When the Florida Constitution Revision Commission was debating the election of judges 20 years ago, I sat in the gallery to hear my own words used to attack something that my editorials and columns consistently had supported.
The issue was whether all trial judges should be chosen exclusively by appointment, without elections, in the same manner as Supreme Court justices and judges of the district courts of appeal.
A commission member who opposed that found a column in which I had flayed the Judicial Nominating Commission of the 15th Circuit — Palm Beach County — for trying to sandbag Gov. Lawton Chiles into appointing a favored candidate to a vacated circuit judgeship. Chiles spoiled the plot by appointing the nominee they didn’t think he would choose, a Republican who had contributed to his opponent, and who is now Florida’s chief justice, Jorge Labarga.
The speaker was quoting the column out of context. The newspaper’s editorials and my own signed columns had argued consistently that of all the ways to pick judges, election is the worst.
I still think so. Florida’s judicial nominating commission process is still by far the best — in principle.
In practice, however, it has been corrupted by the Legislature’s decision in 2001 to let the governor — at the time, Jeb Bush — appoint all nine members of each commission. They had been set up to be independent, with the governors appointing only three of each nine. That’s something the present Constitution Revision Commission should correct, although it likely won’t. Gov. Rick Scott, who appointed 15 of the 37 members including the chairman, has played politics with the nominating panels like no other governor.
But I digress. A nagging fear of all print and broadcast commentators is that their words will be taken out of context in some campaign ad in support of someone or something they actually oppose. If you write that somebody is “the best of a weak field” in a primary, expect to read in November that you called him “the best …”
Ordinarily, there’s no remedy for the twisting of truths out of context in politics, other than to call out the offenders. But there is a potent one when it comes to judicial races. The codes of conduct that legally bind judges and lawyers forbid misrepresenting one’s own qualifications or those of an opponent. The Florida Supreme Court has put teeth into those codes. It took another bite last week.
On Aug. 29, several weeks after her present 90-day suspension without pay expires, Circuit Judge Kimberly Shepard of the Ninth Judicial Circuit — Orange and Osceola counties — will journey to Tallahassee for a command appearance before the Florida Supreme Court.
She will stand before the bench, as other judges have had to do, to hear the chief justice read a humiliating public reprimand for unethical conduct during in her successful 2014 campaign for an open seat. The suspension, reprimand and payment of court costs, as ordered, followed a recommendation from the Florida Judicial Qualifications Commission (JQC.)
The crux of it was a campaign ad purporting to quote the Orlando Sentinel in her favor.
“Ms. Shepard has done well,” the quotation said. “She has kept her promises. She has worked hard. She has maintained her integrity.”
What the ad did not say was that the comment was from an editorial endorsing her re-election to the Florida House of Representatives in 1994, 20 years earlier.
The 1994 editorial included the sentences “she has legislated effectively” and “she has served her constituents diligently.” Her 2014 ad was edited to leave those lines out.
The out-of-context quotation could easily have misled voters into thinking that it referred to current service as a judge. She wasn’t a judge, nor was she claiming to be.
She circulated the ad after the Sentinel had endorsed her opponent. The JQC’s hearing panel concluded that her “selective editing … was much more than a matter of inexact punctuation, or a mistake.” She believed her opponent to be unworthy, the panel said, “and that any action she took to defeat him was justified.”
Shepard’s defense consisted mainly of these arguments: Her character hadn’t changed in the 20 years since the newspaper had endorsed her, punishing her for campaign speech would be unconstitutional under the First Amendment, the ad was essentially true, and the Florida regulation in question was overbroad.
Unfortunately for her, however, the U.S. Supreme Court had disposed of her main point in a 2015 decision upholding a reprimand for a Tampa lawyer for conduct during a failed campaign for a judgeship.
“Judges are not politicians, even when they come to the bench by way of the ballot,” the U.S. court said. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”
“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 confidence in the integrity of the judiciary,” wrote the Florida Supreme Court last week in its unanimous opinion against Shepard.
It was far from the first time the court has had to say that.
Shepard is the 29th judge to come to grief before the JQC and the court for campaign-related conduct. Six were removed and two resigned before it came to that. The cases included some severe campaign law violations, neglect of clients during campaigns, and numerous instances of campaign misrepresentations.
The election-related cases represent a significant fraction — 14 percent — of all those with which the JQC and the court have dealt in public.
Complaints that it concludes are unfounded or settles by privately counseling a judge are confidential under the Florida Constitution, which is something else the Constitutional Revision Commission should fix. There’s no way now for the public to judge how well the JQC is working.
But elections aren’t working well either. On the rare occasion when a circuit or county court judge is challenged for re-election, few candidates apply. Dozens come forth, though, when a vacancy is to be filled by appointment. Most lawyers agree with the point Alexander Hamilton made when he wrote, “The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges …”
Shepard won’t be the last Florida judge who gets in trouble for playing politics to secure what should not be a political position.
Martin Dyckman is a retired associate editor of the Tampa Bay Times. He lives in Asheville, North Carolina.