On April 28, 2010, Attorney General Rob McKenna argued Doe v. Reed before the US Supreme Court, asking the Court to uphold a Ninth Circuit ruling, supporting the constitutionality of the state's public disclosure law and allowing the release of the names and addresses of petitioners who signed Referendum 71. R-71 placed the state's expanded domestic partnership law on the November 2009 ballot. Lower courts blocked the release of the signatures, ruling that the state's disclosure law violated petitioners' rights to anonymous political speech. In an 8-1 decision in early June, the US Supreme Court upheld the constitutionality of Washington’s voter-approved public records law, retaining the public’s ability to obtain copies of petitions signed in favor of placing initiatives and referenda on the ballot. The court’s ruling addressed the broader claim brought forward on behalf of those who signed Ref. 71 that the state’s public records act is unconstitutional as applied to all petitions for referenda.
The more narrow question of whether release of the Ref. 71 petitions is unconstitutional because of possible threats or harassment was not before the court and remains to be heard in lower court.
Motions have been noted for July 22 in US District Court for the Western District in Tacoma. If Judge Benjamin Settle does not grant summary judgment to either parties, the case will go to a five-day trial starting Sept. 27.
In 2009, the Legislature enacted Engrossed Second Substitute Senate Bill (E2SSB) 5688, which expanded the rights of Washington’s state’s same-sex and senior domestic partners. Also known as the “everything but marriage” law, it was scheduled to go into effect on July 25, 2009.
In May 2009, Protect Marriage Washington began gathering signatures for a referendum election on the “everything but marriage” law (Ref. 71). On July 25, 2009, they submitted more than 122,000 signatures -- enough to qualify for the ballot.
Washington Families Standing Together opposed placing Ref. 71 on the ballot and filed suit to prevent the Secretary of State from certifying the measure to the ballot. In the course of the challenge, the group filed a public records request for all the Ref. 71 petitions to review for legal errors. Others, including the Washington Coalition for Open Government, also requested copies of the petitions.
During the signature-gathering phase, WhoSigned.org announced it would also file a public records request and post the information about who signed the referendum on the Internet.
Right to Initiative and Referendum
Under the Washington state Constitution, Article II, Section 1, Washington voters are empowered to substitute themselves for the Legislature by referendum or initiative. They may:
- Send voter-authored proposed laws to the Legislature as an initiative;
- Directly legislate by qualifying law-making initiatives to the people; and
- As voters did with Referendum 71, they may subject legislatively adopted laws to a public vote through the referendum process.
Public Disclosure Law
The Washington public records act emphasizes openness and transparency in government, meaning that all documents are public unless specifically exempted by the Legislature. In this case, there is no exemption in the Public Records Act preventing the release of the names of the people who sign referenda or initiatives.
- On July 28, 2009, Protect Marriage Washington, the sponsors of Referendum 71, who sought to block the state’s “everything but marriage” domestic partnership expansion, took Secretary of State Sam Reed and the state Elections Division to court to prevent them from complying with the public records act and to block release of the names of people who signed the petitions.
- U.S. District Judge Benjamin Settle granted the request for a temporary restraining order on July 29 in Tacoma. Due to the short time frame between receiving the request and the hearing, the state did not resist the request, pending a full hearing on the merits of the case.
- Judge Settle heard arguments in federal district court on Sept. 3, and at that time granted intervener status to the Washington Coalition for Open Government and Washington Families Standing Together, supporters of the domestic partnership expansion.
- On Sept. 10, 2009, Judge Settle granted a preliminary injunction, blocking the release of the names and addresses of those who signed Referendum 71.
- On Sept. 11, 2009, the state announced it would file an appeal with the 9th Circuit Court of Appeals, requesting a stay of the injunction and expedited review of the case.
- On Sept. 22, the Ninth Circuit Court of Appeals granted the state’s request to expedite the state’s appeal of the preliminary injunction.
- The 9th Circuit heard oral argument at 11 a.m. on Oct. 14, 2009, at The Richard H. Chambers Courthouse in Pasadena, Calif.
- On Oct.15, the Ninth Circuit Court of Appeals reversed and granted an immediate stay of a lower court’s preliminary injunction blocking the release of Referendum 71 petitions containing the names and addresses of those who signed the measure—meaning the petitions could be released.
- On Oct. 16, Protect Marriage Washington asked US Supreme Court Justice Anthony Kennedy to vacate the Ninth Circuit’s stay (and block the release of the petitions).
- On Oct. 20, the US Supreme Court continued the District Court injunction (blocking release of the petitions) pending the timely filing and disposition of a petition for certiorari (petition for review) with the Supreme Court.
- On Jan. 15, 2010, the US Supreme Court granted review.
- The US Supreme Court hearing was held at 10 a.m. on April 28.
Amicus Briefs for Reed
Amicus Briefs for Doe
Amicus brief in support of neither
Recent cases argued by the Attorney General’s Office – all decided in the state's favor
- Burton v. Stewart, 549 U.S. 147 (2007) (Deputy Solicitor General Bill Collins argued)
- Davenport v. Washington Educ. Ass'n., 551 U.S. 177 ( 2007) (Attorney General Rob McKenna argued)
- Uttecht v. Brown, 551 U.S. 1 (2007) (Senior Counsel John Samson argued)
- U.S. v. Atlantic Research Corp., 551 U.S. 128 (2007) (Deputy Solicitor General Jay Geck argued as amicus)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (Attorney General Rob McKenna argued)
- Waddington v. Sarausad, 129 S.Ct. 823 (2009) (Deputy Solicitor General Bill Collins argued)