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Florida Gov. Jeb Bush has named the top attorney for a conservative legal foundation and ardent advocate of personal property rights to the state’s appeals bench for Miami-Dade County and the Florida Keys. Bush’s selection of Frank Shepherd, 56, for the 3rd District Court of Appeal is the governor’s latest in a string of appointments of conservatives to the bench. Shepherd has been the managing attorney of the Pacific Legal Foundation’s Atlantic Center in Coral Gables, Fla. since it opened in 1997. The foundation has focused on conservative legal causes, such as property owners’ rights and school vouchers. He is also a past president of the Federalist Society branch in Miami, a conservative group of judges and lawyers around the country that has influenced Republican judicial selections. Shepherd was vacationing with his family at his second home in Atlanta when the governor called him Wednesday with the news. “I did not expect it,” Shepherd said Thursday. “I was pleasantly surprised.” Shepherd has argued many cases involving issues that often come before the state appellate courts and has been widely quoted in the news media espousing conservative positions. Several observers raised questions about whether Shepherd can be fair and impartial, given his conservative agenda. Some said lawyers appearing before him would have to consider asking him to recuse himself on cases involving public policy issues he’s previously been involved with. “He’s a very nice man, but his philosophies on environmental and land-use issues are exactly what South Florida doesn’t need right now,” said Richard Grosso, general counsel and executive director of the Environmental and Land Use Law Center at the Nova Southeastern University law school. “Like myself, he’s worked as an advocate with a very decided viewpoint,” said Grosso, who has opposed Shepherd in numerous environmental cases. “But if he brings that kind of activism to the court, it would be terrible for South Florida.” Grosso specifically cited a pending Florida Keys property rights case that Shepherd argued before the 3rd District. Shepherd argued in favor of Keys property owners who claim that any owner of a platted lot in the Keys — of which there are thousands — should be able to develop the property without regard to modern environmental rules, including wastewater and habitat protection safeguards. In a July 23, 2002, article in the Tampa Tribune about another property rights case, Shepherd was quoted as saying: “Between individual rights and state law, individual rights should be paramount.” During his interview before the Judicial Nominating Commission in June, Shepherd denied that he would advocate for a specific viewpoint if appointed to 3rd District. “That is not the role of a judge,” said Shepherd, a Palm Beach County native who earned his bachelor’s degree from the University of Florida and graduated from University of Michigan law school in 1972. Shepherd reiterated that point in an interview Thursday. “I’ve been a lawyer for 31 years and advocated on behalf of clients of all types,” said Shepherd, who was a shareholder at Weissman Dervishi Shepherd Borgo & Nordlund in Miami in 1997 and 1998. “If it’s anything I believe in, it’s the law.” From 1990 to 1997 Shepherd was a founding partner of the Miami office of Popham Haik Schnobrich & Kaufman, where he primarily practiced commercial and personal injury law. “I’ve been a resident of South Florida all my life,” Shepherd said in response to attacks on his environmental stance. “I’ve been a positive contributor to this state for more than half a century.” The Sacramento, Calif.-based Pacific Legal Foundation is a public interest law firm that was founded 30 years ago by Ed Meese, who would later become Ronald Reagan’s attorney general. It is funded by right-wing philanthropist Richard Mellon Scaife, who bankrolled attacks on President Bill Clinton. The group champions limited government, private property rights and free enterprise. In recent years, Shepherd, as head of the foundation’s South Florida outpost, has publicly supported Florida’s 1999 Tort Reform Act, school vouchers, term limits for state legislators and a prohibition against gays in the Boy Scouts. He has publicly opposed environmental regulations, affirmative action in college admissions and laws protecting endangered species, according to the group’s Internet site. In a March 2001 South Florida Sun-Sentinel in Fort Lauderdale op-ed article, Shepherd criticized the Broward County School Board for denying the Boy Scouts use of school grounds for its meetings because of its anti-gay policy. “By retaliating against the Scouts for exercising their constitutionally protected rights,” Shepherd wrote, “it is doing a bad deed for the community.” Bush’s selection of Shepherd surprised many observers. In choosing Shepherd, Gov. Bush passed over three longtime Miami-Dade Circuit Court trial judges, an assistant U.S. attorney and a local appellate lawyer whose names had been submitted to him by the 3rd District’s Judicial Nomination Commission. Those other finalists included judges Jennifer Bailey, Michael Chavies and Maria Korvich; Assistant U.S. Attorney Angel Cortinas, and Douglas Stein, a partner at Anania Bandklayder Blackwell Baumgarten Torricella & Stein in Miami. “I was disappointed because there were a number of well-qualified judges up for that appointment and I was hoping they would get it,” said Stanley Price, a land-use and zoning attorney and partner at Bilzin Sumberg Baena Price & Axelrod in Miami. “But I guess the governor feels Shepherd is more in line with the issues he thinks are important.” EXTREME CONSERVATIVE PICKS It is Bush’s third appointment to the 11-member appellate court since he took office in 1999. His first two picks were Juan Ramirez Jr. in 1999 and Linda Ann Wells last December. Shepherd replaces Judge James Jorgenson, who died in May after 23 years on the court. Around the state, the governor has appointed at least two other lawyers to appellate court seats who are seen by some lawyers as extreme conservatives. In December, Bush appointed Paul Hawkes, a former aide to Republican House Speaker Tom Feeney, to the 1st District. In September, he named his former general counsel, Charles Canady, a Republican congressmen who led the House effort to impeach President Clinton, to the 2nd District. The Pacific Legal Foundation places special emphasis on a provision of the Fifth Amendment to the U.S. Constitution, which prohibits the government from taking private property for public use without just compensation. The foundation maintains that this right extends not only to inverse condemnation, but to regulation. It claims that restrictive zoning ordinances and environmental regulation entitle property owners to compensation. As a result, the foundation has argued against government enforcement. In one case, Shepherd criticized a federal law that was interpreted to require beachfront homeowners in Daytona Beach to dim their lights to help baby sea turtles find their way into the ocean and escape from predators. The foundation accepts only cases on appeal in state and federal courts. It usually limits itself to those that will set a precedent. It has offices in Sacramento, Honolulu, Seattle, Anchorage and Miami. Shepherd was the founding attorney of the Florida office. The foundation raises money from contributions rather than legal fees. One of its biggest supporters has been Gov. Bush, who publicly expressed his appreciation for the group in one of the foundation’s newsletters last year. “I hope that your supporters, and those who have not yet made the decision to contribute to your effort, realize the extent to which PLF has become a voice on behalf of limited government, private property rights, education reform and free enterprise,” Bush wrote in a letter published on the front page. “Keep up the good work.” Brion Blackwelder, an associate professor and environmental attorney at the Nova Southeastern’s law school, said the governor’s latest appointment reflects an emerging pattern. “The governor really seems to be seeking out people with an attitude, coming from well to the far-right of the spectrum. The public, when it’s polled, shows a strong environmental inclination. This seems to run in contrast to that.” HIT SON WITH BAT Besides his advocacy for conservative positions, Shepherd is also controversial because he beat his son in public with a baseball bat in 1983. He admitted hitting his son, Scott, after a Little League game because, he said, the 8-year-old didn’t “hustle.” Coral Gables police turned the boy over to the state for protection. Scott Shepherd, who was returned to his father within a week, now says the beating was an isolated incident and that his father is a “kind, gentle, loving man.” In his application to the JNC, Shepherd admitted inflicting “soft tissue injuries” on his son’s buttocks. Included in the application was a letter from the Juvenile Court judge who oversaw the case. “This unfortunate incident should not be a permanent blemish on his career,” Judge Seymour Gelber wrote. “I made full disclosure of everything,” Shepherd said. “That’s an incident that happened 20 years ago. I let my record speak for itself.” Mitch Ceasar, an attorney who chairs the Broward County Democratic Party and formerly served on the 15th Circuit JNC, said Gov. Bush has used recent changes in the law governing JNCs to move the courts to the right. That change gave him the power to select all members of the nominating commissions. “He’s using the JNCs and the judiciary as launching pads for his extreme views,” Ceasar said. “Florida is neither liberal nor conservative. The JNCs don’t reflect that. They do not reflect the mainstream.” Elliot Mincberg, legal director of People for the American Way in Washington, D.C., a liberal group which monitors judicial selections, said that attorneys like Shepherd who have taken public positions on charged public issues should not automatically be ruled out for the bench. Nationally, for instance, Thurgood Marshall could not have been chosen for the U.S. Supreme Court if his NAACP advocacy for public school desegregation had been held against him. Locally, 3rd District Judge John Fletcher was a well-known advocate for community groups on environmental issues before being chosen by Gov. Lawton Chiles for the appellate bench, Blackwelder said. But, Mincberg said, presidents and governors should not overload the bench with those of a particular ideological persuasion. That’s particularly problematic at the state level, where Gov. Bush has the sole power to name judges, without any legislative confirmation process. “To the extent there is such a pattern of increasingly putting people on the appellate bench who previously have taken very strong ideological positions, that significantly increases the risk that people’s rights will be in jeopardy and you won’t have an appellate bench able to fairly and impartially judge these controversial issues,” he said.

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