EFTA02729378

• IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, v. STATE OF FLORIDA, Respondent. CASE NO. 4D09-2554 PALM BEACH COUNTY L.T. CASE NO. 2008 CF 009381A RESPONSE TO MOTIONS FOR APPELLATE ATTORNEY'S FEES AND COSTS Petitioner, JEFFREY EPSTEIN, responds to the Motions for Appellate Attorneys' Fees and Costs filed by respondents, E.W., B.B., and Palm Beach Newspapers d/b/a The Palm Beach Post ("the Post"). This Court should deny the motions for appellate fees and costs for the following reasons: Respondents ask this Court to impose an award of attorney's fees and costs as a sanction under the authority of 15th Judicial Circuit Administrative Order 2.303-9/08 and Florida Rule of Appellate Procedure 9.410. Neither supports an award of appellate fees and costs. 09/12/2079 I CONFPIT5E4NTIAL Agency to Agency Requet: 19-011 SDNY_GM_00331667 EFTA_00204393 EFTA02729378 The circuit court's administrative order does not grant this Court the authority to award appellate fees as a sanction. The cited 15th Circuit Administrative Order provides that "[i]f a motion to seal is not made in good faith and is not supported by a sound legal and factual basis, the court may impose sanctions upon the movant." (PA-2:3, ¶ 11).1 Respondents cite no cases for the novel proposition that an administrative order in the circuit court constitutes a grant of authority to award appellate fees. See generally Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569 & 573-74 (Fla. 2005) (holding that appellate courts have the power to sanction litigants for conduct in the appellate courts, but not for conduct in the trial courts). Further, the cited circuit court administrative order does not apply. It was not adopted until September 29, 2008--months after Judge Pucillo sua sponte ordered the non-prosecution agreement and its addendum filed and sealed (PA-2:3; A-9). The Administrative Order in effect when Judge Pucillo sealed these documents was 2.032-10/06, which does not contain comparable language authorizing sanctions (PA-3). The new administrative order authorizing sanctions 1 The symbol (A- ) refers to Mr. Epstein's Appendix to Emergency Petition for Writ of Certiorari filed July 1, 2009, and (PA- ) refers to the Supplemental Appendix to the Post's Response to Emergency Petition for Writ of Certiorari filed on July 10, 2009. All emphasis is supplied unless otherwise indicated. 09/12/2019 CONFPITTENTIAL Agency to Agency Requet: 19-411 SDNY_GM_00331668 EFTA 00204394 EFTA02729379 cannot be retroactively applied. See, e.g., Young v. Altenhaus, 472 So. 2d 1152, 1154 (Ha. 1985). And, as explained in Mr. Epstein's Emergency Petition for Certiorari, the new administrative order does not apply since Judge Pucillo filed and sealed the documents sua sponte, not by motion (Em. Pet. Certiorari at 12-13). Respondents also fail to show that rule 9.410 authorizes a sanction of fees and costs. Rule 9.410 allows this Court to impose fees as a sanction for violations of the appellate rules or "the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith." Fla. R. App. P. 9.410. Courts "should exercise great restraint in imposing appellate sanctions." Boca Burger, 912 So. 2d at 570-71. A petition is only "frivolous" if it "presents no justiciable question and is so devoid of merit on the face of the record there is little prospect it will ever succeed." Visoly v. Sec. Pac. Credit Corp., 768 So. 2d 482, 490-91 (Fla. 3d DCA 2000). In other words, appellate proceedings are only frivolous if: (1) "completely without merit in law" and not supported by a reasonable argument for an extension of the law; (2) "contradicted by overwhelming evidence"; (3) "undertaken primarily to delay or prolong the resolution of the litigation"; or (4) "asserting material statements that are false." Visoly, 768 So. 2d at 491. 3 09/12/2079 Page 3406 CONFIDENTIAL Agency to Agency Requet: 19-011 SDNY_GM_00331669 EFTA_00204395 EFTA02729380 Respondents fail to meet this high showing. As discussed more fully in Mr. Epstein's Emergency Petition for Certiorari and Reply to the Responses to the Emergency Petition for Certiorari, incorporated herein, principles of supremacy and comity required the trial judge to defer to the federal court, which has, to date, denied disclosure of the confidential non-prosecution agreement and addendum between the U.S. government and Mr. Epstein to third parties. Under Florida Rule of Judicial Administration 2.420, which governs the disclosure of judicial records, documents that are confidential under federal law remain confidential when filed in a state court. See State v. Buenoano, 707 So. 2d 714, 717-18 (Fla. 1998). The federal non-prosecution agreement and addendum arc confidential under federal law because they reveal information related to a federal grand jury investigation. See Fed. R. Crim. P. 6(e). Mr. Epstein's arguments are supported by existing law and the record. On July 1, 2009, this Court entered a stay and ordered respondents to show cause why Mr. Epstein's Emergency Petition for Certiorari should not be granted. This order indicates that this Court has examined the petition and determined that Mr. Epstein has made a prima facie showing warranting certiorari relief. See Bared & Co. v. McGuire 670 So. 2d 153, 157-58 (Fla. 4th DCA 1996); see also Mitchell v. State, 911 So. 2d 1211, 1219 (Fla. 2005) (explaining that a "principal consideration n" for 4 09/12/2079 age 3407 CONFIDENTIAL Agency to Agency Requet: 19-411 SDNY_GM_00331670 EFTA_00204396 EFTA02729381 an appellate court reviewing a stay is "the likelihood of success on the merits"). While this Court may eventually disagree with Mr. Epstein's arguments, they are by no means frivolous. CONCLUSION This Court should deny the Motions for Appellate Attorney's Fees and Costs filed by E.W., B.B., and the Post. I HEREBY CERTIFY that a copy of the foregoing has been sent by mail this 31-4-4 day of July, 2009, to: JEFFREY H. SLOMAN U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 Fast Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33301 Counsel for E.W. SPENCER T. KUVIN DIANA L. MARTIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. 09/1212019 JUDITH STEVENSON ARCO State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATII 15th Judicial Circuit Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 5 PI 3406 CONFIDENTIAL Agency to Agency Requet: 19-411 SDNY_GM_00331671 EFTA_00204397 EFTA02729382 ROBERT D. CRITTON of BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER of ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and JANE KREUSLER-WALSH and REBECCA MERCIER VARGAS of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner 09/12/2019 By: It..., a NE K=Ilt-WALSH orida Bar No. 272371 6 CONFPIZSENTIAL Agency to Agency Requet: 19-411 SDNY_GM_00331672 EFTA_00204398 EFTA02729383 a , KREUSLER4VALSH, Cob:rum & VARGAS, P.A. SUITE 503, FLAGLER CENTER SOI SOUTH FLAOLZR DRIVE WEST PALM BEACH, FLORIDA 33401.5513 IIIIIIIIIIIIIIIIII -St=ni s Beach 401 North Dixie Highway West Palm Beach, FL 33401 3340116429G 0029 hill...11..1.,111 g s , =Mr marilmitrrOWNSO 02 1P 0004162054 JUL 31 2009 MAILED FROM ZIPCODE 33401 $ 00 0 .61 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII Agency to Agency Reque < S LL z z 0 SDNY_GM_00331673 EFTA02729384