Federal judge continues ban on public release of R-71 petitions
U.S. District Judge Benjamin Settle is continuing the ban on public release of Referendum 71 petitions at least temporarily, possibly until Sept. 11 or beyond.
Settle says supporters of the state’s new “everything but marriage” law may see the names and addresses of people who signed the petitions, for possible use in a Thurston County Superior Court case that attempts to block the public vote via R-71. The group may not make the information public, he said.
The closely watched public records case, heard Thursday afternoon in Settle’s Tacoma courtroom, arises from R-71 sponsors’ bid to keep the petitions confidential. The Secretary of State, custodian of the petitions after completing a full check of all 137,881 names this week, has a longstanding policy of treating initiative and referendum petitions as releasable public records.
The Secretary had intended to release copies to organizations and individuals who requested them, but Settle blocked that on July 29 with his emergency order sought by the sponsors, Protect Marriage Washington. The group feared retaliation or harassment if the names and addresses were posted on the Internet by WhoSigned.org or other groups. The state told Settle that citizens have a vital interest in keeping election-related documents public and that warnings of foul play or misuse of the signature information were speculative.
Thursday’s hearing included two hours’ worth of arguments. Sponsors talked about First Amendment rights to participate without retaliation. The state and the Coalition for Open Government resisted the ban, saying public disclosure laws adopted by the voters requires release of public records without asking the requester what usage will be made of the information. The Legislature has never exempted petitions from disclosure, they noted.
Attorneys for Washington Families Standing Together, the coalition that is battling foes of the newly passed expansion of domestic-partnership rights, requested and received permission to have a copy of the petitions, agreeing not to make them public. The group, rebuffed in King County Superior Court on Wednesday, turned to Thurston County Superior Court on Thursday, hoping to block the referendum from the ballot. The challengers fault the Elections Division’s signature check.
Judge Settle extended his temporary ban, saying he would take the arguments under advisement and issue a written decision or make a further court order. He mentioned Sept. 11 as a possible date to expect a ruling.
7 thoughts on “Federal judge continues ban on public release of R-71 petitions”
Judge Settle is going to wait until the 11th to give time to Thurston County ….if R-71 is prevented from going to the ballot then some of the issues may be mooted out. That is my guess
Dave,
I’ve asked this question before, but never gotten an answer. Can you please find out: Did the Sos (or AG) even agree, in the first place, that that TRO could be issued for 35 days — instead of the 20 day maximum that is permitted by the federal rules?
Also, now that the federal judge has extended the TRO again until at least September 11, please advise: Did the SoS (or AG) consent to extend the TRO until September 11?
The federal law is totally clear — in the federal rules, as well as a US Supreme Court case, and dozens of other cases — a TRO can continue in effect NO MORE THAN 20 DAYS UNLESS THE PARTIES AGREE TO A LONGER TIME. In the name of transparency, please advise if the SoS (or AG) has agreed to the federal judge’s unprecedented extensions of the TRO — and if so, WHY did the SoS (or AG) agree? Every day the TRO continues is another day that the public cannot see the names of who signed these petitions.
If there has NOT been an agreement to extend, why doesnt the SoS (or AG) appeal the continuing TRO to the US Appeals Court? The legal precedent is clear here: an appeals court will rule that a TRO that extends beyond 20 days (without everyone’s agreement) is illegal and cannot remain in effect.
Thank you.
Please allow me to be a bit more direct: The SoS should not be telling the public that he is fighting to release the names of the petition signers unless he also tells the public that he has also agreed to allow the judge to keep the names secret beyond the maximum 20 day period allowed for TROs. If the SoS has agreed to a duration of secrecy beyond 20 days, he should explain why; if he has not agreed to a duration of secrecy beyond 20 days, he should explain why he isn’t asking the US Court of Appeals for the 9th Circuit to throw out the TRO as invalid because of its illegal duration.
J Scooter– as i previously replied, we’ve relied on the attorney general to handle this federal lawsuit, whatever the timeline may be established by Judge Settle. It was the judge who set the time parameters for the TRO, the setting of yesterday’s date for the hearing on merits, and his decision to continue the TRO until Sept. 11 or whenever he is ready with a further written opinion or court order. any further questions about the timeline will need to be addressed with James Pharris at the solicitor general’s office.
We contiinue to advocate for release of the R-71 petitions, in keeping with our longtime practice of responding to public records requests. It is clear that there is no exemption to the open records act for I&R petitions, even though the Legislature has exempted over 200 other types of records from disclosure.
AJ & Mike — Judge Settle is clearly focused on the federal constitutional question, and not on the requirements of a state law, which unmistakably treats I&R petitions as releasable public records. A state court would have focused on the state law, a fact that sent the petitioners to federal court, which has the power to hold that federal constitutional First Amendment rights trumps the state statute.
Dave,
Thanks for your continuing posts. With all due respect, the party being sued is the Secretary of State — not the Attorney General. The Attorney General is the lawyer for the SoS, which is his client. Usually, the client — here, the SoS — at least KNOWS what its lawyer is doing and why.
I understand your reply that the judge set the deadlines, hearing dates, etc. However, would you — on behalf of the SoS — please reply to whether the SoS has agreed to a TRO that lasted more than the 20 days permitted by federal rules and by the US Supreme Court. Surely the SoS knows if he agreed to a TRO of more than 20 days? If he has, why?
If the SoS has NOT agreed to a TRO of more than 20 days, then please let us know if the SoS has asked his lawyer — the Attorney General — to appeal Judge Settle’s TRO on the very clear legal ground that it is illegal for going beyond 20 days? Perhaps it is up to the Attorney General to decide if he wants to undertake an appeal on behalf of the SoS, but you can at least let us know if the SoS has asked the Attorney General to undertake an appeal of this illegal TRO that has continued for more than 20 days?
If the SoS wants us to ask the Attorney General why he has handled this case the way he has, then at least the SoS should tell us whether he agreed to a longer TRO and whether he asked the Attorney General to appeal.
It’s not really fair for the SoS to have it both ways: we keep being told that the SoS is fighting to make these signatures public, but we still don’t know if he agreed to extend the TRO and if he made any effort to get the Attorney General to appeal it.
Thank you once again.
The Secretary is allowing the process to unfold in federal court and defers the strategy on this to our legal counsel. I haven’t heard the question of a 20-day rule even mentioned around here, so I guess that implies that we’ve agreed to the TRO parameters set by the federal court. We had fully expected the TRO to be lifted yesterday, but it continues, and there’s not much we can do about it, other than immediately turn over the petitions to Washington Families, as the judge permitted. Beyond that, the process is taking however long it is taking.
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