OLYMPIA — A popular Washington law has collided in court with the Constitution to figure out where the public’s right to know ends and an individual’s freedom of speech begins.
A federal judge ruled last week the state cannot publicly disclose names of those who signed petitions for Referendum 71 because doing so would violate their First Amendment right to participate anonymously in the political process.
This week, state Attorney General Rob McKenna intends to ask the 9th Circuit Court of Appeals to overturn the preliminary injunction issued by U.S. District Court Judge Benjamin Settle.
“We believe the names of those who sign referenda and initiatives are public record, and the state has a history of releasing this information,” he said.
The focus of the fight is on the Public Records Act established by voter initiative in 1972. That law, passed by 72 percent, defines public records and require most be made available unless otherwise exempted by the law or Legislature.
Under this law, signed petitions for initiatives and referendums have been treated as public records that are not exempt from disclosure. Weeks ago, the National Education Association used the law to obtain the names of the 300,000 people who signed petitions for Initiative 1033 appearing on the November ballot.
Protect Marriage Washington, sponsors of Referendum 71, challenged this practice after some of its petition signers said they had received harassing phone calls and death threats from political opponents.
They contend the state constitution protects those engaged in the political activity of signing petitions from being identified in this manner.
Settle, who came to the same conclusion, also noted the state’s law and constitution are silent on handling of the personal information.
“Washington’s Constitution states only that ‘all such petitions shall be filed with the secretary of state,’ and it does not state that the information contained on the petition must also be considered public information,” he wrote in his decision.
And, he added, the state’s attorneys did not show where the law “specifically addresses whether personally identifying information provided by the signers of referendum petitions may be publicly disclosed.”
It may fall to the appellate court to fill in the blanks, said Stephen Pidgeon, attorney for Protect Marriage Washington.
“If the court decision is sustained, the Legislature will have the burden to tailor the public disclosure law to provide some protections of the names gathered on referenda and initiatives,” he said.
“It’s going to be a minor change that should not defeat the state’s ability to verify the names” as part of signature-checking on the measures, he said.
Any alterations would defeat the purpose and intent of the original law, said Brian Zylstra, spokesman for Secretary of State Sam Reed.
“We think Judge Settle’s decision is a step away from open government,” he said. When people sign a referendum or initiative petition, they are trying to change state law. We believe that changing state law should be open to public view.”
Zylstra said if Settle’s ruling stands, “We are very concerned that it could set a dangerous precedent that sponsors of future initiatives or referenda might use to prevent their petition sheets from being made available to the public, even though they are government documents.”
Reporter Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com
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