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Thurston judge OKs release of initiative petitions

by David Ammons | September 3rd, 2010

Judge Richard Hicks of Thurston County Superior Court has just lifted the ban on releasing initiative petitions under the state’s Public Records Act.  His decision does not allow release of Referendum 71 petitions, however, since those are still the focus of a federal lawsuit brought by foes of same-sex marriage, and the federal judge has released a ban on release at this point.

State Elections Director Nick Handy said petitions will be released as soon as possible, and that he was pleased with the decision. The main pending (non-R-71) public records requests are from Mountlake Terrace lobbyist-consultant Bryan Wahl, who requested petitions on 11 ballot measures, most from initiative activist Tim Eyman.

UPDATE: They are for Initiatives 722, 745, 747, 776, 900, 912, 917,920, 960, 985, and 1033.  Open-government advocate Toby Nixon has also requested the same ones.  Several requests also have been made for at least part of the signatures for I-1098, the pending state income tax measure, where law enforcement and prosecutors are investigating possible signature fraud.

The judge had issued the release ban last Oct. 14 as part of a legal challenge brought by Eyman and allies who oppose public release of petitions.

Six groups or individuals have requested  R-71 petition sheets, which spawned a controversy that went all the way up to the U.S. Supreme Court.  The high court ruled that, as a general proposition, the release of petitions does not infringe on constitutional First Amendment right to free political speech.

Protect Marriage Washington, the group that wanted to overturn the state’s new domestic partnership law via R-71, has returned to U.S. District Court to ask for continued shielding of the R-71 petitions.  Last fall, voters upheld the “everything but marriage” law and it took effect last December.

Hicks’ brief order said he had considered the arguments of both sides and had decided to dissolve the temporary restraining order he had issued last Oct. 14.

UPDATE: There was no mention of whether Eyman’s main legal challenge will continue. The judge said he was not dismissing Eyman’s case.

Secretary of State Sam Reed praised the development Friday. He said the state continues to believe that the voter-approved Public Records Act requires release of the petitions. The public wants transparency, and signing a petition is essentially the public’s way of participating directly in lawmaking, he said. Petition-signing is a public act, not a private expression such as voting, he said.

Added Elections Director Nick Handy:

“We have been for transparency since Day 1, and we believe the public wants its business, including citizen legislating, done in the light of day.  We have released 2 million petition signatures in recent years and we’re unaware of a single problem arising.”

11 Responses to “Thurston judge OKs release of initiative petitions”

  1. Thank you, Dave Ammons, for posting our ‘take’ on today’s proceeding:

    RE: Judge Hicks allows signature privacy case to proceed, lifts TRO allowing release in the meantime, Sec of State promises to prohibit commercial-use of info

    Today, the Secretary of State asked the Thurston County Superior Court to essentially dismiss our case, given the ruling from the US Supreme Court. We replied that our case concerns the state Constitution and state statutes and so we should be able to present our arguments in a summary judgement hearing.

    From the bench, Judge Hicks said, “You’re both right. I’m not dismissing the case, but I am lifting the TRO.” This means that pending requests for initiative and referendum petitions (other than R-71 which is subject to a federal court injunction) will be fulfilled pending a final ruling by the court.

    Eyman attended the hearing and had this to say: “From 1912 through 2006, every other Secretary of State maintained the privacy of petition signers. We’re simply asking to return to the way it was done for the previous 95 years. So we’re obviously happy the judge refused to dismiss our case. But he essentially decided that petition signers for tax initiatives (unlike hyper-emotional issues like gay rights) aren’t likely to have ‘bad things’ happen to them so he lifted the temporary restraining order he issued in October 2009 preventing their release. Nonetheless, we feel strongly that citizens who sign petitions, regardless of the topic, should have their privacy protected (as they did from 1912 through 2006). Thanks to the extraordinary pro bono efforts of attorneys Shawn Newman and Jim Bopp, we look forward to making our case in court in early 2011.

    Interestingly, during oral argument, AG Jay Geck said that the Secretary of State will inform anyone who requests initiative or referendums that it is illegal to use the personal information on the petitions for commercial purposes (this was one of our concerns with regard to the pending request for 11 initiatives by lobbyist and political consultant Bryan Wahl). Afterward, we asked him for clarification on this, and in a follow-up email to Shawn, Mr. Geck wrote: “Thus, it is my understanding from the record and discussion with the office of the Secretary of State, that the Secretary of State provides this form to requesters and that the pending requesters would be directed to sign the form.”

    This is very, very good news. In response to our interrogatories, the Secretary of State admitted that they “may have omitted” this step with previous requesters.

    Finally, with Judge Hicks’ retirement at the end of this month, our case will be assigned to a new Thurston County Superior Court judge but we anticipate having a summary judgement hearing on the merits in early 2011.

  2. If Tim Eyman wants initiative and referendum petition signatures to be exempt from disclosure, he doesn’t need to go to court and challenge the constitutionality of the Public Records Act to get it. He just needs to go to the legislature and get them to pass an exemption, as has been done for several hundred other types of records during the 37-year history of Washington’s public records law.

    It’s not surprising that Secretaries of State prior to 1972 didn’t release the records; it was completely at their discretion, and, like so many other public officials, they simply said “No”. In 1972, the people had their say. The sponsors of I-276, which established public records disclosure in Washington, were quite familiar with what initiative petitions contained and the fact that their initiative would make petitions subject to disclosure. They could have included an exemption for petitions, but didn’t, and the people agreed by a more than 2-to-1 margin (72% Yes vote). There have been multiple previous attempts to legislatively create such an exemption, which have all been shot down.

    Perhaps Tim should just recognize that the majority of the people of Washington agree with Sam Reed that petitions should be subject to disclosure.

    Toby Nixon, President, Washington Coalition for Open Government

  3. Thanks, Dave, for posting our ‘take’ on today’s hearing, but just to be complete, we had further thoughts that we shared with everyone – here it is:

    For years, we’ve fought against anti-initiative bills in Olympia. We pride ourselves on being the most aggressive defender and advocate for the people’s right to initiative. I was a speaker and panel participant in the recent global initiative conference in San Francisco (http://www.2010globalforum.com/speakers/?_c=z3tyfulzpx1lsy).

    Frontal assaults (like Sen. Ken Jacobsen’s bill to legislatively repeal the initiative process) have always been a non-starter. So anti-initiative politicians have become very adept at surreptiously attacking the process by targeting signature gathering. They know that if they can screw up the signature gathering process, they can undermine the initiative process. For example, opponents of our initiatives have physically assaulted people collecting signatures and people signing our petitions (http://www.voterswantmorechoices.com/harassment.asp).

    Based on these experiences, we are extremely sensitive to any interference in the process of citizens choosing to voluntarily sign petitions on issues they want on the ballot.

    When legislators sponsor bills or vote on bills, they are representing thousands of citizens. But when a citizen signs a petition or votes on a measure, they are only representing themselves. They are not analogous. Citizens have a right to know what bills their representatives are sponsoring and how they’re voting on those bills because they are just that: representatives. But citizens are not representatives, they are just citizens, they represent no one other than themselves. The principle behind the public records act is that citizens have a right to know what their government is doing — it is a perversion of that principle to say that citizens have a right to know what other citizens are doing. Again, citizens are citizens, representatives are representatives — they are subject to different standards of disclosure.

    Absurdly, someone who donates $25 to a ballot measure is provided greater privacy protection than a citizen who signs a petition. There is a threshold that donors must reach before they’re forced to disclose their names and addresses (and never their signature). It’s $25. So if you give $25 or less, you’re entitled to complete anonymity under Washington state law. But Secretary Reed, unlike every other Secretary of State in state history, says that anyone who signs a petition must have their name, personal signature, and home address made public. Always remember that a petition signer may only be in favor of a public vote on the issue and may even oppose it, and yet, their personal information is made public. But a donor, someone who’s clearly in favor of the measure, is entitled to greater privacy than a petition signer.

    The initiative process is under constant legislative and bureaucratic assault from those who do not support the people’s right to participate. And so we take great pride in fighting hard in the legislative process, the courts, and by initiative, to ensure the people’s right to initiative is not infringed upon.

  4. Perhaps Toby Nixon should note Elway’s poll that the majority of voters oppose Reed’s policy.

    And perhaps Toby Nixon is unaware of the complete history of this issue.

    Following the passage of the Public Records Act I-276 in 1972, the Secretary of State’s office in 1973 refused to turn over the names, signatures, and home addresses of the 699,000 citizens who signed Initiative 282, sponsored by Lynnwood furniture salesman Bruce Helm, which capped legislators’ salaries. The initiative was prompted by the Legislature’s midnight vote on the last day of the legislative session for a massive pay raise for themselves in the midst of national wage-and-price controls.

    A lawsuit was filed in Thurston County Superior Court (Chaney v. Kramer, Cause No. 48733) where the plaintiff sought to obtain the names, signatures, and home addresses of the Thurston county citizens who signed petitions for I-282. The Secretary of State’s position was upheld and the petitions were not allowed to be copied.

    In a public release in 1973, Lud Kramer explained: “It has been my policy not to release the names of citizens signing initiative and referendum petitions. As far as I’m concerned petitions … are being held in trust by this office. Furthermore, the release of these signatures have no legal value, but could have deep political ramifications to those signing. I will not violate public trust.”

    The Secretary of State’s practice of not turning over personal information on petitions has been maintained for 95 years (from 1912 through 2006), including during the tenure of Lud Kramer, Bruce Chapman, the 20 years of Ralph Munro, and your first six years as Secretary of State.

  5. Further response to Toby Nixon.

    The year after the Public Records Act passed, then Secretary of State Lud Kramer refused to turn over the names, signatures, and home addresses of Thurston County citizens who signed I-282′s petitions. His chief lieutenant Don Whiting subsequently wrote a letter to the requester (a state senator) explaining why:

    “Section 26 of Chapter 1, Laws of 1973 (Initiative 276) provides that ‘to the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record.’ It is our belief that the release of the names and addresses of persons in Thurston County who have signed Initiative 282 would constitute such an unreasonable invasion of personal privacy”).

    The Public Records Act made petitions “government documents,” but it specifically included a requirement that any personal information on them be redacted or removed. That was the policy of every Secretary of State from 1972 through 2000 – our court documents include statements by Lud Kramer and sworn declarations from from former Secretary of State Bruce Chapman and Ralph Munro officials Don Whiting and Gary McIntosh.

    From 1973 – 2000, the Secretary of State’s policy was to tell petition “requesters” that they could get the petitions but that all the personal information on them would be blacked out or redacted unless they got a court order (the statute specifically allows people to go to court to show cause why the personal information should not be removed).

  6. Of course, I (KnowThyNeighbor.org) have to weigh in here also. My organization since its inception in 2005 has ALSO taken the stand that it wants the initiative petition process to run cleanly and smoothly and for all voters in states that use this process to ensure that these voters have access to direct democracy.

    But with that being said, we have also taken the stand that citizen legislators should know what it is that they are signing, that petitions clearly represent the nature of the initiative, that states review their elections laws and make attempts to weed out fraud or deception by the signature gatherers etc. In other words, an initiative petition process in any state should be able to pass the simple test of public scrutiny. If it cannot or successful attempts are made by the like of Tim Eyman to shield this process from the public’s eye, then your ballot initiative process has NO integrity.

  7. Open government and disclosure go hand in hand. Citizens signing initiatives are part of the process of governing this state since they are affirming their right under the state constitution to initiate legislation and put it up to a public vote. They can also sign referendums to vote on measures passed by the Legislature. Both initiatives and referendums can repeal legislation.

    These acts of citizens participating in governing should be open and visible to all citizens. This helps to instill confidence and credibility to the process. Trying to keep signatures hidden does not.

  8. You know … I really don’t give a darn about Tim Eyman or Sam Reed. What I care about is that the information that signers are being provided is not misleading, that the person gathering the information is legal and has personally signed and attested each document, and that the signer is a registered voter when they signed the petition, not three months after. I don’t want samping of the petitions being done on the Secretary of States front steps. I can’t verify any of that as long as the petitions are kept private. If someone uses that data after it’s released for illegal acts, they can be dealt with by the law. If the people who signed are just afraid to loose a friend or family member’s love because they signed a hateful piece of legislation … tough crap!

  9. If the advocates for complete transparency were consistent, they’d be opposed to the secret ballot because the principles are identical (if you’re a ‘citizen legislator’ when you sign a petition, then you’re certainly a ‘citizen legislator’ when you vote on the measure).

    they’d also oppose the non-release of signatures on the voter registration database. even if the wave of a magic wand released the R-71 petitions immediately, no one could sit down and compare signatures on the petitions with signatures on the petitions because signatures on the voter registration rolls are never, ever released to the public.

    the Secretary of State’s policy from 1912 through 2006 was to protect the privacy of petition signers and not release their names, personal signatures, and home addresses. that policy was supported by 2 Attorney General opinions, a Thurston County court ruling, every other Secretary of State other than Reed, and majority voter approval according to Elway’s recent poll.

  10. @Kevin. Might I just note that the Secretary went all the way up to the Supreme Court to defend disclosure? Doe v. Reed, as argued by the Attorney General, was an 8-1 opinion. We’re ready to release petitions when we get the thing Settled.

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