Defending Your Judgeship

The Florida Supreme Court sanctioned a judge for a misrepresentation in a campaign ad

[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.

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 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. 

The court rejected a host of due process contentions

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, 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…

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 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).

Sanction

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 Orlando Sentinel reported on the hearing.

Shepard’s presentation to the panel sometimes seemed to veer off track. In openings, she compared her plight to the 1991 movie “Defending your Life,” an Albert Brooks film in which the main characters goes to “Judgment City” after he dies.

And in closings, Shepard used a visual aid of the viral dress that polarized people over its color scheme in an online image — was it blue and black or gold and blue? — to show her case was all about perception.

“Having your integrity attacked because you quoted a source who said you had integrity is no small matter,” she said, calling the experience “painful.”

In the 2014 election, Shepard defeated opponent Norberto Katz, a child-support hearing officer, with 60 percent of the vote. She is serving a six-year-term on the bench with an annual salary of more than $146,000.

(Mike Frisch)