R-71 signature battle heads to federal appeals judges
Washington’s Attorney General and Secretary of State will ask a federal appeals court on Wednesday to overturn a lower court ruling and allow release of Referendum 71 petitions.
There’s some question, though, whether voters will be able to actually see the public records before the election is over and done, even if the state proves its case that the voter-approved Public Records Act requires disclosure of the documents.
R-71 sponsors, Protect Marriage Washington, won a federal court order in Tacoma blocking the Secretary of State’s Office from releasing the petitions. Attorney General Rob McKenna and Secretary Sam Reed appealed, saying the public strongly supports transparency in government and expects release of public records.
They said signing petitions is a very public act of citizen legislating, and that Washington citizens correctly expect the legislative process to be open and accountable. Petitions are circulated publicly and potentially viewed by many people before being turned over to the Secretary for signature-checking, with observers from both camps able to watch, they said.
Signing public petitions is not akin to voting, which is kept confidential, Reed said.
Bill Collins, deputy solicitor general, will present the state’s side at the hearing Wednesday at the 9th Circuit Court of Appeals, before a three-judge panel sitting in Pasadena, Calif. The state will be asking the court to “stay” the lower court decision, ordinarily meaning the state could release the petitions to groups or individuals who have submitted a public-records request and paid for the DVDs, CDs, microfilm, thumb drive or other format. The judges will be asked to reverse U.S. District Judge Benjamin Settle’s decision to block release.
Elections Director Nick Handy’s best guess: “We probably will not get a full decision on Wednesday, but we might get an indication which direction the court is moving on this.”
Over at The Herald of Everett, foes of the new “everything but marriage” law say that if the ruling goes against them, further appeals are likely, possibly pushing the outcome past the election. Attorney Stephen Pidgeon tells reporter Jerry Cornfield, “I think it’s highly unlikely” the case would be resolved before balloting begins.
Brian Murphy of the pro-release group called WhoSigned.org says he will post names and addresses of the 138,000 people who signed the petitions if he gets the green light. The state does not release or post the information on the Internet, but responds to public-records requests.
R-71 asks voters to approve or reject the domestic partnership legislation that passed in April, Senate Bill 5688. The bill has been on hold pending the election.
13 thoughts on “R-71 signature battle heads to federal appeals judges”
A development late Tuesday is that initiative sponsor Tim Eyman and his partners in Voters Want More Choices have sued the Secretary in Thurston County Superior Court seeking to block the scheduled release of petitions for 11 initiatives over the past decade, most of them Eyman’s measures. Lobbyist-consultant Bryan Wahl of Mountlake Terrace has filed public records requests for I-722 (property tax limits) and I-745 (transportation funding) from 2000, I-747 (property tax cap) from 2001, I-776 (car tabs) from 2002, I-900 (performance audits) and I-912 (gas tax) from 2005, I-917 (car tabs) and I-920 (estate taxes) from 2006, I-960 (tax limits) from 2007, I-985 (transportation) in 2008 and I-1033 (revenue limits) from this year. Wahl has already paid over $1,500 for copies of the records and is expected to pick them up next Monday. Under the state’s policy of treating initiative and referendum petitions as releasable public records, petitions for eight initiatives have been released in recent years, most recently for Eyman’s I-1033.
The case has been assigned to Judge Richard Hicks and a telephone conference call is scheduled for 2:30 p.m. on Wednesday to consider the request for a temporary restraining order. By then, all parties may know what the 9th Circuit has decided on the R-71 case.
Judge Hicks decided to go with a live hearing — it will not be by phone.
The complaint and supporting documentation has been emailed to David Ammons and hopefully he will provide a link to it.
The Eyman lawsuit actually asks the court to go beyond blocking release of the petition sheets requested by Wahl, requesting Hicks to “enjoin the defendant from disseminating any petitions with the names, addresses and signatures of petitioners.” Eyman, in a complaint submitted by Olympia attorney Shawn Timothy Newman, state director for the national Initiative & Referendum Institute, asks the judge to order that taxpayers reimburse “costs and reasonable attorney’s fees.”
will the Secretary of State post the complaint for citizens to read for themselves?
Here’s part of what we sent to everyone this morning:
RE: Today’s TRO lawsuit seeks to restore WA’s 95 year policy of privacy — every other Secretary of State protected citizens rights — Sam Reed won’t
LIVE HEARING TODAY AT 2:30 PM (ORIGINALLY IT WAS BY PHONE BUT JUDGE DECIDED ON A LIVE HEARING INSTEAD), THURSTON COUNTY SUPERIOR COURT BEFORE JUDGE RICHARD HICKS, WE’RE ASKING FOR A TRO TO PROTECT THE PRIVACY OF 3 MILLION CITIZENS, WE’RE NOT ABLE TO ATTEND BUT ARE AVAILABLE BY PHONE (CELL: 509-991-5295), ATTORNEY SHAWN NEWMAN PREPARED THE ATTACHED COMPLAINT, HE INCLUDED OUR 3 DECLARATIONS, AND WILL ARGUE OUR CASE
From 1912 until 2006, citizens exercising their political free speech rights by affixing their names, signatures, and home addresses on ballot measure petitions in Washington were protected. Every Secretary of State, other than this one, protected citizens’ privacy.
In 1973, Secretary of State Lud Kramer was sued by a state senator for refusing to turn over the names, signatures, and home addresses of citizens who signed petitions to cap politicians’ pay (Chaney v Kramer). SOS Kramer made clear the office’s longstanding practice, supported by a 1938 & 1956 Attorneys General opinion, was to not turn them over — “It has been my policy not to release the names of citizens signing initiative or referendum petitions. … the release of these signatures has no legal value, but could have deep political ramifications to those signing. I will not violate public trust.”. He went further by stating that the Public Records Act I-276, passed the previous year, required him to redact that personal information (As OSOS official Don Whiting wrote to the state senator: “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”).
Two AG opinions, a Thurston judge, a federal judge, every Secretary of State, they all agree — protect citizens privacy. But according to Sam Reed, all of them are wrong and only he is right.
Sam Reed said he will not go back to his office’s previous privacy policy EVEN IF THE FEDERAL COURTS TELL HIM THAT HE’S VIOLATING THE U.S. CONSTITUTION. We asked him if he loses in federal court, will he change his policy — he said no.
Today’s lawsuit asks the state court to try to rein him in.
Our complaint and supporting documents are attached. He’s violating the U.S. Constitution (chilling of speech), the Washington state Constitution (government laws, rules, and policies can only facilitate the initiative process, this frustrates it) and various state laws that protect citizens’ privacy.
At the bargain price of $1500, Secretary Reed is selling Bryan Wahl, a for-profit consultant and powerful lobbyist, over three million names, signatures, and home addresses of citizens who’ve signed 11 tax initiatives since 2000. Under Sam Reed’s anything-goes policy, commercial use and re-selling of the list, in whole or in part, is not prohibited. Sign a property tax initiative and your name gets sold to real estate agents, sign a no-new-gas-tax initiative, get hit up for a Chevron credit card, sign a lower-car-tab initiative, receive a phone call from your local car dealer. Unless Judge Hicks grants a temporary restraining order, millions of Washingtonian’s very personal identifiers will be sold on the open market. These digital copies of our signatures will then be copied and sold and resold over and over again all over the world. Secretary Reed is facilitating commercial exploitation and identity theft.
Tim Eyman —- you frustrate me to no end. If you or I have to sign in and have our names part of the bill reports to testify in the Legislature to influence a bill then by is the signing of a petition any different. I’ll give you that when testifying in Olympia that only the name (not the address, etc) is reported in the bill report. So why shouldn’t at least just the names be released?
Both testifying in Olympia and signing a petition are the people’s reserved rights to influence the legislative process. I genuinely don’t understand your argument. Please try to explain the merits of why at least the names should not be released. And because of what I just outlined I expect you not to base your entire argument on the chilling effect of free speech —– because then that chilling effect would require anonymous testimony at the Legislature and you would also need to argue that TVW’s airing of citizen’s testimonies has a chilling effect and should stop. I need something more from you than this. Or I need you to be going after anonymizing the legislative citizen testifying process too.
It is upsetting to me as it should be to every LGBT person and supporter of Equal Rights for all that Washington State had to go through all of this in the first place. I certainly understand the seriousness of a TRO especially if it’s intent were sincere, which in this case I do not believe it was anything more than a campaign ploy. That being said, KnowThyNeighbor and the publishing of names of signers of petitions were an important part of our campaign in Massachusetts for the fight to protect same-sex marriage.
This delay of public record accessibility has taken that bit of grassroots and strategic organizing away from LGBT people. When an initiative process is used to take away rights from a minority, that minority must mount an expensive campaign, generating support of the majority in just a few months to ensure but most likely fail to garner the support of the majority. In the case of Ref 71, the LGBT community is put at a huge disadvantage. The ability of posting names, possibly getting to the bottom of alleged fraud, misinformation or confusion, as well as generating dialogue between grassroots and the likely voters are some of the few things we are afforded legally to do.
It is a shame that this was also taken from us.
@ Tim Eyman, it’s interesting that the Massachusetts Secretary of State went on record back in 2005 to say that name posting by KnowThyNeighbor.org was “legal and the American way.” His predecessor went on record to say that if the government does not keep up to date with how information is transferred ie. provide internet access to public records, it is essentially standing in the way of public access to such records.
But I know, you are saying that Massachusetts is not Washington. So what about the Washington State GOP and the RNC. The Republicans use data such as initiative petition information for its Voter Vault. All this information goes into a database available for access to the grassroots and tops in the GOP. So voters get calls on 72 hour get ou the vote campaigns and literature and phone calls based on their signing of initiative petitions among other things. Public information is for the public, if it is used legally and civilly, you cannot fight it just because you don’t like who has it.
to Tim Eyman– Our policy of disclosure is based on advice, oral not a formal AGO, that the voter-approved disclosure and public records act requires release of petitions upon receipt of a public records request. Neither the initiative itself nor in the almost 40 subsequent years of legislating and initiative-writing has ever carved out an exemption for petitions. As you probably know, there are now over 200 exemptions from disclosure, so many that the Legislature has created a panel to try to remove some of the exemptions. The privacy language that critics sometimes cite does not specifically cover this situation, in our view. Previous administrations have a different reading, but again, if the Legislature or voters disagreed with the new policy, we didn’t hear a peep. We have released petitions for 8 measures in recent years, apparently without incident. As the AG has said, misuse or abuse of these public records (including the potential release of R-71) has not been demonstrated and is speculative at this point.
The AGOs you cite are pre-Initiative 276. And despite your portrayal of this agency needing “reining in,” we are following the latest legal advice we have from counsel, and certainly will adhere to the guidance that the courts and the Legislature provide. We would expect any legal rulings to reconcile any differences between the federal courts and the state courts.
Your comment about Reed “selling” petitions is offensive. Our public records person collects the actual cost of producing the DVD or other format requested by the citizen. We are not authorized to ask what purpose you or anyone else makes of the petition signatures you have. I-276 does have a general prohibition against lists being used for commercial purposes.
Finally, lest your comments obscure it, this office has a longtime record of supporting the initiative and referendum process. The Constitution expects us to “facilitate” its use. There have been occasional disagreements over things like using paid signature-gatherers and other legislation, but overall, we support the initiative process and the people’s right of “direct democracy.” Earlier this year, when some activists announced plans to post names and addresses on the Internet, this office strongly spoke out against any use of legitimate public records to harass or intimidate anyone. People deserve the right to participate in this constitutionally guaranteed form of citizen-legislating without duress. We want to see these difficult issues debated in the public square with civility.
Thank God for Judge Hicks !!!
To Dave Ammons, at WhoSigned.org and KnowThyNeighbor.org we ALSO stand fully behind the right of the electorate to participate in the process without being harassed or intimidated. As in the nearly 1 million names posted on KnowThyNeighbor and the absence of harassment or intimidation indicates as history speaks for itslelf. I hope that you aren’t suggesting that a dialogue between those who would have their rights stripped from them by the said petition process and those whom they know who have participated in this process would at all intrinsically constitute “duress.”
But Dave, you neglect to acknowledge that in 1973, Secretary of State Lud Kramer stated that the Public Records Act I-276, passed the previous year, REQUIRED HIM to redact that personal information (As OSOS official Don Whiting wrote to the state senator: “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”).
Two AG opinions, two Thurston county judges, a federal judge all say don’t violate privacy.
But Tim – you neglected to take the advice of not counting your chickens before they hatched. The 9th circuit just rained on your parade.
So Eyman has 3 million signatures from previous petitions, and wants to keep his petitions private. Does he not want anyone checking to see if their name is on one of his petitions even though they never signed it? Since the SoS office is looking only to accept signatures, the only recourse the public has to make sure someone is not copying signatures from previous petitions is to check for themselves.
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