STATEMENT OF FACTS
The qualifications for Florida attorney general are set forth in Article IV, Section 5(b) of the Florida Constitution, as follows: “When elected, the governor, lieutenant governor and each cabinet member must be an elector not less than thirty years of age who has resided in the state for the preceding seven years. The attorney general must have been a member of the bar of Florida for the preceding five years.” Art. IV, § 5(b), Fla. Const.
The Secretary of State must give great weight to the second quoted sentence above, and must not rely on the plain meaning of words such as “member” and “resided” but must look to the meaning applied to these words and terms as used within the Rules Regulating the Florida Bar,
created by the Florida Supreme Court.
When I, the undersigned complainant, filed my qualification papers for Florida attorney general on June 17, 2014, I attached to the Candidate Oath, a written certification from the Florida Bar, signed by the Bar’s Members Services and Records Manager on June 12, 2014, certifying that I was “an active member of The Florida Bar in good standing.” Although the Division of Elections candidate manual does not require the inclusion of a Certificate of Good Standing from the Florida Bar, I obtained and included one on my own volition, as I am accustomed to do so when applying for various law practice admissions and certifications. The Secretary of State must ask himself when reviewing this complaint the following question: “When George Sheldon filed his Candidate Oath on June 18, 2014, could he have presented a Certificate of Good Standing from the Florida Bar at that time?” The answer is no, Mr. Sheldon could not have produced a Certificate of Good Standing on June 18, 2014.
Mr. Sheldon does not meet two out of three of the constitutional qualification mandates. He has not maintained his bar of Florida membership (nor practiced law in Florida) for at least three out of the five years preceding the candidate qualifying period that ran from noon, June 16, 2014 to noon, June 20, 2014. Mr. Sheldon abandoned his Florida Bar membership by failing to maintain his continuing legal education requirements (CLER) for the three-year reporting period that ended on May 31, 2014. Subsequent to the candidate qualifying dates he made an expo facto claim of exemption from the reporting requirements, by completing a bar form stating the he was a member of a class of “Non-resident Members.” See Rule 6.02(f) of the Rules Regulating the Florida Bar (2014) (attached hereto; also attached hereto please find an unsigned CLER Exemption Request Form). Mr. Sheldon fails to meet one or more of the three minimum requirements for attorney general candidacy.
On July 7, 2014, The Bar’s Executive Director, John Harkness, Jr., wrote to Mr. Sheldon and informed him that his bar membership had lapsed. More specifically, it was reported that Mr. Harkness informed Mr. Sheldon that, “A delinquent member shall not engage in the practice of law in this state and shall not be entitled to any privileges and benefits accorded to members of The Florida Bar in good standing.” One such privilege is meeting the constitutional qualification mandates for a candidate to run for the Office of Attorney General. Indeed, the Florida Supreme Court requires that The Florida Bar treat all members delinquent in their CLER
requirements in the same manner as members delinquent in the payment of bar dues. Amendment to Rules Regulating the Fla. Bar (continuing Legal Education), 510 So. 2d 585, 588 (Fla. 1987)
In mid-to-late July 2014, Mr. Sheldon took action that resulted in his Florida Bar membership being reinstated. Whether such reinstatement has a retroactive effect solely for the purpose of prior bar membership during the term of delinquency may be a question of law. However, our state’s case law contains many incidences where legal action taken by an attorney during a period of the attorney’s ineligibility due to non-payment of dues or failure to comply with CLER requirements was reversed by the court for being non-sequitur or (by analogy, only) for the unlicensed practice of law (citations omitted).
George Sheldon was a not member in good standing, not qualified to practice law in the State
Fla. Bar Re
of Florida, nor “entitled to any privileges and benefits accorded to members of The Florida Bar in good standing” throughout the 2014 qualifying period that ended at noon, June 20, 2014. Even if his claim of non-resident status subsequently cured his non-compliance with the Bar’s CLER requirement, it would not cure his ineligibility at the time of qualifying.
The duty to seek a claim of exemption is on the bar member. “A member who seeks an exemption form the CLER under sections 6.02(f)(1), (2) or (3) must file a CLER exemption request form. [Bar] Staff will review and confirm eligibility within 10 days of receipt of the request. If granted, the exemption will remain in effect until the member is no longer eligible.” Rule 6.02(f) of the Rules Regulating the Florida Bar.
Mr. Sheldon did not claim such exemption until after he was no longer eligible to practice law and until about 9 months following his relocation back to Florida. The bar member’s exemption does not become effective until after the claim for exemption is made and approved. Id. Thus, even if the exemption cured Mr. Sheldon’s ineligibility to practice law, strict compliance with Florida’s constitutional qualifications requirements would not relate back to the qualifying period. Simply put, his failure to timely claim the exemption that he was granted in July 2014, for a non-resident status that ripened in October 2011, does not change the past. Again, our case law contains many examples of harsh results where latter cured membership defects do not cure the attorney’s conduct that occurred during the period of ineligibility, and often at a huge expense to the attorney’s innocent clients. For example, see Third Degree Films, Inc. vs. Does 1-259, et al, Consolidated Case 4:11-cv-00570 (N.D. Fla., Feb. 16, 2012) (Tallahassee Division) (where 3,547 defendants were dismissed from a mass lawsuit because plaintiff’s counsel was not properly admitted to practice law in that court at that time). (N.B. The undersigned complainant/attorney filed a motion that lead to said dismissal. As such, the complainant has case law on hand relevant to a bar
member’s ineligibility to participate in benefits and privileges of bar membership available for
submission to the division, upon request.)
Even if the Florida Bar’s July 2014 acceptance of Mr. Sheldon’s claim of exemption from the Bar’s CLER reporting requirement had some manner of retroactive application, which is denied, he based it on the “Non-resident Members” exemption provided under Rule 6.02(f)(3). By his own admission the candidate fails to meet Article IV, Section 5(b)’s seven-year’s preceding residency requirement. It is clear that the framers of the Florida Constitution wanted our attorney general to
have an immediate connection with the state and with the Florida Bar in the year’s immediately preceding service as the state’s chief legal officer. The infinite wisdom of the framers cannot be questioned. Mr. Sheldon was not in residence and his bar membership had lapsed at the time he purportedly qualified for the office sought. The two cannot be reconciled.
The complainant below takes no pleasure in filing this complaint, but does so for the benefit of the Secretary of State’s review and preservation of the integrity of our electoral and qualifying processes. Mr. Sheldon’s out-of-state residency was for an honorable purpose, as he accepted a non-elective agency employment position as Assistant Secretary for the Administration for Children and Families at the U.S. Department of Health and Human Services under Secretary Catherine Sibelius, prior to Catherine Sibelius and George Sheldon’s October 2013 resignations following the failed rollout of www.healthcare.gov. However, Mr. Sheldon’s personal choice to surrender his Florida residency and relocate to or near Washington D.C. from 2011 to October
2013, respectfully compromised his qualifications to serve as Florida’s attorney general in the years immediately following. Indeed, his relocation was deemed “permanent,” as that term is used in the Rules Regulating The Florida Bar. He may qualify in 2018, but not in 2014.
The specific Florida Bar CLER exemption that Mr. Sheldon claimed exemption under is Rule 6.01(f)(3). Rule 6.01(f)(3) applies to Florida Bar members who “permanently resided outside Florida” during the reporting period. Rule 6.01(f)(3) provides as follows: “Non-resident Members. A member who has permanently resided outside Florida, who has not practiced law in Florida, or provided advice or services on Florida law during the preceding year, may be exempt from complying with the CLER.”
It is reported that Mr. Sheldon claims that there is no problem with his qualifications to run for attorney general in 2014. See http://miamiherald.typepad.com/nakedpolitics/2014/08/discord- with-democrats-sheldon-says-hes-staying-in-ag-race.html#storylink=cpy downloaded on August 3, 2014.
It is further reported that Mr. Sheldon obtained a legal opinion on the present issue. Id. The alleged legal opinion has been quoted as follows: “Accepting an appointment to serve our nation in Washington D.C. did not require George to give up his Florida residency. George Sheldon is qualified under Florida law to serve as Attorney General.” Id.
This legal opinion is also misplaced, as Mr. Sheldon accepted a position as a bureaucrat, not as an elected officer. Moreover, the qualifications for attorney general, unlike most candidacies, are uniquely dependent and inseparable from The Rules Regulating the Florida Bar, which provide only limited exemptions to its continuing legal education requirement. The full list of Rule 6.02(f) exemptions are as follows, of which only exemption (3) applies to Mr. Sheldon:
He claims that he maintained a home in Tallahassee, paid property taxes, was registered to vote in Florida, and had a Florida’s driver’s license. Id. Mr. Sheldon’s reliance on these indicia of residency is misplaced. Residency is defined by the Florida Bar for the purposes of this review, not by splitting hairs between the terms domicile and residency; an argument generally reserved for federal tax reporting purposes. (Arguably, he should have changed his voter registration when he left the state to accept the non-elective out-of-state agency employment that he did.)
(1) Active Military Service
(2) Undue Hardship
(3) Non-resident Members
(4) Full-time Federal Judiciary (5) Florida Judiciary
(6) Inactive Members
(7) Pro rata Credit Hours
The same news report referenced above quotes Mr. Sheldon as allegedly contending that, “My situation is the same as with members of Congress, members of the military, ambassadors, and others who perform service to their country in Washington or overseas, while Florida remains their home.” Id. Again, Mr. Sheldon’s relies on pure conjecture rather than a plain reading of the Rules Regulating. Rule 6.02(f) shows that Mr. Sheldon is correct as to “military” (1) but incorrect as to “ambassadors.” He is partially correct as to “others who perform service to their country in Washington or overseas,” but only if they serve as a federal judge (4) or men and women engaged in active military service (1). Neither of these exemptions apply to Mr. Sheldon. Again, only the permanent non-resident exemption applies; an exemption that he delinquently applied for 9 months after completing his out-of-state residency.
The same news report referenced above further quotes Mr. Sheldon as allegedly contending that, “Lawton Chiles, for example, served the people of Florida with great distinction in the U.S. Senate from 1971 to 1989, and then returned home and was elected Governor in 1990. My circumstances are no different.” Id. This statement is also incorrect, as it fails to give proper weight to the second sentence in Article IV, Section 5(b), i.e., “[t]he attorney general must have been a member of the bar of Florida for the preceding five years.” Art. IV, § 5, Fla. Const. Lawton Chiles ran for governor, not attorney general. Also, Mr. Sheldon’s comparison to Governor Chiles disregards the fact that he allowed his bar membership to lapse. Nor did Governor Chiles opt to take advantage of an option to reinstate his ineligibility to practice law in the State of Florida by voluntarily signing a bar form wherein he claimed permanent out-of-state residency for more than the past three years.
George Sheldon did not have to make the expo facto claim of permanent non-resident member status that he made subsequent to the qualifying period. At the time of his absence from our state he could have continued to meet the continuing legal education requirements from out of state, as many attorneys do when their occupation takes them outside of Florida. However, Mr. Sheldon intentionally chose not to continue with his CLER requirements and intentionally chose not to timely report his out of state residency to The Florida Bar. These defects are not curable.
As stated in the opening paragraphs of this complaint, the Secretary of State must give heavy
weight to the second sentence contained in Article IV, Section 5(b) of the Florida Constitution. The Division of Elections must rely on the definitions and usage of words such as “member” and “resided” by applying the meanings used in the Rules Regulating the Florida Bar, created by the Florida Supreme Court, as these words and terms apply to its bar members, and not rely on the plain or ordinary use of these words and terms.
In conclusion, Mr. Sheldon cannot have it all three-ways: Either he failed to meet the 7-year residency requirement, or he failed to meet the 5-year Florida Bar membership requirement, or he
was not qualified to run at the time he filed his Candidate Oath on June 18, 2014. The complainant signing below suggests that all three prohibitions apply, and that Mr. Sheldon must be disqualified as a candidate for Florida attorney general, 2014, as a matter of law.
August 3, 2014
Libertarian Candidate for Florida Attorney General
William R. Wohlsifer, PA
1100 East Park Ave Ste B Tallahassee FL 32301
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