Court Records
MANDAT 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 thett,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.: 502019CAftratXe S)X11491B
STYLE: CA FLORIDA HOLDINGS, v.
LLC, Publisher of THE
PALM BEACH POST
Served:
cc: Amy Borman
Douglas Wy .
Katherine Clemente
Stephen A. Mendelsohn
kr
DAVE ARONBERG, as State
Attorney of Palm Beach County,
Florida, et al.
LONN WEISSBLUM, Clerk
Fourth District Court of Appeal
Brigid Finerty Cech Samole
Jennifer Fleming Printz
Michael J. Grygiel
Clerk Palm Beach
Collin D.
Jessica Neer McDonald
Nina D. Boyajian
FILED: PALM BEACH COUNTY, FL ABRUZZO CLERK 05/26/2023 04:31:39 PM
EFTA02736759
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
Michael J. G
Hac Vice, for
Colli
Bonn
Circus
PER C
erg Traurig, LLP, Los Angeles, California,
Greenberg Traurig, LLP, Albany, New York, Pro
, Jennifer Flemirig Printz, and Amy
t Palm Beach, for appellee •=1 Abruzzo, as Clerk of the
and Comptroller, Palm Beach County, Florida.
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
EFTA02736760
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' ybody is saying that 1/2
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
2
EFTA02736761
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.
CudThe trial court agreed "the established matter rrounding 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.
• 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
and reiterates its trial court
tral position. I No one opposes the
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.
3
EFTA02736762
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.
4
EFTA02736763
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.
Craig, 131 F. 3d at 106.
pt 'al —
n p
d jury
are still alive;
ecrecy in the
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
5
EFTA02736764
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 \ t""Cic )ti 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:
6
EFTA02736765
[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
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
gs. First, it prohibits
on (1) unless disclosure
om disclosure can be made
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.
7
EFTA02736766
system, I wo
judiciary h
grand j
inclu
rule
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.
Florida's judicial syste
inseparable relationship t
Supreme Court has de
Investigation, 287 So.
Because Flori
d
cre
that does not end our
h nt authority over all of its
egislative authority to do its
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).
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)).
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
8
EFTA02736767
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.
9
EFTA02736768
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
Most cases focus on
of justice. Section 90
pending civil and cri
entire statute is ignore
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
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
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.
10
EFTA02736769
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 an zy materials. We are judges, not cL ui
kings, and on a clean slate, ,stick to the language of the statute.
Not final until disjlwition of timely filed motion for rehearing.
I I
EFTA02736770