# IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT N AND FOR PALM BEACH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION: AG CASE NO.: 50-2019-CA-014681-1OCa-MB

CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST,

PlaintifiVetitioner

vs.

DAVE ARONBERG, SHARON R BOCK, Defendant/Respondents.

CO SA

# FINAL JUDGMENT
THIS CAUSE came before the court on the mo ary judgment of plaintiff CA Florida Holdings, LLC, publisher of The Palm B o e Newspaper"), on Count I of its complaint in this action. (D.E. # 58.) Th a ing defendant, Abruzzo, in his capacity as the Clerk and Comptroller m B ch County ("the clerk"), filed a response to the motion on October 1, 2021. (D.E. e Newspaper filed a reply on October 13, 2021. (D.E. # 77.) The motion was heard court on October 22, 2021. The court has considered the submissions of the putt arguments of counsel, the record in the case, and is otherwise advised of the pr4js. Because Count II of the Newspaper's complaint, which is the only other count, + ha case.' osed of by Order filed June 7, 2020 (D.E. # 33), this is a final judgment in the

The court is aware that in an October 22, 2021, article published by the Newspaper it suggested that the court indicated at the hearing that it was inclined to release the records. The Newspaper may have misheard the court's remarks during the hearing, which lasted nearly two hours. The court is not criticizing the Newspaper and has a great deal of respect for the reporter but must clarify that the court stated that it had not made a decision whether it would order that the grand jury records would be produced. (Hrg. Tr. at 19:11-16.) The court reiterated, "So, I just wanted

# SUMMARY OF THE CASE AND ITS CURRENT STATUS
The Newspaper filed its complaint on November 14, 2019, seeking disclosure and production of documents, exhibits, testimony transcripts, audio and visual materials, and all other things ("the Materials") presented to the 2006 grand jury in proceedings instituted by the State Attorney for the 15°' Judicial Circuit in and for Palm Beach County, Florida ("the State Attorney") which resulted in an indictment of Jeffrey Epstein for one count of Felon tation of Prostitution, No. 50-2006-CF-0094544OOOC-MB, and a subsequent char uring Person Under Age 18 for Prostitution, 50-2008-CF-009381-A300C-MB. In c IO on June 30, 2008, Mr. Epstein pleaded guilty to the charge of Procuring Person A 8 for Prostitution. He was sentenced to 12 months of community control in t of the Palm Beach County Sheriff's Office. (2008-CF-009381, D.E. # 11, 12; 9454, D.E. # 89.)

Count I of the Newspaper's comp ? c ''S n ied a declaratory judgment that section 905.27(1)(c), Florida Statutes, should • erp to permit disclosure of the Materials to the Newspaper so that it may then ir content as part of its continued investigation and reporting of matters relating to . Ep in. That count also seeks a declaration ordering disclosure of the Materials "pursuan rp court's] inherent authority over grand jury proceedings because of the exception ublic nterest in this case and the compelling circumstances supporting transparency ended Complaint, ¶ 71.)

# PRELIMINARY PROCEDURAL ISSUE
The court notes that the only other defendant in this case, the State Attorney, has been dismissed, and there have been no attempts to intervene in this case to take a position against

to make that clear from the outset, that there will be no wholesale turning over of any records if and, again, that is a significant word — if the production is ordered." (Hrg. Tr. at 20:9-13, emphasis added.)

disclosure. The clerk's position is that he is merely the custodian of the Materials, and as such he has no real interest in the issues before the court as identified. The clerk only needs direction from the court on whether or not he should produce and disclose the Materials. Nonetheless, the clerk has zealously advocated the position against disclosure based upon grand jury secrecy and confidentiality because under Rule 2.420(d)(1)(B)(xvi) of the Florida Rules of General Practice and Judicial Administration, the clerk is required to maintain the confidentialtt and jury records.

The clerk is correct that his role as custodian of the Materials ' direction once confidentiality is determined. The clerk's sl) 'n proceeding has been complicated, or expanded, because the Newspaper filed tK• zi titt a civil declaratory judgment action and has moved for summary judgment \, However, the proper procedure for obtaining obtaining • istirs, f confidential court records is set forth in Florida Rule of General Practice and J ' ial inistration 2.420(j), which only requires the filing of a "motion" seeking disclo . Gen. Prac. & Jud. Admin Rule 2.420(jX2). 0 ollow the court's Rule of Civil Procedure 1.510.

Accordingly, the court ill t the Newspaper's complaint and motion for summary judgment as a motion for aTiliv s e under Rule 2.420(j).2 As a result, the court need not determine, as a matter of la heth the clerk of the court is a proper party defendant to a declaratory judgment ac the release of grand jury records. Although the clerk of court is the proper

{sup}`2` Rule 2.4200)(3) requires a party seeking disclosure to serve the motion "on all parties and reasonably affected non-parties[.]" Of course, that did not occur here and would have been impossible to carry out, as "reasonably affected non-parties" cannot be determined without actually seeing the Materials. Because the court is denying the relief sought, however, this issue is academic.

subject of any order directing the release of protected grand jury records issued pursuant to Rule 2.420(j), under the rule it is not a "defendant" or "party" in relation to the requested itself.

The court's determination to treat the Newspaper's claim as a Rule 2.420(j) motion resolves another issue as well. The Newspaper devotes significant argument to its standing to prosecute this action, arguing that section 905.27 vests it with a private right of action. (Motion, I' 81-90.). First, the argument of whether section 905.27 creates a private ri ction was already substantively addressed by this court's Order dismissing Cou a Amended Complaint. (D.E. # 33). Second, the court sees no reason to question e per's standing to bring a Rule 2.4200) motion, which is available to any memV th blic seeking access to records of the judicial branch. See Fla. R. Gen. Prac. & J d 2.420(a).

Lastly, even in treating the complaint and mo ; Sary t judgment as a motion under Rule 2.420(j), there are no disputed fact issu Accordingly, this is a final judgment. ssues before the court are issues of law.

# T
The facts germane to tlis fnal judgment are not in dispute and are recounted here. The 2006 grand jury was con jn proceedings instituted by the State Attorney regarding alleged criminal miscon of a sexual nature by Jeffrey Epstein, now deceased. Materials were presented to d jury. The United States Department of Justice, by and through the office of the Unites Attorney for the Southern District of Florida, obtained the Materials.; The

{sup}`3` This fact is established by Exhibit 3 to the Newspaper's motion, which is the United States Department of Justice, Office of Professional Responsibility Report, "Investigation into the U.S. Attorney's Office for the Southern District of Florida's Resolution of Its 2006-2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation," Nov. 2020 ("the Report"). The Report makes references to the fact that the federal government obtained and reviewed the Materials. See the Report at 20, n. 23, 26, 38 n. 67, 271 n. 425 and 283.

Newspaper operates and does business in Palm Beach County, Florida. The clerk is a duly elected governmental official, and he and his office have custody of the Materials.

# ANALYSIS
The Newspaper appears to have presented questions of first impression regarding both the interpretation of section 905.27 and the "inherent authority" of the court. Those questions also implicate issues of constitutional import regarding the historic tension between secrecy and the First Amendment. Additionally, the Newspaper presents these qu •he context of genuine subjects of public interest and concern regarding the prosecut of Mr. Epstein. Mr. Epstein was a person of great wealth and influence a of g a sex predator who engaged in criminal sex trafficking of minors, among oth K c i2 •

The public record establishes' that Mr. E • t into a federal non-prosecution agreement with the United States Attorney fo ern District of Florida in exchange for a guilty plea in the then pending state co for which he served less than a y Mr. Epstein was federally indi ne count of procuring a minor for prostitution, lease incarceration at the Palm Beach County Jail.5 19 by the United States Attorney for the Southern District of New York for the e of conduct during the 2002-2005 time-span preceding the 2006 state indictment the 2008 no-prosecution agreement negotiated with the federal prosecutor. Mr. Epstein er brought to trial on those 2019 charges, having committed suicide in his New Yell.

See the Report, referenced in n. 1, supra.

Id

In this Order, the court rules against the Newspaper because the established and binding maxims of Florida law constrain it to do so. As noted below, federal courts have departed from the limited prescriptions of Federal Rule of Criminal Procedure 6(e) in granting access to grand jury records in "special circumstances." E.g., In re Petition of Craig, 131 F.3d 99, 102 (2d Cir. 1997) (recognizing "that there are certain "special circumstances" in which release of grand jury records is appropriate even outside of the boundaries of [Rule 6(e)]"). Florida la vever, has yet to recognize such flexibility under either section 905.27 or Rule 2.420 C- )

# (A) Section 905.27 and the phrase "furthering j e.
The court first addresses the issue whether the Newspa c' cis ts within "the purpose II of . .. furthering justice" under section 905.27(1Xc). 1 of sections 905.27(1) and (2) provide context:

- (1) A grand juror, state attorney, ass i attorney, reporter, stenographer, interpreter, or any other person app re the grand jury shall not disclose the testimony of a witness exa d b ore the grand jury or other evidence received by it except when r u 41\*y a court to disclose the testimony for the purpose of:
- (a) Ascertaining wheth it is consistent with the testimony given by the witness before the court;
- (b) Determt th r the witness is guilty of perjury; or
- (c) Fu n justice.

(2)Alt awful for any person knowingly to publish, broadcast, disclose, or communicate to any other person, or knowingly to cause or permit to be lished, 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 wizen 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.

(Emphasis added.)

Reading subsection 1(c) ("furthering justice") in tandem with subsection (2), it is evident that the phrase "furthering justice" is to be interpreted in the context of seeking dis of grand jury materials for use in a pending criminal or civil case. The Newspaper 0 edges that it is not seeking disclosure of the Materials for such a purpose. (Amend t, ¶ 70; Motion ¶ 114.) Instead, the Newspaper advocates a more expansive int tatimrof the term "furthering justice" and also posits that because it is not seeking disclo Acz t? \ fl or civil case, it seeks an additional declaration tha e ed use of the Materials "is not so i i t limited" by section 905.27(2). (Id.) The Ne s i,rlisv ts the ability to publish the Materials and reference them in its reporting and also t crawke t Materials available "to the public." (Amended Complaint, prayer at 21; Motion, t 6 aterials for use in a criminal

The Newspaper makes tron li ments to advance its more expansive construction of section 905.27 as part of 'ng justice." Unquestionably, the established matters surrounding Mr. Epstein's co the ircumstances of his resolution of the 2006 state charges and potential federal char his 2008 guilty plea and incarceration are matters of public interest, and disclo e Materials may arguably fall within the concept of "furthering justice" in the broadest, social sense of the phrase. Yet, the court's interpretation of the scope of section 905.27

{sup}`6` The Newspaper concedes in its submissions that the court could first conduct an in camera review of the Materials and redact any information the court deems sensitive, such as identities of "innocent parties." (Amended Complaint, ¶ 9; Motion, ¶¶ 80 n.3, 110 n. 7.)

and of the phrase "furthering justice" is governed and constrained by the established rules of statutory construction.

In interpreting a statute, the court must respect the role of the legislature, the legislative process, and the language of the statute. "`A court's function is to interpret statutes as they are written and give effect to each word in the statute." State v. Sampaio, 291 So. 3d 120, 125 (Fla. 4th DCA 2020) (quoting Fla. Dept of Revenue v. Fla. Mun. Power Agency, 789 320, 324 (Fla. 2001). "[W]hen legislation is clear `our task is to apply the text, ove upon it.' Kaplan v. Epstein, 219 So. 3d 932, 933 (Fla. 4th DCA 2017) (quoting av Flore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989). "It is our [ to interpret the law as given us by the people in the Constitution or by the Legisl ,C i ate not permitted to substitute judicial cerebration for law or that which we th.ini Ns, e n w ould be and command that it be Itcc th Judicial Circuit of Florida, 93 So. 2d 601, 608 (Fla. 1957). "As courts, we sh nev orget that in construing acts of the legislature, we are concerned only with the po r legislature to enact the law. Our peculiar social and economic views have no plac e a consideration." Tyson v. Lanier, 156 So. 2d 833, 838 (Fla. 1963). enforced." In re Investigation of Circuit Jud

Turning t tion 5.27, the term "furthering justice" as used in subsection (1Xc) cannot be read in a v without regard to the entire text of the statute, and particularly subsection (2). must [also] be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts.' Indian River County v. Ocean Concrete, Inc., 308 So. 3d 1010, 1014 (Fla. 4th DCA 2020) (quoting Fla. Dep't of EnvtL Prot v. ContractPoint Fla. , LLC, 986 So. 2d 1260, 1265 (Fla. 2008) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist, 604 So. 2d 452, 455 (Fla. 1992)). Subsection (2) clearly limits section 925.27's scope to those instances in which grand jury testimony or materials need to be disclosed for use in a criminal or civil case. Subsection (2) provides that once grand jury testimony is disclosed in the course of a court proceeding, it is then open to unlimited dissemination. But before that occurs, the court must determine that one of the three needs prescribed in subsection (I) is present in a criminal or civil case that requires disclosure. There is nothing in section 905.27 that gives a court cane blanche au to release grand jury materials in any situation that might bear some relationship to " ijul gjustice" in its broadest sense.

Accordingly, the Newspaper's argument that section Ao : 12 the term "furthering justice" permits disclosure of grand jury materials in the sAi tt \*o ) t be denied here, where there is no criminal or civil case in which it is to be used.

# (B) The court's "inherent 11114c, ."
Alternatively, the Newspaper ar tha e court has "inherent authority" to order the release of the Materials. At seve its submissions, the Newspaper asserts its "right" or "entitlement" to disclosure of rials under both section 905.27 and the court's "inherent authority and supervisors." (Amended Complaint ¶ 70, Motion, ¶¶ 86, 113, 114) There is, however, no proposition to gra Amendment right to the disclosure of grand jury materials. "A settled the press does not contest, is this: there is no First Amendment right of access ings." In re Motions of Dow & Co., 142 F.3d 496, 499 (D.C. Cir. 1998), cert. denied sub nom. Dower & Co., Inc. v. Clinton, 525 U.S. 820 (1998); accord, In re Sealed Case, 199 F.3d 522, 523 (D.C. Cir. 2000).

The Newspaper provides several passages from state and federal cases generally recognizing a court's "inherent authority." (Motion, ¶ 95.) The Newspaper also cites several

federal cases in which grand jury materials were disclosed, yet those cases substantially turn on Federal Rule of Criminal Procedure 6(e), which governs disclosure of grand jury materials and contains provisions not present in Florida statutes and rules. (Motion, ¶ 96.) The Newspaper also references the recent example of a Kentucky state court releasing portions of grand jury testimony in the Breonna Taylor case under Kentucky Rule of Criminal Procedure 5.24, which gives Kentucky courts broad, unrestricted authority to "at any time . . . direct othe regarding disclosure of grand jury materials. (Motion, ¶¶ 97-100.) Finally, the r cites In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997), in which the court there fo umber of factors to consider in determining whether, under federal law and rule, d urt may release grand jury materials for reasons other than those enumerated in 4F e of Criminal Procedure 6(e). The Newspaper argues that this court should ap i gp actors in exercising its "inherent authority" to release the Materials.

A court's "inherent authority" h ' it l 7 6 ' s S .e. bo daries. "Ulf a specific statute or rule applies, the trial court should rely on the ca rule or statute rather than on inherent authority." Moakley v. Smallwood, 826 So 227 (Fla. 2002) (addressing inherent authority to sanction attorney misconduct); ac ntini v. Cleveland Clink Florida, 65 So. 3d 22, 38 (Fla. 4th DCA 2011) (finding th al co rt erred in relying on inherent authority instead of sanctions statute). e "In a contes ena clear, valid, unchallenged statute and a trial court's general "inherent author tatute must prevail." Swearingen v. Pretzer, 310 So. 3d 1084, 1089 (Fla. 1st DCA 2020) (Kelsey, J. dissenting).

The Newspaper has provided no Florida authority holding that a trial court may use its "inherent authority" to order disclosure of grand jury materials in the face of section 905.27, which governs and enumerates the circumstances under which grand jury materials may be disclosed. Again, the court acknowledges the Newspaper's vibrant and sincere arguments for seeking disclosure as a matter of public interest and in "furthering justice" in the broader sense of the term. Nonetheless, "(u)nder fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the Legislature clearly has not done so." Fla. Dept of Revenue, 789 So. 2d at 324.

Even if "furthering justice" as stated in section 905.27 could be exten (IA yond the specific situations prescribed by that statute, still the court cannot do so, h court notes the Order issued by this court (The Honorable Krista Mani) in State of Fl Grey Epstein, No. 50-5006-CF-009454-AXXX (Order, Jan. 4, 2020), in whi denied the Florida Department of Law Enforcement's motion for disclosure grand jury materials at issue here:

Although the term "furthering exception in both common law and is actually quite narrow — it do justice," but rather requires which outweighs any inte another manner. Brooki that "a party seeking d showing of a particulari (citing United St added))). Su speculatio trial c de 44 t " ms quite broad, the history of the m c e law establishes that the exception mpass any reason that could "further of a particularized and compelling need tabling secrecy and cannot be satisfied in e, 495 So. 2d 135, 137-38 (Fla. 1986) (holding [of grand jury proceedings] must make a strong in order to outweigh the public interest in secrecy" Sells Eng'g, Inc., 463 U.S. 418, 443 (1983) (emphasis owing must be comprised of "more than a mere surmise or Minto , 113 So. 2d at 365. If a party makes this a showing, then the examine the grand jury testimony in camera and make a of its materiality. Id. Disclosure should then be permitted only if the attainment of justice." Brookings, 495 So. 2d at 138; Minton, 113 365.

This court reiterates that the term "furthering justice", as recognized in the foregoing quote, still requires the showing of a particularized and compelling need which outweighs any interest in maintaining secrecy and cannot be satisfied in another manner. The court also finds that such a showing has not been made here.

It is true that "furthering justice" is an amorphous term which can be read to support a broad range of justifications for disclosure. Black's Law Dictionary offers several contexts in which the term "justice" has been defined. Id. (11th Ed. 2019). It may well be that the disclosure of Jeffery Epstein's grand jury records could reveal that fair treatment did not occur and that Mr. Epstein might have escaped appropriate punishment through some failing of our justice system. However, the public's generalized interest in investigating that potential in must be considered and weighed against the specific policies in favor of grand jury —policies that preserve the safety of grand jurors and witnesses and encourage their frank and unhampered testimony in all cases submitted to grand jury. See Grand V J aSt inn, A.D. v. City of St. Petersburg, Fla. 624 So. 2d 291 (Fla. 2d DCA 1993) (citVT) . i v. State, 113 So. 2d 361 (Fla. 1959)). Here, the justification for disclosure is deriv ills, y from the notoriety of the accused and the public's suspicion of unfair treatment gone were enough to compel disclosure of grand jury records, it could have an unin i S s."c ling effect on witnesses and jurors considering the indictment of powerful indict i future grand jury proceedings. In any event, the Newspaper in the present case to establish a particularized and compelling need which outweighs any interest in 7, • \*ning grand jury secrecy.

Finally, thitc precedent or Perha urt' "inherent power" does not give it cane blanche to ignore legal mandate simply because it finds the underlying cause particularly worthy. mstances presented above will induce the Legislature to amend section 905.27 to grant the courts additional authority or leeway in ruling on unique cases such as this one. Alternatively, an appeal of this order might persuade a higher court to establish a less restrictive interpretation of the "furthering justice" exception, the limitations of section 905.27, and the limits of a court's "inherent authority." Until that time, this court is bound by the fundamental doctrines

of statutory construction, separation of powers and *stare decisis* to rule according to the law as it exists today.

# CONCLUSION
Based upon the constraints imposed upon this court by section 905.27, the court has limited authority to order the release of grand jury records. No matter how palatable and persuasive the Newspaper's arguments may be, the court cannot exercise that limited authority here. Nor does the court's "inherent authority" permit it to broaden the statute's limits. The court commends both parties' attorneys for their exceptional oral and written presentations.

Accordingly, it is hereby **ORDERED and ADJUDGED** that final judgment is hereby entered dismissing this action in its entirety. Defendant Joseph Abruzzo, in his capacity as Clerk of the Circuit Court & Comptroller for Palm Beach County, shall go hence without day. The court reserves jurisdiction to entertain any motion filed under Rule 1.525, Florida Rules of Civil Procedure. This is a final, appealable judgment.

**DONE and ENTERED** in Palm Beach County, Florida.



| Name | Address | Email |
| ------------------ | --------- | ------------------------------------------ |
|  | n/a |  |
| CYNTHIA M GUERRA | n/a | Clerk_e-
service@mypalmbeachclerk.com |

| Name | Address | Email |
| ---------------------------- | ------------------------------------------------------------------ | ----------------------------------------------------------------------------------- |
| DOUGLAS A. WYLER | 961687 GATEWAY BLVD SUITE
201-I FERNANDINA BEACH, FL
32034 | doug.wyler@comcast.net |
| JAMES CULLEN MOONEY | n/a | jmooney@bajocuva.com,
lheckman@bajocuva.com |
| JESSICA NEER MCDONALD | POST OFFICE BOX 229 WEST
PALM BEACH, FL 33401 | CLERK_E-
SERVICE@MYPALMBEACHCLERK.COM,
jnmcdonald@mypalmbeachclerk.com |
| KENNETH G. TURKEL | n/a | kturkel@bajocuva.com,
lisa.meriwether@bajocuva.com,
teri.deleo@bajocuva.com |
| LAUREN R. WHETSTONE | 777 S FLAGLER DR STE 300 E
WEST PALM BEACH, FL 33401 | WHETSTONEL@GTLAW.COM,
flservice@gtlaw.com,
sandra.famadas@gtlaw.com |
| MARK F. BIDEAU | n/a | bideaum@gtlaw.com,
thomasd@gtlaw.com,
FLService@gtlaw.com |
| MICHAEL GRYGIEL | 54 STATE STREET 6TH FLOOR
ALBANY, NY 12207 | GRYGIELM@GTLAW.COM |
| MICHAEL J. GRYGIEL | n/a | grygielm@gtlaw.com |
| NINA D. BOYAJIAN | 1840 CENTURY PARK EAST
SUITE 1900 LOS ANGELES, CA
90067 | |
| NINA D. BOYAJIAN | n/a | boyajiann@gtlaw.com,
riveraal@gtlaw.com |
| SHANE B. VOGT | n/a | shane.vogt@bajocuva.com,
garnold@bajocuva.com |
| STEPHEN A. MENDELSOHN, ESQ | 5100 TOWN CENTER CIR SUITE
400 BOCA RATON, FL 33486 | mendelsohns@gtlaw.com,
smithl@gtlaw.com,
flservice@gtlaw.com |