Supreme Court of Florida

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No. SC15-1746

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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;
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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 
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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.
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(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.
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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-
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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. Thenattorney 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.
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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.
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Id. at 8-9 (emphasis omitted). The Hearing Panel further found that “[thenattorney] 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 thenattorney 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 
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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.”).
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“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, 
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“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 
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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 
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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 
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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, 
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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. 
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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 
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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, 
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and nothing within this record suggests that the Investigative Panel withheld nonconfidential 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).
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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, 
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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 thenattorney 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
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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.
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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