Inquiry Concerning a Judge No. 14-488 Re: Kimberly Michele Shepard , 217 So. 3d 71 ( 2017 )

Supreme Court of Florida
____________
No. SC15-1746
____________
INQUIRY CONCERNING A JUDGE NO. 14-488 RE: KIMBERLY
MICHELE SHEPARD.
[May 4, 2017]
PER CURIAM.
This matter is before the Court to review the determination of the Florida
Judicial Qualifications Commission (JQC) that Circuit Court Judge Kimberly
Michele Shepard violated Canons 7A(3)(e)(ii) (candidate shall not knowingly
misrepresent facts concerning the candidate or an opponent) and 7A(3)(b)
(candidate shall act with integrity) of the Florida Code of Judicial Conduct, and
Rule 4-8.2(b) (candidate shall comply with applicable provisions of the Code of
Judicial Conduct) of the Rules Regulating The Florida Bar during her judicial
campaign. We conclude that the JQC Hearing Panel’s findings are supported by
clear and convincing evidence. For the violations in this case, the Hearing Panel
recommended: (1) a public reprimand; (2) a ninety-day suspension without pay;
and (3) payment of investigative costs and the costs of these proceedings. We
approve the sanction recommended by the Hearing Panel.
I. BACKGROUND
Judge Shepard took office as a circuit court judge in the Ninth Judicial
Circuit after a contested election in August 2014. This case arose out of charges
brought against Judge Shepard alleging that she circulated a “deceptive” and
“misleading” advertisement during her campaign for election to judicial office.
On September 24, 2015, the JQC Investigative Panel filed a notice of formal
charges against Judge Shepard under article V, section 12(b) of the Florida
Constitution and Florida Judicial Qualifications Commission Rule 6(f). The notice
of formal charges alleged violations of Canons 1 (judge shall uphold the integrity
and independence of the judiciary), 2A (judge shall respect and comply with the
law and shall act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary), 7A(3)(b), 7A(3)(c) (candidate shall
prohibit employees and officials who serve at the pleasure of the candidate, and
shall discourage other employees and officials subject to the candidate’s direction
and control, from doing on the candidate’s behalf what the candidate is prohibited
from doing under the Code of Judicial Conduct), 7A(3)(d) (candidate, except to the
extent permitted by Canon 7C(1), shall not authorize or knowingly permit any
other person to do for the candidate what the candidate is prohibited from doing
-2-
under the Code of Judicial Conduct), and 7A(3)(e)(ii) of the Florida Code of
Judicial Conduct, and was amended on January 8, 2016, to allege violations of
Rule 4-8.2(b) of the Rules Regulating The Florida Bar. The Amended Notice of
Formal Charges set forth in relevant part:
1. During your contested 2014 judicial campaign both you and your
opponent sought the endorsement of the Orlando Sentinel
newspaper. The Orlando Sentinel chose to endorse your opponent,
Norberto Katz. In their endorsement they highlighted his
experience. They also noted that Mr. Katz had been suspended
from the Florida Bar in 1995 for misconduct. They noted that he
had diligently worked to rebuild his reputation and had become
chair of the Bar’s family law section and had been endorsed by 18
past Orange County Bar presidents, a clear indication that he had
regained his good standing within the legal community.
2. Prior to the Orlando Sentinel formally selecting Mr. Katz, you
circulated a campaign advertisement that stated:
“Ms. Shepard has done well. She has kept her promises.
She has worked hard. She has maintained her integrity.”
- The Orlando Sentinel.
3. This quotation was deceptive because it was actually an
endorsement you received during a 1994 campaign for re-election
to the Florida House. Compounding the mendacity, your use of
this quote on the advertisement did not include the date that the
Sentinel had actually endorsed you.
4. In defending your undated use of this 20-year-old endorsement you
stated that you were attempting to show that you had been in
public service before, and had previously earned the public’s trust.
However, nowhere on this advertisement is there a reference to
your prior public service as a member of the Florida House. In
fact, in quoting the prior endorsement, you purposefully excluded
parts of the original endorsement that made reference to your
legislative service.
-3-
(Emphasis and alteration omitted.)
Judge Shepard answered, denying that her advertisement was “either
intentionally or actually deceptive” or violative of Canons 1, 2A, 7A(3)(b),
7A(3)(c), 7A(3)(d), or 7A(3)(e)(ii) of the Florida Code of Judicial Conduct. Judge
Shepard denied that she attempted to knowingly mislead anyone through her
advertisement. Judge Shepard asserted that “[t]here is no indication that [her]
integrity or character underwent a fundamental transformation in the intervening
[twenty] years since being recognized and praised by the Orlando Sentinel,” “the
Orlando Sentinel did not recede [or withdraw] from their earlier evaluation of [her]
integrity and diligent performance in public office,” and the statements made in her
advertisement were correctly attributed and truthful. Judge Shepard cited to In re
Kinsey, 842 So. 2d 77 (Fla. 2003), and further claimed that she could not be found
guilty of violating Canons 1 and 2A because she “was not a judge as defined by the
Canons of Judicial Conduct and the Florida Supreme Court at the time [the conduct
set forth in the Amended Notice of Formal Charges occurred and] the quoted
language was used.” Judge Shepard also asserted that she could not be found
guilty of violating Canons 7A(3)(b)-(d) because the Amended Notice of Formal
Charges purportedly contained insufficient factual allegations to support the
charges.
-4-
Judge Shepard raised a number of defenses within her answer, including that
Canon 7A(3)(e)(ii) is unconstitutional on its face and as applied and violates the
First Amendment to the United States Constitution. Judge Shepard further asserted
that Rule 4-8.2(b) of the Rules Regulating The Florida Bar had “no applicability to
the present inquiry.”
On April 8, 2016, an evidentiary hearing was held before the Hearing Panel.
The Hearing Panel issued its “Findings of Fact, Conclusions of Law and
Recommendations of the Hearing Panel, Florida Judicial Qualifications
Commission” (Findings) on June 9, 2016. In re Judge Kimberly Michele Shepard,
No. 14-488 (Fla. Jud. Qual. Comm’n June 9, 2016).
II. FINDINGS OF THE HEARING PANEL
According to the Hearing Panel, then-attorney Shepard “served as a
legislator in the Florida House of Representatives” from 1992 to 1994. Id. at 5. In
1994, then-attorney Shepard “received the Orlando Sentinel’s endorsement for her
legislative reelection campaign.” Id. The Orlando Sentinel’s 1994 endorsement
was titled “Shepard, with enthusiasm” and stated in relevant part:
[M]s. Shepard has done well. She has kept her promises. She has
worked hard. She has legislated effectively. She has maintained her
integrity. She has served her constituents diligently.
Id. (alteration in original) (emphasis omitted). In 2014, prior to becoming a judge,
then-attorney Shepard “launched a bid and qualified for judicial office.” Id. Then-
-5-
attorney Shepard “signed a ‘Statement of Candidate for Judicial Office’
acknowledging that she had received, read and understood the requirements of
Florida’s Code of Judicial Conduct.” Id. at 6. Then-attorney Shepard “ran for
judicial office against Norberto Katz, a child support hearing officer” whom she
“knew . . . had been previously disciplined for ethics violations.” Id. Then-
attorney Shepard “felt that if no one would challenge [Mr. Katz] and provide a
significant challenge to him that he would arrive in office without the public
having any real idea of what his disciplinary record is.” Id. “During the campaign,
both candidates appeared for an interview before the Orlando Sentinel’s editorial
board.” Id. On July 26, 2014, the Orlando Sentinel endorsed Mr. Katz, stating in
part that he “has worked diligently to rebuild his reputation” and “[w]e don’t think
his 90-day suspension [by The Florida Bar] in 1995 should carry with it a lifetime
ban from the bench.” Id. at 7-8. Thereafter, then-attorney Shepard distributed the
judicial campaign advertisement at issue.1 Id. at 8. The advertisement compared
then-attorney Shepard to Mr. Katz in multiple categories and stated in relevant
part:
“Ms. Shepard has done well. She has kept her promises. She has
worked hard. She has maintained her integrity.” - The Orlando
Sentinel
1. Judge Shepard testified that the advertisement was circulated after the
Orlando Sentinel endorsed Mr. Katz.
-6-
Id.
The Hearing Panel heard testimony from Donald Lykkebak, Esquire, an
individual lacking any “involvement with or stake in the Katz campaign.” Id. at 9.
Mr. Lykkebak received then-attorney Shepard’s advertisement in the mail after the
Orlando Sentinel endorsed Mr. Katz. Id. “Mr. Lykkebak read the Orlando
Sentinel, knew that its 2014 endorsement had gone to Mr. Katz and believed that
[then-attorney Shepard’s advertisement] was ‘untruthful,’ ‘deceptive,’ and
intended to deceive the public.” Id. Mr. Lykkebak also believed that the
advertisement “was ‘purposefully edited’ to remove the 1994 date, and any
reference to [then-attorney] Shepard’s legislative service.” Id. The Hearing Panel
also heard testimony from Judge Shepard and the three witnesses called in her
defense. Id. at 9-14. Judge Shepard “disclaimed any intent to deceive or mislead.”
Id. at 11.
The Hearing Panel found that the advertisement:
purported to be a direct quotation taken from the Orlando Sentinel, but
significantly (1) omitted the 1994 date of the newspaper’s
endorsement; (2) omitted the fact that this statement was twenty years
old, and made in connection with a 1994 legislative race, not the
current judicial race; and (3) was substantially edited to delete all
reference to [then-attorney] Shepard’s legislative service. Both the
intervening sentence and end sentence of the paragraph of the
[Orlando Sentinel’s 1994] endorsement were removed without any
indication.
-7-
Id. at 8-9 (emphasis omitted). The Hearing Panel further found that “[then-
attorney] Shepard knowingly misrepresented facts surrounding [the Orlando
Sentinel’s 1994] endorsement” in the advertisement. Id. at 22. The Hearing Panel
explained that “[b]y knowingly deleting the 1994 date of the Orlando Sentinel’s
endorsement, and all references to her legislative service, [then-attorney] Shepard
made it appear that she had received the Orlando Sentinel’s current endorsement,
which was patently untrue.” Id. at 19. The Hearing Panel also found that then-
attorney Shepard “deliberate[ly]” deleted from the advertisement two sentences
from the Orlando Sentinel’s 1994 endorsement relating to her legislative service.
Id. at 13. The Hearing Panel concluded:
[Then-attorney Shepard’s] selective editing of the [Orlando
Sentinel’s] 1994 endorsement, in context, was much more than a
matter of inexact punctuation, or a mistake. . . . [Then-attorney]
Shepard believed Mr. Katz to be unworthy of judicial office, and that
any action she undertook to defeat him was justified. In doing so, she
knowingly misled the public by campaign literature which implied
that she was endorsed by the Orlando Sentinel, when this was untrue.
Id. at 15.
Ultimately, the Hearing Panel found Judge Shepard not guilty of violating
Canons 1 and 2A of the Florida Code of Judicial Conduct under In re Kinsey. Id.
The Hearing Panel also found Judge Shepard not guilty of violating Canons
7A(3)(c) and 7A(3)(d) because “[t]here was no allegation or proof that any
employee or official of [then-attorney Shepard’s] campaign or that any person
-8-
other than [then-attorney Shepard] engaged in conduct prohibited by the judicial
canons.” Id. at 20. However, the Hearing Panel found Judge Shepard guilty of
violating Canon 7A(3)(e)(ii) “by knowingly misrepresenting ‘other facts’
concerning her candidacy” and Canon 7A(3)(b) “by acting in a manner
inconsistent with integrity of the judiciary by these knowing misrepresentations.”
Id. at 20-21. The Hearing Panel further found Judge Shepard guilty of violating
Rule 4-8.2(b) of the Rules Regulating The Florida Bar. Id. at 21. Accordingly, the
Hearing Panel recommended: (1) a public reprimand; (2) a ninety-day suspension
without pay; and (3) payment of investigative costs and the costs of these
proceedings. Id. at 22-23.
After the Hearing Panel’s Findings were filed, this Court issued an order to
Judge Shepard to show cause why the recommended action should not be granted.
Both Judge Shepard and the JQC responded in detail to the order to show cause.
III. ANALYSIS
A. First Amendment Claim
We first address Judge Shepard’s claim that Canon 7A(3)(e)(ii) violates the
First Amendment to the United States Constitution. The constitutionality of a
Canon of Judicial Conduct is a pure question of law subject to de novo review.
See, e.g., Zingale v. Powell, 885 So. 2d 277, 280 (Fla. 2004) (“[C]onstitutional
interpretation, like statutory interpretation, is performed de novo.”).
-9-
“Judges are not politicians, even when they come to the bench by way of the
ballot. And a State’s decision to elect its judiciary does not compel it to treat
judicial candidates like campaigners for political office.” Williams-Yulee v. Fla.
Bar, 135 S. Ct. 1656, 1662 (2015). Therefore, “States may regulate judicial
elections differently than they regulate political elections, because the role of
judges differs from the role of politicians.” Id. at 1667. The Supreme Court’s
“precedents applying the First Amendment to political elections have little
bearing” in the context of judicial elections. Id.Canon 7A(3)(e)(ii) provides: “A candidate for a judicial office . . . shall
not . . . knowingly misrepresent the identity, qualifications, present position or
other fact concerning the candidate or an opponent.” On its face, Canon
7A(3)(e)(ii) prohibits a judicial candidate from knowingly misrepresenting any fact
concerning the candidate or an opponent. Canon 7A(3)(e)(ii) thus restricts a
judicial candidate’s speech. Therefore, in order to be constitutional and not in
violation of the First Amendment, Canon 7A(3)(e)(ii) “must be narrowly tailored
to serve a compelling state interest.” Florida Bar v. Williams-Yulee, 138 So. 3d
379, 384 (Fla. 2014), aff’d sub nom. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656(2015); see Republican Party of Minn. v. White, 536 U.S. 765, 774-75 (2002).
Canon 7A(3)(e)(ii) furthers Florida’s compelling interest in preserving
public confidence in the integrity of the judiciary. As this Court has explained,
- 10 -
“Florida has a compelling interest in protecting the integrity of the judiciary and
maintaining the public’s confidence in an impartial judiciary . . . .” Florida Bar v.
Williams-Yulee, 138 So. 3d at 385; see, e.g., In re Kinsey, 842 So. 2d at 87; In re
Code of Judicial Conduct (Canons 1, 2, & 7A(1)(b)), 603 So. 2d 494, 497 (Fla.
1992). “Canon 7A(3)(e)(ii) is intended to preserve the integrity of the judiciary
and maintain the public’s confidence in a fair, impartial, and independent
judiciary.” In re Dempsey, 29 So. 3d 1030, 1033 (Fla. 2010). “The concept of
public confidence in judicial integrity does not easily reduce to precise definition,
nor does it lend itself to proof by documentary record. But no one denies that it is
genuine and compelling.” Williams-Yulee v. Fla. Bar, 135 S. Ct. at 1667. A
judicial candidate who knowingly misrepresents any fact concerning the candidate
or an opponent necessarily intends to mislead the public concerning the judicial
election, thus undermining the public’s confidence in the integrity of the judiciary.
See, e.g., In re Renke, 933 So. 2d 482, 495 (Fla. 2006). Such conduct “raises an
appearance of impropriety and calls into question, in the public’s mind, the
judge’s,” Florida Bar v. Williams-Yulee, 138 So. 3d at 385, integrity. Florida thus
has a compelling state interest “in safeguarding the public’s confidence in the
honesty of its judiciary.” Winter v. Wolnitzek, 834 F.3d 681, 693 (6th Cir. 2016).
Canon 7A(3)(e)(ii) is narrowly tailored to serve Florida’s compelling interest
in preserving public confidence in the integrity of the judiciary. Canon
- 11 -
7A(3)(e)(ii) prohibits the narrowest form of judicial candidate speech necessary to
safeguard the public’s confidence in the honesty of its judiciary: a judicial
candidate’s knowing misrepresentation of any fact concerning the candidate or an
opponent. See, e.g., In re Dempsey, 29 So. 3d at 1033; In re Renke, 933 So. 2d at
488; In re Kinsey, 842 So. 2d at 90. Canon 7A(3)(e)(ii) does not unconstitutionally
“chill” a judicial candidate’s speech because it does not punish negligent
misrepresentations of fact concerning the candidate or an opponent. See Brown v.
Hartlage, 456 U.S. 45, 61 (1982) (“The chilling effect of . . . absolute
accountability for factual misstatements in the course of political debate is
incompatible with the atmosphere of free discussion contemplated by the First
Amendment in the context of political campaigns.”). Canon 7A(3)(e)(ii)’s “other
fact” clause only prohibits a judicial candidate from knowingly making a
misrepresentation of fact concerning the candidate or an opponent. See, e.g., In re
Dempsey, 29 So. 3d at 1033; In re Renke, 933 So. 2d at 488; In re Kinsey, 842 So.
2d at 90. Therefore, Canon 7A(3)(e)(ii) is narrowly tailored because it safeguards
the public’s confidence in the honesty of its judiciary while maintaining sufficient
“breathing space” for judicial candidates to exercise their First Amendment rights.
See Brown, 456 U.S. at 61.
Judge Shepard argues that Canon 7A(3)(e)(ii)’s “other fact” clause is
overbroad and vague. We disagree. “When legislation is drafted so that it may be
- 12 -
applied to conduct that is protected by the First Amendment, it is said to be
unconstitutionally overbroad.” Wyche v. State, 619 So. 2d 231, 235 (Fla. 1993).
“A statute or ordinance is void for vagueness when, because of its imprecision, it
fails to give adequate notice of what conduct is prohibited.” Id. at 236. Canon
7A(3)(e)(ii) is not overbroad: it prohibits a judicial candidate from knowingly
making a misrepresentation of fact concerning the candidate or an opponent and, as
explained previously, the First Amendment permits this particular regulation of
speech because it withstands strict scrutiny. Canon 7A(3)(e)(ii) is not void for
vagueness: it is sufficiently precise to inform a person of ordinary intelligence
what judicial candidate statements are proscribed—knowing misrepresentations of
fact concerning the candidate or an opponent. Accordingly, Canon 7A(3)(e)(ii) is
facially constitutional.
Judge Shepard asserts that Canon 7A(3)(e)(ii) is unconstitutional as applied
to her judicial campaign advertisement. Specifically, Judge Shepard claims that
she cannot be punished for distributing four true statements regarding her
reputation for character and integrity and correctly attributing those statements to
the Orlando Sentinel. But the so-called “four true facts” were distorted and
misrepresented because they were taken out of context. Judge Shepard violated
Canon 7A(3)(e)(ii)’s “other fact” clause by “knowingly misrepresent[ing] facts”
surrounding the Orlando Sentinel’s 1994 endorsement in her judicial campaign
- 13 -
advertisement. In re Judge Kimberly Michele Shepard, No. 14-488, at 22 (Fla.
Jud. Qual. Comm’n June 9, 2016). Then-attorney Shepard “knowingly,” id. at 19,
and “deliberate[ly],” id. at 13, deleted from the advertisement “the intervening
sentence . . . of the paragraph of the [Orlando Sentinel’s 1994] endorsement . . .
without any indication,” id. at 9. That sentence stated: “She has legislated
effectively.” Id. at 5 (emphasis omitted). The advertisement thus falsely purported
to quote language from the endorsement verbatim when, in fact, it “was
substantially edited to delete all reference to [then-attorney] Shepard’s legislative
service.” Id. at 9. The record on review further demonstrates that then-attorney
Shepard knew how to use, and used, an ellipsis to indicate an omission within a
quotation on the opposite side of the same advertisement. Additionally, the 1994
date of the Orlando Sentinel endorsement and the end sentence of the paragraph of
the endorsement relating to her legislative service were omitted from the
advertisement. As explained by the Hearing Panel, “The Judge’s selective editing
of the [Orlando Sentinel’s] 1994 endorsement, in context, was much more than a
matter of inexact punctuation, or a mistake. . . . [Then-attorney] Shepard believed
Mr. Katz to be unworthy of judicial office, and that any action she undertook to
defeat him was justified.” Id. at 15. The First Amendment does not protect such
knowing misrepresentations of fact by candidates for judicial office. Accordingly,
- 14 -
Canon 7A(3)(e)(ii) is constitutional as applied to then-attorney Shepard’s
advertisement.
B. Due Process Claim
We next address Judge Shepard’s claim that the JQC violated her right to
due process. “Procedural due process requires that a judge be given notice of the
proceedings, that the judge be given an opportunity to be heard, and that the
proceedings against the judge be essentially fair.” In re Graziano, 696 So. 2d 744,
750 (Fla. 1997). “Additionally, due process requires the JQC to be in substantial
compliance with its procedural rules.” Id.First, Judge Shepard asserts that the Investigative Panel violated her right to
due process by improperly alleging violations of four judicial canons—Canons 1,
2A, 7A(3)(c), and 7A(3)(d)—for which there purportedly could be no probable
cause. This claim lacks merit because the Hearing Panel ultimately found Judge
Shepard not guilty of violating Canons 1, 2A, 7A(3)(c), and 7A(3)(d). Regardless,
the Investigative Panel did not violate Judge Shepard’s right to due process by
alleging violations of these four canons. The Amended Notice of Formal Charges
informed Judge Shepard that the Investigative Panel was asserting violations of
Canons 1, 2A, 7A(3)(c), and 7A(3)(d). The Amended Notice of Formal Charges
also informed Judge Shepard of her right to file a written answer to these charges.
Judge Shepard was, in fact, given an opportunity to be heard on these charges.
- 15 -
Judge Shepard filed written pleadings and motions, and appeared before the
Investigative and Hearing Panels of the JQC to contest these charges. Judge
Shepard received rulings on her pleadings and motions, either from the Chair of
the Hearing Panel or the full Hearing Panel, in conformity with the JQC’s
procedural rules. See In re Graziano, 696 So. 2d at 750; Fla. Jud. Qual. Comm’n
R. 7(b) (“The Chair of the Hearing Panel shall dispose of all pretrial motions.
These motions may be heard by teleconference or be determined with or without
hearings. The Chair’s disposition of motions shall be subject to review by the full
Hearing Panel.”). Although Judge Shepard may disagree with the Investigative
Panel’s Amended Notice of Formal Charges, she has failed to demonstrate that the
proceedings were unfair.
Second, Judge Shepard asserts that the Investigative Panel violated her right
to due process by erroneously introducing JQC Exhibits 5, 7, and 8 at the final
hearing contrary to two of her motions. This claim is not preserved for review
because it differs from the one raised before the Hearing Panel. See Smith v. State,
931 So. 2d 790, 798 (Fla. 2006); Spann v. State, 857 So. 2d 845, 856 (Fla. 2003).
Third, Judge Shepard asserts that the Investigative Panel violated her right to
due process by improperly introducing evidence at the final hearing—over her
objections—purportedly excluded by sections 90.403 and 90.404, Florida Statutes.
Judge Shepard has failed to explain why the evidence introduced by the
- 16 -
Investigative Panel must be excluded under those statutory provisions.
Accordingly, this claim is inadequately briefed and is not preserved for review.
See Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (“The purpose of an
appellate brief is to present arguments in support of the points on appeal. Merely
making reference to arguments below without further elucidation does not suffice
to preserve issues . . . .”).
Fourth, Judge Shepard asserts that the Hearing Panel violated her right to
due process by denying her a meaningful opportunity to cross-examine Mr.
Lykkebak regarding his understanding of the allegation with which Judge Shepard
was charged. Judge Shepard has failed to explain how she was denied a
meaningful opportunity to cross-examine Mr. Lykkebak. Accordingly, this claim
is inadequately briefed and is not preserved for review. See id.And fifth, Judge Shepard asserts that the Hearing Panel violated her right to
due process by denying her the opportunity to discover certain documents related
to the Investigative Panel’s original complaint. However, the Hearing Panel did
not violate Judge Shepard’s right to due process by denying her discovery requests
because the documents sought by Judge Shepard are confidential under the Florida
Constitution and the Florida Judicial Qualification Rules. See art. V, § 12(a)(4),
Fla. Const.; In re Graziano, 696 So. 2d at 751-52; Fla. Jud. Qual. Comm’n R.
12(c), 23(a). The Hearing Panel substantially complied with its procedural rules,
- 17 -
and nothing within this record suggests that the Investigative Panel withheld non-
confidential documents from Judge Shepard. Accordingly, we deny Judge
Shepard’s final due process claim.
C. Findings of the Hearing Panel
“This Court reviews the findings of the JQC to determine whether the
alleged violations are supported by clear and convincing evidence . . . .” In re
Shea, 110 So. 3d 414, 418 (Fla. 2013) (quoting In re Woodard, 919 So. 2d 389,
390 (Fla. 2006)). “This quantum of proof is an intermediate standard, more than ‘a
preponderance of the evidence,’ but less than ‘beyond and to the exclusion of a
reasonable doubt.’ ” In re Hawkins, 151 So. 3d 1200, 1212 (Fla. 2014) (quoting In
re Holloway, 832 So. 2d 716, 726 (Fla. 2002)). “If the findings meet this
intermediate standard, then they are of persuasive force and are given great
weight.” In re Turner, 76 So. 3d 898, 901 (Fla. 2011) (quoting In re Graziano, 696
So. 2d at 753). The Hearing Panel found that Judge Shepard violated Canons
7A(3)(e)(ii) and 7A(3)(b) of the Florida Code of Judicial Conduct and Rule 4-
8.2(b) of the Rules Regulating The Florida Bar. We conclude that the Hearing
Panel had before it clear and convincing evidence to support these findings.2
2. We discuss only those charges on which Judge Shepard was found guilty.
The Hearing Panel found Judge Shepard not guilty of violating Canons 1, 2A,
7A(3)(c), and 7A(3)(d).
- 18 -
Judge Shepard argues that there is no clear and convincing evidence to
support the Hearing Panel’s finding that she violated Canon 7A(3)(e)(ii), which
provides: “A candidate for a judicial office . . . shall not . . . knowingly
misrepresent the identity, qualifications, present position or other fact concerning
the candidate or an opponent.” Specifically, Judge Shepard asserts that the record
does not establish clear and convincing evidence that she knowingly
misrepresented that she had obtained the Orlando Sentinel’s 2014 endorsement in
her judicial campaign advertisement. However, Judge Shepard misapprehends the
finding of the Hearing Panel. The Hearing Panel ultimately found that Judge
Shepard violated Canon 7A(3)(e)(ii) by knowingly misrepresenting the Orlando
Sentinel’s 1994 endorsement in her advertisement and that this misrepresentation
made it appear that she had received the Orlando Sentinel’s 2014 endorsement.
We conclude that clear and convincing evidence supports the Hearing
Panel’s finding that Judge Shepard violated Canon 7A(3)(e)(ii). At the final
hearing, the Hearing Panel received and accepted into evidence the judicial
campaign advertisement at issue and the Orlando Sentinel’s 1994 endorsement.
Then-attorney Shepard’s advertisement purports to quote language from the
Orlando Sentinel’s 1994 endorsement verbatim. It does not. The intervening
sentence of the paragraph of the 1994 endorsement relating to her legislative
service was deleted from the advertisement without any indication. Additionally,
- 19 -
the 1994 date of the Orlando Sentinel endorsement and the end sentence of the
paragraph of the endorsement relating to her legislative service were omitted from
the advertisement.
The Hearing Panel heard testimony from Mr. Lykkebak regarding the
advertisement. Mr. Lykkebak received then-attorney Shepard’s advertisement in
the mail after the Orlando Sentinel endorsed Mr. Katz. Mr. Lykkebak read the
Orlando Sentinel, knew that its 2014 endorsement had gone to Mr. Katz, and
believed that then-attorney Shepard’s advertisement was untruthful, deceptive, and
intended to deceive the public. Mr. Lykkebak also believed that the advertisement
was purposefully edited to remove the 1994 date and any reference to then-
attorney Shepard’s legislative service. The Hearing Panel also heard testimony
from Judge Shepard and the three witnesses called in her defense.
Judge Shepard disclaimed any intent to deceive or mislead. However, after
considering the evidence and the testimony of the witnesses, the Hearing Panel
found that then-attorney Shepard knowingly misrepresented facts surrounding her
1994 endorsement in her advertisement. The Hearing Panel specifically found that
then-attorney Shepard knowingly and deliberately deleted from the advertisement
the intervening sentence of the paragraph of the 1994 endorsement relating to her
legislative service without any indication and that she omitted from the
advertisement the 1994 date of the Orlando Sentinel endorsement. Then-attorney
- 20 -
Shepard also omitted from the advertisement the end sentence of the paragraph of
the 1994 endorsement relating to her legislative service. As explained by the
Hearing Panel, then-attorney Shepard’s selective editing of the 1994 endorsement,
in context, was much more than a matter of inexact punctuation, or a mistake. The
Hearing Panel concluded that then-attorney Shepard believed her opponent to be
unworthy of judicial office and that any action she undertook to defeat him was
justified. A review of the record thus demonstrates that clear and convincing
evidence supports the Hearing Panel’s finding that Judge Shepard violated Canon
7A(3)(e)(ii).
Judge Shepard argues that the Hearing Panel erroneously found that she
violated Canon 7A(3)(b) and Rule 4-8.2(b). Judge Shepard’s argument lacks
merit. Canon 7A(3)(b) provides: “A candidate for a judicial office . . . shall . . . act
in a manner consistent with the . . . integrity . . . of the judiciary.” Rule 4-8.2(b)
provides: “A lawyer who is a candidate for judicial office shall comply with the
applicable provisions of Florida’s Code of Judicial Conduct.” Because Judge
Shepard was found to have violated Canon 7A(3)(e)(ii), her conduct also falls
within the purview of Canon 7A(3)(b) and Rule 4-8.2(b). Accordingly, clear and
convincing evidence supports the Hearing Panel’s finding that Judge Shepard
violated Canon 7A(3)(b) and Rule 4-8.2(b).
IV. DISCIPLINE
- 21 -
“According to article V, section 12(c)(1) of the Florida Constitution, this
Court has discretion to either accept, reject, or modify the commission’s findings
and recommendation of discipline.” In re Renke, 933 So. 2d at 493. “Although
this Court gives the findings and recommendations of the JQC great weight, the
ultimate power and responsibility in making a determination to discipline a judge
rests with this Court.” In re Flood, 150 So. 3d 1097, 1098 (Fla. 2014) (quoting In
re Renke, 933 So. 2d at 493). “[T]he object of disciplinary proceedings is not for
the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve
as an impartial judicial officer.” In re Dempsey, 29 So. 3d at 1034 (alteration in
original) (quoting In re McMillan, 797 So. 2d 560, 571 (Fla. 2001)). “It is clear
that a member of the judiciary or judicial candidate should not mislead the public
by placing factually incorrect statements in campaign materials.” Id. at 1033. This
Court has “repeatedly placed judicial candidates on notice that this type of
misconduct will not be tolerated.” Id.
As explained previously, the Hearing Panel recommended: (1) a public
reprimand; (2) a ninety-day suspension without pay; and (3) payment of
investigative costs and the costs of these proceedings. Judge Shepard argues that
the Hearing Panel’s recommendation of discipline is disproportionate, unjustifiably
severe, and inconsistent with this Court’s precedent. To the contrary, the
recommended discipline is consistent with this Court’s precedent.
- 22 -
Judge Shepard’s conduct warrants more than a public reprimand. In In re
Dempsey, this Court affirmed a public reprimand where the judge deliberately
placed misleading information in her campaign materials for the purpose of
bolstering her own experience and credibility to the voting public. In re Dempsey,
29 So. 3d at 1033-34. However, the judge in In re Dempsey admitted to the
alleged wrongdoing, apologized for her improper conduct, accepted full
responsibility, and accepted the public reprimand. Id. at 1032. Here, Judge
Shepard engaged in far more egregious conduct than the judge in In re Dempsey.
Then-attorney Shepard knowingly misrepresented the Orlando Sentinel’s 1994
endorsement in her advertisement, which made it appear that she had received the
Orlando Sentinel’s 2014 endorsement. But, unlike the judge in In re Dempsey,
Judge Shepard has not shown any remorse for her misconduct. See Inquiry
Concerning Davey, 645 So. 2d 398, 405 (Fla. 1994) (“Where a judge admits
wrongdoing and expresses remorse before the Commission, this candor reflects
positively on his or her present fitness to hold office and can mitigate to some
extent a finding of misconduct.”). Moreover, Judge Shepard has not apologized or
acknowledged her wrongdoing. See In re Holloway, 832 So. 2d at 724 (taking into
consideration a judge’s admission of guilt and apology).
However, Judge Shepard’s conduct does not warrant the ultimate discipline
of removal from office. In In re Renke, this Court ordered removal where the
- 23 -
judge made numerous flagrant misrepresentations in his campaign materials and
committed multiple campaign finance violations. In re Renke, 933 So. 2d at 484.
In one campaign brochure in particular, the judge intentionally misrepresented that
he was endorsed by local firefighters. Id. at 487-88. Here, then-attorney Shepard
committed similar misconduct by knowingly misrepresenting the Orlando
Sentinel’s 1994 endorsement in a single advertisement. But, unlike the judge in In
re Renke, then-attorney Shepard did not make numerous misrepresentations in her
campaign materials or engage in campaign finance violations. Judge Shepard’s
misconduct, although serious, is not sufficient to “demonstrat[e] a present unfitness
to hold office.” Art. V, § 12(c)(1), Fla. Const.
V. CONCLUSION
Judge Kimberly Michele Shepard is hereby suspended without pay for
ninety days from her duties as a judge of the Ninth Judicial Circuit. We order
Judge Shepard to pay investigative costs and the costs of these proceedings, and
we remand this case to the JQC for a determination of the amount of such costs.
We also command Judge Shepard to appear before this Court for the
administration of a public reprimand at a time to be set by the Clerk of this Court.
The effective date of suspension shall be on a date within fifteen days of the
issuance of this opinion as determined by the Chief Judge of the Ninth Judicial
Circuit. Once the effective date is determined, the Court Administrator for the
- 24 -
Ninth Judicial Circuit shall submit a personnel action request (PAR) form to the
Personnel Office of the Office of the State Courts Administrator for processing.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Original Proceeding – Judicial Qualifications Commission
Hon. Kerry I. Evander, Chair, Michael Louis Schneider, Executive Director and
General Counsel, and Alexander J. Williams, Assistant General Counsel,
Tallahassee, Florida; Scott N. Richardson, Special Counsel, West Palm Beach,
Florida; Mayanne Downs of Gray Robinson, P.A., Hearing Panel Chair, Orlando,
Florida; and Lauri Waldman Ross of Ross & Girten, Miami, Florida,
for Florida Judicial Qualifications Commission, Petitioner
Timothy R. Hartung, Ashburn, Virginia,
for Judge Kimberly Michele Shepard, Respondent
- 25 -