Court Records
Filing # 135754952 E-Filed 10/01/2021 02:16:32 PM
IN THE CIRCUIT COURT OF THE Pin EENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC,
Publisher of THE PALM BEACH POST,
Case No.: 50-2019-CA-014681-XXXX-MB
Plaintiff,
Division: AG
v.
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON IL
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida,
Defendants.
A Cos DEFENDANT, CLERK AND CO ER
OF PALM BEACH COUNTY' NSE
TO PLAINTIFF'S MOTION FORS JUDGMENT
Defendant, Abruzzo, as Clerk a joiler of Palm Beach County, Florida (the
"Clerk"), by counsel, responds to Plainti C orida Holdings, LLC, publisher of The Palm
Beach Post's ("The Pot), Motion S Judgment (DE # 58) (the "Motion"), and states „ S
as follows:
INTRODUCTION AND BACKGROUND
The Postt( theyClerk and Palm Beach County State Attorney' to gain access to
"confidenti r f "secret" grand jury proceedings that are "exempt from the provisions of
s. 119.07 .24(a), Art. I of the State Constitution" so it can disclose them to the public. See
§§ 905.17, 5.24, Fla. Stat.; Motion (DE # 58) at p.34. Unfortunately, the Clerk (who inherited
As noted in the Motion (DE # 58 at p. 2, n. 1), The Post dropped the State Attorney, Dave
Aronberg, as a party after he filed a Motion for Attorneys' Fees under Section 57.105 (DE # 35)
and Motion for Summary Judgment (DE # 38), both of which argued that the State Attorney does
not possess any of the records The Post seeks.
FILED: PALM BEACH COUNTY. FL, ABRUZZO, CLERK, 10/01/2021 02:16:32 PM
EFTA02734365
this case from his predecessor2) is the sole remaining "Defendant" in this case because his office
is charged with the ministerial duty of keeping "stenographic records, notes, and transcriptions
made by the court reporter or stenographer" of Palm Beach County grand jury proceedings "in a
sealed container not subject to public inspection." See § 905.17(1), Fla. Stat.
Several statutes enforceable through criminal penalties require grand jury secrecy and
forbid clerks of Florida's circuit courts from releasing grand jury materials ex t uest by
a grand jury for use by the grand jury or on order of the court pursu 05.27." See
§§ 905.17(1), 905.27(1)-(2), (4)-(5), Fla. &at. Chapter 905 does of t the Clerk any
authority or discretion to release any grand jury materials t prior public—regardless
of the subject matter of the proceedings at issue or is timent about whether they
06\
should be released.
ll1/2„Considering the Clerk's constitutional a i ry duties, lack of discretion, and role as o
a depository for grand jury materials, hi ense this lawsuit is necessarily limited to the issue
of whether, under Florida law, cle ircuit courts can be sued by private parties seeking
access to such records. The bject matter of the underlying grand jury proceedings is
rirrelevant to this prelimin stion concerning the legality of The Post's suit against the Clerk.
Consequently, th erk to a no position on most of the facts put forth in The Post's Motion.;
tithe 'des that private litigants can sue clerks for declaratory relief to gain access
to grand aterials under Section 905.27(1)(c) and/or the Court's "inherent authority," only
then would the inquiry advance to whether The Post can demonstrate to the Court that releasing
2 Clerk Abruzzo was sworn into office as Palm Beach County's Clerk and Comptroller on
January 5, 2021.
3 This should not, however, be construed as the Clerk's agreement with or adoption of any of the
factual positions taken by The Post
2
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testimony, minutes, and other evidence related to the Jeffrey Epstein grand jury is appropriate to
serve "the purpose of...furthering justice" and/or preserve the dignity of the judicial system.
However, the Clerk's office is merely the statutorily designated depository for these materials and
performs this function solely in a ministerial capacity as an arm of the Court, required comply with
any directives from the Court concerning the materials The Post seeks. The Clerk is not aware of
any authority or standing granted to his office to advocate for or against the releattty grand
jury materials, including the specific materials at issue here. Accordingly, Ins response is limited
eto an overview of the law related to the "furthering justice" excepti nd the Court's inherent
authority to help inform the Court's decision.
H. PROCEDURAL
The Post's operative pleading is its January I ended Complaint (DE # 17), which
asserts a claim for declaratory relief (Count I) ed to state a private cause of action under c
section 905.27, Florida Statutes (Coun Bo counts sought the same relief: a court order
granting The Post access to the te inutes, and other evidence presented in 2006 to the
ing Jeffrey Epstein so it can "use those materials for the Palm Beach County grand j
r. purpose of informing the • " (DE # 17 at pp. 20-21).
On Janua , 202 , the State Attorney and Clerk filed their respective Answers's and
incorporated to Dismiss Count II of the Amended Complaint (DE ## 22, 24); both arguing
that S .27 does not create a private cause of action. The State Attorney also argued that
4 In its Answer (DE # 24), the Clerk asserted that it was without knowledge of all the Amended
Complaint's factual allegations regarding Epstein and the 2006 grand jury proceedings, and
therefore denied them and "demandiedj strict proof thereof." The Post's Motion suggests
(DE # 58 at p.3) that the material facts are "uncontested" based in part on the Clerk's Answer, but
that clearly is not accurate.
3
EFTA02734367
he was an improper party to the case because his office does not possess grand jury materials,
which are filed with the Clerk's office under Section 905.17(1) (DE # 22 at pp.11-12).
On June 8, 2020, the Court entered its Order Granting Defendants' Motions to Dismiss
Count II of Plaintiff's First Amended Complaint With Prejudice (DE # 33). In pertinent part, the
Court ruled:
In sum, there is nothing in the text of section 905.27 from which on
can deduce that the Legislature contemplated a member o
media, or anyone else for that matter, having a private
action to compel the State Attorney and Clerk to disclose
records. Indeed, to the contrary, section 905.27 prolf its tIRStSte
Attorney and Clerk (assuming that, as pleaded by the P t, th y have
the documents) from disclosing the documents 'ou t being
ordered to do so by the court. Reading sectio as creating a
private cause of action against the State o and Clerk is,
therefore, not only unsupported by the J n e f section 905.27,
but is actually paradoxical to its pla e of the statute. As
such, this Court lacks the pow e the unambiguous
language of section 905.27 in would extend its express
terms and create a cause of n ere none exists. "To do so
would be an abrogation oJ4isla e power." (citation omitted).
Shortly thereafter, the Sta filed his Motion for Attorneys' Fees under Section
57.105 (DE # 35) and Motion Su ary Judgment (DE # 38). On October 21, 2020, The Post
filed its Notice of Droppi tate Attorney as a party (DE # 48).
On April 4021, ithout having sought reconsideration or rehearing of the June 8, 2020
Order, The A
Motion st relies upon nearly 20 pages of somewhat slanted and argumentative factual
assertions about Epstein and the 2006 grand jury proceedings (DE # 58 at pp. 1-19) to support the
re-argument of its position that Section 905.27 creates a private right of action (DE # 58 at pp. 20-
25), and the argument that access should be granted to the Epstein grand jury materials attendant
its Motion seeking summary judgment against the Clerk (DE # 58). In its
4
EFTA02734368
to The Post's claim for declaratory relief premised on Section 905.27 and the Court's "inherent
authority" (DE # 58 at pp. 26-30).
DL SUMMARY JUDGMENT STANDARD
The Post's Motion pre-dates the effective date (May 1, 2021) of the Florida Supreme
Court's amendment of Florida Rule of Civil Procedure 1.510 and adoption of the fede al summary
judgment standard. See In re Amendments to Fla. Rule of Civil Procedure 1.510 o. 3d 72,
77-78 (Fla. 2021) ("amendment applies to pending cases and all motions after May I,
2021"). Although The Post has not "file[d] a renewed5 summary jud
rule," the Supreme Court instructed that "the new rule mus v e adjudication of any AV
<t esummary judgment motion decided on or after that date, i i pending cases." Id. (citation
81s, omitted). Accordingly, even though The Post's tt filed pit -amendment, the Clerk i r
is ,assumes the new standards governing Rule 1 o its adjudication.
ly
Once filed with clerks of ,>atrppit
AR MENT
courts pursuant to Section 905.17(1), grand jury
h" governed by Rule 2.420 of the Florida Rules of materials are "records of the j
arJudicial Administration 'ect to its procedures governing public access. Times Pub. Co. v.
Ake, 645 So. 2d , 100 (Fla. 2d DCA 1994), approved, 660 So. 2d 255 (Fla. 1995). Under
the facts of%t ule 2.420 is the mandatory procedural mechanism through which access to
grand j rials must be sought. However, The Post did not follow Rule 2.420 to request or
challenge a denial of access to these materials.
0on under the new
5 Florida's Supreme Court noted that, "[i]n cases where a pending summary judgment motion has
been briefed but not decided, the court should allow the parties a reasonable opportunity to amend
their filings to comply with the new rule." 317 So. 3d at 78
5
EFTA02734369
Even if that were not the case, The Post still could not obtain access to grand jury materials
to disseminate them to the public by suing the Clerk because-for many of the same reasons
explained in the Court's June 8, 2020 Order (DE # 33)—there is no private right of action under
Section 905.27(1Xc) and no viable claim for declaratory relief based on Section 905.27 or the
Court's "inherent authority." Accordingly, The Post's remaining claim is procedurally and legally
deficient, its Motion should be denied, and this entire case should be dismissed wilpjudice.
A. Overview of the Powers and Duties of Clerks of the Circuit Co
T
The Second DCA explained in Times Pub. Co. v. Ake, 645 Soe a 5, that the offices
of the clerks of Florida's circuit courts serve two functions:
The office of the clerk of the circuit court derives i
articles of the Florida Constitution. Article
Constitution provides that the clerk is a coun
of the board of county commissioners, au
funds." In the exercise of these noni
elected county officer not subject to
section 16, establishes the offs
framework. That section flirt
offices by general or speci
capacity. See Alachu
performance of his dut
officer of the court devoi
203 (Fla. 1st DC
authority ov its
446 (Fla.
article
supe
nd authority from two
on 1(d), of the Florida
o shall be "ex officio clerk
order and custodian of all county
es, the clerk is an autonomous
tree on or control of the court. Article V,
cler of the circuit court within the judicial
s that the office may be divided into two
ent such division, the clerk must act in a dual
Powers, 351 So.2d 32 (Fla.1977). In the
e court's record keeper, the clerk is a ministerial
iscretion. Corbin v. State ex rel. Slaughter, 324 So.2d
The court has the inherent and exclusive constitutional
en les who act in its behalf See The Florida Bar, 398 So.2d
clerk, when acting in the exercise of his duties derived from
ng as an arm of the court and, as such, is immune from the
authority of the legislature. Thus, chapter 119 does not apply to the
h capacity and the access to judicial records under his control is
exclusively by rule 2.051.
In approving the Second DCA's decision in Times Pub. Co. v. Ake, Florida's Supreme
Court recognized that "the clerks of the circuit courts, when acting under the authority of their
article V powers concerning judicial records and other matters relating to the administrative
operation of the courts, are an arm of the judicial branch and are subject to the oversight and control
6
EFTA02734370
of the Supreme Court of Florida, rather than the legislative branch." 660 So.2d at 257. This is
because the judiciary is a co-equal branch of government, not an "agency." Id.
Among other responsibilities, clerks of the circuit courts are charged with the duty of
maintaining certain records of the judicial branch. In performing this duty, clerks are "ministerial
officer[s] of the court devoid of discretion." Times Pub. Co. v. Ake, 645 So. 2d at 100
"Records of the judicial branch'" are "all records, regardless of 'cal form,
characteristics, or means of transmission, made or received in connection ' nsaction of
official business by any judicial branch entity," and they in
"administrative records." See Rule 2A20(bX1), Fla. R. Jud. n hasis added). "Court
ptrecords...are the contents of the court file, including the es ket and other similar records
generated to document activity in a case, transcrip etftl the clerk, documentary exhibits in
itthe custody of the clerk, and electronic recor , I SItpes, or stenographic tapes of depositions iro
or other proceedings filed with the clerk el nic records, videotapes, or stenographic tapes A ...p
t
i
rt records" and
of court proceedings." See R
records...are all other records
connection with the tran
2.420(b)(1)(B), F
of Ma
)(1)(A), Fla. R. Jud. Admin. "Administrative
received pursuant to court rule, law, or ordinance, or in
of official business by any judicial branch entity." See Rule
Jud. Admin (emphasis added).
"The 'an of all administrative records of any court is the chief justice or chief judge
See Rule 2.420(b)(3), Fla. R. Jud. Admin (emphasis added). "As to all other
records, the custodian is the official charged with the responsibility for the care, safekeeping, and
supervision of such records." Id.
6 "Judicial branch" is defined as including "the clerk of court when acting as an arm of the court."
See Rule 2.420(bX2), Fla. R. Jud. Admin; see also Times Pub. Co. v. Ake, 660 So.2d at 257.
7
EFTA02734371
B. The Framework for Keeping Confidential Grand Jury Materials
In establishing Florida's grand jury process, the Legislature directed that "[t]he chief judge
of each circuit court shall regularly order the convening of the grand jury for a term of 6 months"
and "[w]hen requested, the court shall advise the grand jury about its legal duties." See §§ 905.01,
905.18, Fla. Stat. Once the legislature established a grand jury process, its implementar on became
a "judicial administrative responsibility since the grand jury's operation is witlilllyte judicial
branch." See State ex rel. Reichle v. 409 So.2d 1043, 1044 (F The Court
noted in its June 8, 2020 Order (DE # 33 at p. 1) that this case "imp ords of the Palm
Beach County grand jury, over which the Chief Judge presides."
4 %t h)The Post alleges in its Amended Complaint that "' h as Florida, where the grand
\jury is preserved, it is an important appendage oft o ich impanels it... [and]...the judge i
arged with the supervision of the grand
jury's activities...' 4 The Post also argu ' its position to the Clerk's Motion to Dismiss Count
H (DE # 27 at p. 13), and continu 'n its Motion (DE # 58 at p. 26), that the "Grand Jury
is Under the Court's Supervi Jurisdiction" and "a judicial proceeding in a court of
justice...an appendage or to the circuit court."
Florida la ui grand jury proceedings to be kept "secret," making it "unlawful" and
"criminal co em o court" to "disclose, divulge, or communicate to any other person...in any
mann ver, any testimony of a witness examined before the grand jury, or the content,
gist, or import thereof..." See §§ 905.24, 905.17(4), 905.27(2)-(5), Fla. Stat. The Legislature
of that court is equally important and he is
7 By way of comparison, a Federal grand jury is governed by Rule 6 of the Federal Rules of
Criminal Procedure and considered to be "an institution independent from the judicial branch."
See Pitch v. U.S., 953 F.3d 1226, 1237 (III Cir. 2020).
8 See Amended Complaint (DE # 17 at ¶ 60) (citing State v. Clemons, 150 So.2d 231, 233-34 (Fla.
1963); see also Plaintiff's Opposition to Clerk's Motion to Dismiss Count II (DE # 27) at p. 14.
8
EFTA02734372
specifically addressed the confidentiality of grand jury materials in Section 905.17(1), which
provides:
The stenographic records, notes, and transcriptions made by the court reporter or
stenographer [if any] shall be filed with the clerk who shall keep them in a sealed
container not subject to public inspection. The notes, records, and transcriptions
are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
of the State Constitution and shall be released by the clerk only on request y a
grand jury for use by the grand jury or on order of the court pursuant to s. 7.
It bears mentioning that there is no requirement that Florida grand roc ins be
recorded. See Thompson v. State, 565 So.2d 1311, 1313 (Fla. 1990) (Sec .17 and 905.27
do not establish a duty to record grand jury proceedings, nor is th a onstitutional basis to
final Procedure 6(e) requires
ers otherwise," for an attorney
impose such a duty in all cases). In contrast, Federal Rule
grand jury proceedings to be recorded and "[u]nless t c\
for the government to "retain control of the t reporter's notes, and any transcript
prepared from those notes." See Rule 6(eX Crim. P.
Once a clerk of the circuit o ives grand jury materials pursuant to Section
d i905.17(1), they become adminC ords of the judicial branch falling under the purview
of Florida Rule of Judicial A • d mtion 2.420, under which they continue to maintain their
yy
confidentiality prot tions er Section 905.17. Subdivisions (cX7) and (cX8) of Rule 2.420
provide that " made confidential under...Florida ...law" and "all records presently
deemed td dential...by Florida Statutes..." shall be confidential records of the judicial
branch.
Rule 2.420(d)(1)(B) further provides that "[e]xcept as provided by court order, the clerk of
the court shall maintain as confidential information subject to subdivision (cX7) or (cX8) of this
rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I,
section 24(a) of the Florida Constitution as specifically stated in any of the following
9
EFTA02734373
statutes:...(xvi) Grand jury records. §§ 905.17, 905.28(1), Fla. Stat." See Rule 2.420(d)(1)(B),
Fla. R. Jud. Admin. (emphasis added). Furthermore, because both "grand jury records" and "grand
jury notes" are administrative records of the judicial branch, the Appendix to the Florida Rules
of Judicial Administration ("Records Retention Schedule for Administrative Records") provides
specific minimum record retention requirements for these materials:
GRAND JURY NOTES
This record series consists of stenographic records, notes, and transcriptions made
by the court reporter or stenographer during the grand jury session. These records
are normally kept in a sealed container and arc not subject to public inspection
pursuant to Section 905.17(1), Florida Statutes. A Court order must be obtained for
disposition.
RETENTION: 10 years from closing of session.
GRAND JURY RECORDS
This record series consists of jury summons, roues for rccusal, juror payments,
information to jurors' employers, lists of jurors, juror questionnaires, and other
records related to a grand jury. This record series includes records related to a
grand jury and the statewide grand jury.
RETENTION: 2 years.
C. Procedural Mechanisms for Public Access to Judicial Branch Records
Florida Rule Judicial Administration 2.420(m) establishes the procedure to obtain access
to judicial b c : "Requests for access to judicial branch records shall be in writing and
shall be to the custodian. The request shall provide sufficient specificity to enable the
custodian t identify the requested records." See Rule 2.420(m)(1), Fla. R. Jud. Admin. (emphasis
added). Once a proper request is made, the custodian responsible for providing access to the
records of that custodian's entity "shall determine whether the requested record is subject to this
rule and, if so, whether the record or portions of the record are exempt from disclosure." See
10
EFTA02734374
Rule 2.420(mX2), Fla. R. Jud. Admin. If a request is denied, the custodian must respond to the
request by stating in writing the basis for the denial. Id.
Where access to "administrative records of the judicial branch" is denied, Rule 2.420(1)
provides that the party denied access must file an action for mandamus or other appropriate relief
in: (1) the court having appellate jurisdiction, when a judge who has denied a request f r access to
records is the custodian; or (2) in all other cases, the circuit court of the circuit in the denial
of access occurs. Here, the grand jury materials The Post seeks are j " ministrative
records, of which the Chief Judge would be the "custodian" under a . )(3). Thus, The
Post should have made a written request for these materia to Chief Judge under
Rule 2.420(m) and, if that request was denied, filed an ac damus in the Fourth District
i\i
Court of Appeal pursuant to Rule 2.420(1X1).
to ng access to Rule 2.420(j) establishes the procedure r confidential court records. ( S r
Under Rule 2.420(jX2), a party seekin ess confidential court records must file a written
motion that identifies the court rec ich access is sought, specifies the basis for obtaining
access, sets forth the legal auth obtaining access, and certifies that it is made in good faith
and supported by a soun and legal basis. Rule 2.420(jX3)-(4) specifies the requirements
for service of the ion (o all parties and reasonably ascertainable affected non-parties) and the
findings wh be made in any order granting access to confidential court records.
Rule requirement of filing a "motion" to obtain access to "confidential court records"
(as opposed to filing an "action" under Rule 2.420(1) when denied access to "administrative
records") inherently contemplates that a court case is already pending in which confidential court
records have been filed and in which the requesting party can file a "motion" for access to those
records. Otherwise, Rule 2.420(j) would, like subsection 2.420(1), authorize the filing of an
II
EFTA02734375
"action" to seek "confidential court records." Thus, even if the grand jury materials The Post seeks
could be considered "confidential court records," The Post would have been required to file a
motion under Rule 2.420(j) in the grand jury proceeding or criminal case against Epstein based on
the indictment.9 If such a motion had been filed and denied, The Post could have sought appellate
review under Florida Rule of Appellate Procedure 9.100(d) ("Orders Excluding or Granting
Access to Press or Public").
40A
D. The Post Failed to Comply with Rule 2.420 N
The Post does not allege compliance Rule 2.420 in its hit and offers no
proof of compliance in its Motion. In fact, it appears to be undi The Post did not make
a written request to the Chief Judge under Rule 2.420( de an action in the appellate
court under Rule 2.420(1), and did ont file a motion f 8, i t
Rule 2.420(j). Instead, The Post vaguely alle t quested the records from the Clerk and c ir
State Attorney [Amended Complaint (D 17) li 72] and filed this civil lawsuit in the circuit S aw
Atcourt against the Clerk and State y
As explained above, th n ' materials The Post seeks are "administrative records"
[records received "p u law..." under Rule 2.420(b)(1)(B)] of which the Chief Judge is
the "custodian" [ .420(bX3)]. However, The Post offers no proof that it made a written
request direc to e Chief Judge for the Epstein grand jury materials, nor any proof that such a
"confidential court records" under
ied. See Rule 2.420(mX1), Fla. R. Jud. Admin. Moreover, even if such a request
and denial had occurred, the only proper mechanism to challenge a Chief Judge's denial of access
is an action for mandamus in the appellate court (which clearly did not happen). See
Rule 2.420(1X1), Fla. R. Jud. Admin. Likewise, The Post offers no proof that it filed a motion to
9 See Motion (DE # 58) at ¶919, 36; Appendix (DE # 59) at 8.
12
EFTA02734376
obtain access to confidential court records under Rule 2.420(j), and obviously did not seek
appellate review of the denial of any such motion under Rule 2.420(1) and Appellate Rule 9.100(d).
Florida's Supreme Court confirmed in Times Pub. Co. v. Ake, 660 So.2d at 257, that access
to judicial records is governed exclusively by Rule 2.420. The Post's indisputable failure to request
and pursue access to the grand jury records it seeks through the procedures est lished in
Rule 2.420 conclusively establishes that this lawsuit is procedurally and le defective.
Consequently, the Motion should be denied, and this entire case sho i missed with
prejudice.
E. There is No Private Right of Action Against a Clerk bta nr urand Jury Records
i i tEven assuming arguendo that the grand jury
,
mm ( ssue are not "records of the
is ejudicial branch" exclusively subject to Rule 2.420, T s 1 ? has no valid legal basis to sue the
N
t
Clerk to obtain access to them. This Court a mined in its June 8, 2020 Order (DE # 33)
that there is no private right of action ag ' the S erk under Section 905.27. The Post cannot use
an action for declaratory relief to t the Court's June 8, 2020 ruling or to invoke the
Court's "inherent authority" to m public access to grand jury materials.
The Court's June Order (DE # 33 at p. 5) correctly established hat "there is nothing
in the text of 7 from which one can deduce that the Legislature contemplated a
member of a, or anyone else for that matter, having a private cause of action to compel
the St ey and Clerk to disclose grand jury records." The Post's Motion does not raise
any new arguments or cite any new authorities to justify the Court's reconsideration and reversal
of this well-reasoned decision.10 There is no private right of action under Section 905.27.
l° The Post's Motion repeats the same arguments about its alleged standing and the availability of
a "private right of action" under Section 905.27 [Motion (DE # 58) at ¶¶ 81-90] that it alleged in
13
EFTA02734377
The Post cannot use a claim for declaratory relief under Chapter 86 to create substantive
rights which the plain language of Section 905.27 clearly demonstrates do not exist. On its face,
the Section 905.27 does not expressly or impliedly grant the public or members of the media any
right to obtain access to grand jury materials. To the contrary, Chapter 905 explicitly denies public
access to "secret" grand jury proceedings and prohibits access to grand jury materials.
Nevertheless, The Post's cause of action for declaratory relief is based on uest that
the Court declare that pursuant to Fla. Stat. Section 905.27(1), it is entitled e testimony,
minutes, and other evidence presented to the 2006 Palm Beach Co ury because such
disclosure and access would be in the furtherance of justice" (D 70). The Post "further Ci i
(ceseeks a declaration that disclosure of the testimony, min s n er evidence presented in the
\2006 Palm Beach County grand jury is appropriate u t his Court's inherent authority over S t
Ss ,grand jury proceedings because of the except' a u ' interest in this case and the compelling ( c a
circumstances supporting transparency" # t ¶ 71).
However, the Declaratory Act is a procedural mechanism that confers subject
matter jurisdiction—it does no ffer y substantive rights. See Gilbert v. State Farm Mut. Auto.
Ins. Co., 95 F.Supp.3d 13 , n. 5 (M.D. Fla. 2015). Under Section 86.011, a court only has
jurisdiction to decl tory judgments on the existence or nonexistence of any immunity,
power, privil t, and any fact upon which the existence or nonexistence of such immunity,
power or right may depend.
Courts play an important "gatekeeping" role in declaratory relief actions. See Ribaya v.
Board of Trustees of City Pension Fund for Firefighters and Police Officers in the City of Tampa,
the Amended Complaint [DE # 17 at ¶¶ 56-59], and which it argued in its Opposition to the Clerk's
Motion to Dismiss Count II [DE # 27 at pp. 9-13].
14
EFTA02734378
162 So.3d 348, 353 (Fla. 2d DCA 2015). In particular, courts must be leery of attempts to "pervert"
the statute by those attempting to use it as a "catch-all." Id. "To ensure that this does not occur,
the courts have developed requirements to invoke the act that go beyond the wording of the act
itself: that there is a 'bona fide dispute' between the parties and a `bona fide...need for [a]
declaration." Id. (citations omitted). Where circumstances beyond the pleadings demonstrate
that there is not a bona fide need for declaratory relief, trial courts should exercr authority
to decline to adjudicate the claim. Id.
Here, this authority should be exercised because The Post has Qor proven that its
claim for declaratory relief involves a determination of the en or non-existence of its
substantive rights. Rather, The Post is improperly askin to create a new substantive
public right of access to grand jury materials un se of declaratory relief. Gilbert,
S&4%95 F.Supp.3d at 1364. As discussed above, th r o lic right of access under Section 905.27. ? s lot
Similarly, the Court's "inherent authori confer any rights, privileges, or powers to The
Post that could be adjudicated und e 6. There is no "bona fide" dispute over the existence
of the Court's "inherent autho se v. Palm Beach County, 361 So.2d 135, 136 n. 3 (Fla.
arre1978) (Court's powers ' nt in the sense they exist because the court exists...." (emphasis
added)). Instead, Post i using its claim for declaratory relief as pretense to try to tell the Court
how its "inh thonty" should be used.
Aleis pect to Section 905.27, The Post appears to be trying to use a claim for declaratory
relief the same way it is often used in cases involving violations of the Sunshine Law and Chapter
119. See e.g., Ribaya, 162 So.3d at 355. As noted in Ribaya, because section 286.011 does not
contain an "express right of action...it has become common for litigants to file actions for claims
under the Sunshine Law that allege a claim for a violation of the statute and a claim for declaratory
15
EFTA02734379
relief," which "in effect...alleges a claim under 286.011 and seeks a remedy under chapter 86."
M. at 355. However, it is important to note that Section 286.011—unlike Sections 905.17 and
905.27—grants the public a right to access government meetings and has provisions recognizing
the public's right to pursue legal actions to enforce that right:
Section 286.011 creates broad public access to governmental
meetings. This statute implements the constitutional right of access
created in Article I, section 24, of the Florida Constitution!
Subsection 286.011(4) clearly contemplates legal action
members of the public to enforce the Sunshine Law
§ 286.011(4) (providing for attorney's fees where "an a
been filed...to enforce the provisions of this section"
court determines that a violation has occurred).
See Ribaya, 162 So.3d at 355 (emphasis added).
Similarly, Chapter 119 implements the polic state that all state, county, and
municipal records are open for personal inspect vying by any person," thus creating a
public right to access records "made or r pdfsyuant to law or ordinance or in connection
with the transaction of official busi agency." See § 119.01(1), Fla. Stat. (agency
records are "open for personal and copying by any person"); §119.07(1)(a), Fla. Stat.
("Every person who has custo a public record shall permit the record to be inspected and
copied by any perso des g to do so, at any reasonable time, under reasonable conditions, and s e
under supervi by custodian of the public records"); see also Times Pub. Co. v. Ake, 660
So.2d at . Like Section 286.011, Chapter 119 contains several provisions "clearly
contempla g" legal actions by members of the public to enforce their rights under Chapter 119.
See §119.07(1)(g), Fla. Stat. ("In any civil action in which an exemption to this section is asserted,
if the exemption is alleged to exist under or by virtue of s. 119.071(1Xd) or (f), (2Xd), (e), or (f),
or (4)(c), the public record or part thereof in question shall be submitted to the court for an
inspection in camera...") (emphasis added); § 119.11(1), Fla. Stat ("Whenever an anion is iled
16
EFTA02734380
to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case
priority over other pending case") (emphasis added); § 119.12(1), Fla. Stat. ("If a civil action is
filed against an agency to enforce the provisions of this chapter, the court shall assess and award
the reasonable costs of enforcement, including reasonable attorney fees, against the responsible
agency if the court determines that...") (emphasis added).
Conversely, Chapter 905 establishes that there is IQ public right to acdeigrand jury
proceedings or materials. In fact, Section 905.24 implements the public t "[Orand jury
proceedings are secret," and Section 905.17(1) makes records of j ings "exempt
from the provisions of s. 119.07(1) and s. 24(a), Art. I of th to stitution." Moreover,
Chapter 905 does itol contain an express right of r any provisions "clearly
contemplating" (or even recognizing) the publi t o pursue legal actions to obtain
access to grand jury records. To the con is ourt recognized in its June 8, 2020 Order
(DE # 33 at p. 5): "inhere is nothing in ext section 905.27 from which one can deduce that
the Legislature contemplated a m b e media, or anyone else for that matter, having a
private cause of action to co el th tate Attorney and Clerk to disclose grand jury records.
Indeed, to the contrary, s '05.27 prohibits the State Attorney and Clerk (assuming that, as
pleaded by the P they • the documents) from disclosing the documents without first being
ordered to d he court. Reading section 905.27 as creating a private cause of action against
the St and Clerk is, therefore, not only unsupported by the language of section 905.27,
but is actually paradoxical to its plain language of the statute."
Similarly, any argument that a substantive right of public access to grand jury materials
can be derived from a court's "inherent authority" collapses because that authority does not grant
any rights or powers to anyone except the courts. Moreover, even if some private right of action
17
EFTA02734381
could somehow emanate from courts' inherent authority, it still could only be exercised "subject
to, or not in conflict with, valid existing laws." See Jimenez v. Bondi, 259 So. 3d 722, 725 (Fla.
2018); M, 361 So.2d at 137; Weinberg v. Siemens Fin. Services, Inc., 88 So. 3d 220, 222 (Fla.
3d DCA 2011) (A "court's inherent power does not permit a court to ignore existing law, such as
writ of replevin statutes."). Given the existing laws" surrounding the secrecy of grand jury
proceedings, the Court's inherent powers could not be used as a basis to grant ht e' The Post
eS'
Olaim asserted in
seeks.
Ultimately, The Post's declaratory relief claim is analogo
MacNeil v. Crestview Hospital Corp., 292 So.3d 840, 843-45 1 A 2020), in which the
c t)First DCA affirmed the trial court's dismissal of a claim ory relief where the plaintiff
SI hip"asserted no other cause of action below that woul o a justiciable controversy exists on „S ft
S „which to predicate a declaratory judgment c ' er citing Ribaya for the elements of a c ot
declaratory relief claim and its warning "ch er 86 is a statute with `special objectives' that
should not be `perverted' by perm n 1 a as a `catch-all,"' the court in MacNeil recognized
that "[a]besnt a showing of at olorable right which would be affected by the requested
" Id. at 842, 845 (citing Webster v. Inch, 286 So.3d 847, 848 declaration, dismissal is
(Fla. 1m DCA 20 12
0
"These( include Sections 905.17(1) (prohibiting the clerk from releasing grand jury records
except on request by grand jury or on order of the court under s. 905.27), 905.24 (grand jury
proceedings are "secret," and grand jurors and interpreters are prohibited from disclosing the
nature or substance of the deliberations or vote of the grand jury), and 905.27(1) (prohibiting the
disclosure of the testimony of a witness examined before the grand jury or other evidence received
by it except under the enumerated exceptions).
12 MacNeil discusses all the required elements of a claim for declaratory relief, including the
"extrastatutory elements requiring a `bona fide dispute' between the parties and a `bona fide need'
for the declaration [which] ensure that the proceeding is `judicial in nature' and falls `within the
constitutional powers of the courts." Id. at 843 (citing Ribaya, 162 So.3d at 353).
18
EFTA02734382
In MacNeil, the plaintiff attempted to bootstrap a claim for declaratory relief to an alleged
violation of Section 627.736(5)(a) (the PIP statute), which (like Section 905.27) "lacks an express
or implied private cause of action to enforce its provisions." Id. at 842. The Post is trying to do
die same thing using Section 905.27 and the Court's "inherent authority." Thus, The Post's
declaratory relief claim seeks an improper advisory opinion and must suffer the same fate as
MacNeil's (dismissal with prejudice). MacNeil, 292 So.3d at 841, 845; see also v. State,
Dept of Highway Safety & Motor Vehicles, 943 So. 2d 945, 946 (Fla. 4th (affirming0
dismissal of action seeking declaratory relief where no private right
Driver's Privacy Protection Act, 18 U.S.C. § 2721, et seq.); v. h. Bd. of Palm Beach
County, 237 So. 3d 1026, 1030 (Fla. 4th DCA 2018) dismissal of action seeking
declaratory relief where no private right of action
is ( declaratory S' '
Florida Constitution).
The Post's only remaining clai • is ion (Count I) seeking relief based Nt ....„
existed under the
the Class-Size Amendment to the
on Section 905.27 and the Court's ' uthority" fails to state a claim upon which relief can
be granted. Accordingly, The is otion should be denied, and Count I should be dismissed
with prejudice.
F. Overview the L if the "Furthering Justice" Inquiry is Needed
If thi determines that The Post has the legal right to seek declaratory relief against
the C n access to the Epstein grand jury materials based on Section 905.27, the Clerk
does not believe he has the authority to advocate for or against The Post's requested relief. The
Clerk does, however, believe that he has an obligation to apprise the Court of the relevant law
surrounding its decision.
19
EFTA02734383
The Post only seeks the Epstein grand jury records under the "furthering justice" exception
to Section 905.27. See § 905.27(1)(c), Fla. Stat. Specifically, The Post seeks these grand jury
materials to use them "for the purpose of informing the public" (DE # 17 at p.20) and concedes
that it "is not seeking these materials in connection with either a civil or criminal case, it seeks a
declaration that the scope of its use of the disclosed materials is not limited" (DE # 17 at 1 70
(emphasis added)).
Section 905.27(2) explicitly states that, "[w]hen [a] disclosure by a court
pursuant to subsection (1) ... the grand jury testimony afforded such e court can only
be used in the defense or prosecution of the civil or crimin e 8 for no other purpose
twhatsoever." See § 905.27(2), Fla. Stat. This provisio be at odds with The Post's
Srequests for the Epstein grand jury materials to use t r e purpose of informing the public",
Sc(DE # 17 at p.20) and a "declaration that th its use of the disclosed materials is not
limited" (DE # 17 at 1 70).
The Court is certainly a o e ' portant reasons for grand jury secrecy. Minton v.
State, 113 So. 2d 361, 365 (Fl 195 ) "to protect the jurors themselves; to promote a complete
freedom of disclosure; to t the escape of a person indicted before he may be arrested; to
prevent the subo on of erjury in an effort to disprove facts there testified to; and to protect the
reputations ns against whom no indictment may be found").13 While the Court has
discret the rule of secrecy when the "purposes of the secrecy rule are accomplished and
a disclosure becomes essential to the attainment of justice and the vindication of the truth," the
13 Based on the facts asserted in The Post's Motion, preventing the escape of a person indicted
before he may be arrested, preventing the subornation of perjury in an effort to disprove facts there
testified to, and protecting the reputations of persons against whom no indictment may be found
do not appear to be an issue in this case.
20
EFTA02734384
Court must be mindful of "the effect on subsequent grand jury proceedings-on jurors, on witnesses,
on the privacy of the system itself-of indiscriminate disclosure." Id.
Those who serve on grand juries and the witnesses appearing before them have a justifiable
expectation that their identities will be protected. Minton, 113 So. 2d at 365. Releasing grand jury
materials to a member of the press could set a dangerous precedent that grand jury members and
witnesses can no longer trust the government officials who assured them that their ies would
be protected when they participated in the grand jury process. See Grand erm, A.D. v.
City of St. Petersburg, Fla., 624 So. 2d 291, 293 (Fla. 2d DCA 199 State Attorney's
argument that disclosure of grand jury records would result in ction of the grand jury
as an investigative body if the state could no longer info s that their testimony would
be secret" persuasive).14
S"To obtain access to grand jury testim y, r predicate must be laid." Jent v. State, ? s kis
408 So. 2d 1024, 1027 (Fla. 1981), hol ' m ' ted by Preston v. State, 444 So. 2d 939 (Fla. g m...,
1984). Then, once a proper predi I i the trial judge must examine the grand jury records
sought to be disclosed to dete materiality of the records." Minton, 113 So. 2d at 364.
"[fit is crystal clear that sr g more than a mere surmise or speculation" about what the grand
/ , jury records may thin is needed to lift the veil of secrecy from the grand jury proceedings. Id.
at 365. O
14 If disclosure of the Epstein grand jury materials is ordered, the Clerk presumes, but in an
abundance of caution also requests, that the Clerk only be ordered to provide the materials to the
Court for an in camera review so that the Court can determine whether records revealing the
identifies of any grand jurors or witnesses should not be disclosed or should be redacted to protect
these individuals' identities.
21
EFTA02734385
In State v. Tillett, Ill So. 2d 716, 724 (Fla. 2d DCA 1959), the Second DCA discussed the
uncertainty surrounding the "furthering justice" exception to grand jury secrecy:
The concept of furtherance of justice is inherently difficult of precise defmition.
The application of such principle also is difficult and is necessarily dependent upon
the peculiar factual circumstances of each particular case. A court of competent
jurisdiction, before granting the use of grand jury testimony upon the furtherance
of justice doctrine, should require the satisfactory establishment of the right t its
borne
Ammt
use. The onus must be by the person seeking to gain access to and use d the
testimony.
O rtheASOWhile there is a paucity of case law controlling the Court's inq ' e "fu ring
justice" issue, it does appear that appellate courts have been
civil litigants access to grand jury records under the "furth
si(ccivil actions for libel and slander based on grand jury tes
\yr<it 2and actions for malicious prosecution (See e.g., Wi e
DCA 1966); Dworetzky v. Monticello Smoked 1 1, 56 A.D. 772 (App. Div. 1939)). Courts ? S te
have also denied access to grand jury un r the "furthering justice" exception where the
party seeking the materials fails to i proper predicate to obtain them. See e.g., James v.
Wille, 480 So. 2d 253 (Fla. 4 85) (even where "hypothetically, discovery might affect
the achievement of justic per predicate must still be laid); State v. Meeks, 610 So. 2d 647,
648 (Fla. 3d DC 2) (q ashing trial court's order requiring die disclosure of grand jury records
because th seeking disclosure "did not contain any facts which supported his allegations
that th d withheld critical facts from the grand jury").
G. Overview of the Law if the "Inherent Power" Inquiry is Needed
As explained by the Florida Supreme Court in State a rel. v. City of Avon Park,
117 Fla. 565, 158 So. 159, 164 (Fla. 1934): "Every court has inherent powers to do all things that
are reasonably necessary for the administration of justice within the scope of its jurisdiction,
fairly c nsi denying private
ce exception; including in
e.g., Tillett, III So. 2d 716)
raft, 184 So. 2d 444, 445 (Fla. 4th
22
EFTA02734386
subject to, or not in conflict with, valid existing laws and constitutional provisions." See also
Jimenez, 259 So. 3d at 725; M, 361 So.2d at 137. "Inherent powers" of courts have been
described as "all powers reasonably required to enable a court to perform efficiently its judicial
functions, to protect its dignity, independence and integrity, and to make its lawful actions
effective. These powers are inherent in the sense they exist because the court exists...." M, 361
So.2d at 136 n. 3 (quoting CARRIGAN, INHERENT POWERS OF THE COUR
With respect to the requirement that courts exercise their inherent
not in conflict with, valid existing laws," courts should be mindful
placed on the disclosure of grand jury records. See Weinberg, 8
A
S mepower does not permit a court to ignore existing law, such
itabove, the existing laws surrounding the disclosure
4s .,against any disclosure, and even where disclo itted can only be "used in the defense or c
prosecution of the civil or criminal case for other purpose whatsoever." See § 905.27(2),
acts a general prohibition and enumerates limited
not at liberty to expand the enumerated exceptions by
973)).
"subject to, or
the Legislature
As a rule, where the Le
exceptions to that prohibition
3 22 (A "court's inherent
levin statutes."). As noted
ry proceedings and records weigh
judicial fiat. See e.g., te, 215 So. 3d 113, 115-16 & n.1 (Fla. 1st DCA 2017) (invoking
the principle of io ius est exclusio alterius as requiring courts to respect the separation
of powers d use "where a statute enumerates the things on which it is to operate, ... it
is ordi be construed as excluding from its operation all those not expressly mentioned")
(quoting Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976)); see also Buzzard v. Buzzard, 412 So.
2d 388, 390-91 (Fla. 2d DCA 1982) (recognizing the general rule that "a court is not authorized
in the construction of a statute, to create exceptions not specifically made." (quoting Ogle v. Heim,
69 Ca1.2d 7, 69 Cal.Rptr. 579, 442 P.2d 659, 660 (1968)).
23
EFTA02734387
The Post relies upon several federal cases in support of its argument concerning the Court's
inherent authority to publicly disclose grand jury records (Motion (DE # 58) at pp. 27-28). In
reviewing these cases, it is important to note the differences between Florida and Federal grand
juries. As discussed above, Rule 6 of the Federal Rules of Criminal Procedure governs matters
related to a federal grand jury and provides the framework for recording and disclosing
proceedings, including the exceptions to the generally applicable rule of secrec
Fed. R. Crim. P. While Rule 6 is materially different from Section 905.27
are intended to accomplish the same goal—protecting the secrecy of
There is a split amongst the Federal circuit courts
tcourts have the "inherent authority" to order the disclosure
States, 953 F.3d 1226 (11th Cir. 2020), cert. denie 1/4 , C ‘t
overturned its own precedent, holding that di eAlli; have no inherent, supervisory power to ?s e
authorize the disclosure of grand jury
Rule 6(e). At issue in Pitch was
materials related to "Moore's
tile 6(e),
tatutes, they
proceedings.
hether Federal district
records. In Pitch v. United
624 (2020), the Eleventh Circuit
o Kle of the enumerated exceptions provided by
district court could order the release of grand jury
ching—a horrific event involving the murders of two
African American couple> yhich no one has ever been charged" based on circumstances not
explicitly covere
the grand j
unsolv
Rule 6(e). Id. at 1229. Author Anthony Pitch petitioned for the release of
pts related to the crime so he could use them to inform the public about the
Id. Mr. Pitch's request did not meet any exception provided by Rule 6(e), but
the district court granted the petition, relying on a previous 1 1 '11 Circuit decision holding that "a
district court may, pursuant to its inherent, supervisory power over the grand jury, authorized the
disclosure of grand jury records outside of Rule 6(e)'s enumerated exceptions in certain
'exceptional circumstances.' Id. An Eleventh Circuit panel initially affirmed the lower court's
24
EFTA02734388
decision, before the case was reheard en bane. Id. Considering the import of the "long-established
policy that grand jury proceedings in federal courts should be kept secret" and the purposes of such
secrecy, the Eleventh Circuit ultimately decided to recede from precedent, holding that Rule 6(e)
"by its plain terms limits disclosures of grand jury materials to the circumstances enumerated
therein." Id. at 1233-34.
Other circuits have arrived at the same conclusion, while some continue to isclosure
under the Court's inherent authority. See, e.g. McKeever v. Barr, 920 F. 844 (D.C. Cir.
2019), cert. denied, 140 S. Ct. 597 (2020); In re Grand Jury 89-4-72 81, 488 (6th Cir.
1991) ("[W]ithout an unambiguous statement to the contrary on s, we cannot, and must
not, breach grand jury secrecy for any purpose other th odied by the Rule."); United
States v. McDougal, 559 F.3d 837, 840-41 (8th ASV ("`Because the grand jury is an i n
1%institution separate from the courts, over who ct ing the courts do not preside,' ... courts o e
will not order disclosure absent a reco ' ?
s
e p tion to Rule 6(e) or a valid challenge to the
original sealing order or its imple n ' (alteration omitted); In re 38 Studios Grand Jury,
225 A.3d 224, 240 (R.I. 2020) e sland courts have no inherent authority to release grand
jury records); compare C v. United States, 837 F.3d 753, 767 (7th Cir. 2016); In re Petition
of Craig, 131 F.3 107 t2 d Cir. 1997). Notably, The Post cites Carlson in its Motion (DE #
58 at ¶ 95). O
25
EFTA02734389
V. CONCLUSION
For the foregoing reasons, The Post's Motion for Summary Judgment should be denied,
and this case should be dismissed with prejudice.
/s/ Kenneth G. Turkel
Kenneth G. Turkel — FBN 867233
E-mail: [Email Redacted]
James — FBN 111668
E-mail: svogt®ba
C. Moone
jocuva.com l ac
E-mail: 'moons
Shane B. Vogt - FBN 257620
BAJO I CUVA I
100 North Tampa Street,
Tampa, Florida 33602
Telephone: (813 199
Facsimile: (81 3
Attorneys t, Abruzzo, as Clerk
and Co Palm Beach County, Florida
26
EFTA02734390
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 1st day of October, 2021, I caused a true and correct
copy of the foregoing to be served via the Florida Court's E-Filing Portal upon the following
counsel of record:
Stephen A. Mendelsohn
Greenberg Traurig, P.A.
401 East Las Olas Blvd., Ste. 2000
Fort Lauderdale, FL 33301
E-mails: [Email Redacted]
[Email Redacted]
FLServiceQgtlaw.com
Michael J. Grygiel
Greenberg Traurig, P.A.
54 State St., 6th Floor
Albany, NY 12207
E-mail: grvgielmegtlaw.com
Nina D. Boyajian
Greenberg Traurig, P.A.
1840 Century Park East, Ste. 1900
Los Angeles, CA 90067
E-mails: bovaiiannQatlaw.com Ac ci ty
riveraalOgtlaw.com
Attorneys for Plaintiff
pO
Go
Is/ Kenneth G. Turkel
Attorney
27
EFTA02734391