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R-71 petition challenge heading back to court

by David Ammons | August 4th, 2010

Protect Marriage Washington, gay-marriage opponents who forced a public vote on the state’s new domestic partnership law last November, are heading back to court to try to ban public release of the 138,000 names of people who signed Referendum 71 petitions.

The U.S. Supreme Court, in a case called Doe v. Reed, ruled 8-1 on June 24 that, as a general matter, release of petitions does not violate voters’ constitutional rights. But the court also left open the possibility of narrower challenges to release of specific measures, such as R-71.

As expected, that challenge is heading back to a Tacoma jurist, U.S. District Court Judge Benjamin Settle, who originally blocked release of the petition sheets last fall, citing constitutional grounds. He was overturned by the 9th Circuit Court of Appeals and the Supreme Court, but now the “as-applied” challenge will commence.

State Elections Director Nick Handy says word from Attorney General Rob McKenna is that Judge Settle has set a conference for Aug. 11 to discuss how to proceed with the case.  The judge may decide to issue a ban on disclosure of the petitions until the case is heard and decided, along with scheduling of motions and a hearing on the merits, Handy said Wednesday.

Secretary of State Sam Reed and McKenna will continue to advocate for release of the signatures under terms of the voter-approved Public Records Act.  The referendum process is  “direct democracy,” citizen legislating, and Washington voters want the process to be open and transparent, not secret, Reed said.  The other side, represented by Indiana activist attorney James Bopp Jr., fears that disclosure would lead to harassment or intimidation of signers.

Every state with the initiative process, except for California, treats petitions as releasable public records.

R-71 petitions have not been released publicly, although a number of public records requests are pending. Even without Settle’s federal order, the state remains under a broad temporary ban obtained by initiative activist Tim Eyman in his challenge in Thurston County Superior Court. Judge Richard Hicks has not scheduled a hearing in the aftermath of the Supreme Court’s ruling against this type of broad ban on disclosure.

Voters upheld the “everything but marriage” expansion of domestic partnership benefits last fall, and the law went into effect in December. Benefits to gay couples and senior opposite-sex domestic partners accrue to people on the Secretary of State’s registry. As of today, that’s 7,777 couples.

3 Responses to “R-71 petition challenge heading back to court”

  1. I will be suing both the attorney general and secretary of state if the radicals destroy my property or threaten me in any way.

  2. Respectfully, typically one sues the one who does the actual damage, not the public official who upholds the voter-approved Public Records Act. There are laws against property damage or threat of bodily harm to voters or anyone else, enforced by local authorities. SecState has no police powers. though we continue to urge people to show restraint and civility, if and when we get permission to release R-71 petitions. At this time, any threat of retaliation is strictly speculative, since the petitions have never been released here (just as the state of California does not release their petitions, and thus could not have been the cause of any problems down there during the Prop 8 battle.) And as Justice Scalia and others noted in our 8-1 Supreme Court ruling, it is not a crime for someone to say something nasty or insulting during the heat of campaign.

  3. If the Supreme Court ruled that release of petitions do not violate constitutional rights, and there are no State laws prohibiting such, it would seem like a clear cut decision.

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