Vexatious JQC Inquiry No. 02-487 of Judge Gregory P. Holder, Fla.sup.Ct. No. SC03-1171
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Transcript of Vexatious JQC Inquiry No. 02-487 of Judge Gregory P. Holder, Fla.sup.Ct. No. SC03-1171
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JQC INQUIRY CONCERNING JUDGE GREGORY P. HOLDERSTATE OF FLORIDA - CASE NO.: 02-487
SUPREME CT. CASE NO. SC03-1171
http://www.floridasupremecourt.org/pub_info/summaries/briefs/03/03-1171/index.html
Report: Web of scandal at Hillsborough courthouse
1. Notice of Formal Charges, July 18, 2003
2. Order of Dismissal, June 28, 2005
3. Respondents Motion for Award of Attorneys Fees, July 25, 2005: $1,779,691.81
4. Respondents Motion to Tax Costs, July 25, 2005: $140,870.79
5. Memorandum of Law, in Support of Respondents Motion for Award of Attorneys Fees
6. Respondents Initial Brief, February 6, 2006
7. Index to Appendix, Respondents Initial Brief, February 6, 2006
8. JQC Findings and Recommendations, August 17, 2009
9. Order September 15, 2009, Supreme Court of Florida:
Upon consideration of the Motion to Tax Costs, the Hearing Panel of the JudicialQualifications Commission's Findings and Recommendation, and the Stipulationon Costs, it is ordered that said recommendation and stipulation are approved andthe Motion to Tax Costs is hereby granted.
Judgment is entered for Judge Gregory P. Holder, for recovery of costs from theJudicial Qualifications Commission in the amount of $70,000.00, for which sum
let execution issue.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA,and PERRY, JJ., concur.
10. Grand Jury Presentment December 8, 2000,An Investigation Into Judicial MisconductIn Hillsborough County
http://www.floridasupremecourt.org/pub_info/summaries/briefs/01/01-2078/Filed_10-03-2001_MotionUnsealAppB.pdf
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Report: Web of scandal at Hillsborough courthouse
Records describe accusations of sexual affairs and secret safe deposit boxes.
By CHRISTOPHER GOFFARD and JEFF TESTERMAN
St. Petersburg Times, published December 12, 2000
TAMPA -- A months-long inquiry into the Hillsborough County courthouse has found accusationsranging from sexual affairs in a judge's chambers to death threats and secret safe deposit boxes.
A grand jury report of the matter remains sealed, but investigative records released Monday suggest abroad web of scandal.
The records show that Circuit Judge Gregory Holder told investigators of conversations he had withbailiff Tara Pisano, who made the following claims:
Pisano and Circuit Judge Gasper Ficarrotta had sex in Ficarrotta's chambers while Holder conducted jurytrials in the next room. Ficarrotta offered his resignation after the affair became public.
Pisano saw large amounts of money in Ficarrotta's office, including a cash-filled security box.
Pisano saw Ficarrotta solicit and receive money from lawyers for Sheriff Cal Henderson's 2000 election
campaign. Judges are ethically forbidden from raising money for political candidates.
Holder also alerted investigators to an incident in which Pisano accused her husband, sheriff's Cpl.Carmine Pisano, of threatening to kill Ficarrotta in response to the affair.
The Sheriff's Office made no report of that incident.
Sheriff's Maj. Robert DeLuna told the Times Monday that Tara Pisano called him one night last year toreport that she had been in an argument with her husband, and that he made threats against the judge anddrove off.
DeLuna said he and other deputies waited at Judge Ficarrotta's house to ensure his safety, but Cpl.Pisano didn't show up that night. The next day, he denied making a death threat.
"It's not against the law to threaten anybody except the president of the United States, unless there's anovert act to substantiate it," said Sheriff Cal Henderson. "We didn't do an investigation because one wasnot needed."
Carmine Pisano declined comment Monday.
The release of reports Monday from the Florida Department of Law Enforcement and Hillsborough
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sheriff's authorities comes three days after a grand jury issued its report on the courthouse matters.
For 15 days, only people named in the report, called a presentment, can see it. They can decide tocontest or seek suppression of parts of the report.
The grand jury began looking into courthouse goings-on after Holder's complaint that his bailiff foundRobert Bonanno in Holder's darkened chambers last July.
The grand jury handed down no indictments.
Fundraising
One area of the grand jury's inquiry was whether Judge Ficarrotta had assisted in campaign fundraisingfor Henderson.
According to the FDLE documents, lawyers Bennie Lazzara and Joseph Ficarrotta -- a distant cousin ofGasper Ficarrotta -- told investigators that in 1999, Ficarrotta contacted them separately regarding afundraiser for the sheriff.
Among those involved was Michael Sheehan, the sheriff's corporal who oversees courthouse bailiffs andwho has been named in the sealed grand jury presentment.
FDLE agents discovered that Judge Ficarrotta and Sheehan share a safe deposit box at a Bank ofAmerica branch on Davis Islands. The report does indicate what the safe deposit box was used for.
Henderson said his internal affairs division would investigate allegations against Sheehan of improperpolitical activity, and against Pisano of having sex on duty.
Judges
The FDLE documents also indicate for the first time the five-year extramarital affair between JudgeBonanno and his former court clerk, Joan Helms.
In an interview with Special Prosecutor Jerry Hill and an FDLE agent, Helms, 48, said her sexualrelationship with Bonanno began in 1995 and ended earlier this year. Helms was the court clerk assignedto Bonanno in the civil trial division during 1998.
Helms, who has since left her $27,955-a-year clerk's job and now works in the family intake departmentat the Hillsborough Courthouse, testified before the grand jury for 37 minutes on Nov. 15. The grandjury then heard from Bonanno, accompanied by attorney Ralph Fernandez, for about an hour and 20
minutes.
Helms told investigators she spent her breaks and lunch hours with the judge in his chambers on aregular basis, often discussing what she said were "discrimination problems" involving her job. Whileworking as Bonanno's court clerk, Helms said the two worked closely.
"That was nice," Helms told investigators. "It gave us time to talk and be together."
Sexual encounters with Bonanno occurred during the evenings or on weekends at Helms' home in north
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Tampa, she said, never at the courthouse.
Reached at her home Monday evening, Helms declined to comment on the FDLE report.
One of the more provocative details in the report concerned Ficarrotta.
Judge Holder quotes bailiff Pisano as saying Ficarrotta went shopping with her at Victoria's Secret and
that he wore her T-back underwear in his private office.
Ficarrotta resigned his position several days after testifying before the grand jury. The resignation likelybrought to an end any investigation by the state's Judicial Qualifications Commission.
Ficarrotta did not return a call seeking comment.
Confidentiality
Also on Monday, an attorney for Bonanno said he planned to ask a judge to root out the unnamed sourceof a Tampa Tribune article that revealed a grand jury's findings about his client.
The grand jury's report was sealed Friday by Pinellas-Pasco Circuit Judge Susan Schaeffer, whopresided over the group's review of misconduct allegations at the Hillsborough County Courthourse.
"This information was confidential and not to be disclosed under any circumstances," said RalphFernandez, Bonanno's attorney.
The Tribune reported Saturday that the grand jury concluded Bonanno had conducted an extramaritalaffair in his chambers at the Hillsborough County Courthouse and that such conduct was unbecoming ofa judge. According to the Tribune, the grand jury recommended that Bonanno resign and that theJudicial Qualifications Commission, which polices Florida's judges, investigate him.
Tribune attorney Gregg Thomas said he would not comment on Fernandez's allegations until a formalcourt filing had been made. Fernandez said a motion would be filed today.
- Times staff writer Sarah Schweitzer contributed to this report. Copyright, St. Petersburg Times. All rights reserved.
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BEFORE THE INVESTIGATIVE PANEL OF THEFLORIDA JUDICIAL QUALIFICATIONS COMMISSION
INQUIRY CONCERNING A )
JUDGE, NO. 02-487 )
/
NOTICE OF FORMAL CHARGES
TO: The Honorable Gregory P. Holder, Circuit Judge,Thirteenth Judicial Circuit, Hillsborough CountyCourthouse, 419 Pierce Street, Tampa, FL 33602.
YOU ARE HEREBY NOTIFIED THAT the Investigative Panel of the
Florida Judicial Qualifications Commission, at its meeting held
in Tallahassee, Florida on July 10, 2003, has determined, pursuant
to Rule 6 of the Rules of the Florida Judicial Qualifications
Commission, as revised, and Article V, Section 12(b) of the
Constitution of Florida, that probable cause exists for formal
proceedings to be instituted against you.
Formal proceedings accordingly are hereby instituted to
inquire into the following charges:
1. On or about January 1998, while holding the
office of Circuit Judge of the Thirteenth Judicial Circuit
of Florida, you were enrolled in the McDill Air Force Base
1
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2.
Air War College seminar for the academic year 1997-98 and
submitted a research report to the Faculty of the Air War
College Directorate of Nonresident Studies, Air University,
titled An Analysis of the Anglo-American Combined Bomber
Offensive in Europe During World War II, 1942-45. At the
time, you held the rank of Lieutenant Colonel, United
States Air Force Reserve. The research report was
submitted in fulfillment of a writing requirement for the
seminar, completion of which is generally a prerequisite
for promotion to Colonel. Subsequently, you were promoted
to the rank of Colonel, United States Air Force Reserve.
In preparing and submitting the research report (a copy of
which is attached hereto as Exhibit A), you committed
plagiarism in that approximately 10 pages of the 21-page
research report submitted by you were copied verbatim or
substantially verbatim from a research report prepared in
January 1996 by E. David Hoard, SAF/GCN, who was then
attached to the Office of General Counsel, Department of
Air Force, Washington, D.C., which research report (a copy
of which is attached hereto as Exhibit B) had been
transmitted to you via telecopy on or about September 5,
1997.
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3.
2. In submitting the plagiarized research report as
set forth in paragraph 1 above, you signed a certificate
stating, I certify that I have not used another students
research work and that the creative process of researching,
organizing, and writing this research report represents
only my own work, which statement was false, and which
constituted a criminal violation of Article 18, United
States Code 1001, of knowingly and willfully making a
materially false, fictitious or fraudulent statement or
representation in a matter that was within the jurisdiction
of the Executive Branch of the Government of the United
States.
3. The acts described above, if they occurred as alleged,
were in violation of Canons 1, 2 and 5 of the Code of Judicial
Conduct.
These acts, if they occurred as alleged, would impair the
confidence of the citizens of this State in the integrity of the
judicial system and in you as a judge, would demean your judicial
office, would constitute a violation of the cited Canons of the
Code of Judicial Conduct and the Rules of Professional Conduct,
would constitute conduct unbecoming a member of the judiciary,
would demonstrate your present unfitness to hold the office of
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4.
judge, and would warrant discipline, including, but not limited
to, your removal from office.
PLEASE TAKE NOTICE in accordance with the provisions of the
Rules of the Florida Judicial Qualifications Commission, as
revised, that you have twenty (20) days following service of this
notice to file a written answer to these charges.
Dated this _____ day of July, 2003.
INVESTIGATIVE PANEL OF THE FLORIDAJUDICIAL QUALIFICATIONS COMMISSION
Thomas C. MacDonald, Jr.Florida Bar No. 0493181904 Holly LaneTampa, Florida 33629(813) 254-9871
(813) 258-6265 (Facsimile)
General Counsel for the FloridaJudicial Qualifications Commission
- and -
BEDELL, DITTMAR, DeVAULT, PILLANS &COXE
Professional Association
By
Charles P. Pillans, III
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5.
Florida Bar No. 0100066The Bedell Building101 East Adams StreetJacksonville, Florida 32202
(904) 353-0211(904) 353-9307 (Facsimile)
Special Counsel to the FloridaJudicial Qualifications Commission
Certificate of Service
I DO HEREBY CERTIFY that a copy of the foregoingNotice of Formal Charges has been furnished to thefollowing this day of July, 2003.
The Honorable Gregory P. Holder [by Certified Mail]Circuit JudgeThirteenth Judicial CircuitHillsborough County Courthouse419 Pierce StreetTampa, FL 33602
David B. Weinstein, Esquire [by U.S. Mail]Bales WeinsteinPost Office Box 172179
Tampa, FL 33672-0179
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BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION
STATE OF FLORIDA
CASE NO.: 02-487
INQUIRY CONCERNING JUDGE SUPREME CT. CASE NO. SC03-1171
GREGORY P. HOLDER;
/
ORDER OF DISMISSAL
This matter was considered after a six-day evidentiary
hearing before the Hearing Panel of the Judicial Qualifications
Commission (JQC) composed of (1) Judge John P. Kuder (Chair), (2)
Judge Tom Freeman, (3) attorney Howard C. Coker, (4) attorney
John Cardillo, (5) lay member Dr. Leonard Haber and (6) lay
member Ricardo Morales, III. Formal charges were filed by the
JQC Investigative Panel on July 16, 2003. The charges concerned
alleged plagiarism by Judge Holder of an Air War College research
paper which Judge Holder wrote while a Lieutenant Colonel in the
Air Force Reserve. The course may have led to possible
advancement in rank. The charge is that in 1998 Judge Holder
committed plagiarism. Approximately 10-pages of a 21-page
research paper with Judge Holder's name on it were copied almost
verbatim from another paper written in 1996 by another officer
who furnished a copy to Judge Holder. The charge also concerned
a "certificate" that the paper was solely the work of Judge
Holder.
No original paper by Judge Holder was ever located. A
photocopy of his alleged paper obtained from an anonymous source
was attached to the Formal Charges and admitted into evidence.
2
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2
Judge Holder denied that the photocopy was his paper and
contended the photocopy was a manufactured forgery. Extensive
discovery occurred and evidence, including expert testimony on
both sides, was presented for six days. Special counsel and
counsel for Judge Holder were well prepared and presented the
respective positions of their clients in a very professional and
competent manner.
The Panel took numerous motions and objections by Judge
Holder under advisement during the hearing. All of these motions
and objections are hereby denied and overruled by the full Panel.
The Panel thus considered the totality of all the evidence
proffered and received during the hearing.
After due deliberation and consideration of all the evidence
and argument of counsel, the Hearing Panel unanimously concludes
that the charges should be and hereby are dismissed. This ruling
is entered pursuant to Rule 20 of the Florida Judicial
Qualifications Commission Rules.1
The evidence was extremely
conflicting and the implications disturbing. The credibility of
certain witnesses was in doubt. The memories of the long past
events were unclear. The Panel concludes that the evidence was
troublesome but did not rise to the level of clear and convincing
1Rule 20 provides in relevant part:
If the Hearing Panel dismisses the formal charges, theHearing Panel shall promptly file a copy of thedismissal order certified by the Chair of the HearingPanel with the Clerk of the Supreme Court.
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3
evidence of guilt. In re: Kinsey, 842 So. 2d 77, 85 (Fla. 2003),
and In re: Davey, 645 So. 2d 398, 404 (Fla. 1994). The six
member Hearing Panel voted unanimously to dismiss the charges.
DONE AND ORDERED this 23rd day of June, 2005.
FLORIDA JUDICIAL QUALIFICATIONS
COMMISSION
By:/s/ John P. Kuder
JUDGE JOHN P. KUDER,
Chairman, Hearing Panel,
Florida Judicial Qualifications
Commission1110 Thomasville Road
Tallahassee, Florida 32303
850/488-1581
850/922-6781 (fax)
Copies furnished in accordance with the attached list.
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4
David B. WeinsteinCounsel to the JudgePost Office Box 172179Tampa, FL 33674-0179(813) 224-9100(813) 224-9109 (fax)
Juan MorilloSteven T. CottreauCounsel to the Judge1501 K. Street, N.W.Washington, DC 20005(202) 736-8000(202) 736-8711 (fax)
Charles P. Pillans, IIISpecial CounselThe Bedell Building101 East Adams Street
Jacksonville, FL 32202(904) 353-0211(904) 353-9307 (fax)
Thomas C. MacDonald, Jr.General Counsel1904 Holly LaneTampa, Florida 33629(813) 221-2500(813) 258-6265 (fax)
John BeranekCounsel to the Hearing Panel
Ausley & McMullenP.O. Box 391Tallahassee, Florida 32302(850) 224-9115(850) 222-7560 (fax)
Brooke KennerlyFlorida Judicial QualificationsCommission
1110 Thomasville Road
Tallahassee, Florida 32303
(850) 488-1581
(850) 922-6781 (fax)
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IN THE SUPREME COURT OF FLORIDA
INQUIRY CONCERNING Supreme Court Case
A JUDGE NO. 02-487 No.: SC03-1171
MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS
MOTION FOR AWARD OF ATTORNEYS FEES
I. FACTUAL BACKGROUND.1
More than two years ago, in July of 2003, the Florida Judicial
Qualifications Commission (JQC or the Commission) filed a Notice of
Formal Charges (Charges) alleging that Judge Gregory P. Holder had
plagiarized an Air War College (AWC) paper and falsely stated that it was
his original work. To support its allegations, the JQC relied on a copy of an
AWC paper submitted by E. David Hoard in 1996 (Hoard paper) (Exhibit
B to the Charges) and copies of a paper that contains material from the
Hoard paper and which the JQC alleged was submitted to the AWC by
Judge Holder in 1998 (purported Holder paper) (Exhibit A to the
Charges).
At the time the purported Holder paper mysteriously surfaced,
Judge Holder was a cooperating witness in a criminal investigation into
judicial corruption at the Hillsborough County Courthouse. The troubles
within the Courthouse ultimately led to the resignation of at least two circuit
1Some description of the background of this case is necessary here, in part
because the JQC has elected not to transcribe the record.
1
5
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judges. The targets and subjects of the investigation, who faced not just loss
of position but potential incarceration, clearly had a motive to discredit or
seek retribution against Judge Holder.2
In the midst of that investigation, an unmarked envelope (Envelope)
was anonymously slipped under the door of Jeffrey Del Fuoco, an Assistant
United States Attorney who had been involved in the Courthouse corruption
probe. Del Fuoco testified at trial that he found the Envelope early one
weekend morning in January of 2002, when he was serving at the Army
Reserve Headquarters in St. Petersburg, Florida. The Envelope purportedly
contained a typewritten note (Note) to the effect that I thought you would
be interested in this or something should be done about this. The Note
purportedly contained no handwriting but only a typed signature of a
concerned citizen or a concerned taxpayer. The Envelope allegedly
contained copies of the purported Holder paper and the Hoard paper (the
Papers) along with the Note.
In December of 2002, the U.S. Attorneys Office provided these
Papers to the JQC. Although the Papers had been in the possession of the
U.S. Attorneys Office for approximately 11 months, this referral
inexplicably occurred within weeks of Judge Holder writing a letter to the
2 The investigation extended beyond the Courthouse and into other
areas of corruption in the community.
2
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Department of Justice Office of Professional Responsibility complaining
about apparent inactivity in the courthouse corruption investigation. On July
16, 2003, the JQC filed its Charges, alleging that Respondent had violat[ed]
. . . [the] Canons of the Code of Judicial Conduct, and the Rules of
Professional Conduct and had engaged in conduct unbecoming a member
of the judiciary. Commissions Resp. to Mot. For Award of Attorneys
Fees ( JQC Resp.), Ex. A. 3.3
The central issue in this proceeding was whether the purported Holder
paper was genuine. Despite the fact that: (a) the JQC admitted that it had no
witness who could testify based on personal knowledge that the purported
Holder paper was an authentic copy of the actual paper that Judge Holder
submitted to the Air War College (See Response to Resp.s 1st Req. for
Admissions 1); (b) both the Note and the Envelope inexplicably vanished
from the U.S. Attorneys Office and were never forensically tested for
fingerprints or otherwise to attempt to identify their source; (c) no original of
Judge Holders actual AWC paper was ever located; and (d) multiple
witnesses who saw Judge Holders actual paper at or about the time he
submitted it to the Air War College swore that the purported Holder paper
3 Because the submission of an Air War College paper also required the
completion of a signed certification of the papers originality, the JQC
also alleged that Respondent had violated 18 U.S.C. 1001. JQC Resp.,
Ex. A. 2.
3
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was not authentic, the JQC nevertheless vigorously prosecuted this case.4
Judge Holder never contested that the purported Holder paper
contained approximately ten pages of nearly verbatim text from the Hoard
paper. Instead, Respondent maintained that the purported Holder paper was
fabricated to discredit him because of his role as a cooperating witness in the
courthouse corruption investigation. Judge Holder was forced to defend
these serious charges by hiring counsel,5
conducting extensive discovery,
filing and litigating (including full briefing and oral argument) numerous
motions to dismiss the Charges based on multiple evidentiary inadequacies,6
4 For example, immediately upon filing the Charges, the JQC sought to
suspend Judge Holder from the bench despite the fact that the alleged
misconduct occurred over 5 years earlier.
5
Sidley Austin Brown & Wood LLP, one of the law firms retained byJudge Holder, performed its services with the express understanding that
in the event of a favorable outcome, it would be entitled to seek recovery
of attorneys fees from the State of Florida. Respondents other law
firms were engaged on an hourly fee basis.
6Judge Holder filed the following motions on the referenced dates: 1)
Motion in Limine to Exclude Testimony of David Leta (8/27/04); 2)
Motion in Limine to Exclude All Documents provided to the JQC by
Jeffrey Del Fuoco (8/27/04); 3) Motion in Limine to Exclude All
Documents provided to the JQC by the United States Air Force(8/27/04); 4) Motion in Limine to Exclude Testimony of Jeffrey
Downing (8/27/04); 5) Motion in Limine to Exclude Testimony of
Jeffrey Del Fuoco (8/27/04); 6) Motion in Limine to Exclude Evidence
on Best Evidence Grounds (8/27/04); 7) Motion in Limine to Exclude
Evidence on Due Process Grounds (8/27/04); 8) Motion in Limine to
Exclude Copies of the Purported Holder Paper on Authentication
4
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and securing experts regarding document authentication, the creation of
documents (e.g., the purported Holder paper) using Photoshop software,
forensic computer analysis, and other issues.
At trial, Judge Holder presented compelling evidence that the
purported Holder paper was fabricated to retaliate against him for his
participation in the courthouse corruption investigation. After six days of
trial, which included the testimony of more than 25 witnesses, the Hearing
Panel of the JQC voted unanimously to dismiss the charges against Judge
Holder. JQC Resp., Ex. B.
II. ISSUE PRESENTED.
On July 25, 2005, Judge Holder moved this Court to enter an order
awarding attorneys fees incurred by him in the successful defense of this
JQC proceeding pursuant to Thornber v.City of Ft. Walton Beach, 568 So.
2d 914 (Fla. 1990). In Thornber, this Court held that a public official is
entitled to attorneys fees following the successful defense of a case if the
litigation . . . (1) arise[s] out of or in connection with performance of [his]
official duties and (2) serve[s] a public purpose.Id. at 917. The purpose of
Grounds (8/27/04); and, 9) Motion to Dismiss the pending Charges or in
Limine to Exclude the Purported Holder Paper and Hoard Paper Based
on Evidentiary Improprieties (3/21/05). However, despite the fact that
several of these motions were dispositive of the charges, the JQC failed
to timely rule on them. Instead, these motions were carried over into and
through the trial and were summarily denied in the Order of Dismissal.
5
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this rule is to avoid the chilling effect that a denial of representation might
have on public officials in performing their duties properly and diligently.
Id., citing Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981).
Thus, the public policy expressed in Thornber requires that Judge
Holders attorneys fees be paid. As this Court has recognized, judges in
JQC proceedings are entitled to counsel as a matter of due process, Judicial
Qualifications Commission Rule 15(a), and to effective, affordable counsel
as a matter of fairness. SeeIn re Hapner, 737 So. 2d 1075, 1077 (Fla. 1999)
(recognizing as to costs that [i]t is particularly important that an accused
judge not be placed in the position of foregoing a defense against
unwarranted charges because he or she might otherwise face financial ruin if
unsuccessful in the proceeding.) Otherwise, judges in Respondents
position would face a Hobsons choice between loss of reputation and
removal from the bench on one hand, and mounting an effective defense
(which could lead to financial ruin) on the other. Everyone involved
including the voters who repeatedly elected Judge Holderwould be
damaged by the perpetuation of such a situation.
In its response to Judge Holders motion, the Commission, relying
upon the Attorney General of Florida, concedes that Thornber applies to
judges in proceedings before the Commission. See JQC Resp. at 5 (citing
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Attorney Generals Opinion 93-21, 1993 WL 361721 (Fla. A.G. 1993). The
JQC also concedes that the second prong of the Thornber test is satisfied,
stating that [u]nquestionably, the resolution of the highly publicized
charges against Judge Holder and matters relating thereto served a public
purpose. JQC Resp. at 5. Thus, the only issue is whether the JQCs case
against Judge Holder arose out of or in connection with the performance
of Judge Holders official duties.
III. ARGUMENT.
A. The JQC Proceeding Arose Out Of Or In Connection With ThePerformance Of Respondents Official Duties.
The Charges clearly arose in connection with the performance of
Judge Holders judicial duties. Specifically, the Charges and the resulting
litigation arose in connection with an attempt by an anonymous person or
persons7
to interfere with Judge Holders participation in the federal
investigation of judicial corruption at the Hillsborough County Courthouse.
In fact, Judge Holders participation in the corruption investigation
was integral to the performance of his judicial duties. Judicial Canon 3D(1)
states that A judge who receives information or has actual knowledge that
substantial likelihood exists that another judge has committed a violation of
7I.e., whoever fabricated the purported Holder paper, typed the Note, and
slipped the Envelope under Jeffrey Del Fuocos door.
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this Code shall take appropriate action. (Emphasis added.)
Consequently, when Judge Holder was approached by law enforcement
agents in connection with the investigation, he did the only proper thing
under the Judicial Canons, tell the agents what he knew and suffer the
attendant consequences.8
By cooperating with the courthouse corruption
investigation, Judge Holder discharged responsibilities that the Judicial Code
required.
In fact, Judicial Canon 3D(3) conclusively answers the official duty
issue before this Court It states that [a]cts of a judge, in the discharge of
disciplinary responsibilities, required or permitted by Sections 3D(1) and
3D(2) are part of a judges judicial duties.... Judicial Canon 3D(3)
(emphasis added). Thus, when viewed in context, this case clearly arose in
connection with Judge Holders performance of his official duties.
In its response, the Commission ignores the facts presented at trial.
The Commission asserts that The preparation of the Air War College
research paper and signing the certification did not arise out of or in
connection with the performance by Judge Holder of his official judicial
8One law enforcement agent testified at trial that the corruption
investigation team was concerned that Judge Holders activities were
being monitored by targets of the investigation. Judge Holder was
advised by federal law enforcement agents to carry a weapon, and he was
provided with a secure cell phone with which to communicate with
federal agents.
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duties and thus there is not a sufficient nexus between the writing of the
paper and the certification and the performance of Judge Holders official
duties as a Circuit Judge to satisfy the first prong of the Thornber list [sic].
Id. at 5, 6.
The Commissions position is grounded in neither fact nor law. First,
the Commission ignores the fact that it lost before the hearing panel. It tried
but could not establish that the purported AWC paper was created in
connection with Judge Holders Air Force duties. Instead, the
overwhelming evidence presented at the hearing established that the paper
was not in fact Judge Holders AWC paper and instead was a fabrication.
Indeed, the courthouse corruption investigation and Judge Holders
participation in it were the sole motivation for someone fabricating the
document. In fact, a law enforcement officer testified during the hearing
that other witnesses cooperating in the courthouse corruption investigation
had been retaliated against through the use of fabricated documents. Indeed,
Special Counsel himself, in his closing argument, conceded Judge Holders
actual paper and the Hoard paper (the source of the plagiarized material)
were unlawfully stolen from Judge Holders chambers before the Envelope
was surreptitiously slipped under Jeffrey Del Fuocos door. Indeed, the fact
that the Envelope containing the papers was slipped under the door of Mr.
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Del Fuocoand not the door of an Air Force or JQC officialdemonstrates
that derailing the judicial corruption investigation was the focus: Mr. Del
Fuoco had been the AUSA assigned to the investigation of corruption at the
Hillsborough County Courthouse.
Second, the Commissions argument simply misinterprets the
Thornber test. The test focuses not on the conduct alleged, but the
proceeding itself. The issue is whether the litigation arise[s] out ofor in
connection with the performance of [Judge Holders] official duties.
Thornber, 568 So. 2d at 917 (emphasis added).
Third, the JQC took the position below that the Charges were
sufficiently related to Judge Holders judicial duties to justify seeking
suspension despite the fact that the alleged conduct took place over five
years earlier. To now assert that the events in question are not sufficiently
related so as to satisfy the first prong of the Thornbertest is a disingenuous
switch in position.
The inquiry this Court set forth in Thornberlooks to the litigation as a
whole, including context, cause, and motivation. The Thornber test is not
answered by the conclusion that the charges against a public official
involvedallegedfacts or conduct outside the scope of his official duties. If
that were the test, any public official could be subjected to protracted
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litigation that could cost him his job and savings based on false allegations
of improper conduct unrelated to his judicial duties. This is especially true
of judges because the Canons of Judicial Conduct broadly govern their
behavior. As the General Counsel to the Commission has recognized:
"The canons require a judge to deal honestly in all his affairs,"
MacDonald said. "Our Supreme Court has held that a judge is a
judge 24 hours a day, seven days a week. Whether he does it
within or without his judicial offices is beside the point."
Thomas A. MacDonald, Esq., quoted in Tampa Tribune, Committee
Proceeds with Trial of Holder (Mar. 5, 2004).9
Where, as here, a judge prevails against allegations clearly intended to
prevent him from effectively performing a judicial duty (in this case,
cooperating with law enforcement investigating alleged corruption among
9The JQC argued in its formal Charges that the acts do relate to official
duties: These acts, if they occurred as alleged, would impair the
confidence of the citizens of this State in the integrity of the judicial
system and in you as a judge, would demean your judicial office, would
constitute a violation of the cited Canons of the Code of Judicial
Conduct, and the Rules of Professional Conduct, would constitute
conduct unbecoming a member of the judiciary, would demonstrate your
present unfitness to hold the office of judge, and would warrant
discipline, including, but not limited to, your removal from office. JQC
Resp., Ex. A 3. The Commissions position is inconsistent: It
simultaneously concedes that Judge Holders conduct was sufficiently
connected to the performance of official duties to charge him and seek
his suspension, yet not sufficiently connected to support repayment of his
fees now that he has prevailed. If no such connection existed, the
Commission had no authority to take jurisdiction in the first place.
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his colleagues), it should not matter that the false allegations concerned the
preparation of an Air War College paper.10
Instead, as Judge Holder
established below, the key factor is that the charges were made in an effort
to impair the judicial corruption investigation with which he was
cooperating. Accordingly, the litigation here arose out of or in connection
withperformance of his official duties.
The issue in this case is not merely an issue personal to Judge Holder,
but one which goes to the heart of judicial independence. The denial of fees
in this case will impair the ability of any judge to defend against anonymous
false charges designed to derail a judge from doing his job. The correct
result in these instances is to permit a judge to recover reasonable attorneys
fees when the judge prevails.
B. The Successful Defense Of The Case Served A Public Policy Goal.
Judge Holders successful defense of the charges against him, arising
as they did from the troubled circumstances in the Hillsborough County
Courthouse, has the effect of restoring public confidence in the judiciary and
10 There are undoubtedly cases involving alleged personal moral failures ofjudges which do not involve official conduct but which would directly
affect their fitness to serve. Unless the litigation of such charges is
accompanied by an improper intention (on the part of the charging party)
to interfere with their ongoing performance of judicial duties, the
granting of relief in the instant proceeding would not control the result in
such cases.
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in the JQC process for supervising the judiciary. From the inception of the
Commissions case against Respondent, this case has been viewed in
Hillsborough County as entwined with the troubles of the Courthouse and
the resulting judicial corruption investigation. Judge Holders successful
defense was also perceived in that context. See Appendix A (press coverage
of this proceeding).
The Commission has acknowledged that Judge Holders defense
served a public purpose: Unquestionably, the resolution of the highly
publicized charges against Judge Holderand matters relating thereto served
a public purpose.... JQC Resp. at 5-6 (emphasis added). Indeed, the
Commission explains those related matters in a footnote as Judge Holders
participation as an undercover agent in an FBI investigation of corruption.
JCQ Resp. at 6 n.1. But if, as the Commission contends, the litigation
passes the public purpose prong of the Thornber test because of Judge
Holders status as an undercover agent, the Commission should not be
able shield that same fact from the official duties prong of the same test.
The selective relevance urged on this Court by the Commission is not
persuasive. The Commissions own characterization of the litigation
concedes that it did arise out of or in connection with the public corruption
investigation with which Judge Holder cooperated as provided for by the
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Judicial Canons. Accordingly, he is entitled to reasonable attorneys fees.
C. The Commissions Arguments Do Not Compel Denial Of
Judge Holders Motion.
The Commission contends that In re Hapner, 737 So. 2d 1075 (Fla.
1999), establishes a rule forbidding the award of attorneys fees in this case.
JQC Resp. at 7. That case is inapposite. InHapner, the Commission sought
and was denied attorneys fees as costs under Article V, Section 12 of the
Florida Constitution. Hapners application of that provision, however, is
irrelevant to a Thornber common law attorney fee awardwhich the
Commission concedes applies in this context. Indeed, a case like the instant
proceeding is precisely the situation envisioned by Thornber, in which the
absence of reimbursement may lead to the chilling effect that a denial of
representation might have on public officials in performing their duties
properly and diligently. Thornber, 568 So. 2d at 917, citing Nuzum v.
Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981).
If this Court finds that Judge Holder is entitled to attorneys fees, such
fees will, of course, be limited to the amount deemed necessary and
reasonable in the context of this case. The determination of the amount of
recoverable attorneys fees should be determined by a special master based
on well-established principles of Florida law. In fact, a decision by this
Court that Judge Holder is entitled to recover reasonable attorneys fees
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would not be the beginning of a raid on the judicial branch treasury. As a
historical matter, judges rarely prevail in JQC hearings. In fact, the last time
a judge prevailed at trial against the JQC was approximately 19 years ago in
1986.11
In this rare case, Judge Holder denied all wrongdoing and prevailed.
Thus, the Commissions Thornber obligation to reimburse reasonable
attorneys fees will not unduly deter the Commission from carrying forth its
duties.
IV. CONCLUSION.For the reasons set forth above, Respondents Motion for Award of
Attorneys Fees should be granted and a special master appointed to make a
recommendation as to the amount of a reasonable attorneys fee which
should be awarded to Judge Holder.
(Attorney signature appears on following page.)
11Moreover, if a judge prevails only in part, but is otherwise sanctioned, the
judge likely would not qualify as a prevailing party. In re: Cope, 848 So. 2d
301 (Fla. 2003).
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Dated: August 18, 2005
Respectfully Submitted,
/s/ David B. Weinstein
David B. Weinstein
Florida Bar Number 0604410
Jonathan C. Koch
Florida Bar Number 0364525
Kimberly S. Mello
Florida Bar Number 0002968
Bales Weinstein
Post Office Box 172179Tampa, FL 33672-0179
Telephone No.: (813) 224-9100
Telecopier No.: (813) 224-9109
-and-
Juan P. Morillo
Florida Bar Number 0135933
Steven T. Cottreau
Specially Admitted
Sidley Austin Brown & Wood LLP
1501 K Street, N.W.
Washington, D.C. 20005
Telephone: (202) 736-8000
Telecopier: (202) 736-8711
Counsel for Judge Gregory P. Holder
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CERTIFICATE OF SERVICE
I certify that on August 18, 2005, a copy of the foregoing,
Memorandum of Law in Support of Respondents Motion for Award of
Attorneys Fees, has been served by regular U.S. Mail to Brooke Kennerly,
Hearing Panel Executive Director, 1110 Thomasville Road, Tallahassee, FL
32303; John Beranek, Counsel to the Hearing Panel, Ausley & McMullen,
P.O. Box 391, Tallahassee, FL 32302; Thomas C. MacDonald, Jr., JQC
General Counsel, 1904 Holly Lane, Tampa, FL 33629; Charles P. Pillans,
III, Esq., JQC Special Counsel, Bedell, Ditmar, DeVault, Pillans & Coxe,
P.A., The Bedell Building, 101 East Adams Street, Jacksonville, FL 32202;
and John P. Kuder, Chairman of the Hearing Panel, Judicial Building, 190
Governmental Center, Pensacola, FL 32501.
/s/ David B. Weinstein
Attorney
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IN THE SUPREME COURT OF FLORIDA
Case No. SC03-1171
INQUIRY CONCERNING RE: GREGORY P. HOLDERA JUDGE, NO. 02-487
RESPONDENTS INITIAL BRIEF
David B. Weinstein Juan P. Morillo
Florida Bar No.: 604410 Florida Bar No.: 0135933Kimberly S. Mello Steven T. Cottreau
Florida Bar No.: 0002968 Specially AdmittedBales Weinstein Sidley Austin LLP
Post Office Box 172179 1501 K Street, N.W.
Tampa, Florida 33672-0179 Washington, D.C. 20005Telephone: (813) 224-9100 Telephone: (202) 736-8000Telecopier: (813) 224-9109 Telecopier: (202) 736-8711
Counsel for Judge Gregory P. Holder
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i
TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................................................ii, iii
STATEMENT OF THE CASE............................................................................1
STATEMENT OF THE FACTS..........................................................................6
SUMMARY OF THE ARGUMENT................................................................. 10
ARGUMENT ................................................................................................... 14
I. JUDGE HOLDER IS ENTITLED TO REIMBURSEMENT OF THEATTORNEYS FEES INCURRED IN HIS SUCCESSFULL
DEFENSE OF THE JQCS CHARGES UNDER THE THORNBER
DOCTRINE............................................................................................14
A. This litigation arose out of or in connection with theperformance of Judge Holders official duties................................. 16
B. This litigation served a public purpose............................................ 21
II. NEITHER THE DOCTRINE OF SOVEREIGN IMMUNITY, NORANY OTHER DOCTRINE OR STATUTE, PROHIBITS OR LIMITS
THE AWARD OF ATTORNEYS FEES IN THIS PROCEEDING.......... 23
III. NO ADDITIONAL PARTIES ARE PROPER OR NECESSARY
FOR THE ADJUDICATION OF JUDGE HOLDERSENTITLEMENT TO ATTORNEYS FEES............................................. 26
CONCLUSION................................................................................................30
CERTIFICATE OF SERVICE..........................................................................32
CERTIFICATE OF COMPLIANCE ................................................................. 32
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ii
TABLE OF AUTHORITIES
CASES
Am. Home Assurance Co. v. Natl R.R. Passenger Corp.,908 So. 2d 459 (Fla. 2005)..................................................................15, 23, 25
Dade County v. Carter,
231 So. 2d 241 (Fla. 3d DCA 1970) ............................................................... 23
Dade County v. Certain Lands,
247 So. 2d 787 (Fla. 3d DCA 1971) ............................................................... 27
Ellison v. Reid,
397 So. 2d 352 (Fla. 1st DCA 1981)............................................................... 14
Estes v. City of N. Miami Beach,
227 So. 2d 33 (Fla. 1969)......................................................................... 14, 22
In re Hapner,
737 So. 2d 1075 (Fla. 1999) ........................................................................... 15
Kluger v. White,281 So. 2d 1 (Fla. 1973).................................................................................25
Miller v. Carbonelli,80 So. 2d 909 (Fla. 1955)...............................................................................22
Provident Mgmt. Corp. v. City of Treasure Island,796 So. 2d 481 (Fla. 2001)....................................................................... 24, 25
State ex rel. Fl. Dry Cleaning and Laundry Board v. Atkinson ,188 So. 834 (Fla. 1938)..................................................................................24
State of Fla. v. Koch,
582 So. 2d 5 (Fla. 1st DCA 1991) .................................................................. 25
State Road Dept of Fla. v. Tharp ,1 So. 2d 868 (Fla. 1941)........................................................................... 24, 26
State v. Egan,287 So. 2d 1 (Fla. 1973).................................................................................25
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iii
Thornber v. City of Fort Walton Beach ,568 So. 2d 914 (Fla. 1990)...................................................................... passim
STATUTES
768.14, Fla. Stat.............................................................................................24
29.004, Fla. Stat.............................................................................................23
28 U.S.C. 361 ................................................................................................ 27
CONSTITUTIONAL PROVISIONS
Art. 3, 22, Fla. Const. ..................................................................................... 23
Art. 5, 14(c), Fla. Const..................................................................................26
Art. 7, 1, Fla. Const........................................................................................26
Art. 12, 6(a), Fla. Const..................................................................................25
OTHERAUTHORITIES
Codes of Jud. Conduct, Canon 3D(1)................................................................. 16
Codes of Jud. Conduct, Canon 3D(3)................................................................. 17
Del. R. Ct. 68 ................................................................................................... 28
Fla. R. Jud. Admin. 2.030(e) ........................................................................26, 27
Fla. Jud. Qual. Commn R. 15(a)....................................................................... 16
Op. Atty Gen. Fla. 93-21 (1993)....................................................................... 15
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1
STATEMENT OF THE CASE
More than two and a half years ago, in July of 2003, the Florida Judicial
Qualifications Commission (JQC or the Commission) filed a Notice of Formal
Charges (Charges) alleging that Hillsborough County Circuit Court Judge
Gregory P. Holder (Judge Holder or Respondent) had plagiarized an Air War
College (AWC) paper and falsely stated that it was his original work. Among
other things, the JQC alleged that Judge Holder violated 18 U.S.C. 1001 [a
felony], by making a materially false statement to the federal government. The
JQC also alleged that the charged conduct would demonstrate [Judge Holders]
present unfitness to hold the office of judge, and would warrant discipline,
including, but not limited to, [his] removal from office. [Notice of Formal
Charges, at App. 1.] The Commission also took the extraordinary step of issuing
an Order to Show Cause why the [JQC Investigative] Panel should not
recommend to the Supreme Court that [Judge Holder] be suspended from office
while this matter remained pending. [Commissions Amended Order to Show
Cause, at App. 2.]
To support its allegations, the JQC relied on a copy of an AWC paper
submitted by E. David Hoard in 1996 (Hoard paper) (Exhibit B to the
Charges) and copies of a paper that contained significant amounts of material from
the Hoard paper and which the JQC alleged was submitted by Judge Holder to the
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2
AWC in 1998 (purported Holder paper) (Exhibit A to the Charges). Judge
Holder never contested that the purported Holder paper contained approximately
ten pages of nearly verbatim text from the Hoard paper. Instead, he steadfastly
maintained that the purported Holder paper was fabricated, most likely to discredit
him because of his role as a cooperating witness in a federal criminal investigation
of corruption at the Hillsborough County Courthouse (courthouse corruption
investigation).
The seriousness of the Charges, coupled with the factual and legal
complexities of this case, required Judge Holder to retain experienced counsel,
conduct extensive discovery, file and litigate (including full briefing and oral
argument) numerous motions,1
and secure experts regarding document
1Judge Holder filed the following motions on the referenced dates: 1) Motion inLimine to Exclude Testimony of David Leta (8/27/04); 2) Motion in Limine to
Exclude All Documents Provided to the JQC by Jeffrey Del Fuoco (8/27/04); 3)Motion in Limine to Exclude All Documents Provided to the JQC by the United
States Air Force (8/27/04); 4) Motion in Limine to Exclude Testimony ofJeffrey Downing (8/27/04); 5) Motion in Limine to Exclude Testimony of
Jeffrey Del Fuoco (8/27/04); 6) Motion in Limine to Exclude Evidence on BestEvidence Grounds (8/27/04); 7) Motion in Limine to Exclude Evidence on Due
Process Grounds (8/27/04); 8) Motion in Limine to Exclude Copies of thePurported Holder Paper on Authentication Grounds (8/27/04); and 9) Motion to
Dismiss the Pending Charges or in Limine to Exclude the Purported HolderPaper and Hoard Paper Based on Evidentiary Improprieties (3/21/05). The JQC
Hearing Panel did not rule dispositively on the evidentiary motions prior totrial. Instead, evidence at trial was taken subject to such motions, which were
ultimately denied by the Order of Dismissal.
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3
authentication, the creation of documents (i.e., the purported Holder paper) using
Photoshop software, forensic computer analysis, and applied linguistics.
Formal discovery commenced in August of 2003, and continued for nearly
two years. During this time, extensive written discovery was served, including six
sets of interrogatories, three requests for production of documents, as well as
requests for admission. Additionally, the depositions of at least 24 witnesses were
taken in this action, many of whom resided outside the State of Florida. Judge
Holders counsel also conducted extensive informal discovery, including dozens of
witness interviews, and secured over two dozen witness affidavits. Judge Holder
also had to expend substantial resources attempting to obtain access to United
States military personnel and Assistant United States Attorneys, who were critical
witnesses in this case, because of the severe restrictions imposed by 28 C.F.R.
1621, et seq., on a civil litigants right to obtain the testimony of federal
employees.
This case was tried from June 6 to June 14, 2005, before the JQC Hearing
Panel, and included the testimony of more than 25 witnesses. During the trial,
Judge Holder presented compelling evidence that the purported Holder paper was
fabricated to retaliate against him for participating in the courthouse corruption
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4
investigation. [Bartoszak Tr. pp. 7, 12-13, at App. 3.]2
On June 23, 2005, the
Hearing Panel of the JQC voted unanimously to dismiss the charges against Judge
Holder. [Order of Dismissal, at App. 4.] Research indicates that this is the first
trial defense verdict against the JQC in almost twenty years.
On July 25, 2005, based on his successful defense of the Charges, Judge
Holder moved this Court to enter an order awarding attorneys fees incurred by
him in the JQC proceeding. In support of his motion, Judge Holder relied on the
well-settled common law doctrine [referred to in the Initial Brief as the Thornber
doctrine], which requires that a public official be reimbursed at public expense
following the successful defense of litigation that a) arises out of or in connection
with performance of his or her official duties, and b) serves a public purpose.
2Pursuant to its September 8, 2005 Order (Order), the Court did not require the
Commission to provide a trial transcript. However, Judge Holders counselobtained uncertified trial transcripts of certain witnesses testimony, which are
included in the Appendix to the Initial Brief and cited as _____Tr. p. _____ atApp. ____. While these trial transcripts are not certified, Judge Holder does
not believe that the accuracy of the transcribed testimony cited by Respondentis reasonably subject to dispute. However, should such a dispute arise, Judge
Holder will respectfully request an opportunity to supplement the record with acertified transcript.
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5
In its response to Judge Holders motion, the JQC conceded that a) the
Thornber doctrine applies to these proceedings, and b) this litigation served a
public purpose. [JQC Resp. p. 5, at App. 5.]3
The JQCs sole argument was that
there was an insufficient nexus with the performance of Judge Holders official
duties as a Circuit Court Judge to satisfy the first prong of the Thornberlist [sic].
[JQC Resp. pp. 5-6, at App. 5.] Judge Holder subsequently filed a Memorandum
of Law in Support of Respondents Motion for Award of Attorneys Fees as well
as Respondents Request for Oral Argument.
On December 2, 2005, this Court entered an Order granting Judge Holders
Request and ordering additional briefing on the following issues:
a) The specific basis and authority for an award of
attorneys fees in this case;
b) Any prohibitions or limitations with regard to amonetary award in this case including, but not
limited to, issues of sovereign immunity orotherwise; and
c) The joinder of any additional parties, if any,necessary or proper for a full determination of
issues presented.
3The Commissions Response to Respondents Motion for Award of Attorneys
Fees will be cited as JQC Resp. p. ____, at App. _____.
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6
STATEMENT OF THE FACTS
Prior to and during his service as a civilian judge, Judge Holder had a
distinguished career in the United States Air Force, beginning with his graduation
from West Point in 1975. Judge Holder was one of 16 graduating cadets
commissioned into the Air Force. He served at Eglin Air Force Base in Florida,
where he concentrated in the study and development of armaments. Judge Holder
was one of the youngest Air Force officers ever to receive the Meritorious Service
Medal, as well as one of the youngest distinguished graduates of Squadron Officer
School. [Holder Tr. pp. 8-14, at App. 6.]
After earning his MBA in 1978, Judge Holder was one of only 25 officers in
the Air Force selected for the highly competitive Air Force Funded Legal
Education Program. [Id. at p. 11.] He graduated in 1981 from Stetson University
College of Law, where he served as an Associate Editor of the Law Review. [Id. at
p. 14.] After graduation, Judge Holder volunteered to go to Korea, where he
served as Area Defense Counsel. Following his tour of duty in Korea, Judge
Holder was transferred to MacDill Air Force Base in Tampa, Florida. In 1988,
Judge Holder resigned his active duty commission, joined the Air Force Reserves,
and was assigned to U.S. Special Operations Command at MacDill. During his
distinguished military career, Judge Holder was one of only five Air Force Reserve
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7
Officers in the world assigned as a Military Judge entrusted with jurisdiction over
special and general courts martial. [Id. at pp. 21-38.]
Judge Holder was elected to the Hillsborough County Court bench in 1994,
and to the Thirteenth Judicial Circuit Court in 1996.4
While serving on the bench,
Judge Holder continued to serve as an officer in the U.S. Air Force Reserve. In
1997, Judge Holder enrolled in the U.S. Air Force Air War College. To graduate,
Judge Holder was required to pass a series of examinations and write a research
paper. Accordingly, in late 1997 and early 1998, Judge Holder researched and
wrote a paper on the Combined Bomber Offensive during World War II, for which
he received a satisfactory grade, and subsequently graduated from the Air War
College. [Id. at p. 78]
In 1999, Judge Holder reported to former Chief Judge Dennis Alvarez that
certain judges were engaging in improper conduct. [Nasco Tr. pp. 17-19, at App.
8.] In July of 2000, Judge Holders bailiff, Sylvia Morgan, discovered former
Judge Robert Bonanno in Judge Holders chambers, after normal business hours,
while Judge Holder was out of state on Air Force Reserve duty. [Sylvia Gays
4 Since taking the bench, Judge Holder has been described as a jurist ofunquestioned credibility and unassailable integrity and an officer of the highest
possible standards of behavior. Aff. of Colonel John S. Odom, Jr.,Mobilization Assistant to the Staff Judge Advocate, U.S. Air Force Reserve
(Odom Aff.) 8, at App 7.
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(n/k/a Sylvia Morgan) grand jury testimony (Oct. 11, 2000), pp. 55-60, at App. 9.]5
Judge Bonanno left Respondents chambers carrying unidentified documents. [Id.]
Judge Holder reported this incident, and a law enforcement investigation ensued.
[Id. at pp. 102, 105-07.] Ultimately, impeachment proceedings were commenced
against Judge Bonanno and he resigned from office.
During 2001 and 2002, Judge Holder cooperated with the FBI in the
courthouse corruption investigation. [Bartoszak Tr. pp. 4-5, at App. 3.] Because
of Judge Holders cooperation, the investigations targets had motive and resources
to seek retribution against him. [Id. at pp. 7-8] Indeed, these targets faced not just
loss of position but potential incarceration. [Id.]
In early 2002, in the midst of the courthouse corruption investigation,
Assistant United States Attorney Jeffrey Del Fuoco, who also served in the United
States Army Reserve, claimed that an unmarked manila envelope was
anonymously placed under his office door at the Army Reserve Headquarters in St.
Petersburg. [Del Fuoco Tr., pp. 8-9, at App. 10.] Del Fuoco testified that the
unmarked envelope contained an unsigned typewritten note to the effect that I
thought you would be interested in this, or something should be done about this.
[Id. at p. 10.] The note was purportedly signed A concerned citizen, or A
5Transcript of Grand Jury Testimony of Sylvia Gay also is available in SupremeCourt Case No. SC01-2078, Inquiry Concerning a Judge, No. 00-261, Re:
Robert H. Bonanno.
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concerned taxpayer. [Id.] The note allegedly accompanied a copy of the
purported Holder paper and a copy of the Hoard paper (the Papers). [Id. at pp.
10-12.]
The United States Attorneys Office did not provide the papers to the JQC
until December of 2002, approximately 11 months after it received them.
Tellingly, the referral to the JQC occurred just weeks after Judge Holder wrote a
letter to the Department of Justice Office of Professional Responsibility
complaining about the lack of progress in the courthouse corruption investigation.
[Bartoszak Tr. p. 8, at App. 3.] However, by that time, the purported note and
envelope had inexplicably disappeared from the file in the United States Attorneys
Office. [Del Fuoco Tr., pp. 50-52, at App. 10.] Consequently, the only evidentiary
documents received by the JQC were the purported Holder paper and the Hoard
paper.
However, notwithstanding the Commissions knowledge that the central
issue in this case was whether the purported Holder paper was genuine, the JQC
vigorously prosecuted this case despite the following facts:
The JQC admitted that it had no witness who couldtestify based on personal knowledge that the purportedHolder paper was an authentic copy of the actual paper
that Judge Holder submitted to the Air War College[Commissions Response to Resp.s 1st Req. for
Admissions 1, at App. 11.];
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Both the note and the manila envelope (i) inexplicablyvanished from the U.S. Attorneys Office and (ii) were
never forensically tested for fingerprints, DNA, orotherwise to attempt to identify their source [Del Fuoco
Trans., pp. 53-56, at App. 10.];
No original of Judge Holders actual AWC paper wasever located [Commissions Response to Resp.s 1st Req.
for Admissions 1, at App. 11.]; and
Judge Holder and four third-party witnesses who sawJudge Holders actual paper at or about the time hesubmitted it to the Air War College swore that the
purported Holder paper was not genuine6 [Vento Dep.pp. 71, 73, at App. 12.]; [Affidavit of Lt. Col. JamesRussick 9, at App. 13.]; [Lawson Dep. pp. 15, 16, at
App. 14]; [Nasco Tr. p. 13, at App. 8]; [Holder Tr. p. 76,at App. 6.]
Judge Holder incurred significant attorneys fees in his successful defense against
the Commissions Charges, which he is entitled to recover based on the authority
set forth below.
SUMMARY OF THE ARGUMENT7
Judge Holder is entitled to an award of attorneys fees based on the well-
settled common law doctrine that a public official is entitled to be reimbursed at
public expense following the successful defense of litigation that a) arises out of or
6The depositions of John Vento and Ken Lawson were admitted into evidenceduring the trial due to their unavailability.
7 This is not an appellate proceeding. Therefore, Respondent has not included a
section on the applicable standard of review.
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in connection with performance of his or her official duties, and b) serves a public
purpose.
Here, the Charges and the resulting litigation clearly arose out of or in
connection with an attempt by an anonymous person or persons to interfere with
Judge Holders participation in the courthouse corruption investigation. Indeed,
the overwhelming evidence at trial established the requisite connection to the
courthouse corruption investigation, including the fact that the purported Holder
paper was fabricated as a result of Judge Holders participation in that
investigation. Significantly, the Judicial Canons required Judge Holders
participation in the courthouse corruption investigation as part of his judicial
duties. In addition, from the inception of this proceeding, the JQC maintained that
the Charges were sufficiently related to Judge Holders judicial duties to justify his
suspension from the benchdespite the fact that the alleged conduct took place
over five years earlier. Under these circumstances, this litigation clearly arose out
of or in connection with the performance of Judge Holders official duties.
Not surprisingly, the Commission has conceded the second prong of the
Thornbertestthat the litigation served a public purpose. From its inception, this
proceeding has been highly publicized and viewed as inextricably entwined with
the courthouse corruption investigation. Accordingly, the public clearly had an
interest in, and the judiciary the responsibility to ensure, the proper functioning of
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the JQC process as it related to these highly publicized Charges. Moreover, this
litigation served a public purpose because a) the successful defense of Judge
Holder resulted in an accomplished and respected jurist remaining on the bench; b)
the overall functioning of the Circuit Court, as well as the interests of the attorneys
and the litigants with matters pending before the judge, were not adversely
impacted; and c) the litigation has not only restored or enhanced public confidence
in Judge Holders position as a jurist, but restored or enhanced public confidence
in the judiciary.
Judge Holders entitlement to attorneys fees under this common law
doctrine is not barred or limited by sovereign immunity or any other doctrine. This
proceeding is simply not a suit against the State. Rather, the Judicial Qualifications
Commission, an element of the State courts system, investigated and made the
decision to institute this proceeding against Judge Holder. Indeed, to find that the
doctrine of sovereign immunity applied in this circumstance would prevent Judge
Holder from enforcing a right guaranteed to him by the law of this State. As a
result, Judge Holder would have been forced to defend a complex, protracted, and
very expensive case because of a State agencys deliberate decision to proceed
against him, but without meaningful legal recourse for the significant expenses that
he has necessarily incurred. Such an application would transform the doctrine of
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sovereign immunity into a sword not a shield in direct contravention of Florida
law.
Finally, in determining Judge Holders entitlement to reimbursement for his
attorneys fees under the Thornber doctrine, no additional parties are proper or
necessary. If this Court rules that Judge Holder is entitled to reimbursement, the
issue of a reasonable amount of attorneys fees and an appropriate funding
mechanism will become ripe for this Courts consideration. Likewise, no
additional parties are necessary in order to determine the amount of attorneys fees
to be awarded. When the issue of an appropriate funding mechanism becomes
ripe, the State Courts Administrator (SCA) may have an interest in the
proceeding, though Judge Holder does not believe that the SCA is a necessary
party. This is based on the fact that this Court is vested with the responsibility of
submitting budget requests to the legislature for the purposes of obtaining the
necessary funding. Therefore, any funding necessary for an award of attorneys
fees should be requested by this Court, through its SCA who appears before the
legislature on the Courts behalf.
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ARGUMENT
I. JUDGE HOLDER IS ENTITLED TO REIMBURSEMENT OF THEATTORNEYS FEES INCURRED IN HIS SUCCESSFULL DEFENSEOF THE JQCS CHARGES UNDER THE THORNBERDOCTRINE.
It is well-established under Florida law that a public officer is entitled to be
reimbursed at public expense for the attorneys fees incurred in successfully
defending a lawsuit or misconduct charges while performing public duties and
serving a public purpose. See e.g. Thornber v. City of Fort Walton Beach, 568 So.
2d 914 (Fla. 1990); Estes v. City of N. Miami Beach, 227 So. 2d 33 (Fla. 1969);
Ellison v. Reid, 397 So. 2d 352 (Fla. 1st DCA 1981). As this Court has stated, the
purpose of the common law rule is to avoid the chilling effect that a denial of
representation might have on public officials in performing their duties properly
and diligently. Thornber, 568 So. 2d at 917. In order to be entitled to attorneys
fees, a public official must establish the following:
1. the litigation arose out of or in connection with theperformance of his or her official duties; and
2. the litigation served a public purpose.Id.
Indeed, this common law entitlement to attorneys fees, which arises
independent of any statute, has been broadly construed. See, e.g., Ellison, 397 So.
2d 352 (awarded fees to county property appraiser for defense of charges that he
plagiarized an appraisal report and engaged in other misconduct while attending
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Department of Revenue training program). In fact, this Court has held that section
111.07, Florida Statutes, which provides for reimbursement of public officials
attorneys fees for the defense of civil actions, does not supplant the common law
doctrine. Thornber, 568 So. 2d at 918. Rather, the common law doctrine provides
to public officials the clear right to seek reimbursement for attorneys fees in
proceedings other than civil actions. Id. at 918, 919 n. 7 (public officials should be
reimbursed for the fees incurred by successful defense of charges relating to ethical
misconduct in connection with their official duties).
Importantly, Floridas Attorney General has expressly recognized that
judges should be reimbursed for their legal fees in successfully defending JQC
charges if the two-pronged test set forth in Thornber(Thornbertest)is met. Op.
Atty Gen. Fla. 93-21 (1993). This Court has held that these opinions, while not
binding, are highly persuasive. Am. Home Assurance Co. v. Natl R.R. Passenger
Corp., 908 So. 2d 459 (Fla. 2005).
Given this overwhelming authority, the JQC has conceded that the Thornber
doctrine applies to this case. [JQC Resp. p. 5, at App. 5.] Indeed, without the
ability to seek such reimbursement, judges would face a choice between loss of
reputation and removal from the bench on one hand, and mounting an effective
defensewhich could lead to financial ruinon the other. SeeIn re Hapner, 737
So. 2d 1075, 1077 (Fla. 1999) (an accused judge should not be placed in the
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position of foregoing a defense against unwarranted charges because he or she
might otherwise face financial ruin if unsuccessful in the proceeding); Fla. Jud.
Qual. Commn R. 15(a). Florida law does not require a judge to make such a
Hobsons choice. Instead, as set forth below, Judge Holder is entitled to an award
of attorneys fees pursuant to the Thornberdoctrine.
A. This litigation arose out of or in connection with the performanceof Judge Holders official duties.
The first prong of the Thornber test focuses on whether the litigation
arise[s] out of or in connection withthe performance of [Judge Holders] official
duties. Thornber, 568 So. 2d at 917. Here, the Charges and the resulting
litigation clearly arose out of or in connection with an attempt by an anonymous
person or persons8
to interfere with Judge Holders participation in the courthouse
corruption investigation. Significantly, Judge Holders participation in this
corruption investigation was not just in connection with, but, in fact, was required
by, his judicial duties. Codes of Judicial Conduct, Canon 3D(1) states as follows:
A judge who receives information or has actual
knowledge that substantial likelihood exists that anotherjudge has committed a violation of this Code shall take
appropriate action.
8 i.e., whoever fabricated the purported Holder paper, typed the note, and slipped
the unmarked envelope under Jeffrey Del Fuocos Army Reserve Office door.
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(Emphasis added.) Consequently, when Judge Holder was approached by law
enforcement agents in connection with the courthouse corruption investigation, he
did exactly what the Judicial Canons required of himhe told the agents what he
knew and suffered the attendant consequences.9
Thus, by cooperating in the
courthouse corruption investigation, Judge Holder discharged responsibilities that
the Canons required.
In fact, Canon 3D(3) states that [a]cts of a judge, in the discharge of
disciplinary responsibilities, required or permitted by Sections 3D(1) and 3D(2)
are part of a judge s judicial duti es.... Codes of Jud. Conduct, Canon 3D(3)
(emphasis added). It was Judge Holders discharge of his judicial duties that
motivated an anonymous person or persons to steal Judge Holders actual AWC
paper from his chambers. Special Counsel for the JQC effectively conceded this
point during closing argument when he stated that Holders actual paper and the
Hoard paper were stolen from Judge Holders chambers.
Indeed, the overwhelming evidence at trial established the requisite
connection to the courthouse corruption investigation, including the fabrication of
the purported Holder paper. Significantly, the fact that the envelope containing the
9Detective Bartoszak testified at trial that the courthouse corruption investigation
team was concerned that Judge Holders activities were being monitored bytargets of the investigation. Judge Holder was advised by federal law
enforcement agents to carry a weapon, and he was provided with a secure cellphone to communicate with the authorities. [Bartoszak Tr. pp. 7-8, at App. 3.]
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Papers was slipped under the door of Mr. Del Fuocowho had been the
prosecutor assigned to that casedemonstrates that the objective of this scheme
was to derail the courthouse corruption investigation. [Bartoszak Tr. p. 4, at App.
3.] Moreover, the testimony of a) Judge Holder, b) four third-party witnesses who
saw Judge Holders actual Air War College paper at or about the time it was
submitted, and c) an expert on applied linguistics, established that the purported
Holder paper was not the paper that Judge Holder actually submitted to the AWC
in 1998. This testimony included the following:
Judge Holder testified that he was absolutelycertain that the purported Holder paper was not
his paper. [Holder Tr. p. 76, at App. 6.];
John Vento, a respected member of The FloridaBar and retired Air Force Colonel, reviewed Judge
Holders AWC paper shortly after it was written
and testified that the purported Holder papercannot be the same paper . . . [n]o doubt in mymind about it. [Vento Dep. pp. 71, 73, at App.
12];
James Russick, another respected member of TheFlorida Bar and retired Air Force LieutenantColonel, testified that he also reviewed the actualHolder paper and did not recognize any part of
this [purported Holder] paper as being [Judge
Holders] work. [Aff. of Lt. Col. Russick 9, atApp. 13.];
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Ken Lawson, a former federal prosecutor, testifiedthat he did not notice any similarities between the
Hoard paper and the actual Holder paper that hehad received from Judge Holder in early 1998, and
that he never gave Jeffrey Del Fuoco a gradedcopy of Judge Holders paper, directly refuting Mr.
Del Fuocos testimony. [Lawson Dep. pp. 15, 16,at App. 14.];
Lorraine Nasco, Judge Holders former judicialassistant, testified that the purported Holder paperwas not the one she typed and submitted to the Air
Force. [Nasco Tr. p. 13, at App. 8]; and
Dr. John T. Crow, a Fulbright lecturer andprofessor of linguistics, carefully examined Judge
Holders writing style, syntax, and use ofgrammatical constructs from multiple writing
samples of Judge Holder dating back several years.After analyzing the purported Holder paper, Dr.
Crow testified that it was his opinion that JudgeHolder was not the author of the purported Holder
paper. [Crow Dep. pp. 15-16, at App. 15.]
This testimony regarding fabrication was further buttressed by the testimony of
Detective Bartoszak that another cooperating witness in the courthouse corruption
investigation had also been retaliated against through the use of fabricated
documents. [Bartoszak Tr. p. 19, at App. 3.]
From the inception of this proceeding, the JQC maintained that the Charges
were sufficiently related to Judge Holders judicial duties to justify his suspension
from the benchdespite the fact that the alleged conduct took place over five
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years earlier.10
For the Commission to now argue that this litigation arises neither
out of nor in connection with the performance of Judge Holders official duties
particularly given the overwhelming evidence presented at trialis, at best, a
convenient change in position and, in any event, is unavailing. While there may be
JQC proceedings involving alleged personal moral failures of judges that do not
involve official conduct but which would directly affect their fitness to serve, this
was not such a case. Here, a judge prevailed in a proceeding which arose out of an
attempt to prevent him from effectively performing a judicial dutycooperating
with a law enforcement investigation of alleged courthouse corruption.
Accordingly, this litigation clearly arose out of or in connection with the
performance of Judge Holders official duties.
10 The JQC alleged as follows: These acts, if they occurred as alleged, would
impair the confidence of the citizens of this State in the integrity of the judicialsystem and in you as a judge, would demean your judicial office, would
constitute a violation of the cited Canons of the Code of Judicial Conduct andthe Rules of Professional Conduct, would constitute conduct unbecoming amember of the judiciary, would demonstrate your present unfitness to hold the
office of judge, and would warrant discipline, including, but not limited to, yourremoval from office. [Commissions Notice of Formal Charges, at App. 1.]
The Commission also took the extraordinary step of issuing an Order to ShowCause why the [JQC Investigative] Panel should not recommend to the
Supreme Court that [Ju