|Comments: This ruling of the Florida
Supreme Court speaks for itself.
Court of Florida
INQUIRY CONCERNING A JUDGE,
RE: CHARLES W. COPE.
[May 29, 2003]
We review the findings and recommendation of the
Judicial Qualifications Commission (JQC) concerning the conduct of
Circuit Judge Charles W. Cope. We have jurisdiction.
See art. V, § 12 Fla. Const. Judge Cope contests neither the JQC's
findings nor its recommended discipline, and we approve both as
detailed below. Judge Cope argues, however, that he is entitled
to attorneys' fees as the prevailing party because he admitted to the
charges on which the JQC eventually found him guilty and denied those
charges on which the JQC found insufficient evidence. For the
reasons expressed below, we deny his request for attorneys' fees.
The charges brought by the JQC stem from conduct
exhibited by Judge Cope while attending an out-of-state judicial
conference in April 2001. The investigative panel accused Judge
Cope of (1) being publicly intoxicated on two nights; (2) stealing a
hotel room key belonging to two women; (3) engaging in inappropriate
conduct of an intimate nature with one of the women; (4) prowling and
attempting to forcibly enter the women's hotel room; (5) making a
material false statement to the police after being placed under a
citizen's arrest; and (6) failing to disclose his citizen's arrest
upon returning to the bench.
The hearing panel found that clear and
convincing evidence supported the charges of public intoxication
(count I) and inappropriate conduct of an intimate nature (count Ill).
A verdict was directed in Judge Cope's favor on the remaining counts.
The specific accusations and panel findings for counts I and Ill are
1. In the early morning hours of April 4,
2001, while in Carmel-by-the-Sea, California for a judicial
conference, you became intoxicated from alcohol and wandered the
2. You wandered onto the premises of the
Normandy Inn and began eavesdropping on the personal conversation of
a grown woman and her mother, who were sitting outside their shared,
second-floor hotel room.
3. You then went up the stairs and interposed
yourself into the women's conversation.
4. When the women discovered that the door to
their hotel room was locked and they could not find their key, you
suggested they come to your hotel room at the La Playa Hotel a few
5. You and the two women began walking down
the middle of the public street in an obviously intoxicated state
and were picked up by a police officer, who drove the three of you
to your hotel.
6. During the evening of April 4 and early
morning hours of April 5, 2001, you again became very intoxicated in
public and wandered the streets.
7. By your own admission, you were so
intoxicated that you could not remember what you did or where you
8. The inappropriate nature of your conduct
was exacerbated by the fact that your conduct occurred while
attending an out-of-state judicial conference at taxpayer's expense
and the public location of much of your conduct.
The Panel finds Judge Cope guilty in part as to this charge based
largely upon his own admissions. Both Judge Cope and his
counsel admitted that his conduct under this charge was entirely
. . . .
Inappropriate Conduct of an Intimate Nature
12. After the police officer returned the two
women to their hotel room during the early morning hours of April 4,
2001, you returned to the women's room and asked the daughter to
walk with you on the beach.
13. You subsequently engaged or attempted to
engage in conduct of an intimate nature with the daughter, who was
obviously intoxicated and in an emotionally vulnerable state.
14. Regardless of whether the daughter
initiated the intimate conduct or actively resisted sexual advances
by you, your conduct tends to undermine the public's confidence in
the judiciary and demeans the judicial office.
15. The inappropriate nature of your conduct
was exacerbated by your intoxicated state, the fact that your
conduct occurred while attending an out-of-state judicial conference
at taxpayer's expense, and the public location of much of your
The Hearing Panel finds Judge Cope guilty in part on this count
based largely upon the admissions of Judge Cope. Again both
Judge Cope and his counsel consistently agreed that his conduct
under this charge was entirely inappropriate.
Inquiry Concerning a Judge, No. 01-244. Charles W. Cope,
Findings, Conclusions and Recommendations at 4-6 (Fla. Judicial
Qualification Comm'n report filed Aug. 2, 2002). The JQC
specifically found that Judge Cope's conduct brought the judiciary
into disrepute. Id. at 11-12.
Because Judge Cope does not contest the findings
of the JQC, we begin our analysis with the understanding that Judge
Cope's conduct in Carmel, California, brought the judiciary into
disrepute. Bringing the judiciary into disrepute is a violation
of Canon 5A(2), Florida Code of Judicial Conduct. Accordingly,
Cope will be disciplined for his conduct. We give deference to
the hearing panel's determination that insufficient evidence exists to
support counts II, IV, and V. See In re Crowell,
379 So. 2d 107 (Fla. 1979) (because the hearing panel is in a position
to evaluate the evidence first-hand, its findings of fact are of
persuasive force and should be given great weight). We also
agree with the JQC that no canon of judicial conduct required Judge
Cope to report to the JQC or to parties appearing before him that a
citizen had arrested him on a minor misdemeanor charge.
The JQC recommended that Judge Cope be publicly
reprimanded for bringing the judiciary into disrepute. Judge
Cope does not contest the recommended discipline. Given his sincere
remorse and his exemplary performance as a judge, a public reprimand
is appropriate. See In re Norris, 581 So. 2d 578
Judge Cope seeks to recover his attorneys' fees
and costs. We discuss each in turn .
Judge Cope seeks to recover his costs under
Florida Rule of Judicial Administration 2.140. Judge Cope argues
that he is the prevailing party because the JQC found in his favor on
all the charges he contested, and that the only two issues on which he
was found guilty were those to which he had admitted guilt. We
Rule 2.140 provides: "The supreme court may
award reasonable and necessary costs, including costs of investigation
and prosecution, to the prevailing party. Neither
attorneys' fees nor travel expenses of commission personnel shall be
included in an award of costs." Fla. R. Jud. Admin. 2.140 (c)
(emphasis added). The prevailing party for purposes of taxing
costs is the party who prevailed on the significant issues below.
See Moritz v. Hon Enters,. Inc., 604 So. 2d 807 (Fla.
1992). Under this test, the JQC prevailed on the significant
issues in the litigation below. The overriding issue was whether
Judge Cope's conduct brought the judiciary into disrepute.
Although the panel divided Judge Cope's conduct into separate charges,
the charges were temporally related to a single episode. See
Norris, 581 So. 2d 578 (Fla. 1991) (finding that a 72-hour
spree that included discharging a firearm inside a house, driving
while intoxicated, and attempting to commit suicide was a one-time
personal crisis compounded by the undiagnosed disease of alcoholism).
Judge Cope maintains that he is entitled to
costs because he admitted he was publicly intoxicated and engaged in
inappropriate intimate conduct in public, thus rendering a hearing
unnecessary. The record shows, however, that Judge Cope did not
fully admit his guilt either before or during the hearing. Both
his answer and his response to requests for admissions denied the
charges. These denials alone rendered a hearing necessary.
Even at the hearing, his testimony was equivocal:
Q. Do you acknowledge here today that you were
publicly intoxicated on both April3rd and April 4th?
A. I can acknowledge that, yes, but I would like to make
distinctions on —
. . . .
Q. You were intoxicated?
Q. And you were in public?
Q. Walking around in public intoxicated?
A. Yes. With qualifications. yes.
A candid admission required Judge Cope to answer
"yes." An answer of "yes, but" and "yes, with qualifications" falls
short of a genuine admission of wrongdoing. Judge Cope was
implicitly arguing that he was not stumbling-over drunk and thus was
not guilty of violating any canon of judicial conduct. Moreover,
in his closing argument Judge Cope's counsel stated:
If you find, as I think you will, Judge Cope
was intoxicated, please be faithful to the evidence in the case and
at least distinguish the degree of intoxication from that alleged in
Count I . . . .
If you find that Judge Cope is responsible under Count ill
— and, you know, I wasn't born yesterday.
Clearly these arguments. coupled with Judge Cope's testimony. and
his denial of the requested admissions, show that Judge Cope argued
his innocence throughout the proceeding.
Judge Cope argues he is entitled to recover
attorneys' fees under section 57.105, Florida Statutes (2002), because
the charges of theft, prowling and attempted forceful entry, lying to
the police, and failure to report the citizen's arrest were all
unfounded. Section 57.105 sanctions apply only to civil
proceedings. Cf. Procacci Commercial Realty, Inc. v. Dep't
of Health & Rehab. Servs., 690 So. 2d 603, 608 n.8 (Fla. 1st DCA
1997). We have never applied the statute to proceedings before
the JQC, or to any other administrative proceeding, for that matter.
Even if section 57.105 did apply to JQC proceedings, however, Judge
Cope still would not be entitled to attorneys' fees. The claims
the Special Prosecutor pursued against Judge Cope, while ultimately
not proven by the heightened standard of clear and convincing
evidence, were not such that the Special Prosecutor knew or should
have known that they lacked merit.
Based on the foregoing discussion, Judge Cope is
hereby commanded to appear before this Court on a date to be set by
further order of the Court, for the administration of a public
reprimand for bringing the judiciary into disrepute. We direct
that each party bear its own costs for the proceeding.
It is so ordered.
ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and
BELL, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Original Proceeding - Florida Judicial Qualifications Commission
The Honorable James R. Jorgenson, Chairman, Hearing Panel,
Tallahassee, Florida; John Beranek, Counsel to the Hearing Panel,
Tallahassee, Florida; John S. Mills, Special Counsel, The Mills Firm,
Jacksonville, Florida; Heather Ann Solanka Co- Counsel of Foley &
Lardner, Jacksonville, Florida; and Thomas C. MacDonald, Jr., General
Counsel, Tampa, Florida,
for Petitioner, Florida Judicial Qualifications Commission
Robert W. Merkle and David J. Plante of Merkle & Magri, P .A.,