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Challengers seek Supreme Court order against R-71 releases

by David Ammons | November 17th, 2011

UPDATE: Protect Marriage Washington has asked U.S. Supreme Court Justce Anthony Kennedy to block release of Referendum 71 petitions while an appeal is underway in the 9th Circuit Court of Appeals.

While that is pending, Washington’s Office of Secretary of State will suspend release of further R-71 petition DVDs.  The office has no further information on the timing of Justice Kennedy’s handling of the matter.

Earlier, the 9th Circuit Court of Appeals  rejected the bid by Protect Marriage Washington to block further release of Referendum 71 petitions while their appeal is proceeding.

The court, in a 2-1 ruling, said “because the court preliminarily believes that the appeal is moot because of the (previous) release of R-71 petitions, appellants’ renewed emergency motion for an injunction pending appeal is denied.”

The State Archives in the Office of Secretary of State already has released more than 30 sets of the 137,000 signatures, and was releasing one more set Thursday after receiving the new court order. Discs were released under terms of the Public Records Act, for $15 plus postage and handling, after the state recently won the Doe v. Reed public records case in U.S. District Court in Tacoma.

The decision is being appealed by Protect Marriage Washington and R-71 signers who don’t want to be identified.  PMW also was expected to appeal the 9th Circuit’s latest ruling on the emergency motion to U.S. Supreme Court Justice Anthony Kennedy, who handles cases arising from the circuit.

Protect Marriage Washington, part of a national alliance opposed to same-sex marriage, sponsored R-71 in 2009 to force a public vote on a newly approved “everything but marriage” law that expanded domestic partner benefits for gay couples and heterosexual couples where one partner is at least 62. Voters upheld the law 53 percent to 47 percent.

As of today, there are 9,516 domestic partnerships registered with our office.

After qualifying for the ballot, PMW successfully blocked public release of the petitions, based on contention that signers would be harassed, intimidated or injured. The case went all the way up to the U.S. Supreme Court, which issued a closely watched 8-1 decision that release does not violate First Amendment rights.

The high court did leave open the possibility of “as-applied” challenges in specific controversial cases where sponsors could try to show that release would likely lead to retaliation against signers. U.S. District Court Judge Benjamin Settle in Tacoma recently held that PMW had not made their case, and said release would be permitted. That is the ruling that is being appealed to the 9th Circuit, and potentially back up to the Supreme Court.

Washington treats initiative and referendum petitions as releasable under the voter-approved Public Records Act.  Secretary of State Sam Reed and Attorney General Rob McKenna view signing petitions as a public act of citizen legislating, not a private act such as voting. They say voters have a right to know who is attempting to legislate, and to double-check the state Elections Division’s review of petitions to determine if there are sufficient numbers of valid signatures to get on the statewide ballot.

For more legal background, visit our webpage on R-71 litigation. Scroll down to see the latest in the 9th Circuit.

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