Court filing, 2020

Document EFTA 02732921¶

through the undersigned counsel, hereb Opposition to the State Attorney’ Defendant, DAVE ARONBERG, as to A icy of Palm Beach County, Florida, by and this esponse to Plaintiff’s Memorandum of Law in Section 57.105 Motion, and in support thereof states:¶

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶

v.¶

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

OSA¶

C¶

DEFENDANT. DAVE ARONBERG’S RESIQ1NS O PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE STATE ATTORNEY’S FLA. STAT. SECTI I .105 MOTION¶

L REGARDLESS OF TIFF’S PURPOSE IN BRINGING THE INSTANT LAWSUIT, IT IMP IBLE FOR THE STATE ATTORNEY TO PRODUCE THE RECORD PLAINTIFF DEMANDS BE PRODUCED.¶

From the4i1 t of this litigation the State Attorney has consistently maintained that neither he nor hit Tai has possession, custody or control of the Epstein grand jury materials, erials’), sought by Plaintiff. Nonetheless, the State Attorney has no objection, and never has had any objection, to the Clerk releasing the records sought by Plaintiff; as disclosure of the Requested Materials sought herein lies solely within the providence of the Clerk pursuant to an order of the Court.¶

Section 905.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials can only be released by the Clerk pursuant to a court order.¶

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), Art. I of the State Constitution and shall be released by the clerkonly on request by a grand jury for use by the grand jwy or on order of the court pursuant to s. 905.27;¶

Text, context, and purpose are the ordinary tools used for disce with the overarching principle being that “judges lack the power t con e an unambiguous statute in a way which would extend, modify, or limit its terms or its reasonable and obvious implications. To do so would be an abrogati o g ative power.” Id. Accordingly, here, the plain language of section 905.17 is cl biguous and, therefore, controls. See, Horowitz v. Plantation Gen. Hosp. Ltd. P 2d 176, 182 (Fla. 2007). “iS vtory meaning,¶

Again, the State Attorney h Requested Materials should th ulpnt an order to that effect. To be clear, however, it is impossible for State Attorney to ply with the relief sought by Plaintiff in its remaining claim for declaratory relic as he o s not possess or control the Requested Materials and is statutorily barred from a tion to the Clerk producing and disclosing the¶

II. E ATTORNEY’S FLA. STAT. SECTION 57.105 MOTION WAS RLY MADE AND IN NO WAY SEEKS TO DETER THE PALM BEACH FROM SERVING THE PUBLIC INTEREST.¶

To be clear, the State Attorney has no other desire than to litigate on the merits the instant lawsuit’s remaining issue of declaratory relief prior to a determination of his Fla. Stat. § 57.105 Motion for Attorneys’ Fees (“57.105 Motion”).’ Furthermore, despite Plaintiff’s disingenuous and self-aggrandizing contentions, in no way, shape, manner, or form is the State Attorney using the threat of sanctions to “suppress The Palm Beach Post’s investigative reporting” or to “avoid litigating the case on the merits” or to “deter media inquiry into the Epstein grand jury proceeding.” See, PL Memorandum pg. 2-3.¶

Rather, the State Attorney was properly and entirely within his rights to is June 8, 2020, Fla. Stat. § 57.105 Demand Letter and inform Plaintiff of his be ,,,n. •gh e Amended Complaint and its sole remaining count for declaratory relief has n as act or law. See, Exhibit “A”. “Under the statute, the legislature has expressed • ocal intent that where a party files a meritless claim, suit or appeal, the party who ’ Ily required to expend funds for attorneys’ fees is entitled to recoup those f eeci’, it County Conservation Alliance v. County, 73 So. 3d 856, 857 (Fla. 1st D iSc (finding (finding that “Courts are not at liberty to disregard the legislative mandate that co cL…e shal pose sanctions in cases without foundation in material fact or law. The word “s I” • 7.105, Fla. Stat., evidences the legislative intent to impose a mandatory penalty to ge baseless claims, by placing a price tag on losing parties who engage in these activ ction 57.105 expressly states courts “shall” assess attorney’s fees for bringing, or miss, baseless claims or defenses.”). In fact,¶

Secti 05(1) clearly and explicitly confers upon the trial court the authority to a ey’s fees to the prevailing party upon the court’s initiative, if ‘the court t the losing party . .. knew or should have known that a claim or defense wh• initially presented to the court or at any time before trial … [w]as not supported by the material facts necessary to establish the claim or defense.¶

I This Court’s June 8, 2020, Order Granting Defendants’ Motions to Dismiss Count II of Plaintiff’s First Amended Complaint with Prejudice (“Order”) did not address Plaintiff’s Count I for Declaratory Relief. Notably, the State Attorney’s § 57.105 Demand Letter and its accompanying proposed Motion for Attorney’s Fees was served on Plaintiff later in the day of June 8, 2020, after the Court issued its Order.¶

v. M, 47 So. 3d 320, 324 (Ma. 2d DCA 2010).¶

Notably, “[s]ection 57.105 does not require a finding of frivolousness to justify sanctions, but only a finding that the claim lacked a basis in fact or law.” County Conservation Alliance v. County, 73 So. 3d 856, 865 (Fla. 1st DCA 2011). Moreover,¶

The primary purpose of section 57.105(4) is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a clear chance to withdraw a frivolous claim or defense within the sc subsection (1) or to reconsider a tactic taken primarily for the p unreasonable delay under subsection (3). Having the parties polic Ives, instead of requiring judicial intervention on section 57.105 iss o otes judicial economy and minimizes litigation costs.¶

Vanderpol v. Frengut, 932 So. 2d 1251 (Fla. 4th DCA 2006) (f h31 &cause the plaintiff had withdrawn his motion, the defendants were not permittedj6 ail ith or present to the trial court their motion for attorney’s fees).¶

Thus, \ in properly serving his 57.105 d s licit o Plaintiff, the State Attorney also properly put Plaintiff on notice that he would see ctio y filing the 57.105 Motion for Attorneys’ fees if Plaintiff failed to dismiss its a mplaint within 21 days of service of the 57.105 demand letter and motion for orn fees. The course of action taken by the State Attorney actually tracks the specifi ge set forth in the Statute, to wit:¶

seeking sanctions under this section must be served but may or presented to the court unless, within 21 days after service of the challenged paper, claim, defense, contention, allegation, or denial wn or appropriately corrected.¶

Section 57 75(4), Florida Statutes (2020).¶

Accordingly, after receiving Plaintiff’s June 23, 2020, response refusing to the withdraw the remainder of the Amended Complaint and waiting the prerequisite “21 days after service of the motion” the State Attorney’s Motion for Attorneys’ Fees was filed with this Court on July I, 2020. See, Exhibit B. Nothing improper was done by the State Attorney in availing himself of the law set forth in § 57.105 given the circumstances of the instant lawsuit and the State Attorney’s intention to establish that Plaintiff’s claim for declaratory relief has no basis in fact or law.¶

Here, regardless of Plaintiff’s assertions that the State Attorney is “using the threat of sanctions to avoid litigating the case on its merits,” the simple fact of the matter is that Plaintiff failed to withdraw its Amended Complaint against the State Attorney within the 21-day period provided for in section 57.105(4), thus the State Attorney was permitted to file hi 5 Motion for Attorneys’ Fees as sanctions. Again, the filing of the 57.105 Motion C! f , y’s fees was filed as a matter of course and a place-marker to further notify PI State Attorney’s intention to seek sanctions should he prevail on the merits at a e sullfantive hearing.¶

III. REGARDLESS OF THE “JUSTICE” PRO 905.27, FLA. STAT. SECTION 905.17(1) CLERK SHALL RELEASE GRAND J HEREIN. FLA. STAT. SECTION LEAR THAT ONLY THE RDS LIKE THOSE SOUGHT¶

Despite Plaintiff’s assertion, the S \ tto ey has never taken the position that this Court’s June 8, 2020, Order held tha claims are without any merit. Rather, the State Attorney has consistently take a ion that the Order merely dispenses, with prejudice, Plaintiff’s Count II and at th a er discussion pertaining to that claim is immaterial and irrelevant to the re aim for declaratory relief.2¶

Again do 5.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials can only by the Clerk pursuant to a court order. To wit:¶

Thb>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), Art. I of the State Constitution and shall be released by the clerkonly on request by a grand jury for use by the grand jut), or on order of the court pursuant to s. 905.27.¶

{sup}2 Specifically, Plaintiff’s remaining Count I for Declaratory Relief seeks a court order declaring that the State Attorney provide copies of the Requested Materials to The Palm Beach Post for the purpose of infonning the public. See, PP: Amended Complaint pg. 20-21.¶

As stated previously, neither the State Attorney nor his office has possession, custody or control of the Requested Materials. Likewise, the State Attorney has no objection, and never has had any objection, to the Clerk releasing the records sought by Plaintiff, as disclosure of the Requested Materials sought by Plaintiff lies solely within the providence of the Clerk ursuant to an order of the Court.¶

Thus, based on the impossible nature of Plaintiff’s demand of the S t o rney, it was proper to demand withdrawal of Plaintiff’s remaining claim for dec o e ief and serve the 57.105 Motion for Attorneys’ Fees due to Plaintiff’s claim: ‘n basis in fact or law. Regardless of whether the “justice” provision of § 905.27 djudicated, Plaintiff’s Count II was dismissed with prejudice and its remaining S tDec laratory relief has no basis in fact or law because the State Attorney does not ha ested Materials and § 905.17(1), Florida Statutes explicitly requires that only then release grand jury materials like the Requested Materials and only pursuant to a c¶

IV. THE STATE ATT S FLA. STAT. SECTION 57.105 MOTION IS RELATED ONLY TO INTIFF’S CLAIM FOR DECLARATORY RELIEF AS THIS COURT SED WITH PREJUDICE COUNT II, REGARDLESS OF ANY NOVELTY R OMPLEXITY.¶

Altho urt unambiguously dismissed with prejudice Count II of the Amended Complain oddly acts as though Count II is alive and able to be further argued before this Court. A tionally, Plaintiff either disingenuously or unawaredly argues that the fees sought herein “should not be awarded unless there is ‘a total or absolute lack of a justiciable issue, which is tantamount to a finding that the action is frivolous … and so clearly devoid of merit both on the facts and law as to be completely untenable.’ Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (Fla. 1987).” Rather than the old standard cited by Plaintiff, the amended version of Fla. Stat. § 57.105 “does not require a finding of frivolousness to justify sanctions, but only a finding that the claim lacked a basis in material facts or then-existing law.” County Conservation Alliance v. County, 73 So. 3d 856, 858 (Fla. 1st DCA 2011). See, Long v. AvMed, Inc., 14 So. 3d 1264, 1265 (Fla. 1st DCA 2009) (noting section 57.105 does not require a party to show complete absence of a justiciable issue of fact or law).¶

The court in v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019) further insight and guidance regarding 57.105 sanctions as it explained:¶

The central purpose of § 57.105, Fla. Stat., is, and alwa as , to deter meritless filings and thus streamline the administration and pr edur of the courts. Thus, the post-1999 version of § 57.105 has expanded th ’ ces where fees should be awarded and the purpose is to deter m’ Clings. [The Florida Supreme Court] has also stated that § 57.105 c rtunity to avoid the sanction of attorney’s fees by creating a safe or thdrawal or amendment of meritless allegations and claims. Thcrefort that [The Florida Supreme Court] has viewed even individual allegarns A p of what § 57.105(1) seeks to deter. By “individual allegations,” we are referritig to a series of allegations framing a theory of liability based on a factual scenario that is not supported by law.¶

v. Bailynson, 268 So. 3d 762, 69 (ca. 4th DCA 2019). Taking this into account further detracts from the plausibility la s position, even despite its argument that the issues contained in Count II were “norbki d complex.” Despite Plaintiff’s argument that “[w]here an issue is novel and c pie ctions under section 57.105 may not be imposed” and that even though Count issed with prejudice it was brought in good faith, these arguments do not rise to su 1 basis in fa .or law because it is impossible for the State Attorney to comply with its demand. as to overcome the reality that Plaintiff’s Count I for declaratory relief has no¶

Further, the Ltailynson court provides guidance here as well by explaining that the State Attorney’s 57.105 claim does not have to apply to Plaintiff’s entire action to succeed:¶

Unlike the prior version [of section 57.105], the current version of the statute does not apply only to an entire action, but now applies to any claim or defense. (emphasis added). Because the statute refers to “any claim or defense,” it does not require that the entire action be unsupported by material facts or the application of then-existing case law.¶

v. Ballynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019). Thus, “the revised statute expanded the number of circumstances in which fees should be awarded” and “if an action asserts a theory of liability using more than one, but separate, factual scenarios in support of the theory, and one of the factual scenarios meets the criteria for a 57.105(1) fee sanction because it is n supported by law, the sanction must be ordered.” Id.¶

Thus, notwithstanding any of Plaintiff’s assertions regarding Co nt 11 not only was dismissed with prejudice, but the issues pertaining to it are irrelev o the State Attorney’s 57.105 Motion regarding the lack of any basis in fact or law alp Plaintiffs remaining request for declaratory relief.¶

V. REGARDLESS OF PLAINTIFF’S ITUTIONAL ARGUMENTS, ONLY THE CLERK, NOT THE STATE A IS STATUTORILY AUTHORIZED TO RELEASE THE GRAND JU S SOUGHT HEREIN.¶

To be clear, in no way does Attomey assume, as Plaintiff suggests, that this Court’s Order extinguishes ”frivolous Plaintiff’s Count I for Declaratory Relief. Rather, as the State Attorney’s 5 . demand letter clearly states, Plaintiff’s claim for declaratory relief has no basis¶

Moreo 0 re less of Plaintiff’s continual attempts to revive and make arguments under its Count t ismissed with prejudice and Plaintiff is consequently foreclosed from litigating the issues rein. Thus, despite any constitutional or other argument under Count II, the facts and law remain the same: only the Clerk, not the State Attorney, is statutorily authorized to release the Requested Materials herein.¶

Again, Section 905.17(1), Florida Statutes makes clear that Plaintiff’s Requested Materials can only be released by the Clerk pursuant to a court order.¶

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 State Constitution and ;hall be released by the clerk only on request by a grand jury for use by the grand flay or on order of the court pursuant to s. 905.27.¶

Likewise, it bears repeating, neither the State Attorney nor his office h ossession, custody or control of the Requested Materials; and, the State Attorney has no o ion, d never has had any objection, to the Clerk releasing the records sought by Plain d sclosure of the Requested Materials sought by Plaintiff lies solely within the provid the Clerk pursuant to an order of the Court. Thus, based on the impossible nature o ff’s lawsuit against the State Attorney, it was proper to demand withdrawal of Plain ming claim for declaratory relief and serve the 57.105 Motion for Attorneys’ fees Pl ntiff’s claim lacking any basis in fact or law.¶

VI. THE STATE ATTORNE DISCLOSING THE RE CONSISTENTLY A CUSTODY, CONTR UNDER FLA. STAT. THE RECORD EVER TAKEN A POSITION AGAINST UGHT BY PLAINTIFF, BUT RATHER HAS HAT NEITHER HE NOR HIS OFFICE HAS POSSESSION OF THE RECORDS AND THAT ON 905.17(1) ONLY THE CLERK SHALL RELEASE ONLY PURSUANT TO A COURT ORDER.¶

Oddly, PI possess the Jud es that the State Attorney has made an unworn claim that he does not Materials, when his Affidavit, filed along with his Motion for Summary gust 18, 2020, clearly provides the following sworn statements:¶

1. My name is David (Dave) Aronberg, and I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County, Florida, since 2013, and a Defendant in the above-captioned matter.

2. Plaintiff is seeking declaratory relief, pursuant to Fla. Stat. 905.21(1Xc) 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 the public.

3. Despite Plaintiff’s above-described action for declaratory relief, neither myself nor the Office of the State Attorney for the Fifteenth Judicial Circuit, (“SAO”), is in control, custody, or possession of the Requested Materials.

4. As such, the declaratory relief sought by the Plaintiff seeks materials that are impossible for me or my 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 as the authority to demand that the Clerk grant the SAO access to grand jy i ateri s after a criminal case has concluded.

8. Moreover, during my administration, neither myse office has accessed grand jury materials from the Clerk’s office any other instance.

9. As provided in section 905.17(1), Florid 020), the Clerk has sole custody and possession of the Requested which can only be released by the Clerk pursuant to an order of the

See, Exhibit “C”. Clearly, the matter presently bef i \t lb C is the determination of the State Attorney’s Motion for Summary Judgment, a S 111S t o , , uld he prevail on said Motion a hearing should be scheduled on the 57.105 Moti r A rneys’ Fees. Regardless, the State Attorney is of the belief that Plaintiff is unabl J~its declaratory relief claim against him as Plaintiff’s claim has no basis in fact or la orth at length above.¶

Also, despite the •ncise, and unambiguous language of Section 905.17(1), Florida Statutes, which s d jury materials “shall be released by the Clerk only … on order of the Court,” P attempts to argue that the State Attorney may still have the ability to “access” grand rials and that therefore he is a necessary party to this action. To be clear, there is a great distinction between the ability to “access” and the ability to “disclose” grand jury materials. Nonetheless, the State Attorney swore in his Affidavit that “during my administration, neither myself nor my office has accessed grand jury materials from the Clerk’s office in this or any other instance.” See, Exhibit “C” ¶ 8. Again, even assuming that the State Attorney had the ability to¶

access the Requested Materials, he is foreclosed from making any disclosure pursuant to Section 905.17(1), Florida Statutes, as only the Clerk shall release grand jury materials pursuant to a court order.¶

Based on the foregoing, it is clear that Plaintiff indeed has a valid claim against the Clerk to seek disclosure of the Requested Materials, and for that reason the Clerk has deer ed to move for 57.105 sanctions. Unlike Plaintiff’s case against the Clerk, however, the authority set forth above make clear that it is impossible for the State A produce the Requested Materials demanded by the Plaintiff. This lack of any basis in fact or law as to Plaintiff’s claim for declarat for the sanctions sought by the State Attorney should he ents and his office to ain illustrates the lieefid provides justification e merits of this controversy.¶

VII. THE STATE ATTORNEY’S 57.105 M HEARING OR RULING ON SAID HEARING ON THE STATE JUDGMENT WOULD BE PRE 1 12/ NOT PREMATURE, BUT A ‘1O PRIOR TO A SUBSTANTIVE Y’S MOTION FOR SUMMARY¶

Simply put, Plaintiff’s “the State Attorney’s Motion is admittedly premature” is nothing more tha is ehuous stretch of the imagination. To be clear, the State Attorney never made such an ssion, but rather has consistently argued that “it would be premature to have aA atto fee hearing when there is no prevailing party and no substantive hearings held apparent otion for fees was filed.” See, PI ‘s Memorandum, Exhibit “A”. Plaintiff . Is statement as an admission on the part of the State Attorney, which it clearly was not. Again the 57.105 Motion was not premature and the State Attorney was entirely within his rights to file said Motion based on the statutory instructions set forth in § 57.105(4), Florida. Statutes.¶

Moreover, despite Plaintiff’s false contentions, the State Attorney’s 57.105 Motion is not based on his Motion to Dismiss Count II of the Amended Complaint. As discussed at length above, the 57.105 Motion is based solely on the reality that Plaintiff’s Count I for Declaratory Relief is not grounded in fact or law. Because Plaintiff failed to voluntarily dismiss the remainder of its Amended Complaint, i.e., Count I for Declaratory Relief, the State Attorney filed its 57.105 Motion for Attorneys’ Fees as authorized, and discussed supra, by § 57.105, Fla. Stat. Nonetheless, Plaintiff has purposely misconstrued the filing order of the 57.105 Mo “on and the Motion for Summary Judgment and falsely asserts that the State Attorney “act= that his AS” motion is not ripe.” See, P1’s Memorandum pg. 9.¶

Rather, the State Attorney agrees that the Motion for Su resolved prior to resolving the 57.105 Motion, but the filing of is not unripe merely because it was filed prior to his Moti the State Attorney authorized to file the 57.105 Mot’ i bfre (c the Florida Courts and the Florida Rules of Ci • Ao% {sup}a R. Civ. P. 1.525, Motions for Costs and me rFees, states: 0ent must first be omeys’ 57.105 Motion mary Judgment. Not only is ecifically on statutory instruction, Iso support this position. To wit, Fla.¶

Any party seeking a jud motion no later than 30 dismissal, or the servi notice concludes the acti costs, attorneys’ fees, or both shall serve a ling of the judgment, including a judgment of otice of voluntary dismissal, which judgment or to that party.¶

Florida Rules of Ci f Prol$drfre, 1.525. As provide above, the Florida Rules of Civil Procedure speak only to0 I eadline for Attorneys’ Fees Motions and are otherwise silent as to any other restai filing such motions.¶

It ib Is° significant to point out the manner in which Plaintiff has purposely misconstrued the very language of § 57.105 by omitting the language that hurts its position. Despite, Plaintiff’s claims that “57.105 (1Xa)-(b) examines a claim or defense `when initially presented to the court’, Plaintiff declined to include the remainder of the statutory language, which states “or at any time before trial.” Clearly, the State Attorney is authorized to pursue sanctions under § 57.105 at any time before trial due, as he has, regarding the lack of any basis in fact or law as to Plaintiff’s claim for declaratory relief.¶

Again, the State Attorney was authorized to file the 57.105 Motion because he did not file it with the court until after the prerequisite statutory timeline was satisfied. The 57.105 Motion was filed with the Court to further put the Plaintiff on notice that the State Attorney would seek sanctions should he prevail on the merits of the lawsuit. Just because the 57. otion for Attorneys’ fees was filed prior to the State Attorney’s Motion for Summ: ent does not necessitate a hearing or ruling on the 57.105 Motion prior to a hearing n h — ion for Summary Judgment. See, v. 47 So. 3d 320, 325 (Fla. 2d 01 finding that “a court is typically faced with the decision to impose sanctions for ligation only after the parties’ respective positions have been presented to the co i S, ten would be far removed from the interests ofjud’ c ’ 141so , y to require a hearing on a place-marker 57.105 Motion for Attorneys’ fees as ions ‘or to a hearing on the Motion for Summary Judgment. stantive hearing.”). Likewise, it¶

WHEREFORE, DAVE RO ERG, as State Attorney of Palm Beach County, Florida, respectfully requests th determination of bstantive hearing on the merits take place along with the g party before any hearing or ruling on fees or sanctions herein.¶

CERTIFICATE OF SERVICE¶

RUBY CERTIFY that on this 14th day of October, 2020, a copy of the foregoing has been electronical y filed with the Florida E-File Portal for e-service on all parties of record herein.¶

r Arthu Esq. 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¶

Attorneys for Defendant, Dave Arlberg, and General Counsel for the Flor’ secuting¶

Attorney’s Association As , CO¶

EXHIBIT “A”¶

NOT A CERTIFIED COPY¶

EXHIBIT “A”¶

SCHOLZ 8c. MTYLER, LLC.¶

THE LAW 0” ICES CC ASSOCIATES. P.A. ARTHUR¶

A LIMITED LIABILITY COMPANY OF PROFESSIONAL ASSOCIATIONS¶

ATTORNEYS AT LAW¶

GATEWAY TO AMELIA¶

961667 GATEWAY BLVD.. SUITE LOH¶

FOLVANDINA BEscax, FLORIDA 32034¶

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 Beach County, Case No.: 2019-CA I Go¶

Dear Mr. Mendelsohn:¶

As you are aware our firm represents the irate County, Florida, in the above referenced dismissal of your First Amended Complai is made pursuant to section 57.105, Fl Aronberg, as State Attorney of Palm Beach rpose of this letter is to demand the voluntary mplaint”), dated January 17, 2020. This demand¶

As you know, Section 57¶

RICHARD J. SCII0L2. P.A. RICHARD J. SCHOLZ¶

DOUGLAS A. WYLER. P.A. DOUGLAS A. WYLER¶

• (I) Upon the court’s ra e or motion of any party, the court shall award a reasonable a mey’s ee, including prejudgment interest, to be paid to the prevailing pa ual amounts by the losing party and the losing party’s attorney on any claim o efense at any time during a civil proceeding or action in which the ccuitOnds that the losing party or the losing party’s attorney knew or should oaXthat 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
  • b. Would not be supported by the application of then-existing law to those material facts.

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 laratory relief fails based on the clear, unambiguous statutory language found in Section 905.27(2) ride Statutes, which states:¶

When such disclosure is ordered by a court pursuant to subsection ( case, it may be disclosed to all parties to the case and to their atto to their legal associates and employees. However, the grand such persons by the court can only be used in the defense or p ecu criminal case and for no other purpose whatsoever. n a civil by the latter ony afforded on of the civil or¶

Moreover, even if the Plaintiff were to prevail in the decla to comply with any court order granting disclosure of Aronberg nor The Office of the State Attorney fo custody, or control of the 2006 Epstein grand jury, , Mr. Aronberg would be unable ed documents because neither Mr. nth Judicial Circuit have possession,¶

Based on the foregoing, if the Complaint is the enclosed Motion for Attorney’s Fees ’ and your firm, recovery of the legal ex ed within 21 days of the service of this letter, and we will seek as sanctions, from your client urred in defending this frivolous action.¶

Please govern yourself accordin -A-¶

Douglas A. Wyler, Esq. For the Firm¶

End.: Defe () S6’s tion for Attorneys’ Fees¶

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶

v .¶

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 M ATTORNEYS’ FEES¶

Defendant, DAVE ARONBERG, as Sta 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’ defense of Plaintiff’s First Amended Complaint, (the “Complaint”), and as gro or, would show that on June 8, 2020, Plaintiff was served a copy of this Motion, togeth a letter from the undersigned attorney, in accordance with subsection (4) of te, demanding dismissal of the Complaint, at least 21 days prior to the filing s on. In said letter, Defendant’s attorney advised Plaintiff of the facts which establis omplaint 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 viti the Florida E-File Portal for electronic service on the parties of record herein.¶

Arthur I. =, Esquire Fla. Bar No.: 108249 Richard J. Scholz, Esq Fla. Bar No.: 0021 Douglas A. Wyl Fla. Bar No.: 1 9979 961687 Gate ., Suite 201-I Fernand* ach, Florida 32034 (904 (91 9 Izlaw@comcast.net¶

rneys for Defendant¶

EXHIBIT “B”¶

NOTA CERTIFIED COPY¶

EXHIBIT “B”¶

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶

v.¶

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

/¶

N Defendant, DAVE ARONBERG, as State Palm Beach County, Florida, by and through the undersigned attorneys, moves t urt, ursuant to Florida Statutes, Section 57.105, to award him reasonable attorneys’ f defense of Plaintiff’s First Amended Complaint, (the “Complaint”), and as grou , would show that on June 8, 2020, Plaintiff was served a copy of this Motion, together • a letter from the undersigned attorney, in accordance with subsection (4) of th Lute, demanding dismissal of the Complaint, at least 21 days prior to the filing of ’ n. In said letter, Defendant’s attorney advised Plaintiff of the facts which establish mplaint is without support of the facts or the law.¶

O DEFENDANT, DAVE ARONBERG’S MO ATTORNEYS’ FEES¶

WW REFORE, Defendant, DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, respectfully requests the Court enter an Order requiring Plaintiff and Plairitiff’s attorneys to pay said Defendant’s attorneys’ fees incurred herein after service of this Motion.¶

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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.¶

Arthur L Esquire A Fla. Bar No. 108249 Fla. Bar No.: 002126 Richard J. Sccholz, Esquir t , Douglas A. Wyle Fla. Bar No.: 11 79 Fernand’ h, Florida 32034 (904)¶

961687 Gateway lvd, Suite 201-I zlaw@comcast.net¶

eys for Defendant. Dave Aronberg¶

EXHIBIT “C”¶

NOTA CERTIFIED COPY¶

EXHIBIT “C”¶

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.¶

STATE OF FLORIDA COUNTY OF PALM BEACH¶

Before me, the undersigned authority personally appeCed-DA ID ARONBERG, being first duly sworn, states:¶

• I. My name is David (Dave) Aronberg, and I am the State Attorney for the Fifteenth Judicial Circuit/Palm Beach County, Florida, since 2013, and a Defendant in the above-captioned matter.
• 2. Plaintiff is seeking declaratory relief, pursuant to Ha. Stat. 905.21( I )(c) and the Court’s inherent authority, allowing Plaintiff access to the testimony, minutes, and other evidence presented in {sup}2006 to the Palm Beach County grand jury, (the “Requested Materials”), and to use those materials for the purpose of informing the public.
• 3. Despite ‘Plaintiff’s above-described action for declaratory relief, neither myself nor the Office of the ttomey for the Fifteenth Judicial Circuit, (“SAO”), is in control, custody, or possession of the Re M erials. 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.

AFFIDAVIT OF DAVID ARONtV¶

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.¶

STATE OF FLORIDA COUNTY OF PALM BEACH¶

SymQrn to and subscribed before me this 3 C personally known to me or has shown 020, by DAVID ARONBERG, who is as personal identification.¶

By:¶

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Notary’s Stamp or Seik¶

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