IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CIRCUIT CIVIL DIVISION AG CASE NO. 50-2019-CA-014681-XXXX-MB CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST, Plaintiff/Petitioner vs. DAVE ARONBERG, SHARON R BOCK, Defendant/Respondents.¶
ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS COUNT II OF PLAINTIFF’S FIRST AMENDED COMPLAINT WITH PREJUDICE¶
THIS CAUSE cant before the Court on Dave Arenberg, as State Attorney of Palm Beach County’s (“State Attorney”) and Sharon R. Bock, as/Clerk &Comptroller of Palm Beach County’s, (“Clerk”) respective Motions to Dismiss2o/Q1’,PCA Florida Holdings, LW, Publisher of the Palm Beach Post’s (“The Post”),Firti Amended Complaint (DE## 22, 24). This / case is assigned to Division AG, which is cdriently presided over by the Honorable Donald Hafele. However, the undersigned, as chid- Judge of the Fifteenth Judicial Circuit, presided over the June 3, 2020 hearing on die, State Attorney and Clerk’s Motions as the Motions implicate records of the PahnBeach County grand jury, over which the Chief Judge presides. See § 905.01, Fla. Stat. (2(119). After careful consideration of the pleadings and the arguments presented at the hearing, the Court grants the Motions for the following reasons.¶
Background¶
T is outlet which has heavily reported on the 2006 Palm Beach County criminal prof Jeffrey Epstein. Through the instant civil lawsuit, The Post seeks “innediate access to the testimony, minutes, and other evidence presented in 2006 to the Palm Beach County grand jury” in Mr. Epstein’s case and alleges that both the State Attorney and Clerk arc “in possession and/or control of [those] documents.” (DE # 17, First Amended Complaint at ¶¶ 3,4, and 77). Specifically, The Post seeks declaratory judgment as to its rights to obtain the grand jury testimony in Mr. Epstein’s ca State Attorney and Clerk (Count 1) as well as¶
Party JOINT¶
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judgment against the State Attorney and the Clerk pursuant to section 90527, Florida Statutes, which sets forth the parameters of grand jury secrecy in Florida. (Count II). Both the State Attorney and the Clerk move to dismiss Count II of The Post’s First Amended Complaint, arguing that that section 90527 does not create a private cause of action. (DE## 22, 24). The Court agrees.¶
Analysis¶
214, “In reviewing a motion to dismiss for failure to state a cause of action, the court rnutht-a0\cpt the \41 allegations of the complaint as true and construe them in the light most favorable to the plaintiff.” Almarante v. Art Institute of Fort Lauderdale, Inc., 921 So. 2d 703, 704-05’(Fla. 4th DCA 2006). The motion should only be granted if the moving party demo rtes that the plaintiff cannot provide any facts that would support a cause of action. ollows that if the cause of action alleged is nonexistent under Florida law, dismissal’ d. Cummings v. Dawson, 444 So. 2d 565, 566 (Fla. 1st DCA 1984) (affinni f cause of action not recognized by Florida law).¶
Section 90527, Florida Statutes (2019), is titled “Testimony not to be disclosed, exceptions,” and states: —==-4¶
- / . (1) A grand juror, slate attorney, assistant state attorney, reporter, stenographer, interpreter, or any other 4Lerson its,appearing before the grand jury shall not disclose the testimony of a witness mined before the grand jury or other evidence received by it except when required by um to disclose the testimony for the purpose of:
- a. Ascertaining ‘.4,tiether it is consistent with the testimony given by the witness before •444, the,courti bi(Delernining whether the witness is guilty of perjury; or \EAathering v justice.
- (2) It is unlawful for any person knowingly to publish, broadcast, disclose, divulge, or communicate to any other person, or knowingly to cause or permit to be published, 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 when 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 l tter 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.¶
(3) Nothing in this section shall affect the attorney-client relationship. A client shall have the right to commtmicate to his or her attorney any testimony given by the client to the grand jury, any matters involving the client discussed in the client’s presence before the grand jury, and any evidence involving the client received by or proffered to the grarxl jury in the client’s presence.¶
(4) Persons convicted of violating this section shall be guilty of a misdemeanor of the first degree, punishable as provided ins. 775.083, or by fine not execeding $5,000, or both.¶
(5) A violation of this section shall constitute criminal contempt of.cotiat.¶
§ 90527, Fla. Stat. (2019). /¶
As the State Attorney and Clerk argue and The Pbsliconcedes, section 905.27 makes no express provision for a civil suit or civil liability. Nonetheless, The Post maintains that it is entitled to seek the grand jury records vie \asivath cause of action pursuant to the “furthering justice” exception to grand jury secre ’ din subsection 90527(IXc). Therefore, the limited question for this Court’s a on is whether a cause of action under section 90527 should be judicially implied. Mn y v. N. Sinha Corp, 644 So. 2d 983, 985 (Fla. 1994).¶
In advocating tha t7r4 • ,maintain a cause of action against the State Attorney and Clerk under section 905.27, Th ,Post urges the Court to examine three factors “(1) whether the r plaintiff is o (tat al theplass for whose special benefit the statute was enacted; (2) whether there is any Indic ‘on, — either explicit or implicit, of a legislative intent to create or deny such a remedy; t-d (3) whether judicial implication is consistent with the underlying purposes of the legislative scheme.” (Plaintiff’s Opposition to Defendant, Dave Aronberg, As State Attorney of Palm Beach County, Florida’s Motion to Dismiss Count]] of the First Amended Complaint at page 13 (citing Fischer v. Metcalf, 543 So. 2d 785 (Fla. 3d DCA 1989)). Within these three factors, The Post recognizes that there is no indication of legislative intent to create a cause of action, but leans heavily on the benefit factor, arguing that the “furthering justice” exception to¶
grand jury secrecy outlined in section 90527(1)(c) was meant to benefit the public at large, for which the press acts as a surrogate. The Post’s arguments are unpersuasive as to the discrete issue of whether a private cause of action lies in section 90527.¶
To begin with, The Post’s reliance on the benefit factor is misplaced. Per the Florida Supreme Court’s 1994 opinion in Murthy, “the question of whether a statute establishes a duly to take precautions to protect or benefit a particular class of persons is no longer determigative on the question of whether a cause of action should be recognized.” Sorenson v. Pro, Compounding Phannacisu of W. Pa., Inc., 191 So. 3d 929 (Fla. 2d DCA 2016 Murthy, 644 So. 2d at 985). Instead, “whether a statutory cause of action should Ily implied is a question of legislative intent.” Horowitz v. Plantation Gen. Hosp. Lt , 959 So. 2d 176, 182 (Fla. 2007). See also QBE Ins. Corp. v. Chalfonte. Condo. 541, 551 (Fla. 2012) (“Since Murthy, we have reaffirmed ” cause of action should be judicially implied is a ques ent Ass’n. Inc., 94 So. 3d e that whether a statutory slative intent.”); Universal Prop. & Cas. Ins. Co. v. Loftus, 276 So. 3d 849, 851 (Flt DCA 2019).¶
As is always the case when a court ut kes legislative intent analysis, the plain language of the statute is the starting, t.” “When the statute is clear and unaritiguotts, courts will not look behind the statute’s plain language for legislative intent Pr resort to rules of statutory construction to ascertain intent.” Loftus, 276 So. 3d at 85 ,(Fla. 4th DCA 2019)Xquoting Daniels v. Fla. Dept of Health, 898 So. 2d 61, 64 (Fla.,05)). ’ (13wever, a single part of a statute should not be read in isolation” Id. 1” -” “Instead, ‘alLp_arts o statute trust be read together in order to achieve a consistent whole.”’ Id. (quoting•Fot.syt/29 v. Longboat Key Beach Erosion Control Dist, 604 So. 2d 452, 455 (Fla. ending, point. See Horowitz, 959 So. 2d at 182. 199¶
As The Post acknowledges, “there is a dearth of legislative history surrounding Section 965.27 and the The Palm Beach Post was unable to locate any documents capturing any legislative intent regarding the possibility of a private right of action.” (Plaintiff’s Opposition to Defendant, Dave Aro nberg, As State Attorney of P1Lm Btach County, Florida’s Motion to Dismiss Count II of the First Amended Complaint at page 14). While the lack of any legislative¶
history indicating an intent to create a private right of action is telling, it is not dispositivc as the plain language of the section 90527 is clear an unambiguous and, therefore, controls. Horowitz, 959 So, 2d at 182.¶
Examining the plain language of section 905.27 in its entirety which requires the Court to look at more than just the “furthering justice” provision of section 905.27(I)(e) relied on by The Post, it is clear that the intent of the Legislature in passing section 905.27 was to limit, t facilitate, disclosure of grand jury records. In no uncertain team, the Legislature peAw d that no “person appearing before the grand jury” may “disclose” testimony or evide presented except when “required by a court” under certain limited circumstances. ), Fla. Stat. In solidifying that its intent was to prohibit disclosure without court pc sion, the Legislature provided that disclosure without a court order is a criminal off 90527(4), Fla. Stat. Therefore, to the extent section 905.27 coulcl be mad as duty on the State Attorney and Clerk, the duty imposed is one of secrecy, not tb”e s 4 Ait {sup}v¶
In sum, there is nothing in the text of t {sup}5 semiek.s 7 IVIII which one can deduce that the Legislature contemplated a member of the me • or nyort else for that matter, having a private cause of action to compel the State At Clerk to disclose grand jury records. Indeed, to the contrary, section 905.27 pt State Attorney and the Clerk (assuming that, as (— pleaded by The Post, they have the doewients) from disclosing the documents without first being ordered to do so the court,[!] Reading section 90527 as creating a private cause of action against the tate A omey and Clerk is, therefore, not only unsupported by the language of section 90522%k actually paradoxical to its plain language of the statute. As such, this Court lacks tin er t construe the unambiguous language of section 905.27 in a way that would extentris-txpress terms and create a cause of action where none exists. “To do so would be an abrogation of legislative power.” Horowitz. 959 So. 2d 176. 182 (quoting Holly v. Ault 450 So 2d 217. 219 (Fla. 198411¶
Conclusion¶
Based on the foregoing, the Court finds Count II of The Post’s First Amended Complaint must be dismissed with prejudice as it pursues a nonexistent cause of action under section¶
905.27. In arriving at this conclusion, the Court does not suggest The Post has no available mechanism to obtain a court order granting it access to the grand jury proceedings. The Court also does not render any opinion as to whether releasing these records is appropriate for the purpose of “furthering justice” within the meaning of section 905,27. Rather, the Court’s dismissal of Count H is necessitated by precedent and the simple fact that a civil lawsuit against the State Attorney and Clerk under section 90527 is not the proper mechanism for The post to pursue its goal. _¶
Therefore, it is hereby¶
ORDERED AND ADJUDGED that Dave Aronberg, as State Attorney of Palm Beach County’s and Sharon R. Bock, as Clerk & Comptroller of Palm Beach County’s, respective Motions to Dismiss Count II of CA Florida Holdings, LLC, PubliSher of the Palm Beach Post’s First Amended Complaint are GRANTED and Count II of first Amended Complaint is hereby DISMISSED with prejudice.¶
DONE AND ORDERED, in West Pal ach, Palm Beach County, Florida this 8th day of June, 2020.¶
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50.2019•CA-014681•XXXX•MB 061052020 Kriita Manc Chief Judge¶
COPIES TO:¶
DOUGLAS A. WYLER¶
No Address Available No E-mail Address Available¶
961687 GATEWAY BLVD dougwyler®comcast.net SUITE 201-1 FERNANDINA BEACH, FL¶
T notes that, if there was a court order directing the State Attorney or the Clerk to disclos .records and the State Attorney or the Clerk refused, the remedy fordisobeying a court order is contempt or, in some instances, a mandamus proceedings — not a civil lawsuit.¶
MICHAEL GRYGIEL MICHAEL J. GRYGIEL NICOLE R. FINGERHUT NINA D. BOYAJ IAN NINA D. BOYAJIAN STEPHEN A. MENDELSOHN, ESQ 32034 54 STATE STREET 6TH FLOOR ALBANY, NY 12207 No Address Available POST OFFICE BOX 229 WEST PALM BEACH, FL 33401 No Address Available 1840 CENTURY PARK EAST SUITE 1900 LOS ANGELES, CA 90067 5100 TOWN CENTER C SUITE 400 BOCA RATON, FL 3 GRYGIELM@GTLAW.COM grygielm@gtlaw.c.om CLERK_E-SERVICE®MYPALMBEACH CLERK.COM nfmgerlage)mypilmInichclerk com boyajiarm©gtlamtS, riveraal@gda No E-Mi vailable elsobnsegtlaw,com gtlaw.com ervice@gtlaw.com¶