afternoon ladies and gentlemen this is the time set for a hearing on bach and while some pers the reason supreme court decision you leave the williams established two principles for this court to follow first strict scrutiny applies to all judicial candidates speech restrictions regardless of the speaker and uli the court and instructed that speech about public issues and the qualifications of candidates for elected office command the highest level of first amendment protection second the ability to announce one's views highly protected speech under the first amendment that no cognizable interest can overcome judicial speech restrictions that limited judicial candidates ability to announce his views on disputed legal and political issues fail strict scrutiny while judicial speech restrictions that have no impact on a judicial candidates ability to announce his views may survive strict scrutiny which will which provisions of the arizona code in your view impact the ability of a candidate to announce his position on issues and let me just run and cetera well insofar as you want to participate in other candidates campaigns which is that issue here insofar as you want to participate in ballot issue campaigns insofar as you wish to endorse another candidate well on an issue that you may say i'm in favor of i'm against it there so i'm trying to figure out how it impacts your ability to announce your views if you are prohibited from fund raising or solicitation and his case democrat candidates campaigns that for him is a means by which he is able to also announce his views perhaps as a shorthand rather you know there are many ways to it to announce your views you can s a republican or democrat nobody preventing saying that nobody pronounces him during the campaign from announcing his views under white on various issues correct well i would disagree insofar as an opportunity to participate in another  another candidates campaign and certainly more specifically as relates here participate in another an on issues aren't going to get a sitting judge to that part of the way is there a compelling interest in not having a sitting judge do that i think that let's say it's not a campaign just you know the day after the campaign certainly so now we have a sitting judge who is not trying to get himself him or herself elected but i would still say that their participation would be a form of announcing their views which t court has recognized regardless of the speaker is protected under the first amendment what about the if if i were to analyze your  arguments i think your strongest argument has to do with what a noun being able to express an opinion on a ballot initiative but apparently i think and i'm going to ask the state about this after but do you allege that the arizona code of judicial conduct prohibits a nontraditional candidate from expressing his opinion on a ballot initiative had they expressed their opinion on a ballot initiative conduct commission a branch of the supreme court and and also a constitutional body in arizona issued an ethics opinion that says that judicial candidates can announce their positions on ballot proposition can inspire concurring opinion in which judge pryor also heard that said that a lesser standard should apply so what do we do do we take the four who said strict scrutiny do we go with the two concurring who said something less should apply now how should we analyze that or maybe you could add the four in the three and get seven all of whom agree that strict scrutiny applies and i think you have the right of it just and i think that is correct i know it's a little bit of how counting but at the end of the day insofar as the strict scrutiny issue  determine which which position is the holding of the case you go to the narrowest position that it's held now that the center in the majority arguably that's the problem pardon me the problem is that if you read mark's literally it says in the majority well i wasn't intended to be a trick question but i think it's when they're going to have to grow your position is strict scrutiny across the board is that right yes that's how you interpret marks and that's what you think we need to do that is correct is that because of williams uli or is that because of consider all the justices and their opinions whether they be concurrences you know plurality or dissent and looking at them in their totality we have a holding of a majority of the court that that strict scrutiny is the standard  decision that seems to suggest that although and name strict scrutiny is what this is what's being applied that perhaps the analysis might be a little bit more fluid a little less rigorous but i think that the court did that per allowed some of that fluidity because it was attempting to reconcile what i perceived to be a distinction a difference between legislative races versus judicial races and so in order to to account for that difference between electing legislators versus judges well that would be true as to the interest of impartiality but this court was not looking i mean that was republican party versus white which addressed impartiality but i think the court  that's a compelling interest here that we ought to recognize in deciding what the constitutionality of these provisions oh i certainly do i think there are two interests now and now and as a result of uli uli does not overturn or vacate or somehow negate what occurred in republican party versus white it still is true that there is a compelling interest in impartiality that must be demonstrated through narrow tailoring and if strict scrutiny applies ass's muster because this is one of those  ual cases where the label does not foretell the result i think i think the court has said that it is a rare case that does survive strict scrutiny as we've seen with uli was such a case that can occur that can occur there is that possibility well certainly in your supplemental braith and i'm looking at page eight do i read your supplemental brief that page eight to concede that if arizona's interest in the integrity of its judiciary are as broad as florida's interest then the regulations you're challenging are constitutional under william shute uli i don't know how i can say otherwise if if if arizona's interest is identical to that why is your this one different well we would argue the difference here is i'm assuming you're not saying rule against me right here no i'm not your honor and you got that her act the distinction though is that  think integrity and public confidence klute impartiality no  i guess what distinction are you making i guess is the question the distinction is that when you look under florida's ethics rules the definition of integrity really turns or depends on fear or favor when you look at arizona's public confidence protect the integrity of the judiciary it turns on different criteria w judge's ability to be honest for example so that over the three that you mentioned her honesty temperament and fitness for office but and so to get to judge her son's question or perhaps it was judgment and western and they were all asking the same things aren't those subsumed in integrity it different well they must i mean i believe that they are different and if you interesting really if you look at the california ethics code by way of example contrast they state in their commentary to their cannon one that the integrity and independence of judges depends in turn upon them acting without fear or favor so that sounds very much like florida and then defines integrity to mean probity fairness honesty uprightness sounding very much like arizona entry that interest as reflected in arizona's code looks different than that well that was considered to be so my question is that was the interest be expressed in the code as opposed to the state now coming forward with the with an interest that we all agree is compelling because the supreme court has told us oh well i would argue yes if you look at the language of you leave when they arrive at it when they get from a public compelling interest must be expressed in the statute for example that it actually restriction as opposed to the state merely coming forward with an appealing interest when challenged i don't think that there is any statute or rule that says that the state must articulate in writing what their compelling interest or their interest is for passing any law however if they do identify the interest it's a little disingenuous to it in my view to say that actually mean something else i look counsel let me you're acting as if the different codes were all passed by the same legislature so that if they phrase it one way and one statute in another way in another statute they must have meant something different but these are independent body use in different states and can't they be expressing both the same basic thought in completely different language and still mean essentially the same thing well i think a lot of these canons cama from model rules like from that way and each state of course adopt searches to adopt whatever language they wish perhaps from those model rules perhaps not but i'm talking about this statement of interest can't they you know get flowery in their own way and still be getting at the same state interest and they so if they differ from each other i think that we ought to mean something for why it's changed why because they are different states acting independently what you say is a canon that we impose as a fiction when it's the same legislative body passing two different statutes but why would we apply that same cannon when we're dealing with california arizona florida nebraska wherever why would that even come into play why don't we just look at it holistically and say what is it that they're trying to tell us what in general are they trying to get well the court is certainly welcome to do that i  say vote for the governor and either a candidate who isn't a judge or a judge what exactly your position our position is any opportunity that a judge has to announce breadth and that's a separate issue but as to those two with the state have an interest in prohibiting this efficiently compelling interest  i would think that it's that edge additional candidate that wanted to endorse the district attorney or wanted to say support the sheriff that would that would that would probably be i think that could be regulated so that we have to go case by case it just depends on you know because your client wants to endorse people for but congress for senate you know i mean he kind of wants to be out there in the power broker  his party and have all of that lined up right no i don't think it necessary to take the case by case all it simply necessitates is that the state craft their rules to address the real issue that will interest in keeping the judiciary out of politics directly because of the difference roles of the judges and and and the rest of the political  system i'm thinking of sitting judges but i understand that what we're that there seems to be an assumption that whatever applies to sitting judges applies to candidates but let's think about sitting judges is there not a strong state interest  having sitting judges not appear to be part of the legislative process or the executive process but rather to be deciding or rather have a role that i had or a veil that says we're not part of that well that is why the court has said that there is a compelling interest in impartiality i'm not talking about in my shouting the sense of being impartial between the people who are in front of you certainly i'm talking about a role or a structure is not a compelling interest in that i think the compelling interest that we have before us today are those that have been recognized by the supreme court but that's because that's what was before the court that doesn't mean that worse we have our hands general not to in their own campaigns but in jet as to the rest of the world i would say no i don't know how you would be able to navigate that if on the one hand as a result of has done you've said you can run as a partisan candidate as the judge  judicial system whether it's much of that i think that judges are free judges are free to do what they what they will or will not and have an understanding of their own what it means to uphold their role as a judge and they certainly are free to do that is the issue of yours as well as first amendment rights what do you make of the discussion involving hughley about the difference between judges in traditional politics politicians what do you make  discussion well i think insofar as that is true i think that is that discussion was relevant to the core both in republican party versus well and in the vision by recognizing a compelling interest white then you're talking about involvement in in a judicial candidate own campaign but in some parts two through five we're talking about arizona's talking about keeping digital candidates for sitting judges out of trying to influence campaigns of others isn't that a very important distinction i think that's what what judge persons trying to get you to respond to and if she's not i am would like you to address that certainly and i don't i actually don't think that is is a meaningful line to draw whether the whether we're talking about candidates own campaign or another candidate why now there's i think the line is announcing once use the opportunity to counsel the white one talks about the importance of allowing a candidate to speak out on his or her own views and the importance of a robust election debate and at the end there the public has an interest in that as well but it's very different if judges are seen by the public as trying to influence the outcome of other elections that is an important distinction and and you don't seem to want to address it there's something to be said about preventing judges from appearing to be power brokers or trying to trade on the prestige of their office or being in a position to endorse someone and in perhaps the optic that that might appear that they're that a favor is owed in return would you address that certainly but i think i think the optic of a favor being out in return actually is at its greatest risk in scenarios that are not even addressed in these rules about that if if the rule didn't prohibit as much speech is it possibly could we shouldn't concern ourselves with that you know actually i don't read it that way at all and out of this quote there seem to say that no i think i think what the court made clear with under inclusive it is that when you're looking at what the law does and doesn't do it i'm just going to quote quote this language here to help make my point and uli sixteen seventeen page sixteen seventeen it says under inclusive it creates a first of emmett concern when the state regulates one aspect of a problem while declining to regulate a different aspect of the problem that affects state interests in a comparable way and so the courts concern there with under conclusive that he was not that it doesn't matter it's not important anymore but rather that it needs to be we need to be comparing oranges to oranges but it also said although a law is under inclusive seventy raises a red flag the first amendment imposes no free standing under inclusive limitation didn't justice roberts say that certainly but then we have the subsequent decision of in the gilbert case that we offer to the court that again found that the law there which dealt with regulation of  s was under inclusive and therefore failed failed constitutional review and so again and at the court there if you look compulsory i got the message on gilbert so if you want me to follow you know if that's i'm not i'm not doing gilbert again thing is it in light of those is it your position that your client could not tomorrow say i'm in favor of the announce that he is in favor of a particular ballot initiative in arizona pro four point one comment fourteen and look at four point one a five and see if they don't cover that situation and i'm not expecting you to do it now you're right it was down to two minutes so i need to take a look at that and then respond as i think that your honor thank   judicial superior court races in arizona are nonpartisan by fear virtue of the constitution justice of the peace races can be partisan were were not altogether sure what mr wolfson intends to do in the future but he has run for but whatever i'm not sure what nonpartisan means but we have an opinion in the much hand a case saying essentially that i don't know whether it's still good law not a sort of like your views on that that there is a constitutional right parties to endorse judicial had games right in the end that is true in arizona as well it's just that on the ballot itself ok the judge may not put but it doesn't matter as a party member yes excuse me the judge is not run as a party member the parties may endorse but the judge does not run as a democrat the question on the ballot initiative i think justice who it's brought it out but but also the judicial advisory opinion and six zero six zero five which was the after the white  it i don't think that there's a program prohibition on that what what the opinions later state is that a sitting judge who is not campaigning may have a in appearance of impropriety if he is publicly and actively supporting a ballot and you hear so many of us between what a sitting judge can do while he's campaigning about a sitting judge can do when he's not campaigning asked should things that don't have to do with his campaign directly rule four point one well can him for addresses what candidates both sitting judges in one sitting judges can do during the campaign period and there is a greater protection during the compay campaign period reflecting the supreme court's opinion and white that the voters have a right to know  qualifications of the judges who are running have a right to inform the voters about their qualifications and their positions on issues that disputed the issues of law that your position as i understand it or maybe it's not is that that's in the format of their own campaign but what about in the format of going and interesting someone else's campaign your position is they can that now that's correct during the certainly not while they're sitting judges but not while they're running for office either a sitting judge or in one sitting judge i would remind the court that as to questions concerning what a sitting judge may do while not campaigning is not before the court the earlier panel decision so i understand that your honor but i do believe on that particular point that the panel was correct that it is very hypothetical that mr wolfson will ever be a sitting judge so his his concern what they were addressing was the concern about commits clause so he wanted to speak out about certain ballot initiatives but was concerned that he might have to re himself if he became a judge and the panel said that is too hypothetical for us to address that issue i'm not sure i understand your position are you distinguishing between the period of campaigning as to everybody who may be campaigning having different rules than anon campaign period seating or are you just wishing within the campaign period incumbents who are running for reelection and outsiders who may be running against as to the latter your honor i am not distinguishing between incumbent judges running incumbent judges you would have us treat all judicial candidates for office whether they're incumbents or not you think they should be treated alike is that right that's correct your honor what is the compelling interest with regard  nontraditional had gates were not currently judges to not have them for example indorsing other people running for other offices if they're not then judges if they're not judges they are of course running to become judges so the activity that they participate in during the campaign period may very well affect what happens in the perception of the compelling interest the compelling interest is is public confidence in the integrity of the judiciary it's the appearance of impartiality in independence if judicial candidate is linking him see him  meant that if it's a sitting judge it's a little stronger because that you know people are saying well judge someone so when that does you know the other person is just to want to be at that point well what happens with  the interest that you're arguing for i mean i would hate to be a judge and have someone run against me that had different roles then then i would have been so but i mean there's a little leap that you have to do to  for an office to have more speech than for the same office to level compete compelling interest that you're arguing for you're saying with respect to sitting judges the compelling interest is the interest that we've been talking about and impersonality in the appearance of impartiality and with respect to the non incumbent the compelling state interest in having a fair  to which both sides or all sides have the same first amendment opportunity yes your honor i think that is a compelling interest as well but i also think that there  is a furtherance of the interest of the appearance of impartiality and independence of that you just as soon as a candidate identifies him or herself as wanting to run for office the public then associates that candidate with judicial office and therefore has that in mind and again when when if he's successful he democratic party and can't have anything to do with the democratic party of that's his job that's right i think he would have to resign i think he would have to resign your honor i don't think he'll come out on this is john the case that you have to support the argument that someone who support that viewpoint in both of those cases the courts were dealing with judicial candidates and the court they're both in both courts said that regulation of that speech of those judicial candidates speech furthers the compelling interest of preserving public confidence in the integrity of the judiciary i want to ask you a question about the breath of the prohibition against making speeches on behalf of a political organization so how broad is that when we give you a hypothetical if for example the american cancer society holds a rally for the cure of cancer and a political party is a co sponsor must a judicial candidate excused himself or herself from speaking there i think it is very context specific well i gave you a cont so they are right so that's ok does the way that it's written right now would that cover that situation is it that broad it's pretty broad that they couldn't speak along with the political ad a political organization that they're a co sponsor it's the american cancer society and one of the co sponsors is a political party and must a judicial candidate excuse himself you know we have the breast cancer month coming up so what if the democratic party joined in on that and then a nontraditional candidate wants to speak there against breast cancer can they do it i think that it might be problematic depending on the appearance they could get it and opinion and look at what time what part of the code covers that i'm looking at the code tell me what part of the code would cover that in your view and one for point one is the one that applies is this a political campaign view no it isn't so what what other what other provision of the code might prohibit that we are we are looking at a prohibition  activity that's great probably both in fact and definition but for example rule three point which is not directly at issue here applies to judges and not traditional candidates and it says that in treatment between campaigning activity and nine campaign activity and i thought you said that williams released gansler proposition that non sitting judicial candidates in seeming who's not a judge currently asked for money for a breast cancer awareness week yes is not a part of the event but a get back to drawled sense question is it really possible to treat all of the digital candidates equally if some of them are sitting judges it seems to me they have some obligations and restrictions because they've already taken the oath and they're already sitting judges right if the if the candidate has the ability to speak out that might be one thing because if we rule in your favor but i can easily imagine a judge choosing not to do so because to do so he or she might have to recuse him or herself from an ongoing case and i guess your answer is that would be up to the judge to choose not to use exercise his or her first amendment right that's correct but take a risk in the election they're not going to respond to the challenge but that would be the inevitable result it seems to me well  clear from the code that they can respond to their opponent and correct anything that their opponent might say about them but what the code is trying to do is on the one hand respect the rights of judges who are candidates to be able to effectively campaign but on the other hand protect the integrity of the judiciary and it may very well be that different judges interpret their obligations differently under the coat but it could be then a sitting judge who has a really high profile maybe a long standing case where the parties and the judge have invested a lot of time and energy will be quite vulnerable because a non judge a candidate could assert a position on this hypothetical hot button issue and then the and then the sitting judge it sounds to me would inevitably be in the position of having to make a really tough choice either exercise his or her first amendment right and respond because there's an ongoing election and this person wants to keep their seat in office or choose not to because to do so requires recusal is that right i believe that that would be correct that the judge would have to make that that choice counsel can we go back to the strict scrutiny issue you heard our conversation with opposing counsel your position i four and get seven or is it simply a stand alone argument which as to which we can't apply williams you we because there are only three that at the lower level of scrutiny was something that we argued previously and because in williams really i would say i agree with opposing counsel that the narrowest reading of that is that strict scrutiny does apply so unless the regulation of that personal solicitation but in the personal solicitation ban is different from the endorsement or the political activities cl then i would think that you you would be required to apply strict scrutiny as to the compelling interests is the compelling interest with respect to each one of the five provisions an issue the same or is there a compelling interest stronger for example in the personal solicitation category and then weaker in endorsement or is it the same all the way through i think that lady i mean as to the the solicitation clause in me you're directly dealing with what with the possibility of partiality to the people who are giving you money with regard to issues of about speaking out on issues for speaking out  candidates i mean that's certainly speaking out on issues isn't usually understood as a reason for a q so are not necessarily is isn't and speaking out about parties it's not you know how many cases actually show up are specifically about political parties it's a whole different interest isn't it isn't an interest in the overall role and structure of the judiciary is is that not true or what what is the interest at that point of the other thought just words the rules do not prohibit speaking out about issues or about ballot propositions what the rules prohibit is public support of candidates or opposition about going on t v about about opposite about an issue that's not at issue in this case i'm not asking you know what does the role covered or not i don't i don't necessarily so so your answer is that no the rule does not prohibit taking positions on a ballot initiative that's ok and you're relying on the ethics opinion zero six zero five is that right that if there's a compelling state interest in regulating the behavior of sitting judges during the course of a campaign that there should then be a compelling state interest with respect to those specific regulations during a campaign in regulating the competitors so as there is an equal playing field between the two of them and i heard you say maybe somewhat half heartedly yes and there's something else too did you mean to disavow the argument the judge gruber gave you or would you view it as a compelling state interest that whatever restrictions relevant to the campaigning incumbent judge should also be put on the non judg campaigning for the same office and the level the playing field is a self a compelling interest i would say that it is itself a compelling state interest given given the supreme court authority that you can allow competing candidates to have different levels of speech the government can't do that they may come into it with different capabilities but the government cannot make rules that a court different levels  speech two competing candidate but what's your position about the sitting judge who has the very controversy a long standing case and that and the challenger the non judge challenger takes a position on whatever the hot button issue is the sitting judge be allowed to respond and take his or her lumps in the election you know cues or do they have to take the lumps in the election or how do you see that play well i suppose what it goes to is if if what the opponent says is is something that in order to respond to it you have to indicate how you might rule on that case and you may have to articulate things that would indicate not a bias one way or another i thought ok you have to do all of that because i'm trying to make the hypothetical difficult so let's say all of that is true i would say that then given the due process rights of that the judge has an obligation to honor the due process rights of the litigants and so in that case if it requires him to cross over and indicate some kind of bias to specific order under subtend yes in that case then the non judge candidate can't have advance notice of what speech he or she is allowed to engage in without knowing what the is in the sitting judges case load how does that work i'm sorry i couldn't can you recall the non judge candidate and if to follow up on judge purposes question if that speech is dictated by what issues may or m not exist in the sitting judges case load in order to level the playing field that strikes me as entirely unworkable well i think what just hurwitz was suggesting that given your hypothetical there was a specific criticism of the and it may be that there would be some differences there in individual cases but this is the group in order to maintain public confidence we don't want people whose i think that is correct and so it allows it allows candidates to speak out on disputed legal issues but but doing so at the risk that that if that issue comes before the candidate he or she may have to recuse in that event or he or she might have to explain to the public why their existing oath doesn't allow them to speak at madison topic correct doesn't subsection ten take care of wolfson was permitted to say that he believed that marriage was the union of a man and woman but he wasn't permitted to say that if that case came before him he would rule in that particular way what your response to counsel's argument that impartiality means something different in florida than it means in arizona both the preamble and the comments to rule four point one clearly speak  language that is very similar to the language used in williams uli that preamble says an independent fair and impartial judiciary is indispensable to our system of justice  comment to rule four point one says public confidence in the independence and impartiality of the judiciary is a road if judges and she just shook candidates are perceived to be subject to political influence  i don't i think when i read the distinction in the supplemental brief and still today i don't understand the distinction that counsel is trying to make arizona has raise want to say something when she stands up is to my view she's asking for magic words meaning the idea is virtually identical and what you're getting is sort of feel good boilerplate language from both states aiming at the same thing expressed slightly differently right she focuses on fear or favor but that goes directly to impartiality and the language of impartiality and independence  scribed in different words a little bit but it's long as you have the interest in impartiality and independence as one of the interests that doesn't detract from the fact that they are also is an interest in honesty and  closer to getting at impartiality and in independence well because it is not a in that but it may impartiality and as i said before i mean something else means as between the parties are you partial  county attorney and endorse them in their campaign then what about the senator states and again there's an effort what i was starting to say earlier is that when you were endorsed someone else that doesn't say anything about the candidates own qualifications and so why i said that with the personal solicitation band there's there there's a direct the amount of money that they're able to collect furthers their ability to speak out with the endorsement clause there's really very little that their first amendment interests alas not that your interest a strong the first yes well the white one concentrates on the campaigning the lety the ability to allow candidates to educate the voters about their qualifications  therefore again and again when you're in door scene you're going to particular candidates who may or and their supporters who may or may be parties before the  with just return to your question as requested i mean you had indicated that it seems that in the commentary to the rules comment fourteen seem to suggest that a judge cannot know their views and so therefore that there is there is no  first amendment harm that would arise from prescribing that candidate ok so since we know it now that we agree on what the commentary says my question is is there a greater first amendment harm if you can announce your views and not being able to join the campaign which is what which is what the rule does prohibit is there a separate first amendment rule that separates up the first amendment interesting in speech interest in joining the campaign it sounds to me like an associational interest rather than a speech interest i guess i don't i don't see it as a separate interest i see it as as more of a regulating the form of the announcement and i think that that as i've been listening to more questions from this panel it seems to sponsored by the campaign so the judge was taking part in the campaign organization if you did judge were interviewed on television couldn't he just announce his views but again yet yes he could but his ability to participate in the campaign and his participation in that campaign as part of that announcement i think again we're we're looking at trying to regulate the form of how of how that announcement is gone about and so we the republican party in minnesota is this speaks to that when they when they recognize the right to announce their views they say they address the issue judges are prescribed from pledging a promising certain result in a issue comes before me of the initiative passes then there will be a challenge to its constitutionality the judge would be expected to rule one way or the other depending on what he or she said really our position is not that educational candidate should be able can and that they can state their support on an issue and be part of an initiative campaign there's no risk of favor there's no risk of bias for a party there's no people involved it's purely an issue where i don't don't doesn't the legal and and i can speak to this rich variance but i think as bank you can't do it doesn't the legality of campaign initiatives often come before the courts in arizona if you every two years if you look at the superior court decisions in the supreme court decisions there are challenges in this initiative or that initiative under the single subject rule or because of whether signatures were collected correctly or all that sort of stuff a judge who was part of the campaign as opposed to expressing her views on whether it was a good idea or a bad idea it's been a little bit of a difference there when those issues come before the judge about the whether the can with the initiative want to be left on the ballot that's really different than whether she favors it isn't i her looking at the interest of the public's confidence and the integrity of the judiciary if a judge announces their view on a particular issue or they have a participate in a campaign's in and as a means by which to announce their view on a not a compelling interest and in conclusion i do want to just leave us with a final statement from you lee quoting judicial candidates have a first amendment right to speak in support of their campaigns how they choose to