IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN 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 It BOCK, as Clerk and Comptroller of Palm Beach County, Florida,¶
Defendants.¶
PLAINTIFF CA FLORIDA HOLDINeCLL c S REPLY IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND INCORPORATED MEMORANDUM OF LAW¶
I. \ I N¶
The Clerk does not dispute any,4e 7 statements of fact set forth in The Palm Beach Post’s Motion for Summary Jud ad, the Clerk belabors the uncontested point of law that it may not, without a court lease the Jeffrey Epstein grand jury records. That is correct, as The Palm Beach Post ledged at the June 2020 hearing on the motions to dismiss its complaint. And claims tha ag why it is before this Court — to obtain such an order. The Clerk further aware of any authority or standing granted to its office to advocate for or of any grand jury materials,” but then proceeds for 23 pages of its Opposition to argue that this Court should deny The Palm Beach Post’s request to release the grand jury records. This position represents a complete about-face from its position at the June 2020 motion to dismiss hearing, during which it unequivocally stated that it was “not trying to block acrecs to the records.” Appendix at 13 (June 3 Hearing Transcript at 18:23-19:5).¶
E O SA¶
More remarkably, the Clerk wrongly asserts that “[t]he specific subject matter of the underlying grand jury proceedings is irrelevant to th[e] preliminary question concerning the legality of The Palm Beach Post’s suit against the Clerk.” Opp. at 2 (emphasis added). The underlying subject matter of the grand jury records sought is precisely what allows for their exceptional release and what justifies this Court’s exercising its discretion to ord u lic access. The underlying subject matter is the fundamental basis for the relief sought e Palm Beach Post. The undisputed facts support the Court’s exercise of its discretio the Clerk of this Court to release the Jeffrey Epstein grand jury records.¶
II. UNDISPUTED FACTS & PRO HISTORY¶
The Palm Beach Post’s Motion identified 76 cts, relying on evidence such as police reports, sworn deposition testimony, cot i pscripts, and a voluminous United States Department of Justice inquiry into the mis an of the Epstein prosecution — a report which was compiled after “review[ing] m mg to the state investigation and prosecution of Epstein, including sealed plea d jury transcripts, and grand jury audio recordings … ” Appendix at 3 (OPR R p. 2¶
The Clerk Is to dress a single one of these 76 facts. Instead, it characterizes the comprchensi aDgssertions as “somewhat slanted and argumentative.” Opp. at 4. The Clerk does no ich of the factual assertions were “somewhat slanted and argumentative,” in what way t y were “somewhat slanted and argumentative,” or to challenge the evidence on which any of the facts were based. The Clerk, though, attempts to dispute the material facts — again without identifying any fact in particular — by stating in a footnote that The Palm Beach Post’s assertion that the material facts are uncontested is “clearly not accurate.” Opp. at 3 n.4. The Clerk’s vague argument is deficient.¶
Because the Clerk’s commentary should be disregarded, its intentional avoidance of the evidence means that The Palm Beach Post’s facts are undisputed. Under Florida Rule of Civil Procedure 1.510(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” In Florida, the moving party no longer needs to conclusively disprove the nonmo the case in order to eliminate any issue of fact. See In re Amendments to Fla. 309 So. 3d 192, 193 (Fla. 2020). Rather, “the burden on the moving `showing’—that is, pointing out to the I] court—that there is an absen nonmoving party’s case.” Celotex Corp. v. Catrett, 47 nonmoving party “must do more than simply show th material facts.” Matsushita Elec. Indus. Co. v. also theory of Civ. P. 1.510, discharged by idence to support the 17, 325 (1986). Then, the ome metaphysical doubt as to the io Corp., 475 U.S. 574, 586 (1986); see v. Liberty Lobby, Inc., 477 U.S. 7-48 (1986) (“[T]he mere existence of some alleged factual dispute between the not defeat an otherwise properly supported motion for summary judgment; the req that there be no genuine issue of material fact.”). Under this standard, The Palm B ch Post fills the first summary judgment prong. Below, it will show that the law suppo cleas f the Epstein grand jury materials.¶
III. ARGUMENT¶
A. R 0 IS INAPPLICABLE¶
Co ry to the Clerk’s argument, Rule 2.420 of the Florida Rules of Judicial Administration is inapplicable. Rule 2.420 establishes procedures for maintaining the confidentiality of certain records and granting public access to non-confidential records. It lists 23 presumptively confidential categories, which include grand jury materials. Rule 2.420(d)(1)(3Xxvi). For records not automatically confidential, Rules 2.420 (e), (0, (g) and (h)¶
include procedures to determine confidentiality. Poole v. South Dade Nursing & Rehab. Ctr., 139 So. 3d 436, 440 (Fla. 3d DCA 2014). As grand jury materials are automatically confidential, they do not fall within the procedures of subsections (e), (f), (g), and (h). Further, the Epstein materials are not “trial court records in non-criminal cases” subject to subsection (e). Nor are they “trial court records in criminal cases” subject to subsection (f), which is limited to motio s ade by the “state, a criminal defendant or an affected non-party.” None of these requires present.¶
The Clerk’s citations to subsections (j), (I), and (m), and its tha Rule 2.420 is the exclusive method to seek grand jury materials, are also inaccurate. gh the Clerk uses the term “must” for subsection (j), that subsection expressly s court order allowing access to confidential court records may be obtained by filth motion.” (Emphasis added). That rule assumes an on-going criminal or civil actio ng “court records.” Rule 2.420(b)(1)(A). As the Clerk alleges that grand jury matt they are not included in subsection N” ministrative records,” Rule 2.420(b)(1)(8), e Clerk’s argument refutes itself.¶
The Clerk further mi zes subsection (1) by claiming that “an action for mandamus” is the only p s for seeking administrative records. However, subsection (I) states that while an acti for damus may be brought, so may “other appropriate relief.” And, subsection (I) C e ms to instances where a party is seeking “expedited review,” which is not sought*¶
Sim arly, subsection (m) does not create a condition precedent for seeking grand jury materials. Subsection (m) merely provides that where a request is made for documents, it must be in a reasonable manner and in writing to the custodian. Nowhere does subsection (m) make these actions a condition precedent to suit. In any event, this lawsuit fulfills the writing requirement and it is undisputed that the Clerk has not provided any Epstein grand jury materials and is opposing their production.¶
Finally, the Clerk’s reliance upon Times Publishing Co. v. Ake, 660 So. 2d. 255 (Fla. 1995), is misplaced. Ake did not address grand jury materials nor Fla. Stat. Section 905.27. It merely holds that the Florida Public Record Act is not applicable to requests for judicial databases while Rule 2.420 is applicable.¶
B. A DECLARATORY JUDGMENT ACTION IS PROPER¶
The Clerk complains that this declaratory judgment action is im It is well-settled that where constitutional or statutory rights are in dis action is appropriate. Rosenhouse v. 1950 Spring Term Gran Hildebrandt v. Dep’t. of Nat. Resources, 313 So. 2d Clerk ignores its previously relied-upon Ake action to determine the applicability of Rule opposition to The Palm Beach Pos, relevance of this declaratory ju declaratory judgment So. 2d 445, 448 (Fla. 1952); 3d DCA 1975). Ironically, the a clerk brought a declaratory judgment the Florida Public Record Act. The Clerk’s to Epstein grand jury materials also proves the¶
C. THE CLERK i PLICITLY CONCEDES THAT THE PALM BEACH POST HAS PUBLIC ACCESS TO THE EPSTEIN GRAND JURY¶
In its n,“%4e Palm Beach Post argued that it has standing under Section 905.27. See Motion at . This is a related — but separate — issue from whether Section 905.27 provides a private n t of action. The Clerk addresses the latter argument, but aside from acknowledging that “The Post’s Motion repeats the same arguments about its alleged standing … that it alleged in the Amended Complaint and which it argued in its Opposition to the Clerk’s Motion to Dismiss¶
In a case discussing a clerk’s role as custodian of grand jury materials, a federal court observed that a clerk is a proper party to receive a subpoena for state grand jury materials. Whiffler v. Clay of Sunrise, No. 07-60476, 2007 U.S. Dist. LEXIS 114239, at •12 n.4 (S.D. Fla. Aug. 22, 2007).¶
Count II” (Opp. at 14 n.10), does not address The Palm Beach Post’s standing arguments or the authorities supporting standing. Similarly, in granting the State Attorney and Clerk’s motions to dismiss Count II of the Amended Complaint, former Chief Judge Marx relied on arguments that there is no private right of action under Section 905.27, but did not address the threshold standing arguments In ignoring the First Amendment bases supporting The Palm Beach P st standing, the Clerk implicitly concedes that The Palm Beach Post has standing to purst relief it seeks — whether that be under the private right of action implicit in Section 9 laborated further below), under the Constitution, or by invoking the Court’s inherent a and discretion.¶
D. FLA. STAT. SECTION 905.27 CREATES A PR AUSE OF ACTION¶
At all times in this proceeding, The Palm Beach knowledged that Section 905.27 does not explicitly create a private right of a no excessive boldfacing, italicizing, or underscoring is necessary on that undispu int. See Opp. at 17. But that does not end the inquiry, as former Chief Judge owledged in her June 2020 Order. See June 3, 2020 Order at 3-4.¶
Where there is n expres ght of action in a statute, legislative intent has become the primary factor3 tha i ost t c rts rely on to determine whether a cause of action exists. See Marshy v. N. Sinha C) So. 2d 983, 985 (Fla. 1994). Given the dearth of legislative history¶
{sup}2 Notably in this regard, during the hearing on the motions to dismiss, former Chiefludgc Marx stated, “I don’t think anybody is saying that there isn’t a cause of action [under Section 905.27] or that the press doesn’t have standing.” Appendix at 13 (June 3, 2020 Hearing Transcript before the Honorable Krista Marx (“June 3 Hearing Transcript”)), at 8:2-4; see also 8:7-8 (“nowhere have I said there isn’t a cause of action.”); 15-16 (“So I’m not telling you, you don’t have a cause of action.”)).¶
{sup}3While legislative intent has become the “primary factor” in determining whether a cause of action exists when a statute dots not expressly provide for onc, this dots not mean that other factors, such as potential public benefit, arc excluded from consideration. See, e.g., Fischer v. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989). Just as the Clerk fails to address the legislative history argument, he also fails to address any other factors, including public benefit. As set forth in the Motion, balancing the public benefit that would result from disclosure outweighs the customary reasons for grand jury secrecy. See Motion at?! 103-110.¶
surrounding the enactment of Section 905.27, it is appropriate to consider acts passed at other legislative sessions.° Fischer, 543 So.2d at 790. In 1994, at the same time Section 905.27 was reenacted to expressly provide three exceptions to grand jury secrecy, including furthering justice, the Florida legislature also reenacted Fla. Stat. § 905.395, which concerns the secrecy of statewide grand juries. 1994 Fla. ALS 285, 1994 Fla. Laws ch. 285, 1994 Fla. SB 114; Fla. at. § 905.395. Like Section 905.27, Section 905.395 has a general prohibition on disc of grand jury proceedings, absent a court order. Fla. Stat. § 905.395. Tellingly, how on 905.395 does not provide any specific exceptions to nondisclosure. Through the i nal omission of these exceptions, including the fundamental “furthering justice” ¶ it can be understood that the legislature did not intend for court-ordered disclosu de grand jury records to further justice, and did not anticipate such disci Id benefit the public. By contrast, the legislature’s decision to include the catch icf1 ering justice” exception in Section 905.27 reflects an intent to protect and info 777777 —”’ the ultimate benefactors of the criminal justice system — by providing a m cess in those rare situations where the integrity and legitimacy of the grand j rocess have been called into serious question. Accordingly, implying a private right of s ion r i nsistent with the purposes underlying the legislative scheme in Chapter 900 Cy lo da Statutes.’¶
Neither the Clerk nor Judge Marx addressed or challenged this analysis.¶
There arc a number of cases where litigants have sought grand jury materials under Section 905.27 and its predecessors with varying degrees of success. In none of these cases did the court question or hold that the statute did not create a private right of action. See State cc rel. v. Dewell, 167 So. 687, 689-90 (Fla. 1936) (using the phrase “in furtherance of justice” to require a grand jury witness to provide his testimony to a criminal defendant); Gamin:Laski v. State, 132 So. 3d 678, 707 (Fla. 2014); Bing v. State, 46 Fla. L. Weekly DI580 (Fla. 1st DCA July 6, 2021); James v. Willie, 480 So. 2d 253 (Fla. 4th DCA 1985) (involving a deceased inmate’s estate bringing suit against prison officials). Judge Marx failed to address these and other cases.¶
E. SECTION 905.27, THE FIRST AMENDMENT, AND THIS COURT’S INHERENT POWER CONSTITUTE THREE INDEPENDENT GROUNDS FOR RELEASING THE GRAND JURY RECORDS¶
As set forth in The Palm Beach Post’s Motion, even in the absence of Section 905.27’s statutory framework, disclosure is appropriate pursuant to this Court’s inherent authority over grand jury proceedings because of the exceptional public interest in this case and mpelling circumstances supporting transparency rather than continued secrecy.¶
Unlike the cases the Clerk cites for the proposition that “more th e or speculation” about what the grand jury records may contain is needed to lift the vet y (Opp. at 21), the overwhelming and undisputed evidence before this Court “surmise or speculation” about what the grand jury records may contain. B just one example, during his investigation of the Epstein sex crimes, the DepSt , hie of the Criminal Division of the U.S. Attorney’s Office told Criminal Chief Matt e chel: `The state intentionally torpedoed [the case] in the grand jury so it was b h Q 3.’ Appendix at 3 (OPR Report, p. 26). The Clerk fr) cannot credibly maintain that 7’ C e a each Post has not laid a “proper predicate” (Opp. at 22), or that the relief it seeks i based o ‘surmise or speculation.” The Palm Beach Post does not deny that it bears the bu S n of tifying this exceptional release of grand jury records, but maintains that the extra ’ td serial criminal acts at issue, and the evidence already publicly revealed regardin isconduct in prosecuting Epstein, has “satisfactor[ily] establish[ed] [its] right to its use.” ate v. Tillett, 111 So. 2d 716, 724 (Fla. 2nd DCA 1959).¶
The Clerk does not dispute that this Court has the inherent power to release the records, only that it should not do so because such release would conflict with other laws. It does not. First, as set forth above, the release of grand jury records would be consistent with the press and public’s right of access under the First Amendment. Second, the release would be pursuant to an express statutory provision that serves as an exception to the secrecy of grand jury records. Third, because The Palm Beach Post is not seeking these materials “for use in a criminal [or civil] case,” the limitations on its use of those materials (i.e., “only … in the defense or prosecution of the civil or criminal case and for no other purpose whatsoever”) is not so limited. See Fla. Stat. § 905.27(2).¶
In sum, The Palm Beach Post has constitutional standing to request the e of the Epstein grand jury records, and such request should be granted in the furtherati;t fjus ice. 0 IV. CONCLUSION¶
The Palm Beach Post respectfully requests that this Court, p CIt to Fla. Stat. Section 905.27(1) and the Court’s inherent authority, order the Cle copies of the testimony, minutes, and other evidence grand jury during the first Epstein sex ab inspection, it can be made available to The ourt to lodge with this Court 2006 to the Palm Beach County lion so that, following an in camera ch Post and the public.¶
+6s¶
espectfully submitted,¶
GREENBERG TRAURIG, P.A. Attorneys for CA Florida Holdings, LLC, Publisher of The Palm Beach Post¶
Stephen A. Mendelsohn, Esq. 401 East Las Olas Blvd., Ste. 2000 Fort Lauderdale, Florida 33301 Telephone: (954) 768—8225 Facsimile: (561) 338-7099¶
By: a/Stephen A. Mendelsohn STEPHEN A. MENDELSOHN Florida Bar No. 849324 mendelsohns®gtlaw.corn smithlegtlaw.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 grvaielmegtlaw.com¶
By: /s/ Nina D. Boyajian¶
NINA D. BOYAJIAN (Admitted Pro Hac Vice) 1840 Century Park East, Ste. 1 Los Angeles, California 90 Telephone: (310) 586-7 Facsimile: (310) 586 bovai iann(agtlaw.co riveraal law is)¶
CERTIFICATE OF SERVICE¶
I HEREBY CERTIFY that on this 12th day of October, 2021, a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system, which will send a notice of electronic service for all parties of record herein¶
40:Ar¶
/s/ Stephen A. Mendelsohn¶
STEPHEN A. MENDELS¶
AC77VE 80572600v7¶