Filing E-Filed PM COPY In the Matter Of CA FLORIDA HOLDINGS vs DA VE ARONBERG HEARING June EsquireSo/utions.com FILED PALM BEACH COUNTY FL JOSEPH ABRUZZO CLERK PM HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO CIRCUIT CIVIL DIVISION AG CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST Plaintiff/Petitioner vs DAVE ARONBERG SHARON BOCK Defendant/Respondents HEARING BEFORE THE HONORABLE KRISTA MARX ZOOM CONFERENCE Wednesday June a.m a.m REMOTE ZOOM CONFERENCE Port Saint Lucie Florida Stenographically Reported By SONJA REED Court Reporter June EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG APPEARANCES On behalf of the Plaintiff/Petitioner GREENBERG TRAURIG P.A Century Park East Suite Los Angeles California boyajian gtlaw.com BY NINA BOYAJIAN ESQUIRE On behalf of the Defendant/Respondent JACOB SCHOLZ WYLER LLC Gateway Boulevard Suite Fernandina Beach Florida doug.wyler comcast.net BY DOUGLAS A WYLER ESQUIRE On behalf of the Defendant/Respondent June CLERK COMPTROLLER PALM BEACH COUNTY P.O Box West Palm Beach Florida nfingerhut mypalmbeachclerk.com BY NICOLE FINGERHUT ESQUIRE EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG PROCEEDINGS June THE COURT We are here today for a very limited purpose Im sure the attorneys are aware of that but I just dont want there to be any confusion We are here on Defendant Dave Aronberg and Defendant Sharon Bock for the Comptroller and the State Attorneys motion to dismiss Count II Youre all acutely aware as the lawyers that this is a question of law So were not going to be diving into facts and the Court will not be deciding the merits of this motion this morning We are simply here for the sole purpose of that motion to dismiss So I just wanted to make sure that we all stay on track and were all on that same page So Ms Boyagian Ill send it to you first Maam I of course we all know that the Law I must look at the four corners of the motion which alleges that the State Attorney David Aronberg and the clerk and comptroller Sharon Bock actually have custody and control of these grand jury proceeding Whether that is true or not is not for this court to determine because Im looking simply at the four corners of the complaint But not for nothing I think we all know that they dont have control and EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June custody of the records But Im going to assume that its correct because thats what has been alleged So what I first want to hear from is the attorney for Florida Holdings with regard to assuming arguendo that Florida Statute does create a cause of action what relief is it that youre seeking from in Count II specifically Not the dee action Were not here on that today what is it you hope to get a judgment MS BOYAGIAN Thank you your Honor Good morning and thank you for the privilege of appearing before this court The relief we are seeking is disclosure of the grand jury records pursuant to the Furtherance of Justice Exception to And under the First Amendment The press as your Honor is aware has a right of access under the First Amendment as a surrogate of the public THE COURT Let me just stop you for a minute Id like you to answer my specific question So I am not particularly convinced and Id like for you to address that So were not going to dive into facts or the pres standing because thats not something were here to discuss today EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June And I have read the voluminous paperwork Ive received paperwork as and five-minute ago from some of the other parties But I deeply appreciate the fact that you sent this to me so much in advance and I have been able to spend some time with as I said the voluminous paperwork that was provided But as you know Maam we are here for such an extremely limited issue today and that their motion to dismiss where they state youre suing the wrong people that the court has these records And so more importantly I want you to address whether Section gives you a private cause of action against the state attorney and the clerk Again Im going to assume the facts are true that are asserted in the motion Whether they are or not because I think we can all agree were not for sure if they ever that the state attorney doesnt have these records So what is it youre seeking in Count II not the dee action I know you want the records Ive got that But in Count II specifically what do you whats the relief youre seeking and more importantly how under this statute do you get to assert a private action a private cause of action against the state attorney and the EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG clerk June MS BOYAGIAN Your Honor we are aware of course that there is no expressed private right of action But that does not end the inquiry As the Florida Supreme Court stated Where a statute like forbids an act which is to Plaintiffs injury the party injured should have an action And thats the Smith Piezo case in the volume of materials that we sent you Theres no question here that the denial of the FIRST AMENDMENT right to the press is an injury which gives rise to a right of action Stated another way looking at the analysis that the Fischer Metcalf Court looked at there are three factors in determining whether there is a private right of action where a statute does not expressly provide for one One is whether the Plaintiff is part of the class for which the statute is intended to protect second is a legislative history and the third is the underlying purposes of the statutory scheme The first factor I already addressed that the press is part of the class that the statute is EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June intended to benefit being the surrogate of the public and exercising its first amendment right The second issue of legislative history and the purpose statutory purpose are somewhat related We were unable to find much legislative history on this issue of a private right of action under the statute There is nothing that says we intend to create a private action but theres certainly nothing that says we do not want to create a private right of action What we do have is that in the same time that was reenacted a statute that pertains to the secrecy of State Grand Jury statewide grand juries was also enacted That provision which is has no exceptions for for revealing these records By contrast the legislature intentionally enacted with the Furtherance of Justice Exception If the public through the press cant bring a private right of action to enforce that exception or to seek relief under that exception that intentionally placed exception of furthering justice is essentially rendered hollow Speaking simultaneously EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June THE COURT Okay Pause for a minute I dont think anybody is saying that there isnt a cause of action or that the press doesnt have standing Thats not what Im asking you Im asking you how are the clerk and the state attorney the proper defendants So you know nowhere have I said there isnt a cause of action Clearly there is Im puzzled by the procedural posturing of this case naming the state attorney And you know Im further stymied by the fact that you allege in your complaint that they have particularly David Aronberg the State Attorney that he has these records But Im going to assume thats true So Im not telling you you dont have a cause of action Im just saying okay lets run this all the way out Lets say you win and you get a judgment against the State Attorney Dave Aronberg Whats he supposed to do with it He cant release the grand jury testimony He has no authority whatsoever to do that MS BOYAGIAN Well your Honor as you stated this is a motion to dismiss stage and we are entitled to discovery on the issue of possession EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June custody and control My understanding is that the state attorney has asserted that he does not have possession Its not my understanding that the clerk has taken that position So the clerk may indeed be the someone who does have possession custody and control In any event we would submit that the state attorney even it does not have actual possession at this time it might be able to have the power to control or direct the entity or persons who do have control and possession to release those to effect the judgment THE COURT So let me ask you this So the clerk is the keeper of the record But even if you got a judgment against her lets say you asserted this cause of action and lets say you win and you get a judgment against the clerk The clerk cannot release grand jury testimony to you Only the court can So really all Im saying to you is I do not understand the way this case was filed or why these are the defendants because its impossible for them to perform I mean Im going to assume based on your motion again that they do have the records But we EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June all know everyone in the room knows they do not that only the court theyre theyre with a court interpreting And only the court can release the records So if you get a judgment against either the state attorney or the clerk they cannot I mean I guess what youre saying to me is well we want to do discovery and we want them to say unequivocally I have these records or I dont have them And I mean the law is abundantly clear You cannot do it without a court determining whether in the furtherance of justice the release is appropriate MS BOYAGIAN And that is a determination were asking your Honor to make and were asking for an order from your court THE COURT When we get to the merits of the case sure it is But again youre asking me to make that determination and for me to make a determination of whether the grand jury records should be released And the only thing were here today about is why should the clerk and the state attorney have to defend a civil action when its a possibility of performance They even if you were to win and get a judgment against them they cannot EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG give you what they dont have June So I mean its as simply as this Are you you just want to engage in some discovery for them to absolutely assert particularly the state attorney I dont.have these records look to the rules that say the moment the grand jurys over theyre sealed and theyre turned over and they cannot be released without court order So Im not addressing the merits or whether you have an exception or youre able to argue that theres an exception in the furtherance of justice Were not getting there today Im simply saying why should these two entities have to defend this lawsuit when even down the road if they win they cant give you what they dont have MS BOYAGIAN As your Honor stated Im not sure thats the case with the clerk That was not in their that issue was not stated in their papers THE COURT Let me ask you this then Do you think if you got a judgment and I or the court doesnt make the determination that the grand jury records should be released that the clerk would be able to perform Would they be able to say here you go I mean could the clerk just make that unilateral EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June decision Im going to release the records sealed confidential records Does she have any authority to do that MS BOYAGIAN My understanding your Honor is that requires a court order before the records are unsealed THE COURT Exactly Exactly All right Let me hear from Mr Aronbergs attorney Mr Wyler MR WYLER Thank you your Honor May it please the Court THE COURT Good morning Sir MR WYLER Good morning Your Honor I just wanted to let you know that I spoke with counsel for the clerk Ms Fingerhut a couple of days before this hearing and we decided that I would just make the presentation for both of of us being that our arguments overlap except for the fact of who this claim whether they have the records or not which of course weve said we dont have custody of the records But nonetheless our arguments overlap The Plaintiff is attempting to assert a cause of action under Section That statute settled testimony not to be disclosed exceptions So its just EsquireSo/utions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June explaining exceptions to the disclosure of the grand jury testimony Our position is that it doesnt set forth a cause of action and that its impossible for us to perform what theyre asking I know you said you didnt really want to get into the Furthering-Justice Exception but I know thats what theyre using as their basis to get to these But its our position that the clear unambiguous statutory language it shows that this disclosure only applies to a civil or criminal case and that within that civil or criminal Speaking simultaneously THE COURT Again sir Im sorry As I told Plaintiffs counsel MR WYLER can only be used in the defense for THE COURT Okay Were not there Were not discussing the merits of the case and Im not ready to cross that bridge Im here for a very very limited hearing today So just as I stopped Plaintiffs counsel from arguing the merits of the case and whether or not the Furtherance of Justice Exception will apply in this instance were not even there yet EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Im only here for the purpose of determining whether or not the clerk and state attorney should be dismissed And I am bound by the four corners of the document which assert that you do have control and custody over it So if youll fashion your argument with regard to that limited purpose I would appreciate it MR WYLER No problem your Honor I apologize Within the four corners of their complaint our position is that they failed to state a cause of action under It does not provide for it doesnt list that theres no element that they have adequately pled to assert a cause of action under that Theres and the only thing theyre asking for is records that we dont have Theres really not much more to it your Honor And we would ask that you would grant our motion to dismiss for failure to state a cause of action THE COURT Okay Ms Fingerhut are you still on the phone MS FINGERHUT Yes your Honor THE COURT Is there anything you wish to add MS FINGERHUT We agree with the state EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June attorneys position and we also agree with what the Court has said that the plain language of the statute a cause of action doesnt exist And we really cannot well be defending something without the four corners Were simply involved in this action because the clerk is the custodian of the records THE COURT Okay Thank you Maam Ms Boyagian back to you MS BOYAGIAN Your Honor Id like to note that in the Butterworth case in which the Supreme Court limited the application by saying that a witness can reveal her own testimony and prohibiting that they violate the First Amendment THE COURT Say that again please MS BOYAGIAN In the Supreme Court case the Butterworth case in which the Supreme Court ruled that cant restrict a Grand Jury witness from revealing her own testimony that would be a violation of First Amendment in that case the state attorney was in fact a party THE COURT Well I assume the state attorney that was present I mean I dont find that thats close to what were talking about here and thats whether or not I mean as we know this was in EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Certainly Dave Aronberg wasnt even the state attorney then But this is about the release of records I want to give you ample opportunity and again I sincerely appreciate that all of the case law and the way that it was presented to the Court in such a timely fashion I really do And I did spend some time with it But I want to give you whatever opportunity you want to take to convince me that it is in as to Count again Not the dee action whether these would be the appropriate defendants And you know really I want you to boil it down for me as to this lets take it all the way down the road You win You get a judgment against the clerk and the state attorney I know theres other reasons why you might have filed it this way But Im just simply puzzled because I do hear what the clerk and the state attorney are saying and that is performance is impossible They dont have the records and cannot absolutely Theres not even an inch of wiggle room that they could release the records even if you got a judgment It is solely a determination for the court I frankly think you know theres ways to EsquireSolutions.com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June get to your records Theres ways to get confidential records But it isnt by suing the state attorney and the clerk So I just want to hear your last final argument on how Count II the appropriate defendants are the clerk and the state attorney Even assuming arguendo they have the records we know they dont you were to get a judgment against them how would you expect them to perform MS BOYAGIAN Two points your Honor One is that again the clerk did not assert in her papers that she does not have control That is a position that the State Attorneys Office has asserted It is our allegation and as your Honor noted allegations must be accepted as true as true at this stage of the proceedings Second it is also our understanding that the state attorney and the clerk intend to block access to these records So our allegation is that they do have possession custody or control which the clerk has not denied and second that they are trying to block access to the records THE COURT What do you mean What do you mean Theyre not trying to block it Theyre saying that despite the fact lets just talk about EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June the clerk because we all know the state attorney doesnt have it So the clerk is the custodian of records Thats her main job Theres no doubt about it We all know that But we also know unequivocally unequivocally only the court can make the determination of whether the moving party has satisfied that there is an exception that these should be released So again I ask you she is in fact the custodian of the records is it your opinion that if you got a judgment saying clerk and comptroller gets a judgment against them that she can release the records without the court without the court weighing in without the court making that determination as required by law MS BOYAGIAN No your Honor We are asking your Honor to order the clerk to do that under your discretion THE COURT All right Mr Ms Fingerhut you wish to be heard on that MS FINGERHUT Your Honor our position is that were not trying to block access to the records EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG Speaking simultaneously June THE COURT Can you hear Can the attorneys hear MS FINGERHUT custodian the records and that he cannot release the records without court THE COURT Exactly Okay All right Anything further Mr Wyler MR WYLER No your Honor I concur with the attorneys for the clerks office that its impossible for us to release these records Theres no intent to hide them or block anything from the Plaintiff THE COURT Okay Anything further Ms Fingerhut MS FINGERHUT No your Honor THE COURT And Ms Boyagian anything further Maam MS BOYAGIAN Nothing further your Honor THE COURT Okay I will get an order out quickly Thank you folks so much And Ill see you on the next round Thanks a lot MS BOYAGIAN Thank you your Honor MR WYLER Thank you your Honor The proceedings concluded at a.m EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG CERTIFICATE OF REPORTER June I Sonja Reed Court Reporter certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript pages through is a true and complete record of my stenographic notes Dated this 3rd day of June Sonja Reed Court Reporter EsquireSolutions com
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