seek election judges this office have had no restrictions imposed upon their exercise of core political speech that other candidates did not have however it's been a recent phenomenon during the past few decades were sitting judges through the adoption of judicial codes have started to impose restrictions upon the exercise of those that speech by those who might challenge them to office that's really what we have here is what the supreme court just earlier this year  indicate that those who govern should be the last people to help decide those who should govern in other words all we have here is that this is the judges this stable how through the adoption of the judicial code imposing it against non sitting judicial candidates are basically trying to say that someone should behave as a judge before they are a judge and may never be a judge but this case falls squarely within the admin this in that justice kennedy in the white case clearly said that the state may not regulate the speech of candidates because they are candidates but i interrupt you for a second without throwing you all the way off here to ask you a centrist standing question with the availability of the internet sometimes is dangerous for us so we did go online to see if we could find whether platt actually ever did run for anything and i'm not sure we're searching it correctly but so what was he actually a candidate he did not scene two thousand and fourteen what happened is in june of two thousand and thirteen mr plot filed an authorized the formation of the plant judicial campaign committee which but that act made him a quote unquote judicial candidate which is a defined term in the judicial code and the state did not dispute that the knowledge that before the district court that he is a judicial candidate that he is subject to the code so he does not actually running for anything he wishes to he desires to seek judicial office but the problem read into that that he wanted to run and was running that's why formed a candidate committee for this year so you don't have to tell me why i didn't think that makes any difference but i am just curious what both of your views are if somebody just simply files a campaign committee and says well i'd like to run sometime in the future is that really sufficient for standing because you could have somebody that is just likes to likes to challenge state regulations has no intention of ever running but simply says well i formed a committee and maybe i'll run in the future i'm not sure that they're standing there i believe there is standing because he had been hit by his act of forming the judicial campaign committee which still exist today which still desires to raise campaign funds but cannot because of the judicial canons yes to be a candidate has to be a certain amount of tab before the election but under rule four point six i forget the division the judicial candidate is defined and sensually as one who has publicly declare that they are going to seek judicial office has filed the requisite designation of treasure form with the local election officials and there's a third criteria he is in that he has filed he is what is it that committee  we found the case in june we had oral argument before judge baird in august we didn't get a decision on the polygamy or injunction until january third which is thirty days before the falling deadline mr and mr platt falls into that category that judge judge sutton talked about that cannot finance his own campaign if i benefits the well connected those who have the networks to party apparatchiks or whatever to engage in political activities he's not well connected so he sought and desires to run but he wants to  a position to be strong going to the party going to people saying i've been able to raise money i've been able to to get support what when you run back the precise language again about declaring yourself a candidate i mean you're i mean had a somebody can declare oneself a candidate for anything that forming a committee because when they form the committee the campaign committee they are in give me half a minute  you know i noticed that his life is not is it work ye this is four point six f the judicial canon judicial candidate means a person who has made a public announcement of canada c for judicial office declared or filed as a candidate for judicial office with the election authority could you stop as you go through each one of those and tell us whether you believe that your client has done one or more of these things and i think a person who has made a public announcement his candidacy for judicial office i think he has essentially by  the first requirement second requirement under that definition is just to clarify it as a candidate for just office with the election authority did he do that he did that undisputed that you state that it was election authorities mad not pulling a petition for a particular race how does one file i don't know of any election authority one files with other than that filing a petition or some other declaration of candidacy for a particular position you follow a designation of treasure form which forms the campaign committee so you're saying that number two this this he filed for office by virtue of having filed as a quorum big kid nation of treasure formants attached to a complaint ok so we what else does he claim he did were that he did that and that's what caused him to fall within the ambient of being a judicial candidate well obviously you can tell we're skeptical that the forming a campaign committee is filing for office that doesn't seem intuitively correct but i got we got what you say and the state of ohio agrees with that interpretation well i mean yes but if it's a standing issue we have some independent interest appropriately and whether he's don't put that away you give two options there under f d r they're more the third or authorize the solicitation a receipt of contributions or support for judicial office whichever occurs first he's not done because he can't do that because the route the bottom line he set you say he says complied with two out of three of these things because he filed a complaint which is when you we use a concept satisfies the announcement and he's declared for office because he formed a committee and does he need to treasure that but i think the second one is really the just and that's what the issue because judge dare question that below to all i want to know you know he filed the designation of treasurer for the state of ohio grants that say anything about  he says common pleas court it does not identify the particular seat in the does it a den of fi the election another words two thousand and fourteen i do not believe the form does i can find out the form of the record it is attached the complaint so if the form is in the record any designated it for two thousand and fourteen then that and then he didn't run then obviously that unhealthy no but the complaint also we do make the clear allegation that even if he does not run there he does desire to run and beyond that for judicial office which of the courts in the supreme court repeatedly has said that that is sufficient to raise good standing expression in the first amendment context what can i say we look at to tell us that that supreme court i cannot side to side to any media early on that i mean i can supplement the record for the court of desires i've just reacted you considerably but i think importantly no no i am spending is always the important issue here but this is like i said i think he has clearly crossed the threshold to be subjected to the rules he does is to engage in conduct that now would violate the rules he wants he wants to endorse other candidates for public office including judicial can yet the rules say you cannot publicly and certainly he don't he's not restricted in any way from doing that at this point by virtue of his i can't imagine that he's restricted by virtue of forming a campaign committee from you your honor he is restricted he is restricted by the judicial can is that we're challenging here he also wishes to be able to solicit to try to build support is that you've said there is a when you want to run there's a form that you fill out independent of the the campaign committee is just so you can raise money if you want to be a candidate you've got to file something with the appropriate authorities that says that you're running for office x right you can follow designation of treasure which forms the committee then alternately you would follow the petitions to run actually get your name on the ballot to get on the ballot to run you've got to file something in this case petitions correct to raise money if you're going to spend more than a threshold you have to have a campaign committee recognizing dollar you're not going to file more if you don't intend to raise more than a thousand you don't even have to have a committee under ohio law is you're in that your client sought to raise funds outside of the prescribed time limits you noted to see if you could raise enough money to become a viable candidate dr yeah you want to be able to go to the party and say i've raised money support me for this and figure out which you can see on the court to go forward and you're saying he was deprived of that opportunity because of the restrictions on campaigning the the fund raising i didn't want to do any day limit to a certain time frame brick is that what you're saying and he was also restricted because he wasn't well connected etc he couldn't go personally solicit to try to raise those funds it please the court exactly color on behalf of the state defendants just elections differ from legislative elections and the state has a compelling interest in regulating judicial campaign speech to assure the reality and appearance of an impartial those would fall under the buckley standard ohio has acted consistently with the guidance of care keller you've just heard to spend fifteen minutes with your opposing counsel talking about standing and while you may or may not agree with standing there as judge givens acknowledged this court has an independent duty to to determine article three requirements if you look at the it's it is rule four point six if it sets three different ways you can become a judicial candidate and that's when enforcement of these provisions kicks in and that's public announcement for can as a see declaring or filing for a candidate see or authorization to solicit funds and who are now is the only thing that mr plant has done has been to open the campaign committee and and to designate a treasure in his that campaign committee designation pluggable to a specific election or does it continue on and could be viable and subsequent elections i don't believe it's  to a specific judgeship or specific on a specific year election i think you can keep them open if you so choose do you agree that he had standing in the cases was ripe and has not become we did not challeng the preliminary injunction level whether he was a judicial candidate we assumed without sort of a novel issue of whether if you just open a campaign committee but then don't do anything else can you perhaps help me i mean you obviously made that decision based on something perhaps you can help me with the supreme court case that so clearly establishes his standing in this current days that your adversary could not summon up i would point the court to i think the courts supreme court's recent guidance  susan b anthony might be helpful for this case it was written regarding pre enforcement standing by do you want to return to judge mckeague question point about rightness i do think and it doesn't involve candid i mean where that group said that they wanted they didn't actually run afoul of the problems but they said they wanted to take these positions and connection with candidates in future elections that's correct so that's what you're referring to yes i'm referring that might provide guidance to the court in th situation ok and i do i do want to return to the rightness issue certainly at this point regardless of whether what was at play at june two thousand and thirteen i do think there is an issue that we don't know he we  do think it's asking a very abstract question of this court at this point and i also do think that although we're before the court on a motion for urgent relief and opposing counsel has moved to  i don't think that the state of defendants agree that there's any urgency here because nothing is going to happen in two thousand and fourteen moving to the merits ohio has a compelling interest in judicial impartiality and the appearance of judicial impartiality this court holds so for kentucky and kerry and every court of appeals to consider the issue since white has held that these are state compelling interests and in two thousand and nine the supreme court made clear in capper ten that judicial integrity in the preservation of the public's confidence in the judiciary is a state interest of the highest order and that the states can use the canons of judicial conduct as their principal safeguards to prevent judicial abuse in this case ohio's code carefully balances the need for the compelling interests in this area with the need for preserving first amendment rights ohio focuses in on part three particularly threatening areas to judicial impartiality into meant want on one solicitations the political entanglements that arise from public indorsements and political speechmaking on a party stump speeches or on behalf of a candidate and also the the erosion of public confidence that could come from a never ending campaign solicitations cycle i'd like to start with a rule four point four eight the personal solicitation provision this was most directly at issue and carry ohio has amended in response to carry its rule four point four a it strikes at the most intimate forms of solicitation that cause the greatest risk of undue pressure as well as the appearances of qui exchanges ohio's amendments were drawn directly from carry it amended its code to allow for the group speech making in the mass mailings that kerry did not feel raise the same level of concerns while focusing in on those intimate forms of personal solicitation and i'd also point the court to the on back panel of the circuit and worse saw which upheld the nearly identical minnesota second set of provisions at play or the political endorsement  and and partisan speech making provisions within rule four point one a i would first point out that ohio is in the clear consensus in this area forty six other states as well as the district of columbia have identical or substantially similar provisions the federal canon five a prohibits judge federal judges as well as nominees from engaging in this type of conduct and actually federal canon five c has an even broader  lower court here the lower court and wallsten and the highest courts of new mexico in new york have all upheld as constitutional similar provisions the only court going the other way is the ninth circuit's decision and will sit and will since cited no support for go in that way you think there's a difference between these rules are applied to candidates vs incumbent judges i don't think so your honor i think the logical starting point for application of the state's compelling interests are canada c because rules have to be applied in the aggregate and we know that non sitting judges will become many that there will be many non sitting candidates that will become judges i would urge us to follow third circuits approach i would i would urge the only circuit i know that has made that distinction is the ninth circuit and i would urge you to reject that ninth circuit distinction even the ninth circuit seem to recognize that the compelling interest still apply and they ruled on the narrowly tailoring grounds and we think basically for the dissent in that case that they were incorrect they didn't provide us a logical starting point for the interests of the dissent and seem to really i take issue with the fact that the rules apply differently to candidates versus i think that the stand was asking it talked about in the form of least restrictive means but it was asking it did say that where the the decision erred was it failed to provide a starting point for the regulation  would point the court to three pieces of authority on the idea that things that happen before one put takes the bench and puts on the robe still can affect the public's appearance and judicial impartiality cap or ten recognize that pre that candidacy activity could rise to the level of a due process violation and once someone took the bench buckley in the federal election context recognized that both incumbents and challengers needed to be regulated for the purposes of the appearance of corruption and then the federal canons if you look at the commentary to canon one make clear that they apply to both federal judges and nominees or provide guidance for both of those categories so the idea that expression from a public perception standpoint the idea that everything that happens during the can't see is merely washed away by taking an oath i think is an unrealistic standard and that's why regulation needs to start at the candid i don't want to go back and reopen a can of worms here but it just obvious and it occurs to me thinking more about our prior discussion about standing right mr moon as this is here in connection with a preliminary injunction is not really here on the merits except in so far as we look at likelihood of success on the merits so hasn't the whole issue of injunctive relief that's before us become moot by his decision not to run your honor we would certainly agree that there is no urgency i mean say we say we say we affirm the denial of injunctive relief and we actually speak at length on the strong likelihood of success and in doing so does that in the case if if if we rule in your favor on that or does it still go back to judge bear in any way there would still be it would still go back for an alternate decision but i think that merits decision america's decision absolutely but in the normal first amendment context of the likelihood of success is the tends to be the controlling factor but i do agree with your honor's point that if there is no urgency here then is is preliminary injunctive relief actually justified at this point and the state defense would certainly agree that there is no we could say that there's no likelihood of irreparable harm and send it back for a full merits discussion because he didn't file and he's not running this time i think under the special circumstances of this case this might be one of those exceptions where in a first amendment case where it isn't completely controlled by the by the first factor because of the odd circumstance of those how would you sort of handle if we're talking about this hypothetical scenario and you know we've got all these cases that talk about the fact that you know it's  toward the sizing other factors more you're in absolutely i think the courts that tend to point out the standard as as it being controlled by the first prong of the preliminary injunctive test tend to leave a little bit of wiggle room i use i believe the language is usually largely controls the the injunctive decision so i think this might be a special case where the other factors in just the lack of urgency for relief might might be able to resolve the absolutely they're they're very pertinent so i think we can assume that mr armey is going to stand up and say well he wants to run anyway he wants to raise money early he's he's thinking about running in two thousand sixteen so he wants to start running start raising money right away really before even the intermediate election is over so just get you on record what your position on that and i think it all goes to whether under the wing which of rule for four point six he is a judicial candidate we did not dispute that at the lower level of opposing counsel is certainly right about that but i do think expression of the longer the campaign committee remains dormant i think the more questions become is he truly a candidate w the sense and when when would he have had to buy if he were going to be a judicial position that there are three different deadlines your honor to make it on the ballot i believe it's ninety days before the partisan election day before if you're going to run as an independent candidate and then i do believe there is one deadline that has not passed to run as a write in candidate i think that's in late august that's rich additional action yes for judicial  filing just to point the court the filing requirements are in revised code chapter three five one three but where you mention partisan elections i thought the elections were not the partisan primary primary i see so i'm sorry ninety days before the partisan primary and then  system the primary judicial candidates run can run for as a partisan for the person because it endorsement and then at the general election the ballots do not announce party systems  not as strict party affiliation it's just it doesn't appear on the ballot you're partisan until the day after the primary so you know same thing michigan does for the supreme court but not other judicial races for the purposes of the ballot yes a candidate can continue to run as a republican democrat or other party so the person he's still the democratic nominee or the republican nominee but the ballot just doesn't list them as democrats or republicans it's my understanding and there's no restriction as far as campaign literature announcing positions or affiliations with parties publicly is that correct does not prohibit party affiliation announcements so all mr platt would theoretically be currently restricted from doing is raising money in connection with a write in campaign that would have to be mounted within the next two or three weeks right i believe that i see that my time's up may answer the question i do believe that's correct your honor so it would be appropriate for us to ask him whether he intends to run as a write in then write i think that would be a proper question if you all had the hearing on the preliminary injunction that there was probably no reason to challenge standing because he formed a committee and he was saying he wanted to be a candidate i mean perhaps he would have brought it up said none of the fallon involve the filing deadlines that have passed between january preliminary injunction really and the president that's absolute i believe that's correct your honor yes and i agree that there was less reason to doubt in june twenty third team that he would be running as a candidate for the complaint said he was going to be exactly the only one left is the ri divine right i guess to run as a write in candidate and you can announce the day before the general election that no i believe that there is a deadline and i think it's in late august and i believe that's in chapter three five one so pretty simple mr arland is your client intend to run as a write in candidate in may after today your honor but i don't know i have not talked to him about that the issue the issue he had was what you told us the whole problem with these restrictions is he wanted to go raise money so he could go to the party whichever party as in convince them he was a credible candidate so they could back up none of the reasons why you say this is a problem for your client applies to being a write in kennedy is that fair is that a fair statement no because he would still need to raise money and he'd be up now against both the democratic machine and the republican machine so it's complete speculation as of today as of today whether he will or won't right now there is nothing in the record i do not i cannot represent to the court one way or the other there are no in terms of i think the susan b anthony list case and i know judge given think you were on one of the panels of those cases and i was one of the attorneys in the case i think the problem i think the courts questions earlier were anthony was clearly incorrect in that there was standing i think coast in the susan b anthony of this case who designed who declared the desire to engage in speech but never engaged in the speech because of what was going on against susan b anthony had standing and so i think that susan b now well let's assume that there was standing and still is standing and in terms of the merits of this case why are we why are we considering ourselves with a decision on preliminary inju given that for whatever reason your client chose not to engage in the the election process for two thousand and fourteen he could be cut because one of the things we are still challenging is  an inability to publicly publicly endorse other candidates for office but he's not a candidate he is a judicial candidate under the judicial canons he wishes to endorse another judicial candidate how can he be a candidate i understand that he take certain actions and he becomes a candidate we've questioned whether he actually did that but let's assume he did he then doesn't take the necessary subsequent predicate maybe that's an oxymoron steps  surely because he did because he thought about being a candidate wants to see me as a candidate forever he didn't take the remaining steps necessary to continue this candidacy so why are we addressing it why do we why do we have to take it up in the preliminary  injunctive phase which is not our best forum here i understand i understand that b b because he does desire he complained to verify complaint clearly indicates that it's either in twenty fourteen or in the future subsequent elect little separate your client from the lawyer who sits around and says oh i think i'd like to be a judge some way i've been there that you know but that lawyer is not subject to the and i'm chris sounds to me that what you're saying is once he's filed that declaration with whoever it is is it an election commission the board of elections board of elections that that lasts in perpetuity and so these regulations govern him  for the rest of his life unless he withdraws it is that you know that until that committee is terminated and there's a separate separate form that you can file with the board of elections to terminate a campaign regardless of his actual intent to run or not in that particular year correct y know well so what you're what you're saying then is that once that's filed he can never endorse another candidate for judicial office if he ever intends to pursue it or he just can't do it another way he'd be subject to some sort of discipline the latter if he doesn't he's subject to discipline doesn't make any sense do you have any authority that says once these deadlines have gone by and he didn't actually do what he was required to do that he is then there is any real threat of prosecution by anybody simply because he has this existing committee that sounds to be one never did anything to begin with and two is dormant years campaign committees have never had meetings in my campaign you have that we're going to have a campaign manager managing the campaign you don't have this can't have a campaign manager has a campaign treasurer so you have him as the possible candidate and you have a person who's addressing this in the context of preliminary injunctive relief given the subsequent events that occurred after he filed this complaint i understand that i understand of course i'm not sure because it is there has to go back anyway doesn't it to judge barrett for the merits  apparently it's going to i think you know we did make a preliminary injunction doesn't indicate you know no but that the issue really and i'll get back to your question is you know the burden is upon the state to doubt justify these actions and all they've ever offered has been it's the dicks they put no no evidence in the record but your whole argument that they have to come forward with evidence is predicated on they have to come forward with evidence at the preliminary injunction phase or they can or they never can in the future in the case and that can't possibly be right so your whole argument about they didn't come forward with evidence is really directed at at the trial phase so by definition you're saying that's still got to happen they don't have they just haven't done it yet so  constitutional rights is irreparable harm well i gather that is far is this record indicates your client has not done one single thing to position himself to be a candidate for office other than filing a couple of forms i think yes but i think this you go again go back to the timing of our action because he found i in seven months before when he could start filing raising campaigns eight months before the final and done anything he could and you know if he were subbed a candidate subject to the restrictions to further his candidacy either before or after there's nothing the record i would die would be speculation on my part my understanding that you see nothing and you the only thing that you're able to show at this point that he's i go out and i talk he's got i mean we don't have connection is connection as well can you know but enjoy in terms of the party apparatchiks he's involved in parties he's involved in organizations yes he's got connections to life and the reality of the situation is that most people who become federal judges have a little bit of prior experience in the political arena and they sort of know how this works  in order to present himself as a strong candidate he was not able to do so we didn't have a discussion on the internet action until january second or third which was just thirty days before the filing deadline which was just the start of that one hundred twenty day period he wanted to be everywhere as we know though he did nothing else to further his candidacy during that period i mean it's the district court were to consider it he might be able to establish his actions to further his candidacy but i think he's now saying well we still need to pursue preliminary injunctive relief because he's subject to these restrictions today and can't do certain things that he that he wants to do it seems to me the law is that we look to see is there a realistic possibility of prosecution so can you commit the state of ohio one way or the other as to whether given that these deadlines that he had to meet have passed it's only possibly could file as a write in does the state of ohio have any possibility of prosecuting him if he does things like endorse candidates and speak on behalf of can i don't think i have authority to commit one way or the other parent going to follow up  ere you've lost control anyw is it fair to read the rule that restricts political endorsements to those people who are actual candidates as opposed to only in kohut candidates who have filed a declaration but have done nothing more after the deadlines have passed to run an election i think that's a fair reading the rule i think it all comes down to how you read four point six thank you