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Federal judges OK release of R-71 petitions

by David Ammons | October 15th, 2009

petitionsThe 9th Circuit Court of Appeals has just lifted the ban on Washington releasing Referendum 71 petitions.

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.”

21 Responses to “Federal judges OK release of R-71 petitions”

  1. Good – I can’t wait for the full opinion and reasoning to be issued. Please post that when it is available

    What was that Timmy about all the law and history being on your side?

  2. Before all of the critics of ‘judicial activism’ start screaming, it’s worth noting that the 3 judges on this Ninth Circuit panel that UNANIMOUSLY overturned Judge Settle’s decision came from various backgrounds, including Judge Smith who is a graduate of BYU Law School and was appointed as a judge by the 2nd President Bush — hardly a liberal activist judge! Also, the quick decision by the Ninth Circuit — just one day after argument — shows exactly how WRONG Judge Settle was in granting a TRO/preliminary injunction.

    The fact is that Judge Settle’s opinion made a mockery of the state disclosure laws and was based on a grossly flawed interpretation of the First Amendment — and even a conservative judge appointed by President Bush (ie, Judge Smith) could see the error in Judge Settle’s ruling. The Ninth Circuit decision doesn’t make up for the unacceptable ways the SoS and the AG have treated the R-71 petition process up to this point (allowing the TRO in the first place to stay in effect for 45 days, accepting signatures from persons who weren’t registered voters when they signed the petitions, accepting petitions where the circulator’s name was surely not the true circulator, etc) — indeed, the SoS and AG must take responsibility for allowing this mess to happen in the first place. But at least the paramount right of ‘the public’ to some transparency in the state referendum process has been restored.

  3. Arnaldo Inocentes says:

    Free speech comes with responsibilty – not anonymity. The public has the right to know who and what affects us. I agree wtih Secretary Reed that transparency and accountabily are needed in our legislative process so that the we, the public, continue to trust the process.

  4. Secretary of State Sam Reed was elected to office by the People of Washington State. The office of Secretary is charged with many duties. Of those duties, maintaining secure voter information is paramount both to the privacy of the People and the integrity of our election process.

    Sam Reed is the first and only Secretary that has breached the public trust in releasing “PERSONAL IDENTIFIERS” …. that is our personally unique signatures to those having requested initiative petitions under the public records act.
    We are not speaking to the names and addresses of petition signers, but, to the actual signatures. These signatures are properly redacted when the Secretary releases voter information, but improperly NOT redacted when the request is for petition sheets.

    Our personal identifiers are not public record, by definition. The Secretary’s legal argument that there is no exception to the public records act for our personal identifiers fails. There can be no exemption for that which was never included to begin with. In other words … we can’t exempt that which has been excluded from the beginning. Additionally the legal argument that RCW29A.08.710(2) does not apply to the files containing our personal identifiers on petitions is an obnoxious and contorted interpretation that the Secretary needs to abandon.

    RCW 29A.08.710(2) states:
    “(2) The following information contained in voter registration records or files regarding a voter or a group of voters is available for public inspection and copying, except as provided in RCW 40.24.060: The voter’s name, address, political jurisdiction, gender, date of birth, voting record, date of registration, and registration number. No other information from voter registration records or files is available for public inspection or copying.”

    There is no bona-fide use for our personal identifiers to be released to the public. The Secretary must adopt a policy of redacting our personal identifiers from ALL public records requests.

    Outraged in Olympia

  5. This is clearly an attempt at intimidation. “…if you sign this we will out you to the public.” The same reason for wanting a secret ballot in the voting booth applies here, in my thinking. It is so that one can vote or sign a petition according to their beliefs and conscience without having to defend their actions to a group that has opposite views. OK, if that is the ruling I can abide by that, except this cuts both ways, every petition signer of every petition should have their name made public.

    When a personal political decision becomes public, it allows a group to intimidate by action or threat of action. Secret ballots and petitions would clearly fall into the same category. If kept secret then this has no play. Obvious, yes.

  6. Jody Kunz says:

    Thank you Sec Reed for standing up for what is right. I appreciate your efforts!

  7. When will the names be released? Before we all mail our ballots in? I’m hoping that with this ruling, supporers of extended domestic partnership rights will still have time to engage in meaningful dialogue with those who signed the petitions.

  8. UPDATE: The AP’s Gene Johnson is reporting that Judge Hicks’ chambers told him the judge wouldn’t be holding a hearing on the R-71 releases before Monday at the earliest. The judge’s rep says he’ll want to read the 9th Circuit’s full opinion before possibly allowing release. Tim Eyman didn’t specifically move to block the R-71 sheets, but the judge issued a blanket prohibition on the state releasing any petition sheets, pending the 9th Circuit decision and a hearing back in Thurston County.

  9. Chris W– “Election Day” is already under way. Overseas and military ballots went out by Oct. 4 and many counties began mailing ballots yesterday. The deadline for counties mailing out ballots is tomorrow. History tells us that a sizable share of the electorate will be voting shortly after receiving ballots.

  10. J Scooter says:

    Judge Hicks (like Judge McPhee in the earlier Thurston County litigation) seems to have little concern if this referendum rolls forward as fast as possible with the public kept out of the process as much as possible. In the 1960′s and 1970′s, when the appellate federal courts in the South usually stood up for civil rights, the segregationists turned to the state courts in an effort to ‘undo’ what the federal appellate courts were doing. That’s exactly how the R-71 supporters are using the Thurston County court and its judges. Interesting that Judge Hicks granted the TRO and said he would keep it in effect until the Ninth Circuit ruled; now that the Ninth Circuit has ruled, Judge Hicks says (according to Dave Ammons above) that he needs to wait until next week when he can read the full opinion Ninth Circuit opinion before he removes the TRO (if he does remove it). Obviously, Judge Hicks doesn’t fully understand or doesn’t care that for every day he keeps these signatures secret, the right of “the public” to see these signatures is being denied. Doesn’t the public’s right to information matter? — especially since the Ninth Circuit unanimously reversed Judge Settle’s injunction? Deja vu — we’re going back to the state court shenanigans in the South in the 1960′s-70′s.

    It’s also interesting how the people who requested the names on the petitions — WAFST, Brian Murphy and others — actually participated in and won the federal court case on appeal in the Ninth Circuit. Yet these same persons were not even made a party to the state court case before Judge Hicks — who issued the TRO (and is keeping it in effect) without even requiring Eyman and others who filed the Thurston Court lawsuit to join these requesters (and victors in the federal court) in that lawsuit. What a joke! You can win the case in the Ninth Circuit, and then some local state judge — without even hearing from you — can issue an order that prevents you from getting what the Ninth Circuit says you are allowed to get.

  11. I would not be celebrating if I were Sec. Reed. When the petitions are released, the public will be able to conduct the “master check” of the all the signatures accepted by the Secretary’s incompetent and poorly trained army of temps. Because the Secretary only master checked the rejected signatures and not those accepted by the temps, R71 was wrongly qualified.

    The Secretary’s contempt for equal and fair procedures has now cost the various sides over $2 million to fight a referendum battle that shouldn’t even be happening.

  12. Eli Henry says:

    Yeah Chris W.,

    The last thing I want is you looking up my info and coming to my door at 8pm for “meaningful dialogue”

    That’s creepy!

  13. Can’t wait to see the names. By the way, Eli, when you sign a petition and I come along and sign after you, I can see your name and address. There should be no secrecy.

  14. David W — thank you. This format is nice, and I appreciate how responsive you are on this blog.

  15. Sorry, my comment was directed at David Ammons, not David “W”. Need more coffee…

  16. One factoid for Sara and others who are interested in a direct re-canvass of the signature check: This is the state law for release of the statewide voter database info:

    RCW 29A.08.710:

    (2) The following information contained in voter registration records or files regarding a voter or a group of voters is available for public inspection and copying, except as provided in RCW 40.24.060: The voter’s name, address, political jurisdiction, gender, date of birth, voting record, date of registration, and registration number. No other information from voter registration records or files is available for public inspection or copying.

  17. Why does anyone care whether the names are released before or after the election? It seems hard to believe that individual voters will decide which way to vote based upon who signed the petitions (as opposed to whether they support the underlying bill). Regardless, I suspect that this case is an anomaly and will have no practical impact upon future interpretations of the Public Record’s Act in Washington State.

  18. @ Sara and Dave A., but what we will find is that some whose names appear on the Ref 71 sheets will indeed claim that they were lied to by signature gatherers, did not understand the petition itself (as the bold headlines allowed on the top margin which claimed Ref 71 was about “marriage” not dom partnerships and about what children are taught in schools) or were duped. I have a suspicion that there will be more than 1200 people claiming this and of course Washington makes no place to remove these people who claim fraud, by its laws. Maybe the laws should change. But as I have said before, and will stand behind what was said to me when KnowThyNeighbor spoke to Josh Friedes of Equal Rights Washington, I was told NOT to challenge or criticize the way Washington’s Intitiative Petition Process works or is misleading. Reason? In Friedes’ words, “Progressives use the process too.” There is way more to this story than you read on the surface.

  19. David:

    Thank you for that information, but I am not sure what point you are trying to make. If I can access the names and the addresses of registered voters on the rolls, then I can compare them to the signatures on the petitions which were accepted as valid by your temps and see if they match. I suspect that we will see that in about 10%-13% of the signatures which were accepted by your temps (with their 2-hour training and minimum wage) are not a match. As I understand it, most of the temp errors occur when they either claim a match or miss a match based on someone with the same name but different address or someone with the same name but different middle initial. We can check all of that from the information that the statute makes available for inspection and copying.

    We are going to find these errors if they exist. If the errors exceed the very small cushion that your office claimed the R71 petitioners had, it will demonstrate that your office wrongly insisted on making the temps’ decision final (but only for accepted signatures), biased the process and improperly qualified a referendum. Then later we can tally the time and money wasted as a result and maybe send you the bill.

  20. Randy Sampson says:

    Because, Nate, if we’re allowed to look at the way that Sam Reed’s office ran the petition certification before the election we will find that it shouldn’t even have made it to the ballot. This whole thing is being drug on for that very reason and no other.

    In short: It’s preferable to their outcome for the information to NOT be made available for scrutiny before the election. Once the deed is done, it’s harder if not impossible to undo and they know it. It’s all a game and they, along with Sam Reed’s office, are playing it well.

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