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Sunday, September 13, 2009

Courts - "State of Washington federal judge shields signatures in gay-rights referendum"

Jesse McKinley reports today in the NY Times in a story that includes the following:

SAN FRANCISCO — Come November, Washington State voters will be the latest electorate to grapple with how much recognition to give gay couples when they take up Referendum 71, which will either affirm or reject a recently passed domestic-partnership law that affords the couples almost all the same rights as married ones.

But whether anyone will know who signed the petitions putting the measure on the ballot is an open question. A federal district judge in Tacoma ruled on Thursday that state officials were not allowed to reveal the names of some 120,000 Washington residents who supported it.

The ruling by the judge, Benjamin H. Settle, granted a preliminary injunction against the secretary of state banning release of the names, which had been requested under a state public records law. In his decision, Judge Settle said that the signing of a petition was essentially an act of anonymous — and protected — political speech, and that the identity of who signed a petition “is irrelevant to the voter.”

The case is the latest filed by a conservative lawyer, James Bopp Jr., seeking to stop the publicizing of the names of those who oppose same-sex marriage and other gay rights initiatives. In January, Mr. Bopp argued — unsuccessfully — for a preliminary injunction protecting the names of the donors behind Proposition 8, which outlawed gay marriage in California. The donors names were released, though Mr. Bopp continues his legal challenge.

Judge Settle’s decision was criticized by both the Washington secretary of state, Sam Reed, and the attorney general, Rob McKenna, who called it an affront to the state’s public record law and the idea of open government.

“In all states with initiative or referendum systems, the ballot measure represents the people substituting themselves for legislatures,” said Mr. McKenna, who said he planned to appeal to the United States Court of Appeals for the Ninth Circuit, in San Francisco. “We don’t conduct legislative process in secret, and it doesn’t make sense to conduct this legislative process in secret either.”

Mr. Bopp said his intention was not to cloud the law-making process but to protect petition signers from an effort by “the gay rights lobby” to “harass and intimidate supporters of traditional marriage.”

“We’re not talking about removing the transparency of government,” Mr. Bopp said. “We’re talking about whether citizens should be outed in their participation in our democracy."

Janet I. Tu has this story Sept. 10th in the Seattle Times. Some quotes:
Settle's decision alarmed state officials and some public-records advocates, who said that the judge misinterpreted Supreme Court precedent and that the decision could eviscerate open government laws.

The Washington state attorney general's office says it will appeal the decision.

R-71 asks voters whether to approve or reject a recently passed state law granting marriage-like benefits to same-sex couples who are registered domestic partners. The law also applies to heterosexual couples where one partner is at least 62.

Protect Marriage Washington, a consortium of religious conservative groups and individuals opposed to domestic-partner benefits, filed a lawsuit seeking to block release of the names of those who signed petitions to get R-71 onto the November ballot.

The secretary of state's office — the defendant in the case — has said it is obligated under the state Public Records Act to release the petitions to those who request them.

But Protect Marriage argued that the law "chills free speech ... particularly when it is reasonably probable that those exercising their First Amendment rights would be subjected to threats and harassment." * * *

In suggesting that people have a right to participate anonymously in the political process, the judge cited Supreme Court opinions that said Colorado could not force signature gatherers to wear identification badges, Ohio could not require that campaign literature bear the name and address of the person circulating that literature and California could not require "any handbill under any place under any circumstances" to bear the name of the person who prepared it.

All of those affirmed the right of people to remain anonymous in their dealings with the public — in effect, their right to speak from a soapbox without identifying themselves. But that doesn't mean people have a right to be anonymous in their dealings with the government, especially when they sign a petition seeking to put an initiative or referendum on the ballot, Earl-Hubbard said.

"The public has a right to know whether these are valid signatures," Earl-Hubbard said. "Are they living people? Are they dead people? Do they live in the right jurisdiction? I don't know how in the world you can test petitions if you can't see the names. It totally destroys the political process."

The 17-page opinion in John Doe #1 et al. v. Sam Reed, is available here, via the Seattle Times site.

The Terre Haute Trib-Star had this story August 31st headed "Terre Haute man receives Republican Lawyer of the Year Award." A quote from the story:

[James Bopp, Jr.] has participated in more than 100 election-related cases, including recounts, redistricting, and First Amendment challenges to state and federal campaign finance laws. He is one of the foremost lawyers in the field of campaign finance and election law and has been a leader in promoting the RNLA’s goal of ensuring elections are open, fair and honest.

Posted by Marcia Oddi on September 13, 2009 05:01 PM
Posted to Courts in general