R-71 Part Deux: Will high court take up disclosure ban?

R-71 Part Deux: Will high court take up disclosure ban?

The continuing court battle by foes of Referendum 71 to shield their petitions from public view stepped up a notch Friday with filing of papers formally outlining the reasons why they want the U.S. Supreme Court to hear their case and uphold a disclosure ban.


A 30-second recap: In September, U.S. District Court Judge Benjamin Settle in Tacoma agreed to Protect Marriage Washington’s request to block the Secretary of State from the scheduled release of over 9,000 R-71  petition sheets in response to public records requests.  In October, the 9th Circuit Court of Appeals overturned Settle and said the state could release the records. A state judge, acting in a parallel case brought by initiative activist Tim Eyman, froze release of all petitions while litigation was afoot.

Protect Marriage Washington asked the U.S. Supreme Court to put the 9th Circuit decision on hold while a request for a high court review was drafted. The justices said fine.  On Friday, the official paperwork was filed with all of their reasoning spelled out.

Attorney James Bopp Jr. of Terre Haute, Indiana, wrote that “In today’s `information age,’ courts cannot ignore the tremendous invasions of privacy that occur when the government compels disclosure and allows it to become part of the public record.”  He wrote that it could subject signers to “social ostracism and retaliation.”

The Attorney General’s response is due next month. Meanwhile, Secretary Reed issued this statement:

“We respect the right of Protect Marriage Washington to request the Supreme Court to hear an appeal from the 9th Circuit Court of Appeals decision that authorizes disclosure of petitions for their ballot measure, but we continue to ask the courts to honor the strong wishes of Washington state voters who adopted the state Public Records Act by a landslide 72 percent vote.

“Our view, and that of the Attorney General, is that initiative and referendum petitions clearly fall within the definition of public records and should be releasable. We believe that when voters sign petitions, they are in the public square acting as citizen-legislators, either proposing new laws through initiatives or passing judgment on actions of the state Legislature via the referendum process.

“Transparency in our public legislative process is essential.

“Despite what the attorneys opposing Referendum 71 have told the Supreme Court today, the act of petition-signing is not a private act requiring extraordinary protections, including repeal of a significant feature of open government. Just as with legislative bill sponsors, the people of Washington want to know who is responsible for measures that are being adopted or rejected via citizen-legislating. No one is compelled to sign a petition – it is a free choice for those who wish to enter the public square.

“We believe the 9th Circuit Court of Appeals got it right, in lifting a lower court ban on releasing petitions.  Our desire is for the Supreme Court to reject the request for review, and to allow that ruling to stand.

“Even as we firmly support the Public Records Act, we also remain committed to the proposition that all voters should feel they have free and unfettered access to the initiative and referendum process, without intimidation or harassment at any point. We support vigorous enforcement of our anti-harassment laws, and strongly urge citizens to be respectful and civil in expressing their differences on difficult issues.”

2 thoughts on “R-71 Part Deux: Will high court take up disclosure ban?

  1. If the Supreme Court rules that the signatures are private, then the way signatures are collected must change. Currently, I can see the names/addresses of all the signers before me on that page (and previous ones, for that matter.); no privacy there. If the signatures must be private, then solicitors for future referenda will have to get each signature individually: only one signature per page. It would make it much more difficult to get enough signatures for future referenda. Has anyone thought of that?

  2. Henry– One other thought is that it would be possible to redact the signature field on each page, if the Legislature authorized it. Shooting a fresh image of each page, sans signatures, would make it more expensive for future release. Currently, we are able to make inexpensive at-cost DVDs or other images from the master images that Archives makes.

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