good morning honorable justices i don't want to probably used to arguing in front of the california court of appeal or judges not justice just as our critics will tell you there is no justice in the ninth circuit and i certainly don't believe that i don't want to take up the court's time reviewing what you've already read i know you carefully looked at the briefs in this case i believe the case is a rather simple and probably simpler than the city's representative will tell you but i would like to focus on one important point  going directly to what is happening when people are out collecting signatures for the recall petition is that is the essence of our democracy the core of our democracy is person to person communication not television advertising or radio ads or magazine ads we're talking about people out in front of shopping centers out front of churches that swap meets meeting in person with other people asking them to sign a petition taking questions from the member taking questions from them handing out brochures it's that one on one contact that's so important to protect our democracy this has nothing to do with a candidate election not one penny of the money that would be collected for the purpose of collecting signatures would ever find its way into any candidate's chest or chest for their campaign all this money excuse me do you have any cards so that that the money that you collect is not coordinated with someone who might be opposing the income and well presumably anybody who would be collecting signatures for the recall would probably be opposing the incumbent put everything into one back and there's no separation there i'm sure if the ruling was such that that one discrete portion of the recall process that petition signature collection part was to be broken of and treated differently that the city could craft some limitations on the use of any of that money or any court nation course there is there are no candidates during the petitioning phase the recall because the recall hasn't passed yet and  and dropped out so you see there is a case where somebody prominent wealthy person bankrolled the petitioning and didn't get anywhere didn't get any or someone else one that's sort of the practical impact the question i have which follows the questions my colleagues had this is is there anything in the structure either that the ordinances that were in place at the time in this lawsuit was decided in the district court that there's been some changes to the ordinance the last change was the change described in the brief whereby the recall process was considered an election for totality or is there anything in the structure of the ordinance system that would that would prevent the flow of an incumbent money delivered to the petition gathering phase bleeding because they don't allow us to they consider the entire process an election so we haven't gotten to gotten to that point yet that would be the logical way from the day you announce that you're planning intending on collecting signatures that's the first day of the election therefore you'll be treated as though you're you're collecting money for a candidate that you life that's exactly what happened and that's why we're here that's what they d your associate there can find it in and and tell us about it but my question was it is your challenge focused precisely on petition gathering absolutely our organization you're not challenging the contribution limits that relate to the recall election itself not at all we believe in the house my client one hundred percent supports the existing structure of the city of san diego's contribution contribution or we're saying is that one discrete portion between the time you start collecting signatures and you're done collecting signatures and you turn them into the city clerk for review that part of it should not be called an election that should be open just as collecting petition signatures for an initiative is open so if you collect the funds for it from the putting the recall on the ballot and it's successful can any of the funds that were collected for the p can those be used for candidate or candidates that might challenge the income under the city of san diego structure now because then they would be candidate contributions again this would be only if the law was changed to allow us to collect the money to do the petition gathering right and if it's a it be very simple change in the city of san diego statute to achieve that we absolutely support the candidate contribution limits in every way  legitimate interest in preventing a single individual or a group of individuals from controlling the recall process their monetary contributions well and the city use this the argument the big box builder argument in its brief i can tell you when you think about it it's almost impossible to control a recall once the petition signatures are collected if there are enough of them then it's wide open and it's a person can win with less than fifty percent of the vote so the suspect the answer you're giving the response you're giving assumes that there's somebody mind the recall petition gathering that has some interest in running for my question is more general than that doesn't mean municipality have a legitimate interest in preventing domination of the process by which recall elections even occur i don't think so because the collection of the petition signatures doesn't lead to any particular outcome in the election the voters still have to vote on it if they likely come and they'll vote to keep the incumbent in here's what i was the point i was trying to make is this wealthy person who wants to control the process better watch out because he may get someone else acted that  even worse to his interest as the incumbent when it's sort of letting a genie out of the bottle just like in the case with schwarzenegger well you're talking about practical aspects again but but with unlimited contributions to just the petition gathering phase couldn't they single individual or a group of wealthy individuals in effect hold a hammer over the head of members of the city council didn't vote their way i suppose they could in the same way that those wealthy individuals could bankroll an initiative to undo whatever the council member wanted to do or to put term limits in to kick them out or any of the other things that can be done with an initiative at the city level san diego's had some particular ice problems with corruption haven't they yes they have got a congressman who's gone to prison correct to cunningham judges who have been convicted in federal court of taking bribes and i have appeared before some of the judges before they went to jail you city council people who didn't disclose contributions from people with an interest in zoning decisions that's correct and the f c c that yesterday issued an order in a settlement accusing the existing city council members of knowing fraud in that environment what's wrong with the city wanting strict campaign contribution limits on every aspect of the election process including a recall well because isn't it the right of the people if they don't like their representative to put them up for another vote instead of having to wait four years and let them control the government i mean it would be our opinion that the only reason the city council passed this law is to protect themselves that's why they did it they say they don't want recall because the voice of the people coming out because kind of a sacred thing in california after years of control by the southern pacific railroad the progressives put in a recall referendum an initiative to avoid that kind of control and it could be argued that recall is necessary to prevent corruption not the other way around oh go ahead collected and if a single two hundred fifty dollars would not be enough to pay for the printing of the the initiative petitions if one person want to do it you with you would violate the rule right there if i may i would just like to cut to the chase here and respond very quickly to questions that the judges had about the structure that was in place at the city of san diego that might impact how  occurring once they're obtained there is if the court and as i'm sure you have has looked at the ordinance there is no structure that would limit how many is to be used in fact that would probably be in a constitutional infringement by virtue of independent expenditures and the u s u s supreme court as well as the circuit has repeatedly hell the limitations on independent expenditures would be would not survive first amendment challenges so but i think the astute observation is that it recognizes the practical realities and i think this was that chris morning case that unfortunate was not cited in the original brief ninth circuit case we have that it did today and that's the jacobus vs alaska case and in that case the issue was limitations on soft money contributions and the issue there interestingly when enough was not whether it was focused on the limitations so much as that there was no identification of a candidate as such these were limitations to contributions to parties much like the recall signature gathering process there is no candidate identified so similar to the jacobus case there is no can do that issue but the practical reality and i think with the  is that you have the danger of corruption or the appearance of corruption and possibly even a circumvention of actual hard contribution limitations and so this is what the city seeks to avoid with the ordinance now some time has been spend on wanting to separate out from the ordinance just the signature gathering process and as the district court recognized you really can't do that it's really reversed election you are saying to the people we're not happy with the incumbent we feel like we've gotten enough support to get this individual out of office but they're saying we don't have enough time to get the signatures and besides which the limitations on the contributions are are unfair because we're going to look at the signature gathering process more like a in the wings and while there certainly is nothing that would preclude that navan if there were something to preclude that as i was indicating earlier that might be constitutional unconstitutional in and of itself as a limitation on an expenditures which specifically are for or against a particular candidate so we have a dilemma as a practical matter is there's no structure that you can but it's kind  government needs to provide some evidence that there is corruption or appearance of corruption that's being used to seem to go have any experience or any kind an actual incidents that they can point to in a recall context the answer would be out there has been a series of events in the city of san diego that remind voters pretty much every day that there is the potential for corruption and so you really can't separate out the recall from the general political process it's a it's a public perception now as to specific evidence you know there was none present in the in the proceedings stipulate a judgment so really there was no factual development either as to the actual prejudice or inability by the talents of the plane as they have been unable to obtain the necessary signatures or than opportunity for the city to indicate what corruption there or appearance of corruption there might be selling fortunately the record is devoid of any factual basis for both sides frankly what's the standard of review the standard review if we're focusing on contributions alone the us supreme court as well as the ninth circuit has recognized the contributions versus expenditures versus ballot measures are not held to the strict scrutiny case on down the recognition is that contributions as opposed to expenditures for example marginal effect speech in fact as the of palin's have pointed out these people are out on the street the declaration recognize that there is no infringement on speech as such could there be an impact on association perhaps but the there is no showing that the two hundred fifty dollars limit per person or the time limit itself simply will not allow that process to occur it's basically theoretical in substance is there i think i know what the answer to this i just want to be clear about what likely is the right one i just to confirm is there anything in the record there that we have there where the city offered evidence of a compelling there was substantial interest in this particular  i don't believe that there was no and yeah the answer a simple answer is no of course the the appellate decisions including the u s supreme court a valentine with the recognition that practical experience demonstrated that this appearance of corruption just the just the just the possibility that you have unlimited expenditures were allowed you could be given free access to a wealthy group of individuals say here here's some money and then the recall petition gathering successful and you do a kick up luncheon or events as they introduce the candidates you and by the way mr a candidate we'd like to introduce you to mr so and so and you know you wouldn't be here but for his one hundred thousand dollars that went to the signature gathering process probably the first time in american politics that it's over career and you know i think it would be yeah  and not only that it would be very surprising if that candidate didn't have some confidence that those individuals if allowed to provide unlimited expenditures would those person providing those expenditures or contributions are are banking theoretically on a certain person to get into office you know nobody's going to throw out a lot of money necessarily  with with no expectation you know whether it's successful or not is another thing that without any expectation that their candidate of choice is not going to be in the running in might ultimately be successful i think it was huey long who said those who contribute early get access those who contribute money to get good government so your opponent suggest then that this is an incumbent protection system what's your response to that which i had a good response to that you honor i don't see that it's i think it's a little coincidental that this amendment occurred after a a recall effort very early on and certainly there was city attorney opinions that would have suggested that the early earlier practice would not of limited contributions that maybe there needed to be a little bit of control on this because it certainly identified the pit of you leave this wide open and you're setting yourself up for not only not just protecting incumbents that all the sudden getting people in to disrupt the whole decision or legislative body process this system is more restrictive than the prior system in the sense that as the polls correctly pointed out it deems the signature of gathering portion to be part of the election process and this is the least in part in response to a successful rico there's no factual evidence to that the inference certainly is there for clarification he wants that was cited in the briefs twenty seven point two nine four one when i was looking for that i found it there was a two thousand five revision to the ordinances so it was now numbered differently twenty seven twenty one thirty five there were some language changes is that correct is there two thousand language was somewhat changed maybe you could look into that let us now sure i would point out that there has yet to be an articulation by the city of the connection between the petition signature gathering element of a recall and corruption i don't know if they've really even explained why it was necessary to amend the statute to include the recall as part of an election under the entire procedure and of the city to limit campaign contributions and that was  would asked for ma'am on the top of page twelve in the opening brief for appellant we believe that change was made the be the statue would be twenty seven point two nine zero three and it is the highlighted section at d on the top of page twelve which included the definition of the city office holder who becomes the subject of a recall election as being that process being considered  we disagree with the city in the level of of standard of review we believe it is strict scrutiny and here's why this is petitioning this goes it to the core of of the first amendment and the rights of the people this is the collection of signatures is something which is of critical importance the meier case says it is core political speech that that was the case that overruled colorado law that stated that you could not pay signature gatherers the purpose of the study statute how this is very interesting i'd like to just read the sentence that about the purpose the rationale behind this whole statute and that is and this is on page twenty two the middle says nothing about that process or gives the rock the additional rationale which one would think would be necessary to explain that the motivations of the basis for making the changes later on which have made it in our view pretty much impossible to recall city official in the city of san diego again no evidence of corruption your owners have talked about what is read in the newspapers and magazines about corruption in san diego  believe the best way to prevent corruption is to hold politicians accountable and that's what a recall does i don't i think it's unfair to say well because maybe a wealthy person might bankroll petitioning portion of a recall we need to make it impossible for all those people who aren't wealthy to put maybe five or six hundred dollars in or maybe a thousand dollars for the petition gathering portion of a recall i think that's that's so important that's such a core value of ours in our democracy that the possibility and it's only speculation on the and behalf of the city here this morning the possibility that perhaps a wealthy person might bankroll the petition gathering section of a recall ok i think we understand your argument thank you very much for coming in this morning the case just argued will be submitted