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1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CA FLORIDA HOLDINGS, LLC, Publisher of THE PALM BEACH POST, 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. CASE NO.: 50-2019-CA-014681-XXXX-MB DIVISION: AG WRITTEN CLOSING ARGUMENT OF CA FLORIDA HOLDINGS, LLC, PUBLISHER OF THE PALM BEACH POST, ON STATE ATTORNEY DAVE ARONBERG’S AMENDED MOTION FOR ATTORNEYS’ FEES UNDER FLORIDA STATUTES SECTION 57.105 Plaintiff, CA Florida Holdings, LLC, publisher of The Palm Beach Post (“Plaintiff” or the “Post”), pursuant to the Court’s instructions at the conclusion of the evidentiary hearing held on September 6 and 8, 2022, respectfully submits this Written Closing Argument opposing State Attorney Dave Aronberg’s November 9, 2020 Amended Motion for Attorneys’ Fees (the “Amended Motion”) under Florida Statutes § 57.105 [DE 50]. I. INTRODUCTION The State Attorney’s Amended Motion should be denied with prejudice, as it is both procedurally and substantively deficient. The evidence establishes that—in an effort to inform the public how sexual predator Jeffrey Epstein received a highly unusual and extremely lenient plea agreement following his 2006 grand jury indictment by a former Palm Beach County State Attorney—the Post and its attorneys conducted an extensive factual and legal investigation, leading to the filing of this case seeking the Epstein grand jury materials. The Post relied upon Filing # 158743660 E-Filed 10/06/2022 05:00:12 PM *** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 10/06/2022 05:00:12 PM *** NOT A CERTIFIED COPY 2 statutes and case law supporting disclosure of the grand jury materials under the unique and extraordinary circumstances of the Epstein case—including Miami Herald Pub. Co. v. Marko, 352 So. 2d 518 (Fla. 1977), in which the Florida Supreme Court recognized an exception to grand jury secrecy under the First Amendment in the context of grand jury findings of public corruption—to argue that a similar exception to grand jury secrecy should be recognized in the Epstein case. While ultimately denying the relief that the Post sought, in the Court’s Final Judgment on the declaratory relief claim in Count I, Judge Hafele stated that the Post’s arguments were “palatable and persuasive” and presented “strong arguments” for a more expansive construction of the “in furtherance of justice” language of Florida Statutes Section 905.27. Judge Hafele also noted the case presented questions of “first impression” regarding that statute’s interpretation and the Court’s inherent authority over grand jury proceedings, which questions also implicated “issues of constitutional import regarding the historic tension between grand jury secrecy and the First Amendment.” Ex. J30 at pp. 5, 7, 11, 13. 1 These issues are now on appeal before the Fourth District Court of Appeal. As was shown at the evidentiary hearing, the State Attorney’s Amended Motion has no merit. It is the State Attorney’s burden—and a heavy one—to prove sanctions are permitted and warranted under Florida Statutes Section 57.105 as to Count I of the Amended Complaint, the declaratory judgment claim. This is a burden the State Attorney not only failed to meet, but cannot meet, after he admitted in his Answer that the Count I declaratory judgment claim presented a “good faith dispute” between the parties. Ex. J09 at ¶ 72; Ex. J10 at ¶ 72. The State Attorney’s accusation that he was named in his official capacity—in a claim 1 Citations to “Ex. J__” correspond to the hearing exhibit numbers set forth in the parties’ Joint Exhibit List, filed with the Court on September 1, 2022. NOT A CERTIFIED COPY 3 seeking access to grand jury materials from a prosecution by a former State Attorney—solely because of some “personal vendetta” against him has no factual basis. Hrg. Tr. 2 at 58:6-59:25. 3 Rather, the evidence shows a thoughtful, deliberate, and detailed factual investigation and legal analysis by the Post’s attorneys to determine what claims to bring and what parties were required to be joined to obtain public access to Epstein’s grand jury materials. The State Attorney was always a necessary party—the reasons requiring his joinder were alleged in the initial Complaint, continued in the Amended Complaint, and never changed, contrary to the State Attorney’s argument that the Post somehow “moved the goalposts.” Hrg. Tr. at 53:1-11, 59:15-25, 60:21-61:14. Unlike the Clerk, who was named in its official capacity only as being “in possession of documents that are the subject to this action,” [Ex. J04 at ¶ 4; Ex. J09 at ¶ 4], the State Attorney was named in his official capacity primarily because of his “authority in grand jury proceedings pursuant to Fla. Stat. section 27.03.” See Ex. J04, ¶ 3; Ex. J09 at ¶ 3; see also Ex. J16 (June 23, 2020 Letter from S. Mendelsohn to D. Wyler, counsel for State Attorney Dave Aronberg). As the sole public official with authority over grand jury proceedings, the State Attorney had the right and authority, if he so chose, to object to the release of grand jury materials by the 2 Full transcripts from the evidentiary hearings on September 6 and 8, 2022 (“Hrg. Tr.”) have been filed with the Court, and condensed versions of the transcripts hereto are attached as Composite Exhibit A. 3 The State Attorney’s belief that the only reason his Office was named as a defendant was because of a “personal vendetta” and animus to “go after” him on behalf of the Post (Hrg. Tr. at 58:6- 59:25) was not supported by any exhibit, nor any pleadings or filings. To the contrary, the Post’s attorney, Stephen Mendelsohn, testified he had a great deal of respect for the State Attorney and his Office. Hrg. Tr. at 136:17-137:13. Despite the State Attorney’s speculation about the Post’s purportedly adverse motivations and his criticism of the Post’s prior reporting, none of the articles he took issue with were offered in evidence. Further, the State Attorney’s allegation that the Post had coordinated its reporting with its counsel was rebutted as Mr. Mendelsohn testified that he did not speak to the Post’s editorial staff about its news coverage of the issues in this litigation. Hrg. Tr. at 135:23-136:16. NOT A CERTIFIED COPY 4 Clerk. The State Attorney exercised his authority and objected to release of the grand jury materials by his motion to dismiss the initial Complaint, and again in his Answer to Count I and Motion to Dismiss Count II of the Amended Complaint. Ex. J06; Ex. J10. Once the State Attorney changed his position, on October 14, 2020, by affirmatively stating that he did not object to release of the grand jury materials if ordered by the Court, the Post dismissed the State Attorney from the lawsuit on October 21, 2020. Yet, nineteen days after his dismissal, on November 9, 2020, the State Attorney filed the Amended Motion. Because the Amended Motion was filed after the State Attorney had been dismissed from the case and because there was a lack of proper service of the Amended Motion, there is no need to address the merits of the State Attorney’s Amended Motion—under the law, the Court lacks jurisdiction to consider it, and the Amended Motion should be denied on that basis alone. II. THE COURT LACKS JURISDICTION TO CONSIDER THE AMENDED MOTION A. THE STATE ATTORNEY FILED HIS AMENDED MOTION AFTER HE WAS DISMISSED AS A PARTY. As a threshold—but fu