. 8. Moreover, during my administration, neither myself nor my office has accessed grand jury materials from the Clerk's office in this or any other instance. 9. As provided in section 905.17(1), Florida Statutes (2020), the Clerk has sole custody and possession of the Requested Materials, which can only be released by the Clerk pursuant to an order of the Court. FURTHER AFFIANT SAYETH NAUGHT. By: STATE OF FLORIDA COUNTY OF PALM BEACH Sworn to and subscribed before me this 30{sup}`th` day of July, 2020, by DAVID ARONBERG, who is personally known to me or has shown \_\_\_\_\_ as personal identification. Notary Public Notary's Stamp or Seal LATOSHALOWE-GOODE Commission # GG 967815 Expires May 28, 2024 Rended This Subject Notary Sendon