A three-judge panel handed a clear victory to the Secretary of State Sam Reed and Attorney General Rob McKenna, who had vigorously argued that the state’s voter-approved Public Records Act requires the state to treat initiative and referendum petition sheets as a releasable public record.
The court, in a brief three-page order released from Pasadena, Calif., said it is reversing Tacoma-based U.S. District Judge Benjamin Settle, who ruled last month that the referendum sheets are “anonymous political speech” protected by the Constitution and that release would be wrong.
The appeals judges, who heard oral arguments just a day earlier, said Settle “relies on an incorrect legal standard and therefore must be reversed.” That was an apparent reference to the notion that signing a petition is “anonymous free speech” protected from public view. Reed and McKenna have said signing petitions is a very public act, as part of citizen legislating, and not a private act such as voting.
The court lifted Settle’s ban on disclosure and said a full opinion will be issued “expeditiously and in due course.”
There is one more legal step the state must take before releasing the petitions to the six groups or individuals who requested the records: Thurston County Superior Court Judge Richard Hicks, in a case brought by initiative activist Tim Eyman, on Wednesday issued a temporary restraining order against the Secretary releasing any petitions, until he hears from the 9th Circuit. Hicks told attorneys at that hearing that he would want to hear back from them, and indicated he would schedule a full airing of both sides. Eyman’s case is a broad attack on the state’s policy of releasing petitions, and arises out of a lobbyist’s request for petitions of 11 initiatives from the past decade, most of them Eyman-sponsored measures.
Secretary Reed said he was delighted by the 9th Circuit’s ruling.
“The emphasis is that Washington state government is open, transparent and the people of this state have adopted this strong Public Records Act,” he said after hearing the news from Bill Collins, the deputy solicitor general who argued the case in California. “I’m glad the 9th Circuit has upheld what we have been saying. These petitions are not like a secret ballot, but amount to taking part in our legislative process, which is required to be open and accountable.”
State Elections Director Nick Handy added, “The winner here is open government.”