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Doe v. Reed

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Doe v. Reed is a court case that stemmed from the November 3, 2009 vote on Washington Referendum 71.

Referendum 71 was an effort launched by the Washington Values Alliance to overturn Senate Bill 5688 through the veto referendum process. SB 5688 grants state registered domestic partners in Washington all rights, responsibilities, and obligations granted by or imposed by state law on married couples. Referendum 71 was approved by voters with a 53.15% vote. A "YES" vote approved SB 5688, while a "NO" vote rejected SB 5688. Therefore, the law went into effect as previously planned.

Supporters of SB 5688 and a "yes" vote on the referendum included Washington Families Standing Together and Equal Rights Washington. Opponents of SB 5688 and thus a "no" vote on the referendum included Washington Values Alliance and Protect Marriage Washington. Click here for more details about the referendum.

Doe v. Reed addressed the issue of whether signing a petition for a ballot measure is a private, political act or whether the names of those signers can be made public. The United States Supreme Court heard arguments on April 28, 2010.[1]

On June 24, 2010 the United States Supreme Court ruled 8-1 enforcing Washington's Public Records Act; making petition signatures public.[2][3][4]

On July 20, 2010 anti-gay marriage activists renewed their efforts to ban the release of R-71 petitions. Activists cite examples of harassment, intimidation and threats to anti-gay marriage activists in California in 2008 (the state of California does not release petitions) and perceived threats to sponsors in Washington.[5][6]

On October 17, 2011 U.S. District Judge Benjamin Settle ruled that the petitions can be released. Settle said, disclosure would become the exception, rather than the rule, if just a few instances of harassment were used as the standard for preventing the release of names. Later that day, Washington State officials released copies of petitions.[7][8][9][10]

An appeal was filed days following the ruling. On October 24, 2011 the 9th Circuit Court of Appeals issued a temporary injunction but later rejected a request to further block the release of petition signatures on November 16.[11][7] Shortly thereafter, a request was made to U.S. Supreme Court Justce Anthony Kennedy to block the release of petitions.[12] On November 21, 2011 the U.S. Supreme Court rejected the request.[13][14]

See also: Washington Referendum 71 (2009) and The signature privacy conundrum

Temporary restraining order

Photo credit: Washington Secretary of State's office

In July 2009, Protect Marriage Washington, the primary sponsor of placing Referendum 71 on the ballot, filed a request for a temporary restraining order in order to not release the names of petition signers. They argued that the disclosure of donors' names might put those signers at risk of harassment.[15] On July 29, 2009 a federal judge granted a temporary restraining order.[16] However, on August 12, 2009 the Washington Public Disclosure Commission ruled that the names are a matter of public record.[17]

On September 10, 2009 Federal Judge Benjamin Settle maintained the restraining order on the signatures. State officials, were therefore, not permitted to release the names of those who signed the petitions.[18][19] However, a month later the 9th Circuit Court of Appeals issued an order to reverse the decision made by U.S. District Judge Ben Settle.[20] Within days, Supreme Court Justice Anthony Kennedy temporarily blocked state officials from releasing any names on Referendum 71 petitions.

On June 24, 2010 the United States Supreme Court ruled 8-1 enforcing Washington's Public Records Act; making petition signatures public. Chief Justice John Roberts, who wrote for the majority, said, "The State's interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general."[2]

United States Supreme Court hearing

The SCOTUS hearing for Doe v. Reed officially began April 28, 2010.[21][22] State Attorney General Rob McKenna represented Washington's open records law, while James Bopp represented Protect Marriage Washington. McKenna argues that the referendum process is a public process and "You don't legislate in secret, and other voters, other citizens, have a right to know who among them is demanding an election on a legislatively approved law." On the other hand, Bopp argues that what is at stake in the case is the First Amendment rights of voters to sign petitions in privacy.[23][24][25]

According to reports, some justices voiced their skepticism of signature privacy arguments.[26]

During the April 28 hearing, Justice Antonin Scalia said, "The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights." In regards to Bopp's argument of the fear of harassment, Justice Antonin Scalia said that some forms of boycotts and picketing are constitutionally protected by the First Amendment.[27]

Justice John Paul Stevens, in what is most likely was his last scheduled argument prior to his retirement, asked "Is there [not a] public interest in encouraging debate on the underlying issue," by releasing the names?[28]

However, not all justices were skeptical, Justice Samuel A. Alito Jr. appeared sympathetic to the need for privacy. Alito questioned exactly how much information should be collected and disclosed.[27]

See also: Official U.S. Supreme Court Transcripts of Arguments are available here

Ruling

On June 24, 2010 the United States Supreme Court ruled 8-1 enforcing Washington's Public Records Act; making petition signatures public. Chief Justice John Roberts, who wrote for the majority, said, "The State's interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general."[2][4]

In reaction to the ruling Washington Attorney General Rob McKenna said, "We're pleased the Supreme Court ruled in favor of disclosure, upholding the public's right to double-check the work of signature gatherers and government -- and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret." According to reports, of the 24 states with initiative and referendum only 23 disclose petition signatures.[2] Secretary of State Sam Reed said, "Even as we welcome today’s ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation...We do not want to ever chill voters’ right to take part in what we value as `direct democracy.’"[29]

Despite the high court's ruling, the specific release of Washington Referendum 71 petition names remains pending. According to state officials current laws exist to protect people who are in danger of being threatened. Plaintiffs said they plan to seek an exemption for R-71 signers.[30][31]


THE FULL DECISION CAN BE FOUND HERE.

Renewal of effort to ban petition release

On July 20 anti-gay marriage activists renewed their efforts to ban the release of R-71 petitions. The case was temporarily dismissed. According to reports, they can refile once the United States Supreme Court releases the case back to the U.S. District Court in Tacoma. According to the federal court motion, they are asking for either a preliminary injunction or a temporary restraining order to block the release of the petitions. Activists cite examples of harassment, intimidation and threats to anti-gay marriage activists in California in 2008 (the state of California does not release petitions) and perceived threats to sponsors in Washington.[5][32]

On August 11, 2010 U.S. District Court Judge Benjamin Settle denied a request by the state to immediately release the petition names. However, Judge Settle agreed to putting the case on a fast track. Both parties have 10 days to provide lists of their witnesses; 60 days for discovery; and 45 days for briefings.[33][34][35]

On September 7, 2010, Thurston County Superior Court Judge Richard Hicks lifted the ban on releasing initiative petitions under the state’s Public Records Act. His decision, however did not allow the release of Referendum 71 petitions. According to reports on November 19, 2010 the names will remain sealed following a November 2010 ruling by U.S. District Judge Benjamin Settle.[36]

Judge Settle originally blocked the release of the petition sheets in 2009 but was overturned by the 9th Circuit Court of Appeals and the Supreme Court in 2010.[37]

U.S. District Court in Tacoma, Washington heard the case on October 3, 2011.[8][9] U.S. District Judge Benjamin Settle is expected to rule on the case in two weeks. He will determine whether R-71 petitions should be permanently sealed from public access.[10]

Ruling

On October 17, 2011 U.S. District Judge Benjamin Settle ruled that the petitions can be released. Settle said, only a few examples of indecent statements or conversations were presented and that there was only speculation that the issues were connected to the release of petitioner information or to the measure. He went on to add that disclosure would become the exception, rather than the rule, if just a few instances of harassment were used as the standard for preventing the release of names. Later that day, Washington State officials released copies of petitions.[7]

In response to the ruling James Bopp, Jr., said he planned to appeal and hoped to get a temporary ruling to prevent the immediate release of names. "I think the court adopted an impossible standard for anyone to ever meet to protect themselves from an organized campaign of harassment," Bopp said.[7]


THE FULL DECISION CAN BE FOUND HERE.

Appeal

An emergency appeal was filed with the 9th Circuit Court of Appeals days following the October 17, 2011 ruling by U.S. District Judge Benjamin Settle.[38] The plaintiffs requested that the release of petitions be stopped and that plaintiffs names in Judge Settle's October 17 ruling be redacted.[39]

As of October 20 the state had released 34 DVDs of petition signatures. However, following the appeal Washington State officials announced that they would suspend further release of petitions.[38][40]

Following a hearing on October 24 the 9th Circuit Court of Appeals issued a temporary injunction blocking further release of petitions. However, the court refused to take up the case itself. The case now reverts back to U.S. District Judge Benjamin Settle.[39]

Judge Settle will rule on specific complaints of harassment.[39]

On November 8 Judge Settle rejected a motion to block the public release of Referendum 71 petitions while Protect Marriage Washington appealed the October ruling.[41]

On November 16 the 9th Circuit Court of Appeals, on a 2-1 vote, refused to further block the release of petition signatures. The court said in part, "because the court preliminarily believes that the appeal is moot because of the (previous) release of R-71 petitions, appellants’ renewed emergency motion for an injunction pending appeal is denied." The decision can be read here.[12]

The case number was: No. 11-35854.[42]

Following the Court of Appeals' decision, Protect Marriage Washington asked U.S. Supreme Court Justice Anthony Kennedy to block the release of petition signatures while an appeal is filed in the 9th Circuit Court of Appeals. According to reports, while a decision remains pending, the Washington Secretary of State's office will suspend the release of petitions.[12] On November 21, 2011 the U.S. Supreme Court rejected the request.[13][14]

Arguments

Personal privacy arguments

Protect Marriage Washington and representing Attorney Bopp argue that the release of petition names and campaign donor names can lead to harassment. Bopp points to the aftermath of California's Proposition 8, a gay-marriage initiative that appeared on the 2008 ballot, as an example of harassment. "They said they wanted to post them on the Internet in order to encourage people to have 'uncomfortable' — and that's a quote — 'uncomfortable conversations' with them. So the whole purpose had nothing to do with the validity of the signature, and it had everything to do with harassing and intimidating these people," said Bopp during the 2010 Supreme Court case. Anonymous speech, Bopp said, encourages more speech.[23]

In the filed brief, Bopp said,"There are two great enemies of citizen participation in our Republic, corruption and intimidation in elections. Much attention has been paid to preventing corruption, but this case is about protecting the people from intimidation while engaging in core political speech."[43]

See also: Official U.S. Supreme Court Transcripts of Agruments are available here

"On the steps of the U.S. Supreme Court after Doe v. Reed," 4-28-09

Transparency arguments

The state of Washington argues that the referendum process is a public process and thus petition and campaign donor names should remain public. Specifically, Attorney General Rob McKenna argues that because petition-gatherers circulated petitions in public locations, where circulators and petition signers were visible by anyone walking by, such names should be released.[43] Supporters of the current law argue that the initiative process cannot be secretive. Oregon Secretary of State Kate Brown said,"The public has to know that signatures from these petitions are gathered legally and come from qualified voters. The initiative process cannot operate in secret. Oregon voters have placed 348 measures on the ballot since 1902 and open government is essential to assuring the public that these measures reached the ballot free from fraud."[44]

See also: Official U.S. Supreme Court Transcripts of Agruments are available here

23 states support citizen petitions as open records

In late March 2010 Oregon joined 17 other states in support of an effort to keep citizen petitions as open records. Oregon Secretary of State Kate Brown said,"The public has to know that signatures from these petitions are gathered legally and come from qualified voters. The initiative process cannot operate in secret. Oregon voters have placed 348 measures on the ballot since 1902 and open government is essential to assuring the public that these measures reached the ballot free from fraud."[45][46]

According to May 2010 reports, a total of 23 states support keeping petitions as open records.[47]

Media group requests petition names

In early April 2010 a coalition of newspapers and broadcasters urged the U.S. Supreme Court to maintain that petition signatures are part of the public record. Newspapers and broadcasters involved include: New York Times, Washington Post, Seattle Times, Wall Street Journal, Belo Corp. (Owners of KING 5), Cox Media Group (owners of KIRO-7) and Pro Publica. In an article by The Daily Herald Allen Funk, publisher of The Herald of Snohomish County said,"I’m very sympathetic to people’s concern about a loss of privacy. We don’t want this to, in some way, discourage them from signing initiative and referendum petitions." Funk argues that the requirement of disclosure is crucial to the ability to monitor elections.[48]

The media brief can be read here.

City of Seattle supports petitions as open records

Photo credit: Washington Secretary of State's office

The city of Seattle filed a brief with the U.S. Supreme Court to reject the effort to make petition signatures private and not available in public records. "Keeping ballot measure petitions public enhances citizens' trust and confidence in local government by increasing the transparency and accountability of the government and its legislative processes," reads the brief filed by Seattle City Attorney Peter Holmes. Additionally, the city argues,"When a petition circulator asks an individual to sign a ballot measure petition, that is an act of speech. But when an individual actually signs a ballot measure petition for submission to the Secretary of State or a local government authority for the purpose of putting a measure on a ballot, that is a legislative act."[49]

State background on petition signature release

On August 12, 2010 the Washington Secretary of State released information regarding 2 million signatures previously released in the State of Washington. All, said officials, were released without incident. The data was released on the secretary of state's "From Our Corner" blog the day following Federal Judge Benjamin Settle's denial of a state request to immediately release petition names.[50] The United States Supreme Court ruled 8-1 in June 2010 to release petition signatures, however, state law allows for signatures to be withheld if harassment or intimidation due to the release of petitions can be proved. The case is expected to be heard in November 2010.[51]

According to state reports, the following petitions have been released under the Public Records Act:[51]

Year released Initiative Number of signatures submitted
2006 & 2007 Washington Initiative 917 (2006) 265,809
2006 & 2007 Washington Estate Tax Repeal, Initiative 920 (2006) 395,219
2006 Washington "Government Takings", Initiative 933 (2006) 317,804
2007 Washington Energy Conservation, Initiative 937 (2006) 337,804
2008 Washington Long-Term Care Initiative, Initiative 1029 (2008) 318,047
2009 Washington Lower Property Taxes, Initiative 1033 (2009) 315, 444
Total 1,949,676

Timeline

Photo credit: Washington Secretary of State's office
  • At the request of Protect Marriage Washington, federal judge Benjamin Settle issued a temporary restraining order on July 29, 2009 to halt the public release of a list of those who signed the R-71 petition.[52] Supporters of R-71 said in their TRO request that releasing the identity of petition signers might put those signers at risk of harassment, leading to a situation where their First Amendment rights are chilled. A hearing on whether to make the TRO permanent took place on September 3, 2009.[53]
  • On September 10, 2009 federal judge Benjamin Settle maintained the restraining order on the signatures. State officials, were therefore, not permitted to release the names of those who signed the petitions.[54][55]
  • On September 18, 2009 the state appealed the Judge Settle's ruling in early September. The case was scheduled for an October 14 hearing with the 9th Circuit Court of Appeals.
  • On July 20, 2010 anti-gay marriage activists renewed their efforts to ban the release of R-71 petitions. The case was temporarily dismissed. According to reports, they can refile once the United States Supreme Court releases the case back to the U.S. District Court in Tacoma.[5]
  • On October 17, 2011 U.S. District Judge Benjamin Settle ruled that the R-71 petitions can be released.[7]
  • November 8 - Judge Settle rejected a motion to block the public release of Referendum 71 petitions while Protect Marriage Washington appealed the October ruling.[41]

See also

Related measure

ApprovedaUpheld Washington Referendum 71 (2009)

Articles

External links

Legal documents

Additional reading

Editorials

References

  1. The Seattle Times, "Supreme Court takes up Wash. case involving disclosure of petition signatures," April 24, 2010
  2. 2.0 2.1 2.2 2.3 2.4 2.5 The Seattle Times, "Supreme Court rules petition signatures public; Ref. 71 names not immediately available," June 24, 2010
  3. Examiner, "U.S. Supreme Court to Washington R-71 petition signers: don't hide behind the First Amendment," June 26, 2010
  4. 4.0 4.1 The News Tribune, "A partial victory for disclosure in the R-71 case," June 25, 2010
  5. 5.0 5.1 5.2 Washington Secretary of State's: From Our Corner, "R-71 sponsors renew bid to ban petition release," July 20, 2010
  6. Washington Secretary of State's: From Our Corner, "R-71 petition challenge heading back to court," August 4, 2010
  7. 7.0 7.1 7.2 7.3 7.4 Associated Press, "State releases Referendum 71 petition names," October 17, 2011
  8. 8.0 8.1 8.2 Ballot Access, "Trial in Doe v Reed, Petition Privacy Case, Set for September 27, 2011," February 25, 2011
  9. 9.0 9.1 The Seattle Times, "Fight resumes over releasing Ref. 71 names," October 2, 2011
  10. 10.0 10.1 Washington Secretary of State: From Our Corner, "Judge: Ruling on Doe v. Reed R-71 disclosure case in 2 weeks," October 4, 2011
  11. 11.0 11.1 The Seattle Times, "State stops releasing Ref. 71 petitioner names," October 21, 2011
  12. 12.0 12.1 12.2 12.3 Washington Secretary of State's blog - From Our Corner, "Challengers seek Supreme Court order against R-71 releases," November 17, 2011
  13. 13.0 13.1 13.2 Washington Secretary of State: From Our Corner, "U.S. high court declines to block R-71 petitions," November 21, 2011
  14. 14.0 14.1 14.2 U.S. Supreme Court, "11A501 DOE #1, JOHN, ET AL. V. REED, WA SEC. OF STATE, ET AL.," accessed January 17, 2012
  15. National Review Online, "Washington State Judge Allows Petition Signers to Maintain Privacy for Now," July 30, 2009
  16. Ballot Access News, "Referendum Proponents Ask Federal Court to Protect Secrecy of Petition Signers," July 29, 2009
  17. KNDO, "Donors names to R-71 Campaign to be made public," August 12, 2009
  18. Seattle Times, "Judge shields signatures in gay-rights referendum," September 10, 2009
  19. Text of "Protect Marriage Washington v Sam Reed"
  20. Associated Press, "9th Circuit lifts ban on release of R-71 petitions," October 15, 2009
  21. Kansas City Star, "Supreme Court to hear case on releasing referendum petition signatures," April 25, 2010
  22. The Daily Herald, "Washington's battle over petitioner signatures goes to Supreme Court," April 25, 2010
  23. 23.0 23.1 NPR, "Supreme Court Weighs Petition-Signers' Anonymity," April 28, 2010
  24. USA Today, "High court hears arguments on privacy," April 29, 2010
  25. LegalNewsline.org, "McKenna appears before U.S. Supreme Court to defend records law," April 28, 2010
  26. Open Secrets Blog, "Supreme Court to Grapple With First Amendment, Disclosure and Transparency in Ballot Measure Case," April 28, 2010
  27. 27.0 27.1 The New York Times, "Bid for Right to Sign Ballot Petitions in Secret Stirs Skeptics on the Supreme Court," April 28, 2010
  28. Los Angeles Times, "Supreme Court critical in domestic partnership case," April 28, 2010
  29. Washington Secretary of State's Blog: From Our Corner, "R-71 case: Reed, McKenna delighted with ruling," June 24, 2010
  30. 30.0 30.1 Seattle Post-Intelligencer, "Supreme Court on R-71: Names on petitions can be made public," June 24, 2010
  31. Statesman Journal, "Your name on petitions can be made public," June 27, 2010
  32. Washington Secretary of State's: From Our Corner, "R-71 petition challenge heading back to court," August 4, 2010
  33. The Seattle Times, "Ban remains for now on release of R-71 petition signers' names," August 11, 2010
  34. The Daily Herald, "Judge keeps names of petition's signers sealed pending trial," August 12, 2010
  35. Associated Press, "Judge: Domestic partnership petition stays sealed," August 11, 2010
  36. 36.0 36.1 Washington Secretary of State's blog: From Our Corner, "Thurston judge OKs release of initiative petitions," September 3, 2010
  37. 37.0 37.1 Washington Secretary of State's blog: From Our Corner, "R-71 petition challenge heads back to court in May," November 19, 2010
  38. 38.0 38.1 PubliCola, "Anti-Gay Rights Group Appeals R-71 Decision; AG McKenna Defends Release of Names," October 21, 2011
  39. 39.0 39.1 39.2 39.3 The Seattle Times, "Niners block further release of R-71 petitions," October 24, 2011
  40. Washington Secretary of State - From Our Corner, "R-71 petitions sealed as foes appeal," October 21, 2011
  41. 41.0 41.1 The Seattle Times, "Judge won't halt release of Ref. 71 petitions," November 8, 2011
  42. "Doe v. Reed No. 11-35854," November 16, 2011
  43. 43.0 43.1 Mother Jones, "Citizens United, Take Two," April 28, 2010
  44. Statesman Journal, "Oregon part of effort to keep citizen petitions as open records," April 1, 2010
  45. Statesman Journal, "Oregon part of effort to keep citizen petitions as open records," April 1, 2010
  46. Publicola, "Oregon Joins WA Suit to Make Petition Signers' Names Public," March 31, 2010
  47. OMB Watch, "Supreme Court Hears Arguments on State Disclosure of Petition Signatures," May 4, 2010
  48. The Daily Herald, "Media groups want names released of signers to Ref. 71," April 2, 2010
  49. Seattle Post-Intelligencer, "City to Supremes: Keep government open," April 5, 2010
  50. Washington Secretary of State's: From Our Corner, "R-71 public records update: Release ban continues," August 11, 2010
  51. 51.0 51.1 Washington Secretary of State's: From Our Corner, "R-71 case: Nearly 2m signatures released w/o incident," August 12, 2010
  52. Ballot Access News, "Referendum Proponents Ask Federal Court to Protect Secrecy of Petition Signers," July 29, 2009
  53. Seattle Times, "Judge halts release of Wash. referendum signatures," July 29, 2009
  54. Seattle Times, "Judge shields signatures in gay-rights referendum," September 10, 2009
  55. Text of "Protect Marriage Washington v Sam Reed"
  56. Associated Press, "9th Circuit lifts ban on release of R-71 petitions," October 15, 2009
  57. Washington Post, "Thuggish liberalism at work in Wash. state vote," October 31, 2009
  58. The New York Times, "Privacy Looms Over Gay Rights Vote," October 31, 2009
  59. Washington Secretary of State: From Our Corner, "R-71 petitions: Supreme Court sets April hearing," February 16, 2010
  60. The Spokesman Review, "Hearing set over petition signatures’ privacy," February 16, 2010
  61. The Seattle Times, "U.S. Supreme Court to hear Referendum 71 case April 28," February 16, 2010
  62. Oregon Public Broadcasting, "R-71 Petitions Trial On Fast-Track In Washington," August 11, 2010