Third Party

Bill Wohlsifer Will Remove Cannabis from Schedule I

by Matt Wright

We have been living in an outdated society. The norms of yesterday should no longer be held as the standard today. Unfortunately, the leaders of this country are more concerned with special interest groups, and lobbyists who want to keep Cannabis out of the hands of patients across the country. Historically there has not been a leader who would stand up to these entities and tell them their time is over. There needs to be a person who is willing to go to bat for their constituents and allow them the control to make decisions regarding their medical and personal freedoms. Until now.

Bill Wohlsifer is the Libertarian candidate for Attorney General in Florida. He is making waves in the political world by breaking the mold of the leaders in this country by wanting to put the power of the control back in the hands of the people instead of federally funded bureaucrats who claim to know more about what is best for each individual, rather than the individual themselves. Mr. Wohlsifer believes we, as people, should be able to make decisions on our health freedoms ourselves, without the fear of government or police intervention in our most personal and private decisions.

As evidence of the fact that Mr. Wohlsifer wants to give the freedom to choose back to the people of Florida he has outlined a plan that should be making news across the country, but due to a media blackout on third party candidates he hasn’t been able to get his message out to the people he believes matters most…the voters. His plan would remove the plant of the genus Cannabis completely from Schedule I of the Florida’s Controlled Substance List. This would be an unprecedented action, that would change the way Florida looks at almost every factor of their state.

Mr. Wohlsifer has stated that Cannabis with tetrahydrocannabinol (THC) level of greater than 0.8 percent would be removed from Schedule I and moved to Schedule II. Any Cannabis with a THC level of .8 percent to 0.3 percent would be moved to Schedule III and Cannabis with a level lower than 0.3 percent would be removed from Florida’s Controlled Substance List. This would redefine all levels of Cannabis and change the way the world views the medicinal value of this plant.

Once Cannabis has been removed from Schedule I a doctor would legally be able to recommend the plant for medical purposes, without the need of a Florida Constitutional Amendment. Also, by removing Cannabis with THC levels of .3 percent and lower would effectively remove hemp from the controlled substance list, allowing for industrial hemp to be grown and produced in Florida. Mr. Wohlsifer has already outlined his plan for industrial hemp on the website Hemp4Water.com.

This is the type of leadership we need in Florida, as well as the rest of the country. We need leadership not being handcuffed by special interest groups, and back room policy deals. It is time we elect officials who are willing to stand up for what they believe, especially if they believe in giving rights and freedoms back to the voters, as opposed to big government groups whose main goal is to approve the medicines produced by the highest donors.

 

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or like him on Facebook.

Equality and the League of Women Voters

Voters used to care if candidates received equal billing at election time, but those days seem long passed.  We the people have fallen into a disastrous pattern of a two party system, where even the people who clamor on about wanting equality fail to demand equality. In fact, they even defend inequality and have loaded voters with an arsenal of excuses on why they must vote for one of the two establishment parties.

“The other candidates aren’t polling well.” “I don’t really like either one, but unfortunately they are the only options I have been given to choose from.” “She believes this, and he believes that.” “I don’t really like either one, but unfortunately they are the only options I have been given to choose from. I must pick one.”

In most elections it ends up the equivalent of picking a vacation in the Bog of Eternal Stench or the Fire Swamp.

The problem we have in this country is that many of the groups out there working to inform the citizens of their options in the political process have become so inundated with the duopoly of the system they have forgotten the true nature of their purpose; to inform voters of their options. There are options out there other than the Republicans and the Democrats. The average voter, though, doesn’t know about these options because they are not being informed by the people they have been instructed to trust with this information.

When a group, such as the League of Women Voters, puts out a voters guide and it fails to provide information on all qualified candidates in the race it just proves they have fallen victim to the duopoly in this country they say they are striving to rise above. When the country is faced with a future oligarchy, taking the choice out of the voters’ hands and placing it in the hands of a select few who make deals in back rooms while holding back the citizens who lay wanting for freedoms, one would think equality between the candidates would be at the forefront of the activists groups who strive for equality.

Groups such as these use phrases such as nonpartisan, which is a blatant lie, because they show themselves to be partisan in many different fashions. Yes, they have worked hard to find equality for their core demographic, but shouldn’t the end goal be equality for all those in America? Doesn’t their blatant disregard for any political party that doesn’t begin with an “R” or a “D” show their intrinsic bias toward any candidate who may stand for a more universal equality than the options they allow their followers to learn about?

If these groups actually stood for, and believed in, equality, they wouldn’t disregard candidates who were qualified and give childish excuses for their actions. Instead, they would place these names on the voter guides next to the candidates names of who they have been programmed to educate the voters.

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or Like him on Facebook.

Wohlsifer Answers the Call for Help

With Amendment 2 on the ballot in the upcoming election many people, including Jermaine Ingram, are wondering how the dispensaries will be regulated. Jermaine had spent lots of time doing research and attempting to find out exactly what it is that will be required of him to open, supervise, or just work at one of the dispensing organizations that will be opening in Florida in the next few years. 

Unfortunately, Jermaine became concerned about a number of the rules he found, including a rule stating that no felons could work in the industry. This precludes a lot of individuals, including those who have been convicted of non-violent crimes. As many people know, a disproportional percentage of these people are black. Once again the rules were limiting a community that often finds itself being limited.

Jermaine posted on a Facebook group’s wall that focuses on reforming marijuana laws asking for someone to represent these individuals at the upcoming Rules Development Workshop. Bill Wohlsifer saw the post and decided he would go to the workshop on Jermaine’s behalf and speak out against felony disenfranchisement, and a rule that will keep 25% of black Floridians from working in the medical marijuana industry.

Bill went to Tallahassee to sit in on the Rules Development Workshop. He didn’t go there strictly for Jermaine Ingram. Nor did he attend the event for the 25% of black Floridians who, under the current guidelines, will not be allowed to work in the medical marijuana industry. He went there to fight for justice for all Floridians. He wanted to speak for all informed citizens who were unable to attend the event. Mr. Wohlsifer was fighting to make sure justice and freedom prevail in the Sunshine State. 

This is the type of leadership Florida needs in their Attorney General. We need someone who will look over the laws we have in place, and work to protect a demographic that has been systematically discriminated against and held back due to such praxis. We need a candidate who will go above and beyond to help the needs of the voters. We deserve someone who will stand up for their constituents and stand up to make a difference.

This November we need Bill Wohlsifer to be elected our Attorney General.

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or Like him on Facebook.

Election Fraud Complaint

STATEMENT OF FACTS
(attachment to Election Fraud Complaint filed by Bill Wohlsifer against George Sheldon on August 4, 2014)

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

Bill Wohlsifer

Libertarian Candidate for Florida Attorney General

William R. Wohlsifer, PA

1100 East Park Ave Ste B Tallahassee FL 32301

Page 5 of 5

Bill Wohlsifer Will Declare War on Corruption and Cronyism

Rick Scott may be the Governor of Florida, but it can be questioned whether he acts in the best interest of the voters, or those who have given money to him and his cronies. In a completely in-your-face

governorship, where cronyism runs rampant, it is apparent that being friends, financiers, and former co-workers of Rick Scott is the best position to be in if you are a Floridian.

This is apparent by his recent approval of two nuclear power plants being erected in South Florida, even though the residents of Miami-Dade vehemently opposed the proposal. Even though the voters were against the construction of the two plants, the Governor sided with his friends at Florida Power and Light and green lit the project. It would be good to think that Gov. Scott did this with the best interest of Floridians in mind, but the fact that over the last 18 months FPL has donated a half a million dollars and Duke Energy donated $150,000 to his campaign definitely raises some eyebrows about the decision.

Of course, that could have been a coincidence. Unless of course one were to look at the FPL pipeline deal that was approved by the Republican Governor’s appointees. The Florida Public Service Commission, in which all of the members were appointed by Gov. Scott, approved the construction of the Sabal Trail as the state’s third major natural gas pipeline. Florida Power and Light had a natural gas pipeline they were in control of, which makes sense, being that they are a power company. What does make the rest of the eyebrows raise is that FPL chose Spectra Energy to build and operate the $3 billion project. Unbeknownst to the voters, Governor Scott possessed a stake in Spectra Energy at the time of the deal.

Although, he does claim that it was owned as part of a blind trust and he had no knowledge of the contents of the investment. Maybe we can give him the benefit of the doubt. Although, when one is reminded of the now-defunct Crystal River nuclear plant, and the canceled Levy County nuclear project and how Duke Energy customers are still taking on the $3.2 billion burden of these projects, one should probably question why the burden of failed proposals is still being passed on to the citizens of Florida, at the average cost of $9.00 a month.

One should also remember how he gallantly rejected $2.4 billion in federal dollars to build a railway that would eventually connect Miami, Orlando and Tampa, due to the eventual tax burden it would impose on Floridians. This appeared to be a case that Gov. Scott was looking out for his constituents, until he came out in support of the Orlando to Miami rail system known as All Aboard Florida. Not surprisingly, Scott’s Chief of Staff, Adam Hollingsworth, has ties to one of the companies involved in the project, and when asked if Mr. Hollingsworth had input concerning the project, Scott declined to answer.

It is also impossible to forget how in his first year in office Scott passed a bill requiring all state employees, and cash welfare recipients to pass a drug test. The U.S. Supreme Court recently rejected Scott’s petition to review a ruling that his bill is unconstitutional, but has to wonder whether or not Gov. Scott would have even passed such a bill if he hadn’t recently given his controlling portion of stock in one of the state’s largest drug testing companies over to his wife.

This sort of cronyism and corruption occurs all across Florida every day, Rick Scott just being the easiest of targets. The person elected to keep this kind of corruption in check is the Attorney General, Pam Bondi, who has done nothing to rein in Gov. Scott and his cronies. The state of Florida needs someone in office who will stop this sort of collusion between state officials and the guys with whom they swap locker room tales. 

Bill Wohlsifer (LPF) is the candidate for Attorney General who vows to declare war on these highly unethical and potentially illegal actions. He promises to investigate any allegation into corruption in the state government in order to ensure that the “little guys,” or “underdogs” get equal protection under the law. Protect the future of Floridians by making sure that the state government doesn’t become just another hot bed of patronization for the friends of whatever “family” happens to be in charge of the state, vote for Bill Wohlsifer.  

 040314 RALLY MEME

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or Like him on Facebook.

Against All Odds

Bill Wohlsifer (LPF), candidate for Attorney General in the state of Florida, knows he is looked at as the quintessential underdog by most Floridians. He is a third party candidate in a political system that has been largely run by the two behemoth parties for basically all of American history. 

This does not frighten the man who wants to be the next Attorney General of Florida, though. He understands that even though he is looking at an uphill battle where he is left off of straw polls, and is being all but completely ignored by the media, his message is one that speaks to the people of Florida.

Even with the media brownout, Bill Wohlsifer continues on the campaign trail, spreading a message that deals with the issues Floridians truly care about. This is apparent with recent polls showing Bill receiving between 5 and 7 percent of the vote, even with being left of mock ballots being produced by Supervisors of Elections in counties across the state. 

Especially glaring is the fact that these polls also show that roughly 16 percent of the voters are unsure on which of the candidates would best represent them as their Attorney General. Mr. Wohlsifer believes if he can prove to those constituents he is the candidate who cares about their vision for the future of Florida he will be polling at 23 percent, and will only be 10 percent away from a victory in the three way race. 

There are many allegories that can be drawn about Bill Wohlsifer and his quest for being elected the next Attorney General of Florida. Some may cite Frank Sinatra, and that ant trying to move a rubber tree plant. Others may cite the biblical tale of David, fighting the massive Goliath. Yet it seems as though the most fitting is the children’s tale of the Little Engine That Could. Even with all of the odds stacked against him, he continues to trudge on, working all day every day to earn every vote, having complete faith that the people of Florida will hear his message.

Whether Mr. Wohlsifer is seen as a brave David, or a confident Little Engine That Could, it is obvious to all who meet him that, even as a first time and third party candidate, he is campaigning for the people of Florida, more so than the candidates from the other two parties. 

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or Like him on Facebook.

Consumer Protection Should Respect All Forms of Life

Consumer protection reaches out past the arm of the person who is picking up the bill. The person who is paying has many different concerns that deserve to be protected. This reaches beyond significant others and other immediate family, but also to the pets that are every bit a part of the families who love them as any other member. Many people have hit the streets in the past to protest and speak out against large companies, such as Monsanto, in attempt to enhance consumer protection. Even with all of the voices out there demanding GMO labeling, there is a large section of our country who haven’t had their nonexistent voices heard, because less people think about them than think about themselves when it comes to basic consumer protection. Although we consider our four-legged friends members of our family, the law considers them to be chattel, or personal property. Being that they are our property, and of course family, we should know if they are ingesting genetically modified organisms. These GMO riddled foods could be causing a slue of unwanted issues in the lives of the pets we care about.

Florida has also enacted different zoning ordinances that make it illegal for any of our pets, who have not gone through the neutering process, to be on public property. While almost all pet owners can agree that spaying and neutering is a humane, and responsible, practice, it should not be a mandate by the state in order to appear in public. Imagine if they passed a law making it illegal for men who have not had a vasectomy, or women who have not had their tubes tied, to be on public property, the public outcry would be vast and loud. That is a personal decision for pet owners to make on their own, when they are ready to make that decision. They, and their dogs, should not be banned from a leisurely stroll in the park if they feel the time for neutering isn’t right, for whatever reason they deem fit.

Luckily, for all the pet owners in the state of Florida, Bill Wohlsifer (LPF), candidate for Attorney General, is a huge supporter of protecting the animals we hold dear to heart. He advocates prosecuting manufacturers of toxic pet foods. He wants to work diligently to shut down puppy mills, where profits are more important than the welfare of the animals being caged and bred. Mr. Wohlsifer wants to also target any animal competition that is not under the oversight of the Florida Department of Business and Professional Regulation. A true humanitarian, he and his wife, have contributed to multiple animal protection groups, including the Flagler Humane Society, the Folke Peterson Wildlife Center, and the Saint Francis Wildlife Refuge over the years.

Bill Wohlsifer respects all forms of life, which is evident due to the fact that he hasn’t eaten beef, pork, as well as many other animals for the past 17 years. He is also one of the few in the world who will safely remove an insect from inside his house, rather than just swat them like so many others would. Mr. Wohlsifer believes in freedom, and life, for both the citizens of Florida and the pets they care for and love, because as he understands, they are family too.

 

Matt Wright is a writer and political activist living in south Florida. He has a BS in communications and is currently working for the Bill Wohlsifer for Attorney General campaign. To hear more from Matt you can follow him on Twitter at @mrwright79 or Like him on Facebook.

“Certifying” Documents via Third-party Software: Binding on the Court?

William R. Wohlsifer, and Tyler L. Thomas (August 27, 2013)
The Florida Bar Journal – September/October, 2013 Vol 87, No. 8. 

“Does the use of third-party software to certify documents or signed contracts outweigh the time and costs allocated to the process?” is a common query from corporate clients. As an attorney, a more pertinent question in need of answering would be: “Is the third-party software certification process necessary in order to meet today’s evidentiary standards regarding electronic copies of documents as business records?” The specific focus of this article is the admissibility into evidence of the conversion of original paper documents and contracts to digital image files, then back to paper form for use in court. Although digital image copies are widely recognized at federal and state levels to be admissible, in Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), the court identified a “growing recognition that more care is required to authenticate . . . electronic records than traditional ‘hard copy’ records.”1 Determining the answers to these questions requires an examination of federal and state laws and court precedence in place regarding use of digital image copies as evidence.

Uniform Photographic Copies of Business and Public Records as Evidence Act
One of the first federal laws to recognize the evidentiary issue of photographic copies was the Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)2 enacted in 1949. The UPA authorizes the destruction of original paper records that have been accurately reproduced.3 Codified in Title 28, Ch. 115, U.S.C. §1732, it provides:

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence.4

All original paper copies and digital copies of documents and contracts or other documents that are responsive to a filed or reasonably foreseeable lawsuit should not be destroyed, even if such destruction is part of an organization’s established records retention policy as the court stated in In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997).5

The Lorraine Analysis of Fed. R. Evid. 901 and 902
While documents can be destroyed once they are copied, except for the circumstances enumerated above, the electronic copies must still meet evidentiary standards in compliance with state and federal rules of evidence. The Lorraine court took on the challenge of analyzing the evidentiary rules and case law that control the admissibility of electronic evidence.6 The court found that Fed. R. Evid. 901(a) requires that the electronically stored information be shown to be authentic by showing that it is what the party claims it to be — not a particularly difficult obstacle to overcome.7 However, the court noted that “the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation.”8

The Lorraine court further found that Fed. R. Evid. 901(b) provides examples of how authentication may be accomplished.9 In particular, Rule 901(b)(4) provides: “Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”10 The third-party software certification process does not necessarily contribute to satisfying these examples. When discussing this particular subsection, the court in Lorraine noted:

This underscores a point that counsel often overlook. A party that seeks to introduce its own electronic records may have just as much difficulty authenticating them as one that attempts to introduce the electronic records of an adversary. Because it is so common for multiple versions of electronic documents to exist, it sometimes is difficult to establish that the version that is offered into evidence is the “final” or legally operative version. This can plague a party seeking to introduce a favorable version of its own electronic records, when the adverse party objects that it is not the legally operative version, given the production in discovery of multiple versions.11

It is reasonable to expect the time-stamp feature of third-party software certification to assist a proffering party when a witness (the business records custodian) is called upon to proffer a document as indeed, the “‘final’ or legally operative version.”12 Although the certification may add to the business records foundation, inclining the court to admit the proffered evidence, it is not dispositive on the ability to overcome objections of the opposing party and your client should be advised as such. Courts may eventually expressly recognize third-party software as a self-authenticating means or at least deem it a rebuttable presumption, but they do not uniformly do so at this time.

The Lorraine court also discussed the issues surrounding Fed. R. Evid. 902 and its 12 methods by which documents or contracts may be authenticated without extrinsic evidence (self-authentication).13 Rule 902(7) provides that exhibits may be self-authenticated by “[i]nscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.”14 This method reflects the mandates of Rule 901(b)(4), but with more specificity. The court also evaluated Rule 902(11) and found it to be “extremely useful because it affords a means of authenticating business records under Rule 803(6) . . . without the need for a witness to testify in person at trial.”15 Rule 902(11) provides:

(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record:

(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and

(C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.16

According to the Lorraine court, the rule “was intended to set forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness.”17 As convenient as this may sound, some courts take a more demanding approach for authentication and still require a witness.


IN RE VEE VINHNEE: THE STRICT STANDARD

Currently, “there is a wide disparity between the most lenient positions courts have taken in accepting electronic records as authentic and the most demanding requirements that have been imposed” and “more courts have tended towards the lenient rather than the demanding approach.”18 Since for the most part you cannot pick and choose your court, the prudent records custodian must balance the cost of preparation for the strictest court against the value of full and complete preparation. In one case in particular, In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005), the court established the more stringent approach:

The primary authenticity issue in the context of business records is on what has, or may have, happened to the record in the interval between when it was placed in the files and the time of trial. In other words, the record being proffered must be shown to continue to be an accurate representation of the record that originally was created . . . ; Hence, the focus is not on the circumstances of the creation of the record, but rather on the circumstances of the preservation of the record during the time it is in the file so as to assure that the document being proffered is the same as the document that originally was created.19

In order to meet the stricter standard for authenticating electronic business records, the court adopted an 11-step foundation proposed by Professor Edward Imwinkelried:

1) The business uses a computer.

2) The computer is reliable.

3) The business has developed a procedure for inserting data into the computer.

4) The procedure has built-in safeguards to ensure accuracy and identify errors.

5) The business keeps the computer in a good state of repair.

6) The witness had the computer readout certain data.

7) The witness used the proper procedures to obtain the readout.

8) The computer was in working order at the time the witness obtained the readout.

9) The witness recognizes the exhibit as the readout.

10) The witness explains how he or she recognizes the readout.

11) If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact.20

As can be seen, to meet this strict standard, counsel should advise his or her client to implement a number of safeguards to preserve the latter use of purposely destroyed hard copy evidence. The third-party software certification process provides an added layer of proof when establishing the foundation for admissibility in court. The Lorraine court believes that, “[t]he methods of authentication most likely to be appropriate for computerized records are [Federal Rules of Evidence] 901(b)(1) (witness with personal knowledge); 901(b)(3) (expert testimony), 901(b)(4) (distinctive characteristics); and 901(b)(9) (system or process capable of producing a reliable result).”21 However, it should be noted that the method of authentication is somewhat less stringent for the governmental client.

Florida Law
F.S. §92.29 (2012) provides statutory admission of electronically reproduced documents for government entities.

Photographic or electronic copies. — Photographic reproductions or reproductions through electronic recordkeeping systems made by any federal, state, county, or municipal governmental board, department or agency, in the regular course of business, of any original record, document, paper or instrument in writing or in an electronic recordkeeping system, which is, or may be, required or authorized to be made, filed, or recorded with that board, department or agency shall in all cases and in all courts and places be admitted and received as evidence with a like force and effect as the original would be, whether the original record, document, paper, or instrument in writing or in an electronic recordkeeping system is in existence or not.

Private sector litigants in Florida do not enjoy the benefit of this bright-line rule. The evidentiary standard for digital image copies of documents and signed contracts when introduced by a private litigant remains reliant upon the business records foundation and the best evidence rule.22 To this end, Florida, like most states, has adopted uniform federal acts, such as the UPA. F.S. §90.951(3) provides: “If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an ‘original.'”23 Clearly, this language provides that digital images can satisfy the best evidence rule. “[A] memorandum, report, record or data compilation, in any form, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity” may be admitted into evidence under the best evidence rule.24 The court in Jackson v. State, 738 So. 2d 382 (Fla. 4th DCA 1999), held:

In order to be admissible, a business record pursuant to section 90.803(6)(a) must be shown to have been: 1) [m]ade at or near the time of the event; 2) [b]y or from information transmitted by a person with knowledge; 3) [k]ept in the course of a regularly conducted business activity; and 4) [t]hat it was the regular practice of that business to make such a record.25

It should be emphasized that the witness or records custodian does not need to have personal knowledge of the contents of the record being proffered, but rather personal knowledge of the business’ record-keeping practice.26 As Florida evidence scholar Charles W. Ehrhardt opines, “[a]lthough some require stricter foundational standards for electronic records focusing on the reliability of the system, the better view is that demonstrating each of the elements traditionally required for the [business records] exception is sufficient to demonstrate the underlying reliability of the record.”27

The Uniform Electronic Transaction Act (UETA) is adopted by Florida in F.S. §668.50. This statute applies to transactions in which each party has agreed by some means to conduct electronic transactions.28 Notably, this statute states that “evidence of a record or signature may not be excluded solely because the record or signature is in electronic form.”29 Therefore, it may be beneficial for your client to include a clause in its multi-party documents that specifically provides for application of the UETA. For example, the following suggestive language could be inserted to show the parties’ intent to bring the anticipated electronic version of the document into the purview of the UETA:

Party A hereby acknowledges that it is an ordinary and regular record-keeping business practice of Party A to ultimately scan or otherwise convert this written Agreement into digital form for the purpose of electronic storage and thereupon destroy the original. Party B hereby agrees that any subsequent reproduction of Party A’s electronically stored version of this written Agreement that may later be produced by Party A in the ordinary course of its record-keeping procedure, shall have the same full force and effect as the destroyed original, for all purposes, including admissibility into evidence in all jurisdictions and tribunals.

Again, the proffering party must still satisfy the business records foundation in order to overcome the best evidence rule. However, including a clause allowing for coverage under the UETA may stifle an objection to the electronic form of the document.

CONCLUSION
The admissibility of electronic copies of documents comes down to a showing of the trustworthiness and accuracy of the reproduction of the original. While most courts now tend toward a more lenient rather than a demanding approach to authenticate electronic records, it appears better to err on the side of caution until the evolution is complete. Certifying documents and signed contracts via third-party software adds to the predicate required under F.S. §90.803(6)(a) to lay down the foundation required to overcome an objection to admissibility and aid in establishing the trustworthiness and accuracy of the digital reproduction. In some instances, third-party software certification may alleviate the need for the in-person appearance of the proffering party’s records custodian, but in the opinion of the author, most times it will not. Third-party software certification (including time-stamping) does not presently rise to self-authentication and is not binding on the court.

Based on the understanding that the time and costs associated with a third-party software certification process are considerable, your client should be advised on balancing the beneficial return on such costs. Because third-party software certification only adds to the business records foundation, it is not uniquely probative. Your client’s sound records retention policy may add to the admissibility of electronically stored records in the same manner that evidence is traditionally proffered, i.e., by laying down a foundation through the testimony of a witness with personal knowledge of the document’s history. Indeed, even the original document, when available, is put to the same scrutiny, but for statutorily self-authenticated evidence.

The underlying challenge to the authenticity of an electronically stored document is to overcome the possibility that it could have been altered sometime during the interval between when it was digitally reproduced and the time of trial. Although the same concerns as to alteration can be raised in an objection to the admissibility of original hard copies, the North Carolina Supreme Court in State v. Springer, 197 S.E.2d 530 (1973), aptly noted that “[t]he rules of evidence governing the admissibility of computerized business records should be consistent with the reality of current business methods and should be adjusted to accommodate the techniques of a modern business world, with adequate safeguards to insure reliability.”30 Third-party software certification provides such a safeguard by facially comparing and time-stamping the document, professing to certify that it is the same as the original, and by the custodian of records e-signing it; but is not by itself probative of the accuracy of the reproduction.

“Does the cost outweigh the benefit?” For government attorneys the answer is a simple, “yes,” because of the reduced burden made available under F.S. §92.29 (2012). For private litigants this is a business decision for the client to make, taking into account the advice of counsel with knowledge of these evolving trends.

1Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 557 (D. Md. 2007).

2 28 U.S.C. §1732 (2012), available at http://www.law.cornell.edu/uscode/text/28/1732.

3 Id.

4 Id. (emphasis added).

5 See, e.g., In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 615 (D.N.J. 1997).

6 Lorraine, 241 F.R.D. at 534.

7 Id. at 541-42 (citing Fed. R. Evid. 901(a)).

8 Id. at 542.

9 Id. at 544 (citing Fed. R. Evid. 901(b)).

10 Fed. R. Evid. 901(b)(4).

11 Lorraine, 241 F.R.D. at 547.

12 Id.

13 Id. at 549-52 (citing Fed. R. Evid. 902).

14 Fed. R. Evid. 902(7).

15 Lorraine, 241 F.R.D. at 552 (citing Fed. R. Evid. 902(11)).

16 Fed. R. Evid. 902(11).

17 Lorraine, 241 F.R.D. at 552.

18 Id. at 558.

19 In re Vee Vinhnee, 336 B.R. 437, 444 (B.A.P. 9th Cir. 2005) (this analysis is relevant, but more applicable to internal business records, such as invoices, ledgers, etc., rather than mutually executed contracts).

20 Id. at 446-47 (citing Edward J. Imwinkelried, Objections at Trial §4.03(2)).

21 Lorraine, 241 F.R.D. at 559.

22 See Fla. Stat. §90.952.

23 Fla. Stat. §90.951(3).

24 Fla. Stat. §90.803(6)(a).

25 Jackson v. State, 738 So. 2d 382, 386 (Fla. 4th DCA 1999).

26 See Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So. 2d 1121, 1122 (Fla. 2d DCA 1988).

27 Charles W. Ehrhardt, West’s Florida Practice: Florida Evidence §803.6b (2013).

28 See Fla. Stat. §668.50 (2012).

29 Fla. Stat. §668.50(13).

30 State v. Springer, 197 S.E.2d 530, 536 (1973).

 

By William R. Wohlsifer and Tyler L. Thomas

William R. Wohlsifer is a commercial litigation attorney with the law firm of William R. Wohlsifer, P.A. He practices in both Florida and Washington, D.C., with an emphasis on copyright and trademark infringement. Wohlsifer received his B.A. in political science from The University of Central Florida and his J.D., cum laude, from The St. Thomas University School of Law.

Tyler L. Thomas is a third-year student at the Florida State University College of Law and a clerk at William R. Wohlsifer, P.A. His studies focus on commercial litigation, real estate law, intellectual property, and corporate law. A graduate of the University of Florida, he is a member of both the Journal of Land Use & Environmental Law and the Business Review.

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