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

7/28/2019 The Florida Bar, Interim Reply to Kenneth Marvin; Review Closure of Castagliuolo Complaint

1/93

VIA UPS No. 1Z64589FP295240833 June 7, 2013Email: [email protected]

Kenneth Lawrence Marvin, Director of Lawyer RegulationThe Florida Bar

651 East Jefferson StreetTallahassee, 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, closedMay 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 nextweek, so there is no need for you to rush a response. on cronyism in the Tampa Branch Officerun by Susan Bloemendaal, Chief Branch Discipline Counsel. Earlier that day you emailed me inpart, I have not seen you present, nor am I aware of, any factual basis to supportyour 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 ABAbelieves local discipline components foster cronyism, as shown in the McKay Report and theClark Report, then me and any reasonable person could conclude the truth of this fact is so wellknown that it cannot be refuted. See Fla. Stat. 90.201-207, Judicial Notice.

In February 1992, the American Bar Association's McKay Commission issued a report entitledLawyer 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 John 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 becauselocal components foster cronyism, prejudice against unpopular respondents, and result in a lackof uniformity in procedures and in the application of the rules of professional conduct. An earlierABA report reached a similar conclusion on local discipline components, the Special Committeeon Evaluation of Disciplinary Enforcement(Clark Committee) described in its report, "Problemsand Recommendations in Disciplinary Enforcement," (Clark Report) in June, 1970.


2/93

Kenneth Lawrence Marvin June 7, 2013Director of Lawyer Regulation Page -2

Unfortunately, forty-three (43) years after the Clark Report, The Florida Bars discipline systemis 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 stylescreening of all written inquiries and complaints so that all questions concerning the conduct ofmembers of the Bar are addressed in a similar fashion. The Commission also recommended acentral intake system utilizing ACAP resources in Tallahassee. The reason for central ACAPintake 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" locallywhere the attorney was favored.

Thank you and the Bars staff in Tallahassee for providing copies yesterday of the records Irequested. I appreciate the hard work of folks in Tallahassee, people like Mr. Littlewood, Ms.Bateman, Donna McMahon and Jenny Jolinski. The records provided yesterday include the

following relevant to my forthcoming comprehensive response:

Ryan Christopher Rodems, TFB File No. 2013-10,271 (13E) - 246 pagesEugene 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 pendingmatters, it may be a few weeks until I can respond fully. Currently I am defending an improperforeclosure of my home on a disputed HECM - a Home Equity Conversion Mortgage, a federalreverse mortgage program administered by HUD. (12 USC 1715z20). I am reluctantlyappearing pro se due to indigence, as well as apparent blacklisting by the profession for PetitionNo. 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 avexatious 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 underthe jurisdiction of the Tampa Branch Office. Folks who complaint about wrongdoing in theThirteenth Judicial Circuit face retribution, and worse, as happened to a sitting judge.

Florida Circuit Judge Gregory Holder paid a heavy price for speaking out against wrongdoing in

the Thirteenth Judicial Circuit, almost $2 million and years of legal abuse. As set forth in myResponse 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 confrontingjudicial misconduct. In one example, Circuit Judge Gregory Holder spoke to the mediaabout judicial misconduct, and was a cooperating witness (2001-2002) in a federalcriminal investigation of corruption at the Hillsborough County Courthouse. In retaliationthe Florida Judicial Qualifications Commission (JQC) pursued two failed inquiriesagainst him, JQC Inquiry Nos. 01-303 and 02-487. Judge Holder spent many years and$1.92 million successfully defending himself. On June 23, 2005, the Hearing Panel of theJQC voted unanimously to dismiss the charges against Judge Holder. This was the first


3/93

Kenneth Lawrence Marvin June 7, 2013Director of Lawyer Regulation Page -3

trial defense verdict against the JQC in almost twenty years. On September 15, 2009 theSupreme Court of Florida, case no. SC03-1171, ordered entry of judgment for JudgeHolder for recovery of costs from the JQC in the amount of $70,000 for successfullydefending JQC Inquiry No. 02-487. Judge Holders actual expenses were $1,779,691.81in legal fees, and cost of $140,870.79.

Public files in the above JQC cases are online on the Florida Supreme Court website:

http://www.floridasupremecourt.org/pub_info/jqcarchives.shtml

According to the public file, Judge Holders life was at risk for reporting judicial misconduct:

During 2001 and 2002, Judge Holder cooperated with the FBI in the courthousecorruption investigation. [Bartoszak Tr. pp. 4-5, at App. 3.] Because of Judge Holderscooperation, the investigations targets had motive and resources to seek retributionagainst 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 courthousecorruption investigation team was concerned that Judge Holders activities were beingmonitored by targets of the investigation. Judge Holder was advised by federal lawenforcement agents to carry a weapon, and he was provided with a secure cell phone tocommunicate 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 Judge Holder was, for complaining about wrongdoingin the Thirteenth Judicial Circuit? Enclosed you will find a separate volume appendix showingsome of the key documents in the JQC Inquiry Concerning Judge Gregory P. Holder, JQC 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. Gillespie8092 SW 115th LoopOcala, Florida 34481Enclosures

Cc: Gov. Rick Scott, VIA UPS No. 1Z64589FP295592847Attorney General Pam Bondi, VIA UPS No. 1Z64589FP299160850Chief-Assistant Attorney General Diana R. Esposito VIA UPS No. 1Z64589FP296544861Email Cc: Gov. Scott, AG Bondi, AAG Esposito, ABA service list; Florida Bar service list;Mr. Anderson, Chair, 13th Circuit JNC; Sixth Circuit Grievance Committee D.


4/93

The Florida BarTampa Branch Office

4200 George J. Bean Parkway, Suite 2580John F. Harkness, Jr . Tampa, Florida 33607-1496 (813) 875-9821Executive Director www.FLORIDABAR.org

May 13,2013

Mr. Neil J. Gillespie8092 S.W. 115th LoopOcala, FL 34481Re: Complaint of Neil J. Gillespie against Eugene P. CastagliuoloThe Florida Bar File No. 2013-10,162 (6D)Dear Mr. Gillespie:After careful review and consideration of all tIle infonnation contained in the above-referencedfile, the Cllair of the Sixth Judicial Circuit Grievance Committee D, together with theundersigned Bar Counsel, found no probable cause. This finding was based upon the conclusionthat there was insufficient evidence tllat Mr. Castagliuolo has violated the rules governingattorney conduct.Pursuant to tIle Bar's records retention schedule, the computer record and file will be disposed ofone year from the date of closing.Sincerely,

c _. . , tA/): r~ ~ Leonard Evans ClarkBar CounselLEC/cbsEnclosure: Detennination of No Probable Cause by Bar Counsel and Committee Chair


5/93

-------------

IN THE SUPREME COURT OF FLORIDA(Before a Grievance Committee)In Re: The Matter ofEugene P. Castagliuolo TFB No.: 2013-10,162 (6D)

/

RULE 3-7.3(d) DETERMINATION OF NO PROBABLE CAUSE BY BARCOUNSEL AND COMMITTEE CHAIR

Pursuant to the provisions of Rule 3-7.3(d) of the Rules Regulating The FloridaBar, the undersigned, by their signatures on this report, signify their concurrence ina dismissal as to the referenced complaint. This matter arose out of anInquiry/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 youto ineffectively represent Mr. Gillespie. Additionally, Mr. Gillespie alleged thatyou 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 yourinadequate representatioll. After careful review and consideration of all theinformation contained in the ~ b o v e - r e f e r e n c e d file, the Chair of the Sixth, JUdic.ialCircuit Grievance C o m m i t t e ~ D, together with the undersigned Bar Couns.el, fOUIldno probable cause.This finding is based upon the conclusion that there is insufficient evidence thatyou have violated any of the rules governing attorney conduct. Specifically, thereis insufficient evidence to show that you suffer from mental health issues that areaffecting your ability to practice law. Additionally, the allegations that you falselyaccused Mr. Gillespie of committing criminal acts are unsubstantiated. Thecomments that you rnade, which are referenced by Mr. Gillespie in his complaint,appear to reflect your belief that Mr. Gillespie's conduct constituted criminalharassment. Furthermore, the statements warn Mr. Gillespie that if the conductcontinued you would report it to law enforcement. These statements do not violateThe Rules Regulating The Florida Bar.finally, Mr. Gillespie alleged that he was entitled to a partial refund of feesbecause you did not adequately represent him. The Florida Bar has no jurisdictionover .fee disputes unless the amount of the fee is clearly excessive. Based upon areview of the information provided, \\ le have concluded that the fee charged \vas


6/93

not clearly excessive. Our opinion, however, has no effect on any legal obligationsor rights Mr. Gillespie may have regarding the bill for services. This is a separatelegal matter about which we can give no advice.Accordingly, given all the circumstances surrounding this matter, it is our opinionthat there is no basis for further disciplinary proceedings. As a result, the complaintagainst you will be dismissed. This letter does not constitute a disciplinary recordagainst you for any purpose. No right to appeal exists. Rule 3-7.4(i). Thedesignated reviewer has authority to seek review of this decision within thirty (30)days by referral to the disciplinary review committee. A decision by the designatedreviewer not to seek review or expiration of the time in which to do so shallpreclude further proceedings in this matter. The records regarding this matter maybe disposed of one (1) year from the date of this decision.

Michael G. StoferChair of the Sixth' udicial CircuitGrievance Committee "D"Dated this q!f"'- day of May, 2013.

Leonard Evans ClarkThe Florida BarTampa Branch Office4200 George J. Bean Parkway, Suite 2580Tampa, Florida 33607-1496(813) 875-9821Dated this J 3 T ~ day of May,2013.

cc: Mr. Neil J. Gillespie, Complainant/Sandra Fascell Diamond, Designated Reviewer


7/93

,.,. ..off .,_ . ."1"1'.'-1p I'.'IlII.IIIII 'IIlIII ' ._- 'IIlT 'r., I e::-' I P'iT'"'I lr. I L- l I I i i I I " ' _ . _ . _ .._._. I.l_.Tn1' " .' .~ G " l S P U I i $ .

~ ! I i ~ THE FLORIDA BAR FIRST-CLASS MAIL Hasler..; c/Ia:o -.0 TAMPA OFFICE m 05/13/2013:0 ;; 4200 GEORGE J. BEAN PARKWAY~ O ) : ,.' l l J . ~ i l ~ 1 ' J C ) # I $00.462

I+G A O ~ C : C : ' \ SUITE 2580THE FLORIDA BAR TAMPA, FL 33607 ~ ~ : = 1 : 1 ~

our website: www.FLORIDABAR.orgMr. Neil J. Gillespie8092 S.W. 115th LoopOcala, FL 34481PERSONAL AND CONFIDENTIAL

3 4 4 8 i :::3567 RI:167 IIIIII'J'IJ "II,IJII,I/IIIIll" IJI'lJ'1I11 ,' IIJ'III,I,IJ"" I ,I '


8/93

Neil Gillespie

From: "Kenneth L. Marvin" To: "Neil Gillespie" Sent: Thursday, May 23, 2013 3:53 PMSubject: Re: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young

Page 1 of 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"

To: "Kenneth L. Marvin" , "Gwynne Alice Young" Cc: "Gov. Rick Scott" , "AG Pam Bondi" , "Laurel G Bellows"

, "James R. Silkenat" , "Ellyn Rosen" , "Myles Lynk"

, "Joseph Bluemel" , "Nancy Cohen" , "Dolores Dorsainvil"

, "Linda Gosnell" , "James Hill" , "James A Kawachika"

, "Amy Lin Meyerson" , "Cleaveland Miller" , "William W Wilhelm"

, "Theodore P Littlewood" , "Susan Varner Bloemendaal" , "Paul F

Hill" , "Leonard E Clark" , "Kenneth Lawrence Marvin" , "John Thomas

Berry" , "John F Harkness" , "Jeffrey Carter Andersen" , "James N

Watson" , "Gwynne Alice Young" , "Eugene Keith Pettis" ,

"Annemarie Craft" , "Mary Ellen Bateman" , "Gregory Harrison Fisher" ,

"Belinda Barndollar Lazzara" , "Maribeth L. Wetzel" , "Michael G Stofer"

, "Sandra Fascell Diamond" Date: 05/23/2013 02:38 PMSubject: Re: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young

Kenneth L. MarvinStaff CounselDirector, Lawyer Regulation

651 E. Jefferson StreetTallahassee, Florida 32399

Dear Mr. Marvin,

Thank you for your email. I hope to have a comprehensive response to you sometime next week, but itcould take longer. BTW, I just checked the Attorney Generals web page, and Pam Bondi is still theAttorney General for Florida, here is the linkhttp://myfloridalegal.com/

Ryan Christopher Rodems is not the Attorney General, thereby making his representation of the State of


9/93

Florida June 21, 2011 in my federal lawsuit unlawful and unethical. Only the Attorney General ofFlorida 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 LoopOcala, Florida 34481----- Original Message -----From:Kenneth L. MarvinTo:Neil GillespieCc:Annemarie Craft ; Eugene Keith Pettis ; Gwynne Alice Young ; John Thomas Berry ; John FHarkness ; James N Watson ; Leonard E Clark; Mary Ellen Bateman ;[email protected] ; Paul F Hill ; Susan Varner Bloemendaal ; Sandra Fascell Diamond;Theodore P Littlewood; William W Wilhelm .Sent: Thursday, May 23, 2013 1:22 PMSubject: Re: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young

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 notaware 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 2 of 7

6/7/2013


10/93

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

Director, Lawyer Regulation

651 E. Jefferson Street


From: "Neil Gillespie" To: "Gwynne Alice Young" Cc: "Laurel G Bellows" , "Gov. Rick Scott" , "AG Pam Bondi"

, "James R. Silkenat" , "Ellyn Rosen" , "Myles

Lynk" , "Joseph Bluemel" , "Nancy Cohen" , "Dolores

Dorsainvil" , "Linda Gosnell" , "James Hill" , "James A

Kawachika" , "Amy Lin Meyerson" , "Cleaveland Miller" , "William W

Wilhelm" , "Theodore P Littlewood" , "Susan Varner Bloemendaal" ,

"Paul F Hill" , "Leonard E Clark" , "Kenneth Lawrence Marvin" , "John

Thomas Berry" , "John F Harkness" , "Jeffrey Carter Andersen" ,

"James N Watson" , "Gwynne Alice Young" , "Eugene Keith Pettis"

, "Annemarie Craft" , "Mary Ellen Bateman" , "Gregory Harrison

Fisher" , "Belinda Barndollar Lazzara" , "Maribeth L. Wetzel" ,

"Michael G Stofer" , "Sandra Fascell Diamond" Date: 05/22/2013 01:36 PMSubject: Response to Leonard Clark May 16, 2013 made behalf of Florida Bar Pres. Young

VIA UPS No. 1Z64589FP297384676Email [email protected]

Gwynne Alice YoungPresident, The Florida BarCarlton Fields, P.A.

4221 W. Boy Scout Boulevard, Suite 1000Tampa, FL 33607-5780

RE: Response by Leonard Clark May 16, 2013 to my complaint January 4, 2013, the unauthorizedrepresentation 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 3 of 7

6/7/2013


11/93

of Florida in a federal court action June 21, 2011, with the excuse that "Your secondary complaint wasincorporated into your original complaint against Mr. Rodems." and dismissed.

This is not acceptable. My complaint of January 4, 2013 made new, specific accusations against Mr.Rodems, but was apparently improperly diverted from The Florida Bars ACAP central complaint intakeprogram. 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 byrepresenting the State of Florida June 21, 2011 in my federal lawsuit. Only the Attorney General ofFlorida 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 notrespond to the accusations I made January 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, theseallegations are outside the Bar's time limitations to prosecute a case."

Since the accusations made in my "secondary complaint" occurred June 21, 2011, the misconduct was

not considered according to the very language of the Rule 3-7.3(d) determination closing the complaintsubmitted September 10, 2012. Tellingly, there is no mention of how Mr. Rodems, a lawyer in privatepractice, lawfully represented the State of Florida in a federal court action. Therefore I conclude the June21, 2011 agreement concocted by Mr. Rodems is worthless.

My complaint of January 4, 2013 must be processed according to The Florida Bars ACAP centralintake procedure. I properly submitted my complaint to ACAP central intake in Tallahassee, and it mustbe processed by ACAP in Tallahassee in accord with the Rules.

The Special Commission on Lawyer Regulation chaired by Henry Coxe recommended in the "CoxeReport" ACAP style screening of all written inquiries and complaints so that all questions concerningthe conduct of members of the bar are addressed in a similar fashion. The Commission alsorecommended a central intake system utilizing ACAP resources in Tallahassee.

The reason for central ACAP intake is clear: The Commission knew that some complaints, like myearlier complaint against Mr. Rodems, File No. 2013-10,271 (13E), would not be "addressed in a similarfashion" locally where the attorney was favored. The Rule 3-7.3(d) determination by Mr. Clark, MichaelG. Stofer, Chair of the Sixth Judicial Circuit, and Sandra Fascell Diamond, Designated Reviewer doesnot 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 RyanChristopher 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 ofdiscipline [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 furtherconsideration 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 Barrelative to the misconduct of Mr. Rodems. I believe Mr. Littlewood is the first and only discipline

Page 4 of 7

6/7/2013


12/93

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. Thiscomplaint may be impossible to resolve anywhere in Florida at this point, given the Tampa BranchOffices malfeasance or misfeasance dating to 2005 with Susan V. Bloemendaal, Chief BranchDiscipline 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" asdescribe 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 entitledLawyerRegulation 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 John 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 localcomponents foster cronyism, prejudice against unpopular respondents, and result in a lack of uniformityin procedures and in the application of the rules of professional conduct. An earlier ABA report reacheda similar conclusion on local discipline components, the Special Committee on Evaluation ofDisciplinary Enforcement(Clark Committee) described in its report, "Problems and Recommendationsin Disciplinary Enforcement," (Clark Report) in June, 1970.

Unfortunately, forty-three (43) years after the Clark Report, The Florida Bars discipline system is basedon 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 grievancecommittees 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 areawhere Mr. Rodems practices, and outside the jurisdiction of Ms. Bloemendaal and the other localdiscipline components like Troy Lovell, Michael Stofer, Chair of the Sixth Judicial Circuit, and Sandra

Fascell Diamond, Designated Reviewer. Sending this matter to another state in the U.S. Eleventh Circuitmay 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 justiceas the national representative of the legal profession."

http://www.americanbar.org/utility/about_the_aba/aba-mission-goals.html

Page 5 of 7

6/7/2013


13/93

The ABA is a competent, national authority capable of reviewing this Fla. Bar complaint, butunfortunately 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, asa special grievance committee to investigate my complaints against Ryan C. Rodems. Mr. Clark wroteMay 16, 2013 "Per your request, the Rodems case has been referred to the designated reviewer, SandraDiamond, 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 a90% 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 January 13, 2006 in Gillespie v. Barker, Rodems & Cook, 05-CA-7205.

Judge Nielsen found I stated a cause of action against Barker, Rodems & Cook for fraud and breach ofcontract for stealing $6,224.78 [$7,143] from my settlement. Any subsequent Orders by crony successorjudges granting Rodems motions for summary judgment, or judgment on the pleadings, were wrong.See Summary Judgment and Judgment on the Pleadings, 49 Fla. Jur. 2d.

Racketeering Within the Legal Profession

"Just as war is too important to leave to the generals, reform of the justice system is too important to beleft to lawyers and judges."

- U.S. Supreme Court Chief Justice William Rehnquist, as quoted by the

American Bar Association, Coalition for Justice

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 withmore wrongdoing to benefit those who protected him. This kind of racketeering is a serious problemwithin 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 specialgrievance committee to investigate my complaints against Ryan C. Rodems.

Sincerely,

Neil J. Gillespie8092 SW 115th LoopOcala, Florida 34481

Page 6 of 7

6/7/2013


14/93

Telephone: (352) 854-7807Email: [email protected]

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, 13thCircuit JNC; Sixth Circuit Grievance Committee "D". [attachment "Florida Bar Pres. Young, request forSpecial Grievance Committee, Rule 3-3.4(b).pdf" deleted by Kenneth L. Marvin/The Florida Bar]

Page 7 of 7

6/7/2013


15/93

Separate Volume Appendix

JUDICIAL QUALIFICATIONS COMMISSIONSTATE 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 JUDGE GREGORY P. HOLDER

1. Notice of Formal Charges, July 18, 2003

2. Order of Dismissal, June 28, 2005

3. Respondents Motion for Award of Attorneys Fees, July 25, 2005: $1,779,691.81

4. Respondents Motion to Tax Costs, July 25, 2005: $140,870.79

5. Memorandum of Law, in Support of Respondents Motion for Award of Attorneys Fees

6. Respondents Initial Brief, February 6, 2006

7. Index to Appendix, Respondents Initial Brief, February 6, 2006

8. JQC Findings and Recommendations, August 17, 2009

9. Order September 15, 2009, Supreme Court of Florida:

Upon consideration of the Motion to Tax Costs, the Hearing Panel of the JudicialQualifications Commission's Findings and Recommendation, and the Stipulation onCosts, it is ordered that said recommendation and stipulation are approved and theMotion to Tax Costs is hereby granted.

Judgment is entered for Judge Gregory P. Holder, for recovery of costs from the JudicialQualifications Commission in the amount of $70,000.00, for which sum let executionissue.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, andPERRY, JJ., concur.


16/93

BEFORE THE INVESTIGATIVE PANEL OF THEFLORIDA JUDICIAL QUALIFICATIONS COMMISSION

INQUIRY CONCERNING A )

JUDGE, NO. 02-487 )

/

NOTICE OF FORMAL CHARGES

TO: The Honorable Gregory P. Holder, Circuit Judge,Thirteenth Judicial Circuit, Hillsborough CountyCourthouse, 419 Pierce Street, Tampa, FL 33602.

YOU ARE HEREBY NOTIFIED THAT the Investigative Panel of the

Florida Judicial Qualifications Commission, at its meeting held

in Tallahassee, Florida on July 10, 2003, has determined, pursuant

to Rule 6 of the Rules of the Florida Judicial Qualifications

Commission, as revised, and Article V, Section 12(b) of the

Constitution of Florida, that probable cause exists for formal

proceedings to be instituted against you.

Formal proceedings accordingly are hereby instituted to

inquire into the following charges:

1. On or about January 1998, while holding the

office of Circuit Judge of the Thirteenth Judicial Circuit

of Florida, you were enrolled in the McDill Air Force Base

1


17/93

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.


18/93

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


19/93

4.

judge, and would warrant discipline, including, but not limited

to, your removal from office.

PLEASE TAKE NOTICE in accordance with the provisions of the

Rules of the Florida Judicial Qualifications Commission, as

revised, that you have twenty (20) days following service of this

notice to file a written answer to these charges.

Dated this _____ day of July, 2003.

INVESTIGATIVE PANEL OF THE FLORIDAJUDICIAL QUALIFICATIONS COMMISSION

Thomas C. MacDonald, Jr.Florida Bar No. 0493181904 Holly LaneTampa, Florida 33629(813) 254-9871

(813) 258-6265 (Facsimile)

General Counsel for the FloridaJudicial Qualifications Commission

- and -

BEDELL, DITTMAR, DeVAULT, PILLANS &COXE

Professional Association

By

Charles P. Pillans, III


20/93

5.

Florida Bar No. 0100066The Bedell Building101 East Adams StreetJacksonville, Florida 32202

(904) 353-0211(904) 353-9307 (Facsimile)

Special Counsel to the FloridaJudicial Qualifications Commission

Certificate of Service

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

The Honorable Gregory P. Holder [by Certified Mail]Circuit JudgeThirteenth Judicial CircuitHillsborough County Courthouse419 Pierce StreetTampa, FL 33602

David B. Weinstein, Esquire [by U.S. Mail]Bales WeinsteinPost Office Box 172179

Tampa, FL 33672-0179


21/93

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


22/93

2

Judge Holder denied that the photocopy was his paper and

contended the photocopy was a manufactured forgery. Extensive

discovery occurred and evidence, including expert testimony on

both sides, was presented for six days. Special counsel and

counsel for Judge Holder were well prepared and presented the

respective positions of their clients in a very professional and

competent manner.

The Panel took numerous motions and objections by Judge

Holder under advisement during the hearing. All of these motions

and objections are hereby denied and overruled by the full Panel.

The Panel thus considered the totality of all the evidence

proffered and received during the hearing.

After due deliberation and consideration of all the evidence

and argument of counsel, the Hearing Panel unanimously concludes

that the charges should be and hereby are dismissed. This ruling

is entered pursuant to Rule 20 of the Florida Judicial

Qualifications Commission Rules.1

The evidence was extremely

conflicting and the implications disturbing. The credibility of

certain witnesses was in doubt. The memories of the long past

events were unclear. The Panel concludes that the evidence was

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

1Rule 20 provides in relevant part:

If the Hearing Panel dismisses the formal charges, theHearing Panel shall promptly file a copy of thedismissal order certified by the Chair of the HearingPanel with the Clerk of the Supreme Court.


23/93

3

evidence of guilt. In re: Kinsey, 842 So. 2d 77, 85 (Fla. 2003),

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

member Hearing Panel voted unanimously to dismiss the charges.

DONE AND ORDERED this 23rd day of June, 2005.

FLORIDA JUDICIAL QUALIFICATIONS

COMMISSION

By:/s/ John P. Kuder

JUDGE JOHN P. KUDER,

Chairman, Hearing Panel,

Florida Judicial Qualifications

Commission1110 Thomasville Road


850/488-1581

850/922-6781 (fax)

Copies furnished in accordance with the attached list.


24/93

4

David B. WeinsteinCounsel to the JudgePost Office Box 172179Tampa, FL 33674-0179(813) 224-9100(813) 224-9109 (fax)

Juan MorilloSteven T. CottreauCounsel to the Judge1501 K. Street, N.W.Washington, DC 20005(202) 736-8000(202) 736-8711 (fax)

Charles P. Pillans, IIISpecial CounselThe Bedell Building101 East Adams Street

Jacksonville, FL 32202(904) 353-0211(904) 353-9307 (fax)

Thomas C. MacDonald, Jr.General Counsel1904 Holly LaneTampa, Florida 33629(813) 221-2500(813) 258-6265 (fax)

John BeranekCounsel to the Hearing Panel

Ausley & McMullenP.O. Box 391Tallahassee, Florida 32302(850) 224-9115(850) 222-7560 (fax)

Brooke KennerlyFlorida Judicial QualificationsCommission

1110 Thomasville Road


(850) 488-1581

(850) 922-6781 (fax)


25/933


26/93


27/93


28/93


29/93


30/93


31/93


32/93


33/93


34/93


35/93


36/93

IN THE SUPREME COURT OF FLORIDA

INQUIRY CONCERNING Supreme Court Case

A JUDGE NO. 02-487 No.: SC03-1171

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS

MOTION FOR AWARD OF ATTORNEYS FEES

I. FACTUAL BACKGROUND.1

More than two years ago, in July of 2003, the Florida Judicial

Qualifications Commission (JQC or the Commission) filed a Notice of

Formal Charges (Charges) alleging that Judge Gregory P. Holder had

plagiarized an Air War College (AWC) paper and falsely stated that it was

his original work. To support its allegations, the JQC relied on a copy of an

AWC paper submitted by E. David Hoard in 1996 (Hoard paper) (Exhibit

B to the Charges) and copies of a paper that contains material from the

Hoard paper and which the JQC alleged was submitted to the AWC by

Judge Holder in 1998 (purported Holder paper) (Exhibit A to the

Charges).

At the time the purported Holder paper mysteriously surfaced,

Judge Holder was a cooperating witness in a criminal investigation into

judicial corruption at the Hillsborough County Courthouse. The troubles

within the Courthouse ultimately led to the resignation of at least two circuit

1Some description of the background of this case is necessary here, in part

because the JQC has elected not to transcribe the record.

1

5


37/93

judges. The targets and subjects of the investigation, who faced not just loss

of position but potential incarceration, clearly had a motive to discredit or

seek retribution against Judge Holder.2

In the midst of that investigation, an unmarked envelope (Envelope)

was anonymously slipped under the door of Jeffrey Del Fuoco, an Assistant

United States Attorney who had been involved in the Courthouse corruption

probe. Del Fuoco testified at trial that he found the Envelope early one

weekend morning in January of 2002, when he was serving at the Army

Reserve Headquarters in St. Petersburg, Florida. The Envelope purportedly

contained a typewritten note (Note) to the effect that I thought you would

be interested in this or something should be done about this. The Note

purportedly contained no handwriting but only a typed signature of a

concerned citizen or a concerned taxpayer. The Envelope allegedly

contained copies of the purported Holder paper and the Hoard paper (the

Papers) along with the Note.

In December of 2002, the U.S. Attorneys Office provided these

Papers to the JQC. Although the Papers had been in the possession of the

U.S. Attorneys Office for approximately 11 months, this referral

inexplicably occurred within weeks of Judge Holder writing a letter to the

2 The investigation extended beyond the Courthouse and into other

areas of corruption in the community.

2


38/93

Department of Justice Office of Professional Responsibility complaining

about apparent inactivity in the courthouse corruption investigation. On July

16, 2003, the JQC filed its Charges, alleging that Respondent had violat[ed]

. . . [the] Canons of the Code of Judicial Conduct, and the Rules of

Professional Conduct and had engaged in conduct unbecoming a member

of the judiciary. Commissions Resp. to Mot. For Award of Attorneys

Fees ( JQC Resp.), Ex. A. 3.3

The central issue in this proceeding was whether the purported Holder

paper was genuine. Despite the fact that: (a) the JQC admitted that it had no

witness who could testify based on personal knowledge that the purported

Holder paper was an authentic copy of the actual paper that Judge Holder

submitted to the Air War College (See Response to Resp.s 1st Req. for

Admissions 1); (b) both the Note and the Envelope inexplicably vanished

from the U.S. Attorneys Office and were never forensically tested for

fingerprints or otherwise to attempt to identify their source; (c) no original of

Judge Holders actual AWC paper was ever located; and (d) multiple

witnesses who saw Judge Holders actual paper at or about the time he

submitted it to the Air War College swore that the purported Holder paper

3 Because the submission of an Air War College paper also required the

completion of a signed certification of the papers originality, the JQC

also alleged that Respondent had violated 18 U.S.C. 1001. JQC Resp.,

Ex. A. 2.

3


39/93

was not authentic, the JQC nevertheless vigorously prosecuted this case.4

Judge Holder never contested that the purported Holder paper

contained approximately ten pages of nearly verbatim text from the Hoard

paper. Instead, Respondent maintained that the purported Holder paper was

fabricated to discredit him because of his role as a cooperating witness in the

courthouse corruption investigation. Judge Holder was forced to defend

these serious charges by hiring counsel,5

conducting extensive discovery,

filing and litigating (including full briefing and oral argument) numerous

motions to dismiss the Charges based on multiple evidentiary inadequacies,6

4 For example, immediately upon filing the Charges, the JQC sought to

suspend Judge Holder from the bench despite the fact that the alleged

misconduct occurred over 5 years earlier.

5

Sidley Austin Brown & Wood LLP, one of the law firms retained byJudge Holder, performed its services with the express understanding that

in the event of a favorable outcome, it would be entitled to seek recovery

of attorneys fees from the State of Florida. Respondents other law

firms were engaged on an hourly fee basis.

6Judge Holder filed the following motions on the referenced dates: 1)

Motion in Limine to Exclude Testimony of David Leta (8/27/04); 2)

Motion in Limine to Exclude All Documents provided to the JQC by

Jeffrey Del Fuoco (8/27/04); 3) Motion in Limine to Exclude All

Documents provided to the JQC by the United States Air Force(8/27/04); 4) Motion in Limine to Exclude Testimony of Jeffrey

Downing (8/27/04); 5) Motion in Limine to Exclude Testimony of

Jeffrey Del Fuoco (8/27/04); 6) Motion in Limine to Exclude Evidence

on Best Evidence Grounds (8/27/04); 7) Motion in Limine to Exclude

Evidence on Due Process Grounds (8/27/04); 8) Motion in Limine to

Exclude Copies of the Purported Holder Paper on Authentication

4


40/93

and securing experts regarding document authentication, the creation of

documents (e.g., the purported Holder paper) using Photoshop software,

forensic computer analysis, and other issues.

At trial, Judge Holder presented compelling evidence that the

purported Holder paper was fabricated to retaliate against him for his

participation in the courthouse corruption investigation. After six days of

trial, which included the testimony of more than 25 witnesses, the Hearing

Panel of the JQC voted unanimously to dismiss the charges against Judge

Holder. JQC Resp., Ex. B.

II. ISSUE PRESENTED.

On July 25, 2005, Judge Holder moved this Court to enter an order

awarding attorneys fees incurred by him in the successful defense of this

JQC proceeding pursuant to Thornber v.City of Ft. Walton Beach, 568 So.

2d 914 (Fla. 1990). In Thornber, this Court held that a public official is

entitled to attorneys fees following the successful defense of a case if the

litigation . . . (1) arise[s] out of or in connection with performance of [his]

official duties and (2) serve[s] a public purpose.Id. at 917. The purpose of

Grounds (8/27/04); and, 9) Motion to Dismiss the pending Charges or in

Limine to Exclude the Purported Holder Paper and Hoard Paper Based

on Evidentiary Improprieties (3/21/05). However, despite the fact that

several of these motions were dispositive of the charges, the JQC failed

to timely rule on them. Instead, these motions were carried over into and

through the trial and were summarily denied in the Order of Dismissal.

5


41/93

this rule is to avoid the chilling effect that a denial of representation might

have on public officials in performing their duties properly and diligently.

Id., citing Nuzum v. Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981).

Thus, the public policy expressed in Thornber requires that Judge

Holders attorneys fees be paid. As this Court has recognized, judges in

JQC proceedings are entitled to counsel as a matter of due process, Judicial

Qualifications Commission Rule 15(a), and to effective, affordable counsel

as a matter of fairness. SeeIn re Hapner, 737 So. 2d 1075, 1077 (Fla. 1999)

(recognizing as to costs that [i]t is particularly important that an accused

judge not be placed in the position of foregoing a defense against

unwarranted charges because he or she might otherwise face financial ruin if

unsuccessful in the proceeding.) Otherwise, judges in Respondents

position would face a Hobsons choice between loss of reputation and

removal from the bench on one hand, and mounting an effective defense

(which could lead to financial ruin) on the other. Everyone involved

including the voters who repeatedly elected Judge Holderwould be

damaged by the perpetuation of such a situation.

In its response to Judge Holders motion, the Commission, relying

upon the Attorney General of Florida, concedes that Thornber applies to

judges in proceedings before the Commission. See JQC Resp. at 5 (citing

6


42/93

Attorney Generals Opinion 93-21, 1993 WL 361721 (Fla. A.G. 1993). The

JQC also concedes that the second prong of the Thornber test is satisfied,

stating that [u]nquestionably, the resolution of the highly publicized

charges against Judge Holder and matters relating thereto served a public

purpose. JQC Resp. at 5. Thus, the only issue is whether the JQCs case

against Judge Holder arose out of or in connection with the performance

of Judge Holders official duties.

III. ARGUMENT.

A. The JQC Proceeding Arose Out Of Or In Connection With ThePerformance Of Respondents Official Duties.

The Charges clearly arose in connection with the performance of

Judge Holders judicial duties. Specifically, the Charges and the resulting

litigation arose in connection with an attempt by an anonymous person or

persons7

to interfere with Judge Holders participation in the federal

investigation of judicial corruption at the Hillsborough County Courthouse.

In fact, Judge Holders participation in the corruption investigation

was integral to the performance of his judicial duties. Judicial Canon 3D(1)

states that A judge who receives information or has actual knowledge that

substantial likelihood exists that another judge has committed a violation of

7I.e., whoever fabricated the purported Holder paper, typed the Note, and

slipped the Envelope under Jeffrey Del Fuocos door.

7


43/93

this Code shall take appropriate action. (Emphasis added.)

Consequently, when Judge Holder was approached by law enforcement

agents in connection with the investigation, he did the only proper thing

under the Judicial Canons, tell the agents what he knew and suffer the

attendant consequences.8

By cooperating with the courthouse corruption

investigation, Judge Holder discharged responsibilities that the Judicial Code

required.

In fact, Judicial Canon 3D(3) conclusively answers the official duty

issue before this Court It states that [a]cts of a judge, in the discharge of

disciplinary responsibilities, required or permitted by Sections 3D(1) and

3D(2) are part of a judges judicial duties.... Judicial Canon 3D(3)

(emphasis added). Thus, when viewed in context, this case clearly arose in

connection with Judge Holders performance of his official duties.

In its response, the Commission ignores the facts presented at trial.

The Commission asserts that The preparation of the Air War College

research paper and signing the certification did not arise out of or in

connection with the performance by Judge Holder of his official judicial

8One law enforcement agent testified at trial that the corruption

investigation team was concerned that Judge Holders activities were

being monitored by targets of the investigation. Judge Holder was

advised by federal law enforcement agents to carry a weapon, and he was

provided with a secure cell phone with which to communicate with

federal agents.

8


44/93

duties and thus there is not a sufficient nexus between the writing of the

paper and the certification and the performance of Judge Holders official

duties as a Circuit Judge to satisfy the first prong of the Thornber list [sic].

Id. at 5, 6.

The Commissions position is grounded in neither fact nor law. First,

the Commission ignores the fact that it lost before the hearing panel. It tried

but could not establish that the purported AWC paper was created in

connection with Judge Holders Air Force duties. Instead, the

overwhelming evidence presented at the hearing established that the paper

was not in fact Judge Holders AWC paper and instead was a fabrication.

Indeed, the courthouse corruption investigation and Judge Holders

participation in it were the sole motivation for someone fabricating the

document. In fact, a law enforcement officer testified during the hearing

that other witnesses cooperating in the courthouse corruption investigation

had been retaliated against through the use of fabricated documents. Indeed,

Special Counsel himself, in his closing argument, conceded Judge Holders

actual paper and the Hoard paper (the source of the plagiarized material)

were unlawfully stolen from Judge Holders chambers before the Envelope

was surreptitiously slipped under Jeffrey Del Fuocos door. Indeed, the fact

that the Envelope containing the papers was slipped under the door of Mr.

9


45/93

Del Fuocoand not the door of an Air Force or JQC officialdemonstrates

that derailing the judicial corruption investigation was the focus: Mr. Del

Fuoco had been the AUSA assigned to the investigation of corruption at the

Hillsborough County Courthouse.

Second, the Commissions argument simply misinterprets the

Thornber test. The test focuses not on the conduct alleged, but the

proceeding itself. The issue is whether the litigation arise[s] out ofor in

connection with the performance of [Judge Holders] official duties.

Thornber, 568 So. 2d at 917 (emphasis added).

Third, the JQC took the position below that the Charges were

sufficiently related to Judge Holders judicial duties to justify seeking

suspension despite the fact that the alleged conduct took place over five

years earlier. To now assert that the events in question are not sufficiently

related so as to satisfy the first prong of the Thornbertest is a disingenuous

switch in position.

The inquiry this Court set forth in Thornberlooks to the litigation as a

whole, including context, cause, and motivation. The Thornber test is not

answered by the conclusion that the charges against a public official

involvedallegedfacts or conduct outside the scope of his official duties. If

that were the test, any public official could be subjected to protracted

10


46/93

litigation that could cost him his job and savings based on false allegations

of improper conduct unrelated to his judicial duties. This is especially true

of judges because the Canons of Judicial Conduct broadly govern their

behavior. As the General Counsel to the Commission has recognized:

"The canons require a judge to deal honestly in all his affairs,"

MacDonald said. "Our Supreme Court has held that a judge is a

judge 24 hours a day, seven days a week. Whether he does it

within or without his judicial offices is beside the point."

Thomas A. MacDonald, Esq., quoted in Tampa Tribune, Committee

Proceeds with Trial of Holder (Mar. 5, 2004).9

Where, as here, a judge prevails against allegations clearly intended to

prevent him from effectively performing a judicial duty (in this case,

cooperating with law enforcement investigating alleged corruption among

9The JQC argued in its formal Charges that the acts do relate to official

duties: These acts, if they occurred as alleged, would impair the

confidence of the citizens of this State in the integrity of the judicial

system and in you as a judge, would demean your judicial office, would

constitute a violation of the cited Canons of the Code of Judicial

Conduct, and the Rules of Professional Conduct, would constitute

conduct unbecoming a member of the judiciary, would demonstrate your

present unfitness to hold the office of judge, and would warrant

discipline, including, but not limited to, your removal from office. JQC

Resp., Ex. A 3. The Commissions position is inconsistent: It

simultaneously concedes that Judge Holders conduct was sufficiently

connected to the performance of official duties to charge him and seek

his suspension, yet not sufficiently connected to support repayment of his

fees now that he has prevailed. If no such connection existed, the

Commission had no authority to take jurisdiction in the first place.

11


47/93

his colleagues), it should not matter that the false allegations concerned the

preparation of an Air War College paper.10

Instead, as Judge Holder

established below, the key factor is that the charges were made in an effort

to impair the judicial corruption investigation with which he was

cooperating. Accordingly, the litigation here arose out of or in connection

withperformance of his official duties.

The issue in this case is not merely an issue personal to Judge Holder,

but one which goes to the heart of judicial independence. The denial of fees

in this case will impair the ability of any judge to defend against anonymous

false charges designed to derail a judge from doing his job. The correct

result in these instances is to permit a judge to recover reasonable attorneys

fees when the judge prevails.

B. The Successful Defense Of The Case Served A Public Policy Goal.

Judge Holders successful defense of the charges against him, arising

as they did from the troubled circumstances in the Hillsborough County

Courthouse, has the effect of restoring public confidence in the judiciary and

10 There are undoubtedly cases involving alleged personal moral failures ofjudges which do not involve official conduct but which would directly

affect their fitness to serve. Unless the litigation of such charges is

accompanied by an improper intention (on the part of the charging party)

to interfere with their ongoing performance of judicial duties, the

granting of relief in the instant proceeding would not control the result in

such cases.

12


48/93

in the JQC process for supervising the judiciary. From the inception of the

Commissions case against Respondent, this case has been viewed in

Hillsborough County as entwined with the troubles of the Courthouse and

the resulting judicial corruption investigation. Judge Holders successful

defense was also perceived in that context. See Appendix A (press coverage

of this proceeding).

The Commission has acknowledged that Judge Holders defense

served a public purpose: Unquestionably, the resolution of the highly

publicized charges against Judge Holderand matters relating thereto served

a public purpose.... JQC Resp. at 5-6 (emphasis added). Indeed, the

Commission explains those related matters in a footnote as Judge Holders

participation as an undercover agent in an FBI investigation of corruption.

JCQ Resp. at 6 n.1. But if, as the Commission contends, the litigation

passes the public purpose prong of the Thornber test because of Judge

Holders status as an undercover agent, the Commission should not be

able shield that same fact from the official duties prong of the same test.

The selective relevance urged on this Court by the Commission is not

persuasive. The Commissions own characterization of the litigation

concedes that it did arise out of or in connection with the public corruption

investigation with which Judge Holder cooperated as provided for by the

13


49/93

Judicial Canons. Accordingly, he is entitled to reasonable attorneys fees.

C. The Commissions Arguments Do Not Compel Denial Of

Judge Holders Motion.

The Commission contends that In re Hapner, 737 So. 2d 1075 (Fla.

1999), establishes a rule forbidding the award of attorneys fees in this case.

JQC Resp. at 7. That case is inapposite. InHapner, the Commission sought

and was denied attorneys fees as costs under Article V, Section 12 of the

Florida Constitution. Hapners application of that provision, however, is

irrelevant to a Thornber common law attorney fee awardwhich the

Commission concedes applies in this context. Indeed, a case like the instant

proceeding is precisely the situation envisioned by Thornber, in which the

absence of reimbursement may lead to the chilling effect that a denial of

representation might have on public officials in performing their duties

properly and diligently. Thornber, 568 So. 2d at 917, citing Nuzum v.

Valdes, 407 So. 2d 277 (Fla. 3d DCA 1981).

If this Court finds that Judge Holder is entitled to attorneys fees, such

fees will, of course, be limited to the amount deemed necessary and

reasonable in the context of this case. The determination of the amount of

recoverable attorneys fees should be determined by a special master based

on well-established principles of Florida law. In fact, a decision by this

Court that Judge Holder is entitled to recover reasonable attorneys fees

14


50/93

would not be the beginning of a raid on the judicial branch treasury. As a

historical matter, judges rarely prevail in JQC hearings. In fact, the last time

a judge prevailed at trial against the JQC was approximately 19 years ago in

1986.11

In this rare case, Judge Holder denied all wrongdoing and prevailed.

Thus, the Commissions Thornber obligation to reimburse reasonable

attorneys fees will not unduly deter the Commission from carrying forth its

duties.

IV. CONCLUSION.For the reasons set forth above, Respondents Motion for Award of

Attorneys Fees should be granted and a special master appointed to make a

recommendation as to the amount of a reasonable attorneys fee which

should be awarded to Judge Holder.

(Attorney signature appears on following page.)

11Moreover, if a judge prevails only in part, but is otherwise sanctioned, the

judge likely would not qualify as a prevailing party. In re: Cope, 848 So. 2d

301 (Fla. 2003).

15


51/93

Dated: August 18, 2005

Respectfully Submitted,

/s/ David B. Weinstein

David B. Weinstein

Florida Bar Number 0604410

Jonathan C. Koch


Kimberly S. Mello


Bales Weinstein

Post Office Box 172179Tampa, FL 33672-0179

Telephone No.: (813) 224-9100

Telecopier No.: (813) 224-9109

-and-

Juan 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 Judge Gregory P. Holder

16


52/93

CERTIFICATE OF SERVICE

I certify that on August 18, 2005, a copy of the foregoing,

Memorandum of Law in Support of Respondents Motion for Award of

Attorneys Fees, has been served by regular U.S. Mail to Brooke Kennerly,

Hearing Panel Executive Director, 1110 Thomasville Road, Tallahassee, FL

32303; John Beranek, Counsel to the Hearing Panel, Ausley & McMullen,

P.O. Box 391, Tallahassee, FL 32302; Thomas C. MacDonald, Jr., JQC

General Counsel, 1904 Holly Lane, Tampa, FL 33629; Charles P. Pillans,

III, Esq., JQC Special Counsel, Bedell, Ditmar, DeVault, Pillans & Coxe,

P.A., The Bedell Building, 101 East Adams Street, Jacksonville, FL 32202;

and John P. Kuder, Chairman of the Hearing Panel, Judicial Building, 190

Governmental Center, Pensacola, FL 32501.

/s/ David B. Weinstein

Attorney

17


53/93

IN THE SUPREME COURT OF FLORIDA

Case No. SC03-1171

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

RESPONDENTS INITIAL BRIEF

David B. Weinstein Juan P. Morillo

Florida Bar No.: 604410 Florida Bar No.: 0135933Kimberly S. Mello Steven T. Cottreau

Florida Bar No.: 0002968 Specially AdmittedBales Weinstein Sidley Austin LLP

Post Office Box 172179 1501 K Street, N.W.

Tampa, Florida 33672-0179 Washington, D.C. 20005Telephone: (813) 224-9100 Telephone: (202) 736-8000Telecopier: (813) 224-9109 Telecopier: (202) 736-8711

Counsel for Judge Gregory P. Holder

6


54/93

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................................................................ii, iii

STATEMENT OF THE CASE............................................................................1

STATEMENT OF THE FACTS..........................................................................6

SUMMARY OF THE ARGUMENT................................................................. 10

ARGUMENT ................................................................................................... 14

I. JUDGE HOLDER IS ENTITLED TO REIMBURSEMENT OF THEATTORNEYS FEES INCURRED IN HIS SUCCESSFULL

DEFENSE OF THE JQCS CHARGES UNDER THE THORNBER

DOCTRINE............................................................................................14

A. This litigation arose out of or in connection with theperformance of Judge Holders official duties................................. 16

B. This litigation served a public purpose............................................ 21

II. NEITHER THE DOCTRINE OF SOVEREIGN IMMUNITY, NORANY OTHER DOCTRINE OR STATUTE, PROHIBITS OR LIMITS

THE AWARD OF ATTORNEYS FEES IN THIS PROCEEDING.......... 23

III. NO ADDITIONAL PARTIES ARE PROPER OR NECESSARY

FOR THE ADJUDICATION OF JUDGE HOLDERSENTITLEMENT TO ATTORNEYS FEES............................................. 26

CONCLUSION................................................................................................30

CERTIFICATE OF SERVICE..........................................................................32

CERTIFICATE OF COMPLIANCE ................................................................. 32


55/93

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


56/93

iii

Thornber v. City of Fort Walton Beach ,568 So. 2d 914 (Fla. 1990)...................................................................... passim

STATUTES

768.14, Fla. Stat.............................................................................................24

29.004, Fla. Stat.............................................................................................23

28 U.S.C. 361 ................................................................................................ 27

CONSTITUTIONAL PROVISIONS

Art. 3, 22, Fla. Const. ..................................................................................... 23

Art. 5, 14(c), Fla. Const..................................................................................26

Art. 7, 1, Fla. Const........................................................................................26

Art. 12, 6(a), Fla. Const..................................................................................25

OTHERAUTHORITIES

Codes of Jud. Conduct, Canon 3D(1)................................................................. 16

Codes of Jud. Conduct, Canon 3D(3)................................................................. 17

Del. R. Ct. 68 ................................................................................................... 28

Fla. R. Jud. Admin. 2.030(e) ........................................................................26, 27

Fla. Jud. Qual. Commn R. 15(a)....................................................................... 16

Op. Atty Gen. Fla. 93-21 (1993)....................................................................... 15


57/93

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


58/93

2

AWC in 1998 (purported Holder paper) (Exhibit A to the Charges). Judge

Holder never contested that the purported Holder paper contained approximately

ten pages of nearly verbatim text from the Hoard paper. Instead, he steadfastly

maintained that the purported Holder paper was fabricated, most likely to discredit

him because of his role as a cooperating witness in a federal criminal investigation

of corruption at the Hillsborough County Courthouse (courthouse corruption

investigation).

The seriousness of the Charges, coupled with the factual and legal

complexities of this case, required Judge Holder to retain experienced counsel,

conduct extensive discovery, file and litigate (including full briefing and oral

argument) numerous motions,1

and secure experts regarding document

1Judge Holder filed the following motions on the referenced dates: 1) Motion inLimine to Exclude Testimony of David Leta (8/27/04); 2) Motion in Limine to

Exclude All Documents Provided to the JQC by Jeffrey Del Fuoco (8/27/04); 3)Motion in Limine to Exclude All Documents Provided to the JQC by the United

States Air Force (8/27/04); 4) Motion in Limine to Exclude Testimony ofJeffrey Downing (8/27/04); 5) Motion in Limine to Exclude Testimony of

Jeffrey Del Fuoco (8/27/04); 6) Motion in Limine to Exclude Evidence on BestEvidence Grounds (8/27/04); 7) Motion in Limine to Exclude Evidence on Due

Process Grounds (8/27/04); 8) Motion in Limine to Exclude Copies of thePurported Holder Paper on Authentication Grounds (8/27/04); and 9) Motion to

Dismiss the Pending Charges or in Limine to Exclude the Purported HolderPaper and Hoard Paper Based on Evidentiary Improprieties (3/21/05). The JQC

Hearing Panel did not rule dispositively on the evidentiary motions prior totrial. Instead, evidence at trial was taken subject to such motions, which were

ultimately denied by the Order of Dismissal.


59/93

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


60/93

4

investigation. [Bartoszak Tr. pp. 7, 12-13, at App. 3.]2

On June 23, 2005, the

Hearing Panel of the JQC voted unanimously to dismiss the charges against Judge

Holder. [Order of Dismissal, at App. 4.] Research indicates that this is the first

trial defense verdict against the JQC in almost twenty years.

On July 25, 2005, based on his successful defense of the Charges, Judge

Holder moved this Court to enter an order awarding attorneys fees incurred by

him in the JQC proceeding. In support of his motion, Judge Holder relied on the

well-settled common law doctrine [referred to in the Initial Brief as the Thornber

doctrine], which requires that a public official be reimbursed at public expense

following the successful defense of litigation that a) arises out of or in connection

with performance of his or her official duties, and b) serves a public purpose.

2Pursuant to its September 8, 2005 Order (Order), the Court did not require the

Commission to provide a trial transcript. However, Judge Holders counselobtained uncertified trial transcripts of certain witnesses testimony, which are

included in the Appendix to the Initial Brief and cited as _____Tr. p. _____ atApp. ____. While these trial transcripts are not certified, Judge Holder does

not believe that the accuracy of the transcribed testimony cited by Respondentis reasonably subject to dispute. However, should such a dispute arise, Judge

Holder will respectfully request an opportunity to supplement the record with acertified transcript.


61/93

5

In its response to Judge Holders motion, the JQC conceded that a) the

Thornber doctrine applies to these proceedings, and b) this litigation served a

public purpose. [JQC Resp. p. 5, at App. 5.]3

The JQCs sole argument was that

there was an insufficient nexus with the performance of Judge Holders official

duties as a Circuit Court Judge to satisfy the first prong of the Thornberlist [sic].

[JQC Resp. pp. 5-6, at App. 5.] Judge Holder subsequently filed a Memorandum

of Law in Support of Respondents Motion for Award of Attorneys Fees as well

as Respondents Request for Oral Argument.

On December 2, 2005, this Court entered an Order granting Judge Holders

Request and ordering additional briefing on the following issues:

a) The specific basis and authority for an award of

attorneys fees in this case;

b) Any prohibitions or limitations with regard to amonetary award in this case including, but not

limited to, issues of sovereign immunity orotherwise; and

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

issues presented.

3The Commissions Response to Respondents Motion for Award of Attorneys

Fees will be cited as JQC Resp. p. ____, at App. _____.


62/93

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

S

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

Documents

Transcript of The Florida Bar, Interim Reply to Kenneth Marvin; Review Closure of Castagliuolo Complaint