The Florida Bar, Interim Reply To Kenneth Marvin Review Closure of Castagliuolo Complaint

VIA UPS No.
1Z64589FP295240833 J une 7, 2013

Email: kmarvin@flabar.org
Kenneth Lawrence Marvin, Director of Lawyer Regulation
The Florida Bar
651 East J efferson Street
Tallahassee, Florida 32399-2300
RE: Interim reply to your email May 23, 2013; request review of closed complaint,
Eugene P Castagliuolo, The Florida Bar File No. 2013-10,162 (6D)
Dear Mr. Marvin:
This is a request for a review of the closure of my complaint against Mr. Castagliuolo, closed
May 13, 2013 by letter of Mr. Clark. (copy enclosed)
Thank you for your email of May 23, 2013 at 3:53 PM advising I will be on vacation all next
week, so there is no need for you to rush a response. on cronyism in the Tampa Branch Office
run by Susan Bloemendaal, Chief Branch Discipline Counsel. Earlier that day you emailed me in
part, I have not seen you present, nor am I aware of, any factual basis to support
your theory of cronyism. (copy enclosed)
Briefly, the theory of cronyism is not mine, but that of the American Bar Association (ABA)
as reported in ABAs McKay Report:
Local components, such as local bar investigative committees, foster cronyism
as well as prejudice against unpopular respondents. - ABA McKay Report
Local discipline components are a fatal defect in The Florida Bars lawyer discipline system.
The American Bar Association is the national representative of the legal profession. If the ABA
believes local discipline components foster cronyism, as shown in the McKay Report and the
Clark Report, then me and any reasonable person could conclude the truth of this fact is so well
known that it cannot be refuted. See Fla. Stat. 90.201-207, J udicial Notice.
In February 1992, the American Bar Association's McKay Commission issued a report entitled
Lawyer Regulation for A New Century: Report of the Commission on Evaluation of Disciplinary
Enforcement. One of the nine members of the McKay Commission that issued this Report to the
ABA was J ohn T. Berry, who is presently Director of the Legal Division of the Florida Bar.
The ABA McKay Report recommended the elimination of local discipline components because
local components foster cronyism, prejudice against unpopular respondents, and result in a lack
of uniformity in procedures and in the application of the rules of professional conduct. An earlier
ABA report reached a similar conclusion on local discipline components, the Special Committee
on Evaluation of Disciplinary Enforcement (Clark Committee) described in its report, "Problems
and Recommendations in Disciplinary Enforcement," (Clark Report) in J une, 1970.
Kenneth Lawrence Marvin J une 7, 2013
Director of Lawyer Regulation Page -2
Unfortunately, forty-three (43) years after the Clark Report, The Florida Bars discipline system
is based on five local discipline components, the five Branch Offices of The Florida Bar.
As for ACAP, the Attorney Consumer Assistance Program, The Bars Special Commission on
Lawyer Regulation chaired by Henry Coxe recommended in the "Coxe Report" ACAP style
screening of all written inquiries and complaints so that all questions concerning the conduct of
members of the Bar are addressed in a similar fashion. The Commission also recommended a
central intake system utilizing ACAP resources in Tallahassee. The reason for central ACAP
intake is clear: The Commission knew that some complaints, like my complaint against Mr.
Rodems, File No. 2013-10,271 (13E), would not be "addressed in a similar fashion" locally
where the attorney was favored.
Thank you and the Bars staff in Tallahassee for providing copies yesterday of the records I
requested. I appreciate the hard work of folks in Tallahassee, people like Mr. Littlewood, Ms.
Bateman, Donna McMahon and J enny J olinski. The records provided yesterday include the
following relevant to my forthcoming comprehensive response:
Ryan Christopher Rodems, TFB File No. 2013-10,271 (13E) - 246 pages
Eugene P Castagliuolo, The Florida Bar File No. 2013-10,162 (6D) - 204 pages
I have looked at, but not studied those records. Given the size of the files, and other pending
matters, it may be a few weeks until I can respond fully. Currently I am defending an improper
foreclosure of my home on a disputed HECM - a Home Equity Conversion Mortgage, a federal
reverse mortgage program administered by HUD. (12 USC 1715z20). I am reluctantly
appearing pro se due to indigence, as well as apparent blacklisting by the profession for Petition
No. 12-7747 to the Supreme Court of the United States. On May 14, 2013 Ghunise Coaxum
opened Case No. 20133090(5) an Unlicensed Practice of Law investigation of me, based on a
vexatious complaint by Mr. Rodems, for representing myself pro se in the foreclosure.
Unfortunately there is something very wrong in the Tampa Bay legal community, which is under
the jurisdiction of the Tampa Branch Office. Folks who complaint about wrongdoing in the
Thirteenth J udicial Circuit face retribution, and worse, as happened to a sitting judge.
Florida Circuit J udge Gregory Holder paid a heavy price for speaking out against wrongdoing in
the Thirteenth J udicial Circuit, almost $2 million and years of legal abuse. As set forth in my
Response to Order to Show Cause (Doc. 58) in case 5:10-cv-503-oc-WTH-TBS: (page 5)
The Thirteenth Circuit is notorious for wrongdoing. The price is high for confronting
judicial misconduct. In one example, Circuit J udge Gregory Holder spoke to the media
about judicial misconduct, and was a cooperating witness (2001-2002) in a federal
criminal investigation of corruption at the Hillsborough County Courthouse. In retaliation
the Florida J udicial Qualifications Commission (J QC) pursued two failed inquiries
against him, J QC Inquiry Nos. 01-303 and 02-487. J udge Holder spent many years and
$1.92 million successfully defending himself. On J une 23, 2005, the Hearing Panel of the
J QC voted unanimously to dismiss the charges against J udge Holder. This was the first
Kenneth Lawrence Marvin J une 7, 2013
Director of Lawyer Regulation Page -3
trial defense verdict against the J QC in almost twenty years. On September 15, 2009 the
Supreme Court of Florida, case no. SC03-1171, ordered entry of judgment for J udge
Holder for recovery of costs from the J QC in the amount of $70,000 for successfully
defending J QC Inquiry No. 02-487. J udge Holders actual expenses were $1,779,691.81
in legal fees, and cost of $140,870.79.
Public files in the above J QC cases are online on the Florida Supreme Court website:
http://www.floridasupremecourt.org/pub_info/jqcarchives.shtml
According to the public file, J udge Holders life was at risk for reporting judicial misconduct:
During 2001 and 2002, J udge Holder cooperated with the FBI in the courthouse
corruption investigation. [Bartoszak Tr. pp. 4-5, at App. 3.] Because of J udge 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.] Detective Bartoszak testified at trial that the courthouse
corruption investigation team was concerned that J udge Holders activities were being
monitored by targets of the investigation. J udge 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.]
Page 7, Response to Order to Show Cause (Doc. 58) case 5:10-cv-503-oc-WTH-TBS.
Mr. Marvin, do you think I am at risk, like J udge Holder was, for complaining about wrongdoing
in the Thirteenth J udicial Circuit? Enclosed you will find a separate volume appendix showing
some of the key documents in the J QC Inquiry Concerning J udge Gregory P. Holder, J QC Case
No. 02-487, Supreme Court Case No. SC03-1171. All the documents are online at the link:
http://www.floridasupremecourt.org/pub_info/summaries/briefs/03/03-1171/index.html
Sincerely,
Neil J . Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Enclosures
Cc: Gov. Rick Scott, VIA UPS No. 1Z64589FP295592847
Attorney General Pam Bondi, VIA UPS No. 1Z64589FP299160850
Chief-Assistant Attorney General Diana R. Esposito VIA UPS No. 1Z64589FP296544861
Email Cc: Gov. Scott, AG Bondi, AAG Esposito, ABA service list; Florida Bar service list;
Mr. Anderson, Chair, 13th Circuit J NC; Sixth Circuit Grievance Committee D.
The Florida Bar
Tampa Branch Office
4200 George J. Bean Parkway, Suite 2580
John F. Harkness, Jr.
Tampa, Florida 33607-1496
(813) 875-9821
Executive Director
www.FLORIDABAR.org
May 13,2013
Mr. Neil J. Gillespie
8092 S.W. 115th Loop
Ocala, FL 34481
Re: Complaint of Neil J. Gillespie against Eugene P. Castagliuolo
The Florida Bar File No. 2013-10,162 (6D)
Dear Mr. Gillespie:
After careful review and consideration of all tIle infonnation contained in the above-referenced
file, the Cllair of the Sixth Judicial Circuit Grievance Committee D, together with the
undersigned Bar Counsel, found no probable cause. This finding was based upon the conclusion
that there was insufficient evidence tllat Mr. Castagliuolo has violated the rules governing
attorney conduct.
Pursuant to tIle Bar's records retention schedule, the computer record and file will be disposed of
one year from the date of closing.
Sincerely,
c _. . ,tA/): r
~ ~
Leonard Evans Clark
Bar Counsel
LEC/cbs
Enclosure: Detennination of No Probable Cause by Bar Counsel and Committee Chair
-------------
/
IN THE SUPREME COURT OF FLORIDA
(Before a Grievance Committee)
In Re: The Matter of
Eugene P. Castagliuolo TFB No.: 2013-10,162 (6D)
/
RULE 3-7.3(d) DETERMINATION OF NO PROBABLE CAUSE BY BAR
COUNSEL AND COMMITTEE CHAIR
Pursuant to the provisions of Rule 3-7.3(d) of the Rules Regulating The Florida
Bar, the undersigned, by their signatures on this report, signify their concurrence in
a dismissal as to the referenced complaint. This matter arose out of an
Inquiry/Complaint filed by Neil Gillespie to the Florida Bar, on August 14, 2012.
The complaint alleged that you suffer from mental health issues which caused you
to ineffectively represent Mr. Gillespie. Additionally, Mr. Gillespie alleged that
you made numerous false allegations, accusing him of committing criminal acts.
Finally, Mr. Gillespie alleged that he was due a partial refund of fees due to your
inadequate representatioll. After careful review and consideration of all the
information contained in the file, the Chair of the Sixth, JUdic.ial
Circuit Grievance D, together with the undersigned Bar Couns.el, fOUIld
no probable cause.
This finding is based upon the conclusion that there is insufficient evidence that
you have violated any of the rules governing attorney conduct. Specifically, there
is insufficient evidence to show that you suffer from mental health issues that are
affecting your ability to practice law. Additionally, the allegations that you falsely
accused Mr. Gillespie of committing criminal acts are unsubstantiated. The
comments that you rnade, which are referenced by Mr. Gillespie in his complaint,
appear to reflect your belief that Mr. Gillespie's conduct constituted criminal
harassment. Furthermore, the statements warn Mr. Gillespie that if the conduct
continued you would report it to law enforcement. These statements do not violate
The Rules Regulating The Florida Bar.
finally, Mr. Gillespie alleged that he was entitled to a partial refund of fees
because you did not adequately represent him. The Florida Bar has no jurisdiction
over .fee disputes unless the amount of the fee is clearly excessive. Based upon a
review of the information provided, \\le have concluded that the fee charged \vas
not clearly excessive. Our opinion, however, has no effect on any legal obligations
or rights Mr. Gillespie may have regarding the bill for services. This is a separate
legal matter about which we can give no advice.
Accordingly, given all the circumstances surrounding this matter, it is our opinion
that there is no basis for further disciplinary proceedings. As a result, the complaint
against you will be dismissed. This letter does not constitute a disciplinary record
against you for any purpose. No right to appeal exists. Rule 3-7.4(i). The
designated reviewer has authority to seek review of this decision within thirty (30)
days by referral to the disciplinary review committee. A decision by the designated
reviewer not to seek review or expiration of the time in which to do so shall
preclude further proceedings in this matter. The records regarding this matter may
be disposed of one (1) year from the date of this decision.
Michael G. Stofer
Chair of the Sixth' udicial Circuit
Grievance Committee "D"
Dated this q!f"'- day of May, 2013.
Leonard Evans Clark
The Florida Bar
Tampa Branch Office
4200 George J. Bean Parkway, Suite 2580
Tampa, Florida 33607-1496
(813) 875-9821
Dated this J3 T ~ day of May,2013.
cc: Mr. Neil J. Gillespie, Complainant/
Sandra Fascell Diamond, Designated Reviewer
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THE FLORIDA BAR TAMPA, FL 33607

Visit our website: www.FLORIDABAR.org
Mr. Neil J. Gillespie
8092 S.W. 115th Loop
Ocala, FL 34481
PERSONAL AND CONFIDENTIAL
3448i :::3567 RI:167 IIIIII'J'IJ"II,IJII,I/IIIIll" I JI'lJ'1I1
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Neil Gillespie
From: "Kenneth L. Marvin" <kmarvin@flabar.org>
To: "Neil Gillespie" <neilgillespie@mfi.net>
Sent: Thursday, May 23, 2013 3:53 PM
Subject: Re: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young
Page 1of 7
6/7/2013
Mr. Gillespie,

I will be on vacation all next week, so there is no need for you to rush a response.
------------------------------------------
Kenneth L. Marvin
Staff Counsel
Director, Lawyer Regulation
651 E. Jefferson Street
Tallahassee, Florida 32399

From: "Neil Gillespie" <neilgillespie@mfi.net>
To: "Kenneth L. Marvin" <kmarvin@flabar.org>, "Gwynne Alice Young" <gyoung@carltonfields.com>
Cc: "Gov. Rick Scott" <Rick.Scott@eog.myflorida.com>, "AG Pam Bondi" <pam.bondi@myfloridalegal.com>, "Laurel G Bellows"
<lbellows@bellowspc.com>, "James R. Silkenat" <jsilkenat@sandw.com>, "Ellyn Rosen" <Ellyn.Rosen@americanbar.org>, "Myles Lynk"
<Myles.Lynk@asu.edu>, "Joseph Bluemel" <jbluemel@hamsfork.net>, "Nancy Cohen" <ncohen@mcpclaw.com>, "Dolores Dorsainvil"
<DorsainvilD@dcobc.org>, "Linda Gosnell" <lindagosnell1@gmail.com>, "James Hill" <jhill@zkslaw.com>, "James A Kawachika"
<JAK@opglaw.com>, "Amy Lin Meyerson" <amy@almesq.com>, "Cleaveland Miller" <cmiller@semmes.com>, "William W Wilhelm"
<wwilhelm@flabar.org>, "Theodore P Littlewood" <tlittlew@flabar.org>, "Susan Varner Bloemendaal" <sbloemen@flabar.org>, "Paul F
Hill" <phill@flabar.org>, "Leonard E Clark" <LClark@flabar.org>, "Kenneth Lawrence Marvin" <kmarvin@flabar.org>, "John Thomas
Berry" <jberry@flabar.org>, "John F Harkness" <jharkness@flabar.org>, "Jeffrey Carter Andersen" <candersen@bushross.com>, "James N
Watson" <jwatson@flabar.org>, "Gwynne Alice Young" <gyoung@carltonfields.com>, "Eugene Keith Pettis" <epettis@hpslegal.com>,
"Annemarie Craft" <acap@flabar.org>, "Mary Ellen Bateman" <mbateman@flabar.org>, "Gregory Harrison Fisher" <fishlaw@gte.net>,
"Belinda Barndollar Lazzara" <blazzara@mslo-law.com>, "Maribeth L. Wetzel" <beth@goldmanwetzel.com>, "Michael G Stofer"
<mstofer@deaconandmoulds.com>, "Sandra Fascell Diamond" <sdiamond@wdclaw.com>
Date: 05/23/2013 02:38 PM

Kenneth L. Marvin
Staff Counsel
651 E. J efferson Street

Dear Mr. Marvin,
Thank you for your email. I hope to have a comprehensive response to you sometime next week, but it
could take longer. BTW, I just checked the Attorney Generals web page, and Pam Bondi is still the
Attorney General for Florida, here is the link http://myfloridalegal.com/
Ryan Christopher Rodems is not the Attorney General, thereby making his representation of the State of
Florida J une 21, 2011 in my federal lawsuit unlawful and unethical. Only the Attorney General of
Florida may represent the State of Florida in a federal court action, Fla. Const. Art IV 4, F.S. 16.01,
and the holding of State ex rel. Shevin v. Weinstein.
Sincerely,
Neil J . Gillespie
8092 SW 115th Loop
----- Original Message -----
From: Kenneth L. Marvin
To: Neil Gillespie
Cc: Annemarie Craft ; Eugene Keith Pettis ; Gwynne Alice Young ; J ohn Thomas Berry ; J ohn F
Harkness ; J ames N Watson ; Leonard E Clark ; Mary Ellen Bateman ;
mstofer@deaconandmoulds.com ; Paul F Hill ; Susan Varner Bloemendaal ; Sandra Fascell Diamond ;
Theodore P Littlewood ; William W Wilhelm .
Sent: Thursday, May 23, 2013 1:22 PM

Dear Mr. Gillespie,

President Young has asked me to respond to your below email. We have a policy for
review of closed complaints. Since this complaint was closed by bar counsel with the
concurrence of the grievance committee chair, the review is properly conducted by
the designated reviewer, Sandra Diamond. When she has concluded her review, you
will be notified in writing.

I understand that you believe that cronyism has played a part in Mr. Clark's dismissal
of your complaints and that Ms. Diamond is part of that cronyism. Simply because
Mr. Clark has disagreed with you does not mean that cronyism is a factor in his
decision. I have not seen you present, nor am I aware of, any factual basis to support
your theory of cronyism. Do you have any evidence that Mr. Clark, Ms. Bloemendaal,
Mr. Stofer, or Sandra Diamond have any personal or business relationship with Mr.
Rodems that would cause a conflict of interests? If you do, then please let me know.

You state that there is a rule that requires ACAP to process your complaint. I am not
aware of any rule that requires ACAP to process any complaint. Even if your second
complaint against Mr. Rodems had been screened by Mr. Littlewood and Mr.
Littlewood determined that the matter should be referred to a branch office, Mr. Clark
would still have received the case.

In conclusion, we will not be asking the ABA to appoint a special grievance committee
Page 2of 7
6/7/2013
to review your complaints and we will not be appointing a special grievance
committee to review your complaints. Pursuant to our policy, Ms. Diamond will be
reviewing Mr. Clark's and Mr. Softer's decision to close the above referenced file. She
has the authority to either re-open the file or agree with its closure.

------------------------------------------
Kenneth L. Marvin
Staff Counsel
651 E. Jefferson Street

From: "Neil Gillespie" <neilgillespie@mfi.net>
To: "Gwynne Alice Young" <gyoung@carltonfields.com>
Cc: "Laurel G Bellows" <lbellows@bellowspc.com>, "Gov. Rick Scott" <Rick.Scott@eog.myflorida.com>, "AG Pam Bondi"
<pam.bondi@myfloridalegal.com>, "James R. Silkenat" <jsilkenat@sandw.com>, "Ellyn Rosen" <Ellyn.Rosen@americanbar.org>, "Myles
Lynk" <Myles.Lynk@asu.edu>, "Joseph Bluemel" <jbluemel@hamsfork.net>, "Nancy Cohen" <ncohen@mcpclaw.com>, "Dolores
Dorsainvil" <DorsainvilD@dcobc.org>, "Linda Gosnell" <lindagosnell1@gmail.com>, "James Hill" <jhill@zkslaw.com>, "James A
Kawachika" <JAK@opglaw.com>, "Amy Lin Meyerson" <amy@almesq.com>, "Cleaveland Miller" <cmiller@semmes.com>, "William W
Wilhelm" <wwilhelm@flabar.org>, "Theodore P Littlewood" <tlittlew@flabar.org>, "Susan Varner Bloemendaal" <sbloemen@flabar.org>,
"Paul F Hill" <phill@flabar.org>, "Leonard E Clark" <LClark@flabar.org>, "Kenneth Lawrence Marvin" <kmarvin@flabar.org>, "John
Thomas Berry" <jberry@flabar.org>, "John F Harkness" <jharkness@flabar.org>, "Jeffrey Carter Andersen" <candersen@bushross.com>,
"James N Watson" <jwatson@flabar.org>, "Gwynne Alice Young" <gyoung@carltonfields.com>, "Eugene Keith Pettis"
<epettis@hpslegal.com>, "Annemarie Craft" <acap@flabar.org>, "Mary Ellen Bateman" <mbateman@flabar.org>, "Gregory Harrison
Fisher" <fishlaw@gte.net>, "Belinda Barndollar Lazzara" <blazzara@mslo-law.com>, "Maribeth L. Wetzel" <beth@goldmanwetzel.com>,
"Michael G Stofer" <mstofer@deaconandmoulds.com>, "Sandra Fascell Diamond" <sdiamond@wdclaw.com>
Date: 05/22/2013 01:36 PM
Subject: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young

VIA UPS No. 1Z64589FP297384676
Email gyoung@carltonfields.com

Gwynne Alice Young
President, The Florida Bar
Carlton Fields, P.A.
4221 W. Boy Scout Boulevard, Suite 1000
Tampa, FL 33607-5780
RE: Response by Leonard Clark May 16, 2013 to my complaint J anuary 4, 2013, the unauthorized
representation by Ryan Christopher Rodems of the State of Florida in a federal court action, Case No.
5:10-cv-503, U.S. District Court, Middle District, Florida.
Dear Bar President Young:
Mr. Clark responded for you to my complaint that Mr. Rodems was not authorized to represent the State
Page 3of 7
6/7/2013
of Florida in a federal court action J une 21, 2011, with the excuse that "Your secondary complaint was
incorporated into your original complaint against Mr. Rodems." and dismissed.
This is not acceptable. My complaint of J anuary 4, 2013 made new, specific accusations against Mr.
Rodems, but was apparently improperly diverted from The Florida Bars ACAP central complaint intake
program. My 2013 complaint alleged particular misconduct by Mr. Rodems:
Mr. Rodems is a lawyer in private practice who engaged in an "unauthorized" practice of law by
representing the State of Florida J une 21, 2011 in my federal lawsuit. Only the Attorney General of
Florida may represent the State of Florida in a federal court action, Fla. Const. Art IV 4, F.S. 16.01,
and the holding of State ex rel. Shevin v. Weinstein. See Exhibit 1.
The Rule 3-7.3(d) closure of TFB v Ryan Christopher Rodems File No. 2013-10,271 (13E) does not
respond to the accusations I made J anuary 4, 2013. The Rule 3-7.3(d) determination states "Furthermore,
many of the allegations related to alleged conduct that occurred in 2005 and 2006. Thus, these
allegations are outside the Bar's time limitations to prosecute a case."
Since the accusations made in my "secondary complaint" occurred J une 21, 2011, the misconduct was
not considered according to the very language of the Rule 3-7.3(d) determination closing the complaint
submitted September 10, 2012. Tellingly, there is no mention of how Mr. Rodems, a lawyer in private
practice, lawfully represented the State of Florida in a federal court action. Therefore I conclude the J une
21, 2011 agreement concocted by Mr. Rodems is worthless.
My complaint of J anuary 4, 2013 must be processed according to The Florida Bars ACAP central
intake procedure. I properly submitted my complaint to ACAP central intake in Tallahassee, and it must
be processed by ACAP in Tallahassee in accord with the Rules.
The Special Commission on Lawyer Regulation chaired by Henry Coxe recommended in the "Coxe
Report" ACAP style screening of all written inquiries and complaints so that all questions concerning
the conduct of members of the bar are addressed in a similar fashion. The Commission also
recommended a central intake system utilizing ACAP resources in Tallahassee.
The reason for central ACAP intake is clear: The Commission knew that some complaints, like my
earlier complaint against Mr. Rodems, File No. 2013-10,271 (13E), would not be "addressed in a similar
fashion" locally where the attorney was favored. The Rule 3-7.3(d) determination by Mr. Clark, Michael
G. Stofer, Chair of the Sixth J udicial Circuit, and Sandra Fascell Diamond, Designated Reviewer does
not address any part of my "secondary complaint" made in 2013.
The Florida Bar has not yet issued a "Letter Report" required by Rule 3-7.4(k) in TFB v Ryan
Christopher Rodems File No. 2013-10,271 (13E). The Rule 3-7.3(d) determination is not a Rule 3-7.4(k)
Letter Report explaining why my complaint did not warrant further proceedings.
ACAP Bar Counsel Mr. Littlewood determined September 13, 2012 the alleged conduct, if proven,
would constitute a violation of the Rules Regulating The Florida Bar warranting the imposition of
discipline [Rule 3-7.3(a)] and opened disciplinary File No. 2013-10,271 (13E) against Mr. Rodems.
Pursuant to Rule 3-7.3(b), the intake investigation concluded the complaint warranted further
consideration and was sent to the Tampa Branch Office October 26, 2012.
Mr. Littlewood should be commended for his adherence to The Rules Regulating The Florida Bar
relative to the misconduct of Mr. Rodems. I believe Mr. Littlewood is the first and only discipline
Page 4of 7
6/7/2013
component of The Florida Bar to have done so relative to Mr. Rodems misconduct.
Ms. Young, my complaint against Mr. Rodems will not get fair consideration in the Tampa area. This
complaint may be impossible to resolve anywhere in Florida at this point, given the Tampa Branch
Offices malfeasance or misfeasance dating to 2005 with Susan V. Bloemendaal, Chief Branch
Discipline Counsel, Tampa.
The Florida Bar's Tampa Branch Office - A crony "local discipline component"
Unfortunately The Florida Bar's Tampa Branch Office is a crony "local discipline component" as
describe by the American Bar Association (ABA) McKay Report.
Local components, such as local bar investigative committees, foster cronyism
as well as prejudice against unpopular respondents. - ABA McKay Report
Local discipline components are a fatal defect in The Florida Bars lawyer discipline system.
In February 1992, the American Bar Association's McKay Commission issued a report entitled Lawyer
Regulation for A New Century: Report of the Commission on Evaluation of Disciplinary Enforcement.
One of the nine members of the McKay Commission that issued this Report to the ABA was J ohn T.
Berry, who is presently Director of the Legal Division of the Florida Bar.
The ABA McKay Report recommended the elimination of local discipline components because local
components foster cronyism, prejudice against unpopular respondents, and result in a lack of uniformity
in procedures and in the application of the rules of professional conduct. An earlier ABA report reached
a similar conclusion on local discipline components, the Special Committee on Evaluation of
Disciplinary Enforcement (Clark Committee) described in its report, "Problems and Recommendations
in Disciplinary Enforcement," (Clark Report) in J une, 1970.
Unfortunately, forty-three (43) years after the Clark Report, The Florida Bars discipline system is based
on five local discipline components, the five Branch Offices of The Florida Bar.
Rule 33.4(b), Special Grievance Committee
Rule 3-3.4(b) Special Grievance Committees. The board may from time to time appoint grievance
committees for the purpose of such investigations as may be assigned in accordance with these rules...
Pursuant to Rule 33.4(b), a special grievance committee is needed, located outside the Tampa Bay area
where Mr. Rodems practices, and outside the jurisdiction of Ms. Bloemendaal and the other local
discipline components like Troy Lovell, Michael Stofer, Chair of the Sixth J udicial Circuit, and Sandra
Fascell Diamond, Designated Reviewer. Sending this matter to another state in the U.S. Eleventh Circuit
may now be needed to avoid bias given the history of this complaint.
The American Bar Associations Mission
"To serve equally our members, our profession and the public by defending liberty and delivering justice
as the national representative of the legal profession."
http://www.americanbar.org/utility/about_the_aba/aba-mission-goals.html
Page 5of 7
6/7/2013
The ABA is a competent, national authority capable of reviewing this Fla. Bar complaint, but
unfortunately ABA Pres. Bellows has not yet responded to my invitation made March 18, 2013.
Ms. Young, I request you authorize the board under Rule 33.4(b) to appoint the ABA, on its consent, as
a special grievance committee to investigate my complaints against Ryan C. Rodems. Mr. Clark wrote
May 16, 2013 "Per your request, the Rodems case has been referred to the designated reviewer, Sandra
Diamond, to determine if the closing was appropriate." We all know that review by Ms. Diamond is a
farce and a foregone conclusion favoring Mr. Rodems.
Essence of the Litigation
This matter arose from a closing statement fraud concocted by Mr. Rodems and his partners to take a
90% fee of a $56,000 total recovery in the Amscot case, instead of a 45% fee permitted by Rule 4-1.5(f)
(5), which denied me and two other clients $9,143 each, our lawful share of the $56,000 total recovery.
This was a $21,431 unjust enrichment for Barker, Rodems & Cook, P.A., who paid each client $2,000,
instead of $9,143 owed, causing each client a loss of $7,143.
The Hon. Richard A. Nielsen rejected Mr. Rodems misleading legal argument, a phony "claim" of
$50,000 in "court-awarded fees and costs" in his Order On Defendants Motion To Dismiss And Strike,
entered J anuary 13, 2006 in Gillespie v. Barker, Rodems & Cook, 05-CA-7205.
J udge Nielsen found I stated a cause of action against Barker, Rodems & Cook for fraud and breach of
contract for stealing $6,224.78 [$7,143] from my settlement. Any subsequent Orders by crony successor
judges granting Rodems motions for summary judgment, or judgment on the pleadings, were wrong.
See Summary Judgment and Judgment on the Pleadings, 49 Fla. J ur. 2d.
Racketeering Within the Legal Profession
"J ust as war is too important to leave to the generals, reform of the justice system is too important to be
left to lawyers and judges."
- U.S. Supreme Court Chief J ustice William Rehnquist, as quoted by the
American Bar Association, Coalition for J ustice
It is unfortunate that local discipline cronies have long-protected the crooks at Barker, Rodems & Cook.
As I understand, Mr. Rodems now owes a debt of favors for this protection, which he will repay with
more wrongdoing to benefit those who protected him. This kind of racketeering is a serious problem
within the legal profession, which desperately needs reform.
Thank you for your ongoing attention to this important matter, and for the courtesy of a prompt response
to my request that you authorize the board, Rule 33.4(b), to appoint the ABA, on its consent, as special
grievance committee to investigate my complaints against Ryan C. Rodems.
Sincerely,
Neil J . Gillespie
8092 SW 115th Loop

Page 6of 7
6/7/2013
Telephone: (352) 854-7807
Email: neilgillespie@mfi.net
Enclosures
Cc: ABA President Laurel Bellows, Gov. Rick Scott, Attorney General Pam Bondi
Email Cc: Gov. Scott, AG Bondi, ABA service list; Florida Bar service list; Mr. Anderson, Chair, 13th
Circuit J NC; Sixth Circuit Grievance Committee "D". [attachment "Florida Bar Pres. Young, request for
Special Grievance Committee, Rule 3-3.4(b).pdf" deleted by Kenneth L. Marvin/The Florida Bar]
Page 7of 7
6/7/2013
Separate Volume Appendix
J UDICIAL QUALIFICATIONS COMMISSION
STATE 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
INQUIRY CONCERNING J UDGE GREGORY P. HOLDER
1. Notice of Formal Charges, J uly 18, 2003
2. Order of Dismissal, J une 28, 2005
3. Respondents Motion for Award of Attorneys Fees, J uly 25, 2005: $1,779,691.81
4. Respondents Motion to Tax Costs, J uly 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. J QC 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 J udicial
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.
J udgment is entered for J udge Gregory P. Holder, for recovery of costs from the J udicial
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, J J ., concur.
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
1
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.
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
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 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, DITTMAR, DeVAULT, PILLANS &
COXE
Professional Association
By

Charles P. Pillans, III
5.
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
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 [by Certified Mail]
Circuit Judge
Thirteenth Judicial Circuit
Hillsborough County Courthouse
419 Pierce Street
Tampa, FL 33602
David B. Weinstein, Esquire [by U.S. Mail]
Bales Weinstein
Post Office Box 172179
Tampa, FL 33672-0179

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
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

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.
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
Commission
1110 Thomasville Road
850/488-1581
850/922-6781 (fax)

Copies furnished in accordance with the attached list.
4
David B. Weinstein
Counsel to the Judge
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
(813) 221-2500
(813) 258-6265 (fax)

John Beranek
Counsel to the Hearing Panel
Ausley & McMullen
P.O. Box 391
(850) 224-9115
(850) 222-7560 (fax)

Brooke Kennerly
Commission
1110 Thomasville Road
(850) 488-1581
(850) 922-6781 (fax)

3

INQUIRY CONCERNING Supreme Court Case
A J UDGE 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 J uly of 2003, the Florida J udicial
Qualifications Commission (J QC or the Commission) filed a Notice of
Formal Charges (Charges) alleging that J udge 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 J QC 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 J QC alleged was submitted to the AWC by
J udge Holder in 1998 (purported Holder paper) (Exhibit A to the
Charges).
At the time the purported Holder paper mysteriously surfaced,
J udge 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 J QC has elected not to transcribe the record.
1
5
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 J udge Holder.
2
In the midst of that investigation, an unmarked envelope (Envelope)
was anonymously slipped under the door of J effrey 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 J anuary 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 J QC. 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 J udge 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 J ustice Office of Professional Responsibility complaining
about apparent inactivity in the courthouse corruption investigation. On J uly
16, 2003, the J QC filed its Charges, alleging that Respondent had violat[ed]
. . . [the] Canons of the Code of J udicial 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 ( J QC 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 J QC 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 J udge 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
J udge Holders actual AWC paper was ever located; and (d) multiple
witnesses who saw J udge 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 J QC
also alleged that Respondent had violated 18 U.S.C. 1001. J QC Resp.,
Ex. A. 2.
3
was not authentic, the J QC nevertheless vigorously prosecuted this case.
4
J udge 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. J udge 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 J QC sought to
suspend J udge 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 by
J udge 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.

6
J udge 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 J QC by
J effrey Del Fuoco (8/27/04); 3) Motion in Limine to Exclude All
Documents provided to the J QC by the United States Air Force
(8/27/04); 4) Motion in Limine to Exclude Testimony of J effrey
Downing (8/27/04); 5) Motion in Limine to Exclude Testimony of
J effrey 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
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, J udge 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 J QC voted unanimously to dismiss the charges against J udge
Holder. J QC Resp., Ex. B.
II. ISSUE PRESENTED.
On J uly 25, 2005, J udge Holder moved this Court to enter an order
awarding attorneys fees incurred by him in the successful defense of this
J QC 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 J QC 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 J udge
Holders attorneys fees be paid. As this Court has recognized, judges in
J QC proceedings are entitled to counsel as a matter of due process, J udicial
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 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 J udge Holderwould be
damaged by the perpetuation of such a situation.
In its response to J udge Holders motion, the Commission, relying
upon the Attorney General of Florida, concedes that Thornber applies to
judges in proceedings before the Commission. See J QC Resp. at 5 (citing
6
Attorney Generals Opinion 93-21, 1993 WL 361721 (Fla. A.G. 1993). The
J QC also concedes that the second prong of the Thornber test is satisfied,
stating that [u]nquestionably, the resolution of the highly publicized
charges against J udge Holder and matters relating thereto served a public
purpose. J QC Resp. at 5. Thus, the only issue is whether the J QCs case
against J udge Holder arose out of or in connection with the performance
of J udge Holders official duties.
III. ARGUMENT.
A. The J QC Proceeding Arose Out Of Or In Connection With The
Performance Of Respondents Official Duties.

The Charges clearly arose in connection with the performance of
J udge Holders 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 J udge Holders participation in the federal
investigation of judicial corruption at the Hillsborough County Courthouse.
In fact, J udge Holders participation in the corruption investigation
was integral to the performance of his judicial duties. J udicial 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 J effrey Del Fuocos door.
7
this Code shall take appropriate action. (Emphasis added.)
Consequently, when J udge Holder was approached by law enforcement
agents in connection with the investigation, he did the only proper thing
under the J udicial Canons, tell the agents what he knew and suffer the
attendant consequences.
8
By cooperating with the courthouse corruption
investigation, J udge Holder discharged responsibilities that the J udicial Code
required.
In fact, J udicial 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.... J udicial Canon 3D(3)
(emphasis added). Thus, when viewed in context, this case clearly arose in
connection with J udge 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 J udge Holder of his official judicial

8
One law enforcement agent testified at trial that the corruption
investigation team was concerned that J udge Holders activities were
being monitored by targets of the investigation. J udge 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 J udge Holders official
duties as a Circuit J udge 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 J udge Holders Air Force duties. Instead, the
overwhelming evidence presented at the hearing established that the paper
was not in fact J udge Holders AWC paper and instead was a fabrication.
Indeed, the courthouse corruption investigation and J udge 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 J udge Holders
actual paper and the Hoard paper (the source of the plagiarized material)
were unlawfully stolen from J udge Holders chambers before the Envelope
was surreptitiously slipped under J effrey Del Fuocos door. Indeed, the fact
that the Envelope containing the papers was slipped under the door of Mr.
9
Del Fuocoand not the door of an Air Force or J QC 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 of or in
connection with the performance of [J udge Holders] official duties.
Thornber, 568 So. 2d at 917 (emphasis added).
Third, the J QC took the position below that the Charges were
sufficiently related to J udge 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 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 J udicial 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 J QC 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 J udicial
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. J QC
Resp., Ex. A 3. The Commissions position is inconsistent: It
simultaneously concedes that J udge 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.

11
his colleagues), it should not matter that the false allegations concerned the
preparation of an Air War College paper.
10
Instead, as J udge 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 J udge 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.
J udge 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 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 J QC 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. J udge Holders successful
defense was also perceived in that context. See Appendix A (press coverage
of this proceeding).
The Commission has acknowledged that J udge Holders defense
served a public purpose: Unquestionably, the resolution of the highly
publicized charges against J udge Holder and matters relating thereto served
a public purpose.... J QC Resp. at 5-6 (emphasis added). Indeed, the
Commission explains those related matters in a footnote as J udge Holders
participation as an undercover agent in an FBI investigation of corruption.
J CQ Resp. at 6 n.1. But if, as the Commission contends, the litigation
passes the public purpose prong of the Thornber test because of J udge
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 J udge Holder cooperated as provided for by the
13
J udicial Canons. Accordingly, he is entitled to reasonable attorneys fees.
C. The Commissions Arguments Do Not Compel Denial Of
J udge 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.
J QC 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. 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 J udge 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 J udge 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 J QC hearings. In fact, the last time
a judge prevailed at trial against the J QC was approximately 19 years ago in
1986.
11
In this rare case, J udge 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 J udge 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
J onathan C. Koch
Kimberly S. Mello
Bales Weinstein
Tampa, FL 33672-0179
Telephone No.: (813) 224-9100
Telecopier No.: (813) 224-9109

-and-

J uan P. Morillo
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 J udge 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 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; J ohn Beranek, Counsel to the Hearing Panel, Ausley & McMullen,
P.O. Box 391, Tallahassee, FL 32302; Thomas C. MacDonald, J r., J QC
General Counsel, 1904 Holly Lane, Tampa, FL 33629; Charles P. Pillans,
III, Esq., J QC Special Counsel, Bedell, Ditmar, DeVault, Pillans & Coxe,
P.A., The Bedell Building, 101 East Adams Street, J acksonville, FL 32202;
and J ohn P. Kuder, Chairman of the Hearing Panel, J udicial Building, 190
Governmental Center, Pensacola, FL 32501.

/s/ David B. Weinstein
Attorney

17


Case No. SC03-1171

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

RESPONDENTS INITIAL BRIEF

David B. Weinstein Juan P. Morillo
Florida Bar No.: 604410 Florida Bar No.: 0135933
Kimberly S. Mello Steven T. Cottreau
Florida Bar No.: 0002968 Specially Admitted
Bales Weinstein Sidley Austin LLP
Post Office Box 172179 1501 K Street, N.W.
Tampa, Florida 33672-0179 Washington, D.C. 20005
Telephone: (813) 224-9100 Telephone: (202) 736-8000
Telecopier: (813) 224-9109 Telecopier: (202) 736-8711

Counsel for Judge Gregory P. Holder
6
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 THE
ATTORNEYS 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 the
performance of Judge Holders official duties. ................................ 16
B. This litigation served a public purpose. ........................................... 21
II. NEITHER THE DOCTRINE OF SOVEREIGN IMMUNITY, NOR
ANY 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 HOLDERS
ENTITLEMENT TO ATTORNEYS FEES............................................. 26
CONCLUSION................................................................................................ 30
CERTIFICATE OF SERVICE.......................................................................... 32
CERTIFICATE OF COMPLIANCE ................................................................. 32

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
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
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. Commn R. 15(a)....................................................................... 16
Op. Atty Gen. Fla. 93-21 (1993)....................................................................... 15

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
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

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.
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
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.

2
Pursuant to its September 8, 2005 Order (Order), the Court did not require the
Commission to provide a trial transcript. However, Judge Holders 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 wit h a
certified transcript.

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 Thornber list [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 a
monetary award in this case including, but not
limited to, issues of sovereign immunity or
otherwise; and

c) The joinder of any additional parties, if any,
necessary or proper for a full determination of
issues presented.

3
The Commissions Response to Respondents Motion for Award of Attorneys
Fees will be cited as JQC Resp. p. ____, at App. _____.
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
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 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.
8
(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

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.
9
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 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
[Commissions Response to Resp.s 1st Req. for
Admissions 1, at App. 11.];
10

Both the note and the manila envelope (i) inexplicably
vanished from the U.S. Attorneys 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 Holders actual AWC paper was
ever located [Commissions Response to Resp.s 1st Req.
for Admissions 1, at App. 11.]; and

Judge Holder and four third-party 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 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 Commissions Charges, which he is entitled to recover based on the authority
set forth below.
SUMMARY OF THE ARGUMENT
7

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

6
The depositions of John Vento and Ken Lawson were admitted into evidence
during 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.
11
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
Thornber testthat 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
12
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
13
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.
14
ARGUMENT
I. JUDGE HOLDER IS ENTITLED TO REIMBURSEMENT OF THE
ATTORNEYS FEES INCURRED IN HIS SUCCESSFULL DEFENSE
OF THE JQCS 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 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 the
performance 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
15
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 (Thornber test) 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. See In re Hapner, 737
So. 2d 1075, 1077 (Fla. 1999) (an accused judge should not be placed in the
16
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 Thornber doctrine.
A. This litigation arose out of or in connection with the performance
of Judge Holders 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 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 persons
8
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 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 Fuocos Army Reserve Office door.

17
(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 judges judicial duties.... 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

9
Detective Bartoszak testified at trial that the courthouse 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 to communicate with the authorities. [Bartoszak Tr. pp. 7-8, at App. 3.]

18
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 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
Holders 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
Holders] work. [Aff. of Lt. Col. Russick 9, at
App. 13.];
19

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 Holders paper, directly refuting Mr.
Del Fuocos testimony. [Lawson Dep. pp. 15, 16,
at App. 14.];

Lorraine Nasco, Judge Holders 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
Holders 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 Holders judicial duties to justify his suspension
from the benchdespite the fact that the alleged conduct took place over five
20
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 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. [Commissions 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. [Commissions Am.
Order to Show Cause, at App. 2.]

21
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 Holders 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
Respondents 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 publics 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).
22
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 Holders 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 bodyin 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
23
Holders 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 Holders 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 Anglo-
American jurisprudence that prohibits suits against the State. Am. Home
Assurance Co. v. Natl 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
24
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 suitswhich 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 Dept 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).
25
Moreover, Judge Holders 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 judicially
abolishing a common law rightat least in this context. See, e.g., State of Fla. v.
Koch, 582 So. 2d 5 (Fla. 1st DCA 1991) (sovereign immunity statute does not
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 agencys 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.
26
To find otherwise would render would render a public officials 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 HOLDERS 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 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. 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
27
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 Courts behalf. Id. In fact, counsel for Judge Holder
previously placed the SCA on notice of Judge Holders 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 Holders 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 Courts 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.

28
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 Courts 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.

29
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 officials 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.
30
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 Holders 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 Commissions
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.)
31

Dated: February 3, 2006.
Respectfully Submitted,

David B. Weinstein
Florida Bar No.: 0604410
Kimberly S. Mello
Bales Weinstein
Tampa, FL 33672-0179
Telephone: (813) 224-9100
Telecopier: (813) 224-9109

-and-

Juan P. Morillo
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


32
CERTIFICATE OF SERVICE
I certify that on February 3, 2006, a copy of the foregoing, Respondents
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


Case No. SC03-1171

A JUDGE, NO. 02-487

APPENDIX TO RESPONDENTS INITIAL BRIEF

David B. Weinstein, Esquire Juan P. Morillo
Florida Bar No. 0604410 Florida Bar No: 0135933
Kimberly S. Mello, Esquire Steven T. Cottreau
Florida Bar No. 0002968 Specially Admitted
BALES WEINSTEIN Sidley Austin LLP
P.O. Box 172179 1501 K Street, N. W.
Tampa, Florida 33672-0179 Washington, D. C.
Telephone: (813) 224-9100 Telephone: (202) 736-8000
Telecopier: (813) 224-9109 Telecopier: (202) 736-8711

7
2
INDEX TO APPENDIX

Commissions Notice of Formal Charges dated July 16, 2003........................... A-1
Commissions 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
Commissions Response to Respondents 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
Commissions Response to Respondents 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

IN THE SUPREME COURT OF THE
STATE OF FLORIDA
INQUIRY CONCERNING A SC03-1171
JUDGE, GREGORY P. HOLDER,
CASE NO. 02-487
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. The Hearing Panel has carefully
reviewed the costs pursuant to Rule 2.310, Florida Rules of Judicial
Administration.
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).
8
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 17
th
day of August, 2009.
Copies furnished:
David B. Weinstein, Esq.
Counsel for Judge Holder
Greenberg, Traurig
Courthouse Plaza, Suite 160
625 East TWiggs Street
(813) 318-5701
Michael L. Schneider, Esq.
General Counsel
111 0 Thomasville Road
(850) 488-1581
FLORIDA JUDICIAL QUALIFICATIONS
COMMISSION
Judge Paul L. Backman
Chairman, Hearing Panel
Commission
Tallahassee, FL 32303
(850) 488-1581
John Beranek, Esq.
Counsel to the Hearing Panel
Ausley & McMullen
P.O. Box 391
(850) 244-9115
Brooke Kennerly
Executive Director
Judicial Qualification Commission
(850) 488-1581

___________________________________________________________________

Supreme Court of Florida
TUESDAY, SEPTEMBER 15, 2009
CASE NO.: SC03-1171
A J UDGE, NO. 02-487
Upon consideration of the Motion to Tax Costs, the Hearing Panel of the
J udicial 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.
J udgment is entered for J udge Gregory P. Holder, for recovery of costs from
the J udicial 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, J J ., concur.
A True Copy
Test:
bm
Served:
HON. J AMES R. WOLF STEVEN T. COTTREAU
J OHN R. BERANEK GREGORY W. KEHOE
CHARLES P. PILLANS, III J UAN PABLO MORILLO
MARVIN E. BARKIN J ONATHAN C. KOCH
DAVID BARNETT WEINSTEIN VIRGINIA ZOCK HOUSER
MICHAEL LOUIS SCHNEIDER KIMBERLY STAFFA MELLO
HON. J OHN PATRICK KUDER
HON. GREGORY PAUL HOLDER, J UDGE
9

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