DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
IN RE: FINAL REPORT OF THE 20TH STATEWIDE GRAND JURY
Nos. 4D21-3640, 4D21-3641, 4D21-3642, 4D21-3643, 4D21-3644,
4D21-3645, 4D21-3646, and 4D21-3647
[June 15, 2022]
Appeals and cross-appeal of final orders from Jack Tuter, Presiding
Judge, 20th Statewide Grand Jury, and Martin S. Fein, Alternate Presiding
Judge, 20th Statewide Grand Jury; Case No. SC19-240.
Michael Hursey of Michael Hursey, P.A., Fort Lauderdale, for appellants
in Nos. 4D21-3640 and 4D21-3643.
James S. Benjamin, Daniel R. Aaronson, and Peter T. Patanzo of
Benjamin, Aaronson, Edinger & Patanzo, P.A., Fort Lauderdale, for
appellant in No. 4D21-3641.
Robert C. Buschel of Buschel Gibbons, P.A., Fort Lauderdale, for
appellant in No. 4D21-3642.
Joseph W. Jacquot, George S. LeMieux, and Jonathan K. Osborne of
Gunster, Yoakley & Stewart, P.A., Jacksonville, for appellant in No. 4D21-
3644.
Cary O. Aronowitz and Jeff Schacknow of Holland & Knight LLP, Miami,
for appellee/cross-appellant in No. 4D21-3645.
Michael B. Cohen of Michael B. Cohen, P.A., Fort Lauderdale, for
appellant in No. 4D21-3646.
J. David Bogenschutz and Patrick D. Wilson of Law Offices of J. David
Bogenschutz, P.A., Fort Lauderdale, for appellant in No. 4D21-3647.
Ashley Moody, Attorney General, Tallahassee, Nicholas B. Cox,
Statewide Prosecutor and Statewide Grand Jury Legal Adviser, Tampa,
and Luke R. Napodano, Assistant Attorney General and Special
Designated Assistant Statewide Prosecutor and Assistant Statewide Grand
Jury Legal Adviser, West Palm Beach, for appellee in Nos. 4D21-3640,
4D21-3642, and 4D21-3643, and appellant/cross-appellee in No. 4D21-
3645
Ashley Moody, Attorney General, Tallahassee, Nicholas B. Cox,
Statewide Prosecutor and Statewide Grand Jury Legal Adviser, Tampa,
and Melynda L. Melear, Senior Assistant Attorney General and Special
Designated Assistant Statewide Prosecutor and Assistant Statewide Grand
Jury Legal Adviser, West Palm Beach, for appellee in Nos. 4D21-3641,
4D21-3644, 4D21-3646, and 4D21-3647.
ARTAU, J.
The petitioners in the underlying proceedings challenge the jurisdiction
of the Twentieth Statewide Grand Jury impaneled by the Florida Supreme
Court upon the request of Governor DeSantis to investigate school safety
and other issues of statewide significance in the wake of the mass shooting
at the Marjory Stoneman Douglas High School. 1
The petitioners seek to repress or expunge all or part of the statewide
grand jury’s report from public view pursuant to section 905.28, Florida
Statutes (2018). 2 We conclude that the grand jury had jurisdiction to
investigate these issues of statewide significance and affirm the trial
court’s denial of the petitions to repress the grand jury’s report, except as
to two paragraphs which contain allegations of criminal conduct exceeding
the scope of the statewide grand jury’s subject matter jurisdiction.
Background
The Florida Supreme Court granted the Governor’s petition to impanel
a statewide grand jury to investigate “whether school officials committed—
and continue to commit—fraud and deceit by mismanaging, failing to use,
and diverting funds from multi-million dollar bonds specifically solicited
for school safety initiatives” and “whether school officials violated—and
continue to violate—state law by systematically underreporting incidents
of criminal activity to the Department of Education.”
1 We consolidate the eight appeals and one cross-appeal for the sole purpose of
issuing one opinion determining all the cases.
2We will refer to the parties who brought the underlying petitions to repress or
expunge all or part of the statewide grand jury’s report pursuant to section
905.28, Florida Statutes (2018), as “petitioners” in this opinion.
2
The supreme court authorized the statewide grand jury to “investigate
crime, return indictments, make presentments, 3 and otherwise perform all
functions of [a] grand jury” related to the issues identified in the Governor’s
petition (emphasis added).
Subject Matter Jurisdiction
We first address whether the statewide grand jury’s report or
presentment exceeds the scope of its subject matter jurisdiction.
A statewide grand jury’s subject matter jurisdiction is limited by statute
to certain enumerated offenses, to the extent the offense at issue “is
occurring, or has occurred, in two or more judicial circuits as part of a
related transaction” or “is connected with an organized criminal
conspiracy affecting two or more judicial circuits.” § 905.34, Fla. Stat.
(2018). A statewide grand jury lacks the authority to return an indictment
for an offense beyond the scope of its jurisdiction. McNamara v. State, 357
So. 2d 410, 413–14 (Fla. 1978).
Some of the petitioners argue that the report should be repressed or
expunged because they claim it discusses issues not directly related to any
specific offense within the scope of the grand jury’s subject matter
jurisdiction. Other petitioners argue that the report should be repressed
or expunged because they claim it discusses issues exceeding the purpose
for which the statewide grand jury was convened. We disagree with these
arguments.
“A widely misunderstood function of the grand jury—to render reports
or presentments—has often functioned to ferret out and make known
governmental inefficiency, neglect, and other misconduct short of crime.”
Richard H. Kuh, The Grand Jury “Presentment”: Foul Blow or Fair Play?,
55 COLUM. L. REV. 1103, 1103 (1955). In addition to its indictment
function, grand juries have had a reporting function since well before the
founding of our republic. Id. at 1106. The grand jury practice of issuing
reports exposing governmental misconduct, which were historically
referred to as presentments, was prevalent in the American colonies and
continued after the ratification of the United States Constitution. Id. at
1103, 1109–15 (“Nothing in these seventeenth and eighteenth century
cases, however, affords any precedent barring a jury from taking the
affirmative action of reporting on the derelictions of government officials.”).
3 We will refer to the statewide grand jury’s report interchangeably as either a
report or presentment in this opinion.
3
Several jurisdictions, including Florida, continue to authorize grand
juries to issue presentments or reports. Id. at 1114–15; see also In re Rep.
of Grand Jury, 11 So. 2d 316, 318 (Fla. 1943) (“In Florida, the grand jury
system was derived from the common law, but has been enlarged by
statute.” (citation omitted)).
Our Legislature codified the practice of issuing grand jury reports or
presentments when it enacted the Statewide Grand Jury Act. See §
905.34, Fla. Stat. (2018) (“The statewide grand jury may return
indictments and presentments irrespective of the county or judicial circuit
where the offense is committed or triable.” (emphasis added)).
Furthermore, the Florida Supreme Court expressly authorized the
statewide grand jury to “make presentments” in the underlying
proceedings when the court granted the Governor’s petition to impanel the
grand jury to investigate school safety and other issues of statewide
significance.
“Implicit in the power of the grand jury to investigate and expose official
misconduct is the right of the people to be informed of its findings.” Miami
Herald Publ’g Co. v. Marko, 352 So. 2d 518, 523 (Fla. 1977). Thus, the
statewide grand jury’s authority was not limited to returning indictments
for specific offenses within its subject matter jurisdiction. Id. at 522
(“Florida grand juries are not confined to an indictment function”).
Instead, “[o]ur grand juries have been given the right to express the view
of the citizenry with respect to public bodies and officials in terms of a
‘presentment’, describing misconduct, errors, and incidences in which
public funds are improperly employed.” Id.
In affirming the denial of a petition to expunge a grand jury report, the
supreme court in Owens v. State held that a grand jury is vested with
broad power “to investigate and make a fair report of its findings.” 59 So.
2d 254, 256 (Fla. 1952). Owens reasoned that given its broad power, the
grand jury did not exceed its jurisdiction in making a report containing
findings of fact that public officials were “incompetent or lax in
performance of the duty imposed on them” despite finding “no criminal
violation.” Id. at 256–57.
Accordingly, the statewide grand jury had the authority to investigate
the conduct of public officials and to make proper findings and
recommendations in a report or presentment. Moreover, the statewide
grand jury was also empowered to recommend that the officials or
employees under investigation “are not fit to continue as [public] officials,”
or “that administrative proceedings should be conducted to curtail their
tenure.” Miami Herald, 352 So. 2d at 522–23 (“[A] grand jury may legally
4
recommend the removal of public officials.”); see also In re Rep. of Grand
Jury, 11 So. 2d at 319 (“[I]f the grand jury makes an investigation on its
own initiative and reaches the conclusion that the circumstances warrant
suspension rather than indictment or it may be both, it would be derelict
in its duty if it did not bring the matter of suspension to the attention of the
Governor.” (emphasis added)); Appeal of Untreiner, 391 So. 2d 272, 274–
75 (Fla. 1st DCA 1980) (a grand jury may legally recommend the removal
of a public official to avoid the recurrence of misconduct).
The mass shooting at Marjory Stoneman Douglas High School shook
our state to its core. As recognized by our Governor in his petition to the
supreme court, investigating systematic misconduct, mismanagement,
and misuse of public funds earmarked for school safety initiatives is of
paramount statewide importance in preventing another similar tragedy
and keeping school children safe. As our supreme court explained:
The Governor is the executive officer of the State and is required to
enforce the law. He is authorized to suspend certain state and
county officers for ‘malfeasance or misfeasance of neglect of duty in
office, for the commission of any felony, or for drunkenness or
incompetency’. He may or may not accord them a hearing before
suspension. If he elects to employ a grand jury investigation to aid
him in his judgment, he certainly has a right to do so. In fact[,] we
know of no better source for aid that he could resort to.
In re Rep. of Grand Jury, 11 So. 2d at 319 (emphasis added).
Thus, we conclude that the statewide grand jury did not exceed its
subject matter jurisdiction in conducting its investigation and issuing a
report of its findings, including its recommendation that the Governor
should “remove” or suspend certain school board members.
However, we conclude that two paragraphs of the statewide grand jury’s
report—the first and only full paragraph on page 73, and the second
paragraph on page 114—must be repressed because they contain
allegations of criminal conduct exceeding the scope of the statewide grand
jury’s subject matter jurisdiction.
While the statewide grand jury can refer alleged criminal conduct not
enumerated within its jurisdiction to the appropriate grand jury or state
attorney for the county having jurisdiction over the alleged offenses, the
statewide grand jury lacks jurisdiction to return an indictment or
otherwise include the alleged criminal conduct that is the subject of a
potential referral in its report. See McNamara, 357 So. 2d at 413–14
5
(Barkdull, J., specially concurring) (“If a statewide [g]rand [j]ury finds
evidence of a local crime [for which it lacks the authority to return an
indictment] it should forward its evidence to the appropriate [g]rand [j]ury
for the county[.]” (quoting State v. Ostergard, 343 So. 2d 874, 877 (Fla. 3d
DCA 1977)).
We therefore reverse the rulings on this issue in case numbers 4D21-
3643 and 4D21-3644, and instruct the presiding judge on remand to order
that the first and only full paragraph on page 73, and the second
paragraph on page 114, be repressed from the statewide grand jury’s
report before it is released to the public, without prejudice to the authority
of the statewide grand jury to include those paragraphs in a referral to the
county grand jury or state attorney having jurisdiction over the alleged
offenses.
Challenges to Public Disclosure of Grand Jury Report
We next address whether portions of the statewide grand jury’s report
or presentment must be repressed or expunged as unlawful and improper
under section 905.28, Florida Statutes (2018).
Section 905.28 provides that a grand jury report “relating to an
individual” that is not accompanied by an indictment may be repressed or
expunged, in whole or in part, to the extent it is “improper and unlawful.”
§ 905.28(1), Fla. Stat. (2018) (emphasis added). “The question of whether
statements in a presentment must be expunged, because they are
unlawful or improper, is a question of law, not fact,” and is subject to de
novo review. State v. Womack, 127 So. 3d 839, 841 (Fla. 2d DCA 2013)
(quoting In re Grand Jury Investigation of Fla. Dep’t of Health & Rehab.
Servs., 659 So. 2d 347, 349–50 (Fla. 1st DCA 1995)).
“Unlawful” Challenge to Public Disclosure
Our supreme court has interpreted the “unlawful” prong of section
905.28 to mean “outside the lawful ambit of grand jury authority” or
beyond the “legitimacy of the grand jury proceeding.” Miami Herald, 352
So. 2d at 520–21, 523 (concluding that there was nothing unlawful about
the grand jury report at issue given “the broad sweep of powers conferred
on grand juries to investigate either specific instances of criminality or
general activities of public institutions and personnel”); see also Moore v.
1986 Grand Jury Rep. on Pub. Hous., 532 So. 2d 1103, 1105 (Fla. 3d DCA
1988) (explaining that comments in a grand jury report are “lawful” under
section 905.28 if “they are made by an otherwise legally constituted grand
jury on a matter which the grand jury is legally empowered to investigate”).
6
As we have already concluded, the grand jury acted within the ambit of
the broad authority granted by our supreme court to investigate these
issues of statewide significance and “make presentments” as expressly
contemplated by section 905.34.
Some of the petitioners urge us to adopt a substantive interpretation of
the “unlawful” prong which would prevent a statewide grand jury from
including any reference to witness testimony as “unlawful” given the
secrecy of grand jury investigations. We are required to follow our supreme
court’s interpretation of the “unlawful” prong in section 905.28. See
Hoffman v. Jones, 280 So. 2d 431, 434 (Fla. 1973) (district courts of appeal
are “bound to follow the case law set forth by th[e] [supreme] [c]ourt”). The
supreme court has limited any consideration of the “unlawful” prong to
matters which exceed a grand jury’s jurisdictional authority. Miami
Herald, 352 So. 2d at 520–21, 523. Accordingly, the petitioners have not
established that the presiding judge was required to repress any reference
to witness testimony in the report or presentment pursuant to the
“unlawful” prong of section 905.28.
“Improper” Challenge to Public Disclosure
Next, we must determine if the petitioners have satisfied the “improper”
prong of section 905.28. As explained by the supreme court, “the focus of
judicial inquiry on a motion to repress under this statute does not turn on
some amorphous notion of ‘fairness.’” Miami Herald, 352 So. 2d at 521–
22 (“The notion of unfairness is highly subjective, however, and we fail to
discern any legislative directive to add that dimension to the more objective
standards specifically set out in the statute.”). Instead, our supreme court
has interpreted this prong as limited “to the germaneness and factual
foundation of the particular recommendations contained in a report.” Id.
Our review is “limited to the content of the four corners of the
presentment.” Womack, 127 So. 3d at 841 (citing Fla. Dep’t of Health &
Rehab. Servs., 659 So. 2d at 349). It is not the role of the presiding judge
or the appellate court “to review the evidence presented to the grand jury
for the purpose of determining whether the grand jury’s findings of fact as
contained in its report are supported by substantial, competent evidence.”
Moore, 532 So. 2d at 1105. Instead, the presiding judge reviews the four
corners of the presentment to determine “if the grand jury’s comments
have a factual foundation in the presentment itself. In other words, the
grand jury’s factual findings are not themselves subject to [our review and]
reversal.” Fla. Dep’t of Health & Rehab. Servs., 659 So. 2d at 349 (citing
Moore, 532 So. 2d at 1105). Moreover, “if any fact supports a comment
7
relevant to a lawful investigation, it should not be expunged or repressed.”
Womack, 127 So. 3d at 843.
In reviewing the four corners of the statewide grand jury’s report, we
conclude that the presiding judge correctly determined that the
recommendations in the report are germane to the purpose for which the
grand jury was convened and are based on a factual foundation.
Accordingly, the petitioners have not established that the presiding judge
was required to repress the grand jury report pursuant to the “improper”
prong of section 905.28. See Womack, 127 So. 3d at 843–44 (reversing an
order expunging portions of a grand jury presentment because “each
comment in the presentment with a factual foundation [within its four
corners] that is germane to th[e] scope of inquiry is necessarily proper”).
Other Challenges to Public Disclosure
Despite being unable to establish grounds under either of the two sole
statutory prongs contained in section 905.28 for repression or
expungement of a grand jury report, some of the petitioners argue for what
would appear to be the adoption of a third prong entitling them to
repression or expungement if any portion of the statewide grand jury’s
report includes the testimony of witnesses from the statewide grand jury
proceedings in its factual foundation. However, “[w]e are not at liberty to
add words to statutes that were not placed there by the Legislature.” E.g.,
Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999) (citing In re Order on Prosecution
of Crim. Appeals, 561 So. 2d 1130, 1137 (Fla. 1990)). Thus, claims for
repression or expungement of a statewide grand jury report pursuant to
section 905.28 cannot be based on grounds exceeding the two statutory
prongs provided by the Legislature in the statute itself.
Nonetheless, petitioners cite to Barber v. Interim Report of the Grand
Jury Spring Term 1995, 689 So. 2d 1182 (Fla. 4th DCA 1997), in support
of their argument that the statewide grand jury, or its foreperson, lack
authority to include witness testimony in the report or presentment.
Barber concluded that “a grand juror shall not disclose a witness’ grand
jury testimony, unless one of the specific statutory exceptions applies.” Id.
at 1185. (emphasis added). However, Barber was a county grand jury case
which interpreted section 905.27, Florida Statutes, governing disclosure
of county grand jury proceedings. See id. at 1183–85; see also § 905.27,
Fla. Stat. (2018).
Statewide grand jury proceedings are governed by the Statewide Grand
Jury Act. See §§ 905.31–905.40, Fla. Stat. (2018). Although the Statewide
Grand Jury Act generally incorporates the laws applicable to county grand
8
juries, the Act expressly excepts any such laws that “are inconsistent with
the provisions of [the Act].” See § 905.34, Fla. Stat. (2018) (emphasis
added).
In enacting the Statewide Grand Jury Act, the Legislature adopted a
separate statute governing disclosure of statewide grand jury proceedings,
rather than simply incorporating the statute governing disclosure of
county grand jury proceedings. See § 905.395, Fla. Stat. (2018) (governing
disclosure of statewide grand jury proceedings).
Unlike the statute governing disclosure of county grand jury
proceedings (section 905.27), the statute governing disclosure of statewide
grand jury proceedings (section 905.395), does not contain any provision
proscribing a statewide grand juror from disclosing the testimony of a
witness in a report or presentment. While section 905.395 makes it a
crime for any “person” to divulge any of the grand jury “proceedings,” it
omits section 905.27’s proscription against a “grand juror” disclosing “the
testimony of a witness examined before the grand jury,” as well as its
exceptions permitting disclosure of witness testimony. Compare §
905.395, Fla. Stat. (2018) (governing disclosure of statewide grand jury
proceedings), with § 905.27(1), (2), Fla. Stat. (2018) (governing disclosure
of county grand jury proceedings).
Thus, the county grand jury statute and the statewide grand jury
statute are inconsistent regarding the permissible disclosure of grand jury
proceedings in a report or presentment. Accordingly, we hold that the
county grand jury statute—section 905.27—is not applicable in statewide
grand jury proceedings. See § 905.34, Fla. Stat. (2018) (“The powers and
duties of, and law applicable to, county grand juries shall apply to a
statewide grand jury except when such powers, duties, and law are
inconsistent with the provisions of [sections] 905.31–905.40.” (emphasis
added)).
In interpreting a statute, we must presume that a legislative body “acts
intentionally and purposefully” when it “includes particular language in
one section of a statute but omits it in another section.” Beach v. Great
W. Bank, 692 So. 2d 146, 152 (Fla. 1997) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)). “When the Legislature has used a term,
as it has here, in one section of the statute, we will not imply it where it
has been excluded.” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.
2d 911, 914 (Fla. 1995) (citations omitted).
By enacting a contrary provision in the Statewide Grand Jury Act
omitting any proscription against disclosure of witness testimony by a
9
statewide grand juror or jury, we must presume that the Legislature
purposefully excluded them from any such proscription in a report or
presentment.
If the statutory language we are interpreting is clear, the statute must
be given its plain meaning, and we will not “look behind the statute’s plain
language for legislative intent or resort to rules of statutory construction
to ascertain intent.” City of Parker v. State, 992 So. 2d 171, 176 (Fla. 2008)
(quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).
Even if we were to resort to the rules of statutory construction, those
rules would support our interpretation of section 905.395 as not
proscribing a statewide grand jury from including the testimony of
witnesses in its report. See ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS 93, 107, 174 (2012) (discussing
the omitted-case canon, in which a matter that is not covered in a statute
is deemed to have been intentionally omitted; the negative-implication
canon, in which the listing of some things implies the deliberate exclusion
of others; and the surplusage canon, in which every word is given effect
and none is deemed meaningless).
Moreover, while the statute governing disclosure of county grand jury
proceedings—section 905.27—was enacted with exceptions permitting the
disclosure of witness testimony under certain circumstances, the statute
governing disclosure of statewide grand jury proceedings—section
905.395—contains no exceptions and makes no mention of witness
testimony in its prohibition against a “person” divulging “any of the
proceedings” to “any other person.” Compare § 905.395, Fla. Stat. (2018),
with § 905.27, Fla. Stat. (2018).
Hence, a reasonable textual interpretation of section 905.395 does not
include a foreperson acting in his or her official capacity on behalf of a
statewide grand jury, or the statewide grand jury itself, in the statute’s
prohibition applicable to a “person” who has no permission or authority to
divulge “any of the proceedings” to “any other person.” See § 905.395, Fla.
Stat. (2018) (proscribing “any person” from divulging “any of the
proceedings or identity of persons referred to or being investigated by the
statewide grand jury”). Otherwise, a statewide grand jury would never be
able to issue an indictment, referral, or presentment because it would be
unable to disclose anything about the proceedings to anyone despite the
express statutory authorization for the statewide grand jury to “return
indictments and presentments.” See § 905.34, Fla. Stat. (2018) (emphasis
added).
10
If the Legislature had intended to include a foreperson acting in his or
her official capacity on behalf of a statewide grand jury, or the statewide
grand jury itself, in its use of the singular term—“person”—it would have
provided the necessary exceptions so that the statewide grand jury could
complete its work by being permitted to divulge certain aspects of its
“proceedings” and the “identity of persons referred to or being investigated”
in an indictment, referral or presentment. See Rollins v. Pizzarelli, 761 So.
2d 294, 299 (Fla. 2000) (explaining that “the legislative use of different
terms in different portions of the same statute is evidence that different
meanings were intended”); see also Cason v. Fla. Dep’t of Mgmt. Servs., 944
So. 2d 306, 315 (Fla. 2006) (“[W]e have pointed to language in other
statutes to show that the Legislature ‘knows how to’ accomplish what it
has omitted in the statute in question.” (quoting Rollins, 761 So. 2d at
298)).
Thus, we hold that the plain and ordinary meaning of the term “person”
in section 905.395 consists of individuals who divulge “any of the
proceedings or identity of persons referred to or being investigated by the
statewide grand jury” without the permission or authority of the statewide
grand jury. It does not include a juror’s release of a report or presentment
on behalf of a statewide grand jury in his or her official capacity as its
foreperson. Accordingly, we conclude that nothing in section 905.395
prohibited the Twentieth Statewide Grand Jury from including witness
testimony in the report it intends to publicly release.
Conclusion
As our supreme court has explained, the grand jury as a legal
institution “has proven a most effective and reliable mechanism” for
“citizen review of public action.” Miami Herald, 352 So. 2d at 523. “The
benefits to be derived from this extraordinary exercise in citizen
participation would be severely limited if the fruits of that activity were not
available to the public on whose behalf it is undertaken.” Id. We agree.
Therefore, we conclude that the Twentieth Statewide Grand Jury had
the authority to conduct its investigation, publicly report its findings, and
make its recommendations. We affirm the presiding judge’s rulings on the
various petitions to repress or expunge the grand jury’s report, except as
to the two paragraphs containing allegations of criminal conduct exceeding
the scope of the statewide grand jury’s subject matter jurisdiction—the
first and only full paragraph on page 73, and the second paragraph on
page 114. We reverse and instruct the presiding judge on remand to
repress those two paragraphs from the statewide grand jury’s report before
the report is released to the public, without prejudice to the authority of
11
the statewide grand jury to include those paragraphs in a referral to the
county grand jury or state attorney having jurisdiction over the alleged
offenses.
As to all other issues raised in these appeals, including the cross-
appeal, we affirm the presiding judge’s rulings without further comment.
Affirmed in part, reversed in part, and remanded with instructions.
DAMOORGIAN, J., concurs.
WARNER, J., concurs in part and dissents in part with opinion.
WARNER, J., concurring in part and dissenting in part.
I concur with the majority that the statewide grand jury’s final report
does not exceed its subject matter jurisdiction or investigative authority.
I also concur with the majority that the presiding judge’s rulings on the
issues not addressed in this opinion should be affirmed. I dissent,
however, from the majority’s conclusion that the references in the
statewide grand jury’s final report to the testimony of specific witnesses,
or the gist of such testimony, should not be expunged under section
905.28, Florida Statutes (2018).
Subject Matter Jurisdiction and Investigative Authority
The subject matter jurisdiction of a statewide grand jury is limited to
certain enumerated criminal offenses, to the extent any such offense “is
occurring, or has occurred, in two or more judicial circuits as part of a
related transaction” or “is connected with an organized criminal
conspiracy affecting two or more judicial circuits.” § 905.34, Fla. Stat.
(2018). A statewide grand jury lacks the authority to return an indictment
for an offense that does not meet these criteria. See McNamara v. State,
357 So. 2d 410, 413–14 (Fla. 1978) (citing State v. Ostergard, 343 So. 2d
874, 877 (Fla. 3d DCA 1977) (Barkdull, J., specially concurring)).
In authorizing the impanelment of the Twentieth Statewide Grand Jury,
the supreme court granted a petition from Governor DeSantis to examine
certain school safety issues throughout the state, including whether
school officials were following safety-related laws and regulations and were
properly managing public funds designated for school safety initiatives.
As to the statewide impact of these issues, the petition alleged: (1)
“[p]etitioner has been informed that there is a need to examine the crimes
and wrongs that precipitated the Marjory Stoneman Douglas school
shooting and that even now result in unsafe schools across the state”; (2)
12
“[t]here is also a need to examine the responses of public entities to laws
designed to protect schools, such as the Marjory Stoneman Douglas High
School Public Safety Act”; and (3) “[p]atterns of fraud and deceit by public
entities shirking responsibility may exist and repeat throughout the state.”
See generally § 905.33, Fla. Stat. (2018) (stating that a petition to impanel
a statewide grand jury “shall state the general crimes or wrongs to be
inquired into and shall state that said crimes or wrongs are of a
multicircuit nature”).
The supreme court authorized the statewide grand jury to “investigate
crime, return indictments, make presentments, and otherwise perform all
functions of [a] grand jury.” It limited the scope of the statewide grand
jury’s inquiry to “any offense listed in section 905.34” that (1) “relates to,
but is not limited to,” the specific issues identified in the Governor’s
petition and (2) “is occurring, or has occurred, in two or more judicial
circuits as part of a related transaction or is connected with an organized
criminal conspiracy affecting two or more judicial circuits, as required by
section 905.34, Florida Statutes.” Despite these limitations, the statewide
grand jury’s investigation and final report focused primarily on school
safety and management issues within individual school districts. Some of
the petitioners therefore argue that the statewide grand jury exceeded the
scope of its jurisdiction.
The statewide grand jury’s authority to return indictments was clearly
limited by its subject matter jurisdiction as defined in section 905.34. See
McNamara, 357 So. 2d at 413–14. But it does not appear that its authority
to investigate, make public reports, and “otherwise perform all functions
of [a] grand jury” was similarly limited. “A grand jury’s investigatory
authority extends beyond the realm of criminal activity to include inquiry
into the general activities of public institutions and personnel.” Appeal of
Untreiner, 391 So. 2d 272, 274 (Fla. 1st DCA 1980) (citations omitted); see
also Miami Herald Publ’g Co. v. Marko, 352 So. 2d 518, 522 (Fla. 1977)
(grand juries in Florida are “not confined to an indictment function” but
also have the right to “express the view of the citizenry with respect to
public bodies and officials”).
In Miami Herald, the supreme court recognized the conundrum faced
by persons who have not been charged with a crime but who nevertheless
may suffer reputational damage by the publication of a grand jury report:
Unlike the opportunity for refutation which is available when
adverse character or reputational matters are disclosed
during the course of a public trial, there is no comparable
opportunity to challenge grand jury report disclosures
13
contemporaneously with their publication. These matters
emerge from a grand jury process which has operated in
secrecy, under the guidance of a prosecutor and the
supervision of a judge to be sure, but where there has been
no right to challenge witnesses or to be represented by
counsel. It is possible, then, that the testimony and
information presented to a grand jury, on which they must
rely and report, is potentially one-sided and inaccurate. Thus,
while one charged with the commission of a crime as a result
of this process has a full opportunity for public clarification of
misleading data and personal vindication through a public
trial, no comparable means of vindication exists for one whose
character is impugned in a report unaccompanied by
indictment.
352 So. 2d at 520. However, the court found that the Legislature did not
intend to preclude the criticism of public officials in grand jury reports
based on any notion of “fairness.” Instead, the court concluded that the
objective terms of section 905.28—“improper” and “unlawful”—are the
only limitations which the presiding judge must consider on a motion to
repress or expunge a grand jury report:
[T]he legislature has elected not to eliminate the potential for
citizen criticism of public officials; rather it has chosen to
confine those criticisms to matters which emerge from a lawful
inquiry and are not “improper.” There is eminent good sense
in appellants’ suggestion that this latter limitation means only
that comments in a grand jury presentment must have a
factual foundation in, and be germane to, the scope of
proceedings for which the grand jury was convened. A report
may be “proper” by all objective standards but appear “unfair”
to some observers. The notion of unfairness is highly
subjective, however, and we fail to discern any legislative
directive to add that dimension to the more objective
standards specifically set out in the statute.
....
If the judicial inquiry is narrowed, however, to the legitimacy
of the grand jury proceeding, the factual foundation for the
subject matter included in the report, and the germaneness of
the reported material to the purpose for which the grand jury
was convened and given investigative authority, judicial
officers can comfortably employ in these proceedings the same
14
decision making techniques which they use in other judicial
inquiries.
352 So. 2d at 522-23. 4
I therefore agree with the majority that the statewide grand jury’s
authority to investigate and make public reports was broader than its
jurisdiction to return indictments as defined in section 905.34 and that its
final report does not exceed that authority. It would be inconsistent with
the supreme court’s holdings in Miami Herald and the public’s right to be
informed, for this court to hold that the statewide grand jury should be
prevented from disclosing its findings regarding public officials and
institutions. See Miami Herald, 352 So. 2d at 523 (“Implicit in the power
of the grand jury to investigate and expose official misconduct is the right
of the people to be informed of its findings.”). I also agree with the majority
that the references on pages 73 and 114 of the report must be expunged
because those references contain allegations of criminal activity beyond
the scope of the statewide grand jury’s subject matter jurisdiction as
defined in section 905.34.
Disclosures of Witness Testimony
I disagree with the majority’s conclusion that the disclosures of witness
testimony in the statewide grand jury’s final report are not prohibited by
section 905.27 or 905.395. The report contains a number of statements
disclosing the identity of grand jury witnesses and the substance of their
testimony in violation of those statutes. The statutes are not inconsistent,
as the majority opines, and we have held that disclosure of “witnesses and
the substance of their actual testimony” in a grand jury report are unlawful
4 When the supreme court authorizes the impanelment of a statewide grand jury
upon a governor’s petition under section 905.33, the court acts in a ministerial
and administrative capacity and does not exercise judicial review over the
petition. See State ex rel. Reichle v. Edwards, 409 So. 2d 1043 (Fla. 1982). That
being the case, no opportunity exists for judicial review as to whether the petition
sufficiently demonstrates that the crimes or wrongs to be investigated are of a
multi-circuit nature. Nor does any judicial oversight mechanism exist to prevent
the statewide grand jury, once it is impaneled, from straying into matters of a
purely local nature. This lack of judicial review and oversight leaves the statewide
grand jury system open to being used for purposes other than those which the
Legislature intended, to “strengthen the grand jury system and enhance the
ability of the state to detect and eliminate organized criminal activity by improving
the evidence-gathering process in matters which transpire or have significance
in more than one county.” § 905.32, Fla. Stat. (2018).
15
under section 905.27 and are subject to being expunged under section
905.28. Barber v. Interim Rep. of the Grand Jury Spring Term 1995, 689
So. 2d 1182, 1185–86 (Fla. 4th DCA 1997).
Sections 905.27 and 905.395 reflect the historical understanding that
grand jury proceedings should be secret. This secrecy serves a number of
important purposes:
(1) to protect the grand jurors; (2) to promote a total freedom
of disclosure; (3) to prevent the escape of a person indicted
before his arrest; (4) to prevent subornation of perjury or
tampering with witnesses who testified before the grand jury
and then testify at the trial of the person indicted; and (5) to
shield the reputation of a person against whom no indictment
is filed.
Grand Jury Fall Term, A.D. v. City of St. Petersburg, Fla., 624 So. 2d 291,
293 (Fla. 2d DCA 1993) (citing Minton v. State, 113 So. 2d 361 (Fla. 1959)).
Section 905.27 prohibits the participants in a grand jury proceeding
from disclosing the testimony presented to the grand jury, or the gist of
that testimony, unless such disclosure is mandated by a court order:
(1) A grand juror, state attorney, assistant state attorney,
reporter, stenographer, interpreter, or any other person
appearing before the grand jury shall not disclose the
testimony of a witness examined before the grand jury or other
evidence received by it except when required by a court to
disclose the testimony for the purpose of:
(a) Ascertaining whether it is consistent with the testimony
given by the witness before the court;
(b) 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
16
thereof, except when such testimony is or has been disclosed
in a court proceeding. . . .
....
(4) Persons convicted of violating this section shall be guilty
of a misdemeanor of the first degree, punishable as provided
in s. 775.083, or by fine not exceeding $5,000, or both.
See also § 905.24, Fla. Stat. (2018) (“Grand jury proceedings are secret,
and a grand juror or an interpreter appointed pursuant to s. 90.6063(2)
shall not disclose the nature or substance of the deliberations or vote of
the grand jury.”).
Section 905.395, part of the Statewide Grand Jury Act, prohibits any
person from disclosing any of the statewide grand jury proceedings, unless
such disclosure is pursuant to a court order:
Unless pursuant to court order, 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 outside the statewide grand jury room, any of the
proceedings or identity of persons referred to or being investigated
by the statewide grand jury. Any person who violates the provisions
of this subsection is guilty of a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084.
The Legislature has also provided that statewide grand juries are
subject to the laws applying to county grand juries, in addition to the
provisions of the Statewide Grand Jury Act, unless those laws are
“inconsistent with the provisions of” the Act. § 905.34(13), Fla. Stat.
(2018).
The strong interest in maintaining the secrecy of grand jury
proceedings suggests that sections 905.27 and 905.395 should be
interpreted broadly. See, e.g., Minton, 113 So. 2d at 367 (the tradition of
secrecy in grand jury proceedings “is not to be abandoned without clear
legislative direction” (citation omitted)).
The majority opines that sections 905.27 and 905.395 are inconsistent,
and therefore section 905.27 does not apply in statewide grand jury
proceedings, because section 905.395 does not expressly prohibit a grand
juror from disclosing testimony presented to the statewide grand jury. In
17
my view, these statutes are not inconsistent. Section 905.395 is broader
than section 905.27 and imposes an additional measure of secrecy in
statewide grand jury proceedings. It prohibits “any person” from
disclosing “any of the proceedings” of the statewide grand jury, unless
pursuant to court order. By contrast, section 905.27 prohibits only
persons directly involved in grand jury proceedings from disclosing
testimony or evidence presented to the grand jury, or the gist of any such
testimony, unless pursuant to court order. If one were to draw a Venn
diagram of the two statutes, the terms of section 905.27 would be wholly
subsumed within the circle of section 905.395.
I would therefore hold that section 905.27 applies in statewide grand
jury proceedings and prohibits a statewide grand juror from disclosing
testimony or evidence presented to the statewide grand jury, unless such
disclosure is specifically authorized by court order for one of the purposes
set forth in section 905.27(1). I would thus apply Barber to this case and
hold that the statements in the statewide grand jury’s final report
disclosing the identity and testimony of specific witnesses should have
been expunged as unlawful under section 905.28. See Barber, 689 So. 2d
at 1185–86 (holding that there is no exception in section 905.27 allowing
for the disclosure of witness testimony in a grand jury report).
Even if I were to agree with the majority that section 905.27 does not
apply in statewide grand jury proceedings, I would nevertheless hold that
section 905.395 prohibits the disclosure of witness testimony in a
statewide grand jury report. The majority contends that section 905.395
should not be read as to prohibit the statewide grand jury itself from
disclosing witness testimony in its report—that the Legislature could not
have intended that result. The majority thus writes its own statutory
definition of the word “person” to exclude a statewide grand juror and
thereby justify the statewide grand jury’s numerous disclosures of witness
testimony in its final report. But section 905.395 is not ambiguous or
limited in any way. In construing the statute, no need exists to apply
canons of statutory construction to arrive at some other meaning:
“As with the interpretation of any statute, the starting point of
analysis is the actual language of the statute.” Brown v. City of Vero
Beach, 64 So. 3d 172, 174 (Fla. 4th DCA 2011) (citing Cont’l Cas.
Co. v. Ryan Inc. E., 974 So. 2d 368, 374 (Fla. 2008)). If the language
is clear and unambiguous, there is no need to resort to the rules of
statutory construction; “the statute must be given its plain and
obvious meaning.” Samples v. Fla. Birth–Related Neurological, 40
So. 3d 18, 21 (Fla. 5th DCA 2010) (quoting GTC, Inc. v. Edgar, 967
So. 2d 781, 785 (Fla. 2007)).
18
Conservation All. of St. Lucie Cnty. Inc. v. Fla. Dep’t of Env’t Prot., 144 So.
3d 622, 624 (Fla. 4th DCA 2014).
The Legislature unambiguously commanded in section 905.395 that no
person can reveal what occurs in statewide grand jury proceedings. The
statute does not make any exception allowing a statewide grand jury to
reveal the testimony presented to it in a public report. The statewide grand
jury’s report must be written in such a manner as to avoid the disclosure
of specific witnesses and the substance of their testimony. To hold
otherwise is to ignore the statute’s plain meaning and endanger the
secrecy of the statewide grand jury proceedings, a vital measure to provide
total freedom of disclosure. I would reverse on this issue and require
expunction of the direct quotations of testimony, together with those
statements providing the gist of the testimony of identified witnesses, from
the statewide grand jury’s final report.
Because the secrecy of the proceedings is a matter vital to the proper
functioning of a statewide grand jury, maintaining such secrecy is a matter
of great public concern. For that reason, I would certify the following to
the supreme court as a question of great public importance:
DOES THE PROHIBITION IN SECTION 905.395, FLORIDA
STATUTES (2018), AGAINST THE DISCLOSURE OF
STATEWIDE GRAND JURY PROCEEDINGS BY “ANY
PERSON” PREVENT THE STATEWIDE GRAND JURY ITSELF
FROM DISCLOSING THE IDENTITIES OF SPECIFIC
WITNESSES AND THE SUBSTANCE OF THEIR TESTIMONY
IN A PUBLIC REPORT OR PRESENTMENT?
* * *
Not final until disposition of timely filed motion for rehearing.
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