Text extracted via OCR from the original document. May contain errors from the scanning process.
Petitioner,
v.
Respondent.
CASE NO. 4D09-2554
L.T. CASE NO. 2008 CF 009381A
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.
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EFTA00722896
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).' 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
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.
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cannot be retroactively applied. See, e.g., Young v. Altenhaus, 472 So. 2d 1152,
1154 (Fla. 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 sus 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.
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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.
State v. Buenoano, 707 So. 2d 714, 717-18 (Fla. 1998). The
federal non-prosecution agreement and addendum are 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[]" for
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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 31-0 day of July, 2009, to:
U.S. Attorney's Office-Southern District
500 South Australian Avenue, Suite 400
West Palm Beach, FL 33401
401 East Las Olas Boulevard, Suite 1650
Fort Lauderdale, FL 33301
Counsel for E.W.
DIANA L. MARTIN
2925 PGA Boulevard, Suite 200
Palm Beach Gardens, FL 33410
Counsel for B.B.
State Attorney's Office-West Palm Beach
401 North Dixie Highway
West Palm Beach, FL 33401
400 North Ashley Drive, Suite 1100
P. O. Box 2602 (33601)
Tampa, FL 33602 •
Counsel for The Palm Beach Post
15th Judicial Circuit
Palm Beach County Courthouse
205 North Dixie Highway
Room 11 F
West Palm Beach, FL 33401
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EFTA00722900
ROBERT D. CRITTON of
BURMAN, CRITTON, LUTT1ER & COLEMAN
515 North Flagler Drive, Suite 400
West Palm Beach, FL 33401
(561) 842-2820
and
JACK A. GOLDBERGER of
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
(561) 659-8300
and
JANE KREUSLER-WALSH and
REBECCA MERCIER VARGAS of
501 South Flagler Drive, Suite 503
West Palm Beach, FL 33401-5913
Counsel for Petitioner
By:
.
NE
USLER-WALSH
lorida Bar No. 272371
EFTA00722901