BEFORE THE INVESTIGATIVE PANEL OF THE FLORIDA 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 County Courthouse, 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

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.

2.

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 student’s 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

3.

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 FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Thomas C. MacDonald, Jr. Florida Bar No. 049318 1904 Holly Lane Tampa, Florida 33629 (813) 254-9871 (813) 258-6265 (Facsimile) General Counsel for the Florida Judicial Qualifications Commission

- and -

BEDELL, COXE

DITTMAR,

DeVAULT,

PILLANS

&

Professional Association

By Charles P. Pillans, III

4.

Florida Bar No. 0100066 The Bedell Building 101 East Adams Street Jacksonville, Florida 32202 (904) 353-0211 (904) 353-9307 (Facsimile) Special Counsel to the Florida Judicial Qualifications Commission Certificate of Service

I DO HEREBY CERTIFY that a copy of the foregoing Notice of Formal Charges has been furnished to the following this day of July, 2003.

The Honorable Gregory P. Holder Circuit Judge Thirteenth Judicial Circuit Hillsborough County Courthouse 419 Pierce Street Tampa, FL 33602 David B. Weinstein, Esquire Bales Weinstein Post Office Box 172179 Tampa, FL 33672-0179

[by Certified Mail]

[by U.S. Mail]

5.

BEFORE THE JUDICIAL QUALIFICATIONS COMMISSION STATE OF FLORIDA CASE NO.: 02-487 INQUIRY CONCERNING JUDGE GREGORY P. HOLDER; / ORDER OF DISMISSAL This matter was considered after a six-day evidentiary SUPREME CT. CASE NO. SC03-1171

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 The charges concerned

JQC Investigative Panel on July 16, 2003.

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. committed plagiarism.

The charge is that in 1998 Judge Holder 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.

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. is entered pursuant to Rule 20 of the This ruling Judicial

Florida

Qualifications Commission Rules.1

The evidence was extremely The credibility of

conflicting and the implications disturbing. certain witnesses was in doubt. events were unclear.

The memories of the long past

The Panel concludes that the evidence was

troublesome but did not rise to the level of clear and convincing
1

Rule 20 provides in relevant part: If the Hearing Panel dismisses the formal charges, the Hearing Panel shall promptly file a copy of the dismissal order certified by the Chair of the Hearing Panel with the Clerk of the Supreme Court. 2

evidence of guilt.

In re: Kinsey, 842 So. 2d 77, 85 (Fla. 2003), The six

and In re: Davey, 645 So. 2d 398, 404 (Fla. 1994).

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 Commission 1110 Thomasville Road Tallahassee, Florida 32303 850/488-1581 850/922-6781 (fax) Copies furnished in accordance with the attached list.

3

David B. Weinstein Counsel to the Judge Post Office Box 172179 Tampa, FL 33674-0179 (813) 224-9100 (813) 224-9109 (fax) Juan Morillo Steven T. Cottreau Counsel to the Judge 1501 K. Street, N.W. Washington, DC 20005 (202) 736-8000 (202) 736-8711 (fax) Charles P. Pillans, III Special Counsel The Bedell Building 101 East Adams Street Jacksonville, FL 32202 (904) 353-0211 (904) 353-9307 (fax) Thomas C. MacDonald, Jr. General Counsel 1904 Holly Lane Tampa, Florida 33629 (813) 221-2500 (813) 258-6265 (fax) John Beranek Counsel to the Hearing Panel Ausley & McMullen P.O. Box 391 Tallahassee, Florida 32302 (850) 224-9115 (850) 222-7560 (fax) Brooke Kennerly Florida Judicial Qualifications Commission 1110 Thomasville Road Tallahassee, Florida 32303 (850) 488-1581 (850) 922-6781 (fax)

4

IN THE SUPREME COURT OF FLORIDA INQUIRY CONCERNING A JUDGE NO. 02-487 Supreme Court Case No.: SC03-1171

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT’S 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
1

Some description of the background of this case is necessary here, in part because the JQC has elected not to transcribe the record.
1

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. Attorney’s Office provided these Papers to the JQC. Although the Papers had been in the possession of the U.S. Attorney’s 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

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.” Commission’s 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. Attorney’s Office and were never forensically tested for fingerprints or otherwise to attempt to identify their source; (c) no original of Judge Holder’s actual AWC paper was ever located; and (d) multiple witnesses who saw Judge Holder’s 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 paper’s originality, the JQC also alleged that Respondent had violated 18 U.S.C. § 1001. JQC Resp., Ex. A. ¶ 2.
3

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. Sidley Austin Brown & Wood LLP, one of the law firms retained by Judge 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. Respondent’s other law firms were engaged on an hourly fee basis. Judge 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

5

6

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

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 Holder’s 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. See In 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 Respondent’s

position would face a Hobson’s 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 Holder—would be damaged by the perpetuation of such a situation. In its response to Judge Holder’s 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

6

Attorney General’s 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 JQC’s case against Judge Holder arose “out of or in connection with” the performance of Judge Holder’s official duties. III. ARGUMENT. A. The JQC Proceeding Arose Out Of Or In Connection With The Performance Of Respondent’s Official Duties.

The Charges clearly arose in connection with the performance of Judge Holder’s judicial duties. Specifically, the Charges and the resulting litigation arose in connection with an attempt by an anonymous person or persons 7 to interfere with Judge Holder’s participation in the federal investigation of judicial corruption at the Hillsborough County Courthouse. In fact, Judge Holder’s 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

7

I.e., whoever fabricated the purported Holder paper, typed the Note, and slipped the Envelope under Jeffrey Del Fuoco’s door.
7

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 judge’s judicial duties....” Judicial Canon 3D(3)

(emphasis added). Thus, when viewed in context, this case clearly arose in connection with Judge Holder’s 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
8

One law enforcement agent testified at trial that the corruption investigation team was concerned that Judge Holder’s 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.
8

duties” and thus “there is not a sufficient nexus between the writing of the paper and the certification and the performance of Judge Holder’s official duties as a Circuit Judge to satisfy the first prong of the Thornber list [sic].” Id. at 5, 6. The Commission’s 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 Holder’s Air Force duties. Instead, the

overwhelming evidence presented at the hearing established that the paper was not in fact Judge Holder’s AWC paper and instead was a fabrication. Indeed, the courthouse corruption investigation and Judge Holder’s 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 Holder’s actual paper and the Hoard paper (the source of the plagiarized material) were unlawfully stolen from Judge Holder’s chambers before the Envelope was surreptitiously slipped under Jeffrey Del Fuoco’s door. Indeed, the fact that the Envelope containing the papers was slipped under the door of Mr.

9

Del Fuoco—and not the door of an Air Force or JQC official—demonstrates 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 Commission’s 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 of or in connection with the performance of [Judge Holder’s] 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 Holder’s 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 Thornber test is a disingenuous switch in position. The inquiry this Court set forth in Thornber looks 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 involved alleged facts or conduct outside the scope of his official duties. If that were the test, any public official could be subjected to protracted

10

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
9

The 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 Commission’s position is inconsistent: It simultaneously concedes that Judge Holder’s 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.

11

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 with” performance 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 Holder’s 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 of judges 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.
12

in the JQC process for supervising the judiciary. From the inception of the Commission’s 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 Holder’s successful defense was also perceived in that context. See Appendix A (press coverage of this proceeding). The Commission has acknowledged that Judge Holder’s defense served a public purpose: “Unquestionably, the resolution of the highly

publicized charges against Judge Holder and 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 Holder’s “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 Holder’s 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 Commission’s 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

13

Judicial Canons. Accordingly, he is entitled to reasonable attorneys’ fees. C. The Commission’s Arguments Do Not Compel Denial Of Judge Holder’s 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. In Hapner, the Commission sought and was denied attorneys’ fees as costs under Article V, Section 12 of the Florida Constitution. Hapner’s application of that provision, however, is irrelevant to a Thornber common law attorney fee award—which 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
14

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 Commission’s 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, Respondent’s 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.)

11

Moreover, 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).
15

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 172179 Tampa, FL 33672-0179 Telephone No.: (813) 224-9100 Telecopier No.: (813) 224-9109 -andJuan 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

16

CERTIFICATE OF SERVICE I certify that on August 18, 2005, a copy of the foregoing, Memorandum of Law in Support of Respondent’s 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

17

IN THE SUPREME COURT OF FLORIDA

Case No. SC03-1171

INQUIRY CONCERNING A JUDGE, NO. 02-487

RE: GREGORY P. HOLDER

RESPONDENT’S INITIAL BRIEF

David B. Weinstein Florida Bar No.: 604410 Kimberly S. Mello Florida Bar No.: 0002968 Bales Weinstein Post Office Box 172179 Tampa, Florida 33672-0179 Telephone: (813) 224-9100 Telecopier: (813) 224-9109

Juan P. Morillo Florida Bar No.: 0135933 Steven T. Cottreau Specially Admitted Sidley Austin LLP 1501 K Street, N.W. Washington, D.C. 20005 Telephone: (202) 736-8000 Telecopier: (202) 736-8711

Counsel for Judge Gregory P. Holder

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 THE ATTORNEYS’ FEES INCURRED IN HIS SUCCESSFULL DEFENSE OF THE JQC’S CHARGES UNDER THE THORNBER DOCTRINE............................................................................................ 14 A. B. II. This litigation arose out of or in connection with the performance of Judge Holder’s official duties................................. 16 This litigation served a public purpose............................................ 21

NEITHER THE DOCTRINE OF SOVEREIGN IMMUNITY, NOR ANY OTHER DOCTRINE OR STATUTE, PROHIBITS OR LIMITS THE AWARD OF ATTORNEYS’ FEES IN THIS PROCEEDING.......... 23 NO ADDITIONAL PARTIES ARE PROPER OR NECESSARY FOR THE ADJUDICATION OF JUDGE HOLDER’S ENTITLEMENT TO ATTORNEYS’ FEES............................................. 26

III.

CONCLUSION................................................................................................ 30 CERTIFICATE OF SERVICE.......................................................................... 32 CERTIFICATE OF COMPLIANCE ................................................................. 32

i

TABLE OF AUTHORITIES CASES Am. Home Assurance Co. v. Nat’l 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 Dep’t 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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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 OTHER AUTHORITIES 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. Comm’n R. 15(a)....................................................................... 16 Op. Att’y Gen. Fla. 93-21 (1993)....................................................................... 15

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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 Holder’s] 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. [Commission’s 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

1

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

1

Judge 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 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). The JQC Hearing Panel did not rule dispositively on the evidentiary motions prior to trial. Instead, evidence at trial was taken subject to such motions, which were ultimately denied by the Order of Dismissal.
2

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 Holder’s 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 litigant’s 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

3

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.

2

Pursuant to its September 8, 2005 Order (“Order”), the Court did not require the Commission to provide a trial transcript. However, Judge Holder’s counsel obtained uncertified trial transcripts of certain witnesses’ testimony, which are included in the Appendix to the Initial Brief and cited as “_____Tr. p. _____ at App. ____.” While these trial transcripts are not certified, Judge Holder does not believe that the accuracy of the transcribed testimony cited by Respondent is reasonably subject to dispute. However, should such a dispute arise, Judge Holder will respectfully request an opportunity to supplement the record with a certified transcript.

4

In its response to Judge Holder’s 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 JQC’s sole argument was that there was an insufficient nexus “with the performance of Judge Holder’s official duties as a Circuit Court Judge to satisfy the first prong of the Thornber list [sic].” [JQC Resp. pp. 5-6, at App. 5.] Judge Holder subsequently filed a Memorandum of Law in Support of Respondent’s Motion for Award of Attorneys’ Fees as well as Respondent’s Request for Oral Argument. On December 2, 2005, this Court entered an Order granting Judge Holder’s Request and ordering additional briefing on the following issues: a) The specific basis and authority for an award of attorneys’ fees in this case; Any prohibitions or limitations with regard to a monetary award in this case including, but not limited to, issues of sovereign immunity or otherwise; and The joinder of any additional parties, if any, necessary or proper for a full determination of issues presented.

b)

c)

3

The Commission’s Response to Respondent’s Motion for Award of Attorneys’ Fees will be cited as “JQC Resp. p. ____, at App. _____.”
5

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

6

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 Holder’s bailiff, Sylvia Morgan, discovered former Judge Robert Bonanno in Judge Holder’s chambers, after normal business hours, while Judge Holder was out of state on Air Force Reserve duty. [Sylvia Gay’s

4

Since taking the bench, Judge Holder has been described as a jurist of “unquestioned 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.
7

(n/k/a Sylvia Morgan) grand jury testimony (Oct. 11, 2000), pp. 55-60, at App. 9.]5 Judge Bonanno left Respondent’s 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 Holder’s cooperation, the investigation’s 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 at App. 10.] Del Fuoco testified that the -9, unmarked envelope contained a unsigned typewritten note to the effect that “I n 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

5

Transcript of Grand Jury Testimony of Sylvia Gay also is available in Supreme Court Case No. SC01-2078, Inquiry Concerning a Judge, No. 00-261, Re: Robert H. Bonanno.
8

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 Attorney’s 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 Attorney’s 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 Commission’s 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 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 [Commission’s Response to Resp.’s 1st Req. for Admissions ¶ 1, at App. 11.];

9

Both the n and the manila envelope (i) inexplicably ote vanished from the U.S. Attorney’s Office and (ii) were never forensically tested for fingerprints, DNA, or otherwise to attempt to identify their source [Del Fuoco Trans., pp. 53-56, at App. 10.]; No original of Judge Holder’s actual AWC paper was ever located [Commission’s Response to Resp.’s 1st Req. for Admissions ¶ 1, at App. 11.]; and Judge Holder and four third-party witnesses who saw Judge Holder’s actual paper at or about the time he submitted it to the Air War College swore that the purported Holder paper was not genuine 6 [Vento Dep. pp. 71, 73, at App. 12.]; [Affidavit of Lt. Col. James Russick ¶ 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 Commission’s 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 wellsettled 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
6

The depositions of John Vento and Ken Lawson were admitted into evidence during the trial due to their unavailability. This is not an appellate proceeding. Therefore, Respondent has not included a section on the applicable standard of review.
10

7

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 Holder’s 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 Holder’s participation in that investigation. Significantly, the Judicial Canons required Judge Holder’s 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 Holder’s judicial duties to justify his suspension from the bench—despite 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 Holder’s official duties. Not surprisingly, the Commission has conceded the second prong of the Thornber test—that 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

11

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 Holder’s position as a jurist, but restored or enhanced public confidence in the judiciary. Judge Holder’s 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 agency’s 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

12

sovereign immunity into a sword not a shield in direct contravention of Florida law. Finally, in determining Judge Holder’s 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 Court’s 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 Court’s behalf.

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ARGUMENT I. JUDGE HOLDER IS ENTITLED TO REIMBURSEMENT OF THE ATTORNEYS’ FEES INCURRED IN HIS SUCCESSFULL DEFENSE OF THE JQC’S CHARGES UNDER THE THORNBER DOCTRINE. 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 r is to avoid the chilling effect that a denial of ule 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. 2. 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
14

the litigation arose out of or in connection with the performance of his or her official duties; and the litigation served a public purpose.

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, Florida’s 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 (“Thornber test”) is met. Op. Att’y Gen. Fla. 93-21 (1993). This Court has held that these opinions, while not binding, are highly persuasive. Am. Home Assurance Co. v. Nat’l 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 defense—which could lead to financial ruin—on the other. See In re Hapner, 737 So. 2d 1075, 1077 (Fla. 1999) (“an accused judge should not be placed in the

15

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. Comm’n R. 15(a). Florida law does not require a judge to make such a Hobson’s choice. Instead, as set forth below, Judge Holder is entitled to an award of attorneys’ fees pursuant to the Thornber doctrine. A. This litigation arose out of or in connection with the performance of Judge Holder’s official duties.

The first prong of the Thornber test focuses on whether the litigation “arise[s] out of or in connection with the performance of [Judge Holder’s] 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 Holder’s participation in the courthouse corruption investigation. Significantly, Judge Holder’s 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 another judge 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 Fuoco’s Army Reserve Office door.

16

(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 him—he 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 duties....” Codes of Jud. Conduct, Canon 3D(3) (emphasis added). It was Judge Holder’s discharge of his “judicial duties” that motivated an anonymous person or persons to steal Judge Holder’s actual AWC paper from his chambers. Special Counsel for the JQC effectively conceded this point during closing argument when he stated that Holder’s actual paper and the Hoard paper were stolen from Judge Holder’s 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
9

Detective Bartoszak testified at trial that the courthouse corruption investigation team was concerned that Judge Holder’s 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 to communicate with the authorities. [Bartoszak Tr. pp. 7-8, at App. 3.]

17

Papers was slipped under the door of Mr. Del Fuoco—who had been the prosecutor assigned to that case—demonstrates 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 Holder’s 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 “absolutely certain” that the purported Holder paper was not his paper. [Holder Tr. p. 76, at App. 6.]; John Vento, a respected member of The Florida Bar and retired Air Force Colonel, reviewed Judge Holder’s AWC paper shortly after it was written and testified that the purported Holder paper “cannot be the same paper . . . [n]o doubt in my mind about it.” [Vento Dep. pp. 71, 73, at App. 12]; James Russick, another respected member of The Florida Bar and retired Air Force Lieutenant Colonel, testified that he also reviewed the actual Holder paper and did not “recognize any part of this [purported Holder] paper as being [Judge Holder’s] work.” [Aff. of Lt. Col. Russick ¶ 9, at App. 13.];

18

Ken Lawson, a former federal prosecutor, testified that he did not notice any similarities between the Hoard paper and the actual Holder paper that he had received from Judge Holder in early 1998, and that he never gave Jeffrey Del Fuoco a graded copy of Judge Holder’s paper, directly refuting Mr. Del Fuoco’s testimony. [Lawson Dep. pp. 15, 16, at App. 14.]; Lorraine Nasco, Judge Holder’s former judicial assistant, testified that the purported Holder paper was 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 and professor of linguistics, carefully examined Judge Holder’s writing style, syntax, and use of grammatical 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 Judge Holder 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 Holder’s judicial duties to justify his suspension from the bench—despite the fact that the alleged conduct took place over five

19

years earlier. 10 For the Commission to now argue that this litigation arises neither out of nor in connection with the performance of Judge Holder’s official duties— particularly given the overwhelming evidence presented at trial—is, 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 duty—cooperating with a law enforcement investigation of alleged courthouse corruption. Accordingly, this litigation clearly arose out of or in connection with the performance of Judge Holder’s 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 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.” [Commission’s 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, either with or without compensation, while . . . [this matter] is pending.” [Commission’s Am. Order to Show Cause, at App. 2.]

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B.

This litigation served a public purpose.

The Commission has conceded that this litigation clearly served a public purpose stating: Unquestionably, the resolution of the highly publicized charges against Judge Holder and matters relating thereto served a public purpose.... [JQC Resp. pp. 5-6, at App. 5 (emphasis added)]. The related matters

acknowledged by the Commission involve Judge Holder’s participation as an undercover agent in the courthouse corruption investigation. [Id. at p. 6 n.1] The decision of the Commission to concede the public purpose prong of the Thornber test is not surprising. From its inception, this proceeding has been highly

publicized and viewed as inextricably entwined with the courthouse corruption investigation, in which Judge Holder was a cooperating witness. [Appendix to Respondent’s Motion for Award of Attorneys’ Fees, filed August 9, 2005.] Thus, it simply cannot be reasonably disputed that this proceeding directly raised issues relating to the public’s confidence in, and proper functioning of, the judiciary, particularly in Hillsborough County, Florida. Accordingly, the public clearly had an interest in, and the judiciary the responsibility to ensure, the proper functioning of the JQC process as it related to these highly publicized Charges. Thornber, 568 So. 2d at 917 (public had interest in knowing that the proper procedures were being followed with regard to recall petition to remove council members from office).

21

Moreover, this Court has clearly recognized that there is a public purpose to be served in protecting public officials from improper charges. Thornber, 568 So. 2d at 917 (there is a public purpose to be served in the City “protecting its officers from untimely and illegal recall petitions”). The successful defense of Judge Holder resulted in an accomplished and respected jurist remaining on the bench. Indeed, Judge Holder is extremely well regarded in both the legal community and the community at large. He was elected by the voters of Hillsborough County with over 63% of the vote when he ran for an open County Court judgeship. [Holder Tr. p. 55, at App. 6.] Throughout his tenure on the bench, Judge Holder has not only carried a significant case load, but has earned the confidence and respect of the citizens of Hillsborough County as well as his peers. This is exemplified by the fact that in 2000, Judge Holder was selected by his peers as the Judge Patton Jurist of the Year for the Thirteenth Judicial Circuit. [Id. at p. 60] In addition, because of Judge Holder’s vindication, 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. Ensuring the overall effective and efficient functioning of a government body—in this case, the judiciary, has been repeatedly recognized as serving a public purpose. Thornber, 568 So. 2d at 917; See also Estes v. City of N. Miami Beach, 227 So. 2d 33 (Fla. 1969); Miller v. Carbonelli, 80 So. 2d 909, 909 (Fla. 1955). Ultimately, Judge

22

Holder’s successful defense of the Charges not only restored or enhanced public confidence in his position as a jurist, but restored or enhanced public confidence in the judiciary, and has prompted discussion regarding whether reform of the JQC is appropriate. Based on these factors, Judge Holder’s defense of the JQC

proceeding clearly served a public purpose. II. NEITHER THE DOCTRINE OF SOVEREIGN IMMUNITY, NOR ANY OTHER DOCTRINE OR STATUTE, PROHIBITS OR LIMITS THE AWARD OF ATTORNEYS’ FEES IN THIS PROCEEDING. The doctrine of sovereign immunity is a “fundamental tenet of AngloAmerican jurisprudence” that prohibits suits against the State. Am. Home

Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla. 2005). Accordingly, under the Florida Constitution, no suit can be brought against the State unless authorized by the Legislature through general law. Art. 3, § 22, Fla. Const. This proceeding is simply not a suit against the State. Rather, the

Commission, an “element” of the State courts system, investigated and made the decision to institute this proceeding against Judge Holder. See § 29.004, Fla. Stat. (declaring the JQC to be an “element” of the State courts system for purposes of funding). When, as here, the State voluntarily decides to bring an action, it cannot hide behind the cloak of sovereign immunity. See Dade County v. Carter, 231 So. 2d 241 (Fla. 3d DCA 1970) (when the State brings an action, it cannot hide behind

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the cloak of sovereign immunity); § 768.14, Fla. Stat. (waiving sovereign immunity when the State institutes an action in tort); Provident Mgmt. Corp. v. City of Treasure Island, 796 So. 2d 481 (Fla. 2001) (sovereign immunity does not apply “to restrict award of damages against a governmental entity for the erroneous issuance of a temporary injunction”). For this reason, the doctrine of sovereign immunity does not apply to this proceeding. Indeed, even in suits brought against the State, the doctrine is not a universal concept except in tort suits—which this proceeding was not. As this Court has stated: As to tort actions, the rule is universal and unqualified unless relaxed by the State, but in other fields, it is not universal in application and cannot be said to cover the field like the ‘dew covers Dixie.’ State Road Dep’t of Fla. v. Tharp, 1 So. 2d 868 (Fla. 1941). Thus, among other things, sovereign immunity does not afford protection against an unconstitutional statute, against a duty imposed on a State officer by statute, or against illegal acts of the State. In fact, it has been expressly held that sovereign immunity “does not apply to suits in which the interest of the State is merely in the vindication of its laws, or their enforcement as affecting the public at large or the rights of individuals or corporations.” State ex rel. Fl. Dry Cleaning and Laundry Board v. Atkinson, 188 So. 834 (Fla. 1938).

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Moreover, Judge Holder’s right to be reimbursed for his attorneys’ fees at public expense has expressly been made part of Florida law. Art. 12, § 6(a), Fla. Const. (laws in effect upon 1968 revision to Florida Constitution remain in force in this state). Therefore, 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. In essence, this would have the effect of j dicially u abolishing a common law right—at least in this context. See, e.g., State of Fla. v. Koch, 582 So. 2d 5 (Fla. 1 DCA 1991) (sovereign immunity statute does not st abolish common law right in existence as part of the laws of Florida of 1968); Kluger v. White, 281 So. 2d 1 (Fla. 1973). This, of course, is almost never done. See State v. Egan, 287 So. 2d 1, 6-7 (Fla. 1973). Consequently, Judge Holder would have been forced to defend a complex, protracted, and very expensive case because of a State agency’s deliberate decision to proceed against him, but without meaningful legal recourse for the reasonable expenses that he has necessarily incurred. Such an application would transform the doctrine of sovereign immunity into a sword not a shield. Provident Mgmt. Corp., 796 So. 2d at 487 (sovereign immunity intended to be a shield not a sword); See also Am. Home Assurance Co., 908 So. 2d at 471 (sovereign immunity intended to protect government from profligate lawsuits). Accordingly, for these reasons, sovereign immunity simply should not, and does not, apply in this circumstance.

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To find otherwise would render would render a public official’s right to reimbursement “nothing more than a tinkling of empty words.” State Road Dept. of Florida, 1 So. 2d at 870. III. NO ADDITIONAL PARTIES ARE PROPER OR NECESSARY FOR THE ADJUDICATION OF JUDGE HOLDER’S ENTITLEMENT TO ATTORNEYS’ FEES. In determining whether Judge Holder is entitled 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 Court’s 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 J udge Holder does not believe that the SCA is a necessary party. See Fla. R. Jud. Admin. 2.030(e). Importantly, funding for the state courts system, which includes the Commission, is provided by state revenues appropriated by general law. Art. 7, § 1, Fla. Const. (“no money shall be drawn from the treasury except in pursuance of appropriation made by law”); Art. 5 § 14(c), Fla. Const. (Court has no power to fix appropriations). This Court is vested with the responsibility of submitting budget

26

requests to the legislature for the purposes of obtaining the necessary funding. Fla. R. Jud. Admin. 2.030(e). 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 Court’s behalf. Id. In fact, counsel for Judge Holder previously placed the SCA on notice of Judge Holder’s attorneys’ fee claim. [Letter from David B. Weinstein to the Hon. Manuel Menendez (July 25, 2005), at App. 16.] Ultimately, the failure to establish an appropriate funding mechanism would render Judge Holder’s entitlement to attorneys’ fees illusory. As recognized by Florida courts, “a right without a remedy is a ghost in the law and difficult to grasp.” Dade County v. Certain Lands, 247 So. 2d 787, 790 (Fla. 3d DCA 1971). The most obvious funding mechanism would be the submission of a line item in the Court’s yearly budget request. A similar procedure is followed in the federal system. Specifically, 28 U.S.C. § 361 provides as follows: Upon the request of a judge whose conduct is the subject of a complaint under this chapter, the judicial council may, if the complaint has been finally dismissed under section 354(a)(1)(B), recommend that the Director of the Administrative Office of the United States Courts award reimbursement, from funds appropriated to the Federal judiciary, for those reasonable expenses, including attorneys' fees, incurred by that judge during the investigation which would not have been incurred but for the requirements of this chapter.

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This statute makes the Director of the Administrative Office of the United States Courts (the apparent federal equivalent of the SCA) the person responsible for obtaining the necessary appropriation. Under the statute, the Director regularly submits a specific appropriation request to Congress. Congress, in turn, approves a general appropriations bill for the entire amount of salaries and other expenses, from which a specific portion of the amount appropriated is allocated for reimbursement of attorneys’ fees or other expenses incurred by judges in successfully defending themselves in disciplinary proceedings. The Director then approves reimbursement of legal expenses, as recommended by the Circuit Judicial Council. 11 Another recognized funding mechanism is through an established Court contingency or trust fund. This process is followed in Delaware, which has a rule that provides for reimbursement to private counsel for attorneys’ fees incurred by judges in disciplinary proceedings. Del. R. Ct. 68. If an award of attorneys’ fees is approved in accordance with this rule, the Supreme Court Administrator pays the amount from the Supreme Court’s “pro hac vice” fund, which is comprised of

11

This information was provided by Mr. William Burchill, General Counsel for the Administrative Office of the United States Courts.

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money collected yearly from pro hac vice applicants.12 In Florida, based on research conducted to date, the Court presently appears to have existing trust or contingency funds for different purposes. However, it is not clear at this juncture whether any of those funds could be utilized for this purpose and, if so, whether legislative approval would be required. Based on the above analysis, no other additional parties, other than perhaps the SCA, appear to be proper or necessary parties to any part of this attorneys fees proceeding. However, while a public official’s common law right to

reimbursement of attorneys’ fees has been in existence for well over a hundred years, it is a very rare occurrence for a Florida JQC matter to proceed to trial and for the respondent judge to prevail. Indeed, the issue of reimbursement in this context has never been directly addressed by this Court. Therefore, if additional parties or possible other avenues for funding are identified, Judge Holder respectfully requests that he be afforded the opportunity to supplement his brief on this issue.

12

Information relating to Delaware procedure was provided by Ms. Margaret Naylor, the Clerk of the Court on the Judiciary, and Mr. Stephen Taylor, the Supreme Court Administrator. Mr. Taylor further advised that if the contingency funds are insufficient, the Court would inform the State Budget Director that this was a legitimate bill that needed to be paid on behalf of a state officer.
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CONCLUSION A decision by this Court that Judge Holder is entitled to recover reasonable attorneys’ fees would not be the beginning of a “raid on the 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 20 years ago in 1986. In this rare case, Judge Holder denied all wrongdoing and has prevailed, notwithstanding a lengthy and vigorous prosecution by the JQC. As set forth above, this litigation clearly arose out of or in connection with the performance of Judge Holder’s official duties and served a public purpose. Under these

circumstances, Judge Holder is entitled to be reimbursed from public funds for his attorneys’ fees incurred in his successful defense against the Commission’s Charges. Accordingly, Judge Holder respectfully requests that this Court enter an Order granting reimbursement of his reasonable attorneys’ fees in accordance with the Thornber doctrine. (Attorney signature appears on following page.)

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Dated: February 3, 2006. Respectfully Submitted,

David B. Weinstein Florida Bar No.: 0604410 Kimberly S. Mello Florida Bar No.: 0002968 Bales Weinstein Post Office Box 172179 Tampa, FL 33672-0179 Telephone: (813) 224-9100 Telecopier: (813) 224-9109 -andJuan P. Morillo Florida Bar No.: 0135933 Steven T. Cottreau Specially Admitted Sidley Austin LLP 1501 K Street, N.W. Washington, D.C. 20005 Telephone: (202) 736-8000 Telecopier: (202) 736-8711 Counsel for Judge Gregory P. Holder

31

CERTIFICATE OF SERVICE I certify that on February 3, 2006, a copy of the foregoing, Respondent’s Initial Brief, 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.

Attorney CERTIFICATE OF COMPLIANCE I certify that this brief complies with the font requirements of rule 9.210(a)(2) of the Florida Rules of Appellate Procedure.

Attorney

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IN THE SUPREME COURT OF FLORIDA

Case No. SC03-1171

INQUIRY CONCERNING A JUDGE, NO. 02-487

RE: GREGORY P. HOLDER

APPENDIX TO RESPONDENT’S INITIAL BRIEF

David B. Weinstein, Esquire Florida Bar No. 0604410 Kimberly S. Mello, Esquire Florida Bar No. 0002968 BALES WEINSTEIN P.O. Box 172179 Tampa, Florida 33672-0179 Telephone: (813) 224-9100 Telecopier: (813) 224-9109

Juan P. Morillo Florida Bar No: 0135933 Steven T. Cottreau Specially Admitted Sidley Austin LLP 1501 K Street, N. W. Washington, D. C. Telephone: (202) 736-8000 Telecopier: (202) 736-8711

Counsel for Judge Gregory P. Holder

INDEX TO APPENDIX Commission’s Notice of Formal Charges dated July 16, 2003........................... A-1 Commission’s Amended Order to Show Cause dated August 11, 2003 ............. A-2 Excerpts of Trial Testimony of Detective James Bartoszak............................... A-3 Order of Dismissal dated June 23, 2005 ........................................................... A-4 Commission’s Response to Respondent’s Motion for Attorneys’ Fees and Costs dated August 8, 2005....................................................................... A-5 Excerpts of Trial Testimony of Judge Gregory P Holder................................... A-6 Affidavit of Colonel John S. Odom dated June 4, 2003..................................... A-7 Excerpts of Trial Testimony of Lorraine Nasco................................................ A-8 Excerpts of the Grand Jury Testimony of Sylvia Gay (n/k/a Sylvia Morgan) ......................................................................................................... A-9 Excerpts of Trial Testimony of Jeffrey J. Del Fuoco....................................... A-10 Commission’s Response to Respondent’s First Request for Admissions.......... A-11 Excerpts of the May 28, 2005 Deposition of John Vento ................................ A-12 Affidavit of James Russick dated August 5, 2003........................................... A-13 Excerpts of the February 11, 2005 Deposition of Kenneth Lawson ................. A-14 Excerpts of the May 4, 2005 Deposition of Dr. John Crow............................. A-15 Correspondence from David B. Weinstein to the Hon. Manuel Menendez dated July 25, 2005 ...................................................................... A-16

2

IN THE SUPREME COURT OF THE
STATE OF FLORIDA

INQUIRY CONCERNING A JUDGE, GREGORY P. HOLDER, CASE NO. 02-487

SC03-1171

FINDINGS AND RECOMMENDATION ON COSTS

Pursuant to the Order of the Supreme Court, the Hearing Panel of the Florida Judicial Qualifications Commission requested and received from Judge Holder detailed schedules setting forth the costs incurred in successfully responding to allegations in this cause. reviewed the costs pursuant to Administration. The Hearing Panel has carefully Florida Rules of Judicial

Rule 2.310,

The Commission, after consulting with Judge Holder, reviewing Judge Holder's detailed schedule of costs, and analyzing the Florida Rules of Judicial Administration and relevant case law, has concluded costs should be awarded to Judge Holder in the amount of seventy thousand dollars ($70,000).

Therefore the Hearing Panel hereby recommends to the Court that it award costs in favor of Judge Holder in the amount of seventy thousand dollars ($70,000).

DONE AND ORDERED this 17th day of August, 2009.

FLORIDA JUDICIAL QUALIFICATIONS COMMISSION

Judge Paul L. Backman Chairman, Hearing Panel Florida Judicial Qualifications Commission 111 0 Thomasville Road Tallahassee, FL 32303 (850) 488-1581

Copies furnished: David B. Weinstein, Esq. Counsel for Judge Holder Greenberg, Traurig Courthouse Plaza, Suite 160 625 East TWiggs Street Tampa, Florida 33602 (813) 318-5701 John Beranek, Esq. Counsel to the Hearing Panel Ausley & McMullen P.O. Box 391 Tallahassee, Florida 32302 (850) 244-9115 Brooke Kennerly Executive Director Judicial Qualification Commission 111 0 Thomasville Road Tallahassee, Florida 32303 (850) 488-1581

Michael L. Schneider, Esq. General Counsel Judicial Qualifications Commission 111 0 Thomasville Road Tallahassee, Florida 32303 (850) 488-1581

Supreme Court of Florida

TUESDAY, SEPTEMBER 15, 2009
CASE NO.: SC03-1171

INQUIRY CONCERNING RE: GREGORY P. HOLDER A JUDGE, NO. 02-487 ___________________________________________________________________ Upon consideration of the Motion to Tax Costs, the Hearing Panel of the Judicial Qualifications Commission's Findings and Recommendation, and the Stipulation on Costs, it is ordered that said recommendation and stipulation are approved and the Motion to Tax Costs is hereby granted. Judgment is entered for Judge Gregory P. Holder, for recovery of costs from the Judicial 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. A True Copy Test:

bm Served: HON. JAMES R. WOLF STEVEN T. COTTREAU JOHN R. BERANEK GREGORY W. KEHOE CHARLES P. PILLANS, III JUAN PABLO MORILLO MARVIN E. BARKIN JONATHAN C. KOCH DAVID BARNETT WEINSTEIN VIRGINIA ZOCK HOUSER MICHAEL LOUIS SCHNEIDER KIMBERLY STAFFA MELLO HON. JOHN PATRICK KUDER HON. GREGORY PAUL HOLDER, JUDGE