there is an inherent conflict between the judicial actions as the ohio supreme court regulates them in the first amendment as it traditionally has been interpreted in other applications this conflict has been recognized this and says compare for example how these same restrictions challenge would be addressed in a legislative election it is doubtful that a single federal or state judge in the country would uphold them mr finney could i ask a question that nobody seems to be addressing and i don't i'm not suggesting we should spend a lot of time on this but i'm just curious about this and that's the standing that any of your clients have here i understand when he first filed this case that there probably was a better claim but as i understand it now three elections have gone past he hasn't taken any action the least the record discloses to run hasn't raised any money even though he could have raised money do we simply take it take him at his standing from my perspective there's other issues on the standing issue first of all the standing as established at the time the complaint is filed doesn't matter what the events are but it certainly could be mooted but in this particular case is this court recognized that the uniloc atory appeal this is a classic case where it's capable of repetition evading review but the other thing i would like the court to consider is sort of the chicken in the egg problem is only capable of repetition  chicken in the egg problem which is while these rules are in place it's difficult for him to be a viable candidate to get a nomination to more likely to run if he wins this case is that i believe that's the case you're ok that you had said my question t but there's so there's no question that that strict scrutiny applies in this particular instance and what i'd like the court there to countervailing principle to and we certainly can't overlook this intervening supreme court decision personal solicitation and under the first amendment context the way i'm julie court written by justice roberts actually goes to great lengths to tell us that it's limited in that scope and that this is a very grave  traditional first amendment analysis versus the exception which we believe to be a very narrow exception and unseated by we in julie how does this court resolve that well i think if you go back to your own decision in kerry versus won't say just the two thousand and ten decision this court very carefully looked at that and said that strict scrutiny is going to apply and and even though the integrity of the judiciary maintain the integrity of the judiciary is in fact a compelling state interest the law has to be narrowly tailored and the one thing i'd like the court to focus on is it doesn't talk these restrictions pretty much allow everything that was wrong the other provisions i mean you can you can send letters you can address a large group of people it seems that all you can do is raise money one on one with someone and you can't raise money except one hundred twenty days before the election and you can't raise money except for once one hundred twenty days after the elections occurred even if the candidate is dead and the question when you're applying strict scrutiny is really a three part test are by refers to it as a two part test which is compelling state interest and narrow caroling but the other part of the test is does the rule in fact advance the interest claim to be advanced and i have yet to see anywhere in this case by evidence or by argument any argument that explains why that hundred twenty day limitation in any way advances the the state's interest in judicial actions we have a sitting before his election to the house supreme court we have a candidate who was previously a court of appeals judge that started his election with a quarter million dollars in the bank now how does a non incumbent candidate and remember this is applied challenge dealing with non incumbent candidates and in the case of mr platt a first time candidate how does a first time candidate compete against somebody who starts the election with a porter million dollars in the bank that's a first amendment violation because it's an absolute prohibition that a question for you i'm sorry your client has an open committee great he does it every state is different that's why i'm asking the question is he is he allowed to still keep money and if there is no active election he would be run yes so he can accumulate he could so a candidate in the position of mr black to bring this case in the four years it takes to get to trial during the open fundraising period he could raise money accumulate those funds and carry mother to the next elections he could do that yes your honor there's no question about that you could spend money that he inherited to them he could give money to himself yes and and and  but i mean if the argument is that these these rules are unfair to people before it's not fairness that just has to do with the fact that you've accumulated money in one way or another it's really if you're really process starts and that could yes well no your honor because what we're challenging is not the fact that that a justice of the house supreme court has a quarter million dollars in the bank or that somebody is rich what we're challenging is that mr pliant is prohibited by the judicial canons from starting to raise money until one hundred twenty days before the election that i don't care about the person did that other candidate raise money more than one hundred twenty days before the election they did they raise it in the prior election cycle yes it did they did that other candidate raise it outside of what the for it i can't find a raft of my head i think case is pretty clear that that these cuts are show restrictions are not occurring akin to a level playing field your honor i'm so glad you asked because i litigated quite a bit in the first amendment we are not asking this court to take any action to level the playing field what we're asking you to do is to remove the restriction that the or how supreme court has placed on that makes the playing field unlevel so again a mantra is a lie is that different when you just say it the opposite way because your honor what i ask you to envision is that the ohio that the ohio legislature and after these exact same rules in a legislative race and if you apply all the same arguments that you just means that why is it a problem that in the company member of the united ohio senate can have a quarter million dollars in the bank and his opponent can't start raising money can start organizing his campaign can't start speaking because he can't spend any money until he can raise money until one hundred twenty days before the election is that not a violation of the first amendment of the highest order it certainly is to say that he can't speak is not correct it's actually your honor let me read to you from this court's decision i know you're going to read money is speech but to say he can't speak at all is just hyperbole that doesn't really help us here if well unfortunately that's entirely inconsistent with all the jurisprudence on campaign spending when when mr but when a sitting justice of the or house supreme court has a quarter million dollars and during the six year cycle leading up to the election can spend that money anyway once and the court in in the kerry decision talked about what can you do with money in reality i'm sorry this is the way in to lead a citizen what a speech can write letters give speeches put up billboards can contact potential supporters in person on the phone and online and they can promote their campaigns on radio television or the media well this for six years or you can only start doing it at a certain you know that's the whole point here on just that i don't want to name names that there's a sitting justice on the house supreme court with a quarter million dollars in the bank he doesn't have to run for five more years he can spend that money today tomorrow and the next day on any of those things that he wants and mr platt has no ability to do any of those things this is that because he doesn't have the money or because he can't do anything until a certain time before the election with if you can't raise money you don't have one less and if you don't the answer to the question is if you don't have money you can't spend money let's say he did have money yes let's say you had money from the last election when he ran unsuccessfully can he spend that money over the next six years salute mr platt could the city just isn't you know supreme court could both do the exact same thing and this judge sutton from this court said in the kerry decision if you're well connected if you meaning you can start one hundred twenty day period on the ground running if you are an incumbent meaning you have a war chest and you have all of those built in systems of the campaign or if you're independently wealthy you can advance yourself but that's not why this court is sitting here and that's not your job your job is to make sure that there are not in the difference judge mckee is to suggest that the legislature or this court has a duty to level the playing field is not your job but when the court intentionally advantages incumbents and says that the people who have those three things incumbents and this is judge sutton speaking no incumbency personal wealth and in existing war chest that those people have a built in advantage in a campaign versus a first time candidate or a non combat who's trying to break in it would never survive in the legislative context and i have yet to hear an argument in this court as to how that in any way advances the question which is what we're asking you to do how does that in any way advance the question of promoting judicial integrity and it gets to another question which is we were prohibited in this case from doing any discovery whatsoever which means i could not ask the defendants in this case how that advantage that we couldn't hire expert witnesses we couldn't take depositions to find out what possible interest does it advance i'm just thinking in the odd situation where the person clearly that if the campaign people don't have to be lawyers that are campaigning for me or do they know but i understand you know how if you're going to die and that they're not going to go against you and if does mr platts status as a non sitting candidate alter and anyway this court's analysis of the house fund raising rule four point four he has set forth in o'toole versus o'connor and for that matter does a status have any bearing at all this court's analysis of ohio solicitation rule four point four a and its indorsement rules four point one eight two and three to answer these questions you don't have to look very far william applied differently or unless the rules are different for not serving others correct and the rules apply the same to non sitting candidates as sitting candidates the rules apply to every judicial candidate so for example  four in their reply brief the appellant's argue for the first time that they're not challenging the temporal limitations of four point four eight they said instead they're changing whether ohio at any time can oppose an absolute prohibition on speech and it can and whether that prohibition constitutes a restrain a speech what we we don't disagree that this is a case that is it deals the restraints on speech that's what we're talking about strict scrutiny but if their case now is reduced the question whether we can even regulate at all in this space that question was answered in part by william julian also by o'toole the o'toole course said the rule four point four easy to your point mickey does not restrict it's not an absolute prohibition on speech it restrains the narrowest place of speech on the one hand with respect to the timing for solicitation but leaves open the broadest or a a political expression on the other it's narrowly tailored williams julie has answered the question states have the authority to regulate in the space for judicially elections if that's where their arguments today than this court's analysis can start and stop with williams really but the rules temporal restrictions are also important what they're asking the court to do now is to focus on the restriction of the one hand but not to consider the narrow tailoring on the other the temper restrictions or the way that ohio has narrowly tailored the limitations on fund raising and the receipt of judicial campaign contributions and i think underneath all of this is the fact that the o'toole case is actually binding authority in this case your local rule thirty two point one b two says that publish thorough published decision you know tool case is binding authority in this case and the principles apply to all the other rules that are being challenged here today what mr platt is really saying is that he thinks these rules were unfair he thinks the fund raising rules unfair because some incumbents have carry over funds but candidates who never run before have no funds to carry over well the question is is that because of the rule just the rule cause that result o'toole court said no that where there are surplus funds from prior campaigns that come from the sweat of the brow that comes from the skill and the activity of the other candidate and the committee has nothing to do with the text of rule four point four  self and i would add that where there are carry over funds these are simply one of the many in the visible attributes of incumbency just like recognition and reputation and experience carry not they also challenge whether ohio has any compelling interest at all with respect to the non sitting judge they challenge the rationale of the rule what they say is that while there may be well the rules and the rationales apply to people who are sitting they don't apply to those who are not sitting well i would just point out first of all that that's a significant concession in this case because if a sitting judge ought not to engage in partisan political activity during a judicial campaign why is it that the non citizen judge wouldn't be required to play by the same rules but there's a bigger obstacle to this argument that it's illogic the u s supreme court rejected it at least as early as one nine hundred seventy six in buckley vs the layo there the court said that since the danger of corruption and the appearance of corruption apply with equal force to incumbents and challengers congress had ample justification for imposing fundraising constraints on both some point though there are rules that are that make it hard for everybody equally to campaign and express themselves inherently help incumbents and that kind of first amendment to make sure that they don't do it to shelly isn't there some constitutional interest in not suppressing rules that don't have some sort of compelling reason because otherwise we're just inherently helping incumbents that's what i'm worried about the court found the four point four it doesn't do that i mean judge what to your point the point that o'toole was making was that there are a thousand things that one can do to get their message out it any time not simply limited one hundred twenty days before a primary and nothing about the ohio rules restricts that i mean the suggestion here that that you recognize that there is some suppression of activity that might be useful in the campaign but there's so much other activity out there that the benefit outweighs the even handed way of making things harder to get your voice your honor i do not concede that ohio is an anything to limit the ability of any judicial candidate to put their name out and to advocate for their old like you see rule economically speaking any rule that those anything really reduces the ability of somebody to act in the in favor of their campaign well nothing about you can't raise funds on sunday afternoon that's that's a limit on everybody right i mean i don't know how you can say that doesn't limit to certain extent there expressive ability there may be a very good reason for it in which case it's ok but to say it doesn't limit their ability to express themselves just seems i'm pro choice if i may several cases have looked at temporal limitations and found those to be constitutionally permissible limitations particularly on whether temporal constitutionally permissible they are they do burden expression at some level right that's it's and that's exactly what the sixth circuit has said in prior cases but i'm just saying as a general  matter it doesn't seem sufficient to say it burns everyone equally when you've got incumbents running against it's you've got to have some more justification for in order for it  am not aware of how four point four x of that rule imposes a single limitation on any candidates ability to advocate for their candidacy their qualifications or their restrict fundraising effects free speach no i've said that the courts this this court has recognized the temporal limitations are acceptable limitations when it comes to fund raising and i would add that this court said it specifically in the context of judicial races and of williams you least for anything it stands for the proposition the judicial races are not like other partisan races the courts and get to they're unconstitutional eat you can't you can't say there are no limits here your argument is they are they do pass muster under all of the constitutional taps you guys are quibbling about something that seems so i think your honor that i said just what you said that these temper limitations are constitutional and i don't think you did say maybe you meant it but ok i meant i meant but they are constitutionally permissible they impose a restraint but the courts have found this to be a reasonable restraint i think the way that the kerry court put it earlier the gable court put it was that it causes people to rearrange fundraising but that's an acceptable burden unanswered or dredges question yes these are restrictions on speech of course they are and  simply a constitutional right you're in your view i agree with you that on ice when i the very beginning i said that the no one questions that these rules burton speech that's what we're talking about strict scrutiny they do but they are permissible and they've been found to be permissible by this court and by other courts in similar circumstances but getting back to this question whether the ohio has any justification for regulating the non singing candidate i mentioned buckley versus the lay challenger might win is a sufficient contingency to trigger the state's interest it justifies parallel restrictions both the incumbent and the non incumbent alike ohio has drawn exactly the same line simply says that when and people running in the same race for the same chair they ought to play by the same rules because their conduct can affect public perception in the same way the same hand that takes the check out one day shouldn't sign the order the next day it doesn't matter whether that's the hand of the incumbent or the non incumbent it affects the public's perception exactly the same way i see runners in my red light is on the restrictions on talking about other infringe on free speech well as this court pointed out in the winter case indorsements of third parties are found pretty much by every court to look at this to be using particularly case  third party as long as you don't prohibit them from speaking about their own campaign in their own qualifications was precisely because the kentucky rule which is identical to the ohio rule on the endorsement issue four point one  three it's precisely because that rule did not restrict the candidate for speaking about their own qualifications that it was ok to target endorsements of others so if you if you're running against particular judge that you think is unfit or whatever are you allowed to not only talk about how wonderful you were but also how bad that judges yes because the restriction only deals with endorsing opposing a candidate for another public office it doesn't restrain you from speaking about your own opponent your own race about yes the quote that i was looking for previously was not able to find from just certain in the kerry case is in this response to judge nikki in judge white's questions on this prohibiting candidates for from asking for money suppress the speech in the most conspicuous of ways and in the process favor some candidates over others incumbent judges and i'm going to skip his parent that are bills over non judicial candidates the well to do over lower income communities and the well connected over outsiders so this notion that you're not really seriously talking about speech when we're talking about raising money yes i think we got him to understand  to speak consistently with that perspective right thank you but the second thing i want to address is i strained again during the state's oral argument to hear any justification at all because there was none advanced in the pleadings and there's been none advance in this oral argument as to how in any way shape or form the hundred twenty days before and after election limitation advances the cause of public confidence in the integrity of the judiciary and the only way t figure out why this really is not like williams where williams basically says we don't need evidence these are questions of law and the conclusion is pretty obvious i would just have elected judge races as opposed to being appointed so you got to run for office today to be able to get elected you got to do certain things this is all all they seem to be saying is that they've that one hundred twenty you have to raise money one hundred twenty day limit seems to be as far as we want to let you look like a politician and that's about it yeah but your honor what happens when you have incumbents is they said it just so far out that you can't win they want to set the bar this is for example for the house supreme court we have seven or eight media markets in ohio it's one of the most difficult states in the country in which to run to get your name i d up and to and to suggest that you can do any of those things in one hundred twenty day window is simply not realistic unless as judge sutton says you're one of those three things you're an incumbent you're wealthy or you're particularly well connected even the president of the bar association with every you can pick up a phone and get all these things done instantly but for the constitution isn't just intended to protect those three categories of people it's intended to protect unfortunately i don't have the cases off the top of my head but for example there are there are there are municipalities with zoning restrictions that say you can't put up yard signs but ninety or one hundred twenty days where the action all of those are unconstitutional you know all of them and because we don't restrict running as an incumbent and we have position this case and i believe that that was a facial challenge this case is a book as applied challenge as it relates to non citizen candidates in particular with mr plante first time sided them with the quaid report in our brief judge because it came out with his report about how to create integrity in the judiciary and he liked the one hundred twenty day limitation but he said the only way the hundred twenty day limitation works is if the sitting judges discords their campaign funds and everybody starts from square zero in these campaigns these sitting incumbents writing the rules said no we don't like that we're going to write the rules the way we want to which of course benefits them and in this case it says that we are going to prevent our opponents from doing any significant organizing raising any money or position there can be no temporal limitations on funders for non incumbent candidates i would say yes rules for incumbents and on incumbents in your world right well let me talk about that so yeah the just the justification that this unconstitutional rule needs to stand so that we can have  fairness for the sitting judges who need to be protected is simply not the basis the question is first is the rule unconstitutional then the second question is what is the remedy in this particular case to say to mr platt and these are judge sutton's words you cannot speak until you hit the starting line one hundred twenty days you know there's a saying it's kind of funny which is the talk about a rich guy who had some modest success in life and they say well he started on third base and he thinks he had a homerun when in fact all he did was a single and that's what we say to every judge sitting on the court we say you can start with two hundred fifty thousand dollars in the bank and you look like a really smart community because you keep winning isn't that amazing what's amazing because your opponents can't organize in advance sufficiently in advance to to mount a successful campaign will be submitted please call the next case