[00:00:00] Speaker 03:
Good morning, everyone.

[00:00:02] Speaker 03:
We'll take the cases up in the order in which they appear on the docket.

[00:00:06] Speaker 03:
The first two cases have been submitted on the briefs.

[00:00:09] Speaker 03:
Capilla versus Garland, Aguirano, Flores versus Garland.

[00:00:15] Speaker 03:
We'll take up Kerry Lake versus Bill Gates, number 2316022.

[00:00:21] Speaker 03:
We proceed.

[00:00:31] Speaker 00:
May it please the court.

[00:00:32] Speaker 00:
My name is Joseph Pole, arguing on behalf of the appellant attorneys, Mr. Parker and Mr. Olson and their respective law firms, and I will endeavor to reserve three minutes of my time.

[00:00:43] Speaker 03:
Thank you.

[00:00:46] Speaker 00:
The appellant attorneys are asking this court to simply hold the district court's December 1st, 2022 sanctions order up against the elements of Rule 11.

[00:00:57] Speaker 00:
The elements of the rule to sanction an attorney are not present here.

[00:01:01] Speaker 00:
There are three primary substantive issues before the court in this appeal.

[00:01:06] Speaker 00:
The three primary bases stated in the sanctions order to justify punishing the appellant attorneys for their amended complaint.

[00:01:14] Speaker 00:
These three are the paper ballots issue, the testing issue, and the speculation and conjecture issue.

[00:01:21] Speaker 00:
None of those three sustain sanctions in this matter.

[00:01:27] Speaker 00:
Two of the three issues I would draw the court's attention to were included in the bar charges that were brought against Mr. Parker and Mr. Olson by the state of Arizona.

[00:01:40] Speaker 00:
Those two are the testing issue and the speculation and conjecture issue.

[00:01:44] Speaker 00:
We provided the panel decision in that matter to the court by Rule 28J letter on August 28th.

[00:01:50] Speaker 00:
And in that bar proceeding, after a three-day evidentiary hearing,

[00:01:56] Speaker 00:
the hearing panel dismissed all charges against the appellants, including the ones based on the testing issue and the speculation and conjecture issue.

[00:02:05] Speaker 00:
I would point out that though the State Bar of Arizona took a liberal approach in terms of bringing a large number of charges against Mr. Parker and Mr. Olson in that proceeding, even the State Bar of Arizona

[00:02:17] Speaker 00:
did not see the paper ballot issue to be one worth pressing ethics charges against Mr. Parker and Mr. Olson.

[00:02:26] Speaker 04:
Was there any sanction by the state bar, Arizona bar?

[00:02:29] Speaker 04:
There was none.

[00:02:30] Speaker 00:
So all charges were dismissed.

[00:02:34] Speaker 03:
And now, but what was the standard used for that versus the standard for rule 11?

[00:02:40] Speaker 00:
The standard to prove a bar charge in Arizona is a clear and convincing evidence standard.

[00:02:46] Speaker 00:
However, the rules that were at issue there are essentially parallel to the rules here.

[00:02:51] Speaker 00:
The charges were based on the idea that there were misrepresentations or falsehoods in the pleadings or that there was a frivolous claim brought.

[00:03:01] Speaker 00:
So these are substantively the same issues, although the standard of proof for the state bar was different than what is here.

[00:03:11] Speaker 00:
I'd like to talk about the paper ballots issue first.

[00:03:14] Speaker 00:
The sanctions order says that the amended complaint filed by Mr. Parker and Mr. Olson falsely alleged that Arizona does not use paper ballots in its elections.

[00:03:25] Speaker 00:
This conclusion by the district court applies a wrong legal standard and reaches a wrong factual conclusion regarding what that complaint says.

[00:03:36] Speaker 00:
The wrong legal standard here is that the district court

[00:03:38] Speaker 00:
read the complaint and drew inferences against the party that filed the complaint.

[00:03:44] Speaker 00:
It's familiar.

[00:03:45] Speaker 00:
I'm sure that when reading a complaint, a district court is obligated to read it with inferences drawn in favor of the filing party.

[00:03:54] Speaker 00:
Here, the district court did the opposite of that.

[00:03:56] Speaker 00:
It drew inferences from ambiguous language against the appellant attorneys in order to find a falsehood.

[00:04:03] Speaker 04:
Is that the same rule for rule 11?

[00:04:05] Speaker 04:
And it's clearly the case for 12.

[00:04:07] Speaker 00:
Yes, it's clearly the case for 12.

[00:04:10] Speaker 00:
I have not seen a case law in which a Ninth Circuit, a case applied the same principle to rule 11.

[00:04:17] Speaker 00:
But the Rodick v. City of Schenectady decision by the Second Circuit in 1993 held that sanctions should be considered resolving all doubts in favor of the signer.

[00:04:31] Speaker 00:
I think the case that is most closely on point with this one factually, although it's not perfectly on point, is the Young v. City of Providence case from the First Circuit in 2005, where an attorney was sanctioned for a misrepresentation, alleged misrepresentation, in a memorandum filed with the court.

[00:04:48] Speaker 00:
And the First Circuit reversed that because

[00:04:52] Speaker 00:
the alleged misrepresentation was in an introduction that was not consistent with what was said in the rest of the memorandum.

[00:05:00] Speaker 00:
So considering the memorandum as a whole, it found that you could not sanction the attorney for making a misrepresentation in the opening paragraph.

[00:05:08] Speaker 00:
The most interesting parallel between that case and this one is that the court explained that the alleged misrepresentation arose from a quote, unexplained premise, end quote, that the attorney had

[00:05:21] Speaker 00:
drafted the memorandum with.

[00:05:23] Speaker 00:
So the attorney had failed to state something that it expected all councils and the court understood.

[00:05:29] Speaker 04:
So your position on the paper ballot issue is that the complaint never explicitly said that Arizona doesn't use paper ballots.

[00:05:39] Speaker 04:
There's some ambiguous statements in it, and then the district court construed it the wrong way, where you can construe it the other way.

[00:05:47] Speaker 04:
That's correct, Your Honor.

[00:05:48] Speaker 03:
But the district court said that the relief you were requesting was that the court order Arizona to do something that the complaint alleges it's not currently doing, that is to use paper ballots.

[00:06:05] Speaker 03:
Why would you request relief in the form of an order requiring the county to use paper ballots if they were already using paper ballots and you were being truthful about that?

[00:06:18] Speaker 00:
There's two parts to the response to that, Your Honor.

[00:06:21] Speaker 03:
One is that in at least one place in the complaint, using paper ballots was included as a part of a litany of procedures that the plaintiff's- You're talking about paragraph seven where you say you want the court to order the defendants to collect and count votes through a constitutionally acceptable process.

[00:06:44] Speaker 03:
And then you say this includes votes cast by hand

[00:06:48] Speaker 03:
and verifiable paper ballots that maintain voter anonymity.

[00:06:54] Speaker 03:
So there again, you're suggesting that they were not using paper ballots when in fact they were using paper ballots.

[00:07:02] Speaker 00:
And that paragraph, Your Honor, gets to the second piece of my response.

[00:07:06] Speaker 03:
So I guess what you're arguing is if you throw in enough

[00:07:10] Speaker 03:
that you can find ambiguity, then you can say anything you want to say in your complaint and sign it as though it's true.

[00:07:17] Speaker 00:
I don't think that's correct, Your Honor.

[00:07:19] Speaker 00:
The complaint construed as a whole was an attack on Arizona's use of optical ballot scanners.

[00:07:26] Speaker 00:
That was very clearly stated in several places.

[00:07:30] Speaker 00:
And in another place in the complaint, the complaint mentions the hand count, the audit of Arizona's 2020

[00:07:38] Speaker 00:
paper ballots in Maricopa.

[00:07:41] Speaker 00:
So the complaint was clearly assuming that Arizona uses paper ballots.

[00:07:45] Speaker 00:
It took that as an unexplained premise that everyone understood.

[00:07:50] Speaker 00:
And as a result, it used this phrase paper ballots in certain places as a shorthand for hand counting.

[00:07:56] Speaker 03:
What exactly was the relief being requested in the complaint?

[00:08:01] Speaker 00:
The complaint was seeking a prohibition on the state of Arizona and Maricopa County using electronic voting machines, meaning ballot scanners and ballot marking devices, both of which involve paper ballots.

[00:08:17] Speaker 00:
So those forms of relief sought by the complaint were assuming that everyone understood that the state uses paper ballots.

[00:08:25] Speaker 03:
Why wouldn't an attorney be more explicit about that?

[00:08:29] Speaker 00:
It would have saved us all a lot of trouble if the complaint had mentioned that explicitly.

[00:08:35] Speaker 00:
But again, the attorneys here took that as something that didn't need to be said in view of the equipment that was being challenged and the common understanding of every person in that Arizona courtroom that when they went to the polls, they filled out a hand marked paper ballot.

[00:08:51] Speaker 04:
So just so I can confirm, a voter fills out a paper ballot, and then Arizona Courtesy uses optical bandit to count the ballots.

[00:09:01] Speaker 04:
Correct.

[00:09:01] Speaker 04:
So the electronic piece is the counting piece.

[00:09:04] Speaker 04:
And the point of the complaint was to get only hand count to the paper ballots.

[00:09:10] Speaker 00:
That was the thrust of it, Your Honor.

[00:09:12] Speaker 00:
Yes.

[00:09:13] Speaker 00:
The paper ballots would be filled out, and then they would be fed into the scan.

[00:09:16] Speaker 00:
I don't understand the confusion, then.

[00:09:20] Speaker 00:
In our view, Your Honor, if the complaint is ambiguous in any way, then Rule 11 would not permit a district court to do it.

[00:09:29] Speaker 04:
Well, I actually don't think it's ambiguous either way.

[00:09:31] Speaker 04:
It's kind of clear what the complaint was seeking.

[00:09:34] Speaker 00:
Yes, we don't think that there was any confusion among anyone in the courtroom or reading that complaint, what the plaintiffs were seeking.

[00:09:41] Speaker 00:
District Court Judge, who was confused?

[00:09:46] Speaker 00:
I think the District Court Judge

[00:09:48] Speaker 00:
explains at the end of his order what concerned him.

[00:09:51] Speaker 00:
And he explains quite candidly that he's uncomfortable with the social implications of this kind of lawsuit, shaking the confidence of people in the... i.e.

[00:10:05] Speaker 03:
that the lawsuit was brought for an improper purpose.

[00:10:07] Speaker 00:
The judge did not find that there was an improper purpose.

[00:10:11] Speaker 00:
He considers that issue and in the end says he's not finding that.

[00:10:15] Speaker 00:
But he was at the very end of his order, he explains that he's concerned about the social implications of this kind of action in shaking the confidence of people in election equipment, whether it's intended or not, I think is the subtext.

[00:10:29] Speaker 00:
And that's just not a proper reason to impose rule 11 sanctions.

[00:10:35] Speaker 04:
Yeah, I mean, I struggled with that.

[00:10:37] Speaker 04:
He says he wants to send a message.

[00:10:40] Speaker 04:
But rule 11, at least the commentary says, it could be for deterrent purposes.

[00:10:43] Speaker 04:
But this seems a little different than that, right?

[00:10:47] Speaker 00:
The deterrent purpose of rule 11 is to deter attorneys from not meeting the two elements in it, which are you have to have a factual basis for your allegations, and you have to have a legal basis for your legal claims.

[00:10:59] Speaker 00:
The rule is intended to prevent attorneys from bringing cases that are missing one of those two elements.

[00:11:05] Speaker 03:
Your clients were also sanctioned under Section 1127?

[00:11:11] Speaker 00:
The district court did enter a 28 USC 1927 sanction also, Your Honor.

[00:11:17] Speaker 00:
That, in my view, is largely

[00:11:21] Speaker 00:
Parasitic is maybe not the right word, but it's largely dependent on the court's assessment of the claims substantively as being frivolous.

[00:11:29] Speaker 00:
The court did mention one additional consideration in that 1927 ruling, which was the Purcell.

[00:11:36] Speaker 03:
The preliminary injunction.

[00:11:38] Speaker 00:
Yes.

[00:11:40] Speaker 00:
Yes.

[00:11:41] Speaker 00:
And the situation there is that Purcell

[00:11:44] Speaker 00:
as I think the court is probably well aware, provides very broad guidelines.

[00:11:49] Speaker 00:
And many courts have read that in many different ways.

[00:11:51] Speaker 00:
You can find cases where judges enter injunctions a week before election.

[00:11:55] Speaker 00:
You can find them where they get reversed for entering injunctions much earlier than that.

[00:12:00] Speaker 00:
So did the attorneys here have a good faith legal argument that this was not a case that was brought too late?

[00:12:07] Speaker 00:
They did.

[00:12:08] Speaker 00:
They didn't ultimately prevail.

[00:12:10] Speaker 00:
But that's a Rule 12 consideration, not a Rule 11 consideration.

[00:12:13] Speaker 02:
I counsel Judge Gould, if I could ask you a question, on both the Rule 11 sanctions and the sanctions under 1927.

[00:12:27] Speaker 02:
Is it correct for us to review what the district court did on those issues for an abuse of discretion?

[00:12:36] Speaker 00:
That is the Supreme Court's standard for this kind of appeal.

[00:12:40] Speaker 00:
But the Supreme Court in that Cruder v. Gill case makes very clear that applying the wrong law or a clearly erroneous factual assessment are both abuses of discretion for purposes of Rule 11.

[00:12:52] Speaker 00:
And as a brief point out, we think that all of the bases given by the district court

[00:12:57] Speaker 00:
Were shot through with errors of law and with erroneous readings of the of the papers I would point out to that the the decision here was made based on the papers only not based on a Hearing and there was not even oral argument So this court sits in the same position that the district court did in terms of reading those papers so the 1927 Sanction was based purely off the delay in in bringing the motion for preliminary injunction it

[00:13:26] Speaker 00:
It's a little unclear.

[00:13:27] Speaker 00:
That's the one thing the district court mentions.

[00:13:29] Speaker 00:
I think he was also taking into mind his view that the complaint itself was frivolous, and so all the legal claims that made the complaint frivolous also made the MTI.

[00:13:39] Speaker 04:
So if we disagree with the district court in rule 11, will that wipe out the 1927?

[00:13:43] Speaker 00:
I think it does, unless you find a different path to go down with respect for Purcell, which

[00:13:50] Speaker 00:
Obviously, I think the law there is not clear enough to sanction the attorneys in these circumstances.

[00:13:55] Speaker 00:
I've gone a little further than I had intended, and I'd like to reserve the balance of my time unless the court has further questions.

[00:14:01] Speaker 03:
All right.

[00:14:01] Speaker 03:
Thank you.

[00:14:05] Speaker 03:
Ms.

[00:14:05] Speaker 03:
Kreger.

[00:14:06] Speaker 01:
Thank you.

[00:14:13] Speaker 01:
May it please the court?

[00:14:15] Speaker 01:
Emily Kreger on behalf of the defendants in Maricopa County.

[00:14:20] Speaker 01:
The district court sanctioned the plaintiff's attorneys because they asserted false allegations in the complaint and brought frivolous claims with no evidentiary or legal basis.

[00:14:31] Speaker 01:
Plaintiffs lied to the court about Arizona voters not voting on paper ballots.

[00:14:35] Speaker 01:
We just had a discussion here about this, and the clear statements from the complaint articulate that they stated that that was part of the basis for the relief they were seeking.

[00:14:47] Speaker 01:
Paragraph seven of the complaint says,

[00:14:51] Speaker 01:
that the relief they're asking for includes those cast by hand on their viable paper ballots that maintain voter anonymity paragraph one fifty three is more explicit plaintiff seek for the court to order an election conducted by paper ballot as an alternative to the current framework these paragraphs

[00:15:11] Speaker 01:
are part of the basis for the complaint and part of the effort that the plaintiff's counsel made in relying on the curling cases to talk about electronic voting machines.

[00:15:21] Speaker 04:
But didn't everyone understand that they were against the optical scan portion of the case?

[00:15:28] Speaker 01:
Well, the plaintiff's counsel relied heavily on both of the curling cases.

[00:15:34] Speaker 01:
The issue in the curling completely different system.

[00:15:37] Speaker 01:
Right.

[00:15:38] Speaker 01:
And so they were asserting that the vulnerabilities that existed in curling because of the use of ballot marking devices and direct recording of electronic voting that the same vulnerabilities existed in Arizona.

[00:15:53] Speaker 04:
And as a result, it's a different system.

[00:15:56] Speaker 04:
I mean, I think it just seems like you have to put your head in the sand to say, even though because they cited a separate case with separate facts, separate voting system that they weren't operating under the context of what Arizona was voting on, which is a paper ballot with an optical counter.

[00:16:13] Speaker 01:
Well, first, we raised this issue to plaintiff's counsel before we even responded to the complaint in this case saying,

[00:16:21] Speaker 01:
You've got it wrong.

[00:16:23] Speaker 01:
Arizona votes on paper ballots.

[00:16:25] Speaker 01:
You have this written in here.

[00:16:27] Speaker 01:
You have asserted that there are vulnerabilities to the system.

[00:16:30] Speaker 04:
But did you not understand what they were seeking?

[00:16:33] Speaker 01:
We understood that they were seeking and asserting that Arizona's voting system was vulnerable to hacking and manipulation that could change the ultimate vote tally.

[00:16:43] Speaker 01:
And that their understanding of that was based on the system that was in place for how Arizonans tabulate votes.

[00:16:51] Speaker 01:
Yes.

[00:16:51] Speaker 04:
the hacking said that that arizona counts by about the people vote by ballot but uses an optical scanner to count was so you are you arizona's not confused about what certainly arizona understood that and you understand that from the complaint that they just wanted to change that system

[00:17:09] Speaker 04:
No, we didn't.

[00:17:10] Speaker 01:
We understood from the complaint that they were seeking relief that already existed in Arizona, and that's the very same issue that the district court said, too.

[00:17:17] Speaker 04:
The relief was conjunctive, right?

[00:17:19] Speaker 04:
You read those sentences, but there was conjunctive relief, right?

[00:17:24] Speaker 04:
You didn't read the whole sentence.

[00:17:26] Speaker 01:
Correct.

[00:17:26] Speaker 04:
So they were seeking a whole series of things, not just that paper ballot.

[00:17:32] Speaker 01:
assertion was that Arizona has a computer based voting system, right?

[00:17:37] Speaker 01:
Which is not true.

[00:17:38] Speaker 01:
Arizona has a subjective though, right?

[00:17:41] Speaker 01:
Arizona has a paper respectfully on it.

[00:17:45] Speaker 04:
Who counts it?

[00:17:46] Speaker 01:
Who counts the ballots as a paper based system?

[00:17:50] Speaker 01:
The ballots are counted by machine.

[00:17:51] Speaker 01:
That's correct.

[00:17:52] Speaker 04:
So a computer.

[00:17:53] Speaker 04:
So it's a computer-based voting system.

[00:17:56] Speaker 01:
Right.

[00:17:56] Speaker 01:
The tabulation system is.

[00:17:58] Speaker 01:
But there is a distinction in the case law, and the district court points out, that the vulnerabilities in the hacking that formed the basis for their complaint and why they came in were based on the vulnerabilities that exist in a system where people don't

[00:18:16] Speaker 01:
have the ability to confirm that the ballot says what they say it says.

[00:18:20] Speaker 04:
I agree with all that.

[00:18:21] Speaker 04:
I mean, that makes sense.

[00:18:22] Speaker 04:
I mean, I was on the prior panel, right?

[00:18:25] Speaker 04:
But it just seems silly to me that we're sanctioning someone for these different degrees, semantic views of what's a computerized system.

[00:18:34] Speaker 03:
Well, I understand.

[00:18:36] Speaker 04:
If the computer isn't involved in the counting of it, I mean, I think it's fair to say that's a computerized system.

[00:18:42] Speaker 04:
You might disagree with that, but that's open to subjective belief.

[00:18:47] Speaker 01:
The plaintiff's brief talks about reading these issues in context, and I believe when you read it in context,

[00:18:54] Speaker 01:
You understand that the attorneys are trying to pull the wool over the court's eyes, saying that the vulnerabilities that existed in curling and in the Georgia cases are the same ones that exist in Arizona when they don't.

[00:19:04] Speaker 04:
So do you think the district court actually believed that Arizona only had paper ballots and didn't understand that there was optical scanners?

[00:19:11] Speaker 01:
I think the district court understood that the plaintiffs brought a frivolous claim seeking relief that already existed based on asserting that Arizona had a computer-based voting system.

[00:19:24] Speaker 01:
I think that the district court saw that the conduct that the plaintiff's counsel engaged in by bringing a claim purely based on speculation, asserting that the vulnerabilities that exist in a system that doesn't have paper ballots, that doesn't have paper backup, that doesn't have a voter verified paper trail,

[00:19:48] Speaker 01:
are at issue in Arizona.

[00:19:51] Speaker 04:
It doesn't seem like the district court was misled.

[00:19:54] Speaker 04:
The district court understood how the voting system worked.

[00:19:56] Speaker 01:
Well, regardless, that was how they asserted.

[00:19:59] Speaker 01:
And they brought a claim that didn't have any basis based on the system that exists in Arizona.

[00:20:05] Speaker 01:
And the paper ballot issue wasn't the only issue that they raised.

[00:20:07] Speaker 01:
They also asserted that Arizona systems weren't subject to neutral testing, which is untrue.

[00:20:15] Speaker 01:
And this was also neutral testing?

[00:20:19] Speaker 01:
Well, they asserted, and as the district court said, you can say that it's not sufficient testing, but you can't argue that no testing exists at all.

[00:20:32] Speaker 01:
Well, they didn't say that.

[00:20:34] Speaker 04:
They said no objective neutral testing, correct?

[00:20:36] Speaker 01:
They said no neutral.

[00:20:38] Speaker 01:
That was not subject to neutral testing.

[00:20:39] Speaker 04:
So if they don't believe that the testing Arizona does is neutral, then it's all subjective.

[00:20:44] Speaker 02:
If I can interject a short question.

[00:20:54] Speaker 02:
If the district court had a legitimate

[00:20:58] Speaker 02:
reason for imposing sanctions, even if reasonable minds could differ about whether that was the correct assessment or there was some other assessment.

[00:21:16] Speaker 02:
How does that stack up under an abusive discretion standard?

[00:21:23] Speaker 01:
Thank you, your honor.

[00:21:23] Speaker 01:
I agree it is an abusive discretion standard and in rule 11 and section 1927 are about the court, the district court reviewing what's presented to it and making determinations about whether the council acted appropriately in the case.

[00:21:40] Speaker 01:
You heard plaintiff's counsel relying on the disciplinary panel at the bar.

[00:21:47] Speaker 01:
That's an entirely different standard.

[00:21:49] Speaker 01:
And certainly, the court, I assume, would not feel that the district court needs to be, their decision has to be confirmed in order for a sanctions to, in order to withstand that scrutiny.

[00:22:06] Speaker 03:
I agree that a court imposing monetary sanctions is

[00:22:11] Speaker 03:
quite different than disbarment.

[00:22:14] Speaker 01:
Certainly.

[00:22:15] Speaker 01:
And rule 11 in section 1927, provide the standard, provide that when an attorney signs their pleadings or filings

[00:22:27] Speaker 01:
They have to have a reasonable basis, and they have to have done a reasonable inquiry into the facts and evidence to support them.

[00:22:33] Speaker 04:
And so- Can I ask, are you defending the district court's view that district court is allowed to send messages through their sanction for cases like this?

[00:22:44] Speaker 01:
The precise purpose, as the Supreme Court said in Cooter, is to deter baseless filings.

[00:22:50] Speaker 04:
Yes, but this is more than baseless filings in general.

[00:22:53] Speaker 04:
This is baseless filings based off specific substantive law, right?

[00:22:59] Speaker 04:
Anything that can question the democratic process.

[00:23:02] Speaker 04:
Is that proper?

[00:23:03] Speaker 01:
I don't think that that's what the court said.

[00:23:06] Speaker 01:
The court said that you can bring legitimate claims evaluating Arizona's vote and tabulation system

[00:23:14] Speaker 01:
But in this case, the claims that were brought were baseless.

[00:23:18] Speaker 04:
It is to make clear that the court will not condone litigants ignoring the steps that Arizona has already taken toward this end and furthering further narratives that baseless undermine public trust at the time of increasing disinformation and distrust in the democratic process.

[00:23:32] Speaker 04:
It seems like this is a message for anyone that wants to challenge the elections in Arizona.

[00:23:40] Speaker 04:
Is that right?

[00:23:41] Speaker 04:
Is that a proper?

[00:23:42] Speaker 01:
No, I would say that it's to people who want to baselessly challenge those things, which is exactly what Rule 11 is meant to police, essentially.

[00:23:51] Speaker 04:
That's not what he's saying.

[00:23:52] Speaker 04:
He's saying he's made it directly towards those that want to challenge elections.

[00:23:58] Speaker 01:
He made it directly towards those who want to challenge elections with no basis.

[00:24:04] Speaker 01:
I mean, yes, I agree that he did raise.

[00:24:07] Speaker 01:
So he did raise that, that.

[00:24:09] Speaker 04:
And then the statement makes no sense because all he has to say is you have, you can't file a baseless challenge.

[00:24:16] Speaker 04:
You raised it in the context of these election law cases, which somehow you're not allowed to challenge.

[00:24:22] Speaker 01:
Well, he, he didn't rule that they acted with an improper purpose.

[00:24:27] Speaker 01:
That was not one of the rulings and he didn't make that determination.

[00:24:31] Speaker 01:
So this is.

[00:24:32] Speaker 01:
You know, they rely on the King v. Whitmer matter, where the court had made a determination that the counsel in that case had acted with improper purpose.

[00:24:44] Speaker 01:
That wasn't the case here.

[00:24:46] Speaker 01:
But secondly, it was the factual misstatements to the court, and it was the failure to do a reasonable investigation before bringing the case.

[00:24:57] Speaker 01:
And so while the court did mention

[00:25:00] Speaker 04:
by that last sentence there, or that last paragraph there, which is trying to send a message to people that would challenge elections.

[00:25:06] Speaker 01:
Certainly.

[00:25:07] Speaker 01:
I mean, the court says why this is particularly problematic in the situation of challenging the election process and how important that is to people's view and election integrity.

[00:25:21] Speaker 01:
I don't think that the court has to look at these issues in a vacuum.

[00:25:25] Speaker 01:
But that doesn't take away from the fact that he determined that based on the explicit language of Rule 11 and the conduct of plaintiff's counsel, they violated their obligations to the court when they filed things with factual misstatements.

[00:25:41] Speaker 04:
Well, let me put it this way.

[00:25:42] Speaker 04:
Would it be an abusive discretion if the district court made his findings based off of the fact that he wanted to send a message to those that challenged the elections?

[00:25:51] Speaker 01:
Well, that I actually think that that's not an abuse of discretion and that there is a deter that the court or deterrence of challenging certain areas of law.

[00:26:02] Speaker 01:
Well, for the First Amendment doesn't protect you from making false statements.

[00:26:07] Speaker 01:
in a court of law.

[00:26:09] Speaker 01:
Rule 11, and that's what's at issue here, is that they came into court and made those statements.

[00:26:14] Speaker 01:
Not what they did outside of court, not what they said, like as the King v. Whitmer district court had decided.

[00:26:20] Speaker 01:
That's not what the decision was based on here.

[00:26:22] Speaker 01:
It was based on the misstatements and what they said here.

[00:26:25] Speaker 01:
And I think if you review it, they didn't have an error of law.

[00:26:29] Speaker 04:
My question was, if the district court want

[00:26:32] Speaker 01:
considered whether or not he can send a message to those that would challenge elections as a basis for sanction is that abuse of discretion or is that if that's if the reason is the court said you can't come in and ever challenge elections in Arizona that's a problem if the court says you can't come in and challenge anything

[00:26:52] Speaker 01:
baselessly, which is whether it's elections or any other issue, the problem is that you come into federal court, and you bring a claim with no basis, and you don't follow the guidelines in Rule 11.

[00:27:05] Speaker 01:
And whether the court pointing out that this was in the election context.

[00:27:09] Speaker 04:
For example, would you be OK if the district court said, sanctions someone for Rule 11 says, you can't bring baseless civil rights actions?

[00:27:19] Speaker 04:
You can't bring baseless actions to vindicate your other constitutional rights.

[00:27:24] Speaker 01:
You can't bring baseless actions in federal court, whether it's civil rights.

[00:27:27] Speaker 04:
Would you be okay with the district courts announcing that and as a sanction for a frivolous

[00:27:34] Speaker 04:
Or just after dismissing a civil rights action?

[00:27:36] Speaker 01:
I think identifying the type of case that it is.

[00:27:39] Speaker 01:
Yeah, that's my problem.

[00:27:40] Speaker 01:
Right?

[00:27:40] Speaker 01:
And saying that that is, whether it's civil rights, whether it's election, whatever context it is, you have to follow the rules.

[00:27:49] Speaker 01:
And just because your clients are a politician, just because your clients can go out in the town square and say whatever they want and lie about issues, which they can do, and the government can't interfere with that.

[00:27:58] Speaker 01:
That's what the First Amendment says.

[00:28:00] Speaker 01:
I know.

[00:28:00] Speaker 04:
That's my problem.

[00:28:01] Speaker 04:
It just seems like the district court wanted to combat that.

[00:28:03] Speaker 01:
But in federal court, but the district court didn't say you acted with an improper purpose.

[00:28:09] Speaker 01:
The district court didn't say what you're doing outside of the court.

[00:28:13] Speaker 03:
Judge Gold has a question.

[00:28:14] Speaker 01:
I'm sorry.

[00:28:14] Speaker 01:
Thank you.

[00:28:16] Speaker 02:
I have a question for you if you've completed your answer to Judge Boumete.

[00:28:23] Speaker 01:
I have.

[00:28:23] Speaker 01:
Thank you, Your Honor.

[00:28:24] Speaker 02:
My question is this.

[00:28:27] Speaker 02:
Could you review with me?

[00:28:31] Speaker 02:
what you believe are some of the harms to society caused by baseless allegations being made, whether in an election context or any business context or civil rights context, in any context.

[00:28:54] Speaker 01:
I think when you go to law school and you take the bar exam and you become a lawyer,

[00:29:00] Speaker 01:
you take on the obligation of coming into court and bringing claims that have factual basis and being truthful to the court.

[00:29:10] Speaker 01:
And I believe that Rule 11 and Section 1927 are put in place to ensure that attorneys conduct themselves that way.

[00:29:18] Speaker 01:
And I think, societally, there is a belief that when attorneys

[00:29:22] Speaker 01:
that people understand that that's the obligation of attorneys and when they come into court and they make those statements, they're being truthful and they have a reasonable basis for them.

[00:29:31] Speaker 01:
So when attorneys come in and make untruthful statements and bring frivolous claims, I think that there's an assumption that the attorneys are following the rules.

[00:29:43] Speaker 01:
So when society sees that and they're not called out on that and they're not following the rules, then people misunderstand facts

[00:29:52] Speaker 01:
They follow what's being said by the attorneys in court and just assume that it's accurate and correct and has a reasonable basis.

[00:30:03] Speaker 01:
And I think that that's part of the system that we have here, that attorneys need to be trusted.

[00:30:08] Speaker 02:
Let me add another question related to that.

[00:30:12] Speaker 02:
In the state of Washington, which I'm most familiar with, when attorneys are admitted to the bar,

[00:30:21] Speaker 02:
They have to state an oath about how they're not going to make baseless claims.

[00:30:32] Speaker 02:
Do you know what the Arizona Bar Association requires of lawyers?

[00:30:42] Speaker 03:
If you remember your oath.

[00:30:44] Speaker 03:
I know.

[00:30:45] Speaker 03:
It's been a few years, admittedly.

[00:30:47] Speaker 03:
on an attorney as an officer of the court.

[00:30:50] Speaker 03:
Correct.

[00:30:51] Speaker 03:
In every state.

[00:30:52] Speaker 01:
In every state.

[00:30:52] Speaker 01:
And certainly my understanding of the ethical rules that govern Arizona attorneys require that they bring claims with a reasonable basis and make truthful statements to the court.

[00:31:05] Speaker 02:
Okay, thanks, counsel.

[00:31:07] Speaker 03:
You're over your time, counsel, so.

[00:31:09] Speaker 03:
Thank you.

[00:31:09] Speaker 03:
Thank you.

[00:31:13] Speaker 03:
Mr. Pohl?

[00:31:16] Speaker 00:
Thank you, Your Honor.

[00:31:17] Speaker 00:
To pick up where counsel just left off, the state of Arizona Supreme Court in the Richard case, which we also provided the court by 28-J letter,

[00:31:31] Speaker 00:
took the opposite view of the district court here when it comes to litigation touching on elections.

[00:31:38] Speaker 00:
The Supreme Court explained that it helps public confidence in the system when people understand that if there's a dispute, they can bring it into court and be heard fairly.

[00:31:47] Speaker 00:
And so Arizona lawyers looking at the richer case understand that you can bring a case, even an election case, that's even a long shot, as long as you have a legal and a factual basis for the claims that you are asserting.

[00:32:02] Speaker 00:
And that brings us back to Rule 11, which requires the same thing.

[00:32:06] Speaker 00:
Here, if you look at this complaint,

[00:32:09] Speaker 00:
there are places it could have been clearer but these attorneys did not make a factual misrepresentation and there were arguments to support their legal position they didn't end up prevailing but that's a rule twelve issue that's not a rule eleven issue and for not just election litigation but civil rights litigation of any kind attorneys need to be confident that if they walk into court with experts who are supporting their factual assertions and they've got a

[00:32:37] Speaker 00:
reasonable extrapolation from the existing law that they're not going to get sanctioned even if they do lose.

[00:32:44] Speaker 00:
And so that's what we think is most important for the court to consider here today.

[00:32:49] Speaker 03:
All right.

[00:32:50] Speaker 03:
Thank you, counsel.

[00:32:53] Speaker 03:
Lakeview Gates number 23-16022 is submitted.