In re Holder, SC03-1171.

• Decision Date: 07 December 2006
• Docket Number: No. SC03-1171.,SC03-1171.
• Citation: 945 So.2d 1130
• Parties: Inquiry Concerning A Judge, re Gregory P. HOLDER.
• Court: Florida Supreme Court

945 So.2d 1130

Inquiry Concerning A Judge, re Gregory P. HOLDER.

No. SC03-1171.

Supreme Court of Florida.

December 7, 2006.

Charles P. Pillans, III of Bedell, Dittmar, DeVault, Pillans and Coxe, P.A., Jacksonville, Florida, and Marvin E. Barkin Interim General Counsel, of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill and Mullis, P.A., Tampa, FL, for Florida Judicial Qualifications Commission, Petitioner.

David B. Weinstein and Kimberly S. Mello of Greenberg Traurig, P.A., Tampa, Florida, Juan P. Morillo and Steven T. Cottreau of Sidley Austin, LLP, Washington, D.C., for Judge Holder, Respondent.

PER CURIAM.

We have for review the motion of Hillsborough County Circuit Judge Gregory P. Holder for attorney's fees incurred in his defense of charges before the Florida Judicial Qualifications Commission. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons detailed below, we deny the motion because the Florida Constitution does not grant this Court the authority to award attorney's fees in JQC proceedings.

FACTS AND PROCEDURAL HISTORY

The instant matter arises out of proceedings before the Florida Judicial Qualifications Commission ("JQC") relating to possible violations of the Code of Judicial Conduct by Judge Holder. In 1994 and 1996, respectively, Judge Holder was elected to the Hillsborough County Court and the Thirteenth Judicial Circuit Court. Prior to his election to judicial office, Judge Holder had a distinguished career in the United States Air Force. After he assumed office, Judge Holder continued to serve as an officer in the United States Air Force Reserve. In 1997, Judge Holder enrolled in the United States Air Force Air War College, the completion of which was a requirement for his promotion to the rank of colonel. In early 1998, Judge Holder submitted a paper to the Air War College on the Anglo-American Combined Bomber Offensive in Europe During World War II. Judge Holder subsequently graduated from the Air War College and was promoted to the rank of colonel.

In 2002, Assistant United States Attorney Jeffrey Del Fuoco, who served in the United States Army Reserve, claimed that an unmarked manila envelope was placed under the door of his office at the Army Reserve Headquarters in St. Petersburg. The envelope allegedly contained copies of two papers submitted to the Air War College with an anonymous note indicating that action should be taken on the matter.¹ One paper, uncontestedly on the same topic as the paper Judge Holder submitted to the Air War College in 1998, was submitted to the Air War College by E. David Hoard in 1996 ("the Hoard paper"). The other paper was allegedly the paper Judge Holder submitted to the Air War College in 1998 ("the alleged Holder paper"). This second paper contained significant amounts of material taken verbatim from the Hoard paper. In December 2002, the United States Attorney's Office provided these two papers to the JQC. In July of 2003, the JQC filed a notice of formal charges against Judge Holder alleging that his submission of a plagiarized paper to the Air War College constituted both a violation of the Code of Judicial Conduct and a violation of federal law because Judge Holder's written certification that the paper was his own work constituted a false statement made to the federal government.

Throughout the JQC investigation, discovery, and hearing process, Judge Holder maintained that the paper containing the plagiarized material from the Hoard paper was not the paper he submitted to the Air War College but was, instead, a fabricated document made to look like his actual paper. Judge Holder hypothesized that this allegedly fabricated paper was created in an effort to discredit him in his role as a whistleblower in a Hillsborough County Courthouse scandal that was then being investigated. In June of 2005, the case was tried for six days before the JQC hearing panel. On June 22, 2005, the JQC hearing panel voted unanimously to dismiss the charges. On the same day, the JQC also entered an order recommending that this Court award costs to Judge Holder as the prevailing party in the instant matter. Judge Holder expended significant resources in attempting to defend the charges brought by the JQC. On July 25, 2005, Judge Holder filed a motion in this Court for attorney's fees, which the JQC challenged. This review followed.

ANALYSIS

Judge Holder asserts that he is entitled to an award of attorney's fees under the common law doctrine affirmed by this Court in Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990). In Thornber, this Court stated:

For public officials to be entitled to representation at public expense, the litigation must (1) arise out of or in connection with the performance of their official duties and (2) serve a public purpose.

Id. at 917 (citing Chavez v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA 1990)). The Court explained the origins and purpose of the doctrine, stating:

Florida courts have long recognized that public officials are entitled to legal representation at public expense to defend themselves against litigation arising from the performance of their official duties while serving a public purpose. The purpose of this 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 916-17 (citations omitted). The JQC contends that the proceedings below do not meet the first prong of the test announced in Thornber because the formal charges against Judge Holder relate to extrajudicial conduct that allegedly occurred while he was attending a program to advance his military career. However, we do not address the arguments under Thornber further because the resolution of this matter does not hinge on the Thornber test.

In fact, the Thornber doctrine has never been applied to the attorney's fees incurred by a judge in defending charges filed by the JQC. Although Judge Holder correctly points out that a 1993 opinion of the Attorney General of Florida states that the Thornber doctrine applies to attorney's fees in JQC proceedings, see Op. Att'y Gen. Fla. 93-21 (1993), opinions of the Attorney General are not binding upon this Court. See Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 473 (Fla.2005) (citing State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993)); In re Advisory Opinion to the Governor, 600 So.2d 460, 463 n. 3 (Fla.1992) (disapproving an opinion of the Attorney General). Upon consideration of the matter, we disagree with the opinion of the Attorney General and conclude that the Thornber doctrine does not apply to JQC proceedings because of an implicit prohibition in the Florida Constitution.

Article V, section 12(c) of the Florida Constitution vests this Court with the power to review the findings and recommendations of a JQC hearing panel, and to "accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the commission." Art. V, § 12(c)(1), Fla. Const. The constitution also specifically states that "[t]he supreme court may award costs to the prevailing party" in JQC proceedings. Id. § 12(c)(2) (emphasis supplied). Notably, the constitution is silent with regard to the authority of this Court to award attorney's fees in JQC proceedings. Further, in In re Judge Hapner, 737 So.2d 1075 (Fla.1999), we held that attorney's fees in JQC proceedings could not be awarded as costs. See id. at 1077. We conclude that the express constitutional vesting of authority in this Court to grant costs in JQC proceedings implies that this Court is without similar authority to grant attorney's fees in JQC proceedings.

We have considered the principle of judicial restraint urged in the concurring-in-result-only opinion, but find it inapplicable. Of course, we have long subscribed to a principle of judicial restraint by which we avoid considering a constitutional question when the case can be decided on nonconstitutional grounds. See, e.g., State v. Mozo, 655 So.2d 1115, 1117 (Fla.1995) ("[W]e adhere to the settled principle of constitutional law that courts should endeavor to implement the legislative intent of statutes and avoid constitutional issues."); State v. Covington, 392 So.2d 1321, 1322-23 (Fla.1981) ("It is a `settled principle of constitutional law that courts should not pass upon the constitutionality of statutes if the case in which the question arises may be effectively disposed of on other grounds.'") (quoting Singletary v. State, 322 So.2d 551, 552 (Fla.1975)); Franklin County v. State, 24 Fla. 55, 3 So. 471, 472 (1888) ("[A] court will not, as a general rule, pass upon a constitutional question, and decide a statute to be invalid, unless a decision upon that very point becomes necessary. . . .").

We do not intend to violate that principle here. We simply believe it does not apply. We have generally applied this principle when called upon to decide the constitutionality of a specific statute or specific conduct. See, e.g., Fla. Bar v. Gold, 937 So.2d 652, 655 (Fla.2006) (declining to determine whether application of the Rules Regulating the Florida Bar would unconstitutionally suppress free speech where the issue could be resolved on other grounds); Mozo, 655 So.2d at 1117 (declining to address whether interception of cordless phone conversations violates the constitutional rights of privacy where the case could be decided on statutory grounds); Floridians United for Safe Energy, Inc. v. Pub. Serv. Comm'n, 475 So.2d 241, 242 (Fla.1985) (declining to determine whether a session law violated the single subject requirement where the case could be decided on other grounds); Covington, 392 So.2d at 1322-23 (declining to find a statute unconstitutionally vague where the order under review could be affirmed on other grounds).

Here, we do not decide the constitutionality of a particular statute or action, but...