by David Ammons | March 30th, 2010
A Washington state public-records case involving initiative and referendum petitions is one of two big cases headed to the U.S. Supreme Court from the West in April. Both are drawing national attention because they involve tricky First Amendment issues, political participation, and the right of government to lay down rules for non-discrimination and for open and transparent government.
Both cases arise from our 9th Circuit Court of Appeals. One deals with whether a law school may deny recognition to a student group that bars homosexuals. The appeals bench sided with the college. The other case, which also arose from a controversy about gay rights, is our own Doe v. Reed. The case deals with whether the Secretary of State is legally sound in declaring that the state’s voter-approved Public Records Act requires release of petition sheets from initiatives and referenda in response to a valid public records request. The appeals bench sided with the state.
Protect Marriage Washington, the group that sponsored an unsuccessful bid to overturn a new “everything but marriage” law expanding domestic partner benefits, is arguing that people have a constitutional right to “anonymous free speech” that allows them to sign petitions without their identities being made public. They also argue that disclosure could lead to harassment, a contention that was not part of the lower court rulings. Due to an injunction, the Referendum 71 petitions have not been released to groups and citizens who filed a public-records request. The referendum passed handily last fall, sustaining the new domestic partnership law.
But Secretary Reed, defended by state Attorney General Rob McKenna, says the public has a compelling interest in releasing public records that are have never been exempted by the Legislature or the voters. In addition to the transparency argument, the state says disclosure allows some oversight of the state’s handling of the initiative process. And state attorneys argue that signing a petition is a public act, usually in a very public place like a crowded shopping mall, and is part of the process of citizen legislating, not a private act like voting. Petitions have been released in previous years without incident.
The various briefs are available at a special Referendum 71 federal litigation webpage (scroll down) .
Thoughts on this case? What should the high court decide?