Page 1 IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2019-CA-014681 CIRCUIT CIVIL DIVISION: “AG” CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST, Plaintiff/Petitioner -vs- DAVE ARONBERG, SHARON R. BOCK, Defendant/Respondents.¶
HEARING BEFORE THE HONORABLE KRISTA MARX (ZOOM CONFERENCE) Wednesday, June 3, 2020 10:08 a.m. - 10:20 a.m. REMOTE ZOOM CONFERENCE Port. Saint Lucie, Florida Stenographically Reported By: SONJA M. [REDACTED] Court Reporter¶
Page 2 APPEARANCES: 1 On behalf of the Plaintiff/Petitioner: 2 GREENBERG TRAURIG, P.A. 3 1840 Century Park East 4 Suite 1900 5 Los Angeles, California 90067 6 310.586.7700 7 boyajian@gtlaw.com 8 BY: NINA D. BOYAJIAN, ESQUIRE 9 On behalf of the Defendant/Respondent: 10 JACOB, SCHOLZ & WYLER, LLC 11 961687 Gateway Boulevard 12 Suite 2011 13 Ferpandina Beach, Florida 32034 14 904.261.3693 15 doing.wyler@concast.net 16 BY: DOUGLAS A. WYLER, ESQUIRE 17 18 On behalf of the Defendant/Respondent: 19 CLERK & COMPTROLLER, PALM BEACH COUNTY 20 P.O. Box 229 21 West Palm Beach, Florida 33401 22 561.355.2983 23 nfingerhut@mypalmbeachclerk.com 24 BY: NICOLE R. FINGERHUT, ESQUIRE 25¶
Page 3 1 PROCEEDINGS 2 ***** 3 THE COURT: We are here today for a very 4 limited purpose. I’m sure the attorneys are aware of 5 that, but I just don’t want there to be any 6 confusion. We are here on Defendant Dave Aronberg 7 and Defendant Sharon Bock for the Comptroller and the 8 State Attorney’s motion to dismiss Count II. 9 You’re all acutely aware as the lawyers that 10 this is a question of law. So we’re not going to be 11 diving into facts and the Court will not be deciding 12 the merits of this motion this morning. We are 13 simply here for the sole purpose of that motion to 14 dismiss. So I just wanted to make sure that we all 15 stay on track and we’re all on that same page. 16 So, Ms. Boyagian, I’ll send it to you first, 17 [REDACTED] I - of course, we all know that the Law 101, 18 I must look at the four corners of the motion, which 19 alleges that the State Attorney, David Aronberg, and 20 the clerk and comptroller, Sharon Bock, actually have 21 custody and control of these grand jury proceeding. 22 Whether that is true or not is not for this 23 court to determine because I’m looking simply at the 24 four corners of the complaint. But, not for nothing, 25 I think we all know that they don’t have control and¶
Page 4 1 custody of the records. But I’m going to assume that 2 it’s correct because that’s what has been alleged. 3 So what I first want to hear from is the 4 attorney for Florida Holdings with regard to, 5 assuming arguendo, that Florida Statute 905.27 does 6 create a cause of action, what relief is it that 7 you’re seeking from - in Count II, specifically. 8 Not the dec action. We’re not here on that today - 9 what is it you hope to get, a judgment? 10 MS. BOYAGIAN: Thank you, your Honor. Good 11 morning, and thank you for the privilege of appearing 12 before this court. 13 The relief we are seeking is disclosure of the 14 grand jury records, pursuant to the Furtherance of 15 Justice Exception to 905.27. And under the First 16 Amendment. 17 The press, as your Honor is aware, has a right 18 of access under the First Amendment as a surrogate of 19 the public - 20 THE COURT: Let me just stop you for a minute. 21 I’d like you to answer my specific question. 22 So I am not particularly convinced - and I’d 23 like for you to address that. So we’re not going to 24 dive into facts or the press’s standing because 25 that’s not something we’re here to discuss today.¶
Party JOINT ID# J13 EV# J13 DATE ADMITTED: 9/6/2022 Case No. 2019-CA-014681 K6 JOSEPH ABRUZZO CLERK K6 CRAUBRUZZO, CLERK. 3/27/2023 3:44:22 PM¶
800.211.DEPO (337) EsquireSolutions.com Joint Exhibit J13¶
Page 5 1 And I have read the voluminous paperwork — 2 I’ve received paperwork as — and — five-minute ago 3 from some of the other parties. But I deeply 4 appreciate the fact that you sent this to me so much 5 in advance and I have been able to spend some time 6 with, as I said, the voluminous paperwork that was 7 provided. 8 But as you know, [REDACTED], we are here for such an 9 extremely limited issue today, and that their motion 10 to dismiss where they state “you’re suing the wrong 11 people”; that the court has these records. 12 And so, more importantly, I want you to address 13 whether Section 905.27 gives you a private cause of 14 action against the state attorney and the clerk. 15 Again, I’m going to assume the facts are true 16 that are asserted in the motion. Whether they are or 17 not — because I think we can all agree we’re not for 18 sure if they ever — that the state attorney doesn’t 19 have these records. So what is it you’re seeking in 20 Count II — not the dec action. I know you want the 21 records. I’ve got that. But in Count II, 22 specifically, what do you — what’s the relief you’re 23 seeking and, more importantly, how under this statute 24 do you get to assert a private action — a private 25 cause of action against the state attorney and the¶
Page 6 1 clerk? 2 MS. BOYAGIAN: Your Honor, we are aware, of 3 course, that there is no expressed private right of 4 action, 905.27. But that does not end the inquiry. 5 As the Florida Supreme Court stated: 6 “Where a statute like 905.27 7 forbids an act which is to Plaintiff’s 8 injury, the party injured should have 9 an action,” 10 And that’s the [REDACTED] Piezo case in the volume 11 of materials that we sent you. 12 There’s no question here that the denial of the 13 FIRST AMENDMENT right to the press is an injury which 14 gives rise to a right of action. 15 Stated another way, looking at the analysis 16 that the Fischer Metcalf Court looked at, there are 17 three factors in determining whether there is a 18 private right of action where a statute does not 19 expressly provide for one. 20 One is whether the Plaintiff is part of the 21 class for which the statute is intended to protect; 22 second is a legislative history; and the third is the 23 underlying purposes of the statutory scheme. 24 The first factor I already addressed, that the 25 press is part of the class that the statute is¶
Page 7 1 intended to be helft, being the surrogate of the 2 public and exercising its first amendment right. 3 The second issue of legislative history and the 4 purpose — statutory purpose are somewhat related. 5 We were unable to find much legislative history on 6 this issue of a private right of action under the 7 statute. 8 There is nothing that says we intend to create 9 a private action, but there’s certainly nothing that 10 says we do not want to create a private right of 11 action. 12 What we do have is that in 1994, the same time 13 that 905.27 was reenacted, a statute that pertains to 14 the secrecy of State Grand Jury — statewide grand 15 juries was also enacted. That provision, which is 16 905.395, has no exceptions for — for revealing these 17 records. By contrast, the legislature intentionally 18 enacted 905.27 with the Furtherance of Justice 19 Exception. 20 If the public through the press can’t bring a 21 private right of action to enforce that exception or 22 to seek relief under that exception, that 23 intentionally placed exception of furthering justice 24 is essentially rendered hollow — 25 (Speaking simultaneously.)¶
Page 8 1 THE COURT: Okay. Pause for a minute. 2 I don’t think anybody is saying that there 3 isn’t a cause of action or that the press doesn’t 4 have standing. That’s not what I’m asking you. I’m 5 asking you, how are the clerk and the state attorney 6 the proper defendants? 7 So, you know, nowhere have I said there isn’t a 8 cause of action. Clearly there is. I’m puzzled by 9 the procedural posturing of this case naming the 10 state attorney. 11 And, you know, I’m further stymied by the fact 12 that you allege in your complaint that they have — 13 particularly David Aronberg the State Attorney — 14 that he has these records. 15 But I’m going to assume that’s true. So I’m 16 not telling you, you don’t have a cause of action. 17 I’m just saying, okay, let’s run this all the way 18 out. Let’s say you win and you get a judgment 19 against the State Attorney Dave Aronberg. 20 What’s he supposed to do with it? He can’t 21 release the grand jury testimony. He has no 22 authority whatsoever to do that. 23 MS. BOYAGIAN: Well, your Honor, as you stated, 24 this is a motion to dismiss stage, and we are 25 entitled to discovery on the issue of possession,¶
1 custody, and control. My understanding is that the 2 state attorney has asserted that he does not have 3 possession. It’s not my understanding that the clerk 4 has taken that position. So the clerk may indeed be 5 the — someone who does have possession, custody, end 6 control. 7 In any event, we would submit that the state 8 attorney, even it does not have actual possessionat 9 this time, it might be able to have the power to 10 control or direct the entity or persons who do hove 11 control and possession to release those to effect 12 the judgment. 13 THE COURT: So tel me ask you this: So the 14 clerk is the keeper of the record. But even if you 15 got a judgment against her — let’s say you asserted 16 this cause of action and lei’s say you win and you 17 get a judgment against the clerk. The clerk cannot 18 release grand jury testimony to you. Only the court 19 can. 20 So really — all I’m saying to you is I do not 21 understand the way this case was filed or why these 22 are the defendants because its impossible for them 23 to perform. 24 I mean. I’m going to assume, based on your 25 motion, again, that they do have the records. But we¶
1 give you what they don’t have. 2 So — I mean, it’s as simply as this: Are 3 you — you just want to engage in some discovery for 4 them to absolutely assert, particularly, the state 5 attorney, “I don’t have these records”; look to the 6 rules that say the moment the grand jury’s over, 7 they’re sealed and they’re turned over and they 8 cannot be released without court order? 9 So I’m not addressing the merits or whether you 10 have an exception or yoy’re able to erg” that 11 there’s an exception in the furtheraneterpfijustice. 12 We’re not getting there today. I:peen:Ay Saying why 13 should these two entities have to defend this lawsuit 14 when even down the roadIftheywhithey can’t give 15 you what they don’t have?. 16. MS. BOYAGIAhr As yeetHOnor stated, I’m not 17 sure that’s the case viith the clerk. That was not in 18 their — that is ue was not-stated in their papers. 19 THE UR , Let me ask you this, then: Do you 20 thinkfilo:got a judgment and I or the court 21 doetml prakethe determination that the grand jury shotild be released, that the clerk would be to perform? tad they be able to say There you go”? I 25 mean, could the clerk just make that unilateral¶
1 all know — everyone in the room knows th 2 that only the court — theyre — they’re vn 3 court interpreting. And only the courts:1m r 4 the records. 5 So if you get a judgment agra 6 state attorney or the clerk, cannot — I mean, I 7 guess what you’re saying to m II, we want to 8 do discovery and we want them to say unequivocally 1 9 have these records” or “I donthave them” 10 And —.1 mmin, the law is abimdantly dear. 11 You cannotdo it without a court deternining whether, 12 in Me/furtherance of jusbce, the release is 13 armee nate. 14 0 GIAN: And that is a determination g your Honor to make, and we’re asking for 16 order from your court. 17 HE COURT: When we get to the merits of the 18 case, sure it is. But, again, you’re asking me to 19 make that determination and for me to make a 20 determination of whether the grand jury records 21 should be released. And the only thing we’re here 22 today about is why should the clerk and the state 23 attorney have to defend a civil action whenirs a 24 possibility of performance? They — even if you were 25 to win and get a judgment against them, they cannot not¶
1 decision going to release the records, sealed 2 confidential records”? 3 Does she have any authority to do that? 4 MS. BOYAGIAN: My understanding, your Honor, is 5 that 905.27 requires a court order before the records 6 are unsealed. 7 THE COURT: Exactly. Exactly. 8 All right Let me hear from Mr. Aronberg’s 9 attorney, Mr. Wyler. 10 MR. WYLER: Thank you, your Honor. May it 11 please the Court — 12 THE COURT,. Good morning, Sir. 13 MR. WYLER: Good morning. .14 Your Honor, I just wanted to let you know that 15 I spoke with counsel for the clerk, Ms. Fingerhut, a 16 couple of days before this hearing, and we decided 17 that I would just make the presentation for both of 18 of us, being that our arguments overtop except for 19 the fact of who this claim — whether they have the 20 records or not, which, of course, we’ve said we don’t 21 haye custody of the records. 22 But, nonetheless, our arguments overlap. The 23 Plaintiff is attempting to assert a cause of action 24 under Section 905.27. That statute settled testimony 25 not to be disclosed exceptions. So ifs just¶
rage 1 explaining exceptions to the disclosure of the grand 2 jury testimony. 3 Our position is that it doesn’t set forth a 4 cause of action and that it’s impossible for us to 5 perform what they’re asking. 6 I know you said you didn’t really want to get 7 into the Furthering Justice Exception, but I know 8 that’s what they’re using es their basis to get to 9 these. But it’s our position that the clear 10 unambigiJous statutory language, it shows that this 11 disclosure only applies to a civil or criminal ease, 12 and that within that civil or criminal — 13 (Speaking simultaneously.) 14 THE COURT; Again, sir — I’m sony. As I told 15 Plaintiff’s counSel 16 MR. WYLER; — can only be used in the defense 17 for — 18 THE COURT: Okay. We’re not there. We’re not 19 ckscussing the merits of the case, and — I’m riot 20. ready to cross that bridge. I’m here for a very, 21 very limited hearing today. 22 So just as I stopped Plaintiffs counsel from 23 arguing the merits of the case and whether or not the 24 Furtherance of Justice Exception will apply in this 25 instance, we’re not even there yet.¶
1 I’m only here for the purpose of dote 2 whether or not the clerk and state atto 3 dismissed. And I am bound by the 4 document, which assert that you, 5 custody overit. 6 So if you’ll faShion your umentwith regard 7 to that limited purpose, I wouldappreciate it. 8 MR. WYLER: No problem, your Honor. I 9 apologize. \7’7 10 Wthin the-four comers of their complaint, our 11 position is,thkthey failed to state a cause of 12 action under 90&,27. 0 does not provide for — it 13 doesn’t list at there’s no element that they have 14 iderieneyfiled to assert a cause of action under 16.— There’s — and the only thing they’re asking 16 is records that we don’t have. 17 here’s really not much more to it, your Honor. 18 And we would ask that you would grant our motion to 19 dismiss for !attire to state a cause of action. 20 THE COURT: Okay. Ms. Fingerhut, are you still 21 on the phone? 22 MS. FINGERHUT: Yes, your Honor. 23 THE COURT: Is there anything you wish toadd? 24 MS. FINGERHUT: We agree with the state 25 14 be rs of the of and¶
age 1 attorneys position, and we also agree with what the 2 Court has said, that the plain language of the 3 statute, a cause of action doesn’t exist And we 4 really cannot — we’ll be defending something without 5 the four corners. We’re simply involved in this 6 action because the clerk is the custodian of the 7 records. 8 THE COURT: Okay. Thank you, I . Boyagian, back to you. 10 MS. BOYAGIAN: Your Honor, I’d lik4 to note 11 that in the Butterworth case in whichte_Supreme 12 Court limited the application 90S.27-by sin that a 13 witness can reveal her own teluritony and prohibiting 14 that they violate the FirstArWericen*1• — 15 THE COURT: Say thiel againi, please. 16 MS. BOYAOlAhr In thelupreme Court case, the 17 Butterworth case, erwhich the Supreme Court ruled 18 that 905.27oin’t (Oblate:Grand Jury witness from 19 revealingner 644 testimony, that would be a 20 viol• iitfkrst Aimendment, in that case, the state 21 att ey.as pr tact, a pOty. 22 441%. T COURT: Well, I assume. the state attorney : ow ao\Zs•Lvdi breaset wnetceltai mkieren, g albodount`thfienredthanalthd thaartss ether or not — I mean, as we know, this was in¶
Page 16 1 2006. Certainly Dave Arenberg wasn’t even the state 2 attorney then. But this is about the release of 3 records. 4 I Want to give yoU ample opportunity — and 5 again, I sincerely appreciate that all of the case 6 law and the way that it was presented to the Court in 7 such a timely fashion. I really do. And I did spend 8 some time with it. But I want to give yob whatever 9 opportunity you want to take to tonvince me that it 10 is in — as to. Count 2, again. Not the dee action — 11 whether these would be the appropriate defendants. 12 And, you know, really, I want you to boil it 13 down for me as to this — tars take it all the way 14 down the road. You win. You get a judgment against 15 the clerk and the state attorney. 16 I know there’s other reasons why you might have 17 filed it this way. But I’m just simply puzzled 18 because I do hear what the clerk and the state 19 attorney are saying, and that is, performance is 20 impossible. They don’t have the records and 21 cannot — absolutely. There’s not even an inch of 22 wiggle room — that they could release the records 23 even if you got a judgment It is solely a 24 determination for the court. 25 I, frankly, think, you know, there’s ways to¶
HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG¶
June 03, 2020 17-20¶
Page 17 1 get to your records. There’s ways to get 1 Page 19 (Speaking simultaneOusly.)¶
2 confidential records. But it isn’t by suing the 2 3 state attorney and the clerk. 3 4 So I just want to hear your last final argument 4 5 on how Count II, the appropriate defendants are the 5 6 clerk and the state attorney. Even assuming arguendo 6 7 they have the records — we know they don’t — you 7 8 were to get a judgment against them, how would you 8 9 expect them to perform? 9 10 MS. BOYAGIAN: Two points, yoix Honor One is 1 11 that, again, the clerk did not assert in her papers 1 12 that she does not have control. That is a position 1 13 that the State Attorneys Office has asserted. It is 1 14 our allegation, and as your Honor noted, allegations 1 15 must be accepted as true — as true at this stage of 1 16 the proceeifings. 1 17 Second, it is also our understanding that the 18 state attorney and the clerk intend to block access 1 19 to these records. So our allegation is that they do 1 20 have possession, custody, or control, which the clerk 2 21 has not denied; and second, that they we trying to 2 22 block access to the records — 22 23 THE COURT: What do you mean? What do you 24 mean? They’re not trying to block it. They’re 25 saying that despite the fact — let’s just talk about r. 5 THE COURT: Can you hear? Can the attorneys hear? MS. FINGERHUT: — custodian the records and that he cannot release the records without court — THE COURT: Exactly. Okay. All right. Anything further, Mr. VVyler? MR. WYLER: No, your Honor. I concur with the attorneys for the clerk’s office that it’s impossible 0 for us to release these records: ThereVb intent 1 to hide them or dock anything froradhar , lainfiff. 2 THE COURT: Okay. Anythinurther:’,:;≥ 3 Ms. Fingerhut? / 4 MS. FINGERHUT: No:Ydtat r r. 5 THE COURT: And, Ms. Boyagian, anything 6 further, (- 1.2-_ __/ I! .. BOYAGINIKNothing further, your Honor. 8 THE CO U T: Merlwill get an order out 9 quickly.Jan u, folks so much. And I’ll see you 0 on the-nextroun. Thanks a lot. 1 .1c3O S. YAGIANH Thank you, your Honor. “LER: Thank you, your Honor. e toceedings concluded at 10:28 a.m.)¶
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1 the clerk, because we all know the state attorney N:>. 2 doesn’t have it. .3 So the clerk is the custodian of rec0rds. 4 That’s her main job. There’s no d4 tc We 5 all know that. But we also knoVtUnectievrocally — 6 unequivocally, only the court ban make the 7 determination of whether the ntivinc(party has 8 satisfied that there is Unexception that these 9 should be released. 10 So, egainr fask you r the is, in fact, the 11 custodian of the records — is it your opinion that 12 if yotrgotaludgment saying clerk and comptroller 13 gets a judgment against them, that she can release 14 IS re4rdsokithout the court — withoulthe court g in, without the court making that 16 termination es required by law? 17 S. BOYAGIAN: No, your Honor. We are asking 18 your Honor to order the clerk to do that under your 19 discretion. 20 THE COURT: All right 21 Mr. — Ms. Fingerhut, you wish to be heard on 22 that? 23 MS. FINGERHUT: Your Honor, our position is 24 that we’re not trying to block access to the 25 records 2 3 4 5 6 9 10 11 12 13 14 15 16 11 10 19 20 21 22 23 24 25 I. So:15e N. M. Cecil% Reporter. certify that I vas authorised to ar4 did stenographically report the foregoing prctecdinge and that :De tranaCript, pages 1 through 19. le a true and templet* record of oy ster.ographic notes. Dated this 3rd day of Jute. 2120. j°222 tC 41’)12 & Sonja M. MI Court Mporter¶
600.211.DEPO (3376) EsquireSolutions. coni¶