M A N D A T E¶
from¶
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT¶
This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;¶
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.¶
WITNESS the Honorable Mark W. Klingensmith, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day.¶
DATE: May 26, 2023 CASE NO.: 22-0293 COUNTY OF ORIGIN: Palm Beach T.C. CASE NO.: 502019CA014681XXXXMB¶
STYLE: CA FLORIDA HOLDINGS, v. DAVE ARONBERG, as State Attorney of Palm Beach County, Florida, et al. LLC, Publisher of THE PALM BEACH POST¶
Lonn Weissblum¶
LONN WEISSBLUM, Clerk Fourth District Court of Appeal¶
Served:¶
cc: Amy [REDACTED] Borman Douglas Wyler Katherine [REDACTED] Clemente Stephen A. Mendelsohn¶
Brigid Finerty Cech Samole Jennifer Fleming Printz Michael J. Grygiel Clerk Palm Beach¶
Collin D. [REDACTED] Jessica Neer McDonald Nina D. Boyajian¶
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT¶
CA FLORIDA HOLDINGS, LLC, Publisher of THE PALM BEACH POST, Appellant,¶
v.¶
DAVE ARONBERG as State Attorney of Palm Beach County, da, and ABRUZZO, as Clerk of the Circuit Co and Comptroller of Palm Beach County, Flori Appellees.¶
No. 4D22-293¶
[May 10, 2023]¶
Appeal from the Circuit Court for the Judicial Circuit, Palm Beach County; Donald W. Hafele, Juylgd, . Case No. 50-2019-CA-014681-XXXX-MB.¶
Stephen A. Mendelsohn of G Traurig, P.A., Fort Lauderdale, Brigid F. Cech Samole of Gre erg aurig, P.A., Miami, and Katherine M. Clemente of Greenberg T P, New York, New York, for appellant.¶
Nina D. Boyajian o Pro Hac Vice, for appe erg Traurig, LLP, Los Angeles, California,¶
Michael J. G Hac Vice, for Greenberg Traurig, LLP, Albany, New York, Pro¶
Colli Bonn Circus , Jennifer Flemirig Printz, and Amy t Palm Beach, for appellee •=1 Abruzzo, as Clerk of the and Comptroller, Palm Beach County, Florida.¶
PER C¶
CA Florida Holdings, LLC, the publisher of the Palm Beach Post (“the Post”), appeals a final judgment denying the Post’s request for access to the grand jury proceedings involving the late Jeffrey Epstein. The Post argues the final judgment should be reversed for three reasons: (1) section 905.27, Florida Statutes (2019), provides a private right of action for disclosure of grand jury materials; (2) the circuit court has the inherent power to regulate the use of grand juries; and (3) grand jury secrecy is not absolute. We agree with the Post in part, and reverse and remand the case.¶
• The Trial Court Proceedings¶
The Post filed a complaint against the state attorney and the clerk, requesting disclosure of the grand jury materials under section 905.27, Florida Statutes (2019). Both defendants moved to dismiss. In re onse, the Post filed an amended complaint, adding a count for declara relief.¶
Both defendants answered the amended complaint as to th claratory relief count and moved to dismiss the count reques n d jury materials under section 905.27. The state attorney ale ed possession and/or control of documents.” The clerk admitted it in possession and/or control of documents.”¶
The Chief Judge of the Fifteenth Judicial % eard the motions to dismiss. The Chief Judge stated: “I don’ 12/ ybody is saying that there isn’t a cause of action [under s 5.271 or that the press doesn’t have standing.” Counsel for t e clerk and state attorney indicated they did not seek to “bloc e ” to the records. The trial court granted the motions to dismiss, ing ction 905.27 did not provide a private cause of action.¶
Specifically, the order a [T]he [c]ourt does not suggest The Post has no available meth t obtain a court order granting it access to the grand jury procee gs. he [c]ourt also does not render any opinion as to whether releasin ese records is appropriate for the purpose of ‘furthering justic the meaning of section 905.27.” The Post dropped the s ate to ey as a defendant. The clerk remained a nominal defendant ere ords custodian.¶
Th moved for summary judgment, asserting the grand jury mate ould be released under the First Amendment of the U.S. on in conjunction with section 905.27, which allows for the relea of grand jury materials “in … furtherance of justice.” The Post also argued the trial court had inherent authority over the grand jury to order the disclosure. Prior to the hearing, the clerk filed an extensive opposition, citing Florida Rule of General Practice and Judicial Administration 2.420. The Post filed a reply. The clerk did not cross-move for summary judgment.¶
The then-assigned trial court held a hearing and ultimately issued a final judgment dismissing the Post’s complaint, finding the court’s¶
inherent authority was constrained by section 905.27. Further, the trial court found it had “limited authority to order the release of grand jury records” regardless of “how palatable and persuasive [the Post’s] arguments may be.”¶
Rather than evaluate the Post’s motion for summary judgment under section 905.27, the trial court ruled “the proper procedure for obtaining disclosure of confidential court records is set forth in Florida le of General Practice and Judicial Administration 2.420(j).” The court found its “inherent authority” did not “permit it to broa on 905.27’s purported limits. The trial court interpreted the sta o require a pending civil or criminal action in which the movant is a fore the “in furtherance of justice” provision could be invoked.¶
The trial court agreed “the established matter Cudrrounding Mr. Epstein’s conduct, the circumstances of his re •n of the 2006 state charges and potential federal charges, an 08 guilty plea and incarceration are matters of public interest osure of the Materials may arguably fall within the concept of g justice’ in the broadest, social sense of the phrase.”¶
From this order, the Post arguments. The clerk maintai requested disclosure. and reiterates its trial court tral position. I No one opposes the¶
• Standard of Revisal¶
We review de novo Shfirial summary judgment. Cleveland v. Westport Recovery Corp., A4011. 2, 3d 728, 730 (Fla. 4th DCA 2021).¶
• Florida Rule of General Practice and Judicial Administration 2.420¶
At libialitset we hold the trial court’s reliance on Florida Rule of actice and Judicial Administration 2.420 was misplaced. First, the P did not request the materials pursuant to rule 2.420. That rule was simply not raised in the pleadings. And second, the clerk, who injected rule 2.420 into the proceedings, advised this court in oral argument that the rule is inapplicable because this case does not involve an ongoing criminal or civil matter.¶
The Post, the circuit court clerk, and this Court all agree the only reason for the clerk’s continued participation is solely as custodian of the grand jury materials.¶
In short, the trial court erred in analyzing the disclosure issue under rule 2.420. This alone requires reversal and remand for an analysis under section 905.27.¶
• Section 905.27¶
“There is a tradition in the United States, a tradition that is `older than our Nation itself,’ that proceedings before a grand jury shall g erally remain secret.” In re Petition of Craig, 131 F.3d 99, 101 (2d ’ 1997) (citations omitted).¶
The rule of secrecy, however, is not without excepti. 1 se exceptions have developed historically alongsid recy tradition and, more recently, in the practice federal courts. They also are codified in [Federal • ul Criminal Procedure 6(e)(3)1. By this rule, district c s part of their supervisory authority over the grand 4 at they have empaneled, are explicitly given the •n to determine whether, if one or more of the list ons to grand jury secrecy apply, disclosure of rec propriate.¶
… [T]his court has recogr d t1 there are certain ‘special circumstances’ in whic relese of grand jury records is appropriate even outsid .ilze boundaries of the rule.¶
Id. at 102 (citations o¶
In Craig, the Sec release grand j beyond Hasting Circ • evep tho ircuit held the district court had authority to terials based on special circumstances that went e ceptions listed in Rule 6. Similarly, in In re .2d 1261, 1268-69 (11th Cir. 1984), the Eleventh d the district court’s disclosure of grand jury proceedings gh not specifically authorized by Rule 6. And the U.S. ourt has held section 905.27 cannot prevent a grand jury from disclosing his/her own testimony because it would violate th ‘tness’s First Amendment rights. Butterworth v. MS 494 U.S. 624 (1990).¶
We extract from these decisions the court’s inherent authority to disclose grand jury materials despite the traditional rule of secrecy. In fact, this is contemplated and supported by section 905.27’s language.¶
Craig also provides helpful instruction on what a trial court should consider when faced with this issue.¶
Mindful that there is no talismanic formula or rigid set of prerequisites, we offer the following non-exhaustive list of factors that a trial court might want to consider when confronted with these highly discretionary and fact-sensitive `special circumstances’ motions: (i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii why disclosure is being sought in the particular case; (iv) w specific information is being sought for disclosure; (v long ago the grand jury proceedings took place; (vi) the C nt status of the principals of the grand jury proceedin at of their families; (vii) the extent to which the desir either permissibly or impermissibly—has be made public; (viii) whether witnesses to th proceedings who might be affected by dis and (ix) the additional need for mai particular case in question. pt ‘al n p d jury are still alive; ecrecy in the¶
Craig, 131 F. 3d at 106.¶
With this foundation, we be alysis of section 905.27. That statute’s pertinent subsection¶
- (1) A grand juror, orney, assistant state attorney, reporter, steno nterpreter, or any other person appearing befo grand jury shall not disclose the testimony of a wi examined before the grand jury or other evidence re d by it except when required by a court to clisclos the s ony for the purpose of:
- (a) c ning whether it is consistent with the testimony e witness before the court; Determining whether the witness is guilty of perjury; or
- (c) Furthering 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 leg associates and employees. When such disclosure is orde, by a court pursuant to subsection (1) for use in a civil c , may be disclosed to all parties to the case and t eir attorneys and by the latter to their legal asso employees. However, the grand jury testimony uch persons by the court can only be used in e d ense or prosecution of the civil or criminal case and no other purpose whatsoever.¶
§ 905.27, Fla. Stat. (2019).¶
We disagree with the trial court’s r \ “Ci ti t”c reading ) of section 905.27. We read subsection (1) to prohibit • people from disclosing grand jury witness testimony and evide ss required to be disclosed by a court. The statute articulates eptions to the prohibition. Its very language contemplates the s ability to order disclosure: “except when required by a co ose … .” § 905.27(1), Fla. Stat. (2019).¶
Although section 9 27 = ddresses grand jury proceeding secrecy and non-disclosure, it also ifically recognizes a court’s inherent authority to order disclosur ere, the Post requested disclosure to further justice in this high-p ofile i al investigation into the late Jeffrey Epstein. The Post did so traci g the investigation’s controversial history and ultimate dispositi e charges against him. The trial court was required therefo ermine whether the disclosure will in fact further justice unde 905.27.¶
Colyrts have inherent authority to “do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction, subject to existing laws and constitutional provisions.” v. Palm Beach County, 361 So. 2d 135, 137 (Fla. 1978). Here, the trial court did not exercise its inherent authority as contemplated by section 905.27(1).¶
Yet, we do know the trial court has already noted:¶
[T]he established matters surrounding [Epstein’s] conduct, the circumstances of his resolution of the 2006 state charges and potential federal changes, and his 2008 guilty plea and incarceration are matters of public interest, and disclosure of the Materials may arguably fall within the concept of “furthering justice” in the broadest, social sense of the phrase.¶
It may well be that the disclosure of [Epstein’s] grand records could reveal that fair treatment did not occur an [Epstein] might have escaped appropriate puni through some failing of our justice system.¶
We are not unmindful of section 905.27’s subsecti which the trial court read to limit any disclosure under subsectio But we also disagree with the trial court’s reading of subsec¶
We read subsection (2) to accomplish disclosure by others than those listed i has been ordered. And second, it dire in pending criminal and civil proce gs. First, it prohibits on (1) unless disclosure om disclosure can be made¶
For the foregoing reasons proceedings consistent wi shall conduct an in-cam the guidance provided furthers justice. If so, material that furthers j necessary to prot have not bee any of the deny dis e and remand the case for further inion. Upon remand, the trial court ction of the material sought and using decide whether the material’s disclosure it has the inherent authority to disclose any e. In doing so, the trial court shall take steps e identity of the victims, witnesses, and those who y charged. If the court determines disclosure of erial not further justice, the court can, in its discretion, f that material.¶
ur decision could have far-reaching consequences, we certify ng question to be of great public importance:¶
DOES A CIRCUIT COURT HAVE INHERENT AUTHORITY TO DISCLOSE GRAND JURY EVIDENCE TO FURTHER JUSTICE UNDER SECTION 905.27?¶
Reversed and remanded for further proceedings.¶
MAY, J., concurs.¶
Cium, J., concurs specially with opinion.¶
system, I wo judiciary h grand j inclu rule Because Flori d d juries are an integral part of the Florida judicial that under the Florida Constitution, the Florida the inherent power, authority, and control over all Florida eedings—which are indisputably court proceedings release of its records and materials. Subject to the wer of the Florida Supreme Court, this inherent authority inel lthe overall regulation and control of all grand juries as integral to ju ial proceeding in a court of justice … an appendage or adjunct to the circuit court.” In re Grand Jury, 287 So. 2d at 46 (quoting Craft v. State, 29 So. 418, 419 (Fla. 1900)).¶
Kurrrz, J., concurs specially with opinion.¶
CIKLIN, J., concurring specially.¶
I write to concur with the majority opinion insofar as it instructs the circuit court to forthwith implement a procedure necessary to provide a means for the circuit court to review the Palm Beach Post’s request for access to the subject grand jury proceedings. But contrary to the jority opinion, I tend to agree with both the circuit court and the cl f the circuit court that section 905.27, Florida Statutes (2019), h: ng on the issue before us. Specifically, section 905.27 provide narrow substantive rights to those indicted for crimes to ob d/jury materials for use in their civil and criminal cases. § 905 , Fla. Stat. (2019). Like Florida Rule of General Practice and Ju ministration 2.420, section 905.27 assumes an ongoing civil or case, and that is not the posture of this case, renderin provisions equally inapplicable.¶
But—under the jurisprudence of inquiry because the Florida judiciary grand jury records and does no business. cre that does not end our h nt authority over all of its egislative authority to do its¶
Florida’s judicial syste inseparable relationship t Supreme Court has de Investigation, 287 So. all Florida grand juries enjoy an back more than 120 years. The Florida t as a “blood kinship.” In re Grand Jury 6 (Fla. 1973).¶
I also concur with my colleagues’ decision to certify the question of great public importance raised in this case to the Florida Supreme Court. The question of a circuit court’s inherent authority to order disclosure of grand jury records is a matter of first impression. See Duggan v. Tomlinson, 174 So. 2d 393, 393 (Fla. 1965) (recognizing that, pursuant to provisions of the¶
Florida Constitution, the Florida Supreme Court has jurisdiction to review any decision of a district court of appeal that passes upon a question of great public interest, especially as to “decisions … of first impression”). Additionally, our decision could have far-reaching consequences, as it has the potential of resulting in numerous requests by the press or the public for disclosure of grand jury records. See Young v. State, 678 So. 2d 427, 429 (Fla. 4th DCA 1996) (certifying a question of great public importance where the issue “arises frequently and affects numerous c minal defendants within this district and throughout the state”). T s I too would certify a question of great public importance but w9 i s tly broaden it as follows:¶
WHAT POLICIES AND PROCEDURES, IF ANY, BE ENACTED UNDER THE RULE-MAKING AUTH THE FLORIDA SUPREME COURT OR THE AUTHO VESTED TO THE CIRCUIT COURTS BY THE F ‘A SUPREME COURT TO PROPERLY CONSIDER AN I A REQUEST TO DISCLOSE PORTIONS OF F yA GRAND JURY RECORDS?¶
KUNTZ, J., concurring specially. “S’¶
I agree that the circuit cou the appellant’s request to because the operative ple that controlling autho ’ release of grand jury court’s opinion. hen it relied on Rule 2.420 to deny e grand jury records, particularly not ask the court to do so. I also agree a circuit judge discretion to order the ‘s when justice requires. So I concur in the¶
I do so eve tho generally, “Nile proceedings of a grand jury are to be kept se C en u. State, 52 So. 2d 117, 120 (Fla. 1950). For that reason, t ture “closed” grand jury proceedings to the public. Palm Beach apers, Inc. v. Burk, 471 So. 2d 571, 582-83 n.9 (Fla. 4th DCA 1985 stead, dissenting); see also Palm Beach Newspapers, Inc. v. o. 2d 406, 408 (Fla. 4th DCA 1984). The legislature also created a sys to peer into these secret proceedings when certain conditions are satisfied. Minton v. State, 113 So. 2d 361, 363 (Fla. 1959) (referencing section 905.27, Florida Statutes).¶
This Court has agreed that section 905.27 governs the release of grand jury materials. See Barber v. Interim Rep. of the Grand Jury Spring Term 1995, 689 So. 2d 1182, 1185 (Fla. 4th DCA 1997); James v. Wilk, 480 So. 2d 253, 254 (Fla. 4th DCA 1985). Our sister courts and the Florida Supreme Court reached the same conclusion. See, e.g., Minton, 113 So. 2d at 363; Tallahassee Democrat, Inc. v. O’Grady, 421 So. 2d 58, 59 (Fla. 1st DCA 1982); Jackman v. State, 140 So. 2d 627, 629 (Fla. 3d DCA 1962).¶
Those cases hold that section 905.27 allows the release of grand jury materials in the furtherance of justice. See also Keen v. State, 639 So. 2d 597, 600 (Fla. 1994); Minton, 113 So. 2d at 363; State a rel. Dewell, 167 So. 687, 689 (Fla. 1936); James, 480 So. 2d at 254; State v. Gillespie, 227 So. 2d 550, 559 (Fla. 2d DCA 1969); State v. Drayt , 226 So. 2d 469, 474-75 (Fla. 2d DCA 1969).¶
Notwithstanding those cases, it is unclear whether the the statute allows release of grand jury materials outs criminal case. See § 905.27, Fla. Stat. The statute’s to in limited situations and to limited persons, and only disclosure of the material. Id. There are three 905.27(1)(a) allows the named persons to disc when ordered by a court to do so for the pu it is consistent with the testimony given b Section 905.27(1)(b) allows a court to testimony when necessary to determ perjury.” Finally, section 905.27(1 disclosure of grand jury tes disclosure would further justi al text of civil or disclosure a court orders ons. Section and jury testimony scertaining whether ess before the court.” isclosure of grand jury er the witness is guilty of s that a court can permit the en the court determines that¶
Most cases focus on of justice. Section 90 pending civil and cri entire statute is ignore xception, disclosure in the furtherance hich appears to limit the disclosure to oceedings—is ignored.2 In other cases, the ‘een, 639 So. 2d at 600.¶
Why porti s orsection 905.27 are ignored is unclear. In a different context, th orida upreme Court noted that the legislature controls the publica d jury materials. Miami Herald Publ’g Co. v. Marko, 352 So. 2d 21 (Fla. 1977) (“It is undoubtedly for this reason that the legisl s now afforded an opportunity to prevent the publication of le material through the repression of matter that is `improper and unlawful.’”). If the legislative system for preventing publication of a grand jury report controls, why can we disregard the legislature’s system for releasing grand jury materials? It seems to me that “Rpm legislature¶
{sup}2 It was argued in at least one case that grand jury materials can only be released in a pending civil or criminal case. State ex reL Oldham v. Baker, 226 So. 2d 21, 22 (Fla. 3d DCA 1969). The case was resolved on other grounds. Id.¶
has chosen … [the system] and it is not our prerogative to select another alternative.” Id. at 520 n.5.¶
The language of the statute should control for another reason. The Florida Constitution provides broad access to public records. But it includes a provision that any laws or rules of court “in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial br ches, until they are repealed.” Art. I, § 24(d), Fla. Const. If a class of d u rents was not made confidential by statute or rule on that date, the, not be confidential unless later classified as confidential by a su ajority of the legislature. Id. § 24(c). But the legislature had for the confidentiality of grand jury proceedings on that date. , Fla. Stat. The statute makes grand jury proceedings confidenti he statute is where we should turn to determine the exceptions. § 7, Fla. Stat.¶
In conclusion, controlling authority hold court may disclose grand jury materials under the furtheri provision of section 905.27(1). That compels me to join the n opinion and decision to certify a question to the Florida Supr o . While I join the majority opinion in full, I do not agree that rity opinion is instructing the circuit court to implement a pr ure provide a means to review the pending request to access the cLan ui zy materials. We are judges, not kings, and on a clean slate, ,stick to the language of the statute.¶
Not final until disjlwition of timely filed motion for rehearing.¶