# 114 THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT TN AND FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-XXXX-MB

Publisher of THE PALM BEACH POST,

DIVISION: AG

Plaintiff,

v.

DAVE ARONBERG, as State Attorney of Palm Beach County, Florida; SHARON R. BOCK, as Clerk and Comptroller of Palm Beach County, Florida,

Defendants.

7Th

# MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS. LLC IN OPPOSITION TO THE STATE ATTORNEY'S FLA. STAT. SECTION 57.105 MOTION
Plaintiff, CA Florida Holdings, LLC, publisher of the largest and most prominent newspaper in Palm Beach County, Florida, The Palm4ach Post, submits this Memorandum of Law In Opposition to the State Attorney's Fla<t ta . .105 Motion, and for the reasons set forth below, the State Attorney's Motion should Ce em ts), with prejudice.

# I. THE PU OSE OF THE PALM BEACH POST'S SUIT
As extensively detailed in its Amended Complaint, the criminal prosecution of the late Jeffrey 7 \ Epstein by former State\ ,Attorney Barry Krischer, Palm Beach Circuit Court Case No. 50-2008-CF-I AXXXMHSra erious and troubling questions as to whether it was properly conducted. The Amended mplaint provides numerous examples of the prior State Attorney's "highly unusual" in the words of the former Town of Palm Beach Police Chief— treatment of the numerous complaints of sexual misconduct and assault made against Epstein, including but not limited to the former State Attorney's refusal to cooperate with the investigation of the Town of Palm Beach Police Department, his focus on only one underage sexual assault victim though there were other known victims, his use

of information provided by Epstein's defense team to undermine the State's witness and his approval of a plea agreement and sentence that enabled Epstein to spend his days on furlough where he likely committed additional sexual crimes. While much of the Epstein saga is a matter of public record, the public still does not know how former State Attorney Krischer used the grand jury process — and the secrecy that comes with it — to shield Epstein and his equally powerful and corrupt accomplices from the public and justify Epstein's lenient treatment. Access to the Epstein gran reveal how the instrumentality of the grand jury was used in this case, w matter of vital public concern. terials will questionably a

# H. THE STATE ATTORNEY'S 57.105 MOTION IMP E SEEKS TO DETER THE PALM BEACH POST FROM SERVIN PUBLIC INTEREST
In moving pursuant to Fla. Stat. § 57.105 agains\ current State Attorney improperly seeks to deter proceeding. Whether the current State Attom or is trying to protect grand jury secret Beach Post and its counsel, the m is inquiry into the Epstein grand jury ated by animus against The Palm Beach Post ortant. What is important, and troubling, is that the State Attorney does not want toC ai novel and important public issues on their merits, but instead is using the threat of sans o suppress The Palm Beach Post's investigative reporting.

The State Atto ey wered the Amended Complaint, and disclaimed possession of the Epstein grand ju Is, he has not moved for summary judgment on the remaining claim; Count I — Declara ent. Further, the State Attorney has now shown — and presumably cannot show — that he 1 the authority under Chapter 905, Fla. Slats., to request and obtain access to the Epstein grand jury materials from the Clerk of the Court (the "Clerk").

In response to The Palm Beach Post's Request to Produce, the Clerk's office recently provided internal email communications, but none were relevant to the Request. According to its officials, the Clerk's office does not maintain logs or registers and that it is impossible to determine whether the State Attorney's office sought or obtained access to the Epstein grand jury materials during or after its Epstein prosecution. Given this uncertainty, The Palm Beach Post will serve di demands upon the State Attorney's office to determine whether it accessed or exercis over the grand jury materials.

Also, the Clerk, who admittedly has both possession an trTbf the Epstein grand jury materials, has not followed the State Attorney's lead in see 4 to lion The Palm Beach Post: the Clerk has neither provided the 21-day safe harbor cc • ofe i?.n \_ ined in Section 57.105 nor has she moved for sanctions. The Clerk's decision supp \ e , erence that the State Attorney is using the threat of sanctions to avoid litigating the c on i erits. e s in

# HI. THE STATE ATTOR Itl REPRESENTS THE COURT'S JUNE 8, 2020 ,, ORDER
In its bare-bones Section Let )05 motion, the State Attorney's main argument is that this Court's June 8, 2020 Order r ting Defendant's Motions to Dismiss Count II of Plaintiff's First Amended Com t Prejudice (the "Order") held that all The Palm Beach Post's claims are without an a Order does no such thing.

Tho the parties' motion papers and the oral argument on June 2, 2020 covered a range of complex statutory issues, the Order addresses only one—whether Fla. Stat. § 905.27 creates a private right of action. This issue was not the principal focus of either the State Attorney's or the Clerk's motions to dismiss Count II. Instead, they primarily asserted that The Palm Beach Post lacked standing under section 905.27 to seek grand jury materials "in furtherance of justice." The State

Attorney and the Clerk argued that the statute prohibited the use of grand jury materials except for limited purposes in a civil or criminal proceeding in which the movant is a party. Because, according to the State Attorney and the Clerk, The Palm Beach Post did not intend to use the Epstein grand jury materials in a civil case in which it was a party, nor in a criminal case, the State Attorney and the Clerk asserted it lacked standing.

The Palm Beach Post, as set forth in its Opposition to Defendant Dave As State Attorney of Palm Beach County, Florida's Motion to Dismiss Count first Amended Complaint ("Plaintiff's Opposition"), views § 905.27 as encompassin use by a party in her civil case; (2) use by a party in her criminal as a representative of the public "in furtherance ofjustice \ " rgc8 i ed by the First Amendment to the U.S. Constitution and the Florida Constitution. able scenarios—(I) or (3) use by the media

This Court, in its Order, did not ad k ments, though it did acknowledge during oral argument that The Palm Beach Pos sta ling-page 8 of the transcript. Rather, the Order focused solely on whether § 905.27 a rmplied private right of action and held that it did not. See Order at 3. That ruling did n — no less apply — the statute's "in furtherance of justice" exception to grand jury s o the Epstein case. Given this Court's narrow ruling, the State Attorney wrongly tha the Court determined that the "justice" provision of § 905.27 has been adjudicated ag e Palm Beach Post, and that Count I is frivolous.

# E ISSUES RAISED IN COUNT II ARE NOVEL AND COMPLEX
As set forth above, this Court limited its inquiry to "whether a cause of action under section 905.27 should be judicially implied. [citation omitted]." See Order at 3. In determining that the Florida legislature did not intend to create a statutory cause of action and remedy, this Court addressed a novel and complex issue. As such, section 57.105, on its face, is not implicated.

Section 57.105(1Xa)-(b) provides that a court shall award fees to the prevailing party if:

the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of then-existing law to those material facts.

Section 57.105(3Xa) further provides that monetary sanctions shall not be awarded

if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modificatioth or reversal of existing law or the establishment of new law, as it a to the material facts, with a reasonable expectation of [Emphasis added.]

The Florida Supreme Court has held that attorneys' fees shout not awarded unless there is "a total or absolute lack of a justiciable issue, which is tan to a finding that the action is frivolous ... and so clearly devoid of merit both on the f I as to be completely untenable." Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (quoting Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501, 505 (Fla. 1982)). ssue is novel and complex, sanctions under section 57.105(a) may not be imposed. Marina, LLC v. Casamayor, 166 So. 3d 879 (Fla. 3d DCA 2015).

It cannot be contested thaCir der rejecting a section 905.27 implied private right of action for the media is a case of ft IcZet Kpression; indeed, neither this Court nor the State Attorney and the Clerk cite to any i previously resolved this issue.

In t e Palm Beach Post presented various reasoned arguments why section 905.27 creates a p to right of action in favor of the media on both constitutional and statutory grounds. See Plaintiff's Opposition at 10-15. The Palm Beach Post first analyzed the Florida Statutes themselves and U.S. Supreme Court case law, both of which confirm that Florida's grand jury secrecy laws are not absolute. See Plaintiff's Opposition at 10-11; Butterworth v. 494 U.S. 624, 626 (1990) (section 905.27 unconstitutional to the extent it prohibits grand jury witnesses from disclosing their own testimony).

Florida has also held that the media is entitled to know of grand jury reports that fmd public corruption, notwithstanding section 905.27 secrecy. See Miami Herald Pub. Co. v. Marko, 352 So. 2d 518 (Fla. 1977). In Marko, the Florida Supreme Court recognized that the media plays a vital role in informing the public of the misdeeds of public servants and statutory grand jury secrecy cannot outweigh the public's right to be informed through its constitutionally protected ne rting.

Here, The Palm Beach Post alleges overwhelming facts that raise s ' ions as to why Epstein was prosecuted and sentenced in such a highly unusual and t e t ero er. At the heart of this issue is the public's right to know, through the media, whe <it) the orneys then working the case at the State Attorney's Office fulfilled their public du • r either corruptly or recklessly by misusing the grand jury process.

In this regard, The Palm Beach Post an it \ ion 905.27 and presented a well-reasoned argument supporting the existence of a p ' ten of action, it properly focused on the interplay between section 905.27's allowance r 's ure "in furtherance of justice", on the one hand, with t aw the public's right to know throu ia under the First Amendment and the Florida Constitution.

This Court did no ssly address The Palm Beach Post's reliance on a combined constitutional and t ry asis for a section 905.27 private right of action. Instead, it focused exclusively u.' ion 905.27 and in holding that the "in furtherance of justice" exception is constrai e statute's other secrecy provisions.

The State Attorney's section 57.105 motion also ignores the constitutional role of the media in informing the public. The fallacy of a purely statutory analysis, without consideration of The Palm Beach Post's constitutional rights and obligations in conjunction with section 905.27, is that justice can never be furthered, as the statute authorizes, unless the media is able to provide facts to the public as to whether its officials may have violated their oaths.

The Palm Beach Post acted in good faith and presented reasoned bases to justify the interplay between the federal and state constitutions and section 905.27. It properly sought to enforce the rights of the media in the Epstein case through the application of complex constitutional and statutory arguments to create new law. Though the Court dismissed one of The Palm Beach Post',c two claims, such partial dismissal cannot support the State Attorney's section 57.105 motion.

# V. THIS COURT'S LIMITED ORDER DISMISSING COUNT II DIQ1rUT RESOLVE COUNT I
The State Attorney's threadbare section 57.105 motion ass at this Court's Order extinguishes Count I — Declaratory Judgment, and renders C volous. The State Attorney is demonstrably wrong.

Count H alleges that The Palm Beach Post \ ns utional and statutory standing for it to overcome grand jury secrecy provisions "in of justice." Count I, in contrast, does not allege a section 905.27 private right nstead, Count I seeks a declaration that the U.S. Constitution's First Amendment lorida Constitution's analogous provisions, along with section 905.27, provide ample for this Court to direct the release of the Epstein grand jury materials to The Palm Beac st, or require the Court to conduct an in camera examination of the same, to balanc a i 1ic's right to know through a free media with Florida's qualified statutory interest in secrecy.

The ssues have yet to be addressed by a dispositive motion or by either Defendant. The State Attorney's motion to dismiss Count H focused exclusively on section 905.27 and did not acknowledge nor address any constitutional issues. The same is true of the Clerk's motion to dismiss. Concomitantly, as stated above, the Order was limited to the four corners of section 905.27, and expressly did not consider The Palm Beach Post's constitutional arguments.

# VI. THE STATE ATTORNEY IS A PROPER PARTY
The State Attorney also argues that it does not possess the Epstein grand jury materials, and based upon this unswom claim, sanctions are also justified. Again, the State Attorney is incorrect, as there is no factual or legal basis to impose sanctions upon its unsupported allegation.

While the State Attorney alleges his office does not currently have physical possession of the Epstein grand jury materials, he has argued, relying on section 905.27, that the should not produce them. By taking a position against disclosure, the State Attorney has,, ect, asserted his right to the secrecy of the Epstein grand jury materials. Stated another the statutory right to prevent access to the Epstein grand jury mat s; IRtlhverse of such a claimed right is that he has the right to provide access to the same .a te Attorney claims

The State Attorney's position actually suppo solely a custodian of the grand jury records. R office has "as its primaty interest the prot Grand July Proceedings, 832 F. 2d petitioned a Florida State Attorn Beach Post. He was not named as a defendant in his official capacity as his its grand jury system." [Italics in original.] In re 11th Cir. 1987). In that case, the federal government over state grand jury transcripts. In opposition, the Broward State Attorney argued agai il eir release citing to section 905.27. Later, a federal grand jury served a subpoena upon t ame St? 1 te Attorney seeking grand jury transcripts. The State Attorney advised the federal co he would produce the transcripts, thereby demonstrating that whether or not he has physi\ ession, he had legal authority to obtain and deliver them pursuant to the subpoena. For these same reasons, the State Attorney, in his official capacity, is a necessary party.

Also, assuming the State Attorney does not have physical possession, Florida law does not prohibit his office from requesting Epstein grand jury materials from the Clerk. Indeed, as the State Attorney is well aware, Chapter 905, Fla. Stats. does not bar any State Attorney from accessing grand jury materials, even after a defendant has been convicted and sentenced.

# VII. THE STATE ATTORNEY'S MOTION IS ADMITTEDLY PREMATURE
The State Attorney also admits that his sanctions motion — which is based on the motion to dismiss proceedings and resulting Order — is "premature". See Exh. "A" attached hereto for a copy of Douglas Wyler's September 18, 2020 email. As set forth above, those proceedings and the Order were focused on The Palm Beach Post's statutory claim, not the declaratory relief claim. The State Attorney acknowledges that his motion is not ripe because it first requires this Co solution of his later-filed summary judgment motion. Unlike his motion to dismiss, ' ary judgment motion addresses The Palm Beach Post's remaining declaratory action a lief.

The State Attorney's admission demonstrates that his ci,gA 'on contrary to the express language of section 57.105. As stated above, section 57.1 1( examines a claim or defense "when initially presented to the court". Because the • flue State Attorney's sanctions motion I i t admittedly depend upon this Court's resolutio ; Sks' , -unscheduled summary judgment motion, the State Attorney's sanctions motion is p ct ....e tune. eznek v. Chase Home Fin., LLC, 152 So. 3d 793 (Fla. 3d DCA 2014). As a premat urt o • , • should be denied.

WHEREFORE, The Pal eac ost respectfully requests that the State Attorney's Fla. Stat. section 57.105 motion be a r • , with prejudice, and that the Court grant such other relief it deems just and proper. YY +0 Respectfully submitted,

GREENBERG TRAURIG, P.A.

Attorneys for CA Florida Holdings, LLC, Publisher of The Palm Beach Post

Stephen A. Mendelsohn, Esq. 5100 Town Center Circle, Suite 400 Boca Raton, Florida 33486 Telephone: (561) 955-7629 Facsimile: (561) 338-7099

By: Is/ Stephen A. Mendelsohn

STEPHEN A. MENDELSOHN Florida Bar No. 849324 mendelsohnsegtlaw.com smithl@gtlaw.com FLService@gtlaw.com

By: /s/ Michael J Grygiel MICHAEL J GRYGIEL (Admitted Pro Hac Vice) 54 State St., 6th Floor Albany, New York 12207 Telephone: (518) 689-1400 Facsimile: (518) 689-1499 OS grveielm(a atlaw.com

By: /s/ Nina D. Boval NINA D. BOY (Admitted h dlt e) 1840 Cen' t, Suite 1900 Los A omia 90067 Tel 1) 586-7700 310) 586-7800 aw.com nv. law.com

# C TE OF SERVICE
I HEREBY CERTIFY at ory t is 2nd day of October, 2020, a true and correct copy of the will send a notice o 1,Sectron , service for all parties of record herein foregoing has been filed w e Clerk of the Court using the State of Florida e-filing system, which trop

/s/ Stephen A. Mendelsohn STEPHEN A. MENDELSOHN

**EXHIBIT "A"**

NOTA CONTINUED COPY

From: To: Subject: Date: pnuolas Welee Mendelsohn. SteMen A. Inhkl-FTL4 T) Re: PALM BEACH POST (Epstein) Friday, September 18, 2020 1:11:43 PM

Mr. Mendelsohn:

Again, we will not withdraw the motion. Please let me know when you are available for the case management conference or I will unilaterally schedule the hearing.

Doug Wyler, Esq. =, Scholz & Wyler, LLC 961687 Gateway Blvd., STE 201-I Fernandina Beach, FL 32034 904-261-3693 904-261-7879 (fax) doug.wvIerPrnmract.net

Please be advised that this e-mail and any files transmitted, communication or may otherwise be privileged or con individual or entity to whom they are addressed. If read, copy or retransmit this communication bu dissemination, distribution or copying of this cr nfidential attorney-client s co are intended solely for the the intended recipient, please do not immediately. Any unauthorized tion is strictly prohibited.

From: <MendelsohnS@gtlaw. om> AC(" 1 Date: Friday, September 18, 2dB4l.at 1:04 PM To: "Douglas Wyler, Esq. ug.wyler@comcast.net> Cc: <BoyajianN@ law.co >, <grygielm@gtlaw.com> Subject: RE: PA ACH POST (Epstein)

Cos

Mr. Wyle • • r-ciate your candor in admitting your 57.105 motion is premature.

You mus ithdraw it as the motion has no basis, which you acknowledge, because the court has yet to address the merits of the dispute.

Please do so without further delay.

Thank you.

Sent: Friday, September 18, 2020 11:54 AM

To: Mendelsohn, Stephen A. (Shld-FTL-LT) <MendelsohnS@gtlaw.com>

Cc: Boyajian, Nina D. (Shld-LA-LT) <BoyajianN@gtlaw.com>; Grygiel, Michael J. (Shld-ALB-LT) <grygielm@gtlaw.com>

Subject: Re: PALM BEACH POST (Epstein)

# \*EXTERNAL TO GT\*
Mr. Mendelsohn:

I spoke with my client we will not withdraw our motion for attorneys' fees. Again, we i si that the motion for summary judgment be heard first as it would be premature to have an a hearing when there is no prevailing party and no substantive hearings held since t otion for fees was filed . Being that we are unable to agree on the order of the motions to e h am filing the attached motion to set case management conference. Please see the att v able hearing times for this motion and let me know what works best for you so we ca resolve this matter.

Sincerely,

Doug Wyler, Esq.

Scholz & Wyler, LLC 961687 Gateway Blvd., STE 201-I Fernandina Beach, FL 32034 904-261-3693 904-261-7879 (fax) doug.wylerPrnmeast.nej

4s)

Please be advised that this e-m a(and and files transmitted with it are confidential attorney-client communication or may otherwis bavdrivileged or confidential and are intended solely for the individual or entity to wh are addressed. If you are not the intended recipient, please do not read, copy or retran it th communication but destroy it immediately. Any unauthorized dissemination, d4i tion or copying of this communication is strictly prohibited.

From: <JViendelsohnSPgtlaw.conp

Date: Wednesday, September 16, 2020 at 10:04 AM

To: "Douglas Wyler, Esq." <doug.wylerPromeast.net>

Cc: <finvajianNegtlaw.corn>, <grvgielmegtlaw co01>

Subject: PALM BEACH POST (Epstein)

Mr. Wyler, please let us know if the State Attorney will withdraw its sanctions motion without prejudice.

If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at [postmaster@gtlaw.com](mailto:postmaster@gtlaw.com), and do not use or disseminate the information.

NOT A CERTIFIED COPY