Court Records
Filing # 114366701 E-Filed 10/02/2020 04:21:35 PM
114 THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT TN 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 R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida,
Defendants.
7Th
MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS. LLC IN OPPOSITION
TO THE STATE ATTORNEY'S FLA. STAT. SECTION 57.105 MOTION
Plaintiff, CA Florida Holdings, LLC, publisher of the largest and most prominent newspaper
in Palm Beach County, Florida, The Palm4ach Post, submits this Memorandum of Law In
Opposition to the State Attorney's Fla<t ta . .105 Motion, and for the reasons set forth below, the
ts)CState Attorney's Motion should e em , with prejudice.
I. THE PU OSE OF THE PALM BEACH POST'S SUIT
As extensively detailed in its Amended Complaint, the criminal prosecution of the late Jeffrey
7 \
Epstein by former State\ ,Attorney Barry Krischer, Palm Beach Circuit Court Case No. 50-2008-CF-
I
AXXXMH Sra erious and troubling questions as to whether it was properly conducted. The
Amended mplaint provides numerous examples of the prior State Attorney's "highly unusual" —
in the words of the former Town of Palm Beach Police Chief— treatment of the numerous complaints
of sexual misconduct and assault made against Epstein, including but not limited to the former State
Attorney's refusal to cooperate with the investigation of the Town of Palm Beach Police Department,
his focus on only one underage sexual assault victim though there were other known victims, his use
FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 10/02/2020 04:21:35 PM
EFTA02732873
of information provided by Epstein's defense team to undermine the State's witness and his approval
of a plea agreement and sentence that enabled Epstein to spend his days on furlough where he likely
committed additional sexual crimes. While much of the Epstein saga is a matter of public record, the
public still does not know how former State Attorney Krischer used the grand jury process — and the
secrecy that comes with it — to shield Epstein and his equally powerful and corrupt accomplices from
the public and justify Epstein's lenient treatment. Access to the Epstein gran
reveal how the instrumentality of the grand jury was used in this case, w
matter of vital public concern.
H. THE STATE ATTORNEY'S 57.105 MOTION IMP E SEEKS TO DETER
THE PALM BEACH POST FROM SERVIN
In moving pursuant to Fla. Stat. § 57.105 agains\
current State Attorney improperly seeks to deter
proceeding. Whether the current State Attom
or is trying to protect grand jury secret
terials will
questionably a
PUBLIC INTEREST
Beach Post and its counsel, the
m is inquiry into the Epstein grand jury
ated by animus against The Palm Beach Post
ortant. What is important, and troubling, is that the
State Attorney does not want to aC i novel and important public issues on their merits, but
instead is using the threat of sans o suppress The Palm Beach Post's investigative reporting.
The State Atto ey wered the Amended Complaint, and disclaimed possession of the
Epstein grand ju Is, he has not moved for summary judgment on the remaining claim; Count
I — Declara ent. Further, the State Attorney has now shown — and presumably cannot show
— that he 1 the authority under Chapter 905, Fla. Slats., to request and obtain access to the Epstein
grand jury materials from the Clerk of the Court (the "Clerk").
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EFTA02732874
In response to The Palm Beach Post's Request to Produce, the Clerk's office recently provided
internal email communications, but none were relevant to the Request. According to its officials, the
Clerk's office does not maintain logs or registers and that it is impossible to determine whether the
State Attorney's office sought or obtained access to the Epstein grand jury materials during or after
its Epstein prosecution. Given this uncertainty, The Palm Beach Post will serve di demands
upon the State Attorney's office to determine whether it accessed or exercis over the grand
jury materials.
Also, the Clerk, who admittedly has both possession an trTbf the Epstein grand jury
materials, has not followed the State Attorney's lead in see 4 to lion The Palm Beach Post: the
i?._ Clerk has neither provided the 21-day safe harbor • e n ined in Section 57.105 nor has she cc of
\moved for sanctions. The Clerk's decision supp e , erence that the State Attorney is using the
threat of sanctions to avoid litigating the c on i erits.
e s in
ItlHI. THE STATE ATTOR REPRESENTS THE COURT'S JUNE 8, 2020
,, ORDER
In its bare-bones Section 05 motion, the State Attorney's main argument is that this Let )
Court's June 8, 2020 Order r ting Defendant's Motions to Dismiss Count II of Plaintiff's First
Amended Com t Prejudice (the "Order") held that all The Palm Beach Post's claims are
without an a Order does no such thing.
Tho the parties' motion papers and the oral argument on June 2, 2020 covered a range of
complex statutory issues, the Order addresses only one—whether Fla. Stat. § 905.27 creates a private
right of action. This issue was not the principal focus of either the State Attorney's or the Clerk's
motions to dismiss Count II. Instead, they primarily asserted that The Palm Beach Post lacked
standing under section 905.27 to seek grand jury materials "in furtherance of justice." The State
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EFTA02732875
Attorney and the Clerk argued that the statute prohibited the use of grand jury materials except for
limited purposes in a civil or criminal proceeding in which the movant is a party. Because, according
to the State Attorney and the Clerk, The Palm Beach Post did not intend to use the Epstein grand jury
materials in a civil case in which it was a party, nor in a criminal case, the State Attorney and the
Clerk asserted it lacked standing.
The Palm Beach Post, as set forth in its Opposition to Defendant Dave As State
Attorney of Palm Beach County, Florida's Motion to Dismiss Count first Amended
Complaint ("Plaintiff's Opposition"), views § 905.27 as encompassin
use by a party in her civil case; (2) use by a party in her criminal
as a representative of the public "in furtherance ofjustice
\
" rgc8 i ed by the First Amendment to
the U.S. Constitution and the Florida Constitution.
k ments, though it did acknowledge during This Court, in its Order, did not ad
able scenarios—(I)
or (3) use by the media
oral argument that The Palm Beach Pos sta ling-page 8 of the transcript. Rather, the Order
focused solely on whether § 905.27 a rmplied private right of action and held that it did not.
See Order at 3. That ruling did n — no less apply — the statute's "in furtherance of justice"
exception to grand jury s o the Epstein case. Given this Court's narrow ruling, the State
Attorney wrongly tha the Court determined that the "justice" provision of § 905.27 has been
adjudicated ag e Palm Beach Post, and that Count I is frivolous.
E ISSUES RAISED IN COUNT II ARE NOVEL AND COMPLEX
As set forth above, this Court limited its inquiry to "whether a cause of action under section
905.27 should be judicially implied. [citation omitted]." See Order at 3. In determining that the
Florida legislature did not intend to create a statutory cause of action and remedy, this Court addressed
a novel and complex issue. As such, section 57.105, on its face, is not implicated.
Section 57.105(1Xa)-(b) provides that a court shall award fees to the prevailing party if:
4
EFTA02732876
the losing party or the losing party's attorney knew or should have
known that a claim or defense when initially presented to the court or
at any time before trial: (a) was not supported by the material facts
necessary to establish the claim or defense; or (b) would not be
supported by the application of then-existing law to those material
facts.
Section 57.105(3Xa) further provides that monetary sanctions shall not be awarded
if the court determines that the claim or defense was initially presented
to the court as a good faith argument for the extension, modificatioth
or reversal of existing law or the establishment of new law, as it a
to the material facts, with a reasonable expectation of
[Emphasis added.]
The Florida Supreme Court has held that attorneys' fees shout not awarded unless there
is "a total or absolute lack of a justiciable issue, which is tan to a finding that the action is
frivolous ... and so clearly devoid of merit both on the f I as to be completely untenable."
Muckenfuss v. Deltona Corp., 508 So. 2d 340, 341 (quoting Whitten v. Progressive Cas.
Ins. Co., 410 So. 2d 501, 505 (Fla. 1982)). ssue is novel and complex, sanctions under
section 57.105(a) may not be imposed. Marina, LLC v. Casamayor, 166 So. 3d 879 (Fla.
3d DCA 2015).
It cannot be contested thaCir der rejecting a section 905.27 implied private right of action
IcZ eKfor the media is a case of ft t pression; indeed, neither this Court nor the State Attorney and the
Clerk cite to any i previously resolved this issue.
In t e Palm Beach Post presented various reasoned arguments why section 905.27
creates a p to right of action in favor of the media on both constitutional and statutory grounds.
See Plaintiff's Opposition at 10-15. The Palm Beach Post first analyzed the Florida Statutes
themselves and U.S. Supreme Court case law, both of which confirm that Florida's grand jury secrecy
laws are not absolute. See Plaintiff's Opposition at 10-11; Butterworth v. 494 U.S. 624, 626
(1990) (section 905.27 unconstitutional to the extent it prohibits grand jury witnesses from disclosing
5
EFTA02732877
their own testimony).
Florida has also held that the media is entitled to know of grand jury reports that fmd public
corruption, notwithstanding section 905.27 secrecy. See Miami Herald Pub. Co. v. Marko, 352 So.
2d 518 (Fla. 1977). In Marko, the Florida Supreme Court recognized that the media plays a vital role
in informing the public of the misdeeds of public servants and statutory grand jury secrecy cannot
outweigh the public's right to be informed through its constitutionally protected ne rting.
Here, The Palm Beach Post alleges overwhelming facts that raise s ' ions as to why
Epstein was prosecuted and sentenced in such a highly unusual and t e t
ero
er. At the heart of
this issue is the public's right to know, through the media, whe the orneys then working the <i t)
case at the State Attorney's Office fulfilled their public du • r either corruptly or recklessly
by misusing the grand jury process.
In this regard, The Palm Beach Post an it \ ion 905.27 and presented a well-reasoned
argument supporting the existence of a p ' ten of action, it properly focused on the interplay
between section 905.27's allowance r 's ure "in furtherance of justice", on the one hand, with
t aw
the public's right to know throu ia under the First Amendment and the Florida Constitution.
This Court did no ssly address The Palm Beach Post's reliance on a combined
constitutional and t ry asis for a section 905.27 private right of action. Instead, it focused
exclusively u.' ion 905.27 and in holding that the "in furtherance of justice" exception is
constrai e statute's other secrecy provisions.
The State Attorney's section 57.105 motion also ignores the constitutional role of the media
in informing the public. The fallacy of a purely statutory analysis, without consideration of The Palm
Beach Post's constitutional rights and obligations in conjunction with section 905.27, is that justice
can never be furthered, as the statute authorizes, unless the media is able to provide facts to the public
6
EFTA02732878
as to whether its officials may have violated their oaths.
The Palm Beach Post acted in good faith and presented reasoned bases to justify the interplay
between the federal and state constitutions and section 905.27. It properly sought to enforce the rights
of the media in the Epstein case through the application of complex constitutional and statutory
arguments to create new law. Though the Court dismissed one of The Palm Beach Post',c two claims,
such partial dismissal cannot support the State Attorney's section 57.105 motion.
V. THIS COURT'S LIMITED ORDER DISMISSING COUNT II DIQ1rUT RESOLVE
COUNT I
The State Attorney's threadbare section 57.105 motion ass at this Court's Order
extinguishes Count I — Declaratory Judgment, and renders C volous. The State Attorney is
demonstrably wrong.
Count H alleges that The Palm Beach Post \ ns utional and statutory standing for it to
overcome grand jury secrecy provisions "in of justice." Count I, in contrast, does not
allege a section 905.27 private right nstead, Count I seeks a declaration that the U.S.
Constitution's First Amendment lorida Constitution's analogous provisions, along with
section 905.27, provide ample for this Court to direct the release of the Epstein grand jury
materials to The Palm Beac st, or require the Court to conduct an in camera examination of the
same, to balanc a i 1ic's right to know through a free media with Florida's qualified statutory
interest in secrecy.
The ssues have yet to be addressed by a dispositive motion or by either Defendant. The
State Attorney's motion to dismiss Count H focused exclusively on section 905.27 and did not
acknowledge nor address any constitutional issues. The same is true of the Clerk's motion to dismiss.
Concomitantly, as stated above, the Order was limited to the four corners of section 905.27, and
expressly did not consider The Palm Beach Post's constitutional arguments.
7
EFTA02732879
VI. THE STATE ATTORNEY IS A PROPER PARTY
The State Attorney also argues that it does not possess the Epstein grand jury materials, and
based upon this unswom claim, sanctions are also justified. Again, the State Attorney is incorrect, as
there is no factual or legal basis to impose sanctions upon its unsupported allegation.
While the State Attorney alleges his office does not currently have physical possession of the
Epstein grand jury materials, he has argued, relying on section 905.27, that the should not
produce them. By taking a position against disclosure, the State Attorney has,, ect, asserted his
right to the secrecy of the Epstein grand jury materials. Stated another
the statutory right to prevent access to the Epstein grand jury mat s; IRtlhverse of such a claimed
right is that he has the right to provide access to the same .a
The State Attorney's position actually suppo
solely a custodian of the grand jury records. R
office has "as its primaty interest the prot
Grand July Proceedings, 832 F. 2d
petitioned a Florida State Attorn
te Attorney claims
Beach Post. He was not named as
a defendant in his official capacity as his
its grand jury system." [Italics in original.] In re
11th Cir. 1987). In that case, the federal government
over state grand jury transcripts. In opposition, the Broward
State Attorney argued agai eir release citing to section 905.27. Later, a federal grand jury servedil
a subpoena upon t ame St?
1
te Attorney seeking grand jury transcripts. The State Attorney advised
the federal co he would produce the transcripts, thereby demonstrating that whether or not he
has physi\ ession, he had legal authority to obtain and deliver them pursuant to the subpoena.
For these same reasons, the State Attorney, in his official capacity, is a necessary party.
Also, assuming the State Attorney does not have physical possession, Florida law does not
prohibit his office from requesting Epstein grand jury materials from the Clerk. Indeed, as the State
Attorney is well aware, Chapter 905, Fla. Stats. does not bar any State Attorney from accessing grand
jury materials, even after a defendant has been convicted and sentenced.
8
EFTA02732880
VII. THE STATE ATTORNEY'S MOTION IS ADMITTEDLY PREMATURE
The State Attorney also admits that his sanctions motion — which is based on the motion to
dismiss proceedings and resulting Order — is "premature". See Exh. "A" attached hereto for a copy of
Douglas Wyler's September 18, 2020 email. As set forth above, those proceedings and the Order
were focused on The Palm Beach Post's statutory claim, not the declaratory relief claim. The State
Attorney acknowledges that his motion is not ripe because it first requires this Co solution of
his later-filed summary judgment motion. Unlike his motion to dismiss, ' ary judgment
motion addresses The Palm Beach Post's remaining declaratory action a lief.
The State Attorney's admission demonstrates that his 'on contrary to the express ci,gA
1language of section 57.105. As stated above, section 57.1 ( examines a claim or defense
"when initially presented to the court". Because the • flue State Attorney's sanctions motion
I
i t
Sks ,admittedly depend upon this Court's resolutio ' -unscheduled summary judgment motion, ;
the State Attorney's sanctions motion is p tune. eznek v. Chase Home Fin., LLC, 152 So. 3d 793 ct ....e
urt(Fla. 3d DCA 2014). As a premat o • , • should be denied.
WHEREFORE, The Pal eac ost respectfully requests that the State Attorney's Fla. Stat.
r , section 57.105 motion be a • with prejudice, and that the Court grant such other relief it deems
just and proper. YY
+0 Respectfully submitted,
GREENBERG TRAURIG, P.A.
Attorneys for CA Florida Holdings, LLC, Publisher
of The Palm Beach Post
Stephen A. Mendelsohn, Esq.
5100 Town Center Circle, Suite 400
Boca Raton, Florida 33486
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
By: Is/ Stephen A. Mendelsohn
9
EFTA02732881
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsohnsegtlaw.com
[Email Redacted]
[Email Redacted]
By: /s/ Michael J Grygiel
MICHAEL J GRYGIEL
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted] OS
grveielm(a atlaw.com
By: /s/ Nina D. Boval
NINA D. BOY
(Admitted h dlt e)
1840 Cen' t, Suite 1900
Los A omia 90067
Tel 1) 586-7700
[Phone Redacted]
aw.com
nv. law.com
C TE OF SERVICE
I HEREBY CERTIFY at ory t is 2nd day of October, 2020, a true and correct copy of the
1,S ,will send a notice o ectron service for all parties of record herein
foregoing has been filed w e Clerk of the Court using the State of Florida e-filing system, which
trop
ACTIVE 51489309v9
/s/ Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
10
EFTA02732882
cos'
EXHIBIT "A" '''-,s. ,o)
EFTA02732883
From:
To:
Subject:
Date:
pnuolas Welee
Mendelsohn. SteMen A. Inhkl-FTL4 T)
Re: PALM BEACH POST (Epstein)
Friday, September 18, 2020 1:11:43 PM
Mr. Mendelsohn:
Again, we will not withdraw the motion. Please let me know when you are available for the case
management conference or I will unilaterally schedule the hearing.
Doug Wyler, Esq.
=, Scholz & Wyler, LLC
961687 Gateway Blvd., STE 201-I
Fernandina Beach, FL 32034
[Phone Redacted]
[Phone Redacted] (fax)
doug.wvIerPrnmract.net
Please be advised that this e-mail and any files transmitted,
communication or may otherwise be privileged or con
individual or entity to whom they are addressed. If
read, copy or retransmit this communication bu
dissemination, distribution or copying of this
AC(" 1From: <MendelsohnS@gtlaw. om>
Date: Friday, September 18, 2dB4l.at 1:04 PM
To: "Douglas Wyler, Esq. [Email Redacted]>
Cc: <BoyajianN@ law.co >, <[Email Redacted]>
Subject: RE: PA ACH POST (Epstein)
Cos
cr nfidential attorney-client
s
co
are intended solely for the
the intended recipient, please do not
immediately. Any unauthorized
tion is strictly prohibited.
Mr. Wyle • • r-ciate your candor in admitting your 57.105 motion is premature.
You mus ithdraw it as the motion has no basis, which you acknowledge, because the court has yet
to address the merits of the dispute.
Please do so without further delay.
Thank you.
From: Douglas Wyler <[Email Redacted]>
EFTA02732884
Sent: Friday, September 18, 2020 11:54 AM
To: Mendelsohn, Stephen A. (Shld-FTL-LT) <[Email Redacted]>
Cc: Boyajian, Nina D. (Shld-LA-LT) <[Email Redacted]>; Grygiel, Michael J. (Shld-ALB-LT)
<[Email Redacted]>
Subject: Re: PALM BEACH POST (Epstein)
*EXTERNAL TO GT*
Mr. Mendelsohn:
I spoke with my client we will not withdraw our motion for attorneys' fees. Again, we i si that the
motion for summary judgment be heard first as it would be premature to have an a
hearing when there is no prevailing party and no substantive hearings held since t otion for fees
was filed . Being that we are unable to agree on the order of the motions to e h am filing the
attached motion to set case management conference. Please see the att v able hearing
times for this motion and let me know what works best for you so we ca resolve this matter.
Sincerely,
Doug Wyler, Esq.
Scholz & Wyler, LLC
961687 Gateway Blvd., STE 201-I
Fernandina Beach, FL 32034
[Phone Redacted]
[Phone Redacted] (fax)
doug.wylerPrnmeast.nej
4s)
a(Please be advised that this e-m and and files transmitted with it are confidential attorney-client
communication or may otherwis bavdrivileged or confidential and are intended solely for the
individual or entity to wh are addressed. If you are not the intended recipient, please do not
read, copy or retran it th communication but destroy it immediately. Any unauthorized
dissemination, d4i tion or copying of this communication is strictly prohibited.
From: <JViendelsohnSPgtlaw.conp
Date: Wednesday, September 16, 2020 at 10:04 AM
To: "Douglas Wyler, Esq." <doug.wylerPromeast.net>
Cc: <finvajianNegtlaw.corn>, <grvgielmegtlaw co01>
Subject: PALM BEACH POST (Epstein)
Mr. Wyler, please let us know if the State Attorney will withdraw its sanctions motion without
prejudice.
Thank you.
EFTA02732885
If you are not an intended recipient of confidential and privileged information in this email, please
delete it, notify us immediately at postmacterOgtlaw corn, and do not use or disseminate the
information.
EFTA02732886