          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


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      “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


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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


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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




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