you might wonder why the possibly here is not in the middle and the reason is this she has lerone giantess so if she has a question today and i'm sure she'll have one or two or three or four she's going to like that and he's argued as i recall before the forest many times in the past and this will be my first of three times with him this week i think we'll be together tomorrow and then we're going to be jointly doing a wedding on saturday so it's a small world well now it's the first case number zero five dash fifty two fifty nine it's pennsylvania family institute think at all versus thomas e black the third at all m no problem at all thank you very much in one thousand and two thousand and two the united states supreme court held and republican party of minnesota vs why the first amendment protects the right of judicial candidates to announce their views on disputed legal and political issues so the question i guess for us here and it's going to be you want to get a lot of questions on this one standing to third party standing in this particular case  didn't did you attempt to find any candidate who would be willing to be a plaintiff in the case i think the plaintiff did and did and found no one willing to confront the disciplinary authorities in this in this state what about as good as that matter of record no you tried and could not find some no because we couldn't find anything in the record no there is nothing in the record on that point  when you say third party standing your honor we are first claiming are we are claiming our own right that that is as a listener yes as a listener first secondly as a speaker that is as a listener we have the right to receive speech and if it is chilled that is the speech of another person is chilled then and therefore refuses to give speech that would otherwise be given then our rights of as a listener is  violated for just for the sake of laying it out organizing it let's start with you as a listener first well we are claiming that the judicial candidates are chilled by the by the existence of the plain language of these can and that is that the canons are they going over broad and and in fact five different district courts and one agreed to by the six circuit have struck down these identical canons on those identical grounds mr about do you agree that for you to have standing as a listener that you have to have a willing speaker established in the record yes you believe you have had a willing speaker judge rambo said you did not well judge rahm yes we believe we have been judge rambo used the wrong standard she said but for the standard in this circuit is not but for the the canons the standard as articulated in the judgment calls my question at the outset if you don't have someone that said he or she was deterred what evidence is there in the record that you have somebody willing to speak but their speech was there was an obstacle eighteen of which submitted the pertinent questionnaire back to the family and the fourteen of which refused to answer one or more questions by saying they refuse to answer and then at the bottom of each page is an asterix to indicate what that means that refused to answer me that says this response and mr buffett once again you go at it we're going to i'm sorry you can read it but they don't say i a so they are certainly indicating a willingness to answer the question of those fourteen all of almost all of them answered at least one question some answered and number of questions but t other questions well the ones who did answer the questions may not help you with regard to where you are as a speaker but in connection with being a listener the question is it really there's got to be where they said they declined to respond because they think that they are both prohibited from answering the question by the candidate although although that was a cancer that was not planned excuse me that was a supply response to them well yes but they didn't have to to use it they are lawyers and judges after all these are ignorant laypeople to worry because not that's right because the requirement under the under a chill is not a but for requirement it is you are  er and surely everyone would agree that a they judge that believes that a can and prohibit certain activity is certainly deterred now and finally there is one i want to draw your particular attention to and that's found at the appendix one o nine and the answer to number five the circle declined to answer and then put in the margin next to that answer this could come before the court well what does that phrase me well that phrases in the can in the commits clause but it also could be that the person this person testified to hearing no i mean it could just as easily be that the person has a belief that i should not be commenting on something that may come before me then he could have said that may i ask i mean it's easy to say a procedural question was there any testimony taken at the hearing trial it was a combined hearing  concerns that these judges had expressed by disavowing any intention to enforce these canons against people after the question and they refuse to subpoena any of the defendants to appear and call them as adverse witness is hurry up situation right before anna let election in which the court was expeditiously handling these things so we felt that under precedent of the third circuit where you say requires is being deterred then then that is sufficient and i think this case is very similar to the focus case decided by this court in one thousand and ninety six and very similar to the pitt news decided by this court in two on listener but focus i say that's a willing speaker requirement is jurisdictional does it not well yes yes yes i've agreed to that certainly and we repeatedly agree to that there's no question about that the question of what is the standard for determining it in secondly is that they expressed fear with respect to asserting their rights well i think we have that here that mean there's some trepidation by judicial candidates and judges to see who the judicial this planaria people and furthermore there's an election going on which which creates would could create issues in the election so there's reasons or fear justifiable fears white judge judicial candidate would not come forward and finally each of these ga people while not saying what they the listener wanted to hear did talk about their experience in court again the court said indicating a will and that willingness to speak if not deterred well we have people that have it partially answered this this questionnaire so i mean that they have so if you look at the key element there's nothing in focus about but for there's nothing  and having them say well yes i would speak if the you know this gag order was not there in pit news in two thousand we had alcohol advertising in an educational public cation was banned the newspaper su way so again all those standards and and that isn't even a first amendment case where this court has explain that the first amendment rights that are at stake here mean that with you know we we need to in terms of third party standing might you at least discuss a bit the in the months and decision if you were if you remind me of the that was actual context i'm sorry much fream court case of well i am aware but i just just do not recall the factual conflict her party standing well we're not asserting third party standing we're not you know we are not claiming that we have  we don't have to look to our decision in the motto to right give the parameters of third party standard that's correct because we're not asserting it we're not claiming it we're not claiming the ability to assert the rights of judicial candidates we are saying one we have our own right which is to receive their speeds and if if their speech is restrained and or deterred and they are chilled then it's a violation of our right to receive it receive that speech the right to receive speech is independent of the right of one to speak now other than which other than you have to have somebody willing to speak but we're not claiming we're not claiming the rights of judicial and a good well then why don't you go to the speaker part of the yes the we also claim our own all right is chilled that but in that context you did have people who who were willing to give their to speak for themselves ye and you're saying well so the but when they gave those to you what makes you reticent about publishing it when they don't seem to be concerned about your publishing their responses to the survey because we don't want them to be disciplined or removed from office but they don't not really their call not yours well you know somebody's standing on a bridge you don't you know push them over sometimes you actually go grab them and rescue them so we have an interest in and people who answer our question airs not to be disciplined but  there but their perception would be that the if to use your analogy they're standing on a bridge it isn't very high if they go in they're not going to get hurt and they're not worried about the consequences of the higher authorities because they in effect with your your position on this whole matter and we don't and it you know i don't know why they answer they may not be aware of the candidates i mean there's there's hundreds of judges and twelve eighteen of them submitted think i don't think she said it was speculative i think she said it wasn't right because there was no interpretation and and that again ignores president of the circuit in the supreme court that held that the mere existence of the guess i think she just used the wrong standard in making the determination she did not pay attention to the fact that the mere existence of the statute itself which this court has said several times and the supreme court close relationship that is required by the three part test so i so we have not done so and i'm sorry if you if you thought otherwise all the completion asserted the rights of the candidates but you're saying merely because they are necessary for you it's exactly as a listener thank you thank you mr donaldson issue but quite frankly given the tenor of the chords questioning i want to actually open myself up to questioning him as much as possible that is not to say that i don't have several things that i want to say but i don't belabor points that aren't necessary for example i find it very troubling and that's been part of the problem with this case it's been a little bit of a of of of dodging and weaving target it was argued below was or talks about third party standing no but i can do that in my opponent's brief so i would ask that we all when we go back and look at this case not so quickly say that it's not a third party standing case but if he's conceding that it's not there's no reason for me to address that or the issue went west when candidates responded substantively to this survey did they violate  two thousand and six were virtually on the eve of a very what promises to be a very active judicial campaign in the commonwealth of pennsylvania there are two open seats for the pennsylvania supreme court and the primary and then again of course to have that seat in the general election in the fall and there's one retention election in the fall we're going where we are going to have candidates making statements and are going to have my clients having to face what i can never get them to face the reality that these canons are becoming very advisory because of the history of no exactly they proved no injury to themselves at all in fact the only injury that they proved was the injury they they caused themselves perhaps by they had four candidates exactly and it could be any reason from i don't engage in this type of thing i want to educate the public as to what a judge does the judge a judge does not primarily do the will of the people as we heard senators and congressman talk about last last fall what did the judge does to the extent of the will of the people is through the rule of law as justice for our said recently in the georgetown judicial independence conference our goal is to have the the least political of the three branches of government hidden it's that it's not a political it can't be it's operating in a democracy but the goal is to be the least political judges have lots of reasons for making statements that they make and form refraining from making statements that as your honour's you know when you went through your confirmation processes and when you attend conferences you don't look to the to the minute canons and what the so called experts tell you that what you do is you look at your experience with the way in which you decide cases in you make a judicial decision based on your discretion as to what's appropriate what's not and i think you're careful like i would lack of factual record in this case we don't need the but for standard we don't have anything of record as to why a candidate did or did not answer in fact four completely did and i don't understand how a plaintiff can claim injury when they refrain from publishing as a speaker or receiving information and publishing it as a receiver of speech they made that decision and i want to go to judge bill since two thousand and five decision in the i believe it was the bass versus butler case he talks about the laird versus tatum which goes back a belief to when i even i was still in was cool and it talks about objective rightness before injury first standing purposes and in overbred case when i did the briefs my case is on appeal i think so right who knows what will happen  who are narrow but we don't reach rightness if we don't get past tending to we of which is why i spent probably seventy three on standing and then when i started to prepare for oral argument i realized how strong the right in the s said here appears to violate that and i have a history of down pursuing these they took the opportunity of the white case to reinforce their campaigns what we have in pennsylvania rightly or wrongly is saying the reason i declined to answer is because of the candidates so doesn't that isn't that evidence in and of itself that these people are not willing to speak because of the canons i think a few questions  witness may have revealed whether that the answer to that question yes as i say i think the p p a lot of reasons they could be using it as easy cover rather than doing more difficult thing and i think that's what we're all who who represent the judiciary trying to do now to educate the public as to how yes we do elect judges yes it's part of democracy it's part of the process but there's something fundamentally different about the way judges make law from the way the legislature makes law and the way the executive in forces that and i think that's a hard that's a hard task but it probably needs to go back to civics in high school and grade school where we say no like judges do is they maintain mall smoke than mine possible no one wants i don't believe anyone wants to go before a judge the thirty and made it pledge or prong contract why i don't want to get into the merits too far but i can't resist i find it very troubling that the district courts there very quickly just knock down these the is the law the way it is definitely the law and announces out of the pennsylvania canons and as far as i know it's out of all the camp now we're talking pledge promise commit and the judges  at that and had some questions and i think that's part of the problem with the rightness and we're going to see things right can this year we're going to have a debate along with the rest of the country because not to put you much pressure on myself border if you go right ahead i think it really gets to the heart of this of this case and what happened here the quickness of two things i want to bring and want to judge remember his opinions where he wrestles with the issue of administrative frankly candidly i trip up on middle district rules regularly because there are some many so it's ironic that i would get up and talk about a middle district rule but i have learned that the reason for that role is exactly this so that a judge could say w rule so we just record is totally in charge of is this case over or is there something more to do did you file an answer to the complaint no no everything came up with an a down to how we went up i'm home i think i got the really did was we argued the case since it was a consolidated preliminary injunction permanent injunction what the what the plaintiffs have done in this situation is they've completely manufactured a case injuring themselves so that's the injury that they have for standing and then they determined that there was an objective chill i cement in my time is virtually up this issue is so important source i'm concerned that resolves this case is no longer a case of controversy but i want you to know you know that's the very first time that they have said they have responded to that question that they refused i think we were right about four minutes but  bott the question i was going to ask you before the the lights went out on me which is probably was an indication to me is what you're claiming that the statement by co counsel that this is not a violation canons it solves the case what may in terms of the merits for a future matter but for this particular case you've got to get you have standing to get there and so we still come back to whether you have standing well  the and relied upon that i think under judicial stopped all their race that binds them and and therefore found no standing to challenge the underlying case if you want to dismiss the case you can do so yes i understand and and we will consider doing that probably are you certain party standing in months and are you conceding that the relationship would be such that you would not have third party standing that is my view and that's why we have not argued third party standing with you to argue your brief stated monson well i agree we cited once and i didn't think it was for that well there's another way but you're not saying that there might be applicable to various issues that are there they're being questioned but back to my initial point is that the concession that has been made it seems to me under pundits we don't have jurisdiction and they have jurisdiction i mean you've got to have standing i just conceded we don't have standing with that disavow you have any standing even as a speaker or as a listener disavow i do not think we have standing under either theory under the present and under that case and of the decision of that so you so contrary to what you said in your opening you're saying that as a listener you don't have standing yes because it's not you know you make it chilled because they have now disavowed their disavowal which just happened a couple minutes ago never happened in the history of this case despite them being asked over and over again on whether or not the including by the district court judge whether they would in force if can and against people that answered this would have been it was same now answer but it would seem that you want to be pretty happy i am happy i am happy i'm conceding decision are you saying that now are you saying that basically you're going to make a decision to dismiss the appeal i learned a long time ago not to make decisions like that at the spur of the moment it's that i well  of them answered i guess now that i see that my statement or my answer that question is the commission's disavowal i have to say i don't know that i'm in the position to make that decision based on what we've got in front of us my opinion and that's i guess that's it i didn't see anything in the question or the answers that was a problem in terms of the way i like and the follow up to that was i want you he thought that i disavowed the whole case and the thank you very much really appreciate both counsel this is a fascinating case with a lot of nuances what i would ask counsel is to approach the clerk's office afterwards to obtain a transcript of today's or argument appreciate both of you being here and again well argued case thank you