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R-71 sponsors renew bid to ban petition release

by David Ammons | July 20th, 2010

UPDATE:  The Friday hearing referred to by anti-gay marriage activists will not occur. The judge has temporarily dismissed their motion to ban release of R-71 petitions, but they can re-file the request after the U.S. Supreme Court officially returns the case to the U.S. District Court in Tacoma.

Original post, with the new timing information added:

It’s back to court again, as foes of last year’s Referendum 71 renew a request that the petitions be sealed from public disclosure.

Protect Marriage Washington is  the group that forced a public vote last fall on the so-called  “everything but marriage” domestic partnership law. Now they’re asking the U.S. District Court in Tacoma to continue blocking release of the names and addresses of people who signed R-71 petitions. It’s not clear when the court hearing will be.  It was originally expected by challengers to occur Friday,  but the  judge has dismissed the request until he gets formal notice from the Supreme Court transferring the case back to his courtroom.

Secretary of State Sam Reed and Attorney General Rob McKenna will continue fighting for release under terms of the state’s voter-approved Public Records Act.

The U.S. Supreme Court, in a case called Doe v. Reed, ruled 8-1 on June 24 that as a general matter, that release of petition signatures does not violate voters’ constitutional rights. But the high court said the ruling does not foreclose a narrower challenge to release of signatures in a specific case.

Thus the challengers are launching their new case in the court of Judge Benjamin Settle, who granted a ban last September on release of the petitions, but was overturned by the 9th Circuit Court of Appeals and the Supreme Court on the broad constitutional grounds.

Monday was the day Settle’s original order expired, since it was the day the Supreme Court decision took effect.  Although there is no federal court injunction at the moment, the state is barred by a ban obtained by initiative activist Tim Eyman in his broad challenge in Thurston County Superior Court. That case is still pending, and most observers expect Judge Richard Hicks to lift the injunction.

The new federal court motion asks for either a preliminary injunction against releasing the petitions or a temporary restraining order for the same purpose.  The papers, filed by the Indiana law firm of conservative activist James Bopp Jr., indicated that a hearing is set for Friday’s motion calendar in Tacoma.  But, again, that’s now outdated by Judge Settle’s decision to clear the decks while awaiting formal word from the Supreme Court.

The document cites a variety of what they described as harassment, intimidation and threats to donors to an anti-gay marriage measure in California in 2008 and gave a few examples of perceived threats to sponsors of R-71 last year. California does not release petitions, but all other states with the initiative process do so.  R-71 petitions have not been released, but a number of public-records requests are pending.

“If the R-71 petitions are released, petition signers face a reasonable probability of threats, harassment, and reprisals,” the motion says.

Reed, who backs disclosure of petitions under terms of the state’s voter-approved Public Records Act, said McKenna will continue to fight the battle for the state voters who demand that their lawmaking be conducted with full transparency, including those adopted by initiative and referendum.  In signing petitions, voters are exercising their role as citizen legislators.

Voters upheld the new domestic partnership law last fall, 53-47.  It applies to state-registered domestic partners, both same-sex and unions where at least one of the partners is 62 or older.

Reed’s comment:

“Voters of Washington want their government operating in open, transparent and accountable ways, and treating petitions as a public record is in keeping with that desire,” Reed said. “The Supreme Court has made it clear that there can be no blanket ban on releasing petitions and that it will be a tall order for challengers to make the case for keeping this information secret.

“As Justice Scalia said in the recent court decision, we have laws against threats and intimidation, but harsh criticism or occasional campaign-related incivility is `a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.’”

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