1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT TACOMA

7 JOHN DOE #1, an individual; JOHN

8

DOE #2, an individual; and PROTECT MARRIAGE WASHINGTON,

9

Plaintiffs,

10

v.

11 SAM REED, in his official capacity as

12

Secretary of State of Washington; DEBRA GALARZA, in her official

13

capacity as Public Records Officer for the Secretary of State of Washington,

14

15

Defendants.

CASE NO. 09-5456BHS
ORDER GRANTING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

16

17

This matter comes before the court on Plaintiffs’ motion for temporary restraining

18 order and preliminary injunction. Dkt. 3.

19

I. BACKGROUND

20

On July 28, 2009, Plaintiffs filed a complaint. Dkt. 2. Plaintiffs seek to enjoin

21 Defendants from releasing copies of the Referendum 71 petition to any third party.

22 Specifically, Plaintiffs seek to prevent Defendants from releasing the names, addresses, and

23 other contact information of individuals who signed the petition. Plaintiffs contend that

24 release of this petition would result in a violation of Plaintiffs’ and others’ First Amendment

25 rights. See generally Dkt. 2 (Plaintiffs’ complaint).

26

On July 28, 2009, Plaintiffs also filed a motion for temporary restraining order and

27 preliminary injunction. Dkt. 3, see Fed. R. Civ. P. 65. On the same day, the Court held a

28

ORDER - 1

1 hearing and indicated that Plaintiffs needed to personally serve Defendants with the motion

2 and provide notice of the hearing which was reset for July 29, 2009 at 2:30 PM.

3

At the hearing held July 29, 2009, Plaintiffs provided a declaration of service and

4 indicated that Defendants did not intend to appear at the hearing. Dkt. 8.

5

II. DISCUSSION

6

To obtain preliminary injunctive relief, the moving party must show: (1) a likelihood

7 of success on the merits; (2) a likelihood of irreparable harm to the moving party in the

8 absence of preliminary relief; (3) a balance of equities tips in the favor of the moving party;

9 and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc.,

10 ___ U.S. ___, 129 S. Ct. 365, 374, 172 L. Ed.2d 249 (2008).

11

Having considered Plaintiffs’ motion, Defendants’ failure to appear or otherwise

12 object to Plaintiffs’ motion, and the remainder of the record herein, the Court concludes as

13 follows:

14

1. For purposes of deciding Plaintiffs’ motion for a temporary restraining order

15

only, Plaintiffs have pled a colorable First Amendment claim, and have

16

sufficiently demonstrated a reasonable likelihood of success on the merits.

17

2. Plaintiffs have demonstrated a reasonable likelihood of irreparable harm if

18

Defendants release the contact information of those individuals who signed the

19

Referendum 71 petition.

20

3. The balance of equities weighs in favor of Plaintiffs. Defendants and interested

21

third parties will not be unduly prejudiced by delaying the release of this

22

information until after this matter has been fully briefed, should Defendants

23

ultimately prevail on Plaintiffs’ motion for preliminary injunction.

24

4. A temporary restraining order is in the public interest. Plaintiffs’ complaint

25

raises constitutional issues potentially affecting over 100,000 voters.

26

27

28

ORDER - 2

1

5. Security pursuant to Rule 65(c) is waived. There is no evidence in the record

2

that Defendants will incur monetary damages as a result of delaying the release

3

of the petition.

4

With regard to Plaintiffs’ motion for a preliminary injunction, the Court sets the

5 following briefing schedule:

6

Defendants’ response is due August 14, 2009.

7

Plaintiffs’ reply is due August 21, 2009.

8

A hearing on this motion is set for September 3, 2009 at 2:30 PM. Unless otherwise

9 ordered, the temporary restraining order will expire on September 3, 2009.

10

Defendants may apply to the Court to modify this schedule to extend or shorten these

11 dates, including the expiration date of the temporary restraining order.

12

III. ORDER

13

Therefore, it is hereby

14

ORDERED that Plaintiffs’ motion for temporary restraining order is GRANTED,

15 and Defendants are restrained from releasing the names, addresses, or other contact

16 information of those individuals who signed the Referendum 71 petition. The temporary

17 restraining order shall expire on September 3, 2009, or as otherwise ordered by the Court.

18

DATED this 29th day of July, 2009.

19 20

A

21

BENJAMIN H. SETTLE

United States District Judge

22

23

24

25

26

27

28

ORDER - 3

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

AT TACOMA

10 JOHN DOE #1, an individual; JOHN

11

DOE #2, an individual; and PROTECT MARRIAGE WASHINGTON,

12

Plaintiffs,

13

v.

14 SAM REED, in his official capacity as

15

Secretary of State of Washington; DEBRA GALARZA, in her official

16

capacity as Public Records Officer for the Secretary of State of Washington,

17

18

Defendants.

CASE NO. C09-5456BHS
ORDER AMENDING AND EXTENDING THE COURT'S TRO

19

This matter comes before the Court on the Court's Order Granting Plaintiffs'

20 Motion for TRO (Dkt. 9).

21

On July 28,2009, Plaintiffs John Doe #1, John Doe, and Protect Marriage

22 Washington filed a complaint against Defendants Sam Reed, in his official capacity as 23 Secretary of State of Washington, and Debra Galarza, in her official capacity as Public

24 Records Officer for the Secretary of State of Washington. Dkt. 2. Plaintiffs allege that 25 the Washington Public Records Act, Wash. Rev. Code § 42.56.001, et seq., is 26 unconstitutional as it applies to the public release of referenda petitions submitted to the 27 Washington Secretary of State. Id. at ~~ 61-63. Plaintiffs request injunctive relief against

28

ORDER-l

1 Defendants from releasing the names, addresses, and other contact information of

2 individuals who signed the petition. Id.

3

On July 28, 2009, Plaintiffs also filed a motion for temporary restraining order and

4 preliminary injunction. Dkt. 3. On the same day, the Court held a hearing and indicated

5 that Plaintiffs needed to personally serve Defendants with the motion and provide notice

6 of the hearing which was reset for July 29, 2009 at 2:30 PM. Dkt. I.

7

At the hearing held July 29, 2009, Plaintiffs provided a declaration of service and

8 indicated that Defendants did not intend to appear at the hearing. Dkt. 8. After the

9 hearing, the Court issued an Order Granting Plaintiffs' Motion for TRO and enjoined

10 Defendants as follows:

11

Defendants are restrained from releasing the names, addresses, or other

contact information of those individuals who signed the Referendum 71

12

petition. The temporary restraining order shall expire on September 3, 2009,

or as otherwise ordered by the Court.

13

Dkt.9.

14

On August 28,2009, Washington Families Standing Together ("WAFST") filed a

15

Motion to Intervene. Dkt.43. WAFST asserts that it "is examining claims through which

16

it and its individual members might challenge non-matching signatures on referendum

17

petitions" pursuant to RCW 29A.72.240. !d. at I. WAFST claims that it

18

has been precluded by the Court's Temporary Restraining Order from

19

receiving those signatures, and in turn, mvestigating additional signature

mismatches as a basis for a challenge under RCW 29A.72.240.

20

Id. at 1-2. WAFST correctly notes that "[t]his statute is neither mentioned nor challenged

21

in the current briefs." Id. at 2. WAFST submitted a Proposed Protective Order

22

requesting that the Court grant an exception to the temporary restraining order so that it

23

may pursue an action under RCW 29A.72.240.

24

Washington's referendum process and the provisions ofRCW 29A.72.240 are

25

beyond the scope of Plaintiffs' complaint as Plaintiffs seek only to enjoin Defendants'

26

compliance with Washington's Public Disclosure Act, RCW 42.56.001 et. seq. See Dkt.

27

2. Therefore, the Court will amend the current temporary restraining order as follows:

28

ORDER-2

1

1. Defendants are restrained from releasing the names, addresses, or

other contact information ofthose individuals who signed the Referendum 71

2

petition. This restraint shall not interfere with Washington's referendum process or

the provisions ofRCW 29A.72.240;

3

2. Intervenor WASFT, including its attorneys and personnel, may

4

access the signatures submitted in support of Referendum 71 through disclosure by

the Secretary of State for the sole purpose of examining the petitions and

5

potentially pursuing an action under RCW 29A.72.240, but may not publicly

disclose the signatures or the identity ofthe signatories during the pendency of this

6

Order or unless such disclosure is authorized by the Court's order on Plaintiffs'

motion for preliminary injunction; and,

7

3. This order does not enjoin any action by a Washington State Court

8

pursuant to RCW Chapter 29A.72.

9

Finally, the Court will extend the temporary restraining order to consider the oral

10

arguments of counsel and finalize a written opinion on the motion for a preliminary

11

injunction. Therefore, the temporary restraining order will dissolve upon the earliest of

12

September 11,2009, the issuance of a written decision on Plaintiffs' motion for a

13

preliminary injunction, or further order ofthe Court.

14

IT IS SO ORDERED.

15

DAlEDthis

r?--,-'_

16

17

18
19 20 21 22 23

24 25

26

27

28

ORDER-3

 
 1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT TACOMA

7 JOHN DOE #1, an individual; JOHN

8

DOE #2, an individual; and PROTECT MARRIAGE WASHINGTON,

9

Plaintiffs,

10

v.

11 SAM REED, in his official capacity as

12

Secretary of State of Washington; and DEBRA GALARZA, in her official

13

capacity as Public Records Officer for the Secretary of State of Washington,

14

15

Defendants.

CASE NO. C09-5456BHS
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

16

17

This matter comes before the Court on the Plaintiffs’ motion for preliminary

18 injunction (Dkt. 3). The Court has considered the pleadings filed in support of and in

19 opposition to the motion and the remainder of the file, and hereby grants the motion for

20 the reasons stated herein.

21

I. BACKGROUND

22 A. PROCEDURAL BACKGROUND

23

On July 28, 2009, Plaintiffs filed a complaint and motion for temporary restraining

24 order and preliminary injunction, seeking to enjoin the Secretary of State of Washington

25 (“Secretary of State”) from any public release of documents showing the names and

26 contact information of those individuals who signed petitions in support of Referendum

27

28

ORDER - 1

1 Measure No. 71 (“R-71”). Dkts. 2 (Plaintiffs’ Complaint) and 3 (Motion for Temporary

2 Restraining Order and Preliminary Injunction).

3

In Count I of the complaint, Plaintiffs allege that the Washington Public Records

4 Act, RCW 42.56.001, violates the First Amendment as applied to referendum petitions

5 because the act is not narrowly tailored to serve a compelling governmental interest. Dkt.

6 2 at 10. In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as

7 applied to R-71 because “there is a reasonable probability that the signatories of the R-71

8 petition will be subjected to threats, harassment, and reprisals.” Id.

9

On July 29, 2009, the Court granted Plaintiffs’ motion for temporary restraining

10 order, scheduled a preliminary injunction hearing for September 3, 2009, and set a

11 briefing schedule. Dkt. 9. On August 14, 2009, Defendants filed a response. Dkt. 25. On

12 August 21, 2009, Plaintiffs filed a reply. Dkt. 31. The Court held a preliminary injunction

13 hearing on September 3, 2009. Dkt. 62.

14

At the hearing, the Court entered the following rulings: (a) Pursuant to Federal

15 Rule of Civil Procedure 24(b) (permissive intervention), the Court granted the motions to

16 intervene filed by Washington Families Standing Together (“WFST”) and Washington

17 Coalition for Open Government (“WCOG”); (b) the Court denied the motion to intervene

18 filed by Mr. Arthur West because no motion was on the docket; and (c) the Court denied

19 Plaintiffs’ motion to consolidate the preliminary injunction hearing with a trial on the

20 merits. Dkt. 62.

21 B. WASHINGTON’S REFERENDUM PROCESS

22

In Washington, while legislative authority is vested in the state legislature, the

23 people reserve to themselves the power to reject any bill or law through the referendum 24 process. Wash. Const., art. II, § 1 and 1(b).1 A referendum petition against any bill passed

25 by the legislature must be filed with the Secretary of State within 90 days after

26

27 1 The state constitution provides some exceptions to the people’s power to reject laws
28 passed by the legislature that do not apply in this case.

ORDER - 2

1 adjournment of the legislative session at which the bill was enacted. Id., § 1(d); RCW

2 29A.72.160; see also WAC 434-379-005 (filing of proposed referendum with Secretary

3 of State).

4

In order to initiate the referendum process, the state constitution requires the filing

5 of petitions with the Secretary of State that contain the valid signatures of Washington

6 registered voters in a number equal to four percent of the votes cast for the Office of

7 Governor at the last gubernatorial election preceding the filing of the text of the

8 referendum measure with the Secretary of State. Wash. Const., art II, § 1(b); see also

9 RCW 29A.72.150. Referendum petition sheets must include a place for each signer to

10 sign and print his or her name, and the address, city, and county at which he or she is

11 registered to vote. RCW 29A.72.130.

12

Once the referendum petition has been filed, the Secretary of State verifies and

13 canvasses the names of the legal voters on the petition. RCW 29A.72.230. The signature

14 on a petition sheet must be matched to the signature on file in state voter registration

15 records. WAC 434-379-020. In order to determine whether a petition is valid, the

16 Secretary of State may employ statistical sampling techniques. RCW 29A.72.230; WAC

17 434-379-010. In addition, under state statute,

18

[t]he verification and canvass of signatures on the petition may be observed

by persons representing the advocates and opponents of the proposed

19

measure so long as they make no record of the names, addresses, or other

information on the petitions or related records during the verification

20

process except upon the order of the superior court of Thurston county. The

secretary of state may limit the number of observers to not less than two on

21

each side, if in his or her opinion, a greater number would cause undue

delay or disruption of the verification process. Any such limitation shall

22

apply equally to both sides.

23 Id.

24

Upon completion of this verification and canvassing process, the Secretary of State

25 must issue a determination as to whether a referendum petition does or does not contain

26 the requisite number of valid signatures. See RCW 29A.72.240. Any citizen dissatisfied

27 with the Secretary of State’s determination may file an action in state superior court for a

28 citation requiring the Secretary of State to submit the petition to the state court “for

ORDER - 3

1 examination, and for a writ of mandate compelling the certification of the measure and

2 petition, or for an injunction to prevent the certification thereof to the legislature, as the

3 case may be.” Id. Within five days of the state superior court’s decision, the party may

4 seek review by the Washington Supreme Court. Id.

5

If it is ultimately determined that a petition contains the requisite number of valid

6 signatures, the referendum is submitted for vote at the next general election. Wash.

7 Const., art. II, § 1(d).

8 C. WASHINGTON’S PUBLIC RECORDS ACT

9

Washington’s Public Records Act generally makes all public records available for

10 public inspection and copying. RCW 42.56.070.2 The term “public record” is defined as

11 “any writing containing information relating to the conduct of government or the

12 performance of any governmental or proprietary function prepared, owned, used or

13 retained by any state or local agency.” RCW 42.56.010(2). The Public Records Act

14 provides that “[i]n the event of conflict between the provisions of [the Public Records

15 Act] and any other act, the provisions of [the Public Records Act] shall govern.” RCW

16 42.56.030. Exemptions to the Public Records Act must either be included in the act itself,

17 or clearly expressed in another statute. RCW 42.56.070(1).

18

The Public Records Act also contains the following language:

19

The people of this state do not yield their sovereignty to the agencies that

serve them. The people, in delegating authority, do not give their public

20

servants the right to decide what is good for the people to know and what is

not good for them to know. The people insist on remaining informed so that

21

they may maintain control over the instruments that they have created. This

chapter shall be liberally construed and its exemptions narrowly construed

22

to promote this public policy and to assure that the public interest will be

fully protected.

23

RCW 42.56.030.

24

25

26

27 2 While the Public Records Act exempts specific categories of records from public
28 disclosure, the parties appear to agree that no exemption applies in this case.

ORDER - 4

1 D. OTHER RELEVANT STATE LAW

2

Under RCW 29A.08.720(2), “poll books, precinct lists, and current lists of

3 registered voters are public records and must be made available for public inspection and

4 copying under such reasonable rules and regulations as the county auditor or secretary of 5 state may prescribe.”3 State law provides certain “fundamental rights” for voters,

6 including “the right of absolute secrecy of the vote.” RCW 29A.04.206(2). In addition,

7 “no voter may be required to disclose political faith or adherence in order to vote.” Id.

8

The parties have not identified any Washington State law that specifically

9 addresses whether personally identifying information provided by the signers of

10 referendum petitions may be publicly disclosed.

11 E. REFERENDUM MEASURE NO. 71

12

On May 18, 2009, the Washington Governor signed Engrossed Second Substitute

13 Senate Bill 5688 (“SB 5688”). This bill expands the rights, responsibilities, and

14 obligations accorded state-registered domestic partners to be equivalent to those of

15 married spouses.

16

On or about May 4, 2009, Larry Stickney, the Campaign Manager for Protect

17 Marriage Washington (“Protect Marriage”), filed notice with the Secretary of State of his

18 intent to circulate a referendum petition on SB 5688. Dkt. 2 at 4 (Verified Complaint).

19 The proposed referendum was assigned the title R-71 by the Secretary of State. If referred

20 to the next general election ballot, R-71 would ask voters to either accept or reject SB

21 5688.

22

On May 13, 2009, Protect Marriage was organized as a state political action

23 committee pursuant to RCW 42.17.040. Id. According to Plaintiffs’ complaint, Protect

24 Marriage’s major purpose is to collect the requisite number of signatures necessary to

25 place R-71 on the ballot and to encourage Washington voters to reject SB 5688. Id.

26

On July 25, 2009, Protect Marriage submitted a petition containing over 138,500

27

28

3It is unclear whether records of voter signatures are available to the public.

ORDER - 5

1 signatures to the Secretary of State for verification and canvassing. Id. at 7. According to

2 Nick Handy, Director of Elections for the Secretary of State, the petition sheets were

3 delivered in an “open, public forum,” with R-71 supporters and opponents in attendance.

4 Dkt. 26 at 2 (Declaration of Nick Handy). The Elections Division began the process of

5 counting and verifying individual signatures shortly after the petition sheets were filed.

6 Id. at 3.

7

The petition appears to conform with Washington state’s formatting requirements

8 set out in RCW 29A.72.130 and contains the following language:

9

To the Honorable Sam Reed, Secretary of State of the State of Washington:

10

We, the undersigned citizens and legal voters of the State of

Washington, respectfully order and direct that Referendum Measure No. 71

11

. . . shall be referred to the people for their approval or rejection at the

regular . . . election to be held on the 3rd day of November, 2009; and each

12

of us for himself or herself says: I have personally received this petition, I

am a legal voter for the State of Washington, in the city (or town) and

13

county written after my name, my residence address is correctly stated, and

I have knowingly signed this petition only once.

14

Dkt. 27 at 2 (Declaration of Catherine S. Blinn); id., 3-12 (Exhibit A) (R-71 petition).

15

In addition, as required by RCW 29A.72.140, the petition contains a warning that:

16

“Every person who signs this petition with any other than his or her true name, knowingly

17

signs more than one of these petitions, signs this petition when he or she is not a legal

18

voter, or makes any false statement on this petition may be punished by a fine or

19

imprisonment or both.” Id.

20

The petition included a table, which requested the following information: (1) the

21

printed name of the registered voter, (2) the signature of the voter, (3) the voter’s home

22

address, (4) the voter’s city and county, and (5) the voter’s email address. Dkt. 27 at 4.

23

The petition indicated that inclusion of the voter’s email address was “optional.” Id.

24

As of August 20, 2009, the Secretary of State has received public record requests

25

of the Referendum 71 petition from the following individuals or entities: (1) Brian

26

Murphy of WhoSigned.org (Dkt. 23 at 10); (2) Toby Nixon, President of the Washington

27

Coalition for Open Government (id. at 12); (3) Arthur West (id. at 14); (4) Brian Spencer,

28

ORDER - 6

1 on behalf of Desire Enterprises (Dkt. 30 at 9); and (5) Anne Levinson, on behalf of 2 Washington Families Standing Together (id. at 11).4

3

On or about June 9, 2009, the groups Whosigned.org and KnowThyNeighbor.org

4 issued a joint press release, stating that the groups intended to publish the names on the

5 internet of every individual signing the Referendum 71 petition. Dkt. 2 at 6; see Dkt. 4-5

6 (Exhibit 4). Plaintiffs maintain that some of the public record requesters have publicly

7 stated that they intend to publish the names of the petition signers on the internet and

8 make the names searchable. Id. Plaintiffs also claim that the purpose of placing the names

9 on the internet is to “encourage individuals to contact” and to have a “personal and

10 uncomfortable conversation” with any person who signed the petition. Id.; Dkt. 3 at 9.

11

II. PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

12

As a threshold matter, the following opinion addresses only an individual’s right to

13 participate in a political process and the government’s authority to intrude on that right.

14 Once narrowed to these two issues, the Court finds it unnecessary to address the content

15 of SB 5688 or the content of R-71.

16

Here, pursuant to the Washington Public Records Act, Defendants requested that

17 the Secretary of State disclose the contents of petitions filed to refer R-71 as a measure

18 for the next ballot, a proposed measure to undo SB 5688. Plaintiffs argue that such

19 disclosure would be unconstitutional, as it would violate their fundamental right to free

20 speech. The issue before the Court is limited to whether Plaintiffs have such an

21 individual right and, if so, whether the government is entitled to intrude on that right in

22 this instance.

23

24

25

26

4 Ms. Levinson’s request excluded “any and all information subject to [this Court’s July

27 29, 2009] temporary restraining order” (Dkt. 30-11) which restrained Defendants from releasing

“the names, addresses, or other contact information of those individuals who signed the

28 Referendum 71 petition” (Dkt. 9 at 4).

ORDER - 7

1 A. PRELIMINARY INJUNCTION STANDARD

2

The basic function of injunctive relief is to preserve the status quo pending a

3 determination of the action on the merits. Los Angeles Memorial Coliseum Comm’n v.

4 Nat’l Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). To obtain preliminary

5 injunctive relief, the moving party must show: (1) a likelihood of success on the merits;

6 (2) a likelihood of irreparable harm to the moving party in the absence of preliminary

7 relief; (3) that a balance of the equities tips in favor of the moving party; and (4) that an

8 injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., ___ U.S.

9 ___, 129 S. Ct. 365, 376, 172 L. Ed. 2d 249 (2008). Traditionally, injunctive relief was

10 also appropriate under an alternative “sliding scale” test. The Lands Council v. McNair,

11 537 F.3d 981, 987 (9th Cir. 2008). However, the Ninth Circuit overruled this standard in

12 keeping with the Supreme Court’s decision in Winter. American Trucking Ass'ns Inc. v.

13 City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (holding that “[t]o the extent

14 that our cases have suggested a lesser standard, they are no longer controlling, or even

15 viable”).

16

1. Likelihood of Success

17

Plaintiffs contend that it is unconstitutional for Defendants, acting under authority

18 of the Public Records Act, to comply with public record requests for referendum petitions

19 that contain identifying information of those who support referral of a referendum to the

20 next ensuing general election. Dkt. 3 at 9. Plaintiffs argue that releasing these petitions

21 and the information contained therein would violate the signers’ fundamental, First

22 Amendment right to freedom of speech. Id. at 9-10. To succeed on this motion for

23 preliminary relief, Plaintiffs must first establish that it is likely that supporting the referral

24 of a referendum should be considered protected political speech.

25

a. Individual Right

26

Plaintiffs assert that the signers of the referendum petition are likely entitled to

27 protections under an individual’s fundamental, First Amendment right to free speech. Id.

28

ORDER - 8

1 The type of free speech in question is anonymous political speech. As the Honorable

2 Thomas S. Zilly, United States District Judge, has previously stated:

3

The right to speak anonymously was of fundamental importance to

the establishment of our Constitution. Throughout the revolutionary and

4

early federal period in American history, anonymous speech and the use of

pseudonyms were powerful tools of political debate. The Federalist Papers

5

(authored by Madison, Hamilton, and Jay) were written anonymously under

the name “Publius.” The anti-federalists responded with anonymous

6

articles of their own, authored by “Cato” and “Brutus,” among others. See

generally [McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-342, 115

7

S. Ct. 1511, 131 L. Ed. 2d 426 (1995)]. Anonymous speech is a great

tradition that is woven into the fabric of this nation’s history.

8

When speech touches on matters of public political life, such as

debate over the qualifications of candidates, discussion of governmental or

9

political affairs, discussion of political campaigns, and advocacy of

controversial points of view, such speech has been described as the “core”

10

or “essence” of the First Amendment. See McIntyre, 514 U.S. at 346-47.

11 Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092-93 (W.D. Wash. 2001).

12

The First Amendment to the United States Constitution provides that “Congress

13 shall make no law . . . abridging the freedom of speech.” U.S. amend. I.5 The Supreme

14 Court has consistently held that a component of the First Amendment is the right to

15 anonymously participate in a political process. See e.g., Buckley v. American

16 Constitutional Law Found., 525 U.S. 182, 200, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999)

17 (invalidating, on First Amendment Grounds, a Colorado statute that required initiative

18 petition circulators to wear identification badges); McIntyre, 514 U.S. at 357 (overturning

19 an Ohio law that prohibited the distribution of campaign literature that did not contain the

20 name and address of the person issuing the literature, holding that “[u]nder our

21 Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an

22 honorable tradition of advocacy and dissent. Anonymity is a shield from the tyranny of

23 the majority.”); Talley v. California, 326 U.S. 60, 65, 80 S. Ct. 536, 4 L. Ed. 2d 559

24 (1960) (invalidating a California statute prohibiting the distribution of “any handbill in

25 any place under any circumstances” that did not contain the name and address of the

26

27
5 The First Amendment is applicable to the states through the Fourteenth Amendment. Stromberg v. People
28 of the State of California, 283 U.S. 359, 368, 51 S. Ct. 532 (1931).

ORDER - 9

1 person who prepared it, holding that identification and fear of reprisal might deter

2 “perfectly peaceful discussions of public matters of importance”).

3

In this case, the Court must determine whether it is likely that referendum petitions

4 that were submitted to the Secretary of State should be considered protected political

5 speech. Defendants argue that petition signers waived any First Amendment protections

6 because the signers supported the referral of the referendum in an open and public forum.

7 Dkt. 25 at 7-10. But Defendants have neither cited nor submitted any authority in support

8 of this proposition. Moreover, the Court is unaware of any authority, including the

9 Washington Constitution or RCW Chapter 29A.72, which stands for the proposition that

10 signatures in support of a referral must be obtained in a public forum. Therefore, at this

11 time, the Court is not persuaded that waiver of one’s fundamental right to anonymous

12 political speech is a prerequisite for participation in Washington’s referendum process.

13

Defendants do assert that Washington’s Constitution requires public disclosure of

14 the personally identifying information provided when a person signs a referendum

15 petition. Dkt. 25 at 8. But Washington’s Constitution states only that “all such petitions

16 shall be filed with the secretary of state,” and it does not state that the information

17 contained on the petition must also be considered public information. See Wash. Const.,

18 art. II, § 1(d). In fact, both the Supreme Court and the Washington Supreme Court have

19 previously held that an initiative process falls within the protections of political speech.

20 Meyer v. Grant, 486 U.S. 414, 421, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988);

21 Alderwood Associates v. Washington Environmental Council, 96 Wn.2d 230, 239 (“It is

22 undisputed that gathering initiative signatures in some manner, at some place, is a

23 constitutionally guaranteed practice. It is at the core of both the First Amendment and

24 Const. art. 1, s 5.”).

25

Defendants also argue that participation should not be considered protected

26 political speech because the petition signers act as quasi-legislators. Dkt. 25 at 10-11.

27 Defendants reason that because the referendum and initiative processes are reserved

28 powers by the people to legislate, the petition signer acts like a legislator with such action

ORDER - 10

1 being inherently public. Id. To support this argument, Defendants rely on State ex rel.

2 Heavey v. Murphy, 138 Wn.2d 800, 808, 982 P.2d 611 (1999), and Amalgamated Transit

3 Union Local 587 v. State, 142 Wn.2d 183, 204, 11 P.3d 762 (2000). Dkt. 25 at 10. But

4 both of these cases are distinguishable. First, the Heavey court addressed the question of

5 whether a writ of mandamus should issue against a state officer when the officer defended

6 the constitutionality of a referendum. 138 Wn.2d at 803-804. While the Heavey court did

7 state that referendum and initiative measures involve the people in their legislative

8 capacity, it was only to note that such legislation “remain[s] subject to the mandates of

9 the Constitution.” Id. at 808. The court did not hold that a “quasi-legislative” action

10 requires waiver of a fundamental right to anonymous political speech.

11

Second, in Amalgamated Transit Union Local 587, the court addressed a challenge

12 to the constitutionality of a statute enacted through the initiative process. 142 Wn.2d at

13 193-199. The court did not address the issue of the political nature of the initiative

14 process itself. Therefore, the Court is not persuaded by Defendants’ “quasi-legislative”

15 arguments.

16

In this case, it is important to note that the Court is unaware of any authority that is

17 directly on point for the question before the Court. The weight of authority, however,

18 counsels toward the finding that supporting the referral of a referendum is likely protected

19 political speech. For example, in Meyer, the Court noted that, of necessity, “the

20 circulation of an initiative petition . . . involves both the expression of a desire for

21 political change and a discussion of the merits of the proposed change.” 486 U.S. at 421.

22 In fact, the Court explicitly stated that the “record in this case demonstrates that the

23 circulation of appellees’ petition involved political speech.” Id., n.4. Moreover, in

24 Buckley, the Court held that petition circulation is “core political speech,” because it

25 involves “interactive communication concerning political change.” 525 U.S. at 187

26 (quoting Meyer, 486 U.S. at 422) (emphasis added). The Buckley Court also noted that

27 “First Amendment protection for such interaction . . . is at its zenith.” Id. at 187 (internal

28 quotations omitted) (emphasis added). It would seem that if the circulator is protected by

ORDER - 11

1 the First Amendment and the process is at the core of the First Amendment, then the

2 people singing the petition in support of referral of the referendum would also be entitled

3 to the protections of the First Amendment. In fact, the Buckley Court touched upon the

4 protection of the “interaction” in the circulation process, which involved a “political

5 conversation” and the “exchange of ideas.” Id. at 192. By necessity, an interaction

6 involves the circulator as well as one who may support the referral of a referendum.

7 Based on these authorities, the Court finds that it is likely that an individual who supports

8 the referral of a referendum is entitled to protection under the First Amendment.

9

Therefore, the Court finds that Plaintiffs have established that it is likely that

10 supporting the referral of a referendum is protected political speech, which includes the

11 component of the right to speak anonymously. The next step in the Court’s analysis is

12 based on the fact that the right to freedom of speech is not absolute.

13

The Supreme Court has recognized that “there must be a substantial regulation of

14 elections if they are to be fair and honest and if some sort of order, rather than chaos, is to

15 accompany the democratic processes.” Id. at 187 (quoting Storer v. Brown, 415 724, 730,

16 94 S. Ct. 1274, 39 L. Ed. 2d 714 (1974)). In other words, the government is not without

17 an interest in the integrity of the referendum process. As such, the government may

18 infringe on an individual’s right to free speech but only to the extent that such

19 infringement is narrowly tailored to achieve a compelling governmental interest. See

20 McIntyre, 514 U.S. at 346-47 (holding that governmental restrictions on core political

21 speech are entitled to “exacting” scrutiny, and upheld only where they are narrowly

22 tailored to serve an overriding state interest.”).6

23

24

25

6 Some of the relevant cases discuss a level of review called “exacting” scrutiny. Buckley v. Valeo, 424 U.S.

26

1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (a compelled disclosure case). But “exacting” scrutiny is “strict” scrutiny. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (citing First Nat’l Bank of Boston v. Bellotti, 436

27

U.S. 765, 786 (1978) (equating “exacting” scrutiny with “strict” scrutiny). See also Fed. Elec. Comm’n v. Public Citizen, 268 F.3d 1283, 1286 (11th Cir. 2001) (reiterating McIntyre’s holding that “exacting” scrutiny is applied to

determine whether the law is narrowly tailored to serve an overriding state interest and applying “strict” scrutiny to a
28 federal campaign statute).

ORDER - 12

1

b. Governmental Interest

2

Under a strict scrutiny analysis, the Court must first identify the asserted

3 compelling governmental interest. In this case, Defendants argue that “[a] state

4 indisputably has a compelling interest in preserving the integrity of its election process.”

5 Dkt. 25 at 17 (citing Eu v. San Francisco Cy. Democratic Cent. Comm., 489 U.S. 214,

6 231, 109 S. Ct. 1013, 1024, 103 L. Ed. 2d 271 (1989) (citing Rosario v. Rockefeller, 410

7 U.S. 752, 761, 93 S. Ct. 1245, 1251-52, 36 L. Ed. 2d 1 (1973))). The Court agrees with

8 Defendants on this point as it is undisputed that the State must employ some measures to

9 prevent fraud in the referendum process. What is disputed, however, is the extent of the

10 government intrusion on the individual’s right to anonymously participate in a political

11 activity, i.e., whether the Public Records Act is narrowly tailored to accomplish the

12 interest of preserving the integrity of the referendum process.

13

It is important to reiterate two points: (1) for the purposes of preliminary relief, the

14 Court must determine only whether Plaintiffs are likely to succeed on the merits of their

15 claim (see Winter, supra); and (2) Plaintiffs are only challenging the Public Records Act

16 that requires disclosure of public documents and are not challenging the requirement of

17 RCW 29A.72.130 that those who sign in support of referral of the referendum disclose

18 identifying information. Based on the record before the Court, the Court finds that

19 Plaintiffs have established a likelihood of success on the claim that the Public Records

20 Act is not narrowly tailored to achieve the compelling governmental interest of preserving

21 the integrity of the referendum process.

22

In Buckley, the Court addressed a challenge to several statutes that were enacted by

23 Colorado’s Legislature that regulated the state’s initiative and referendum petition

24 process. Id. at 187-189. One particular statute, of relevance to the present matter, required

25 initiative-petition circulators to wear a badge identifying their name. Id. at 187. The

26 Court stated that:

27

We have several times said no litmus-paper test will separate valid ballot-

access provisions from invalid interactive speech restrictions; we have

28

come upon no substitute for the hard judgments that must be made. But the

ORDER - 13

1

First Amendment requires us to be vigilant in making those judgments, to

guard against undue hindrances to political conversations and the exchange

2

of ideas. We therefore . . . are satisfied that . . . the restrictions in question

significantly inhibit communication with voters about proposed political

3

change, and are not warranted by the state interests (administrative

efficiency, fraud detection, informing voters) alleged to justify those

4

restrictions.

5 Id. (internal citations and quotations omitted). The Court held that the law violated the

6 petition circulators’ First Amendment free speech guarantee. Id. at 205. In reaching this

7 conclusion, the Court separated what it considered necessary or proper ballot-access

8 controls from restrictions that unjustifiably inhibit the circulation of ballot initiative

9 petitions. Id. at 192-93. The Court noted that evidence was presented that “demonstrated

10 that compelling circulators to wear identification badges inhibits participation in the

11 petitioning process.” Id. at 197-98 (internal citations omitted).

12

In this case, the State argues that its “interest in the public availability of the

13 Plaintiffs’ names outweighs any alleged First Amendment interest . . . .” Dkt. 25 at 16.

14 The State further argues as follows:

15

Absent access to the names of persons who signed referendum petitions, the

public would not be able to independently examine whether the State acted

16

properly in determining whether a referendum measure qualified for the

ballot. Without access to the names of signers, the public would not be able

17

to even verify the gross number of signatures submitted, whether the State

accepted duplicate signatures, or whether the State accepted signatures from

18

persons disqualified from voting. Public access to the signature petitions

thus provides an important check on the integrity of the referendum election

19

process.

20 Dkt. 25 at 17. The State’s argument would be more persuasive if there was not a more

21 narrowly tailored signature verification procedure. See RCW 29A.72.230

22

Under RCW 29A.72.230, the Secretary of State must “verify and canvass the

23 names of the legal voters on the petition.” The statute also provides for public access to

24 that verification process:

25

The verification and canvass of signatures on the petition may be observed

by persons representing the advocates and opponents of the proposed

26

measure so long as they make no record of the names, addresses, or other

information on the petitions or related records during the verification

27

process.

28

ORDER - 14

1 Id. Moreover, the Washington Supreme Court has held that statutory referendum

2 provisions “evidence an intent on the part of the Legislature to make them the only

3 safeguards looking to the prevention of fraud, forgery, and corruption, in the exercise of

4 this constitutional right by the people . . . .” State v. Superior Court of Thurston County,

5 81 Wn. 623, 647, 143 P. 461 (1914).

6

In light of the State’s own verification process and the State’s own case law, at this

7 time the Court is not persuaded that full public disclosure of referendum petitions is

8 necessary as “an important check on the integrity of the referendum election process.”

9

In the alternative, Defendants assert that there exists a second “compelling”

10 interest in favor of disclosure. Dkt. 25 at 17. Defendants argue that the electorate is

11 entitled to know “who is essentially lobbying for their vote, and thus, who likely will

12 benefit from the measure.” Id. (citing California Pro-Life Council v. Getman, 328 F. 3d

13 1088, 1105-07) (9th Cir. 2003). But this argument is unavailing because neither the

14 Court nor the parties have the ability to identify whether an individual who supports

15 referral of a referendum to the next ensuing general election actually supports the content

16 of the referendum or whether that individual simply agrees that the referendum should be

17 placed before the voting public. In other words, the identity of the person who supports

18 the referral of a referendum is irrelevant to the voter as the voting public must consider

19 the content of the referendum and be entitled to a process by which it can ensure that the

20 petitions are free from fraud.

21

Therefore, the Court finds that Plaintiffs have established that it is likely that the

22 Public Records Act is not narrowly tailored to achieve the compelling governmental

23 interest of preserving the integrity of the referendum process.

24

c. Conclusion - Likelihood of Success

25

The Court finds that Plaintiffs have established that it is likely that supporting the

26 referral of a referendum is protected political speech. The Court also finds that Plaintiffs

27 have established that it is likely that the Public Records Act is not narrowly tailored to

28 achieve the compelling governmental interest of preserving the integrity of the

ORDER - 15

1 referendum process. Therefore, the Court concludes that Plaintiffs have established that

2 they are likely to succeed on the merits of their claim that the Public Records Act is

3 unconstitutional as applied to the disclosure of referendum petitions. At this time, the

4 Court need not reach the merits of Plaintiffs’ second claim for relief.

5

2. Likelihood of Irreparable Harm in the Absence of Preliminary Relief

6

Plaintiffs contend that the denial of their request for a preliminary injunction will

7 cause them irreparable harm. Their claim is premised on the argument that their First

8 Amendment right to free speech will be violated, irreparably, if the State complies with

9 the public record request. See Dkt. 3 at 29.

10

“Deprivations of speech rights presumptively constitute irreparable harm for

11 purposes of a preliminary injunction: ‘The loss of First Amendment Freedoms, even for

12 minimal periods of time, constitute[s] irreparable injury.’” Summum v. Pleasant Grove

13 City, 483 F.3d 1044 (10th Cir. 2007) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.

14 Ct. 2673, 49 L. Ed. 547 (1976); See also Brown v. Cal. Dept. of Transportation, 32 F.3d

15 1217, 1226 (9th Cir. 2003) (noting that a risk of irreparable injury may be presumed when

16 a plaintiff states a colorable First Amendment claim; Chaplaincy of Full Gospel Churches

17 v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) (“Where a plaintiff alleges injury from a

18 rule or regulation that directly limits speech, the irreparable nature of the harm may be

19 presumed.”). Because this court finds that referendum petitions are likely to be protected

20 under the First Amendment, Plaintiffs are entitled to the presumption that they will be

21 irreparably harmed absent preliminary relief. Defendants have failed to overcome this

22 presumption.

23

Therefore, the Court finds that Plaintiffs have established that they are likely to

24 suffer irreparable harm in the absence of preliminary relief.

25

3. Balance of the Equities

26

In determining whether to grant or deny a motion for preliminary injunction, the

27 court must balance the equities of the respective parties’ interests. Winter, supra. Where

28 a case raises serious First Amendment questions, a court is compelled to find the potential

ORDER - 16

1 for irreparable harm, “or that at the very least the balance of hardships tips sharply in [the

2 moving party’s] favor” Summartano v. First Judicial District Court, in and for County of

3 Carson City, 303 F. 3d 959, 973 (9th Cir. 2002) (internal quotations and citations

4 omitted). Because this Court finds that Plaintiffs have established that this case likely

5 raises serious First Amendment questions in regard to protected speech and this Court

6 thereby presumes irreparable injury, under Summartano, this court also finds that the

7 equities tip in favor of the Plaintiffs. See id.

8

4. Public Interest

9

Plaintiffs argue that granting the preliminary injunction is in the public’s interest.

10 In Sammartano, the Ninth Circuit Court of Appeals held “it is always in the public

11 interest to prevent the violation of a party’s constitutional rights.” Id. at 974. The

12 Sammartano court went on to state that the public’s interest in protecting First

13 Amendment rights may sometimes be overcome where there is “a strong showing of other

14 competing public interests.”

15

In this case, Defendants have failed to make a strong showing of other competing

16 public interests. Therefore, the Court finds that granting the preliminary injunction is in

17 the public’s interest to prevent the likely violation of Plaintiffs’ First Amendment rights.

18

III. ORDER

19

Therefore, it is hereby

20

ORDERED that Plaintiffs’ motion for preliminary injunction (Dkt. 3) is

21 GRANTED.

22 23

A DATED this 10th day of September, 2009.

24

BENJAMIN H. SETTLE

25

United States District Judge

26

27

28

ORDER - 17

 
 Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 1 of 13

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

9

SEATTLE DIVISION

10

11 JOHN DOE #1, an individual, JOHN DOE #2, No.

an individual, and PROTECT MARRIAGE

12 WASHINGTON,

VERIFIED COMPLAINT FOR

DECLARATORY AND INJUNCTIVE

13

Plaintiffs,

RELIEF

vs.

14

SAM REED, in his official capacity as

15 Secretary of State of Washington, DEBRA

GALARZA, in her official capacity as Public

16 Records Officer for the Secretary of State of

Washington,

17

Defendants.

18

19

20

John Doe #1, an individual, John Doe #2, an individual, and Protect Marriage Washington

21 complain and allege as follows:

22

INTRODUCTION

23

1. This is a civil action for declaratory and injunctive relief arising under the First and

24 Fourteenth Amendments to the Constitution of the United States. This case concerns the

25 constitutionality of the Washington Public Records Act, Wash. Rev. Code § 42.56.001, et seq.,

26 as it applies to the public release of referenda petitions submitted to the Secretary of State of

27 Washington.

28 Verified Complaint

1

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 2 of 13

1

2. The rights of citizens to peaceably assemble and petition the government for redress of

2 grievances are among the fundamental rights protected by the Bill of Rights. Inherent within

3 these rights is the right of individuals to engage in anonymous speech, speech that has “played an

4 important role in the progress of mankind.” McIntyre v. Ohio Elections Commission, 514 U.S.

5 334, 341 (1995); id. at 343 n. 6 (citing the Federalist Papers as perhaps the most famous example

6 of anonymous writing in our nation’s political history). And as the Supreme Court has

7 recognized, there is nothing inherently suspect with an individual wanting to keep his or her

8 support for an issue private. Id. at 341-42 (“The decision in favor of anonymity may be motivated

9 by fear of economic or official retaliation, by concern about social ostracism, or merely by a

10 desire to preserve as much of one’s privacy as possible.”)

11

3. The public release of a referendum petition containing the names and addresses of over

12 138,500 Washington residents pursuant to Washington’s Public Records Act threatens to

13 undermine the First Amendment’s goal of encouraging “uninhibited, robust, and wide-open”

14 debate, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). By publicly disseminating the

15 names of individuals signing a referendum petition, individuals and organizations hope to make

16 it personally, economically, and politically unpopular to advocate a position that would seek to

17 preserve the sanctity of marriage, as traditionally defined as between one man and one woman.

18

4. Given the sensitive First Amendment rights at issue, Plaintiffs complain that the State of

19 Washington lacks a compelling interest sufficient to justify the public disclosure of referendum

20 petitions.

21

5. In the alternative, Plaintiffs complain that, if the State possesses a compelling state

22 interest, the Public Records Act is unconstitutional because there is a reasonable probability of

23 threats, harassment, and reprisals if the names and addresses of the petition signers are publicly

24 released.

25

6. Given the nature of the rights asserted, the failure to obtain injunctive relief from this

26 Court will result in immediate and irreparable injury to Plaintiffs.

27

28 Verified Complaint

2

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 3 of 13

1

JURISDICTION AND VENUE

2

7. This case raises questions under the Constitution of the United States and 42 U.S.C. §

3 1983, and thus this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. §§ 1331

4 and 1343(a).

5

8. The Western District of Washington is the proper venue for this case pursuant to 28

6 U.S.C. § 1391(b) because Defendants Reed and Galarza reside in this district, Plaintiff Protect

7 Marriage Washington has its principle place of business in this district, and Plaintiffs John Doe

8 #1 and John Doe #2 reside in Washington.

9

PARTIES

10

9. Plaintiff John Doe #1 is an individual and resident of Stevens County, Washington.

11 Plaintiff John Doe #1 signed the Referendum 71 petition.

12

10. Plaintiff John Doe #2 is an individual and resident of Cowlitz County, Washington.

13 Plaintiff John Doe #2 signed the Referendum 71 petition.

14

11. Plaintiff Protect Marriage Washington is a State Political Committee organized pursuant

15 to Wash. Rev. Code § 42.17.040, to place Referendum 71 on the ballot and to encourage citizens

16 to reject SB 5688, and has its principal place of business in Snohomish County, Washington.

17

12. Defendant Sam Reed is the Secretary of State of Washington. In his official capacity,

18 Defendant Reed is responsible for receiving referendum petitions pursuant to Wash. Rev. Code §

19 29A.72.010 and for making public records available pursuant to the Public Records Act. Wash.

20 Rev. Code § 42.56.001 et seq.

21

13. Defendant Brenda Galarza is the Public Records Officer for Defendant Reed. Upon

22 information and belief, Defendant Galarza has been appointed by Defendant Reed, pursuant to

23 Wash. Rev. Code § 42.56.580, to serve as the point of contact for members of the public when

24 requesting disclosure of pubic records from the Secretary of State and to oversee the agency’s

25 compliance with the Public Records Act.

26

27

28 Verified Complaint

3

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 4 of 13

1

FACTS

2

14. Pursuant to Wash. Const. art. II, § 1(b), the referendum power is reserved by the people

3 of Washington State.

4

15. The referendum power grants Washington citizens the right to call a referendum on any

5 act, bill, law, or any part thereof passed by the legislature by submitting a petition to that effect to

6 the Secretary of State. Wash. Const. art. II, § 1(b).

7

16. If a petition submitted to the Secretary of State contains at least four percent of the votes

8 cast for the office of governor at the last gubernatorial election preceding the filing of the

9 referendum petition, the effective date of the act, bill, law, or any part thereof is delayed until the

10 electorate has an opportunity to vote on the referendum. Wash. Const. art. II, §§ 1(b) & (d).

11

17. An act, bill, law, or any part thereof, subject to a referendum, becomes law only if a

12 majority of the votes cast are in favor of the referendum. Wash. Const. art. II, § 1(d).

13

18. On January 28, 2009, Washington State Senator Ed Murray introduced Senate Bill

14 5688 (“SB 5688”), a bill designed to expand the rights, responsibilities, and obligations accorded

15 state-registered same-sex and senior domestic partners to be equivalent to those of married

16 spouses. The legislation is commonly referred to simply as the “everything but marriage”

17 domestic partnership bill.

18

19. On March 10, 2009, after various amendments, the Washington Senate passed Second

19 Substitute Senate Bill 5688.

20

20. On April 15, 2009, the Washington House of Representatives passed Second Substitute

21 Senate Bill 5688.

22

21. On or about May 4, 2009, Larry Stickney filed notice with the Secretary of State of his

23 intent to circulate a referendum petition related to SB 5688. The Secretary of State assigned the

24 title “Referendum 71.”

25

22. On or about May 13, 2009, Protect Marriage Washington organized as a State Political

26 Committee pursuant to Wash. Rev. Code § 42.17.040.

27

23. Protect Marriage Washington’s purpose is to circulate a referendum petition on SB 5688

28 and to encourage voters to reject SB 5688.

Verified Complaint

4

BOPP, COLESON & BOSTROM 1 South Sixth Street
Terre Haute, Indiana 47807-3510 (812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 5 of 13

1

24. Larry Stickney is the campaign manager of Protect Marriage Washington.

2

25. As the campaign manager for Protect Marriage Washington, Larry Stickney has

3 received a large number of emails from people who disagree with his position on marriage. True

4 and correct copies of some of these emails are attached to this Complaint as Exhibit 1. Some of

5 these emails are threatening and/or harassing. For example, one threatening email states: “You

6 better stay off the olympic peninsula. . it’s a very dangerous place filled with people who hate

7 racists, gay bashers and anyone who doesn’t believe in equality. Fair is fair.” Another email

8 threatened the signers of the Referendum 71 petition with boycotts: “We shall boycott the

9 businesses of EVERYONE who signs your odious, bigoted petition.” Other emails are offensive

10 and harassing: “Dear God fearing hate mongerers - . . . Maybe you just want to feel a cock in

11 your ass and hate yourself for it. Whatever. Praise Jeebus you retarded fuckholes!”

12

26. These threats have caused Larry Stickney a great deal of worry for his safety and the

13 safety of his family.

14

27. Early in the campaign to circulate the Referendum 71 petition, Larry Stickney made his

15 children sleep in an interior living room because he feared for their safety if they slept in their

16 own bedrooms.

17

28. In late June an individual was seen taking pictures of Larry Stickney’s home while his

18 daughter played outside.

19

29. Larry Stickney filed a complaint with his local sheriff because of threats on a local blog.

20 One of the blog posts stated: “If Larry Stickney can do ‘legal’ things that harm OUR family, why

21 can’t we go to Arlington, WA to harm his family?” A true and correct copy of Larry Stickney’s

22 email correspondence with the Sheriff is is attached to the Complaint as Exhibit 2.

23

30. Larry Stickney has also received threatening and harassing phone calls from individuals

24 in the middle of the night. For example, shortly after Referendum 71 was presented to the

25 Secretary of State on May 4, 2009, he received a phone call at 2:00 a.m. from a woman who

26 sounded frantic and deranged, and who said various obscene and vile things to him.

27

31. Since Referendum 71 was submitted to the Secretary of State for review on May 4,

28 2009, numerous news sources and blogs have focused their attention on intimate details of Larry

Verified Complaint

5

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 6 of 13

1 Stickney’s personal life. For example, “The Stranger,” an alternative Seattle newspaper,

2 published details of his divorce that occurred fifteen years ago. A true and correct copy of that

3 article is attached to this Complaint as Exhibit 3.

4

32. On May 18, 2009, Washington Governor Christine Gregoire signed Engrossed Second

5

Substitute Senate Bill 5688.1

6

33. Upon information and belief, the group WhoSigned.org threatened to publish the names

7 of every individual signing the Referendum 71 petition on or about June 1, 2009.

8

34. Upon information and belief, Plaintiffs believe that WhoSigned.org intends to make an

9 end-run around Wash. Rev. Code § 29A.72.230 (prohibiting proponents and opponents of a

10 referendum petition from making records of the names, addresses, and other information on the

11 petition during the verification and canvass process), by requesting copies of the petitions

12 submitted pursuant to Washington’s Public Records Act, Wash. Rev. Code § 42.56.001 et seq.

13

35. On or about June 2, 2009, Dave Ammons, communications director for Defendant

14 Reed, posted a blog entry on the Secretary of State’s website suggesting that the Secretary of

15 State intended to comply with WhoSigned.org’s Public Records request. A true and correct copy

16 of that blog post is attached hereto as Exhibit 4.

17

36. On or about June 9, 2009, the group KnowThyNeighbor.org issued a joint press release

18 with WhoSigned.org again threatening to publish the names on the internet of every individual

19 signing the Referendum 71 petition.

20

37. KnowThyNeighbor.org and WhoSigned.org have publicly stated that they intend to

21 publish the names of petition signers on the internet and to make the names searchable.

22

38. KnowThyNeighbor.org and WhoSigned.org have stated that the purpose of placing the

23 names on the internet is to encourage individuals to contact any person who signed the

24 Referendum 71 petition.

25

39. The news media has widely reported that KnowThyNeighbor.org and WhoSigned.org

26 intend to publish the names of any individual who signs the petition on the internet.

27

28

1 The enacted legislation subject to the referendum petition will be referred to simply as SB 5688.

Verified Complaint

6

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 7 of 13

1

40. On Saturday, July 25, 2009, Protect Marriage Washington submitted the petition with

2 over 138,500 signatures to Defendant Reed, exceeding the number of signatures necessary to

3 place a referendum question on the ballot.

4

41. By filing the petition, Plaintiffs have delayed the effective date of SB 5688. If the

5 Secretary of State determines that petition contains a sufficient number of valid signatures, SB

6 5688 will become law only if a majority of Washington residents vote to “approve” the bill at the

7 next general election.

8

42. Defendant Reed is responsible for verifying and canvassing the signatures on the

9 Referendum 71 petition. Proponents and opponents of Referendum 71 are permitted to have

10 representatives present during the verification and canvass process. The statute prohibits

11 proponents and opponents who are observing the verification and canvass process from making

12 any records of the names, addresses, or other information contained on the petitions. Wash. Rev.

13 Code § 29A.72.230.

14

43. Plaintiff Protect Marriage Washington, and its officers and directors have been subject

15 to threats, harassment, and reprisals while attempting to gather the signatures necessary to place

16 Referendum 71 on the ballot.

17

44. Petition circulators have been subjected to threats, harassment, and reprisals as they

18 attempted to obtain the signatures necessary to place Referendum 71 on the ballot.

19

45. Defendant Galarza has stated that referendum petitions are “public records” within the

20 meaning of Wash. Rev. Code § 42.56.10(2) and are subject to public disclosure pursuant to

21 Wash. Rev. Code § 42.56.070.

22

46. Given the threats, harassment, and reprisals directed at Plaintiff Protect Marriage

23 Washington, petition signers, and supporters of a traditional definition of marriage across the

24 country, there is a reasonable probability that the disclosure of those who signed the Referendum

25 71 petition, including disclosure of the addresses of petition signers, will result in threats,

26 harassment, and reprisals.

27

28 Verified Complaint

7

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 8 of 13

1

47. The threatened publication of the petitions has created an environment that discourages

2 Washington citizens from exercising their First Amendment rights to participate in the

3 referendum process.

4

48. The threatened publication of the petitions discourages individuals and organizations

5 from exercising their First Amendment rights to support the effort to encourage Washington

6 citizens to reject SB 5688.

7

49. Plaintiffs have suffered, or will suffer, irreparable harm if the requested relief is not

8 granted.

9

LEGAL ARGUMENTS COMMON TO PLAINTIFFS’ CLAIMS

10

50. “The First Amendment is the pillar of a profound national commitment to the principle

11 that debate on public issues should be uninhibited, robust, and wide-open . . . .” Mont. Right to

12 Life v. Eddlemann, 999 F. Supp. 1380, 1384 (D. Mont. 1998).

13

51. “In the free society ordained by our Constitution it is not the government, but the

14 people—individually as citizens and candidates and collectively as associations and political

15 committees—who must retain control over the quantity and range of debate on public issues in a

16 political campaign.” Buckley v. Valeo, 424 U.S. 1, 57 (1976).

17

52. In Buckley, the Supreme Court held that any significant encroachment on First

18 Amendment rights, such as those imposed by compelled disclosure provisions, must survive

19 exacting scrutiny, which requires the government to craft a narrowly tailored law to serve a

20 compelling government interest. Buckley, 424 U.S. at 64.

21

53. The Supreme Court has recognized that the principles applied in Buckley apply as

22 forcefully to activities surrounding the referenda process. See Buckley v. American Constitutional

23 Law Foundation, 525 U.S. 182, 192 (1999) (“[T]he First Amendment requires us to be vigilant

24 in making those judgments, to guard against undue hindrances to political conversations and the

25 exchange of ideas. We therefore detail why we are satisfied that . . . the restrictions in question

26 significantly inhibit communication with voters about proposed political change, and are not

27 warranted by the state interests (administrative efficiency, fraud detection, informing voters)

28 alleged to justify those restrictions.”) (internal citations omitted); Citizens Against Rent Control

Verified Complaint

8

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 9 of 13

1 v. Berkeley, 454 U.S. 290, 295 (1981) (applying Buckley’s contribution limit analysis in the

2 context of ballot measure elections).

3

54. The Public Records Act, in so far as it results in the public disclosure of the names and

4 addresses of petition signers, results in compelled political speech.

5

55. The Supreme Court has repeatedly reaffirmed that “compelled disclosure, in itself, can

6 seriously infringe on privacy of association and belief guaranteed by the First Amendment.”

7 Davis v. FEC, 128 S. Ct. 2759, 2774-75 (2008) (quoting Buckley, 424 U.S. at 64.

8

56. To survive exacting scrutiny, the Public Records Act must be narrowly tailored to serve

9 a compelling government interest. Buckley, 424 U.S. at 64.

10

57. The burden is on the State to demonstrate that the Public Records Act is narrowly

11 tailored to serve a compelling state interest. Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d

12 1172, 1178 (9th Cir. 2007) (citing Republican Party of Minnesota v. White, 536 U.S. 765, 774-75

13 (2002)).

14

58. In the context of the First Amendment, the usual deference granted to the legislature

15 does “not foreclose [a court’s] independent judgment of the facts bearing on an issue of

16 constitutional law.” Turner Broad. Sys. v. FEC, 512 U.S. 622, 666 (1994) (internal citations

17 omitted). The Court’s role is to ensure that the legislature “has drawn reasonable inferences

18 based on substantial evidence.” Id. (emphasis added).

19

59. The Ninth Circuit recently held that compelled disclosure of de minimis support of a

20 referenda is unconstitutional under the First Amendment. See Canyon Ferry Road Baptist

21 Church of East Helena, Inc. v. Unsworth, 556 F.3d 1021, 1033 (9th Cir. 2009).

22

60. Furthermore, even if the Public Records Act is narrowly tailored to serve a compelling

23 government interest, it remains unconstitutional because there is a reasonable probability that the

24 disclosure of the names of those individuals who signed the Referendum 71 petition will expose

25 those individuals to threats, harassment, and reprisals. See Brown v. Socialist Workers ‘74

26 Campaign Comm., 459 U.S. 87 (1982) (applying the reasonable-probability test announced in

27 Buckley, 424 U.S. at 73).

28 Verified Complaint

9

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 10 of 13

1

COUNT I – THE PUBLIC RECORDS ACT IS

UNCONSTITUTIONAL AS APPLIED TO REFERENDUM

2

PETITIONS

3

61. Plaintiffs incorporate here by reference paragraphs one through sixty, supra, as if fully

4 set forth herein.

5

62. The Public Records Act violates the First Amendment as applied to referendum

6 petitions because the Public Records Act is not narrowly tailored to serve a compelling

7 government interest.

8

63. WHEREFORE, Plaintiffs request the following relief:

9

a. Declare Wash. Rev. Code § 42.56.070 unconstitutional to the extent that it requires the

10

Secretary of State to make referendum petitions submitted to the Secretary of State’s office

11

available to the public;

12

b. Enjoin Defendants from making referendum petitions available to the public pursuant to

13

the Public Records Act, Wash. Rev. Code § 42.56.001 et seq., or otherwise;

14

c. Grant Plaintiffs John Doe #1, John Doe #2, and Protect Marriage Washington their costs

15

and attorneys fees under 42 U.S.C. § 1988 and any other applicable authority; and

16

d. Any and all other such relief as may be just and equitable.

17

COUNT II – THE PUBLIC RECORDS ACT IS

UNCONSTITUTIONAL AS APPLIED TO THE REFERENDUM

18

71 PETITION BECAUSE THERE IS A REASONABLE

PROBABILITY OF THREATS, HARASSMENT, AND

19

REPRISALS

20

64. Plaintiffs incorporate here by reference paragraphs one through sixty, supra, as if fully

21 set forth herein.

22

65. In the alternative, the Public Records Act is unconstitutional as applied to the

23 Referendum 71 petition because there is a reasonable probability that the signatories of the

24 Referendum 71 petition will be subjected to threats, harassment, and reprisals.

25

66. WHEREFORE, Plaintiffs request the following relief:

26

a. Declare Wash. Rev. Code § 42.56.070 unconstitutional to the extent that it requires the

27

Secretary of State to make the Referendum 71 petition, or any petition related to the

28

definition or marriage or the rights and responsibilities that should be accorded to same-sex

Verified Complaint

10

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 11 of 13

1

couples, submitted to the Secretary of State’s office available to the public;

2

b. Enjoin Defendants from making the Referendum 71 petition, or any petition related to

3

the definition or marriage or the rights and responsibilities that should be accorded to same-

4

sex couples, available to the public pursuant to the Public Records Act, Wash. Rev. Code §

5

42.56.001 et seq., or otherwise;

6

c. Grant Plaintiffs John Doe #1, John Doe #2, and Protect Marriage Washington their cots

7

and attorneys fees under 42 U.S.C. § 1988 and any other applicable authority; and

8

d. Any and all other such relief as may be just and equitable.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Verified Complaint

11

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 12 of 13

1

VERIFICATION

2

I SWEAR (OR AFFIRM) UNDER THE PENALTIES FOR PERJURY UNDER THE

3 LAWS OF THE UNITED STATES THAT THE FOREGOING STATEMENTS

4 CONCERNING ME IN THIS COMPLAINT ARE TRUE AND CORRECT TO THE BEST OF

5 MY KNOWLEDGE AND UNDERSTANDING.

6

7 Dated this 28th day of July, 2009.

8

9 _____________________________________ Larry Stickney
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Verified Complaint

12

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

Case 3:09-cv-05456-BHS Document 2 Filed 07/28/09 Page 13 of 13

1 Dated this 28th day of July, 2009.

2 Respectfully submitted,

3

4

James Bopp, Jr. (Ind. Bar No. 2838-84)* Sarah E. Troupis (Wis. Bar No. 1061515)*

Stephen Pidgeon ATTORNEY AT LAW, P.S.

5

Scott F. Bieniek (Ill. Bar No. 6295901)* BOPP, COLESON & BOSTROM

10900 NE 8th Street, Suite 900 Bellevue, Washington 98004

6

1 South Sixth Street Terre Haute, Indiana 47807-3510

(425) 605-4774 Counsel for All Plaintiffs

7

(812) 232-2434 Counsel for All Plaintiffs

8

*Pro Hac Vice Application Pending

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 Verified Complaint

13

BOPP, COLESON & BOSTROM

1 South Sixth Street

Terre Haute, Indiana 47807-3510

(812) 232-2434

 
 (Slip Opinion)

OCTOBER TERM, 2009

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
DOE ET AL. v. REED, WASHINGTON SECRETARY OF 
 STATE, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 09–559. Argued April 28, 2010—Decided June 24, 2010
The Washington Constitution allows citizens to challenge state laws by referendum. To initiate a referendum, proponents must file a petition with the secretary of state that contains valid signatures of registered Washington voters equal to or exceeding four percent of the votes cast for the office of Governor at the last gubernatorial election. A valid submission requires not only a signature, but also the signer’s address and the county in which he is registered to vote. In May 2009, Washington Governor Christine Gregoire signed into law Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners, including same-sex domestic partners. That same month, Protect Marriage Washington, one of the petitioners here, was organized as a “State Political Committee” for the purpose of collecting the petition signatures necessary to place a referendum challenging SB 5688 on the ballot. If the referendum made it onto the ballot, Protect Marriage Washington planned to encourage voters to reject SB 5688. Protect Marriage Washington submitted the petition with more than 137,000 signatures to the secretary of state, and after conducting the verification and canvassing process required by state law, the secretary determined that the petition contained sufficient signatures to qualify the referendum (R–71) for the ballot. Respondent intervenors invoked the Washington Public Records Act (PRA) to obtain copies of the petition, which contained the signers’ names and addresses. The R–71 petition sponsor and certain signers filed a complaint and a motion for injunctive relief in Federal District Court, seeking to enjoin the public release of the petition. Count I alleges that the PRA “is unconstitutional as applied to referendum petitions,” and Count II

2

DOE v. REED

Syllabus
alleges that the PRA “is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.” Determining that the PRA burdened core political speech, the District Court held that plaintiffs were likely to succeed on the merits of Count I and granted a preliminary injunction preventing release of the signatory information. Reviewing only Count I, the Ninth Circuit held that plaintiffs were unlikely to succeed on their claim that the PRA is unconstitutional as applied to referendum petitions in general, and therefore reversed.
Held: Disclosure of referendum petitions does not as a general matter violate the First Amendment. Pp. 4–13. (a) Because plaintiffs’ Count I claim and the relief that would follow—an injunction barring the secretary of state from releasing referendum petitions to the public—reach beyond the particular circumstances of these plaintiffs, they must satisfy this Court’s standards for a facial challenge to the extent of that reach. See United States v. Stevens, 559 U. S. ___, ___. Pp. 4–5. (b) The compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment. In most cases, the individual’s signature will express the view that the law subject to the petition should be overturned. Even if the signer is agnostic as to the merits of the underlying law, his signature still expresses the political view that the question should be considered “by the whole electorate.” Meyer v. Grant, 486 U. S. 414, 421. In either case, the expression of a political view implicates a First Amendment right. Petition signing remains expressive even when it has legal effect in the electoral process. But that does not mean that the electoral context is irrelevant to the nature of this Court’s First Amendment review. States have significant flexibility in implementing their own voting systems. To the extent a regulation concerns the legal effect of a particular activity in that process, the government is afforded substantial latitude to enforce that regulation. Also pertinent is the fact that the PRA is not a prohibition on speech, but a disclosure requirement that may burden “the ability to speak, but [does] ‘not prevent anyone from speaking.’ ” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___. This Court has reviewed First Amendment challenges to disclosure requirements in the electoral context under an “exacting scrutiny” standard, requiring “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Id., at ___. To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Davis v. Fed-

Cite as: 561 U. S. ____ (2010)

3

Syllabus
eral Election Comm’n, 554 U. S. ___, ___. Pp. 5–7. (c) The State’s interest in preserving the integrity of the electoral
process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general. That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process.
Plaintiffs contend that disclosure is not sufficiently related to the interest of protecting the integrity of the electoral process to withstand First Amendment scrutiny. They argue that disclosure is not necessary because the secretary of state is already charged with verifying and canvassing the names on a petition, a measure’s advocates and opponents can observe that process, any citizen can challenge the secretary’s actions in court, and criminal penalties reduce the danger of fraud in the petition process. But the secretary’s verification and canvassing will not catch all the invalid signatures, and public disclosure can help cure the inadequacies of the secretary’s process. Disclosure also helps prevent difficult-to-detect fraud such as outright forgery and “bait and switch” fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue. And disclosure promotes transparency and accountability in the electoral process to an extent other measures cannot. Pp. 8–10.
(d) Plaintiffs’ main objection is that “the strength of the governmental interest” does not “reflect the seriousness of the actual burden on First Amendment rights.” Davis, supra, at ___. According to plaintiffs, the objective of those seeking disclosure is not to prevent fraud, but to publicly identify signatories and broadcast their political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out R–71 petition signers. That, plaintiffs argue, would subject them to threats, harassment, and reprisals.
The problem for plaintiffs is that their argument rests almost entirely on the specific harm that would attend the disclosure of information on the R–71 petition. But the question before the Court at this stage of the litigation is whether disclosure of referendum petitions in general violates the First Amendment. Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the PRA must be rejected. But upholding the PRA against a broad-based chal-

4

DOE v. REED

Syllabus
lenge does not foreclose success on plaintiffs’ narrower challenge in Count II, which is pending before the District Court. See Buckley v. Valeo, 424 U. S. 1, 74. Pp. 10–13.
586 F. 3d 671, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. BREYER, J., and ALITO, J., filed concurring opinions. SOTOMAYOR, J., filed a concurring opinion, in which STEVENS and GINSBURG, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined. SCALIA, J., filed an opinion concurring in the judgment. THOMAS, J., filed a dissenting opinion.

Cite as: 561 U. S. ____ (2010)

1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The State of Washington allows its citizens to challenge state laws by referendum. Roughly four percent of Washington voters must sign a petition to place such a referendum on the ballot. That petition, which by law must include the names and addresses of the signers, is then submitted to the government for verification and canvassing, to ensure that only lawful signatures are counted. The Washington Public Records Act (PRA) authorizes private parties to obtain copies of government documents, and the State construes the PRA to cover submitted referendum petitions.
This case arises out of a state law extending certain benefits to same-sex couples, and a corresponding referendum petition to put that law to a popular vote. Respondent intervenors invoked the PRA to obtain copies of the petition, with the names and addresses of the signers. Certain petition signers and the petition sponsor objected, arguing that such public disclosure would violate their rights under the First Amendment.

2

DOE v. REED

Opinion of the Court
The course of this litigation, however, has framed the legal question before us more broadly. The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court.
I
The Washington Constitution reserves to the people the power to reject any bill, with a few limited exceptions not relevant here, through the referendum process. Wash. Const., Art. II, §1(b). To initiate a referendum, proponents must file a petition with the secretary of state that contains valid signatures of registered Washington voters equal to or exceeding four percent of the votes cast for the office of Governor at the last gubernatorial election. §§1(b), (d). A valid submission requires not only a signature, but also the signer’s address and the county in which he is registered to vote. Wash. Rev. Code §29A.72.130 (2008).
In May 2009, Washington Governor Christine Gregoire signed into law Senate Bill 5688, which “expand[ed] the rights and responsibilities” of state-registered domestic partners, including same-sex domestic partners. 586 F. 3d 671, 675 (CA9 2009). That same month, Protect Marriage Washington, one of the petitioners here, was organized as a “State Political Committee” for the purpose of collecting the petition signatures necessary to place a referendum on the ballot, which would give the voters themselves an opportunity to vote on SB 5688. App. 8–9. If the referen-

Cite as: 561 U. S. ____ (2010)

3

Opinion of the Court
dum made it onto the ballot, Protect Marriage Washington planned to encourage voters to reject SB 5688. Id., at 7, 9.
On July 25, 2009, Protect Marriage Washington submitted to the secretary of state a petition containing over 137,000 signatures. See 586 F. 3d, at 675; Brief for Respondent Washington Families Standing Together 6. The secretary of state then began the verification and canvassing process, as required by Washington law, to ensure that only legal signatures were counted. Wash. Rev. Code §29A.72.230. Some 120,000 valid signatures were required to place the referendum on the ballot. Sam Reed, Washington Secretary of State, Certification of Referendum 71 (Sept. 2, 2009). The secretary of state determined that the petition contained a sufficient number of valid signatures, and the referendum (R–71) appeared on the November 2009 ballot. The voters approved SB 5688 by a margin of 53% to 47%.
The PRA, Wash. Rev. Code §42.56.001 et seq., makes all “public records” available for public inspection and copying. §42.56.070(1) (2008). The Act defines “[p]ublic record” as “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency.” §42.56.010(2). Washington takes the position that referendum petitions are “public records.” Brief for Respondent Reed 5.
By August 20, 2009, the secretary had received requests for copies of the R–71 petition from an individual and four entities, including Washington Coalition for Open Government (WCOG) and Washington Families Standing Together (WFST), two of the respondents here. 586 F. 3d, at 675. Two entities, WhoSigned.org and KnowThyNeighbor.org, issued a joint press release stating their intention to post the names of the R–71 petition signers online, in a searchable format. See App. 11; 586 F. 3d, at

4

DOE v. REED

Opinion of the Court
675. The referendum petition sponsor and certain signers
filed a complaint and a motion for a preliminary injunction in the United States District Court for the Western District of Washington, seeking to enjoin the secretary of state from publicly releasing any documents that would reveal the names and contact information of the R–71 petition signers. App. 4. Count I of the complaint alleges that “[t]he Public Records Act is unconstitutional as applied to referendum petitions.” Id., at 16. Count II of the complaint alleges that “[t]he Public Records Act is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories of the Referendum 71 petition will be subjected to threats, harassment, and reprisals.” Id., at 17. Determining that the PRA burdened core political speech, the District Court held that plaintiffs were likely to succeed on the merits of Count I and granted them a preliminary injunction on that count, enjoining release of the information on the petition. 661 F. Supp. 2d 1194, 1205–1206 (WD Wash. 2009).
The United States Court of Appeals for the Ninth Circuit reversed. Reviewing only Count I of the complaint, the Court of Appeals held that plaintiffs were unlikely to succeed on their claim that the PRA is unconstitutional as applied to referendum petitions generally. It therefore reversed the District Court’s grant of the preliminary injunction. 586 F. 3d, at 681. We granted certiorari. 558 U. S. ___ (2010).
II
It is important at the outset to define the scope of the challenge before us. As noted, Count I of the complaint contends that the PRA “violates the First Amendment as applied to referendum petitions.” App. 16. Count II asserts that the PRA “is unconstitutional as applied to the

Cite as: 561 U. S. ____ (2010)

5

Opinion of the Court
Referendum 71 petition.” Id., at 17. The District Court decision was based solely on Count I; the Court of Appeals decision reversing the District Court was similarly limited. 586 F. 3d, at 676, n. 6. Neither court addressed Count II.
The parties disagree about whether Count I is properly viewed as a facial or as-applied challenge. Compare Reply Brief for Petitioners 8 (“Count I expressly made an asapplied challenge”), with Brief for Respondent Reed 1 (“This is a facial challenge to Washington’s Public Records Act”). It obviously has characteristics of both: The claim is “as applied” in the sense that it does not seek to strike the PRA in all its applications, but only to the extent it covers referendum petitions. The claim is “facial” in that it is not limited to plaintiffs’ particular case, but challenges application of the law more broadly to all referendum petitions.
The label is not what matters. The important point is that plaintiffs’ claim and the relief that would follow—an injunction barring the secretary of state “from making referendum petitions available to the public,” App. 16 (Complaint Count I)—reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach. See United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 10).
III 
 A 

The compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment. An individual expresses a view on a political matter when he signs a petition under Washington’s referendum procedure. In most cases, the individual’s signature will express the view that the law subject to the petition should be overturned. Even if the signer is agnostic as to the merits of the underlying law, his signature

6

DOE v. REED

Opinion of the Court
still expresses the political view that the question should be considered “by the whole electorate.” Meyer v. Grant, 486 U. S. 414, 421 (1988). In either case, the expression of a political view implicates a First Amendment right. The State, having “cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.” Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002) (internal quotation marks and ellipsis omitted).
Respondents counter that signing a petition is a legally operative legislative act and therefore “does not involve any significant expressive element.” Brief for Respondent Reed 31. It is true that signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot. But we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment. Respondents themselves implicitly recognize that the signature expresses a particular viewpoint, arguing that one purpose served by disclosure is to allow the public to engage signers in a debate on the merits of the underlying law. See, e.g., id., at 45; Brief for Respondent WCOG 49; Brief for Respondent WFST 58.
Petition signing remains expressive even when it has legal effect in the electoral process. But that is not to say that the electoral context is irrelevant to the nature of our First Amendment review. We allow States significant flexibility in implementing their own voting systems. See Burdick v. Takushi, 504 U. S. 428, 433–434 (1992). To the extent a regulation concerns the legal effect of a particular activity in that process, the government will be afforded substantial latitude to enforce that regulation. Also pertinent to our analysis is the fact that the PRA is not a prohibition on speech, but instead a disclosure requirement.

Cite as: 561 U. S. ____ (2010)

7

Opinion of the Court
“[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.” Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 51) (internal quotation marks omitted).
We have a series of precedents considering First Amendment challenges to disclosure requirements in the electoral context. These precedents have reviewed such challenges under what has been termed “exacting scrutiny.” See, e.g., Buckley v. Valeo, 424 U. S. 1, 64 (1976) (per curiam) (“Since NAACP v. Alabama [357 U. S. 449 (1958),] we have required that the subordinating interests of the State [offered to justify compelled disclosure] survive exacting scrutiny”); Citizens United, supra, at ___ (slip op., at 51) (“The Court has subjected [disclosure] requirements to ‘exacting scrutiny’ ” (quoting Buckley, supra, at 64)); Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 18) (governmental interest in disclosure “ ‘must survive exacting scrutiny’ ” (quoting Buckley, supra, at 64)); Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 204 (1999) (ACLF) (finding that disclosure rules “fail[ed] exacting scrutiny” (internal quotation marks omitted)).
That standard “requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Citizens United, supra, at ___ (slip op., at 51) (quoting Buckley, supra, at 64, 66). To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.” Davis, supra, at ___ (slip op., at 18) (citing Buckley, supra, at 68, 71).1
——————
1 JUSTICE SCALIA doubts whether petition signing is entitled to any First Amendment protection at all. Post, at 1 (opinion concurring in judgment). His skepticism is based on the view that petition signing has “legal effects” in the legislative process, while other aspects of political participation—with respect to which we have held there is a

8

DOE v. REED 


Opinion of the Court 

B 

Respondents assert two interests to justify the burdens of compelled disclosure under the PRA on First Amendment rights: (1) preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability; and (2) providing information to the electorate about who supports the petition. See, e.g., Brief for Respondent Reed 39–42, 44–45. Because we determine that the State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general, we need not, and do not, address the State’s “informational” interest.
The State’s interest in preserving the integrity of the electoral process is undoubtedly important. “States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally.” ACLF, 525 U. S., at 191. The State’s interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It “drives honest citizens out of the democratic process and breeds distrust of our government.” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam); see also Crawford v. Marion County Election Bd., 553 U. S. 181, 196 (2008) (opinion of STEVENS, J.). The
——————
First Amendment interest, see supra, at 5–7—do not. See post, at 3–4, and n. 3. That line is not as sharp as JUSTICE SCALIA would have it; he himself recognizes “the existence of a First Amendment interest in voting,” post, at 6, which of course also can have legal effect. The distinction becomes even fuzzier given that only some petition signing has legal effect, and any such legal effect attaches only well after the expressive act of signing, if the secretary determines that the petition satisfies the requirements for inclusion on the ballot. See post, at 3. Petitions that do not qualify for the ballot of course carry no legal effect.

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threat of fraud in this context is not merely hypothetical; respondents and their amici cite a number of cases of petition-related fraud across the country to support the point. See Brief for Respondent Reed 43; Brief for State of Ohio et al. as Amici Curiae 22–24.
But the State’s interest in preserving electoral integrity is not limited to combating fraud. That interest extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. See Brief for Respondent Reed 42. That interest also extends more generally to promoting transparency and accountability in the electoral process, which the State argues is “essential to the proper functioning of a democracy.” Id., at 39.
Plaintiffs contend that the disclosure requirements of the PRA are not “sufficiently related” to the interest of protecting the integrity of the electoral process. Brief for Petitioners 51. They argue that disclosure is not necessary because the secretary of state is already charged with verifying and canvassing the names on a petition, advocates and opponents of a measure can observe that process, and any citizen can challenge the secretary’s actions in court. See Wash. Rev. Code §§29A.72.230, 29A.72.240. They also stress that existing criminal penalties reduce the danger of fraud in the petition process. See Brief for Petitioners 50; §§29A.84.210, 29A.84.230, 29A.84.250.
But the secretary’s verification and canvassing will not catch all invalid signatures: The job is large and difficult (the secretary ordinarily checks “only 3 to 5% of signatures,” Brief for Respondent WFST 54), and the secretary can make mistakes, too, see Brief for Respondent Reed 42. Public disclosure can help cure the inadequacies of the verification and canvassing process.
Disclosure also helps prevent certain types of petition fraud otherwise difficult to detect, such as outright forgery

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and “bait and switch” fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue. See Brief for Respondent WFST 9–11, 53–54; cf. Brief for Massachusetts Gay and Lesbian Political Caucus et al. as Amici Curiae 18–22 (detailing “bait and switch” fraud in a petition drive in Massachusetts). The signer is in the best position to detect these types of fraud, and public disclosure can bring the issue to the signer’s attention.
Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.2
C
Plaintiffs’ more significant objection is that “the strength of the governmental interest” does not “reflect the seriousness of the actual burden on First Amendment rights.” Davis, 554 U. S., at ___ (slip op., at 18) (citing Buckley, 424 U. S., at 68, 71); see, e.g., Brief for Petitioners 12–13, 30. According to plaintiffs, the objective of those seeking disclosure of the R–71 petition is not to prevent fraud, but to publicly identify those who had validly signed and to broadcast the signers’ political views on the subject of the petition. Plaintiffs allege, for example, that several
——————
2 JUSTICE THOMAS’s contrary assessment of the relationship between the disclosure of referendum petitions generally and the State’s interests in this case is based on his determination that strict scrutiny applies, post, at 5 (dissenting opinion), rather than the standard of review that we have concluded is appropriate, see supra, at 7.

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groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out the R–71 signers. See App. 11; Brief for Petitioners 8, 46–47.
Plaintiffs explain that once on the Internet, the petition signers’ names and addresses “can be combined with publicly available phone numbers and maps,” in what will effectively become a blueprint for harassment and intimidation. Id., at 46. To support their claim that they will be subject to reprisals, plaintiffs cite examples from the history of a similar proposition in California, see, e.g., id., at 2–6, 31–32, and from the experience of one of the petition sponsors in this case, see App. 9.
In related contexts, we have explained that those resisting disclosure can prevail under the First Amendment if they can show “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Buckley, supra, at 74; see also Citizens United, 558 U. S., at ___ (slip op., at 52). The question before us, however, is not whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition, or other particularly controversial petitions. The question instead is whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.
The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones. See, e.g., Brief for Petitioners 10, 26–29, 46, 56. But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.” Brief for Respondent WFST 36 (listing referenda); see also App. 26 (stating that in recent years the State has received PRA requests for petitions supporting initiatives concerning limiting motor vehicle charges; government

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regulation of private property; energy resource use by certain electric utilities; long-term care services for the elderly and persons with disabilities; and state, county, and city revenue); id., at 26–27 (stating that in the past 20 years, referendum measures that have qualified for the ballot in the State concerned land-use regulation; unemployment insurance; charter public schools; and insurance coverage and benefits). Voters care about such issues, some quite deeply—but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.
Plaintiffs have offered little in response. They have provided us scant evidence or argument beyond the burdens they assert disclosure would impose on R–71 petition signers or the signers of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to typical petitions in Washington hurts, not helps: Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, Brief for Petitioners 50, but apparently that release has come without incident. Cf. Citizens United, supra, at ___ (slip op., at 55) (“Citizens United has been disclosing its donors for years and has identified no instance of harassment or retaliation”).
Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, we must reject plaintiffs’ broad challenge to the PRA. In doing so, we note—as we have in other election law disclosure cases—that upholding the law against a broad-based challenge does not foreclose a litigant’s success in a narrower one. See Buckley, supra, at 74 (“minor parties” may be exempt from disclosure requirements if they can show “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials

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Opinion of the Court
or private parties”); Citizens United, supra, at ___ (slip op., at 54) (disclosure “would be unconstitutional as applied to an organization if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed” (citing McConnell v. Federal Election Comm’n, 540 U. S. 93, 198 (2003)). The secretary of state acknowledges that plaintiffs may press the narrower challenge in Count II of their complaint in proceedings pending before the District Court. Brief for Respondent Reed 17.
* * *
We conclude that disclosure under the PRA would not violate the First Amendment with respect to referendum petitions in general and therefore affirm the judgment of the Court of Appeals.
It is so ordered.

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1

BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE BREYER, concurring.
In circumstances where, as here, “a law significantly implicates competing constitutionally protected interests in complex ways,” the Court balances interests. Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). “And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute’s salutary effects upon the others.” Ibid. As I read their opinions, this is what both the Court and JUSTICE STEVENS do. See ante, at 7 (opinion of the Court); post, at 2 (STEVENS, J., concurring in part and concurring in judgment). And for the reasons stated in those opinions (as well as many of the reasons discussed by JUSTICE SOTOMAYOR), I would uphold the statute challenged in this case. With this understanding, I join the opinion of the Court and JUSTICE STEVENS’ opinion.

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1

ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE ALITO, concurring.
The Court holds that the disclosure under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001 et seq. (2008), of the names and addresses of persons who sign referendum petitions does not as a general matter violate the First Amendment, ante, at 13, and I agree with that conclusion. Many referendum petitions concern relatively uncontroversial matters, see ante, at 11–12, and plaintiffs have provided no reason to think that disclosure of signatory information in those contexts would significantly chill the willingness of voters to sign. Plaintiffs’ facial challenge therefore must fail. See ante, at 2, 5.
Nonetheless, facially valid disclosure requirements can impose heavy burdens on First Amendment rights in individual cases. Acknowledging that reality, we have long held that speakers can obtain as-applied exemptions from disclosure requirements if they can show “a reasonable probability that the compelled disclosure of [personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Buckley v. Valeo, 424 U. S. 1, 74 (1976) (per curiam); see also Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 52); McConnell v. Federal Election Comm’n, 540 U. S. 93, 197–198 (2003); Brown v. Socialist Workers ’74 Campaign Comm.

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(Ohio), 459 U. S. 87, 93 (1982). Because compelled disclosure can “burden the ability to speak,” Citizens United, supra, at ___ (slip op., at 51), and “seriously infringe on privacy of association and belief guaranteed by the First Amendment,” Buckley, supra, at 64, the as-applied exemption plays a critical role in safeguarding First Amendment rights.
I
The possibility of prevailing in an as-applied challenge provides adequate protection for First Amendment rights only if (1) speakers can obtain the exemption sufficiently far in advance to avoid chilling protected speech and (2) the showing necessary to obtain the exemption is not overly burdensome. With respect to the first requirement, the as-applied exemption becomes practically worthless if speakers cannot obtain the exemption quickly and well in advance of speaking. To avoid the possibility that a disclosure requirement might chill the willingness of voters to sign a referendum petition (and thus burden a circulator’s ability to collect the necessary number of signatures, cf. Meyer v. Grant, 486 U. S. 414, 423 (1988)), voters must have some assurance at the time when they are presented with the petition that their names and identifying information will not be released to the public. The only way a circulator can provide such assurance, however, is if the circulator has sought and obtained an as-applied exemption from the disclosure requirement well before circulating the petition. Otherwise, the best the circulator could do would be to tell voters that an exemption might be obtained at some point in the future. Such speculation would often be insufficient to alleviate voters’ concerns about the possibility of being subjected to threats, harassment, or reprisals. Cf. Citizens United, supra, at ___ (slip op., at 5–6) (THOMAS, J., concurring in part and dissenting in part).

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Additionally, speakers must be able to obtain an asapplied exemption without clearing a high evidentiary hurdle. We acknowledged as much in Buckley, where we noted that “unduly strict requirements of proof could impose a heavy burden” on speech. 424 U. S., at 74. Recognizing that speakers “must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim,” we emphasized that speakers “need show only a reasonable probability” that disclosure will lead to threats, harassment, or reprisals. Ibid. (emphasis added). We stated that speakers could rely on a wide array of evidence to meet that standard, including “specific evidence of past or present harassment of [group] members,” “harassment directed against the organization itself,” or a “pattern of threats or specific manifestations of public hostility.” Ibid. Significantly, we also made clear that “[n]ew [groups] that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.” Ibid. From its inception, therefore, the asapplied exemption has not imposed onerous burdens of proof on speakers who fear that disclosure might lead to harassment or intimidation.
II
In light of those principles, the plaintiffs in this case have a strong argument that the PRA violates the First Amendment as applied to the Referendum 71 petition.
A
Consider first the burdens on plaintiffs’ First Amendment rights. The widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case. See Buckley, supra, at 74 (explaining that speakers seeking as-applied relief from a disclosure re-

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ALITO, J., concurring
quirement can rely on “evidence of reprisals and threats directed against individuals or organizations holding similar views”). Proposition 8 amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California,” Cal. Const., Art. I, §7.5, and plaintiffs submitted to the District Court substantial evidence of the harassment suffered by Proposition 8 supporters, see Declaration of Scott F. Bieniek in No. C:09–5456 (WD Wash.), Exhs. 12, 13. Members of this Court have also noted that harassment. See Hollingsworth v. Perry, 558 U. S. ___, ___ (2010) (per curiam) (slip op., at 2–3); Citizens United, 558 U. S., at ___ (slip op., at 2–3) (opinion of THOMAS, J.). Indeed, if the evidence relating to Proposition 8 is not sufficient to obtain an as-applied exemption in this case, one may wonder whether that vehicle provides any meaningful protection for the First Amendment rights of persons who circulate and sign referendum and initiative petitions.
What is more, when plaintiffs return to the District Court, they will have the opportunity to develop evidence of intimidation and harassment of Referendum 71 supporters—an opportunity that was pretermitted because of the District Court’s decision to grant a preliminary injunction on count 1 of plaintiffs’ complaint. See 661 F. Supp. 2d 1194, 1205–1206 (WD Wash. 2009); Tr. of Oral Arg. 40– 41. For example, plaintiffs allege that the campaign manager for one of the plaintiff groups received threatening e-mails and phone calls, and that the threats were so severe that the manager filed a complaint with the local sheriff and had his children sleep in an interior room of his home. App. 9–10.
B
The inadequacy of the State’s interests in compelling public disclosure of referendum signatory information

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further confirms that courts should be generous in granting as-applied relief in this context. See Buckley, supra, at 71 (recognizing that the weakness of the State’s interests in an individual case can require exempting speakers from compelled disclosure); Brown, 459 U. S., at 92–93 (same). As the Court notes, respondents rely on two interests to justify compelled disclosure in this context: (1) providing information to voters about who supports a referendum petition; and (2) preserving the integrity of the referendum process by detecting fraudulent and mistaken signatures. Ante, at 8.
1
In my view, respondents’ asserted informational interest will not in any case be sufficient to trump the First Amendment rights of signers and circulators who face a threat of harassment. Respondents maintain that publicly disclosing the names and addresses of referendum signatories provides the voting public with “insight into whether support for holding a vote comes predominantly from particular interest groups, political or religious organizations, or other group[s] of citizens,” and thus allows voters to draw inferences about whether they should support or oppose the referendum. Brief for Respondent Washington Families Standing Together 58; see also Brief for Respondent Reed 46–48. Additionally, respondents argue that disclosure “allows Washington voters to engage in discussion of referred measures with persons whose acts secured the election and suspension of state law.” Id., at 45; see also Brief for Respondent Washington Families Standing Together 58.
The implications of accepting such an argument are breathtaking. Were we to accept respondents’ asserted informational interest, the State would be free to require petition signers to disclose all kinds of demographic information, including the signer’s race, religion, political

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affiliation, sexual orientation, ethnic background, and interest-group memberships. Requiring such disclosures, however, runs headfirst into a half century of our case law, which firmly establishes that individuals have a right to privacy of belief and association. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 69 (2006); Brown, supra, at 91; Buckley, 424 U. S., at 64; DeGregory v. Attorney General of N. H., 383 U. S. 825, 829 (1966); Gibson v. Florida Legislative Investigation Comm., 372 U. S. 539, 544 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958). Indeed, the State’s informational interest paints such a chilling picture of the role of government in our lives that at oral argument the Washington attorney general balked when confronted with the logical implications of accepting such an argument, conceding that the State could not require petition signers to disclose their religion or ethnicity. Tr. of Oral Arg. 37, 56.
Respondents’ informational interest is no more legitimate when viewed as a means of providing the public with information needed to locate and contact supporters of a referendum. In the name of pursuing such an interest, the State would be free to require petition signers to disclose any information that would more easily enable members of the voting public to contact them and engage them in discussion, including telephone numbers, e-mail addresses, and Internet aliases. Once again, permitting the government to require speakers to disclose such information runs against the current of our associational privacy cases. But more important, when speakers are faced with a reasonable probability of harassment or intimidation, the State no longer has any interest in enabling the public to locate and contact supporters of a particular measure— for in that instance, disclosure becomes a means of facilitating harassment that impermissibly chills the exercise of First Amendment rights.

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In this case, two groups proposed to place on the Internet the names and addresses of all those who signed Referendum 71, and it is alleged that their express aim was to encourage “uncomfortable conversation[s].” 661 F. Supp. 2d, at 1199 (internal quotation marks omitted). If this information is posted on the Internet, then anyone with access to a computer could compile a wealth of information about all of those persons, including in many cases all of the following: the names of their spouses and neighbors, their telephone numbers, directions to their homes, pictures of their homes, information about their homes (such as size, type of construction, purchase price, and mortgage amount), information about any motor vehicles that they own, any court case in which they were parties, any information posted on a social networking site, and newspaper articles in which their names appeared (including such things as wedding announcements, obituaries, and articles in local papers about their children’s school and athletic activities). The potential that such information could be used for harassment is vast.
2
Respondents also maintain that the State has an interest in preserving the integrity of the referendum process and that public disclosure furthers that interest by helping the State detect fraudulent and mistaken signatures. I agree with the Court that preserving the integrity of the referendum process constitutes a sufficiently important state interest. Ante, at 8. But I harbor serious doubts as to whether public disclosure of signatory information serves that interest in a way that always “reflect[s] the seriousness of the actual burden on First Amendment rights.” Davis v. Federal Election Comm’n, 554 U. S. ___, ___ (2008) (slip op., at 18).
First, the realities of Washington law undermine the State’s argument that public disclosure is necessary to

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ALITO, J., concurring
ensure the integrity of the referendum process. The State of Washington first authorized voter initiatives via constitutional amendment in 1912, and the following year the Washington Legislature passed a statute specifying the particulars of the referendum process. See State ex rel. Case v. Superior Ct. for Thurston Cty., 81 Wash. 623, 628, 143 P. 461, 462 (1914). Significantly, Washington’s laws pertaining to initiatives and referenda did not then and do not now authorize the public disclosure of signatory information. See Wash. Rev. Code §29A.72.010 et seq.; 1913 Wash. Laws. pp. 418–437. Instead, the public disclosure requirement stems from the PRA, which was enacted in 1972 and which requires the public disclosure of state documents generally, not referendum documents specifically. See Wash. Rev. Code §42.56.001 et seq. Indeed, if anything, Washington’s referenda and initiative laws suggest that signatory information should remain confidential: Outside observers are permitted to observe the secretary of state’s verification and canvassing process only “so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process,” §29A.72.230, and the State is required to destroy all those petitions that fail to qualify for the ballot, §29A.72.200.
Second, the State fails to come to grips with the fact that public disclosure of referendum signatory information is a relatively recent practice in Washington. Prior to the adoption of the PRA in 1972, the Washington attorney general took the view that referendum petitions were not subject to public disclosure. See Op. Wash. Atty. Gen. 55– 57 No. 274, pp. 1–2 (May 28, 1956), online at http://www.atg.wa.gov/AGOOpinions/opinion.aspx?section =topic&id=10488 (all Internet materials as visited June 17, 2010, and available in Clerk of Court’s case file) (declaring that public disclosure of initiative petitions would be “contrary to public policy” and would run contrary to “a

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9

ALITO, J., concurring
tendency on the part of the legislature to regard the signing of an initiative petition as a matter concerning only the individual signers except in so far as necessary to safeguard against abuses of the privilege”). Indeed, the secretary of state represents on his Web site that even after the PRA was enacted, “various Secretary of State administrations took the position, from 1973 to 1998, that the personal information on petition sheets were NOT subject to disclosure.” B. Zylstra, The Disclosure History of Petition Sheets (Sept. 17, 2009), online at http://blogs.sos.wa.gov/FromOurCorner/index.php/2009/09/ the-disclosure-history-of-petition-sheets/. Although the secretary of state apparently changed this policy in the late 1990’s, it appears that the secretary did not release any initiative petitions until 2006. Ibid. And to date, the secretary has released only a handful of petitions. Ibid.; App. 26. That history substantially undermines the State’s assertion that public disclosure is necessary to ensure the integrity of the referendum process. For nearly a century, Washington’s referendum process operated— and apparently operated successfully—without the public disclosure of signatory information. The State has failed to explain how circumstances have changed so dramatically in recent years that public disclosure is now required.
Third, the experiences of other States demonstrates that publicly disclosing the names and identifying information of referendum signatories is not necessary to protect against fraud and mistake. To give but one example, California has had more initiatives on the ballot than any other State save Oregon. See Initiative and Referendum Institute, Initiative Use, p. 1 (Feb. 2009), online at http://www.iandrinstitute.org/IRI%20Initiative%20Use%2 0%281904=2008%29.pdf. Nonetheless, California law explicitly protects the privacy of initiative and referendum signatories. See Cal. Elec. Code Ann. §18650 (West 2003);

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ALITO, J., concurring
Cal. Govt. Code Ann. §6253.5 (West 2008). It is thus entirely possible for a State to keep signatory information private and maintain a referendum and initiative process free from fraud.
Finally, Washington could easily and cheaply employ alternative mechanisms for protecting against fraud and mistake that would be far more protective of circulators’ and signers’ First Amendment rights. For example, the Washington attorney general represented to us at oral argument that “the Secretary of State’s first step after receiving submitted petitions is to take them to his archiving section and to have them digitized.” Tr. of Oral Arg. 30. With a digitized list, it should be relatively easy for the secretary to check for duplicate signatures on a referendum petition. And given that the secretary maintains a “centralized, uniform, interactive computerized statewide voter registration list that contains the name and registration information of every registered voter in the state,” Wash. Rev. Code Ann. §29A.08.125(1) (West Supp. 2010), the secretary could use a computer program to cross-check the names and addresses on the petition with the names and addresses on the voter registration roles, thus ensuring the accuracy and legitimacy of each signature.
Additionally, using the digitized version of the referendum petition, the State could set up a simple system for Washington citizens to check whether their names have been fraudulently signed to a petition. For example, on his Web site, the secretary maintains an interface that allows voters to confirm their voter registration information simply by inputting their name and date of birth. See http://wei.secstate.wa.gov/osos/VoterVault/Pages/MyVote.a spx. Presumably the secretary could set up a similar interface for referendum petitions. Indeed, the process would seem to be all the more simple given that Washington requires a “unique identifier [to] be assigned to each registered voter in the state.” §29A.08.125(4).

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* * *

As-applied challenges to disclosure requirements play a critical role in protecting First Amendment freedoms. To give speech the breathing room it needs to flourish, prompt judicial remedies must be available well before the relevant speech occurs and the burden of proof must be low. In this case—both through analogy and through their own experiences—plaintiffs have a strong case that they are entitled to as-applied relief, and they will be able to pursue such relief before the District Court.

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1

SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, concurring.
I write separately to emphasize a point implicit in the opinion of the Court and the concurring opinions of JUSTICE STEVENS, JUSTICE SCALIA, and JUSTICE BREYER: In assessing the countervailing interests at stake in this case, we must be mindful of the character of initiatives and referenda. These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy “considerable leeway” to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification). Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 191 (1999). As the Court properly recognizes, each of these structural decisions “inevitably affects—at least to some degree—the individual’s right” to speak about political issues and “to associate with others for political ends.” Anderson v. Celebrezze, 460 U. S. 780, 788 (1983). For instance, requiring petition signers to be registered voters or to use their real names no doubt limits the ability or willingness of some individuals to undertake the expres-

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SOTOMAYOR, J., concurring
sive act of signing a petition. Regulations of this nature, however, stand “a step removed from the communicative aspect of petitioning,” and the ability of States to impose them can scarcely be doubted. Buckley, 525 U. S., at 215 (O’Connor, J., concurring in judgment in part and dissenting in part); see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 345 (1995) (contrasting measures to “control the mechanics of the electoral process” with the “regulation of pure speech”). It is by no means necessary for a State to prove that such “reasonable, nondiscriminatory restrictions” are narrowly tailored to its interests. Anderson, 460 U. S., at 788.
The Court today confirms that the State of Washington’s decision to make referendum petition signatures available for public inspection falls squarely within the realm of permissible election-related regulations. Cf. Buckley, 525 U. S., at 200 (describing a state law requiring petition circulators to submit affidavits containing their names and addresses as “exemplif[ying] the type of regulation” that States may adopt). Public disclosure of the identity of petition signers, which is the rule in the overwhelming majority of States that use initiatives and referenda, advances States’ vital interests in “[p]reserving the integrity of the electoral process, preventing corruption, and sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 788–789 (1978) (internal quotation marks and alterations omitted); see also Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 55) (“[T]ransparency enables the electorate to make informed decisions and give proper weight to different speakers and messages”); Brief for Respondent Washington Families Standing Together 34 (reporting that only one State exempts initiative and referendum petitions from public disclosure). In a society “in which the citizenry is the final

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SOTOMAYOR, J., concurring
judge of the proper conduct of public business,” openness in the democratic process is of “critical importance.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 495 (1975); see also post, at 4 (SCALIA, J., concurring in judgment) (noting that “[t]he public nature of federal lawmaking is constitutionally required”).
On the other side of the ledger, I view the burden of public disclosure on speech and associational rights as minimal in this context. As this Court has observed with respect to campaign-finance regulations, “disclosure requirements . . . ‘do not prevent anyone from speaking.’ ” Citizens United, 558 U. S., at ___ (slip op., at 51). When it comes to initiatives and referenda, the impact of public disclosure on expressive interests is even more attenuated. While campaign-finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the “civic courage” to participate in this process, post, at 10 (opinion of SCALIA, J.), the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.
Given the relative weight of the interests at stake and the traditionally public nature of initiative and referendum processes, the Court rightly rejects petitioners’ constitutional challenge to the State of Washington’s petition disclosure regulations. These same considerations also

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SOTOMAYOR, J., concurring
mean that any party attempting to challenge particular applications of the State’s regulations will bear a heavy burden. Even when a referendum involves a particularly controversial subject and some petition signers fear harassment from nonstate actors, a State’s important interests in “protect[ing] the integrity and reliability of the initiative process” remain undiminished, and the State retains significant discretion in advancing those interests. Buckley, 525 U. S., at 191. Likewise, because the expressive interests implicated by the act of petition signing are always modest, I find it difficult to see how any incremental disincentive to sign a petition would tip the constitutional balance. Case-specific relief may be available when a State selectively applies a facially neutral petition disclosure rule in a manner that discriminates based on the content of referenda or the viewpoint of petition signers, or in the rare circumstance in which disclosure poses a reasonable probability of serious and widespread harassment that the State is unwilling or unable to control. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). Allowing case-specific invalidation under a more forgiving standard would unduly diminish the substantial breathing room States are afforded to adopt and implement reasonable, nondiscriminatory measures like the disclosure requirement now at issue. Accordingly, courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process. With this understanding, I join the opinion of the Court.

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1

Opinion of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE STEVENS, with whom JUSTICE BREYER joins, concurring in part and concurring in the judgment.
This is not a hard case. It is not about a restriction on voting or on speech and does not involve a classic disclosure requirement. Rather, the case concerns a neutral, nondiscriminatory policy of disclosing information already in the State’s possession that, it has been alleged, might one day indirectly burden petition signatories. The burden imposed by Washington’s application of the Public Records Act (PRA) to referendum petitions in the vast majority, if not all, its applications is not substantial. And the State has given a more than adequate justification for its choice.
For a number of reasons, the application of the PRA to referendum petitions does not substantially burden any individual’s expression. First, it is not “a regulation of pure speech.” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 345 (1995); cf. United States v. O’Brien, 391 U. S. 367, 377 (1968). It does not prohibit expression, nor does it require that any person signing a petition disclose or say anything at all. See McIntyre, 514 U. S. 334. Nor does the State’s disclosure alter the content of a speaker’s message. See id., at 342–343.
Second, any effect on speech that disclosure might have is minimal. The PRA does not necessarily make it more

2

DOE v. REED

Opinion of STEVENS, J.
difficult to circulate or obtain signatures on a petition, see Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 193–196 (1999); Meyer v. Grant, 486 U. S. 414, 422–423 (1988), or to communicate one’s views generally. Regardless of whether someone signs a referendum petition, that person remains free to say anything to anyone at any time. If disclosure indirectly burdens a speaker, “the amount of speech covered” is small—only a single, narrow message conveying one fact in one place, Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 165 (2002); cf. Cox v. New Hampshire, 312 U. S. 569 (1941). And while the democratic act of casting a ballot or signing a petition does serve an expressive purpose, the act does not involve any “interactive communication,” Meyer, 486 U. S., at 422, and is “not principally” a method of “individual expression of political sentiment,” Timmons v. Twin Cities Area New Party, 520 U. S. 351, 373 (1997) (STEVENS, J., dissenting); cf. O’Brien, 391 U. S., at 377.1
Weighed against the possible burden on constitutional rights are the State’s justifications for its rule. In this case, the State has posited a perfectly adequate justification: an interest in deterring and detecting petition fraud.2 Given the pedigree of this interest and of similar regulations, the State need not produce concrete evidence that the PRA is the best way to prevent fraud. See Crawford v.
——————
1 Although a “petition” is a classic means of political expression, the type of petition at issue in this case is not merely a document on which people are expressing their views but rather is a state-created forum with a particular function: sorting those issues that have enough public support to warrant limited space on a referendum ballot. Cf. Widmar v. Vincent, 454 U. S. 263, 278 (1981) (STEVENS, J., concurring in judgment).
2 Washington also points out that its disclosure policy informs voters about who supports the particular referendum. In certain election-law contexts, this informational rationale (among others) may provide a basis for regulation; in this case, there is no need to look beyond the State’s quite obvious antifraud interest.

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3

Opinion of STEVENS, J.
Marion County Election Bd., 553 U. S. 181, 191–200 (2008) (opinion of STEVENS, J.) (discussing voting fraud); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 391 (2000) (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”); see also Timmons, 520 U. S., at 375 (STEVENS, J., dissenting) (rejecting “imaginative [and] theoretical” justification supported only by “bare assertion”).3 And there is more than enough evidence to support the State’s election-integrity justification. See ante, at 8–10 (opinion of the Court).
There remains the issue of petitioners’ as-applied challenge. As a matter of law, the Court is correct to keep open the possibility that in particular instances in which a policy such as the PRA burdens expression “by the public enmity attending publicity,” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 98 (1982), speakers may have a winning constitutional claim. “ ‘[F]rom time to time throughout history,’ ” persecuted groups have been able “ ‘to criticize oppressive practices
——————
3 There is no reason to think that our ordinary presumption that the political branches are better suited than courts to weigh a policy’s benefits and burdens is inapplicable in this case. The degree to which we defer to a judgment by the political branches must vary up and down with the degree to which that judgment reflects considered, public-minded decisionmaking. Thus, when a law appears to have been adopted without reasoned consideration, see, e.g., Salazar v. Buono, 559 U. S. ___, ___–___ (2010) (STEVENS, J., dissenting) (slip op., at 22– 23), for discriminatory purposes, see, e.g., Bates v. Little Rock, 361 U. S. 516, 517–518, 524–525 (1960), or to entrench political majorities, see, e.g., Vieth v. Jubelirer, 541 U. S. 267, 317–319, 324–326, 332–333 (2004) (STEVENS, J., dissenting), we are less willing to defer to the institutional strengths of the legislature. That one may call into question the process used to create a law is not a reason to “disregar[d]” “sufficiently strong,” “valid[,] neutral justifications” for an otherwise “nondiscriminatory” policy. Crawford, 553 U. S., at 204. But it is a reason to examine more carefully the justifications for that measure.

4

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Opinion of STEVENS, J.
and laws either anonymously or not at all.’ ” McIntyre, 514 U. S., at 342.4
In my view, this is unlikely to occur in cases involving the PRA. Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.5 Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a sub-

——————
4 JUSTICE SCALIA conceives of the issue as a right to anonymous speech. See, e.g., post, at 1 (opinion concurring in judgment). But our decision in McIntyre posited no such freewheeling right. The Constitution protects “freedom of speech.” Amdt. 1; see also McIntyre, 514 U. S., at 336 (“The question presented is whether [a] . . . statute that prohibits the distribution of anonymous campaign literature is a ‘law . . . abridging the freedom of speech’ within the meaning of the First Amendment”). That freedom can be burdened by a law that exposes the speaker to fines, as much as it can be burdened by a law that exposes a speaker to harassment, changes the content of his speech, or prejudices others against his message. See id., at 342. The right, however, is the right to speak, not the right to speak without being fined or the right to speak anonymously.
5 A rare case may also arise in which the level of threat to any individual is not quite so high but a State’s disclosure would substantially limit a group’s ability to “garner the number of signatures necessary to place [a] matter on the ballot,” thereby “limiting [its] ability to make the matter the focus of statewide discussion.” Meyer v. Grant, 486 U. S. 414, 423 (1988).

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Opinion of STEVENS, J.
stantial burden on speech.6 A statute “is not to be upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they are.” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914).
* * * Accordingly, I concur with the opinion of the Court to the extent that it is not inconsistent with my own, and I concur in the judgment.

——————
6 See, e.g., Bates v. Little Rock, 361 U. S., at 521–522, 523–524; Buckley v. Valeo, 424 U. S. 1, 69–72 (1976) (per curiam); Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 98–101 (1982); Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 197–198 (1999).

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1

SCALIA, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE SCALIA, concurring in the judgment.
Plaintiffs claim the First Amendment, as applied to the States through the Fourteenth Amendment, forbids the State of Washington to release to the public signed referendum petitions, which they submitted to the State in order to suspend operation of a law and put it to a popular vote. I doubt whether signing a petition that has the effect of suspending a law fits within “the freedom of speech” at all. But even if, as the Court concludes, ante, at 5, it does, a long history of practice shows that the First Amendment does not prohibit public disclosure.
I
We should not repeat and extend the mistake of McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995). There, with neither textual support nor precedents requiring the result, the Court invalidated a form of election regulation that had been widely used by the States since the end of the 19th century. Id., at 371 (SCALIA, J., dissenting). The Court held that an Ohio statute prohibiting the distribution of anonymous campaign literature violated the First and Fourteenth Amendments.
Mrs. McIntyre sought a general right to “speak” anonymously about a referendum. Here, plaintiffs go one step further—they seek a general right to participate anony-

2

DOE v. REED

SCALIA, J., concurring in judgment
mously in the referendum itself.1 Referendum petitions are subject to public disclosure under the Public Records Act (PRA), Wash. Rev. Code §42.56.001 et seq., which requires government agencies to “make available for public inspection and copying all public records,” subject to certain exemptions not relevant here. §42.56.070(1) (2008). Plaintiffs contend that disclosure of the names, and other personal information included on the petitions, of those who took this legislative action violates their First Amendment right to anonymity.
Today’s opinion acknowledges such a right, finding that it can be denied here only because of the State’s interest in “preserving the integrity of the electoral process,” ante, at 8. In my view this is not a matter for judicial interestbalancing. Our Nation’s longstanding traditions of legislating and voting in public refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect. “A governmental practice that has become general throughout the United
——————
1 Plaintiffs seem to disavow reliance on McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995), see Reply Brief for Petitioners 12. Certainly, there are differences between McIntyre and this case. Mrs. McIntyre was required to disclose her identity herself, by placing her name on her handbill. Here, plaintiffs do not object to signing their names to the referendum petition, where it can presumably be observed by later signers; they challenge only the later disclosure of that information by the State. But both cases are about public disclosure, and both involve a claim to anonymity under the First Amendment. If anything, the line plaintiffs seek to draw—which seeks a sort of partial anonymity—is stranger still.
JUSTICE STEVENS quibbles with the shorthand I use, and tries to rein in McIntyre’s holding, by saying that it did not create a “right to speak anonymously,” ante, at 4, n. 4 (opinion concurring in part and concurring in judgment). But McIntyre used the same shorthand. See 514 U. S., at 357 (“[t]he right to remain anonymous”); id., at 342 (“[t]he freedom to publish anonymously”); see also ibid. (“an author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment”).

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3

SCALIA, J., concurring in judgment
States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality.” McIntyre, supra, at 375 (SCALIA, J., dissenting).
A
When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator. The Washington Constitution vests “[t]he legislative authority” of the State in the legislature, but “the people reserve to themselves the power . . . to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.” Art. 2, §1. This “referendum” power of popular legislation is exercised by submitting a petition, in accordance with certain specifications, to the Washington secretary of state with valid signatures of registered voters in number equal to or exceeding four percent of the votes cast in the last gubernatorial election. §1(b); Wash. Rev. Code §29A.72.100, 130, 140, 150, 160 (2008).
The filing of a referendum petition that satisfies these requirements has two legal effects: (1) It requires the secretary to place the measure referred to the people on the ballot at the next general election; and (2) it suspends operation of the measure, causing it only to have effect 30 days after it is approved during that election. Art. 2, §1(d). See Brief for Respondent Sam Reed, Secretary of State of Washington 2–6. A voter who signs a referendum petition is therefore exercising legislative power because his signature, somewhat like a vote for or against a bill in the legislature, seeks to affect the legal force of the measure at issue.2
——————
2 The Court notes that “only some petition signing has legal effect.” Ante, at 8, n. 1. That is true. Some petitions may never be submitted to the secretary; they are irrelevant here, since they will never be subject to the PRA. But some petitions that are submitted to the secretary may lack the requisite number of signatures. Even as to

4

DOE v. REED

SCALIA, J., concurring in judgment
Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment.3 Nor do they identify historical evidence demonstrating that “the freedom of speech” the First Amendment codified encompassed a right to legislate without public disclosure. This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public.
The public nature of federal lawmaking is constitutionally required. Article I, §5, cl. 3 requires Congress to legislate in public: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”4 State constitu-
——————
those, the petition signer has exercised his portion of the legislative power when he signs the petition, much like a legislator who casts a losing vote.
3 The Court quotes Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002), which stated that a State “having ‘cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.’ ” Ante, at 6. That is correct, but it is not on point. White involved a prohibition on speaking as a condition of running for judicial office. I do not suggest that a State could require legislators (or the citizen-legislators who participate in a referendum) to give up First Amendment rights unconnected with their act of legislating. The electioneering disclosure cases the Court cites, ante, at 7, are likewise not on point, since they involve disclosure requirements applied to political speech, not legislative action.
4 The exception for “such Parts as may in their Judgment require Secrecy” was assuredly not designed to permit anonymous voting. It refers to details whose disclosure would threaten an important national interest. The similar clause in the Articles of Confederation created an exception to the journal requirement for parts of the proceedings “relating to treaties, alliances or military operations, as in [Congress’s] judgment require secresy.” Art. IX. The Constitution’s requirement is broader, but its object is obviously the same.

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SCALIA, J., concurring in judgment
tions enacted around the time of the founding had similar provisions. See, e.g., Ky. Const., Art. I, §20 (1792); Ga. Const., Art. I, §15 (1798). The desirability of public accountability was obvious. “[A]s to the votes of representatives and senators in Congress, no man has yet been bold enough to vindicate a secret or ballot vote, as either more safe or more wise, more promotive of independence in the members, or more beneficial to their constituents.” 1 J. Story, Commentaries on the Constitution §841, p. 591 (4th ed. 1873).
Moreover, even when the people asked Congress for legislative changes—by exercising their constitutional right to “to petition the Government for a redress of grievances,” U. S. Const., Amdt. 1—they did so publicly. The petition was read aloud in Congress. Mazzone, Freedom’s Associations, 77 Wash. L. Rev. 639, 726 (2002). The petitioner’s name (when large groups were not involved), his request, and what action Congress had taken on the petition were consistently recorded in the House and Senate Journals. See, e.g., Journal of the Senate, June 18, 1790, 1st Cong., 1st Sess., 163; Journal of the House of Representatives, Nov. 24, 1820, 16th Cong., 2d Sess., 32. Even when the people exercised legislative power directly, they did so not anonymously, but openly in town hall meetings. See generally J. Zimmerman, The New England Town Meeting (1999).
Petitioning the government and participating in the traditional town meeting were precursors of the modern initiative and referendum. Those innovations were modeled after similar devices used by the Swiss democracy in the 1800’s, and were first used in the United States by South Dakota in 1898. See S. Piott, Giving Voters a Voice 1–3, 16 (2003). The most influential advocate of the initiative and referendum in the United States analogized the Swiss practice to the town meeting, because both “required open conduct of political affairs and free expression

6

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SCALIA, J., concurring in judgment
of opinions.” Id., at 5 (discussing J. W. Sullivan, Direct Legislation by the Citizenship through the Initiative and Referendum (1892)). Plaintiffs’ argument implies that the public nature of these practices, so longstanding and unquestioned, violated the freedom of speech. There is no historical support for such a claim.
B
Legislating was not the only governmental act that was public in America. Voting was public until 1888 when the States began to adopt the Australian secret ballot. See Burson v. Freeman, 504 U. S. 191, 203 (1992) (plurality opinion). We have acknowledged the existence of a First Amendment interest in voting, see, e.g., Burdick v. Takushi, 504 U. S. 428 (1992), but we have never said that it includes the right to vote anonymously. The history of voting in the United States completely undermines that claim.
Initially, the Colonies mostly continued the English traditions of voting by a show of hands or by voice—viva voce voting. Burson, supra, at 200; E. Evans, A History of the Australian Ballot System in the United States 1–6 (1917) (Evans). One scholar described the viva voce system as follows:
“ ‘The election judges, who were magistrates, sat upon a bench with their clerks before them. Where practicable, it was customary for the candidates to be present in person, and to occupy a seat at the side of the judges. As the voter appeared, his name was called out in a loud voice. The judges inquired, “John Jones (or Smith), for whom do you vote?”—for governor, or whatever was the office to be filled. He replied by proclaiming the name of his favorite. Then the clerks enrolled the vote, and the judges announced it as enrolled. The representative of the candidate for whom he voted arose, bowed, and thanked him aloud; and

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7

SCALIA, J., concurring in judgment
his partisans often applauded.’ ” Id., at 5 (quoting J. Wise, The End of An Era 55–56 (1899)).
See also R. Dinkin, A Study of Elections in the Original Thirteen States, 1776–1789, p. 101 (1982) (Dinkin).
Although there was variation, the election official would ordinarily compile a poll with the name and residence of each voter, and the name of the candidate for whom he voted. See C. Bishop, History of Elections in the American Colonies 160–64 (1893) (Bishop); P. Argersinger, Structure, Process, and Party: Essays in American Political History 47 (1992) (Argersinger). To prevent fraud, the Colonies in Rhode Island, New York, and New Jersey adopted the English rule that “copies of the poll must be delivered on demand to persons who were willing to pay a reasonable charge for the labor of writing them.” Bishop 186. Some colonies allowed candidates to demand a copy of the poll, ibid., and required the legislature to examine the poll in a contested election, id., at 188–189. Thus, as in this case, the government not only publicly collected identifying information about who voted and for which candidate, it also disclosed that information to the public.
Any suggestion that viva voce voting infringed the accepted understanding of the pre-existing freedom of speech to which the First Amendment’s text refers is refuted by the fact that several state constitutions that required or authorized viva voce voting also explicitly guaranteed the freedom of speech. See, e.g., Ky. Const., Art. X, §7, Art. VI, §16 (1799); Ill. Const., Art. VIII, §22, Art. I, §28 (1818). Surely one constitutional provision did not render the other invalid.
Of course the practice of viva voce voting was gradually replaced with the paper ballot, which was thought to reduce fraud and undue influence. See Evans 1–6; Dinkin 101–106. There is no indication that the shift resulted from a sudden realization that public voting infringed

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SCALIA, J., concurring in judgment
voters’ freedom of speech, and the manner in which it occurred suggests the contrary. States adopted the paper ballot at different times, and some States changed methods multiple times. New York’s 1777 Constitution, for example, explicitly provided for the State to switch between methods. Art. VI. Kentucky’s 1792 Constitution required paper ballots, Art. III, §2, but its 1799 Constitution required viva voce voting, Art. VI, §16. The different voting methods simply reflected different views about how democracy should function. One scholar described Virginia’s and Kentucky’s steadfast use of viva voce voting through the Civil War as follows: “[I]n the appeal to unflinching manliness at the polls these two states insisted still that every voter should show at the hustings the courage of his personal conviction.” Schouler, Evolution of the American Voter, 2 The American Historical Review 665, 671 (1897). See also id., at 666–667 (“In Virginia and the other states in close affiliation with her this oral expression was vaunted as the privilege of the free-born voter, to show the faith that was in him by an outspoken announcement of his candidate”).
The new paper ballots did not make voting anonymous. See Evans 10 (“[T]he ballot was not secret”); Argersinger 48 (“Certainly there were no legal provisions to ensure secrecy”). Initially, many States did not regulate the form of the paper ballot. See Evans 10; Argersinger 48–49. Taking advantage of this, political parties began printing ballots with their candidates’ names on them. They used brightly colored paper and other distinctive markings so that the ballots could be recognized from a distance, making the votes public. See Burson, supra, at 200–201; Evans 10–11. Abuse of these unofficial paper ballots was rampant. The polling place had become an “open auction place” where votes could be freely bought or coerced. Burson, supra, at 202. Employers threatened employees. Party workers kept voters from the other party away from

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SCALIA, J., concurring in judgment
the ballot box. Ballot peddlers paid voters and then watched them place the ballot in the box. See L. Fredman, The Australian Ballot: The Story of an American Reform 22–29 (1968); Argersinger 48–50. Thus, although some state courts said that voting by ballot was meant to be more secret than the public act of viva voce voting; and although some state constitutional requirements of ballot voting were held to guarantee ballot secrecy, thus prohibiting the numbering of ballots for voter identification purposes, see Williams v. Stein, 38 Ind. 89 (1871); Brisbin v. Cleary, 26 Minn. 107, 1 N. W. 825 (1879); in general, voting by ballot was by no means secret. Most important of all for present purposes, I am aware of no assertion of ballot secrecy that relied on federal or state constitutional guarantees of freedom of speech.
It was precisely discontent over the nonsecret nature of ballot voting, and the abuses that produced, which led to the States’ adoption of the Australian secret ballot. New York and Massachusetts began that movement in 1888, and almost 90 percent of the States had followed suit by 1896. Burson, 504 U. S., at 203–205. But I am aware of no contention that the Australian system was required by the First Amendment (or the state counterparts). That would have been utterly implausible, since the inhabitants of the Colonies, the States, and the United States had found public voting entirely compatible with “the freedom of speech” for several centuries.
***
The long history of public legislating and voting contradicts plaintiffs’ claim that disclosure of petition signatures having legislative effect violates the First Amendment. As I said in McIntyre, “[w]here the meaning of a constitutional text (such as ‘the freedom of speech’) is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs

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SCALIA, J., concurring in judgment
it was intended to enshrine.” 514 U. S., at 378 (dissenting opinion). Just as the century-old practice of States’ prohibiting anonymous electioneering was sufficient for me to reject the First Amendment claim to anonymity in McIntyre, the many-centuries-old practices of public legislating and voting are sufficient for me to reject plaintiffs’ claim.
Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted). And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for selfgovernance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

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1

THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–559
_________________
JOHN DOE #1, ET AL., PETITIONERS v. SAM REED, 
 WASHINGTON SECRETARY OF STATE, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 24, 2010] 

JUSTICE THOMAS, dissenting.
Just as “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy,” Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam), so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions1 under the Washington Public Records Act (PRA), Wash. Rev. Code §42.56.001, et seq. (2008), severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent.

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1 Generally speaking, in a referendum, voters approve or reject an Act already passed by the legislature. In an initiative, voters adopt or reject an entirely new law, either a statute or a constitutional amendment. See T. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 2 (1989).

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THOMAS, J., dissenting
I
This case concerns the interaction of two distinct sets of Washington statutes. The first set, codified in Washington’s Election Code, regulates the referendum and initiative process. These statutes require, among other things, that referendum signers write their names and addresses on petition sheets, and mandate that this information be disclosed to Washington’s secretary of state for canvassing and verification. See, e.g., §§29A.72.130, 29A.72.230 (2008). Petitioners do not contend that these requirements violate their First Amendment rights; that is, they do not argue that the Constitution allows them to support a referendum measure without disclosing their names to the State.
The second set of statutes—the PRA—is not a referendum or election regulation. Rather, the PRA requires disclosure of all nonexempt “public records” upon request by any person. See §§42.56.010(2), 42.56.070. Washington has concluded that signed referendum petitions are “public records” subject to disclosure under the PRA, and has “routinely disclosed petitions in response to public records requests.” Brief for Respondent Reed 5–6.
Petitioners do not challenge the constitutionality of the PRA generally. They contend only that Washington violates their First Amendment rights by construing the PRA to apply to signed referendum petitions. See Brief for Petitioners 35–39. As the Court notes, the parties dispute whether this challenge is best conceived as a facial challenge or an as-applied challenge. See ante, at 5. In my view, the Court correctly concludes that petitioners must “satisfy our standards for a facial challenge” because their claim, and the relief that they seek, “reach beyond” their “particular circumstances.” Ibid.
We typically disfavor facial challenges. See Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 449 (2008). They “often rest on speculation,”

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can lead courts unnecessarily to anticipate constitutional questions or formulate broad constitutional rules, and may prevent governmental officers from implementing laws “in a manner consistent with the Constitution.” Id., at 450– 451. For those reasons, we rejected in Washington State Grange political parties’ pre-enforcement facial challenge to a Washington initiative that allowed candidates in a primary election to self-designate their political party preference on the primary election ballot. See id., at 458– 459. Because the challenge was a pre-enforcement one, Washington “had no opportunity to implement” the initiative, id., at 450, so the political parties’ arguments that it violated their association rights all depended “on the possibility that voters will be confused as to the meaning of the party-preference designation,” id., at 454. Moreover, a facial challenge was inappropriate because the regulation did “not on its face impose a severe burden on political parties’ associational rights.” Id., at 444.
Those considerations point in the opposite direction here. Washington’s construction of the PRA “on its face impose[s] a severe burden,” ibid.—compelled disclosure of privacy in political association protected by the First Amendment, see infra, at 4–5—on all referendum signers. And Washington has had several “opportunit[ies] to implement” the PRA’s disclosure requirements with respect to initiative petitions. Washington State Grange, supra, at 450. Indeed, Washington admits that “[a]ll petitions for initiatives, referendum, recall, and candidate nomination are public records subject to disclosure.” Brief for Respondent Reed 59; see also App. 26 (listing six completed requests for disclosure of signed initiative petitions since 2006). Washington thus has eliminated any “possibility” that referendum petition signers “will be confused as to” how the State will respond to a request under the PRA to disclose their names and addresses. Washington State Grange, 552 U. S., at 454.

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Accordingly, I would consider petitioners’ facial challenge here. For purposes of this case, I will assume that to prevail, petitioners must satisfy our most rigorous standard, and show that there is “ ‘no set of circumstances . . . under which the’ ” PRA could be constitutionally applied to a referendum or initiative petition, “i.e., that the [PRA] is unconstitutional in all of its applications,” id., at 449 (quoting United States v. Salerno, 481 U. S. 739, 745 (1987)).
II 
 A 

The Court correctly concludes that “an individual expresses” a “political view” by signing a referendum petition. Ante, at 5. The Court also rightly rejects the baseless argument that such expressive activity falls “outside the scope of the First Amendment” merely because “it has legal effect in the electoral process.” Ante, at 6. Yet, the Court does not acknowledge the full constitutional implications of these conclusions.
The expressive political activity of signing a referendum petition is a paradigmatic example of “the practice of persons sharing common views banding together to achieve a common end.” Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290, 294 (1981). A referendum supported by only one person’s signature is a nullity; it will never be placed on the ballot. The Doe petitioners recognized as much when they—and more than 120,000 other Washingtonians, see ante, at 3— joined with petitioner Protect Marriage Washington, “a state political action committee” organized under §42.17.040, to effect Protect Marriage Washington’s “major purpose” of collecting enough valid signatures to place Referendum 71 on the general election ballot. App. to Pet. for Cert. 29a. For these reasons, signing a referendum petition amounts to “ ‘political association’ ” protected by

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the First Amendment. Citizens Against Rent Control, supra, at 295 (quoting Buckley v. Valeo, 424 U. S. 1, 15 (1976) (per curiam)).
This Court has long recognized the “vital relationship between” political association “and privacy in one’s associations,” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958), and held that “[t]he Constitution protects against the compelled disclosure of political associations and beliefs,” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87, 91 (1982). This constitutional protection “yield[s] only to a subordinating interest of the State that is compelling, and then only if there is a substantial relation between the information sought and an overriding and compelling state interest.” Id., at 91–92 (internal quotation marks, citations, and brackets omitted). Thus, unlike the Court, I read our precedents to require application of strict scrutiny to laws that compel disclosure of protected First Amendment association. Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 206, 212 (1999) (ACLF) (THOMAS, J., concurring in judgment). Under that standard, a disclosure requirement passes constitutional muster only if it is narrowly tailored—i.e., the least restrictive means—to serve a compelling state interest. See id., at 206.
B
Washington’s application of the PRA to a referendum petition does not survive strict scrutiny.
1
Washington first contends that it has a compelling interest in “transparency and accountability,” which it claims encompasses several subordinate interests: preserving the integrity of its election process, preventing corruption, deterring fraud, and correcting mistakes by the secretary of state or by petition signers. See Brief for

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Respondent Reed 40–42; 57–59. It is true that a State has a substantial interest in regu-
lating its referendum and initiative processes “to protect the[ir] integrity and reliability.” ACLF, 525 U. S., at 191. But Washington points to no precedent from this Court recognizing “correcting errors” as a distinct compelling interest that could support disclosure regulations. And our cases strongly suggest that preventing corruption and deterring fraud bear less weight in this particular electoral context: the signature-gathering stage of a referendum or initiative drive. The Court has twice observed that “ ‘the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting.’ ” Id., at 203 (quoting Meyer v. Grant, 486 U. S. 414, 427 (1988)). Similarly, because “[r]eferenda are held on issues, not candidates for public office,” the “risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 790 (1978) (citations omitted).
We should not abandon those principles merely because Washington and its amici can point to a mere eight instances of initiative-related fraud, see Brief for Respondent Reed 42; Brief for State of Ohio et al. as Amici Curiae 22–24, among the 809 initiative measures placed on state ballots in this country between 1988 and 2008, see Initiative and Referendum Institute, Initiative Use 2 (Feb. 2009), online at http://www.iandrinstitute.org/ IRI%20Initiative%20Use%20(1904-2008).pdf (as visited June 21, 2010, and available in Clerk of Court’s case file). If anything, these meager figures reinforce the conclusion that the risks of fraud or corruption in the initiative and referendum process are remote and thereby undermine Washington’s claim that those two interests should be considered compelling for purposes of strict scrutiny.
Thus, I am not persuaded that Washington’s interest in

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protecting the integrity and reliability of its referendum process, as the State has defined that interest, is compelling. But I need not answer that question here. Even assuming the interest is compelling, on-demand disclosure of a referendum petition to any person under the PRA is “a blunderbuss approach” to furthering that interest, Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604, 642 (1996) (THOMAS, J., concurring in judgment and dissenting in part) (internal quotation marks omitted), not the least restrictive means of doing so. The events that prompted petitioners’ complaint in this case demonstrate as much.
As Washington explained during oral argument, after the secretary of state receives signed referendum petitions, his “first step . . . is to take them to his archiving section and to have them digitized. As soon as they’re digitized, they’re available on disks for anyone who requests them” under the PRA. Tr. of Oral Arg. 30. In this case, two organizations announced their intention to obtain the digitized names and addresses of referendum signers and post them “online, in a searchable format.” Ante, at 3.
There is no apparent reason why Washington must broadly disclose referendum signers’ names and addresses in this manner to vindicate the interest that it invokes here. Washington—which is in possession of that information because of referendum regulations that petitioners do not challenge, see supra, at 2—could put the names and addresses of referendum signers into a similar electronic database that state employees could search without subjecting the name and address of each signer to wholesale public disclosure. The secretary could electronically crossreference the referendum database against the “statewide voter registration list” contained in Washington’s “state-

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wide voter registration database,” §29A.08.651(1),2 to ensure that each referendum signer meets Washington’s residency and voter registration requirements, see §29A.72.130. Doing so presumably would drastically reduce or eliminate possible errors or mistakes that Washington argues the secretary might make, see Brief for Respondent Reed 42, since it would allow the secretary to verify virtually all of the signatures instead of the mere “3 to 5%” he “ordinarily checks,” ante, at 9 (internal quotation marks omitted).3
An electronic referendum database would also enable the secretary to determine whether multiple entries correspond to a single registered voter, thereby detecting whether a voter had signed the petition more than once. In addition, the database would protect victims of “forgery” or “ ‘bait and switch’ fraud.” Ibid. In Washington, “a unique identifier is assigned to each legally registered voter in the state.” §29A.08.651(4). Washington could create a Web site, linked to the electronic referendum database, where a voter concerned that his name had been fraudulently signed could conduct a search using his unique identifier to ensure that his name was absent from the database—without requiring disclosure of the names and addresses of all the voluntary, legitimate signers.
Washington admits that creating this sort of electronic referendum database “could be done.” Tr. of Oral Arg. 51. Implementing such a system would not place a heavy burden on Washington; “the Secretary of State’s staff”
——————
2 Under Washington law, this “computerized list must serve as the single system for storing and maintaining the official list of registered voters throughout the state” and “must contain the name and registration information of every legally registered voter in the state.” Wash. Rev. Code §§29A.08.651(2)–(3) (2008).
3 See §29A.72.230 (permitting the secretary of state to verify and canvass referendum petitions using approved statistical sampling methods).

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already uses an “electronic voter registration database” in its “verification process.” Id., at 50.
Washington nevertheless contends that its citizens must “have access to public records . . . to independently evaluate whether the Secretary properly determined to certify or not to certify a referendum to the ballot.” Brief for Respondent Reed 41. “[W]ithout the access to signed petitions that the PRA provides,” Washington argues, its “citizens could not fulfill their role as the final judge of public business.” Ibid. (internal quotation marks omitted).
But Washington’s Election Code already gives Washington voters access to referendum petition data. Under §29A.72.230, “[t]he verification and canvass of signatures on the [referendum] petition may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records except upon” court order. Each side is entitled to at least two such observers, although the secretary may increase that number if, in his opinion, doing so would not “cause undue delay or disruption of the verification process.” Ibid.
Washington does not explain why this existing access, which petitioners do not challenge here, is insufficient to permit its citizens to oversee the verification process under §29A.72.230, or to decide intelligently whether to pursue a court challenge under §29A.72.240. Moreover, if Washington had implemented the more narrowly tailored electronic referendum database discussed above, observers could see the secretary of state’s employees examine the data using exactly the same techniques they would use if the data were released to them under the PRA. Obtaining a digitized list to navigate on their own computer would not allow an observer to learn any additional information.
Washington law also contains several other measures that preserve the integrity of the referendum process.

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First, it is a crime in Washington to forge a signature on a referendum petition, or to knowingly sign one more than once. See §29A.84.230. Second, referendum supporters must gather a large number of valid signatures—four percent of the votes cast for Governor in the immediately preceding gubernatorial election—to place a referendum petition on the ballot. §29A.72.150. Third, Washington’s required referendum petition form limits each petition to a single subject. See §29A.72.130. Fourth, a large, plainEnglish warning must appear at the top of the referendum petition, alerting signers to the law’s requirements. See §29A.72.140. Fifth, Washington prescribes the text of the declaration that a circulator must submit along with the signed petition sheets. See §29A.72.130. Sixth, Washington prescribes verification and canvassing methods. See §29A.72.230.
The Court’s dismissive treatment of those provisions, see ante, at 9, is perplexing, given the analysis that the Court endorsed in ACLF. There, the Court held that two disclosure requirements governing Colorado’s initiative process were unconstitutional, see 525 U. S., at 186–187, specifically finding that they were “not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify” them, and emphasizing that its “judgment [wa]s informed by other means Colorado employs to accomplish its regulatory purposes.” Id., at 192. The entire last section of the Court’s opinion detailed those “less problematic measures” by which Colorado “can and d[id] meet” its “substantial interests in regulating the ballot-initiative process.” Id., at 204 (emphasis added). With one exception—a law deeming an initiative void if the circulator violated any law applicable to the circulation process—those Colorado laws correspond exactly to the Washington regulatory requirements listed above. See id., at 205. Including the observer provision, §29A.72.230, and the provision permitting court review of

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the secretary’s decision to certify (or not to certify) a referendum petition, §29A.72.240, Washington thus appears to provide even more of the “less problematic measures” than Colorado did to “protect the integrity of the initiative process,” ACLF, supra, at 204, and I see no reason why Washington’s identical provisions should not “inform” the analysis here.
It is readily apparent that Washington can vindicate its stated interest in “transparency and accountability” through a number of more narrowly tailored means than wholesale public disclosure. Accordingly, this interest cannot justify applying the PRA to a referendum petition.
2
Washington also contends that it has a compelling interest in “providing relevant information to Washington voters,” and that on-demand disclosure to the public is a narrowly tailored means of furthering that interest. Brief for Respondent Reed 44. This argument is easily dispatched, since this Court has already rejected it in a similar context.
In McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995), the Court held that an Ohio law prohibiting anonymous political pamphleting violated the First Amendment. One of the interests Ohio had invoked to justify that law was identical to Washington’s here: the “interest in providing the electorate with relevant information.” Id., at 348. The Court called that interest “plainly insufficient to support the constitutionality of [Ohio’s] disclosure requirement.” Id., at 349. “The simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit.” Id., at 348. “Don’t underestimate the common man,” we advised. Id., at 348, n. 11 (internal quotation marks omitted).

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“People are intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They know it is anonymous. They can evaluate its anonymity along with its message. . . . And then, once they have done so, it is for them to decide what is ‘responsible,’ what is valuable, and what is truth.” Ibid. (internal quotation marks omitted).
See also Bellotti, 435 U. S., at 777 (“The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source”).
This observation applies equally to referendum measures. People are intelligent enough to evaluate the merits of a referendum without knowing who supported it. Thus, just as this informational interest did not justify the Ohio law in McIntyre, it does not justify applying the PRA to referendum petitions.
C
The foregoing analysis applies in every case involving disclosure of a referendum measure’s supporters, as it must for petitioners’ facial challenge to succeed. See Washington State Grange, 552 U. S., at 449 (quoting Salerno, 481 U. S., at 745). Washington does not argue that the strength of its transparency and accountability interest rises or falls based on the topic of a referendum. Nor would such an argument be convincing. We have no basis to assume that Washington’s interest in maintaining the integrity of its referendum process is high for a charter-school referendum but low for an unemployment insurance referendum, or that a library or land-use referendum is more likely to be a target of fraud or corruption than a referendum on insurance coverage and benefits. See ante, at 11–12. The strength of Washington’s interest remains constant across all types of referendum measures.
So too does the strength of a signer’s First Amendment interest. The First Amendment rights at issue here are

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associational rights, and a long, unbroken line of this Court’s precedents holds that privacy of association is protected under the First Amendment. See supra, at 4–5. The loss of associational privacy that comes with disclosing referendum petitions to the general public under the PRA constitutes the same harm as to each signer of each referendum, regardless of the topic. To be sure, a referendum signer may be more willing to disclose to the general public his political association with persons signing certain referendum measures than his association with others. But that choice belongs to the voter; the State may not make it for him by ascribing a lower level of First Amendment protection to an associational interest that some think a voter may be (or should be) more willing to disclose. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828 (1995) (“In the realm of private speech or expression, government regulation may not favor one speaker over another”).
Finally, the less restrictive means available to vindicate Washington’s transparency and accountability interest can be employed for all referendum measures, regardless of topic. There is nothing measure-specific about an electronic database or additional observers. And the forgery prohibition and other existing requirements in Washington law that help “protect the integrity of the initiative process,” ACLF, 525 U. S., at 204, apply equally to all referendum measures.
Because the strength of Washington’s interest in transparency and a signer’s individual First Amendment interest in privacy of political association remain constant across all referendum topics, and because less restrictive means to protect the integrity of the referendum process are not topic specific, I would hold that on-demand public disclosure of referendum petitions under the PRA is not narrowly tailored for any referendum.

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III
Significant practical problems will result from requiring as-applied challenges to protect referendum signers’ constitutional rights.
A
The Court’s approach will “require substantial litigation over an extended time” before a potential signer of any referendum will learn whether, if he signs a referendum, his associational privacy right will remain intact. Citizens United v. Federal Election Comm’n, 558 U. S. ___, ___ (2010) (slip op., at 9). And the tenacious litigant’s reward for trying to protect his First Amendment rights? An “interpretive process [that] itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable.” Id., at ___ (slip op., at 9–10). The large number of such fine and questionable distinctions in these types of cases reinforces my view that as-applied challenges provide no more than “a hollow assurance” that referendum signers’ First Amendment rights will be protected. Id., at __ (slip op., at 5) (THOMAS, J., concurring in part and dissenting in part). Consider just a few examples.
In Washington, a referendum sponsor must file the proposed referendum with the secretary of state before collecting signatures. See §29A.72.010. May the sponsor seek an injunction against disclosure through an asapplied challenge before filing the proposed measure, or simultaneously with its filing? Because signaturegathering will not have started, the sponsor will not be able to present any evidence specific to signers or potential signers of that particular referendum showing “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private

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parties.” Ante, at 11 (internal quotation marks omitted). Thus, to succeed at that stage of litigation, plaintiffs must point to (at least) one other instance of harassment arising from a similar referendum. The Court has never held that such evidence would be acceptable; but if it is, that necessarily means that some signers, at some point, will have suffered actual “threats, harassment, and reprisals” for engaging in protected First Amendment activity.
If the sponsor must wait at least until signaturegathering has started on his referendum to file an asapplied challenge, it is still unclear what sort of evidence of “threats, harassment, or reprisals” directed toward his supporters would satisfy the Court’s standard. How many instances of “threats, harassment or reprisals” must a signer endure before a court may grant relief on an asapplied challenge? And how dispersed throughout the group of the necessary 120,000 signers, see ante, at 3, must these threats be?
More importantly, the Court’s standard does not appear to require actual “threats, harassment, or reprisals,” but merely a “ ‘reasonable probability’ ” that disclosure of the signers’ names and addresses will lead to such activity. Ante, at 11 (emphasis added). What sort of evidence suffices to satisfy this apparently more relaxed, though perhaps more elusive, standard? Does one instance of actual harassment directed toward one signer mean that the “reasonable probability” requirement is met? And again, how widespread must this “reasonable probability” be? The Court does not answer any of these questions, leaving a vacuum to be filled on a case-by-case basis. This will, no doubt, result in the “drawing of” arbitrary and “questionable” “fine distinctions” by even the most well-intentioned district or circuit judge. Citizens United, 558 U. S., at ___ (slip op., at 9–10).

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B 

In addition, as I have previously explained, the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed. “ ‘[T]he advent of the Internet’ enables” rapid dissemination of “ ‘the information needed’ to” threaten or harass every referendum signer. Id., at ___ (slip op., at 6) (opinion of THOMAS, J.). “Thus, ‘disclosure permits citizens . . . to react to the speech of [their political opponents] in a proper’—or undeniably improper—‘way’ long before a plaintiff could prevail on an as-applied challenge.” Ibid.
The Court apparently disagrees, asserting that “there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.” Ante, at 12. That conclusion rests on the premise that some referendum measures are so benign that the fact of public disclosure will not chill protected First Amendment activity. I am not convinced that this premise is correct.
The historical evidence shows that the referendum and initiative process first gained popularity as a means of “provid[ing] an occasional safety valve for interests that failed to get a fair hearing in the legislatures.” T. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 59 (1989). Unsurprisingly, such interests tended to be controversial by nature. Early examples include “the single tax, prohibition, women’s suffrage, prolabor legislation, and the graduated income tax.” Id., at 58. And proponents of initiative measures tended to include politically marginalized groups such as the “Farmer’s Alliance” in rural states; “[t]housands of labor federations, notably the miners”; and “the Women’s Suffrage Association,” which “saw the initiative and referendum as a possible new means to overcome” repeated failed attempts in state legislatures to secure for women the

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right to vote. Id., at 50–51. These characteristics of initiative and referendum
drives persist today. Consider, for example, the goal of increasing ethics in government—a seemingly laudable and unobjectionable goal. So thought some citizens of Utah, who, frustrated with the state legislature’s failure to pass ethics laws commensurate with their preferences, filed a “21-page initiative target[ing] legislative conduct with a broad array of reforms that would significantly change how business gets done on Utah’s Capitol Hill.” McKitrick, Suit Demands Secrecy for Ethics Petition Signers, Salt Lake Tribune, Apr. 15, 2010, p. A4 (hereinafter Salt Lake Tribune). But Utah law provides that “[i]nitiative packets,” which contain the names and addresses (and, in some cases, birthdates) of petition signers, “are public once they are delivered to the county clerks” for verification and canvassing. Utah Code Ann. §20A–7– 206(7) (2009 Lexis Supp. Pamphlet).
The attorneys sponsoring that initiative moved for an injunction to prevent disclosure of the initiative packets under §20A–7–206(7) because, they claimed, “ ‘[t]he [state] Republican Party has said it will target our folks.’ ” Salt Lake Tribune, at A4. According to these attorneys, a facially benign initiative may well result in political retribution and retaliation in a State where Republicans currently hold the offices of Governor, Lieutenant Governor, attorney general, state treasurer, state auditor, and a supermajority in both the Utah House of Representatives (71%) and the Utah Senate (72%), see State Yellow Book: Who’s Who in the Executive and Legislative Branches of the 50 State Governments 650–651, 1292–1294 (Spring 2010), as well as four of the five seats in the State’s delegation to the United States Congress, see GPO, 2009–2010 Official Congressional Directory, 111th Cong., pp. 299, 307 (2009).
The difficulty in predicting which referendum measures

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will prove controversial—combined with Washington’s default position that signed referendum petitions will be disclosed on-demand, thereby allowing anyone to place this information on the Internet for broad dissemination— raises the significant probability that today’s decision will “inhibit the exercise of legitimate First Amendment activity” with respect to referendum and initiative petitions. Colorado Republican, 518 U. S., at 634 (THOMAS, J., concurring in judgment and dissenting in part). “[D]isclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights.” Citizens United, 558 U. S., at ___ (slip op., at 5) (THOMAS, J., concurring in part and dissenting in part). Our cases have long recognized this reality;4 as the Court recently reiterated, the First Amendment does not require “case-by-case determinations” if “archetypical” First Amendment rights “would be chilled in the meantime.” Id., at ___ (slip op., at 12).
This chill in protected First Amendment activity harms others besides the dissuaded signer. We have already expressed deep skepticism about restrictions that “mak[e] it less likely that” a referendum “will garner the number of signatures necessary to place the matter on the ballot,
——————
4 See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 462 (1958) (noting the “hardly . . . novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute” an “effective . . . restraint on freedom of association”); Bates v. Little Rock, 361 U. S. 516, 523 (1960) (“Freedoms such as” the “freedom of association for the purpose of advancing ideas and airing grievances” are “protected not only against heavy-handed frontal attack, but also from being stifled by more subtle government interference”); see also id., at 528 (Black and Douglas, JJ., concurring) (“First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government” (emphasis added)).

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thus limiting [the] ability to make the matter the focus of statewide discussion.” Meyer, 486 U. S., at 423. Such restrictions “inevitabl[y] . . . reduc[e] the total quantum of speech on a public issue.” Ibid. The very public that the PRA is supposed to serve is thus harmed by the way Washington implements that statute here.
* * *
Petitioners do not argue that the Constitution gives supporters of referendum petitions a right to act without anyone knowing their identities. Thus, Washington’s requirements that referendum supporters sign their names and addresses to a referendum petition, and that this information be disclosed to the State for canvassing and verification, see Wash. Rev. Code §29A.72.230, are not at issue. And, petitioners do not contend that Washington’s citizens may never obtain access to referendum data. Thus, Washington’s rules allowing access to at least two representative observers from each side, see ibid., and authorizing courts to review the secretary of state’s verification and canvassing decision if those observers are dissatisfied with the secretary’s decision, see §29A.72.240, are also not in question.
The Court is asked to assess the constitutionality of the PRA only with regard to referendum petitions. The question before us is whether all signers of all referendum petitions must resort to “substantial litigation over an extended time,” Citizens United, supra, at ___ (slip op., at 9), to prevent Washington from trenching on their protected First Amendment rights by subjecting their referendum-petition signatures to on-demand public disclosure. In my view, they need not.

 
 Case 3:09-cv-05456-BHS Document 151 Filed 10/05/10 Page 1 of 2

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT TACOMA

10

11 JOHN DOE #1, et al.,

12

Plaintiffs,

CASE NO. C09-5456BHS

13

v.

14 SAM REED, et al.,

15

Defendants.

ORDER DENYING PLAINTIFFS MOTION FOR RECONSIDERATION

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17

18

This matter comes before the Court on Plaintiffs’ motion to reconsider the Court’s

19 order granting the intervention of Washington Families Standing Together (“WFST”) and

20 Washington Coalition for Open Government (“WCOG”). Dkt. 124. The Court has

21 considered the pleadings filed in support of the motion and the remainder of the file and

22 hereby denies the motion for the reasons stated herein.

23

On September 3, 2009, the Court granted the motions to intervene by WFST and

24 WCOG. See Dkt. 62 (granting motions at preliminary injunction hearing). On September 25 10, 2010, the Court granted a preliminary injunction in this matter. Dkt. 63. The matter 26 then went up on appeal and reached the United States Supreme Court, which reversed and 27

28

ORDER - 1

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1 remanded for further proceedings in this Court. Dkt. 102. The Court thereafter regained 2 jurisdiction over this matter. Dkt. 104 (mandate of the United States Supreme Court).

3

On September 3, 2010, Plaintiffs filed the instant motion to reconsider the Court’s

4 prior grant of intervention as it related to WFST and WCOG. Dkt. 124. Plaintiffs argue

5 that the intervention of WFST and WCOG is no longer proper and that the Court should

6 reconsider its prior granting of their intervention. See generally Dkt. 124.

7

Motions for reconsideration are governed by Local Rule CR 7(h), which provides

8 as follows:

9

Motions for reconsideration are disfavored. The court will ordinarily deny

10

such motions in the absence of a showing of manifest error in the prior ruling

or a showing of new facts or legal authority which could not have been

11

brought to its attention earlier with reasonable diligence.

12

The Court recognizes, and Plaintiffs point out, that the nature of the case has

13 substantially changed, considering the reversal and remand of the Court’s order granting

14 Plaintiffs’ motion for a preliminary injunction. However, Plaintiffs have not adequately

15 met their burden on reconsideration to warrant reconsideration of the Court’s grant of

16 intervention to WFST and WCOG.

17

Therefore, it is hereby ORDERED that Plaintiffs’ motion to reconsider (Dkt. 124)

18 is DENIED.

19 20 21

DATED this 5th day of October, 2010.

A

22

BENJAMIN H. SETTLE

23

United States District Judge

24

25

26

27

28

ORDER - 2

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

8

9 JOHN DOE #1, et al.,

10

Plaintiffs,

CASE NO. C09-5456BHS

11

v.

12 SAM REED, et al.,

13

Defendants.

14

15

ORDER DENYING PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND GRANTING INTERVENOR WASHINGTON FAMILIES STANDING TOGETHER’S MOTION TO SEAL

16

17

This matter comes before the Court on Plaintiffs’ motion for a blanket protective

18 order (Dkt. 125) and Intervenor Washington Families Standing Together’s (“WFST”)

19 motion to seal (Dkt. 131). The Court has considered the pleadings filed in support of and

20 in opposition to the motions and the remainder of the file and hereby denies Plaintiffs’

21 motion (Dkt. 125) and grants WFST’s motion (Dkt. 131) for the reasons stated herein.

22

I. PROCEDURAL HISTORY

23

On September 3, 2010, Plaintiffs filed the instant motion for a blanket protective

24 order regarding the identities of certain witnesses. Dkt. 125. On September 15, 2010, 25 WFST opposed the motion. Dkt. 129. On September 17, 2010, Plaintiffs replied. Dkt. 26 137. 27

28

ORDER - 1

1

On September 15, 2010, WFST moved the Court to seal two exhibits filed in

2 support of its opposition to the instant motion for protective order. Dkt. 131. This motion

3 is unopposed.

4

II. DISCUSSION

5 A. Meet and Confer Requirement

6

Absent from the record with respect to Plaintiffs’ motion is “certification that [it]

7 has in good faith conferred or attempted to confer with other affected parties in an effort
8 ot resolve the dispute without court action.” See Fed. R. Civ. P. 26(c)(1). Although the
9 parties apparently did conduct a teleconference prior to the filing of this motion, WFST
10 maintains and Plaintiffs do not dispute that the instant motion is beyond the scope of what
11
was agreed to be the scope of the requested protective order. Compare Dkt. 129 at 4 12

13 (WFST’s response in opposition) with Dkt. 137 (reply not addressing WFST’s arguments

14 regarding the meet and confer requirement). This alone is a basis on which to deny

15 Plaintiffs’ motion for protective order.

16 B. Protective Orders, Generally

17

Pursuant to Fed. R. Civ. P. 26(c), protective orders should be issued “for good

18 cause shown.” This is a public court and its business should be conducted publicly unless

19 there is a specific reason to keep things confidential. As stated in Local Civil Rule 5(g),

20 “[t]here is a strong presumption of public access to the court’s files and records which

21 may be overcome only on a compelling showing that the public’s right of access is
22 outweighed by the interests of the public and the parties in protecting files, records, or
23 documents from public review.” On the few occasions when protective orders are 24 appropriate, they should be narrowly drawn with a presumption in favor of open and 25
public litigation. The showing necessary to establish good cause has been described as 26
follows: 27

28

ORDER - 2

1

To establish good cause for a protective order under Fed. R. Civ. P.

26(c), the courts have insisted on a particular and specific factual

2

demonstration, as distinguished from stereotyped and conclusory

statements, revealing some injustice, prejudice, or consequential harm that

3

will result if protection is denied. Broad allegations of harm,

4

unsubstantiated by specific examples of articulated reasoning, do not satisfy the rule.

5

The party requesting a protective order must make a specfic demonstration of facts in support of the request as opposed to conclusory or

6

speculative statements about the need for a protective order and the harm which will be suffiered without one. Such a party must demonstrate that

7

failure to issue the order will work a clearly defined harm.

8 10A Fed. Proc. Law. Ed. § 26:282 (emphasis added); see also Beckman Indus., Inc. v.

9 Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992); In Beckman, the Court also stated that

10 “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,

11 do not satisfy the Rule 26(c) test.” 996 F.2d at 476 (quoting Cipollone v. Ligget Group,

12 Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986)).

13

Before this Court will entertain a motion for a protective order, the following is

14 required:

15

1. The party seeking a protective order, stipulated or otherwise, must make a

16 compelling showing that their interest in the various “confidential materials” described in

17 the proposed order outweighs the public’s right of access to Court documents.
18 2. The request must be narrow and the terms of the order may not give too
19 much discretion to the parties to designate documents subject to the protective order.
20

Any protective order entered by the Court must be narrowly drawn and clearly identify 21

22 the class or type of documents subject to the order.

23

3. The proposed order may not be modified by agreement of the parties

24 without the Court’s signature of approval.

25

4. The order cannot grant “complete immunity” from any liability related to

26 the disclosure of confidential, personal, or proprietary information as long as the

27 disclosure is made pursuant to the terms of the protective order. Whether a particular

28

ORDER - 3

1 disclosure violates federal, state, or local law, breaches contractual obligations, and/or

2 violates another court’s order is not before the Court by virtue of entering a stipulated

3 protective order: a grant of “immunity” without due consideration of the facts and

4 circumstances surrounding the disclosure would be improper and unjustified.

5

5. Finally, the order must contain a provision that the Court may change the

6 terms of the protective order on its own motion after notice to the parties and an

7 opportunity to be heard.
8 The parties may, of course, enter into a confidentiality agreement amongst
9 themselves without the aid of the Court, but if and when parties request that the Court be
10 involved, they must make the requisite showing discussed above.
11
In the present matter, Plaintiffs’ motion for a protective order is deficient given 12

13 these guidelines. Specifically, Plaintiffs seek a “blanket protective order to protect the

14 identities of traditional marriage supporters learned through the discovery process. This

15 would include a witness’ name, address, occupation, employer, telephone number, email

16 address and personal and identifying information.” Dkt. 137 at 6. Such a protective order

17 is not narrowly drawn. “[A] blanket order . . . is by nature overinclusive.” Beckman, 966

18 F.2d at 476 (citing Public Citizen v. Ligget Group, Inc., 858 F.2d at 775, 790 (1st Cir.

19 1988)).

20

Plaintiffs’ motion does not provide adequate specificity as to what they seek to

21 protect. Plaintiffs do not provide sufficient specific facts directly related to the people
22 involved in this matter that would require such a blanket protective order in this case. It
23 may be that some of the information is able to be protected, but not under the guise of an
24 overly broad protective order. 25
C. Conclusion 26
Plaintiffs have not made an adequate showing of good cause or that they met and 27
conferred with WFST in regard to what was actually moved for herein. Should Plaintiffs 28

ORDER - 4

1 renew this motion, they are first required to meet and confer with opposing counsel and 2 attempt to resolve the discovery dispute without aid of the Court.

3

The documents currently under seal or those to be placed under seal with respect to

4 Plaintiffs’ proposed protective order may remain or be placed under seal. However, to

5 keep these documents under seal or to place other documents under seal will require a

6 stipulated protective order or a renewed motion to be submitted on or before October 20,

7 2010. If no protective order is requested by that date, the documents will be unsealed.

8

III. ORDER

9

Therefore, it is hereby ORDERED that

10 (1) Plaintiffs’ motion for protective order (Dkt. 125) is DENIED without

11 prejudice as discussed herein.

12 (2) WFST’s motion to seal Exhibits A and B to the Hamilton Declaration is

13

GRANTED as discussed herein. 14

15 16

DATED this 6th day of October, 2010.

A

17

BENJAMIN H. SETTLE

18

United States District Judge

19

20

21

22

23

24

25

26

27

28

ORDER - 5

 
 Case:30:099-3-c5v8-302545161-/B01H/S201D0ocPuamgeen:t11o6f62 FIiDle:d71512/90810/170 DPkatEgnetr1y:o3f 62
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NOV 01 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

JOHN DOE #1, an individual; et al., Plaintiffs - Appellees,
v. SAM REED, in his official capacity as Secretary of State of Washington; et al.,
Defendants, ARTHUR SCOTT WEST, I,
Appellant.

No. 09-35832 D.C. No. 3:09-cv-05456-BHS Western District of Washington, Tacoma
ORDER

Before: LEAVY, McKEOWN and BERZON, Circuit Judges. Appellees’ motion to dismiss this appeal as moot is denied. A review of the record and the opening brief indicates that the questions
raised in this appeal are so insubstantial as not to require further argument. See United States v. Hooton, 693 F.2d 857, 858 (9th Cir. 1982) (per curiam) (stating standard).
Accordingly, we summarily affirm the district court’s order denying

LSC/MOATT

Case:30:099-3-c5v8-302545161-/B01H/S201D0ocPuamgeen:t21o6f62 FIiDle:d71512/90810/170 DPkatEgnetr2y:o3f 62
appellant’s motion to intervene. AFFIRMED.

LSC/MOATT

2

09-35832

 
 1

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

8

9 JOHN DOE #1, et al.,

10

Plaintiffs,

CASE NO. C09-5456BHS

11

v.

12 SAM REED, et al.,

13

Defendants.

14

15

ORDER DENYING INTERVENOR WASHINGTON FAMILIES STANDING TOGETHER’S MOTION FOR RECONSIDERATION OR CLARIFICATION

16

17

This matter comes before the Court on Intervenor Washington Families Standing

18 Together’s (“WFST”) motion for reconsideration or clarification (Dkt. 185). The Court

19 has considered the pleadings filed in support of the motion and the remainder of the file

20 and hereby denies the motion for the reasons stated herein.

21

I. PROCEDURAL AND FACTUAL HISTORY

22

On November 15, 2010, the Court held a hearing wherein it granted Plaintiffs’

23 (collectively “Doe”) motion for protective order (Dkt. 163) preventing the release of

24 certain individuals names, which includes those Plaintiffs and declarants currently

25 proceeding anonymously (e.g., “John Doe”) in the case. Dkt. 181.

26

Prior to the hearing, WFST moved the Court to require the identification of the

27 John Doe Plaintiffs and declarants in this case. Dkt. 176. The reply brief for this motion

28

ORDER - 1

1 was filed after the Court had entered its oral ruling that granted Doe’s motion for

2 protective order. Dkt. 184 (filed on November 19, 2010).

3

Significantly, during the hearing wherein the Court granted the protective order,

4 the Court stressed that it found that denying Doe’s motion for protective order would

5 permit an end-run around the central issue in this case, whether or not the names of the

6 Referendum 71 (“R71”) signatories should be made public or are constitutionally

7 protected on an as-applied basis. To prevent this end-run the Court granted the protective
8 order and informed the parties they could take up the issues of anonymity on summary
9 judgment. WFST’s motion for requiring identification of the Doe Plaintiffs and declarants
10 was not specifically addressed at that hearing.
11
By minute entry dated December 1, 2010, the Court terminated WFST’s motion to 12

13 require identification of the Doe Plaintiffs and declarants because it was effectively

14 denied by the grant of the protective order. Dkt. 184.

15

On December 3, 2010, WFST moved for reconsideration or clarification of the

16 minute entry. Dkt. 185.

17

II. DISCUSSION

18

Motions for reconsideration are governed by Local Rule CR 7(h), which provides

19 as follows:

20

Motions for reconsideration are disfavored. The court will ordinarily deny

such motions in the absence of a showing of manifest error in the prior ruling

21

or a showing of new facts or legal authority which could not have been

22

brought to its attention earlier with reasonable diligence.

23

WFST moves the Court to reconsider or clarify whether it has ruled on its motion

24 to require identification of Doe Plaintiffs and declarants. Dkt. 185. WFST argues that Doe

25 sought a protective order under Rule 26 and it seeks identification under Rule 10.

26 Compare Fed. R. Civ. P. 26(c) (protective orders) with Rule 10(a) (complaint must name

27 all parties). WFST argues that Rule 10(a) controls its motion for identification. See Dkt.

28

ORDER - 2

1 185 at 3 (relying on Does I thru XXIII v. Advance Textile Corp., 214 F.3d 1058, 1068 (9th

2 Cir. 2000)).

3

Effectively, WFST’s motion for identification operated as a motion for

4 reconsideration on the Court’s grant of Doe’s motion for a protective order. C.f. Advanced

5 Textile, 214 F.3d at 1069. In Advanced Textile, the Ninth Circuit held that:

6

In cases where the plaintiffs have demonstrated a need for

7

anonymity, the district court should use its powers to manage pretrial

proceedings, see Fed. R. Civ. P. 16(b), and to issue protective orders

8

limiting disclosure of the party’s name, see Fed. R. Civ. P. 26(c), to

preserve the party’s anonymity to the greatest extent possible without

9

prejudicing the opposing party’s ability to litigate the case.

10 Id. (emphasis added).

11

At the hearing on November 15, 2010, WFST had, but did not take, the

12 opportunity to express its concerns over what it contends is a separate basis (Rule 10(b))

13 for obtaining the names that the Court ordered protected under Rule 26(c). WFST was

14 aware at the time of the hearing that granting the protective order would be completely at

15 odds with its motion to require the disclosure of the information subject to the protective
16 order. Instead of raising this concern at the hearing, WFST waited four days after the
17 Court granted the protective order (Dkt. 182) and then filed its reply brief on the motion
18 for requiring identification of the Doe Plaintiffs and declarants. Dkt. 184.
19 To clarify, the Court’s grant of Plaintiff’s protective order operated to, at least
20 implicitly, deny Doe’s motion for requiring identification of the Doe Plaintiffs and
21
22 declarants. To the extent it was unclear, the Court explicitly notes herein that WFST’s
23 motion to require identification was denied without prejudice consistent with its grant of

24 the protective order.

25

Now, WFST moves for reconsideration or clarification of that minute entry. Dkt.

26 185. This motion is essentially a motion for reconsideration of a motion for

27 reconsideration (reconsider the denial of the motion for requiring identification, which

28

ORDER - 3

1 had the operative value of a motion for reconsideration of the grant of the motion for 2 protective order).

3

The Court concludes that based on the record, the timing of these events, and the

4 nature of the pleadings, WFST has not met its heavy burden on reconsideration to

5 establish clear legal error or that manifest injustice would occur absent reconsideration.

6 See Local Rule 7(h). Further still, as the Court noted in the hearing wherein the protective

7 order was granted, WFST may raise these and other relevant issues in its planned

8 summary judgment motion(s) as was discussed at the hearing on November 15, 2010.

9

III. ORDER

10 Therefore, it is hereby ORDERED that WFST’s motion for reconsideration is

11 DENIED and the Court has clarified herein its rulings to the extent needed.

12

13 14

A DATED this 7th day of December, 2010.

15

BENJAMIN H. SETTLE

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28

ORDER - 4

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 John DOE # 1, et al.,

9

Plaintiffs,

10

v.

11 SAM REED, in his official capacity as Secretary of State of Washington, et al.,
12
Defendants. 13

CASE NO. C09-5456BHS
ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS AND INTERVENORS AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

14 This matter comes before the Court on the parties’ cross motions for summary
15 judgment (Dkts. 196, 204, 208, 209). The Court has considered the pleadings filed in
16 support of and in opposition to the motions, the remainder of the file, and heard oral
17 argument on October 3, 2011, and hereby grants summary judgment in favor of
18 Defendants and Intervenors and denies Plaintiffs’ motion for summary judgment. The
19 Court also lifts its injunction preventing the disclosure of the Referendum 71 (“R-71”)
20 petitions and closes this case.
21

22

ORDER - 1

1

I. PROCEDURAL & FACTUAL BACKGROUND

2

On July 28, 2009, Plaintiffs (collectively “Doe”) filed this action to object to and

3 enjoin the disclosure of R-71 petitions on two constitutional bases: Count I, that

4 disclosure of any referendum or initiative petitions is unconstitutional as a general matter;

5 and Count II, that disclosure of R-71 petitions would be unconstitutional as applied to

6 Doe (i.e., R-71 initiative signers). See Dkt. 2 (Complaint). On September 10, 2009, the

7 Court granted preliminary injunctive relief on Count I but declined to rule on Count II.

8 Dkt. 62.

9

Defendants appealed the Court’s ruling and the Ninth Circuit reversed. Doe v.

10 Reed, 586 F.3d 671 (2009). The Supreme Court accepted review and affirmed the Ninth

11 Circuit. Doe v. Reed, 130 S. Ct. 2811 (2010). The Supreme Court left open the possibility

12 of relief under Count II (Doe’s as-applied challenge to disclosure).

13

On June 29, 2011, the parties each filed motions for summary judgment regarding

14 Doe’s as-applied challenge. Dkts. 196, 204, 208, and 209. The parties fully briefed these

15 matters. Additionally, the Secretary of State of Washington moved to strike certain

16 evidence relied upon by Doe. Dkt. 231 (motion to strike and reply to Doe’s response in

17 opposition to summary judgment).

18 A. Prior to Remand

19

In denying relief under Count I of Doe’s Complaint, the Supreme Court of the

20 United States set out the following factual and contextual background, which remains

21 relevant in resolving the instant motions before the Court:

22

ORDER - 2

1

The State of Washington allows its citizens to challenge state laws

by referendum. Roughly four percent of Washington voters must sign a

2

petition to place such a referendum on the ballot. That petition, which by

law must include the names and addresses of the signers, is then submitted

3

to the government for verification and canvassing, to ensure that only

lawful signatures are counted. The Washington Public Records Act (PRA)

4

authorizes private parties to obtain copies of government documents, and

the State construes the PRA to cover submitted referendum petitions.

5

This case arises out of a state law extending certain benefits to same-

sex couples, and a corresponding referendum petition to put that law to a

6

popular vote. Respondent intervenors invoked the PRA to obtain copies of

the petition, with the names and addresses of the signers. Certain petition

7

signers and the petition sponsor objected, arguing that such public

disclosure would violate their rights under the First Amendment.

8

***

The Washington Constitution reserves to the people the power to

9

reject any bill, with a few limited exceptions not relevant here, through the

referendum process. Wash. Const., Art. II, § 1(b). To initiate a referendum,

10

proponents must file a petition with the secretary of state that contains valid

signatures of registered Washington voters equal to or exceeding four

11

percent of the votes cast for the office of Governor at the last gubernatorial

election. §§ 1(b), (d). A valid submission requires not only a signature, but

12

also the signer's address and the county in which he is registered to vote.

Wash. Rev. Code § 29A.72.130 (2008).

13

In May 2009, Washington Governor Christine Gregoire signed into

law Senate Bill 5688, which “expand[ed] the rights and responsibilities” of

14

state-registered domestic partners, including same-sex domestic partners.

Doe v. Reed, 586 F.3d 671, 675 (9th Cir. 2009). That same month, Protect

15

Marriage Washington, one of the petitioners here, was organized as a “State

Political Committee” for the purpose of collecting the petition signatures

16

necessary to place a referendum on the ballot, which would give the voters

themselves an opportunity to vote on SB 5688. App. 8-9. If the referendum

17

made it onto the ballot, Protect Marriage Washington planned to encourage

voters to reject SB 5688. Id., at 7, 9.

18

On July 25, 2009, Protect Marriage Washington submitted to the

secretary of state a petition containing over 137,000 signatures. See 586

19

F.3d, at 675; Brief for Respondent Washington Families Standing Together

6. The secretary of state then began the verification and canvassing process,

20

as required by Washington law, to ensure that only legal signatures were

counted. Wash. Rev. Code § 29A.72.230. Some 120,000 valid signatures

21

were required to place the referendum on the ballot. Sam Reed, Washington

Secretary of State, Certification of Referendum 71 (Sept. 2, 2009). The

22

secretary of state determined that the petition contained a sufficient number

ORDER - 3

1

of valid signatures, and the referendum (R-71) appeared on the November

2009 ballot. The voters approved SB 5688 by a margin of 53% to 47%.

2

The PRA, Wash. Rev. Code § 42.56.001 et seq., makes all “public

records” available for public inspection and copying. § 42.56.070(1)

3

(2008). The Act defines “[p]ublic record” as “any writing containing

information relating to the conduct of government or the performance of

4

any governmental or proprietary function prepared, owned, used, or

retained by any state or local agency.” § 42.56.010(2). Washington takes

5

the position that referendum petitions are “public records.” Brief for

Respondent Reed 5.

6

By August 20, 2009, the secretary had received requests for copies

of the R-71 petition from an individual and four entities, including

7

Washington Coalition for Open Government (WCOG) and Washington

Families Standing Together (WFST), two of the respondents here. 586

8

F.3d, at 675. Two entities, WhoSigned.org and KnowThyNeighbor.org,

issued a joint press release stating their intention to post the names of the R-

9

71 petition signers online, in a searchable format. See App. 11; 586 F.3d, at

675.

10

The referendum petition sponsor and certain signers filed a

complaint and a motion for a preliminary injunction in the United States

11

District Court for the Western District of Washington, seeking to enjoin the

secretary of state from publicly releasing any documents that would reveal

12

the names and contact information of the R-71 petition signers. App. 4. . . .

Count II of the complaint alleges that “[t]he Public Records Act is

13

unconstitutional as-applied to the Referendum 71 petition because there is a

reasonable probability that the signatories of the Referendum 71 petition

14

will be subjected to threats, harassment, and reprisals.” Id., at 17.

15 Doe, 130 S. Ct. at 2815-2817. The Supreme Court did not rule on Count II, which is the

16 issue now before this Court.

17 B. After Remand

18

On remand, the parties engaged in discovery. During discovery, Doe identified

19 nineteen witnesses, including John Does Nos. 1 and 2. Discovery closed on October 22,

20

21

22

ORDER - 4

1 2010. Dkt. 128 (scheduling order).1 Doe’s witnesses include individual plaintiffs and

2 declarants that are each already known to the public as being supporters of R-71 and none

3 have testified by declaration that they would be seriously concerned if their personal

4 identifying information related to R-71 (e.g., name, address, etc.) is disclosed pursuant to

5 the PRA. The planned testimony of these witnesses and the other discovery that was

6 supplied in preparation for trial is discussed in detail below. These witnesses and other

7 pieces of documentary evidence comprise the only evidence Doe has offered in direct

8 relation to actual R-71 signers in support of the instant as-applied challenge to the PRA.

9

II. DISCUSSION

10 A. Summary Judgment Standard

11

Summary judgment is proper only if the pleadings, the discovery and disclosure

12 materials on file, and any affidavits show that there is no genuine issue as to any material

13 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

14 The moving party is entitled to judgment as a matter of law when the nonmoving party

15 fails to make a sufficient showing on an essential element of a claim in the case on which

16 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

17 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

18 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

19 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

20

21

1Defendant Secretary of State Sam Reed moves the Court to strike any evidence relied

upon that Doe did not disclose prior to the discovery cutoff date. See Dkt. 231. The Court denies

22 this motion because, even if such evidence were considered, the ruling herein would be the same.

ORDER - 5

1 present specific, significant probative evidence, not simply “some metaphysical doubt”).

2 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

3 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

4 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

5 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

6 626, 630 (9th Cir. 1987).

7

The determination of the existence of a material fact is often a close question. The

8 Court must consider the substantive evidentiary burden that the nonmoving party must

9 meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

10 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

11 issues of controversy in favor of the nonmoving party only when the facts specifically

12 attested by that party contradict facts specifically attested by the moving party. The

13 nonmoving party may not merely state that it will discredit the moving party’s evidence

14 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

15 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

16 nonspecific statements in affidavits are not sufficient, and missing facts will not be

17 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

18

Applied here, the Court finds that Doe has failed to raise a material question of

19 fact. Because the evidence submitted in support of the parties’ cross-motions is not in any

20 meaningful way controverted, the Court can resolve the issues presented herein as a

21 matter of law.

22

ORDER - 6

1 B. Standards

2

1. Exacting Scrutiny

3

In Doe, the Supreme Court set out the standard of scrutiny to be applied in

4 electoral cases such as this:

5

We have a series of precedents considering First Amendment

challenges to disclosure requirements in the electoral context. These

6

precedents have reviewed such challenges under what has been termed

“exacting scrutiny.” See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976) (per

7

curiam ) (“Since NAACP v. Alabama [357 U.S. 449 (1958),] we have

required that the subordinating interests of the State [offered to justify

8

compelled disclosure] survive exacting scrutiny”); Citizens United, supra,

at ----, 130 S.Ct., at 914 (“The Court has subjected [disclosure]

9

requirements to ‘exacting scrutiny’ ” (quoting Buckley, supra, at 64));

Davis v. Federal Election Comm’n, 554 U.S. ----, ----, 128 S.Ct. 2759,

10

2775, 171 L.Ed.2d 737 (2008) (governmental interest in disclosure “‘must

survive exacting scrutiny’” (quoting Buckley, supra, at 64)); Buckley v.

11

American Constitutional Law Foundation, Inc., 525 U.S. 182, 204 (1999) (

ACLF ) (finding that disclosure rules “fail[ed] exacting scrutiny” (internal

12

quotation marks omitted)).

That standard “requires a ‘substantial relation’ between the

13

disclosure requirement and a ‘sufficiently important’ governmental

interest.” Citizens United, supra, at ----, 130 S.Ct., at 914 (quoting Buckley,

14

supra, at 64, 66). To withstand this scrutiny, “the strength of the

governmental interest must reflect the seriousness of the actual burden on

15

First Amendment rights.” Davis, supra, at ----, 128 S.Ct., at 2774 (citing

Buckley, supra, at 68, 71).

16

130 S. Ct. at 2818. The Court further noted that “The State’s interest in preserving the

17

integrity of the electoral process is undoubtedly important. ‘States allowing ballot

18

initiatives have considerable leeway to protect the integrity and reliability of the initiative

19

process, as they have with respect to election processes generally.”’ Buckley v. ACLF,

20

525 U.S. 182, 191 (emphasis added).

21

Therefore, exacting scrutiny applies in this case.

22

ORDER - 7

1

2. Reasonable Probability

2

In as-applied challenges such as the instant case, the Supreme Court has

3 “explained that those resisting disclosure can prevail under the First Amendment if they

4 can show ‘a reasonable probability that the compelled disclosure [of personal

5 information] will subject them to threats, harassment, or reprisals from either

6 Government officials or private parties.’” Doe, 130 S. Ct. at 2820 (quoting Buckley,

7 supra, at 74; see also Citizens United, 558 U.S. at ----, 130 S. Ct. at 915).2

8

To prevail on an as-applied challenge, Doe will have to satisfy this reasonable

9 probability standard with “respect to those who signed the R-71 petition.” See id. at 2820-

10 2821 (leaving this narrow issue open on remand); see Buckley, supra, at 74 (“minor

11 parties” may be exempt from disclosure requirements if they can show “a reasonable

12 probability that the compelled disclosure of a party’s contributors’ names will subject

13 them to threats, harassment, or reprisals from either Government officials or private

14 parties”); Citizens United, supra, at ----, 130 S. Ct. at 915 (disclosure “would be

15 unconstitutional as applied to an organization if there were a reasonable probability that

16 the group’s members would face threats, harassment, or reprisals if their names were

17 disclosed”) (quoting McConnell v. Federal Election Comm’n, 540 U.S. 93, 198 (2003)).

18

19

20
2Doe brings its as-applied challenge based upon Doe’s belief that a reasonable probability
21 exists that disclosure would result in threats, harassment, or reprisals from private parties. Doe
has supplied no evidence or argument that any governmental agency engaged in such conduct.
22 Therefore, the Court limits its analysis to evidence regarding private parties.

ORDER - 8

1

Additionally, while the majority opinion in Doe provides only a minimal

2 discussion as to the ability of Doe to prevail on an as-applied challenge, the concurrences

3 in Doe elaborate on this issue and aid the Court in resolving this case. See 130 S. Ct. at

4 2822-2837 (concurring opinions).

5

a. Justice Sotomayor, Concurring

6

Justice Sotomayor, with whom Justice Stevens and Justice Ginsburg join, stated

7 the following with respect to as-applied challenges such as the instant matter:

8

Case-specific relief may be available . . . in the rare circumstance in which

disclosure poses a reasonable probability of serious and widespread

9

harassment that the State is unwilling or unable to control. Cf. NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449 (1958). Allowing case-specific

10

invalidation under a more forgiving standard would unduly diminish the

substantial breathing room States are afforded to adopt and implement

11

reasonable, nondiscriminatory measures like the disclosure requirement

now at issue. Accordingly, courts presented with an as-applied challenge to

12

a regulation authorizing the disclosure of referendum petitions should be

deeply skeptical of any assertion that the Constitution, which embraces

13

political transparency, compels States to conceal the identity of persons

who seek to participate in lawmaking through a state-created referendum

14

process.

15 Doe, 130 S. Ct. at 2829 (Sotomayor, concurring) (emphasis added).

16

b.

Justice Stevens, Concurring

17

Justice Stevens, with whom Justice Breyer joins, explained the following with

18 respect to Doe’s as-applied challenge:

19

There remains the issue of petitioners’ as-applied challenge. As a

matter of law, the Court is correct to keep open the possibility that in

20

particular instances in which a policy such as the PRA burdens expression

“by the public enmity attending publicity,” Brown v. Socialist Workers ’74

21

Campaign Comm. (Ohio), 459 U.S. 87, 98 (1982), speakers may have a

winning constitutional claim. “‘[F]rom time to time throughout history,’”

22

persecuted groups have been able “‘to criticize oppressive practices and

ORDER - 9

1

laws either anonymously or not at all.’” McIntyre v. Ohio Elections Com’n,

514 U.S., 334, 342.

2

In my view, this is unlikely to occur in cases involving the PRA. Any

burden on speech that petitioners posit is speculative as well as indirect. For

3

an as-applied challenge to a law such as the PRA to succeed, there would

have to be a significant threat of harassment directed at those who sign the

4

petition that cannot be mitigated by law enforcement measures. Moreover,

the character of the law challenged in a referendum does not, in itself, affect

5

the analysis. Debates about tax policy and regulation of private property

can become just as heated as debates about domestic partnerships. And as a

6

general matter, it is very difficult to show that by later disclosing the names

of petition signatories, individuals will be less willing to sign petitions. Just

7

as we have in the past, I would demand strong evidence before concluding

that an indirect and speculative chain of events imposes a substantial

8

burden on speech. A statute “is not to be upset upon hypothetical and

unreal possibilities, if it would be good upon the facts as they are.” Pullman

9

Co. v. Knott, 235 U.S. 23, 26 (1914).

10 Doe, 130 S. Ct. at 2831-2832 (footnotes omitted) (emphasis added); see also id., n. 4

11 (citing but not agreeing with Justice Scalia’s concurrence at 2832, which concluded that

12 granting relief to Doe on its as-applied challenge would amount to establishing a right to

13 anonymous speech).

14 C. Doe’s As-Applied Challenge

15

Doe makes an as-applied challenge to the PRA, seeking to prevent the disclosure

16 of the personally identifying information of 137,000 R-71 petition signers. To succeed in

17 this challenge, Doe must establish that such disclosure that is otherwise proper under the

18 PRA would cause the signers to face a reasonable probability of threats, harassment, or

19 reprisals. In opposition, Defendants and Intervenors assert that Doe has not supplied the

20 Court with competent evidence to meet such a showing on an as-applied basis;

21 Defendants and Intervenors also contend that Doe cannot or has not supplied adequate

22

ORDER - 10

1 authority upon which it can succeed in its challenge based on the evidence that has been

2 supplied by Doe and could be admissible at trial.

3

1. The Progeny of As-Applied Challenges

4

The as-applied exemption that Doe seeks has been upheld in only a few cases. See

5 Buckley, 424 U.S. at 31-35; Brown, 459 U.S. at 102 (granting exemption to Socialist

6 Worker Party (“SWP”) deemed to have minor party status due to its 60 members, little

7 success at the polls, and small amount of financial backing); NAACP, 357 U.S. at 466

8 (holding that disclosure of rank and file membership of NAACP would restrain members’

9 exercise of freedom of association); but see ProtectMarriage.com v. Bowen, 599 F. Supp.

10 2d 1197, 1213 (2009) (rejecting an as-applied challenge for failure to supply adequate

11 evidence and failure to establish minor party status).

12

In NAACP, the Supreme Court found that “Petitioner [ ] made an uncontroverted

13 showing that on past occasions revelation of the identity of its rank-and-file members has

14 exposed these members to economic reprisal, loss of employment, threat of physical

15 coercion, and other manifestations of public hostility.” 357 U.S. at 462-463. The NAACP

16 Court concluded that:

17

Under these circumstances, we think it apparent that compelled disclosure

of petitioner’s Alabama membership is likely to affect adversely the ability

18

of petitioner and its members to pursue their collective effort to foster

beliefs which they admittedly have the right to advocate, in that it may

19

induce members to withdraw from the Association and dissuade others

from joining it because of fear of exposure of their beliefs shown through

20

their associations and of the consequences of this exposure.

21 Id.

22

ORDER - 11

1

Similarly, in Brown, the Supreme Court determined that “the evidence of private

2 and government hostility toward the SWP and its members establishe[d] a reasonable

3 probability that disclosing the names of contributors and recipients [would] subject them

4 to threats, harassment, and reprisals.” 459 U.S. at 100. Specifically, the Brown Court

5 found that the SWP had uncontroverted and ample evidence of its experience with

6 pervasive hostility by the government and private parties. Id. at 98-99 (evidence of

7 threatening phone calls and hate mail; the burning of SWP literature; the destruction of

8 SWP members’ property; police harassment of a party candidate; the firing of shots at an

9 SWP office; and evidence that, in the 12-month period before trial, 22 SWP members,

10 including four in Ohio, were fired because of their party membership).

11

In contradistinction, the district court in ProtectMarriage.com declined to extend

12 an as-applied exemption to a group challenging the California PRA disclosure

13 requirements with respect to a ballot measure adopted by California citizens. The

14 measure, “Proposition 8, [ ] changed the California Constitution such that marriage would

15 only thereafter exist ‘between a man and a woman.”’ 599 F. Supp. 2d at 1199. In

16 ProtectMarriage.com, the plaintiffs, much like Doe in this case, sought injunctive relief

17 on the basis that they are “entitled to an as-applied blanket exemption from [their State’s]

18 compelled disclosure provisions because Plaintiffs have demonstrated a reasonable

19 probability that compelled disclosure will result in threats, harassment, [or] reprisals

20 because of their support for [the measure].” 599 F. Supp. 2d at 1204 (quotations omitted).

21

The ProtectMarriage.com court found that plaintiffs did not and could not allege

22 that a movement to define marriage as being between a man and a woman “is vulnerable

ORDER - 12

1 to the same threats as were socialist and communist groups, or, for that matter, the

2 NAACP.” Id. at 1217.

3

After a thorough analysis of precedent, the ProtectMarriage.com court further

4 concluded that “it would appear that . . . minor status is a necessary element of a

5 successful as-applied claim.” Id. at 1215. In fact, Doe has not supplied and the Court has

6 not found any case wherein a court granted an as-applied exemption to the disclosure

7 laws to a group, organization, or political party that did not have minor status. See, e.g.,

8 Buckley, 424 U.S. at 31-35; Brown, 459 U.S. at 102; NAACP, 357 U.S. at 466.

9

Notably, a common thread exists among the cases wherein an exemption has been

10 extended on an as-applied challenge. The Protectmarriage.com analysis highlights this

11 common thread:

12

Since Buckley, as-applied challenges have been successfully raised

only by minor parties, . . . having small constituencies and promoting

13

historically unpopular and almost universally-rejected ideas. The parties’

“aim [in Brown] was the abolition of capitalism and the establishment of a

14

workers’ government to achieve socialism.” The party was historically

unsuccessful at the polls though its members regularly ran for public office.

15

Additionally, campaign contributions and expenditures . . . averaged

approximately $15,000 annually.

16

Similarly, in Hall-Tyner, a committee supporting the Communist

Party successfully sought exemption from state disclosure laws.

17

599 F. Supp. 2d at 1216 (citations omitted).

18

In short, “Brown and its progeny each involved groups seeking to further ideas

19

historically and pervasively rejected and vilified by both this country’s government and

20

its citizens.” Id. at 1215. Doe has not provided adequate authority to support any

21

22

ORDER - 13

1 departure from requiring such a showing in order to bring a successful as-applied

2 challenge to the PRA disclosure laws.

3

Based on this precedent, Defendants and Intervenors assert that, absent minor

4 party status, Doe’s as-applied challenge must fail. If the term “minor party” were

5 attributable only to minor political parties, Doe’s claims absolutely fail; indeed, the

6 people making up the collective Doe cannot be categorized as a political party.

7

However, Defendants and Intervenors argue more subtly that the “minor party”

8 rule in Buckley and the cases following it actually refer to fringe organizations, similar to

9 the NAACP in the 1950s. Specifically, they argue that R-71 signers are not a fringe

10 organization and have not established that they can qualify for minor party status as an

11 organization because there is no cohesion in the 137,000 people who signed the R-71

12 petition or the 838,842 people who voted to reject the expansion of rights for same sex

13 partners. The Court is persuaded that it is difficult to categorize the R-71 signers as a

14 group or an organization; the only fact known to be common among these signers to any

15 reasonable certainty is that they signed the R-71 petition. Significantly, in each of the

16 cases where a court upheld an as-applied challenge to the disclosure laws, the party or

17 organization making the challenge established that their constitutional right to associate

18 freely would be illegally infringed upon should disclosure be ordered. Here, it is not clear

19 that the R-71 signers have actually sought to associate with each other in a

20 constitutionally protected manner.

21

However, even if the Court considered the R-71 supporters to be such a group or

22 organization, Doe has not and cannot with any credibility analogize their situation to that

ORDER - 14

1 of a small group of rank and file members of the SWP or the NAACP, discussed above.

2 Instead, they are much more akin to the petitioners in ProtectMarriage.com who

3 “orchestrated a massive movement to amend the California Constitution. Proponents of

4 the initiative were successful in their endeavor, raising nearly $30 million, securing

5 52.3% of the vote and convincing over seven million voters to support Proposition 8.”

6 599 F. Supp. 2d at 1215.

7

Similarly here, PMW was able to secure 137,000 signers for R-71 and obtained

8 nearly half the vote with 838,842 votes. And Doe has not supplied competent evidence or

9 adequate authority to support its claim that the R-71 signers constitute a fringe

10 organization with unpopular or unorthodox beliefs or one that is seeking to further ideas

11 that have been “historically and pervasively rejected and vilified by both this country’s

12 government and its citizens.” Id. This fact makes Doe’s case quite similar to

13 ProtectMarriage.com wherein the district court rejected plaintiffs’ as-applied challenge

14 to the California PRA. Compare id. at 1214 (“Plaintiffs succeeded in persuading over

15 seven million voters to support their cause”) with Brown, 459 U.S. at 88 (sixty-member

16 SWP party unable to garner public support at the polls or sufficient financial resources to

17 be successful due to being unpopular, vilified, and historically rejected by the

18 government and the citizenry).

19

Finally, the as-applied exemption is intended to prevent an organization from

20 being forced to retreat from the marketplace of ideas, which would materially diminish

21 discourse. Doe has not provided competent evidence that it is in any material way similar

22 to the organizations, groups, or parties who have received the as-applied exemption in the

ORDER - 15

1 past. Instead, the evidence before the Court logically leads only to the opposite

2 conclusion.

3

Therefore, if minor party status (a.k.a. fringe organization) is required, as it

4 appears that Buckley and its progeny require, Doe’s claim fails in all material respects.

5

2. Doe’s Evidence of Threats, Harassment, or Reprisals

6

Assuming arguendo that Doe can get by the hurdles discussed above, Doe would

7 still have to produce sufficient evidence of threats, harassment, or reprisals. In the cases

8 where the exemption Doe seeks has been granted, the plaintiffs have supplied the courts

9 with ample, uncontroverted evidence of a reasonable probability that disclosure will

10 result in threats, harassment, or reprisals. As the ProtectMarriage.com court correctly

11 summarized:

12

Indeed, the Brown Court was confronted with countless acts of

government harassment and retribution against members of the SWP,

13

which are detailed above. Furthermore, in Hall-Tyner, the Second Circuit

stated, “[t]he evidence relied on by the district judge included the extensive

14

body of state and federal legislation subjecting Communist Party members

to civil disability and criminal liability, reports and affidavits documenting

15

the history of governmental surveillance and harassment of Communist

Party members, as well as affidavits indicating the desire of contributors to

16

the Committee to remain anonymous.” 678 F.2d at 419.

17 599 F. Supp. 2d at 1217.

18

In Doe, the Supreme Court accurately and succinctly described the issue now

19 before this Court: whether the PRA “is unconstitutional as applied to the [R-71] petition.”

20 130 S. Ct. at 2817. Doe has provided the Court with a mountain of anecdotal evidence

21 from around the country that offers merely a speculative possibility of threats,

22 harassment, or reprisals. Doe has also provided the Court with numerous examples of

ORDER - 16

1 what may be considered threats, harassment, or reprisals experienced by those supporting

2 Proposition 8 in California.

3

In Buckley, the Supreme Court articulated that the proof of threats, harassment, or

4 reprisals “may include, for example, specific evidence of past or present harassment of

5 members due to their associational ties, or of harassment directed against the organization

6 itself. A pattern of threats or specific manifestations of public hostility may be

7 sufficient.” 424 U.S. at 74. Such evidence is to be specifically and directly related to a

8 group or organization. Here, to the extent Doe could be characterized as a group or

9 organization, Doe would be required to present evidence pertaining directly to R-71

10 signers and perhaps to the PMW donors. What is not included in the type of evidence that

11 can be relied upon, Defendants and Intervenors argue, is random anecdotal evidence from

12 around the country that pertains to individuals that did not sign the R-71 petition.

13

To the extent Doe argues that it is permitted to rely on the historical evidence of

14 others that it believes to be similarly situated to the R-71 signers, Defendants and

15 Intervenors argue that Doe is largely mistaken given the circumstances of this case. In

16 Buckley, the Court noted that “[n]ew parties that have no history upon which to draw may

17 be able to offer evidence of reprisals and threats directed against individuals or

18 organizations holding similar views.” Id.

19

The R-71 signers, however, cannot be characterized as a group or an organization

20 that could be considered new. The vote at issue took place nearly two years ago and

21 petition signatures were being gathered well before the vote. Perhaps if the posture of this

22 case were as it existed just before the vote at issue when the R-71 petition had just been

ORDER - 17

1 submitted, Doe might persuade the Court that it is “new.” However, it is now long past

2 that point, and Doe has the ability to produce historical evidence from the past few years

3 related to R-71. Doe also has the ability to draw on the experiences of those who

4 financially supported PMW’s efforts during the heat of the R-71 petition signing and

5 prior to the vote. Therefore, Doe is limited to evidence from among its own number, R-71

6 petition signers. Doe has not supplied adequate authority to the contrary.3

7

The Court turns now to Doe’s historical evidence that may be considered relevant

8 and admissible to establish that Doe would face a reasonable probability of threats,

9 harassment, or reprisals if disclosure of the R-71 signers’ information were required. The

10 majority of evidence supplied by Doe includes individuals’ claimed experience of threats,

11 harassment, or reprisals that Doe contends is connected to R-71.

12

Ronald Perkins, John Doe # 1. Ronald Perkins (“Perkins”) is a known public

13 supporter of R-71. He has announced his opposition to same-sex marriage in an internet

14 video, and signed the R-71 petition publically. Declaration of William B. Stafford

15 (Stafford Decl.), Ex. A at 11-15, 16-17 (Perkins Dep.) 8:14-12:22, 22:19-23:19. In his

16 deposition, Perkins also expressed his willingness to participate publically in this case

17 and that he was aware of no threats to him should he testify in this case. See, e.g., Perkins

18 Dep. 31:3-17, 45:3-21, 47:17-48:7. Although Perkins stated that the concern of

19

20
3Additionally, even if Doe could rely on evidence from the Proposition 8 experience,
21 such events are now stale and occurred during the “heat of an election battle surrounding a hotly
contested ballot initiative.” ProtectMarriage.com, 599 F. Supp. 2d at 1217. This case may have
22 begun during the heat of an election but such is not the case now.

ORDER - 18

1 harassment remains, he also stated that no one has ever threatened him for his

2 involvement with R-71 in any way, shape, or form at work or at home. Id.

3

Matthew Chenier, John Doe # 2. Matthew Cheiner (“Chenier”) gathered

4 signatures for R-71 in public locations and waved an R-71 banner in a high-traffic area

5 with approximately seventy other people. See Stafford Decl., Ex. B (Chenier Dep.)

6 10:19-11:17, 14:17-15:10. Cheiner has stated he does not have concerns over the

7 publication of his name and that he joined this action as a John Doe for the benefit of

8 other people. Chenier Dep. 19:8-13, 38:6-17. The only negative events that Cheiner

9 testified about in his deposition included (1) an angry text message from his brother; (2)

10 being “mooned” by an unidentified passenger in a passing car; and (3) being “flipped off”

11 by people in passing cars. Id. 19:17-20:4, 22:23-23:6, 25:7-23, 29:9-23. Absent from the

12 record is any competent evidence, other than a text from Cheiner’s brother, that these

13 incidents pertained to R-71.

14

Richard Long, John Doe # 3. Pastor Richard Long (“Long”) publically endorsed

15 R-71 on several occasions. Stafford Decl., Ex. C (Long Dep.) 10:10-18, 12:19-20, 13:1-

16 24. Long likely signed the petition at his church and publically encouraged others to do

17 so. Id. 9:23-10:21. Long stated in his deposition that he has no problem testifying

18 publically in this matter and that his involvement with R-71 need not be kept secret. Id.

19 8:13-24.

20

Long testified that he experienced harassment related to R-71 when he received a

21 call from a purported transgender woman. Id. 20:1-9. Long claims the woman stated that

22

ORDER - 19

1 she and her friends would picket the church or attend a morning service, but she affirmed

2 they would conduct themselves appropriately. Id. 20:10-17.

3

Long also testified that he only received two calls about R-71 and that these were

4 the only “harassing” events. Long testified that he did not receive other calls about R-71

5 or other types of “harassment” before or after the R-71 election. See, e.g., id. 28:2-5.

6

Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 in

7 front of the Washington State legislature, gathered signatures for the petition in public

8 places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D

9 (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10.

10

Hartwell testified in his deposition that one harassing incident involved two ladies

11 that glared at him and one said “we have feelings too.” This occurred while Hartwell was

12 collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the

13 comment appeared to shake an older lady up, who signed the petition anyway). Hartwell

14 also testified about others who he believed harassed him about the R-71 petition. See,

15 e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted

16 she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing

17 a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting

18 signatures at a Wal-Mart and said she would post them on Facebook to enable her friends

19 to see what the Hartwells look like; Hartwell is unaware if the Facebook posting

20 occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask

21 the Hartwells to leave; the manager did not ask them to leave). In none of the events

22 described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.

ORDER - 20

1

Valerie Hartwell, Jane Doe # 5. Ms. Hartwell’s involvement with R-71 and

2 claimed experience with harassment related thereto is not materially different than Mr.

3 Hartwell’s, discussed above.

4

Viktor Anishenko. Viktor Anishenko (“Anishenko”) was a public advocate for R-

5 71 and solicited signatures for the petition on five or six occasions. Stafford Decl., Ex. F

6 (Anishenko Dep.) 16:12-23, 23:12-25:6. Anishenko also posted an R-71 sign in the yard

7 of his residence. Id. 25:7-8.

8

Although Anishenko claims to have had two or three Post-It notes containing

9 vulgar language placed on his vehicle, he does not know if it was related to R-71. Id.

10 28:21-30:24. Anishenko does not allege any other instances of threats, harassment, or

11 reprisals. Id. 28:5-14.

12

Ken Hutcherson. Pastor Ken Hutcherson (“Hutcherson”) is a senior pastor at

13 Antioch Bible Church. Stafford Decl., Ex. G (Hutcherson Dep.) 6:1-6. Hutcherson has

14 long been a public opponent of gay marriage and has been covered extensively regarding

15 this in the media. See, e.g., id. 13:25-17:8, 18:15-19:2 (asserting that “Googling” his

16 name results in approximately 300,000 hits related to his stance opposing gay marriage).

17

Although Hutcherson points to many examples of phone calls his church has

18 received regarding his stance on gay rights, he does not point to any calls or other

19 methods of contact that relate specifically to R-71. Id. at 38:22-39:2, 46:4-22, 63:7-64:10,

20 66:3-13, 71:10-21, 75:22-76:19. Hutcherson is also not aware of any death threats,

21 attacks, or harassment of his congregation as it relates to R-71. Id. 64:24-66:2, 48:3-8,

22 69:5-10.

ORDER - 21

1

Alexander Kaprian. Pastor Alexander Kaprian (“Kaprian”) hosted and attended a

2 meeting to support R-71. Stafford Decl., Ex. H (Kaprian Dep.) 8:24-9:7, 14:4-11.

3 Kaprian signed the R-71 petition at his church and posted an R-71 sign in front of his

4 residence. Kaprian testified in his deposition that some woman took photographs of his

5 home and that he felt he was being watched; however, he points to no incident directly

6 attributable to R-71, and he did not report these incidents to the police. Id. 42:11-43:2,

7 48:10-50:22, 52:19-53:3, 38:11-22.

8

Dmitry Kozlov. Dimitry Koslov (“D. Koslov”) was actively involved in gathering

9 R-71 signatures, waving R-71 signs at intersections, engaging in campaign organization

10 and other involvement between two and three times a week for three months. Stafford

11 Decl., Ex. I (D. Koslov Dep.) 33:23-34:5. D. Koslov remained involved with R-71

12 following the close of voting on the referendum, and he is not concerned about testifying

13 publically in this case. Id. 14:8-9, 33:21-22, 9:14-22.

14

D. Koslov testified regarding three incidents that he characterized as harassment:

15 (1) a man directed expletives at him and pushed him; (2) a man mooned the group and

16 threw garbage at the group from a van, no physical injuries; and (3) a woman approached

17 him and said “we’ll do everything to stop what you’re doing” and a man said “we’ll have

18 your kids.” Id. 30:20-32:1. D. Koslov did not claim to have been concerned for his safety

19 regarding any of these incidents, and he did not inform the police. Id. 32:2-12, 33:8-20.

20

Sergey Koslov. Sergey Koslov (“S. Koslov”) publically supported R-71 and

21 “people knew [his] view about this matter.” Stafford Decl., Ex. J (S. Koslov Dep.) 8:6-

22 10. S. Koslov is not concerned about testifying publically, and he does not claim to have

ORDER - 22

1 experienced any harassment related to R-71. Id. 11:25-12:16. However, he did testify that

2 notes were left near his church stating “you’re worse than the fascists,” “get out of here,”

3 and “your children . . . will be homosexuals”; he also testified that he did not feel

4 threatened by these notes and did not call the police. Id. 11:25-12:16, 15:15-16:16.

5

Leonid Pisarchuk. Leonid Pisarchuk (“Pisarchuk”) actively supported R-71 by

6 publically gathering signatures, waving signs, and placing a bumper sticker on his car and

7 a sign in his yard. Stafford Decl., Ex. K (Pisarchuk Dep.) 8:25-10:25, 13:17-14:14.

8 Pisarchuk also interviewed with a reporter who published a story identifying him as an R-

9 71 supporter.

10

Though he is not concerned about testifying in this matter, Pisarchuk testified in

11 his deposition that he felt harassed on a couple occasions. See id. 39:25-40:4.

12 Specifically, he claims that passing motorists made offensive gestures and shouted insults

13 but he was not threatened by these events. Id. 21:12-24:20, 47:20-25. He experienced

14 being yelled at with profanity and his name was placed on a pro-gay rights website but

15 neither of these events left him feeling concerned for his personal safety, and he did not

16 call the police. Pisarchuk Dep. 31:1-5, 33:7-12, 34:6-11. Pisarchuk does not point to any

17 events of threats, harassment, or reprisals following the R-71 vote. Id. 35:7-10; 51:22:4.

18

Gary Randall. Gary Randall (“Randall”) is the president of the Faith and

19 Freedom Network (“FFN”) and was one of the organizers/spokesmen for R-71. Stafford

20 Decl., Ex. L (Randall Dep.) 9:25-10:2; 91:16-18, 94:6-8. Randall has expressed his

21 support for R-71 on websites, in public speeches, and in interviews and articles published

22 by news organizations. Id. 19:6-20:8, 20:11-22:14, 36:6-39:10, 40:19-25, 41:22-43:3,

ORDER - 23

1 83:2-18, 85:10-21. Randall also authorized the FFN’s political action committee to spend

2 funds on R-71 activities, which are disclosed at the Public Disclosure Commission’s

3 website. Id. 29:8-31:3.

4

Randall testified that he received death threats via a blog site; however, when

5 asked to demonstrate where in the copy of the blog posting he believed a threat of his or

6 another’s life was made he could not do so without relying on assumptions. Id. 43:4-51:3

7 (finally conceding that no actual death threat was made on the website).4

8

Elizabeth Scott. Elizabeth Scott (“Scott”) was a state legislative candidate who

9 publically endorsed R-71, including the gathering of signatures for R-71. Stafford Decl.,

10 Ex. M. (Scott Dep. 7:11-18, 11:19-13:12, 62:6-13, 89:11-13). Scott is not concerned

11 about testifying in this matter. Id. 17:11-16.

12

The Everett Herald (a local paper) published an article on Scott, which included

13 the fact that she signed the R-71 petition. Id. 8:25-9:17, 10:25-11:18. The article

14 contained her cell phone number and other contact information; notably, Scott did not

15 receive any calls on her mobile phone regarding R-71. Id. 23:12-24-1, 96:1-16.

16

However, Scott’s family did receive a phone call to its residence and the caller

17 asked for Scott and said “I will kill you and your family,” and then hung up the phone. Id.

18 17:19-18:18, 21:9-25. However, other than speculation, Scott does not attribute to R-71

19 this death threat or any other incident that she claimed could be considered harassment

20

21

4The blog site that Randall relied on for his claims of a death threat is

www.pinkpistols.org. This website appears to advocate for homosexuals to be armed if desired to

22 use only in self defense. Doe has not supplied competent evidence to the contrary.

ORDER - 24

1 that occurred before or after the R-71 vote. See, e.g., id. 32:10-20, 37:16-20, 38:17-234,

2 40:21-41:11, 64:15-19. Additionally, she called the police about the death threat and it

3 was handled without further incident. Id. 19:13-21:2, 30:10-31:24.

4

Valera Stevens. Valera Stevens (“Stevens”), a Washington State Senator, had her

5 picture and statement of support printed on the back of each R-71 petition. Dkt. 27, Ex. A

6 at 12. She endorsed the websites of PMW and FFN. Stafford Decl., Ex. N (Stevens Dep.)

7 15:6-17:4, 24:17-25:22. Stevens also wrote a fundraising message for the PMW website

8 and made six donations to PMW. See id. 24:17-25:22. Stevens has no concern about

9 testifying in this case, except if it occurs during the legislative session. Id. 7:4-13.

10

Stevens testified that she received several calls and two faxes in October of 2009

11 that she believed related to her support of R-71. Id. 26:17-28:13, 36:21-37:13, 46:12-

12 48:2. Although she recalls the callers using vulgar language she does not recall being told

13 her support of R-71 motivated the calls. Id. 29:8-30:17. None of these contacts made

14 Stevens feel threatened, and she did not notify the police; she has not experienced any

15 other harassment, threats, or reprisals due to her involvement with and support of R-71.

16 Id. 42:22-43:8, 45:10-13.

17

Larry Stickney. Larry Stickney (“L. Stickney”) served as PMW’s campaign

18 manager. Stafford Decl., Ex. O (L. Stickney Dep.) 6:1-13, 7:7-11. L. Stickney testified

19 that his involvement in R-71 is “extremely public.” Id. 22:14-17. L. Stickney has spoken

20 with reporters and been discussed on the Internet and in print regarding R-71; he has also

21 had upwards of twenty radio appearances, appeared on TV, participated in public

22

ORDER - 25

1 debates, and spoken in front of approximately 2000 people regarding R-71. Id. 22:18-

2 23:15, 35:23-37:15, 38:7-39:20.

3

L. Stickney did not personally experience any physical harassment or violence

4 during the campaign for R-71. Id. 48:16-49:9, 73:1-2. He did testify, however, that the

5 PMW campaign received threatening and/or hostile emails. Id. 48:16-49:9, 73:1-2. He

6 also testified that he felt threatened by a Bellingham, WA blogger who wrote “[w]hy

7 can’t we go to Arlington and harm his family?” Id. 53:2-24, 130:15-131:2. L. Stickney

8 contacted the police who said they would investigate the matter; he never reported any

9 further incidents regarding the blogger. Id. 56:20-58:2, 140:21-142:6. L. Stickney also

10 received a “bothersome” phone call from a transgendered individual. Id. 86:9-87:15,

11 90:7-91:3, 124:22-125:1.

12

The only other time L. Stickney felt threatened was when his daughter informed

13 him that a man took a photo of his home. However, L. Stickney cannot point to any facts

14 other than speculation to contend that this event related to R-71. L. Stickney did not

15 contact the police with regard to the unknown photographer.

16

Following the R-71 vote, Stickney has remained in the public’s eye and

17 occasionally received emails calling him a “rat” or a “homophobic bigot.” Id. 83:17-

18 85:21.

19

Matt Stickney. Matt Stickney (“M. Stickney”) publically participated in R-71

20 events and was listed in newspaper articles connected to the campaign. Stafford Decl.,

21 Ex. P (M. Stickney Dep.) 5:24-25, 7:3-24, 10:3-15, 11:16-25. M. Stickney commented

22 online regarding an article about R-71 published by The Stranger, a local publication. Id.

ORDER - 26

1 8:4-13. M. Stickney testified that, although people responded to his comment and made

2 comments about his father, L. Stickney, and their family in general, “[t]hey never said

3 anything about me – you know, they never said, you know, I am a jerk for working on

4 the campaign or whatever.” Id. 13:17-23. M. Stickney did not testify about any personal

5 experience of harassment, threats or reprisals due to his involvement with R-71, before or

6 after the vote.

7

Robert Struble. Robert Struble (“Struble”) acted as a spokesman for PMW and

8 shared his opinions on R-71 in public debates, on the radio, at a public state legislative

9 hearing, and in a letter to the Kitsap Sun editor. Stafford Decl., Ex. Q (Struble Dep.)

10 11:8-12:8, 13:17-21, 14:4-17, 17:25-18:15. Struble testified that the fact he signed the R-

11 71 petition is “so minuscule compared to the fact that [he’s] a public spokesman, so it’s

12 not really – [his] signature is hardly the issue.” Id. 19:1-24; see also id. 20:25-21:2

13 (Struble does not believe he would be at risk if the R-71 petitions were publically

14 released).

15

Struble testified about one incident he considered to be harassment. While handing

16 out brochures on a ferry, one person receiving a brochure, crumpled it up and threw it

17 back at Struble stating it was “a bunch of shit” and that he and his partner “had just as

18 much right to get married” as did Struble. Id. 23:13-20. The person attempted to get other

19 passengers to “vote” on the issue. Id. Eventually ferry workers stopped the person from

20 following Struble around on the ferry. Id. 29:1-3, 31:4-9.

21

Barbara “Rachel” Whaley. Rachel Whaley is Hutcherson’s assistant. Stafford

22 Decl., Ex. R. (Whaley Dep.) 5:13-16. Whaley did not testify to any personal experience

ORDER - 27

1 with threats, harassment, or reprisals related to her involvement with R-71 or for having

2 signed the petition. See generally, Ex. R. (Whaley Dep.). She did testify, however, that

3 the church did receive several phone calls telling the church to “shut up” and that failure

4 to do so would result in the church being “taken down,” but nobody followed through on

5 these statements. Id. 15:21-16:13, 24:2-10, 40:9-16.

6

The Court turns now to Doe’s other evidence that comes in the form of written

7 discovery. Defendants requested that Doe produce documents “relating to any alleged

8 harassment, threat or retaliation relating directly or indirectly to R-71.” Stafford Decl.,

9 Ex. S. Doe produced 1,542 pages of documents, which predominantly included

10 newspaper articles regarding the California Proposition 8 campaign and the R-71

11 campaign in Washington.

12

Significantly, in his deposition, L. Stickney testified that he solicited R-71 signers

13 to share any experiences they had with harassment. Stickney Dep. 30:3-35:8. If any

14 responses were obtained by Doe, none were included within their production to

15 Defendants’ request.

16

Further, on August 15, 2011, the Court ordered Doe to identify for the Court:

17

specific documents already in evidence that Plaintiffs believe will establish

a material question of fact as to whether disclosure of R-71 signers’

18

identities would result in the reasonable probability of threats, harassment,

or reprisals. These documents shall only include the declarations,

19

depositions, and documentary evidence already in the record of actual R-71

signers who have not already made themselves public figures on this issue

20

(e.g., information regarding Prop 8 in California, op-ed publications, and

the like will not be considered relevant for purposes of this request).

21

Dkt. 250 at 3.

22

ORDER - 28

1

In response to the Court’s order, Doe stated unequivocally that “[o]f course there

2 is no such evidence.” Dkt. 259 at 2 (stating that Doe’s theory is that “[u]nless and until

3 the identities of the signers are publically exposed, there will be no harassment of R-71

4 signers (who signed the petition but did not make that fact public knowledge).”

5

3. Sufficiency of Doe’s Evidence

6

The record in this case of what might be considered evidence of a reasonable

7 probability of threats, harassment, or reprisals of actual R-71 signers has been limited by

8 the evidence supplied by Doe. That evidence is comprised of experiences shared only by

9 publicized individuals who have taken public stances on the R-71 issue and against same-

10 sex marriage in general. See, e.g., L. Stickney Dep. This evidence, however, does not rise

11 to the level or amount of uncontroverted evidence provided in cases wherein a group was

12 able to obtain an as-applied exemption to otherwise permissible disclosure. See Brown

13 and NAACP, supra. Further, Doe has failed to provide competent evidence or adequate

14 authority from which this Court could conclude that disclosure of the R-71 petitions

15 would result in similar experiences for those who signed the petition.

16

To begin with, it is undisputed that L. Stickney has a list containing the names and

17 contact information of people he knows that signed the R-71 petition. This list was

18 compiled prior to the vote at issue. Doe has, therefore, had ample opportunity and time to

19 contact these individuals to obtain information about their experiences that might support

20 Doe’s request for an as-applied exemption to disclosure. No such evidence has been

21 produced. In fact, L. Stickney solicited such evidence from these individuals. Doe has not

22 supplied any such evidence to the Court nor informed it that such evidence exists.

ORDER - 29

1 Moreover, no doubt the majority of people who signed an R-71 petition did so in a public

2 place or forum and could have been contacted by mass publication or other means to

3 obtain their testimony as to any threats, harassment or reprisals they had experienced in

4 connection to their signing of the petition. However, no such evidence exists in the record

5 before the Court.

6

Further still, PMW secured donations to finance the campaign for R-71. It is

7 undisputed that between May and November of 2009, PMW reported 857 contributions

8 to its cause. The names and other personally identifying information of these donors has

9 been public knowledge for over two years. Doe has had ample time and opportunity to

10 contact these individuals, some of which likely signed the R-71 petition in addition to

11 donating to PMW’s R-71 campaign. Even if none of these donors signed the R-71

12 petition, their experiences are far more closely related to the issues at hand than the

13 random “evidence” supplied by Doe based on experiences of individuals around the

14 country and the now stale experiences of those persons involved with Proposition 8.

15 However, Doe has failed to supply sufficient, competent evidence that the publically

16 known donors – as active supporters of R-71 – have experienced sufficient threats,

17 harassment, or reprisals based on the disclosure of their information in connection to R-

18 71 that would satisfy the reasonable probability standard that Doe must meet in this case.

19 The Supreme Court has previously rejected a similar as-applied challenge based on such

20 a failure. Citizens United, 130 S. Ct. at 916 (rejecting Citizens United’s as-applied

21 challenge because it “has offered no evidence that its members may face similar threats

22 or reprisals. To the contrary, Citizens United has been disclosing its donors for years and

ORDER - 30

1 has identified no instance of harassment or retaliation.”). The same can be said for

2 PMW’s donors.

3 D. Widespread Evidence, Strong Evidence, Police Mitigation

4

As concluded above, the Court finds that Doe’s as-applied challenge cannot meet

5 the threshold required to obtain an as-applied exemption to the PRA in this case. Doe’s

6 claim would also fail under the standards – if considered distinguishable from the

7 applicable standards discussed above – articulated by a majority of the concurring

8 Justices in the Supreme Court’s opinion in Doe, 130 S. Ct. 2811.

9

As discussed above, Justice Sotomayor, with whom Justice Stevens and Justice

10 Ginsburg concurred, would require evidence of “serious and widespread harassment that

11 the State is unwilling or unable to control.” Justice Stevens, with whom Justice Breyer

12 concurred, also stated that the Court would “demand strong evidence before concluding

13 that an indirect and speculative chain of events imposes a substantial burden on speech.”

14 Doe, 130 S. Ct. at 2829. While Doe correctly points out that the concurrences in Doe are

15 dicta, their opinions remain instructive on what may likely be the standard applied by the

16 Supreme Court if it were to hear this case on appeal.

17

In any event, Justice Sotomayor and those Justices concurring in her opinion

18 would require a showing of “serious and widespread harassment that the State is

19 unwilling or unable to control.” Doe, 130 S. Ct. at 2829 (emphasis added). To the extent

20 this is a different standard than what is required to satisfy the reasonable probability

21 standard from Buckley, it is more stringent. Otherwise, it is merely an explanation as to

22

ORDER - 31

1 what the reasonable probability standard requires in this case. In any event, Doe cannot

2 satisfy such a requirement under either understanding of the law.

3

Applied here, the Court finds that Doe has only supplied evidence that hurts rather

4 than helps its case. Doe has supplied minimal testimony from a few witnesses who, in

5 their respective deposition testimony, stated either that police efforts to mitigate reported

6 incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or

7 are now unable or unwilling to mitigate any claimed harassment or are now unable or

8 unwilling to control the same, should disclosure be made. This is a quite different

9 situation than the progeny of cases providing an as-applied exemption wherein the

10 government was actually involved in carrying out the harassment, which was historic,

11 pervasive, and documented. To that end, the evidence supplied by Doe purporting to be

12 the best set of experiences of threats, harassment, or reprisals suffered or reasonably

13 likely to be suffered by R-71 signers cannot be characterized as “serious and

14 widespread.”

15 E. Conclusion

16

In this case, Doe asked the Court to grant an exemption to the PRA based on a few

17 experiences of what Doe believes constitutes harassment or threats, the majority of which

18 are only connected to R-71 by speculation. If Doe’s position were correct, then Doe

19 would have prevailed on Count I’s facial challenge to the PRA because anyone could

20 prevail under such a standard in the context of referenda, which are often heated,

21 regardless of the subject matter. Indeed, if a group could succeed in an as-applied

22 challenge to the PRA by simply providing a few isolated incidents of profane or indecent

ORDER - 32

1 statements, gestures, or other examples of uncomfortable conversations that are not

2 necessarily even related or directly connected to the issue at hand, disclosure would

3 become the exception instead of the rule.

4

Considering the foregoing, Doe’s action based on Count II falls far short of those

5 wherein an as-applied challenge has been successfully lodged to prevent disclosure of

6 information otherwise obtainable under the PRA. Thus, the State’s undoubtedly

7 important interest in disclosure prevails under exacting scrutiny.

8

While Plaintiffs have not shown serious and widespread threats, harassment, or

9 reprisals against the signers of R-71, or even that such activity would be reasonably likely

10 to occur upon the publication of their names and contact information, they have

11 developed substantial evidence that the public advocacy of traditional marriage as the

12 exclusive definition of marriage, or the expansion of rights for same sex partners, has

13 engendered hostility in this state, and risen to violence elsewhere, against some who have

14 engaged in that advocacy. This should concern every citizen and deserves the full

15 attention of law enforcement when the line gets crossed and an advocate becomes the

16 victim of a crime or is subject to a genuine threat of violence. The right of individuals to

17 speak openly and associate with others who share common views without justified fear of

18 harm is at the very foundation of preserving a free and open society.

19

The facts before the Court in this case, however, do not rise to the level of

20 demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to

21 the signers of R-71, now nearly two years after R-71 was submitted to the voters in

22 Washington State.

ORDER - 33

1

III. ORDER

2

Therefore, it is hereby ORDERED that:

3

(1) Defendants and Intervenors’ motions for summary judgment are

4

GRANTED;

5

(2) Doe’s motion for summary judgment is DENIED;

6

(3) The injunction preventing disclosure of R-71 petitions is LIFTED;

7

(4) All other pending motions are DENIED as moot; and

8

(5) This case is CLOSED.

9

Dated this 17th day of October, 2011.

10 11

A

12

BENJAMIN H. SETTLE United States District Judge

13

14

15

16

17

18

19

20

21

22

ORDER - 34

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT

6

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

7

8 John DOE # 1, et al.,

9

Plaintiffs,

10

v.

11 SAM REED, in his official capacity as Secretary of State of Washington, et al.,
12
Defendants. 13

CASE NO. C09-5456BHS
ORDER DENYING PLAINTIFFS’ MOTION FOR INJUNCTION PENDING APPEAL

14 This matter comes before the Court on Plaintiffs’ motion for injunction pending
15 appeal. Dkt. 320. The Court has considered the pleadings filed in support of and in
16 opposition to the motion and the remainder of the file and hereby denies Plaintiffs’
17 motion for injunction pending appeal for the reasons stated herein.
18 I. PROCEDURAL & FACTUAL BACKGROUND
19 On July 28, 2009, Plaintiffs (collectively “Doe”) filed this action to object to and
20 enjoin the disclosure of Referendum 71 (“R-71”) petitions on two constitutional bases:
21 Count I, that disclosure of any referendum or initiative petitions is unconstitutional as a
22

ORDER - 1

1 general matter; and Count II, that disclosure of R-71 petitions would be unconstitutional

2 as applied to Doe (i.e., R-71 initiative signers). See Dkt. 2 (Complaint). On September

3 10, 2009, the Court granted preliminary injunctive relief on Count I but declined to rule

4 on Count II. Dkt. 62.

5

Defendants appealed the Court’s ruling and the Ninth Circuit reversed. Doe v.

6 Reed, 586 F.3d 671 (2009). The Supreme Court accepted review and affirmed the Ninth

7 Circuit decision. Doe v. Reed, 130 S. Ct. 2811 (2010). The Supreme Court left open the

8 possibility of relief under Count II (Doe’s as-applied challenge to disclosure).

9

On June 29, 2011, the parties each filed motions for summary judgment regarding

10 Doe’s as-applied challenge. Dkts. 196, 204, 208, and 209. The parties fully briefed these

11 matters. Additionally, the Secretary of State of Washington moved to strike certain

12 evidence relied upon by Doe. Dkt. 231 (motion to strike and reply to Doe’s response in

13 opposition to summary judgment). On October 17, 2011, the Court granted summary

14 judgment in favor of Defendants and denied Doe’s motion for summary judgment, lifted

15 the injunction that prevented the disclosure of the R-71 petitions, and closed the case.

16 Dkt. 319.

17

On October 17, 2011, Doe filed the instant motion for injunction pending appeal

18 and noted the motion for November 7, 2011. Dkt. 320. Also on October 17, 2011, Doe

19 filed their notice of appeal. Dkt. 321. On October 20, 2011, Doe filed an emergency

20 motion at the Ninth Circuit Court of Appeals requesting that the Ninth Circuit: (1) enjoin

21 Defendants from releasing the R-71 petitions pending this Court’s ruling on the motion

22 for injunction pending appeal; and (2) enjoin this Court from disclosing the identities of

ORDER - 2

1 the plaintiffs and their witnesses. See Dkt. 324. The Ninth Circuit denied Doe’s motion

2 for failure to comply with Rule 8(a) of the Federal Rules of Appellate Procedure as they

3 did not seek expedited consideration of the motion in this Court, nor did they await this

4 Court’s ruling on the motion. Id. However, the Ninth Circuit issued a temporary

5 injunction enjoining Defendants from further releasing any R-71 petitions and ordered

6 that the injunction remain in effect for five days following this Court’s ruling on the

7 motion. Id.

8

For a more complete procedural and factual background in this matter, see the

9 Court’s order on the parties’ motions for summary judgment (Dkt. 319).

10

II. DISCUSSION

11 A. Mootness

12

“Mootness is a threshold jurisdiction issue.” S. Pac. Transp. Co. v. Pub. Util.

13 Comm’n of Oregon, 9 F.3d 807, 810 (9th Cir. 1993). “Simply stated, a case is moot

14 when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

15 interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).

16

Defendants argue that the controversy brought in Plaintiffs’ motion for injunction

17 pending appeal was rendered moot “by the disclosure of the Court order and R-71

18 petitions, and the extensive broadcasting of these documents on the internet.” Dkt. 327 at

19 8-10. Defendants maintain that the Court cannot grant Doe effective relief, and therefore,

20 a live controversy no longer exists. Id. at 9-10.

21

The Court agrees with Defendants that the effectiveness of any relief now given

22 would be less than that available had the injunction been sought prior to the disclosure of

ORDER - 3

1 the Court’s order releasing the names of Plaintiffs and their witnesses and Defendants’

2 dissemination of some R-71 petitions. However, to the extent that some relief could be

3 given by enjoining Defendants from disseminating any further R-71 petitions, the Court

4 concludes that there remains a live controversy and Doe’s motion is not entirely moot.

5 Accordingly, the Court will consider Doe’s motion on its merits.

6 B. Injunction Pending Appeal

7

The standard for issuing an injunction pending an appeal is the same as that used

8 for issuing a preliminary injunction. See Humane Soc. of U.S. v. Gutierrez, 558 F.3d 896 9 (9th Cir. 2009) (citing Winter v. Natural Resources Defense Council, 555 U.S. 7, 20

10 (2008)). The court may issue a preliminary injunction where a party establishes (1) a

11 likelihood of success on the merits, that (2) it is likely to suffer irreparable harm in the

12 absence of preliminary relief, that (3) the balance of hardships tips in its favor, and (4)

13 that the public interest favors an injunction. Winter, 555 U.S. at 20.

14

For the reasons stated in the Court’s order granting Defendants’ motion for

15 summary judgment (Dkt. 319), the Court concludes that Doe has failed to show a

16 likelihood of success on the merits. In addition, even if Doe could show such likelihood,

17 they have failed to establish that irreparable harm would occur in the absence of an

18 injunction. Defendants have already released several copies of the R-71 petitions (see

19 Dkt. 327 at 6-7) and such petitions are now available on the internet. Doe has failed to

20 show how they would be irreparably harmed by Defendants releasing further R-71

21 petitions when copies of such petitions have already been posted on the internet and

22 given to individuals and organizations whose activity cannot be reached by the injunction

ORDER - 4

1 sought. In addition, Doe has failed to show how redacting the names of Plaintiffs and

2 their witnesses would provide relief when the order revealing such information has been

3 available for several weeks. In addition, the Court concludes that the balance of equities

4 tips in favor of denying the injunction where the Court has decided the merits of the case

5 in favor of disclosure and the names and petitions have already been disclosed. Finally,

6 the Court concludes that it is in the public interest for the names and petitions to be

7 released as the Court has found that the public is entitled to disclosure. Accordingly,

8 Doe’s motion for injunction pending appeal must be denied.

9

III. ORDER

10

Therefore, it is hereby ORDERED that Doe’s motion for injunction pending

11 appeal (Dkt. 320) is DENIED.

12

Dated this 8th day of November, 2011.

13 14

A

15

BENJAMIN H. SETTLE

United States District Judge
16

17

18

19

20

21

22

ORDER - 5

 
 Case 3:09-cv-05456-BHS Document 333 Filed 11/28/11 Page 1 of 3

Supreme Court of the United States Office ofthe Clerk
Washington, DC 20543-0001

November 21, 2011

William K. Suter Clerk of the Court (202) 479-301J

Clerk United States District Court for the Western District of Washington 1717 Pacific Avenue, Room 2100 Tacoma, WA 98402-3233

Re: John Doe #1, et aL v. Sam Reed, Washington Secretary of State, et aL No. 11A501 (Your No. 3:09-cv-5456)

Dear Clerk: The enclosed order of the Court in the above entitled case issued today.

Sincerely,
William K. Suter, Clerk
by~jjhJeP
Danny Bickell Staff Attorney

lllllllllllllllllllllllllllllllllllllllllllll
11111111111111111111111111111111111
09-CV-05456-0RD

Case 3:09-cv-05456-BHS Document 333 Filed 11/28/11 Page 2 of 3 •

Cite as: 565 U. S. _ (2011)

1

ALITO, J., clissenting
SUPREME COURT OF THE UNITED STATES

No.l1A501

JOHN DOE #1, ET AL. v. SAM REED, WASHINGTON SECRETARY OF STATE, ET AL.
ON APPLICATION FOR INJUNCTION
[November 21, 2011]
The application for an injunction presented to JUSTICE KENNEDY and by him referred to the Court is denied. JUSTICE KAGAN took no part in the consideration or decision of this application.
JUSTICE ALITO, dissenting from denial of injunction.
In Doe v. Reed, 561 U.S. _ (2010), the Court rejected petitioners' facial challenge to the Washington law authorizing the disclosure of referendum petitions but assured petitioners that the disclosure could be blocked if a proper party could show that compelled disclosure would result in "threats, harassment, or reprisals." Id., at _ (slip op., at 12). Today's order reveals that this assurance was empty.
On remand, the District Court rejected petitioners' asapplied challenge, relying primarily on a highly questionable interpretation of our precedents. The District Court reasoned that only a select few organizations-what the court termed "minor'' political parties and "fringe" groups-may challenge the disclosure of the names of persons who sign a referendum petition. Case No. C095456 (WD Wash., Oct. 17, 2011), pp. 13-15. If a referendum succeeds or nearly succeeds (or if the referendum supports a position that has not been historically vilified), then, according to the District Court, disclosure of the names of the citizens who signed the petition cannot be shielded no matter how strong the evidence of threatened

Case 3:09-cv-05456-BHS Document 333 Filed 11/28/11 Page 3 of 3

2

DOEv.REED

ALITO, J., dissenting
retaliation or how severe the nature of the threats. !d., at 15. Whether this is a correct interpretation of our cases presents an important question that merits serious appellate review.
The alternative basis for the District Court's holdingthat petitioners did not present sufficient evidence of threatened harm-also presents an important legal issue, namely, the type and quantity of proof that persons objecting to disclosure must adduce. As Judge N. R. Smith observed below, petitioners adduced evidence that some supporters of the referendum "received death threats," "had their children threatened," and suffered various indignities, No. 11-35854 (CA9, Nov. 16, 2011), p. 8 (dissenting opinion), but according to the District Court, this was not enough. Whether the standard of proof applied by the District Court provides any real protection for persons who are threatened with retaliation for asserting their First Amendment rights is an important issue that merits considered appellate review.
There has been no such review in this case. When petitioners took an appeal to the Ninth Circuit, the panel denied the stay application over Judge Smith's protest that the majority had "race[d] to decide the case at [a] preliminary stage based on incomplete information and without even reviewing the record." ld., at 3.
This Court now takes a similar approach. Particularly since the referendum at issue went down to defeat more than two years ago, the Court's haste is hard to understand. I would grant a stay at least until the Court has had an opportunity to review the record and to consider the parties' arguments.

 
 CaseC: 1a1se-335:80594-cv-01504/2536/-2B0H1S2 DocuIDm:e8n3t73233659FileDdk1tE0n/2tr3y/:1429-1PagePa1goef:214of 24

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 JOHN D OE #1, an individual; J OHN
DOE #2, an individual; P ROTECT MARRIAGE W ASHINGTON,
Plaintiffs-Appellants,

v.

SAM R EED, in his official capacity as Secretary of State of Washington; B RENDA G ALARZA, in her official capacity as Public

No. 11-35854
 DC No. 3:09-cv-05456-BHS

records Officer for the Secretary of State of Washington,

OPINION

Defendants-Appellees,

WASHINGTON C OALITION FOR O PEN GOVERNMENT; W ASHINGTON FAMILIES S TANDING T OGETHER,
 Intervenors-Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted June 22, 2012—Pasadena, California
Filed October 23, 2012
Before: Harry Pregerson, A. Wallace Tashima, and N. Randy Smith, Circuit Judges.
Opinion by Judge Tashima; Concurrence by Judge N.R. Smith

12881

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COUNSEL
James Bopp, Jr., Terre Haute, Indiana, for the plaintiffsappellants.
Anne E. Egeler, Deputy Solicitor General, Olympia, Washington, for the defendants-appellees.

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Leslie R. Weatherhead, Witherspoon Kelley, Spokane, Washington, for intervenor-defendant-appellee Washington Coalition for Open Government.

Kevin J. Hamilton, Perkins Coie, Seattle, Washington, for intervenor-defendant-appellee Washington Families Standing Together.

Paul S. Ryan, Washington, DC, for amicus curiae The Campaign Legal Center.

OPINION
TASHIMA, Circuit Judge:
Plaintiffs Protect Marriage Washington ( “PMW”), John Doe #1, and John Doe #2 (collectively, “Plaintiffs”) seek to enjoin Defendants, the Secretary of State and Public Records Officer of the State of Washington, from releasing the names of people who signed petitions supporting a Washington referendum. These petitions are already widely available on the internet. We dismiss this case as moot because we cannot grant Plaintiffs effective relief.
I
Washington citizens can use the referendum process to reject bills passed by the Washington legislature. Wash. Const. art. II, § 1(b). The referendum process is initiated when petitions with enough valid signatures of registered voters, together with their printed names and addresses, are filed with the Secretary of State. Wash. Rev. Code § 29A.72.130. Washington’s Public Records Act ( “PRA”) requires state agencies to make public records available for public inspection. Id. § 42.56.070.1
1A more detailed factual background can be found in our previous opinion, Doe v. Reed , 586 F.3d 671 (9th Cir. 2009), and in the Supreme Court’s opinion, Doe v. Reed , 130 S. Ct. 2811 (2010).

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Washington Senate Bill 5688 expanded the rights and responsibilities of state-registered domestic partners. On July 25, 2009, PMW submitted signed petitions to the Secretary of State in support of a referendum to overturn Senate Bill 5688. Three days later, Plaintiffs filed a two-count complaint which sought to enjoin the State from publicly releasing the petitions. The district court granted a temporary restraining order the next day.

Count I of the Plaintiffs’ complaint alleges that the PRA violates the First Amendment as applied to referendum petitions because it is not narrowly tailored to serve a compelling government interest. The district court initially agreed. Doe v. Reed, 661 F. Supp. 2d 1194 (W.D. Wash. 2009). We reversed, Doe v. Reed, 586 F.3d 671 (9th Cir. 2009), and granted Plaintiffs’ motion for a stay pending final resolution of the appeals. The Supreme Court affirmed our decision, Doe v. Reed , 130 S. Ct. 2811 (2010), and also rejected a motion to vacate the stay, (US Dkt. Oct. 20, 2009).

On remand, the district court considered Count II, which claims that releasing the names of the signers of this petition would violate the First Amendment because the signers would be subjected to threats, harassment, and reprisals. On October 17, 2011, the district court granted Defendant’s motion for summary judgment and dissolved the preliminary injunction. The State immediately began to release the petitions.

Also on October 17, Plaintiffs filed a notice of appeal and a motion for an injunction pending appeal in the district court. Before the district court ruled on that motion, Plaintiffs filed an emergency motion for an injunction pending appeal in this Court on October 20, 2011. We denied the motion without prejudice, but enjoined the State from releasing the petitions until five days after the district court’s ruling. On November 8, 2011, the district court denied Plaintiffs’ motion because it found that Plaintiffs failed to show a likelihood of success on the merits. The next day, Plaintiffs renewed their motion

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before this panel, and a week later we denied the renewed motion. Plaintiffs requested an injunction pending appeal from Circuit Justice Kennedy, who referred the matter to the full Court, which in turn denied it.

The petitions are now available in original and in searchable form on the internet.

II

This Court reviews a district court’s grant of summary judgment de novo. Bias v. Moynihan , 508 F.3d 1212, 1218 (9th Cir. 2007). We review mootness de novo. S. Cal. Painters & Allied Trades v. Rodin & Co., Inc. , 558 F.3d 1028, 1034 n.6 (9th Cir. 2009).

III

Standing is a “jurisdictional issue[ ] deriving from the requirement of a case or controversy under Article III. ” Cole v. Oroville Union High Sch. Dist. , 228 F.3d 1092, 1098 (9th Cir. 2000) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180 (2000)). “The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted. ” Feldman v. Bomar , 518 F.3d 637, 642 (9th Cir. 2008) (internal quotation marks omitted). This case is moot because no effective relief remains available to Plaintiffs. No exception to the mootness doctrine applies because this is not the type of case that is capable of repetition, yet evading review.

A

[1] Count II seeks an injunction preventing defendants from making these petitions available to the public. This relief is no longer available because the petitions are now available to the public.

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[2] “In deciding a mootness issue, the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief. ” Or. Natural Res. Council v. U.S. Bureau of Land Mgmt ., 470 F.3d 818, 820 (9th Cir. 2006) (internal quotation marks and alterations omitted); see also Feldman, 518 F.3d at 642. PMW argues that we could grant “effective relief” by preventing the State from fulfilling additional public records requests for the petitions and preventing Intervenors Washington Coalition for Open Government and Washington Families Standing Together from distributing the petitions. But the petitions are already available on websites that are not under the control of the State or Intervenors. If anyone with an internet connection can easily obtain the images of the original documents online, it is not clear why anyone would bother filing an additional public records request. And if someone did file such a request, the State would realistically not be contributing to the “further disclosure” of the petitions by responding to the request. A moot case cannot be revived by alleged future harm that is “so remote and speculative that there is no tangible prejudice to the existing interests of the parties.” Feldman, 518 F.3d at 643 (internal quotation marks omitted) (holding a claim seeking the humane removal of feral pigs from an island became moot once monitoring indicated that all pigs had been killed).

[3] Similarly, in the FOIA context, we have held in an appeal challenging the district court’s order unsealing FOIA documents, that the appeal would become moot once the documents were unsealed, because “the unsealing cannot be reversed.” Islamic Shura Council of S. Cal. v. FBI , 635 F.3d 1160, 1164 (9th Cir. 2011).

[4] The Eleventh Circuit has also held that a case seeking to keep a document secret is moot once third parties have control over copies of the document. See C & C Prods., Inc. v. Messick, 700 F.2d 635, 636-37 (11th Cir. 1983) (dismissing appeal as moot because plaintiff ’s “sole assignment of error

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is that the district court erred in modifying the protective order to permit [a third party] to utilize the discovery materials,” but the materials had been released to the third party and “no order from this court can undo that situation ”). This is in contrast to situations in which a court can grant some effective relief with an order directed at the parties appearing before it. See Church of Scientology of Cal. v. United States , 506 U.S. 9, 13 (1992) (the court could “effectuate a partial remedy” in a case seeking to prevent IRS from obtaining certain evidence after IRS obtained the evidence by “ordering the Government to destroy or return any and all copies it may have in its possession ”); In re Grand Jury Investigation No. 78-184, 642 F.2d 1184, 1188 (9th Cir. 1981), aff’d sub nom. United States v. Sells Eng’g, Inc. , 463 U.S. 418, 422 n.6 (1983) (rejecting mootness argument because not all attorneys, paralegals, and staff had seen the released material and therefore “we can grant partial relief by preventing further disclosure”); see also United States v. Nix , 21 F.3d 347, 350 (9th Cir. 1994) (release of grand jury documents to litigants who had settled case was not moot because some class members had opted out and “there still exists the potential for further litigation and further disclosure ”).

Plaintiffs cite two cases in which, they argue, a court found a live controversy after documents had been disclosed to parties who were not before the court. We decline to follow Detroit International Bridge Company v. Federal Highway Administration, which held that a case seeking to prevent the release of a report to a congressman was not moot even after the defendant released the report to the congressman. 666 F. Supp. 2d 740, 742-45 (E.D. Mich. 2009). The court in Detroit International admitted that it was “skeptical” and acknowledged that it was “doubtful of its ability to offer an effective or meaningful remedy. ” Id. at 744-45. We cannot agree that, under such circumstances, the case had not become moot.

[5] In United States v. Smith, after the government publicly released a sentencing memorandum that contained allegations

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of criminal conduct against uncharged individuals, the district court sealed the sentencing memorandum and denied a motion by various newspapers for access to the sentencing memorandum and the sealed briefs. 123 F.3d 140, 143, 145 (3d Cir. 1997). Consistent with our disposition of this case, the Third Circuit held that a motion by newspapers to access the released sentencing memorandum was moot because the newspapers “already possess[ed] it,” and rejected the newspapers’ claim to access the briefs because such access would “disclose additional confidential material. ” Id. at 146, 154. The court added, however, that “[e]ven if the dissemination by members of the public continues, ” an order barring further disclosure of the material in the sentencing memorandum “will at least narrow that dissemination. ” Id. at 155. This statement is dictum and does not undermine our commonsense conclusion that once a fact is widely available to the public, a court cannot grant any “effective relief” to a person seeking to keep that fact a secret. We doubt, because of the information’s availability on the internet, that enjoining further disclosure by the parties wil“l narrow [any further] dissemination.”2

B

[6] An exception to the mootness doctrine is created when the circumstances in question meet the following two-prong test: “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. ” Fed. Election Comm’n v. Wisc. Right to Life, Inc. , 551 U.S. 449, 462 (2007). The exception does not apply in this case because it fails prong one.

2The concurrence relies on these same cases,

see Concurrence at

12892-97, to support its assertion that some effective relief may still be

available to Plaintiffs. But none of these cases involved the posting of the

information sought to be kept confidential on the internet by third-parties.

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[7] Cases that qualify under prong one present controversies of inherently limited duration. In one of these cases, it is not “reasonably foreseeable ” that plaintiffs can obtain full review before their case becomes moot. First Nat’l Bank of Bos. v. Bellotti , 435 U.S. 765, 774 (1978). For example, “[p]regnancy provides a classic justification for a conclusion of nonmootness. It truly could be capable of repetition, yet evading review. ” Roe v. Wade , 410 U.S. 113, 125 (1973) (quotation marks omitted). Cases challenging a prior restraint on free speech also typically fit into this exception. See, e.g., Caroll v. President & Comm’rs of Princess Anne , 393 U.S. 175, 178-79 (1968) (holding that a First Amendment challenge to an expired restraining order which had enjoined a rally was not moot). Cases that only present live controversies in brief periods before an election present another example. See, e.g., Wisc. Right to Life, Inc. , 551 U.S. at 462 (defendant “had no way of knowing well in advance that it would want to run ads on judicial filibusters ” shortly before the election when such ads were prohibited under challenged law); Bellotti, 435 U.S. at 774 ( “In each of the legislature’s four attempts to obtain constitutional authorization to enact a graduated income tax, . . . the period of time between legislative authorization of the proposal and its submission to the voters was approximately 18 months. ”).

[8] There was no inherent limit on the duration of this controversy. The district court granted a temporary restraining order the day after Plaintiffs filed their complaint in July 2009. The petitions were not released until October 2011. The release was not timed to a 27-month deadline inherent in this type of petition. And unlike the election-related cases granting an exception like Wisconsin Right to Life and Bellotti, the issues in this case were not moot once the election was held. See also Feldman, 518 F.3d at 644 (noting that plaintiffs “had an opportunity to request both a temporary restraining order and a preliminary injunction, which were denied and affirmed on appeal”). Because it is reasonably foreseeable that this type

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of challenge could be fully litigated before becoming moot, this type of challenge does not evade review.

IV

[9] Because this case is moot, we lack jurisdiction to con-

sider its merits. Steel Co. v. Citizens for a Better Env’t , 523

U.S. 83, 93-94 (1998). Accordingly, we

DISMISS this

appeal.

N.R. SMITH, Circuit Judge, concurring in the judgment:
I concur in the judgment affirming the district court, because Plaintiffs have not raised a successful as-applied challenge. However, because Supreme Court precedent makes clear that this case is not moot where continued government disclosure of confidential materials can be prevented, I write separately to address the merits.
I. Mootness
As the majority noted, the district court granted Defendant’s motion for summary judgment and dissolved the preliminary injunction in October 2011. The State immediately began to release the R-71 petitions. Plaintiffs may have prevented the release of petitions from occurring by asking the district court to stay its order pending appeal and filing a motion for stay here. As a result of Plaintiffs’ tactical decisions, the records became public before Plaintiffs took any steps to prevent disclosure.
Because the names of R-71 petition signers have been released to the public at large, the question of mootness now hinges entirely on the relief that Plaintiffs seek. If Plaintiffs only seek to secure total confidentiality for the names of R-71 petition signers, then this relief is clearly no longer available.

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As Chief Judge Kozinski has described it, “removing something from the internet is about as easy as removing urine from a swimming pool. ” Alex Kozinski, The Dead Past , 64 Stan. L. Rev. Online 117 (April 12, 2012). However, if instead the Plaintiffs seek to prevent the State of Washington from further disclosing names and information of R-71 petition-signers, then Plaintiffs can still obtain a viable remedy, albeit a much less effective remedy than they originally sought. Supreme Court precedent makes clear that preventing continued disclosure properly describes the remedy Plaintiffs seek here, and thus the case is not entirely moot.

Both the Ninth Circuit and the Supreme Court have recognized that there is not merely a strict dichotomy where privacy is either fully protected or completely irrelevant. Rather, there is a spectrum of remedies available where the Government’s “further disclosure ” results in “the veil of secrecy [being] lifted higher. ” In re Grand Jury Investigation No. 78184, 642 F.2d 1184, 1188 (9th Cir. 1981), aff’d sub nom. , United States v. Sells Eng’g Inc. , 463 U.S. 418, 422 n.6 (1983) ( “Sells”). Privacy interests can still be protected in degrees by making it more difficult for individuals to access information. See United States v. Fischbach and Moore, Inc. , 776 F.2d 839, 844 (9th Cir. 1985) (“[S]ome interest in secrecy survives disclosure. ” (citing Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979))).

For instance, in In re Grand Jury Investigation No. 78-184 , the Ninth Circuit heard an appeal from “the district court’s order . . . granting the Civil Division . . . access to documents . . . acquired by a federal grand jury ” in connection with a criminal investigation. 642 F.2d at 1186. Following the investigation, the Civil Division moved for disclosure of the documents to Civil Division attorneys under Federal Rule of Criminal Procedure 6(e) for possible civil prosecution. Id. The district court ruled the Civil Division was entitled to the documents under the rule. Id. at 1186-87. Defendants appealed the district court’s decision. Id. at 1187.

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On appeal, the Prosecutor argued that the “appeal [was] moot because many of the . . . materials . . . [had] already been disclosed to Civil Division attorneys. ” Id. The prosecution argued that the “court [would] be powerless to accord relief.” Id. The Ninth Circuit rejected the Prosecutor’s argument, holding that “[t]he controversy here is still a live one. By its terms the disclosure order grants access to all attorneys for the Civil Division, their paralegal and secretarial staff, and all other necessary assistants. ” Id. at 1187-88. The court further noted that “[e]ach day this order remains effective the veil of secrecy is lifted higher by disclosure to additional personnel and by the continued access of those to whom the materials have already been disclosed. We cannot restore the secrecy that has already been lost but we can grant partial relief by preventing further disclosure .” Id. at 1188 (emphasis added). The Supreme Court affirmed and concluded that the “Court of Appeals correctly rejected the contention ” “that the case was moot because the disclosure sought to be prevented had already occurred. ” Sells, 463 U.S. at 422 n.6; see also Fischbach and Moore, Inc. , 776 F.2d at 841 n.2 ( “[B]ecause of harm caused by continuing disclosure controversy is not moot after initial disclosure. ”); United States v. Nix , 21 F.3d 347, 352 (9th Cir. 1994) (appeal not moot because of “further harm that may occur from future use of the grand jury transcripts”).

The Supreme Court also supports this existence of a spectrum of remedies available in Massachusetts v. E.P.A. , 549 U.S. 497, 504-14 (2007), where the Court explained that a remedy is available if there is a possibility that the court action would “slow or reduce” the problem, even if the problem cannot be entirely prevented. Id. at 525.

The majority’s attempts to distinguish these cases are not persuasive. For instance, the majority explains that in In re Grand Jury Investigation No. 78-184 , the case was not moot, because not all attorneys, paralegal and staff had seen the material and therefore the court could “grant partial relief by

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preventing further disclosure. ” 642 F.2d at 1188. However, that was not the primary reason the case was not moot. The Ninth Circuit and Supreme Court explained that not only did disclosure to additional personnel constitute an injury, but even the “continued access of those to whom the materials ha[d] already been disclosed ” constituted an injury. Id. (emphasis added).

Similarly, in Church of Scientology of California v. United States, the Supreme Court explained that the case was not moot, because the court could “effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. ” 506 U.S. 9, 13 (1999). However, in that case, the Supreme Court also said that the Ninth Circuit had inappropriately determined the case was moot, because there was also an injury caused by “the Government’s continued possession of those materials ” which itself constituted an “affront to the taxpayer’s privacy. ” Id. (emphasis added). This was true even though it was too late to “prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes. ” Id. Thus, the court explained there that a court need only have an “availability of [a] possible remedy” to prevent mootness. Id. (emphasis added). Furthermore, even where a court “may not be able to return the parties to the status quo ante . . . a court can fashion some form of meaningful relief. ” Id. at 12.

Moreover, even if this precedent did stand for the proposition that a case is not moot only if disclosure to additional parties can be prevented by the government, the majority mistakenly assumes that every person in the United States or the State of Washington has access to a computer to search for these petitions. Though widespread internet access is available to the public, the fact remains that twenty percent of the national population and almost twelve percent of Washington State’s population did not have access to the internet in 2010. 1

1United States Census Bureau, Internet Access and Usage: 2010, available at http://www.census.gov/compendia/statab/2012/tables/12s1157.pdf.

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There are likely still other individuals who would not know where to look for these petitions on the internet. Certainly preventing further government disclosure to individuals without access or desire to download petitions from nongovernment websites will “slow or reduce” the dissemination of potentially private information. Massachusetts, 549 U.S. at 525. Because the majority can only speculate as to who is able and willing to access these petitions, the majority cannot say that no “possible remedy” is available in the form of preventing further government disclosures of Plaintiffs’ identities. Church of Scientology of California, 506 U.S. at 13. Thus, we are required to address the merits.

The majority also attempts to distinguish this situation based on the fact that some parties (who have access to confidential information) are not before the court. However, after Sells holding that “further disclosure ” results in “the veil of secrecy [being] lifted higher, ” 463 U.S. at 422 n.6, the only two cases to address the issue of whether third party access to confidential documents moots the case have determined that the reasoning of Sells applies in full force. See United States v. Smith , 123 F.3d 140, 143, 145 (3d Cir. 1997); Detroit Int’l Bridge Co. v. Fed. Highway Admin. , 666 F. Supp. 2d 740, 742-45 (E.D. Mich. 2009).

In Smith, several newspapers sought access to court records in a criminal case. 123 F.3d at 143. At the sentencing stage, the government inadvertently disclosed grand jury secrets in its memorandum. Id. The court sealed the memorandum and ordered briefing and a hearing to address the extent the memorandum contained secret grand jury material. Id. Newspapers intervened and moved for access to the memorandum and proceedings regarding it. Id. The district court denied the motion, and the newspapers appealed. Id.

The newspapers argued that, because the information was “no longer secret, ” there was no longer a reason to protect it from further disclosure. Id. at 154. The Third Circuit

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explained: “we cannot agree with the newspapers’ contention that grand jury material . . . once disclosed, even if inadvertently, is no longer subject to the protections of Rule 6(e).” Id. “At bottom, it is clear to us that a court is simply not powerless, in the face of an unlawful disclosure of grand jury secrets, to prevent all further disclosures by the government of those same jury secrets. In other words, even if grand jury secrets are publicly disclosed, they may still be entitled to at least some protection from disclosure. ” Id. The court made this determination despite the fact that its order barring future disclosure to the newspapers could not “effectively bar further dissemination of any potential grand jury secrets by members of the public who possess[ed] the sentencing memorandum. ” Id. at 155. Hence, relief was still possible, because the court could “at least narrow that dissemination ” “[e]ven if the dissemination by members of the public continues. ” Id.2 Contrary to the majority’s assertion, this reasoning is not dicta, but was in fact central to one of the Third Circuit’s holdings.

Similarly, the Eastern District of Michigan held that a case seeking to prevent the release of a report to a congressman was not moot even after the defendant released the report to the congressman. Detroit Int’l Bridge Co., 666 F. Supp. 2d at 742-45. The court concluded that, even though it was “doubtful of its ability to offer an effective or meaningful remedy, ” it was required to address the merits since potentially “some form of meaningful relief ” could be provided. Id. at 745 (internal quotation marks omitted).

In response to this precedent, the majority relies primarily on C & C Prods., Inc. v. Messick, 700 F.2d 635, 636-37 (11th Cir. 1983), for the proposition that a case becomes moot once

2Notably, in Smith, the court determined that the newspaper’s separate claim seeking access to materials was moot, because Newspapers were just asking for access to documents and they had received it. This is different from the reverse situation, where an individual is suing to stop the continuing disclosure of its identity by the government to additional parties.

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third parties have control over a confidential document. However, Messick was decided before the Supreme Court’s decision in Sells, leaving Messick as questionable precedent. Furthermore, Messick is distinguishable, because the access to confidential discovery materials had only been granted to one party, who had received the materials, and the trial in which the materials had been used was complete. Id.

While the majority is incorrect that the lesser practical remedy available in this case makes the issue moot, the majority’s concerns about the practical effect of the past disclosure of Plaintiffs identities is still relevant to the First Amendment balancing analysis under the merits, discussed in Part III.

II. Standing

As a general rule, an individual has standing if they “allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright , 468 U.S. 737, 751 (1984).

In this case, the named Plaintiffs have standing to pursue this case on their own behalf, as well as on behalf of R-71 petition signers not before the court. For the same reason that this case is not moot, and there is some remedy still available, the Plaintiffs have also suffered a cognizable, redressable injury giving rise to standing. See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc. , 528 U.S. 167, 189 (2000) (describing mootness as “the doctrine of standing set in a time frame ”).

The injury here is not limited to the fact that the public knows Plaintiffs’ identities, but includes the injury that the government forced the speaker to disclose their identities and that the disclosure and access to those identities continues. The Supreme Court has noted that forced disclosure is a burden on speech, and thus this constitutes a sufficient injury for standing. See Doe v. Reed , 130 S. Ct. 2811, 2818 (2010)

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(explaining that disclosure requirements “burden the ability to speak” and thus must survive “exacting scrutiny ” (internal quotation marks omitted)); see also Buckley v. Valeo , 424 U.S. 1, 64, 68 (1976) ( “It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights .” (emphasis added)); Citizens United v. Fed. Election Comm’n , 130 S. Ct 876, 898, 914 (2010) (“Disclaimer and disclosure requirements may burden the ability to speak . . . .”). In other words, even if the named Doe Plaintiffs are still willing to publicly speak, that doesn’t mean they have not experienced an injury through a governmentimposed burden on that speech. A ruling in Plaintiffs’ favor could redress this injury by preventing further governmentimposed disclosure of Plaintiffs’ identities. 3

3Plaintiffs did not argue that committee-plaintiff Protect Marriage has third party standing on behalf of R-71 petition signers, but Plaintiffs did argue that the named Doe Plaintiffs have third-party standing on behalf of other R-71 petition-signers. A prudential principle of standing is that “[i]n the ordinary case, a party is denied standing to assert the rights of third persons.” Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 263 (1977). However, courts will allow an exception to the third-party standing prohibition in situations where (1) the litigant suffered some sort of injury-in-fact, (2) there exists some sort of relationship between the litigant and the person whose rights the litigant seeks to assert, and (3) some obstacle hinders the speaker’s ability to assert personal rights. Powers v. Ohio, 499 U.S. 400, 411 (1991).
As discussed above, the named Doe Plaintiffs have suffered an injury, and the named Doe Plaintiffs also likely meet the relationship requirement, because they engaged in the same act of political expression as other signers and are thus “fully, or very nearly, as effective as a proponent of the right[s] ” of third parties. Singleton v. Wulff , 428 U.S. 106, 114-15 (1976). The most difficult argument for the named Doe plaintiffs to overcome is that there is no real hindrance preventing other R-17 petition signers from asserting their own rights. The obstacle of wanting to protect one’s identity is not an insurmountable obstacle. See Doe v. Bolton , 410 U.S. 179, 187 (1973). However, the fact that the obstacle is not insur-

CaseC: 1a1se-335:80594-cv-01504/2536/-2B0H1S2 DocuIDm:e8n3t73233659FileDdk1tE0n/2tr3y/:1429-1PagePa1g8eo:f1284of 24

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III. Merits of Plaintiffs As-Applied Challenge

To counter the argument regarding mootness, Plaintiffs admit that the government action at issue in this case is not the full disclosure of the petition-signer’s identities, but is rather the “continued disclosure ” of the signers’ already disclosed identities. Appellants’ Br. 57 n.25. Yet Plaintiffs’ arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it both ways. If Plaintiffs seek to prevent further disclosure of their already disclosed names, then the only evidence relevant to Plaintiffs’ prima facie showing is the “actual burden ” resulting from continued disclosure of already disclosed names, rather than a hypothetical burden resulting from disclosure in general. See Family PAC v. McKenna , 685 F.3d 800, 806 (9th Cir. 2012); see also Buckley , 424 U.S. at 68 (looking “to the extent of the burden that” the specific government action at issue “place[d] on individual rights ”).

For instance, in Brock v. Local 375, Plumbers International Union of America , the government began an investigation of a Fund associated with a union, and the government also issued subpoenas to the Fund seeking financial records explaining the sources of its funding, which would reveal names of contributors. 860 F.2d 346, 348-350 (9th Cir. 1988). The Fund challenged the subpoenas and argued that the information sought would “chill” First Amendment association rights of the Fund’s members. Id. at 349. The district court

mountable does not mean that there will be no recognizable chilling effect on speech. In Singleton, the Court recognized that a woman’s desire to protect the “ very privacy of her decision from the publicity of a court suit” was a genuine obstacle. 428 U.S. at 116. Nevertheless, because the named Doe Plaintiffs have standing to bring this case on their own, I need not determine whether they also have third-party standing on behalf of other R-71 petition signers.

CaseC: 1a1se-335:80594-cv-01504/2536/-2B0H1S2 DocuIDm:e8n3t73233659FileDdk1tE0n/2tr3y/:1429-1PagePa1g9eo:f1294of 24

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concluded as a legal matter that the Fund did not qualify as an association that could assert First Amendment rights. Id.

On appeal, we held that the Fund did qualify as an association that could assert First Amendment rights. Id. at 349. However, we also explained that the Fund “must demonstrate to the district court, on remand , a ‘prima facie showing of arguable first amendment infringement.’ ” Id. at 349-50 (emphasis added) (quoting United States v. Trader’s St. Bank , 695 F.2d 1132, 1133 (9th Cir.1983)). We later explained that as part of its prima facie showing, the Fund “must demonstrate a causal link between the disclosure and the prospective harm to associational rights. ” Dole v. Local Union 375, Plumbers Int’l Union of Am. , 921 F.2d 969, 972 (9th Cir. 1990).

After the case had been remanded and was again before us on appeal, we determined that the Fund had failed to provide a “causal explanation ” for why the “enforcement of the subpoenas will cause harm to [the Fund’s] contributors’ associational rights.” Id. The Fund had demonstrated a “decrease in annual contributions” and argued that this was evidence of a chilling effect. Id. However, we explained that “[t]o the extent there has been a ‘chill’ in affiliations with the Fund, the affidavit provides the court no assistance in allocating responsibility for that chill between the general investigation (the propriety of which the parties do not contest here) and the particular threat of disclosure of contributors’ names through the subpoenas.” Id. (emphasis added). Thus, we held that the Plaintiffs failed to make a prima facie showing, because the “Fund established no causal nexus between the threatened enforcement of the subpoenas, ” which was the specific government action at issue, “and a decline in contributions. ” Id. at 974; see also St. German of Alaska E. Orthodox Catholic Church v. United States , 840 F.2d 1087, 1093 (2d Cir. 1988) (the Church did not present a prima facie case of first amendment infringement because such allegations “[did] not estab-

CaseC: 1a1se-335:80594-cv-01504/2536/-2B0H1S2 DocuIDm:e8n3t73233659FileDdk1tE0n/2tr3y/:1429-1PagePa2g0eo:f2204of 24

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lish that the IRS investigation is the cause of these problems ” (emphasis added)).

Similarly here, Plaintiffs fail to provide any link between the harms they allege and how those harms will likely be caused by the specific government action at issue: the continued disclosure of already disclosed names. As in Brock, Plaintiffs were instructed to develop further evidence on remand to make the necessary showing for their as-applied challenge. See Doe, 130 S. Ct. at 2824 (Alito, J., concurring) (referring to the “harassment suffered by Proposition 8 supporters, ” but noting that “when plaintiffs return to the District Court, they will have the opportunity to develop evidence of intimidation and harassment of Referendum 71 supporters ” (emphasis added)). Not only did Plaintiffs choose to rely primarily on past evidence of threats and reprisals, rather than more current evidence taking account of changed circumstances, Plaintiffs’ arguments on the merits before this court entirely fail to account for the fact that, due to Plaintiffs’ tactical error, the district court has already released their identities. Thus, the only government action now at issue is whether the State of Washington can continue to disclose these names. As in Brock, Plaintiffs have failed to connect their evidence of a First Amendment burden to this specific government action or to demonstrate the likelihood of any “actual burden ” caused by this fairly modest government action. Family PAC , 685 F.3d at 806 (“To survive exacting scrutiny, the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights. ” (internal quotation marks omitted)); accord Davis v. FEC , 554 U.S. 724, 744 (2008). Thus, Plaintiffs have not made a prima facie showing of First Amendment infringement.

Furthermore, even if we were dealing with the full government action of complete disclosure of petition-signers’ identities (which is causally linked to the burdens that Plaintiffs are alleging), Plaintiffs’ as-applied challenge would still fail. The Supreme Court has made clear that, when the government

CaseC: 1a1se-335:80594-cv-01504/2536/-2B0H1S2 DocuIDm:e8n3t73233659FileDdk1tE0n/2tr3y/:1429-1PagePa2g1eo:f2214of 24

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burdens First Amendment rights by compelling disclosure, the governmental interest must be “sufficiently important to outweigh the possibility of infringement, ” and there must be a “ ‘substantial relation’ between the governmental interest and the information required to be disclosed. ” Buckley, 424 U.S. at 64, 66. However, in Supreme Court’s most recent decision in this case, at least five Justices seemed to conclude that the State of Washington’s government interest in preventing fraud and upholding the integrity of the election system was of a sufficient magnitude and substantially related to the government action at issue. See Doe, 130 S. Ct. 2828 (Sotomoyer, J., concurring) ( “It is by no means necessary for a State to prove that such ‘reasonable, nondiscriminatory restrictions’ are narrowly tailored to its interests. ”); id. at 2830 (Stevens, J., concurring) (“In this case, the State has posited a perfectly adequate justification: an interest in deterring and detecting petition fraud.”); id. at 2837 (Scalia, J., concurring) ( “[H]arsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. ”).

Thus, given the Court’s view of this governmental interest, one must determine whether this governmental interest “outweigh[s] the possibility of infringement. ” Buckley, 424 U.S. at 66. The Supreme Court in Doe affirmed the Buckley standard that “those resisting disclosure can prevail under the First Amendment if they can show ‘a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.’ ” Doe, 130 S. Ct. 2828 (quoting Buckley, 424 U.S. at 74). However, the concurrences in Doe, as well as later precedent from our Circuit, shed light on what type of showing of threats and reprisals is required to meet this standard where the plaintiff is not a minor party.

We explained in Family PAC that an as applied challenge in this circumstance would be successful if Plaintiffs made a showing that one of two types of burdens on First Amend-

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ment rights had a reasonable probability of occurring: First, if the disclosure laws “deter individuals who would prefer to remain anonymous” from participating in the ballot measure. 685 F.3d at 806; Buckley, 424 U.S. at 68, 70 ( “It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute . . . . In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. ”); Doe, 130 S. Ct. at 2831 (Stevens, J., concurring) (explaining that in “rare case[s], ” there may be a successful as-applied challenge where the “level of threat . . . would substantially limit a group’s ability to ‘garner the number of signatures necessary to place [a] matter on the ballot’ ”). Second, we explained that an as-applied challenge could also be successful if Plaintiffs demonstrated a reasonable probability that disclosure requirements would chill First Amendment activity by “exposing [members] to retaliation. ” Family PAC, 685 F.3d at 807; accord Citizens United, 130 S. Ct. at 916. Plaintiffs have not demonstrated that either type of burden will occur in this case.

For a deterrence showing, Plaintiffs only provided the deposition of a single witness, in which the witness stated that unnamed individuals told him they would have signed the R71 petition, but they did not want to leave their names on the petition. Plaintiffs did not present evidence demonstrating a systematic deterrence effect occurring in Washington or to similarly situated groups. Thus, Plaintiffs failed to meet our requirement that “a prima facie case of infringement on associational rights cannot rest upon ‘casual reference[s]’ to, let alone unarticulated implications of, a decline in membership. A prima facie showing entails, instead, ‘a careful documentation’ of membership decline . . . . ” Dole, 921 F.2d at 973 (alteration in original) (emphasis added) (quoting Master Printers of Am. v. Donovan , 751 F.2d 700, 705 (4th

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Cir.1984)). As in Dole, this is “something wholly lacking from the [Plaintiffs’] evidence. ” Id.4

For a threat and retaliation showing, Plaintiffs have not made “the particularized showing required by Supreme Court precedent” that disclosure of R-71 petition signers is reasonably likely to result in petition signers being subject to retaliation. Family PAC , 685 F.3d at 808. Though R-71 petitions have been available for three months, Plaintiffs have presented no evidence of an R-71 signer being threatened or harassed as a result of that disclosure. When the district court ordered Plaintiffs to submit supplemental summary judgment briefing providing evidence that any R-71 signer had been harassed or threatened, Plaintiffs responded that “there is no such evidence.” In oral argument, when asked about this evidence, Plaintiffs admitted that no campaign of intimidation has been waged, or appears likely to be waged, against R-71 petition signers in Washington. In view of these admissions, evidence of threats to more public individuals or individuals in other states is less persuasive, and “the record here does not reflect the kind of focused and insistent harassment of contributors and members ” required in Buckley, 424 U.S. at 72 (internal quotation mark omitted).

Furthermore, Justices Ginsburg, Breyer, Sotomayor, and Stevens indicated that evidence of retaliation would be particularly persuasive if it rose to the level of not only serious

4This hearsay testimony also fails to comply with our Circuit’s requirement that evidence of deterence be tested by “evidentiary rigors. ” See Family PAC, 685 F.3d at 807 & n.4. (“[A]lthough Family PAC cites a survey conducted in six states (not including Washington) purporting to show that people may ‘think twice’ about contributing to ballot measure committees if their names and addresses are to be publicly disclosed, Family PAC has not presented evidence suggesting that Washington’s disclosure laws actually and meaningfully deter contributors, . . . [because the] was neither presented as evidence nor tested by the evidentiary rigors that apply to expert reports . . . [and the survey offered] little insight into the deterrent effect of Washington’s disclosure requirements. ”).

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harassment, but of law enforcement that is unwilling or
unable to control the harassment. See Doe, 130 S. Ct. at 2829
(Sotomayor, J., concurring); id. at 2831 (Stevens, J., concurring).5

Plaintiffs present no evidence that this type of law enforcement failure occurred. Instead, Plaintiffs present evidence that demonstrates satisfactory aid from law enforcement. For instance, after one witness received a death threat, “she called the police about the threat and it was handled without further incident.” Doe v. Reed , 823 F. Supp. 2d 1195, 1208 (W.D. Wash. 2011). Similarly, when another witness received threats of violence to his family, he “contacted the police who said they would investigate the matter. ” Id. at 1209. These facts stand in stark contrast to the behavior of police in Brown v. Socialist Workers ‘74 Campaign Committee (Ohio) , 459 U.S. 87 (1982), where there was government hostility to the political group and police harassment of a party candidate.

When considering the burdens on First Amendment rights demonstrated by Plaintiffs, Family PAC , 685 F.3d at 808, Supreme Court precedent indicates that the State of Washington’s government interest in preventing fraud and upholding the integrity of the election system was sufficient in this case to “justify the [disclosure] requirements, ” Buckley, 424 U.S. at 68. Thus, Plaintiffs as-applied challenge fails.

5When combined with Justice Scalia’s vote in favor of never granting as-applied challenges, id. at 2837 (Scalia, J., concurring), there may be five Justices that would be persuaded by this evidence for one type of successful showing of a First Amendment burden.

 
 Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 1 of 29
CLOSED,PROTO
U.S. District Court United States District Court for the Western District of Washington (Tacoma)
CIVIL DOCKET FOR CASE #: 3:09−cv−05456−BHS

John Doe #1 et al v. Reed et al Assigned to: Judge Benjamin H Settle Case in other court: CCA, 09−35818
CCA, 09−35826 CCA, 09−35832 11−35854 Cause: 42:1983 Civil Rights Act Plaintiff
John Doe #1 an individual

Date Filed: 07/28/2009 Date Terminated: 10/17/2011 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question
represented by James Bopp , Jr BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: jboppjr@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Walter Pidgeon 3002 COLBY AVENUE SUITE 306 EVERETT, WA 98201 425−605−4774 Fax: 425−818−5371 Email: stephen.pidgeon@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jared M. Haynie BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: jhaynie@bopplaw.com TERMINATED: 09/01/2011 PRO HAC VICE
Joseph E La Rue BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: jlarue@bopplaw.com TERMINATED: 11/04/2011 PRO HAC VICE
Kaylan L Phillips BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: kphillips@bopplaw.com TERMINATED: 03/23/2012 PRO HAC VICE
Noel H Johnson ACTRIGHT LEGAL FOUNDATION

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 2 of 29

209 W MAIN STREET PLAINFIELD, IN 46168 202−683−9405 Email: njohnson@actright.com TERMINATED: 06/01/2012 PRO HAC VICE

Sarah E Troupis BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: stroupis@bopplaw.com TERMINATED: 08/26/2010 PRO HAC VICE

Scott F Bieniek BOPP COLESON &BOSTROM 1 SOUTH SIXTH STREET TERRE HAUTE, IN 47807−3510 812−232−2434 Email: sbieniek@bopplaw.com TERMINATED: 12/22/2010 PRO HAC VICE

Plaintiff
John Doe #2 an individual

represented by James Bopp , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Walter Pidgeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jared M. Haynie (See above for address) TERMINATED: 09/01/2011 PRO HAC VICE

Joseph E La Rue (See above for address) TERMINATED: 11/04/2011 PRO HAC VICE

Kaylan L Phillips (See above for address) TERMINATED: 03/23/2012 PRO HAC VICE

Noel H Johnson (See above for address) TERMINATED: 06/01/2012 PRO HAC VICE

Sarah E Troupis (See above for address) TERMINATED: 08/26/2010 PRO HAC VICE

Scott F Bieniek (See above for address) TERMINATED: 12/22/2010

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 3 of 29

PRO HAC VICE

Plaintiff Protect Marriage Washington

represented by James Bopp , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Walter Pidgeon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jared M. Haynie (See above for address) TERMINATED: 09/01/2011 PRO HAC VICE

Joseph E La Rue (See above for address) TERMINATED: 11/04/2011 PRO HAC VICE

Kaylan L Phillips (See above for address) TERMINATED: 03/23/2012 PRO HAC VICE

Noel H Johnson (See above for address) TERMINATED: 06/01/2012 PRO HAC VICE

Sarah E Troupis (See above for address) TERMINATED: 08/26/2010 PRO HAC VICE

Scott F Bieniek (See above for address) TERMINATED: 12/22/2010 PRO HAC VICE

V.
Defendant
Sam Reed in his official capacity as Secretary of State of Washington

represented by Anne Elizabeth Egeler ATTORNEY GENERAL OF WASHINGTON (40100−OLY) PO BOX 40100 OLYMPIA, WA 98504−0100 360−753−7085 Email: annee1@atg.wa.gov ATTORNEY TO BE NOTICED
James Kendrick Pharris ATTORNEY GENERAL OF WASHINGTON (40100−OLY) PO BOX 40100 OLYMPIA, WA 98504−0100 360−664−3027 Email: jamesp@atg.wa.gov TERMINATED: 07/05/2011

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 4 of 29

Defendant Brenda Galarza in her official capacity as Public Records Officer for the Secretary of State of Washington
Intervenor Washington Coalition for Open Government

Jay Douglas Geck ATTORNEY GENERAL OF WASHINGTON (40100−OLY) PO BOX 40100 OLYMPIA, WA 98504−0100 360−586−2697 Email: JayG@atg.wa.gov ATTORNEY TO BE NOTICED
William G Clark ATTORNEY GENERAL'S OFFICE (SEA− FIFTH AVE) 800 5TH AVE STE 2000 SEATTLE, WA 98104−3188 206−389−2794 Fax: FAX 206−587−4229 Email: billc2@atg.wa.gov ATTORNEY TO BE NOTICED
William Berggren Collins ATTORNEY GENERAL'S OFFICE ADMINISTRATION PO BOX 40100 OLYMPIA, WA 98504−0100 360−753−6200 Fax: 360−753−6200 Email: billc@atg.wa.gov TERMINATED: 10/20/2010
represented by Anne Elizabeth Egeler (See above for address) ATTORNEY TO BE NOTICED
James Kendrick Pharris (See above for address) TERMINATED: 07/05/2011
Jay Douglas Geck (See above for address) ATTORNEY TO BE NOTICED
William G Clark (See above for address) ATTORNEY TO BE NOTICED
William Berggren Collins (See above for address) TERMINATED: 10/20/2010 ATTORNEY TO BE NOTICED
represented by Duane M Swinton WITHERSPOON KELLEY DAVENPORT &TOOLE 422 W RIVERSIDE STE 1100 SPOKANE, WA 99201 509−624−5265 Fax: FAX 1−509−458−2728 Email: dms@wkdtlaw.com LEAD ATTORNEY

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 5 of 29

PRO HAC VICE ATTORNEY TO BE NOTICED

Leslie R. Weatherhead WITHERSPOON KELLEY (SPOKANE) 422 W RIVERSIDE AVE STE 1100 SPOKANE, WA 99201 509−624−5265 Fax: 509−624−5265 Email: lwlibertas@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Steven Joseph Dixson WITHERSPOON KELLEY (SPOKANE) 422 W RIVERSIDE AVE STE 1100 SPOKANE, WA 99201 509−624−5265 Email: sjd@witherspoonkelley.com ATTORNEY TO BE NOTICED

Intervenor
Washington Families Standing Together

represented by Kevin J Hamilton PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−359−8741 Email: KHAMILTON@PERKINSCOIE.COM ATTORNEY TO BE NOTICED

Rhonda L Barnes PERKINS COIE BARNES &BAIN 2901 N CENTRAL AVE STE 2000 PHOENIX, AZ 850152 602−351−8305 Email: rbarnes@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

Ryan McBrayer PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−359−3073 Email: RMcBrayer@perkinscoie.com ATTORNEY TO BE NOTICED

William B. Stafford PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−359−6217 Email: WStafford@perkinscoie.com ATTORNEY TO BE NOTICED

Intervenor
Arthur S West TERMINATED: 09/16/2009

represented by Arthur S West 120 STATE AVENUE NE

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 6 of 29
APT 1497 P.O. BOX 6336 Olympia, WA 98502 360−943−7470 Email: awestaa@gmail.com PRO SE

Date Filed 07/28/2009
07/28/2009 07/28/2009
07/28/2009
07/28/2009 07/28/2009 07/28/2009 07/29/2009 07/29/2009 07/29/2009 07/29/2009

# Docket Text
1 MINUTE ENTRY for proceedings held before Judge Benjamin H. Settle held on 07/28/2009: Dep Clerk: G. Craft; Pla Counsel: Stephen Pidgeon; CR: Julaine Ryen; Time of Hearing: 4:20; Courtroom: E;Court indicates Plaintiff needs to personally serve Defendants and appear for a TRO Hearing on 7/29/2009 at 2:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 07/28/2009)
2 COMPLAINT against defendant(s) Sam Reed and Debra Galarza (Receipt # SEA 27931), filed by John Doe #1, John Doe #2, and Protect Marriage Washington. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Cover Sheet attachment, # 3 Exhibit 1 to Complaint, # 4 Exhibit 2 to Complaint, # 5 Exhibit 3 to Complaint, # 6 Exhibit 4 to Complaint, # 7 Signature page to Complaint) (TG) (Entered: 07/29/2009)
3 MOTION Plaintiffs Notice of Motion and Motion for Temporary Restraining Order and Preliminary Injunction, and Memorandum in Support of Motion for TemporaryRestraining Order and Preliminary Injunction by Plaintiffs John Doe #1, John Doe #2, and Protect Marriage Washington. (Attachments: # 1 Proposed Order on Motion for Preliminary Injunction, # 2 Proposed Order on Motion for Temporary Restraining Order); Noting Date 7/29/2009. (TG) (Entered: 07/29/2009)
4 DECLARATION of Scott F. Bieniek in Support of Plaintiffs' Motion for a TRO and Preliminary Injunction filed by Plaintiffs John Doe #1, John Doe #2, and Protect Marriage Washington re 3 MOTION for Temporary Restraining Order and Preliminary Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(TG) # 18 Signed page 32 of 3 ) (MGC). (Entered: 07/29/2009)
5 DECLARATION of Scott F. Bieniek Pursuant to Fed. R. Civ. P. 65(b)(1)(B) filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 3 MOTION for Temporary Restraining Order and Preliminary Injunction. (TG) (Entered: 07/29/2009)
6 NOTICE Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington FRCP Rule 5.1 Notice to the Attorney General of Washington. (TG) (Entered: 07/29/2009)
7 MOTION to Exceed Page Limit by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order); Noting Date 7/29/2009. (TG) # 2 Signed page 2 of 7 ) (MGC). (Entered: 07/29/2009)
8 DECLARATION of Service by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Pidgeon, Stephen) (Entered: 07/29/2009)
9 ORDER granting 3 Motion for TRO signed by Judge Benjamin H. Settle: Responsive Brief due by 8/14/2009; Reply Brief due by 8/21/2009; Preliminary Injunction Hearing set for 9/3/2009 at 2:30 PM in Courtroom E before Judge Benjamin H. Settle.(MGC) (Entered: 07/29/2009)
17 ORDER granting 7 Motion for Leave to File Excess Pages, signed by Judge Benjamin H. Settle.(MGC) (Entered: 07/30/2009)
20 MINUTE ENTRY: TRO Hearing held on 7/29/2009 before Judge Benjamin H Settle − Dep Clerk: G. Craft; Pla Counsel: Stephen Pidgeon; Def Counsel: Not Appearing; CR: Julaine Ryen; Time of Hearing: 2:30; Courtroom: E; For the reasons stated on the record, the Court grants Plaintiffs' motion for a Temporary

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 7 of 29

07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/30/2009 07/31/2009 08/03/2009 08/06/2009 08/10/2009 08/14/2009 08/14/2009

Restraining Order; Court enters an order memorializing the Court's decision (dkt 9); a hearing on the preliminary injunction is scheduled for 09/03/09 at 2:30 p.m. (MGC) (Entered: 07/30/2009)
10 APPLICATION OF ATTORNEY James Bopp, Jr. FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington (Fee Paid) Receipt No. 09810000000001815890. (Attachments: # 1 ECF Registration Form)(Pidgeon, Stephen) (Entered: 07/30/2009)
11 APPLICATION OF ATTORNEY Sarah E. Troupis FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington (Fee Paid) Receipt No. 09810000000001815899. (Attachments: # 1 ECF Registration Form)(Pidgeon, Stephen) (Entered: 07/30/2009)
12 APPLICATION OF ATTORNEY Scott F. Bieniek FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington (Fee Paid) Receipt No. 09810000000001815904. (Attachments: # 1 ECF Registration Form)(Pidgeon, Stephen) (Entered: 07/30/2009)
13 ORDER on the 12 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Scott F Bieniek for John Doe #1, John Doe #2, and Protect Marriage Washington, by Bruce Rifkin. (No document associated with this docket entry, text only.)(CMG) (Entered: 07/30/2009)
14 ORDER on the 11 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Sarah E Troupis for John Doe #1, John Doe #2, and Protect Marriage Washington, by Bruce Rifkin. (No document associated with this docket entry, text only.)(CMG) (Entered: 07/30/2009)
15 ORDER on the 10 Application for Leave to Appear Pro Hac Vice. The Court ADMITS James Jr Bopp for John Doe #1, John Doe #2, and Protect Marriage Washington, by Bruce Rifkin. (No document associated with this docket entry, text only.)(CMG) (Entered: 07/30/2009)
16 NOTICE of Appearance by attorney James Kendrick Pharris on behalf of Defendants Sam Reed, Debra Galarza. (Pharris, James) (Entered: 07/30/2009)
18 CERTIFICATE OF SERVICE by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 9 Order on Motion for TRO, Set Deadlines/Hearings. (Bieniek, Scott) (Entered: 07/30/2009)
19 NOTICE of Amended Caption ; filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order)(Bieniek, Scott) (Entered: 07/30/2009)
21 ORDER Amending Caption by Judge Benjamin H Settle re 19 Notice−Other filed by John Doe #1, John Doe #2, Protect Marriage Washington. (TG) (Entered: 07/31/2009)
22 MOTION for Protective Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/3/2009, (Troupis, Sarah) (Entered: 08/03/2009)
23 MOTION Join Additional Parties by Defendants Sam Reed, Brenda Galarza. (Attachments: # 1 Proposed Order Granting Defendants' Motion to Join Additional Parties) Noting Date 8/21/2009, (Pharris, James) (Entered: 08/06/2009)
24 MOTION Consolidate Preliminary Injunction Hearing on Count I of Complaint with Trial on the Merits by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/3/2009, (Troupis, Sarah) (Entered: 08/10/2009)
25 RESPONSE, by Defendants Sam Reed, Brenda Galarza, to 3 MOTION for Temporary Restraining Order. (Pharris, James) (Entered: 08/14/2009)
26 DECLARATION of Nick Handy filed by Defendants Sam Reed, Brenda Galarza re 3 MOTION for Temporary Restraining Order (Pharris, James) (Entered: 08/14/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 8 of 29

08/14/2009 08/17/2009 08/18/2009 08/20/2009 08/21/2009 08/21/2009
08/24/2009 08/25/2009 08/27/2009 08/27/2009 08/27/2009
08/28/2009 08/28/2009
08/28/2009 08/28/2009 08/28/2009
08/28/2009

27 DECLARATION of Blinn filed by Defendants Sam Reed, Brenda Galarza re 3 MOTION for Temporary Restraining Order (Pharris, James) (Entered: 08/14/2009)
28 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 23 MOTION Join Additional Parties. (Troupis, Sarah) (Entered: 08/17/2009)
29 NOTICE of Additional Filing of Declaration of Catherine Blinn re 27 Declaration ; filed by Defendants Sam Reed, Brenda Galarza. (Pharris, James) (Entered: 08/18/2009)
30 REPLY, filed by Defendants Sam Reed, Brenda Galarza, TO RESPONSE to 23 MOTION Join Additional Parties (Attachments: # 1 Proposed Order)(Pharris, James) (Entered: 08/20/2009)
31 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 3 MOTION for Temporary Restraining Order (Troupis, Sarah) (Entered: 08/21/2009)
32 DECLARATION of Sarah E. Troupis filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 3 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3)(Troupis, Sarah) (Entered: 08/21/2009)
33 ORDER by Judge Benjamin H Settle denying 23 Defendants' Motion to join additional parties. (TG) (Entered: 08/24/2009)
34 Letter from James Pharris re 33 Order on Motion for Miscellaneous Relief Letter to other parties re Order Denying Motion to Join Additional Parties. (Pharris, James) (Entered: 08/25/2009)
35 RESPONSE, by Defendants Sam Reed, Brenda Galarza, to 22 MOTION for Protective Order. (Pharris, James) (Entered: 08/27/2009)
36 MOTION to Intervene Oral Argument Requested. (Attachments: # 1 Proposed Order Granting Motion to Intervene) Noting Date 9/3/2009, (Dixson, Steven) (Entered: 08/27/2009)
37 DECLARATION of Toby Nixon filed by Intervenor Washington Coalition for Open Government re 22 MOTION for Protective Order, 36 MOTION to Intervene (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Dixson, Steven) (Entered: 08/27/2009)
38 PRAECIPE to attach document re 37 Declaration by Intervenor Washington Coalition for Open Government. (Dixson, Steven) (Entered: 08/28/2009)
39 APPLICATION OF ATTORNEY Duane M. Swinton FOR LEAVE TO APPEAR PRO HAC VICE for Intervenor Washington Coalition for Open Government (Fee Paid) Receipt No. 09810000000001840114. (Attachments: # 1 ECF Registration)(Dixson, Steven) (Entered: 08/28/2009)
40 RESPONSE, by Defendants Sam Reed, Brenda Galarza, to 24 MOTION Consolidate Preliminary Injunction Hearing on Count I of Complaint with Trial on the Merits. (Pharris, James) (Entered: 08/28/2009)
41 MINUTE ORDER issuing expedited briefing schedule re 36 Motion to Intervene filed by Washington Coalition for Open Government. Authorized by Judge Benjamin H. Settle. (MGC) (Entered: 08/28/2009)
42 ORDER on the 39 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Duane M Swinton for Washington Coalition for Open Government, by Bruce Rifkin. (No document associated with this docket entry, text only.)(CMG) (Entered: 08/28/2009)
43 MOTION to Intervene by Washington Families Standing Together Oral Argument Requested. (Attachments: # 1 Exhibit 1, # 2 Proposed Order) Noting Date 9/3/2009, (McBrayer, Ryan) (Entered: 08/28/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 9 of 29

08/28/2009
08/28/2009
08/31/2009 08/31/2009 08/31/2009 08/31/2009
08/31/2009 08/31/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/01/2009 09/02/2009 09/02/2009 09/02/2009 09/03/2009

44 DECLARATION of Mona Smith in Support of Motion to Intervene and in Support of WFST's Brief filed by Intervenor Washington Families Standing Together re 43 MOTION to Intervene by Washington Families Standing Together (McBrayer, Ryan) (Entered: 08/28/2009)
45 DECLARATION of Anne Levinson in Support of Motion to Intervene and in Support of WAFTS's Brief filed by Intervenor Washington Families Standing Together re 43 MOTION to Intervene by Washington Families Standing Together (Attachments: # 1 Exhibit A to Anne Levinson Declaration, # 2 Exhibit B to Anne Levinson Declaration)(McBrayer, Ryan) (Entered: 08/28/2009)
46 RESPONSE, by Defendants Sam Reed, Brenda Galarza, to 43 MOTION to Intervene by Washington Families Standing Together, 36 MOTION to Intervene. (Pharris, James) (Entered: 08/31/2009)
47 MOTION for Leave to File Excess Pages by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 8/31/2009, (Troupis, Sarah) (Entered: 08/31/2009)
48 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 43 MOTION to Intervene by Washington Families Standing Together, 36 MOTION to Intervene. (Troupis, Sarah) (Entered: 08/31/2009)
49 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 24 MOTION Consolidate Preliminary Injunction Hearing on Count I of Complaint with Trial on the Merits (Troupis, Sarah) (Entered: 08/31/2009)
50 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 22 MOTION for Protective Order (Troupis, Sarah) (Entered: 08/31/2009)
51 DECLARATION of Sarah E. Troupis filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 22 MOTION for Protective Order (Attachments: # 1 Exhibit One)(Troupis, Sarah) (Entered: 08/31/2009)
52 Redacted DECLARATION of John Doe #3 filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 3 MOTION for Temporary Restraining Order (Bieniek, Scott) (Entered: 09/01/2009)
53 Redacted DECLARATION of John Doe #4 filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 3 MOTION for Temporary Restraining Order (Bieniek, Scott) (Entered: 09/01/2009)
54 Redacted DECLARATION of John Doe #5 filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 3 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit A)(Bieniek, Scott) (Entered: 09/01/2009)
55 ORDER granting 47 Motion for Leave to File Excess Pages, signed by Judge Benjamin H. Settle.(MGC) (Entered: 09/01/2009)
58 MOTION to Intervene on Shortened Notice (Attachments: # 1 Proposed Order) Noting Date 9/3/2009, (CMG) (Entered: 09/03/2009)
56 REPLY, filed by Intervenor Washington Families Standing Together, TO RESPONSE to 43 MOTION to Intervene by Washington Families Standing Together (McBrayer, Ryan) (Entered: 09/02/2009)
57 REPLY, filed by Intervenor Washington Coalition for Open Government, TO RESPONSE to 43 MOTION to Intervene by Washington Families Standing Together (Dixson, Steven) (Entered: 09/02/2009)
60 DECLARATION of Arthur West in support of the 58 MOTION to Intervene (CMG) (Entered: 09/04/2009)
59 ORDER AMENDING AND EXTENDING THE COURT'S TRO: The TRO will dissolve upon the earliest of September 11, 2009 signed by Judge Benjamin H. Settle.(JAB) (Entered: 09/03/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 10 of 29

09/03/2009 09/03/2009
09/10/2009 09/11/2009 09/11/2009 09/11/2009 09/11/2009 09/11/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009 09/15/2009

61 SUPPLEMENTAL MEMORANDUM filed by Intervenor Arthur West in support of the 58 MOTION to Intervene (CMG) (Entered: 09/04/2009)
62 MINUTE ENTRY for proceedings held before Judge Benjamin H Settle− Dep Clerk: Jean Boring; Pla Counsel: Sarah E Troupis/Stephen Pidgeon; Def Counsel: James Pharris (AG) / Kevin Hamilton (Intv−WA Families) / Steven Dixson (Intv WA Coalition); CR: Julaine Ryen; Preliminary Injunction Hearing held on 9/3/2009. MOTION 43 to Intervene by Washington Families Standing Together is GRANTED, MOTION 36 to Intervene by Washington Coalition for Open Government is GRANTED; Arthur West's Motion to Intervene was preliminarily DENIED because no motion was posted to the docket as of the time of this hearing. Clerk shall post the motion and the Court will rule after reviewing. Motion 24 to Consolidate Preliminary Injunction Hearing on Count I of Complaint with Trial on the Merits is DENIED. No trial will be set. Court &Counsel review proposed order extending the TRO. Court inquires of counsel the need for a bond should the preliminary injunction be issued. Court amends and extends the temporary restraining order to consider the oral arguments of counsel and will issue a written decision on plaintiffs motion for a preliminary injunction on or before 9/11/2009. Hearing concluded. (Entered: 09/08/2009)
63 ORDER by Judge Benjamin H Settle GRANTING 3 Motion for Preliminary Injunction filed by John Doe #1, John Doe #2, and Protect Marriage Washington. (TG) (Entered: 09/10/2009)
64 ORDER by Judge Benjamin H Settle granting in part and denying in part 22 Motion for Protective Order.(TG) (Entered: 09/11/2009)
65 NOTICE OF APPEAL #09−35818 as to 63 Order by Defendants Sam Reed, Brenda Galarza. (Collins, William) Modified on 9/23/2009−add appeal number (MW). (Entered: 09/11/2009)
66 Civil Appeals Docketing Statement by Defendants Sam Reed, Brenda Galarza, to be transmitted by Clerk to Circuit Court of Appeals. (Collins, William) (Entered: 09/11/2009)
71 NOTICE OF APPEAL #09−35832 as to 63 Order on 9/4/09 granting P's request for a preliminary injunction, by Intervenor Arthur West. Filing Fee $455 (MW) Modified on 9/18/2009−add appeal number (MW). (Entered: 09/15/2009)
Appeal Fees received: fee in the amount of $ 455 (receipt # TAC−6202) re 71 Notice of Appeal filed by Arthur West (MW) (Entered: 09/15/2009)
67 NOTICE OF APPEAL#09−35826 as to 63 Order by Intervenor Washington Coalition for Open Government. Filing Fee $455, Receipt number 09810000000001854092. (Dixson, Steven) Modified on 9/23/2009−add appeal number (MW). (Entered: 09/15/2009)
68 Civil Appeals Docketing Statement by Intervenor Washington Coalition for Open Government, to be transmitted by Clerk to Circuit Court of Appeals. (Attachments: # 1 Exhibit)(Dixson, Steven) (Entered: 09/15/2009)
69 APPEAL NOTIFICATION packet sent to US Court of Appeals re 67 Notice of Appeal by Intervenor WA Coalitin for Open Government (Attachments: # 1 docket report)(MW) Modified on 9/15/2009−add name of aplt (MW). (Entered: 09/15/2009)
Appeal Fees received: fee in the amount of $ 455 (receipt # TAC−6227) re 65 Notice of Preliminary Injunction Appeal filed by Sam Reed, Brenda Galarza (MW) (Entered: 09/15/2009)
70 APPEAL NOTIFICATION packet sent to US Court of Appeals re 65 Notice of Appeal #09−35818 by D's Reed and Galarza (Attachments: # 1 docket report)(MW) (Entered: 09/15/2009)
72 APPEAL NOTIFICATION packet sent to US Court of Appeals re 71 Notice of Appeal by Intervenor Arthur West (Attachments: # 1 docket report)(MW) (Entered: 09/15/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 11 of 29

09/16/2009 09/16/2009 09/16/2009 09/18/2009 09/18/2009 09/18/2009
09/21/2009 09/22/2009
09/23/2009 09/25/2009 09/25/2009 09/26/2009 09/28/2009
09/28/2009 09/28/2009 09/28/2009
09/28/2009

73 ORDER by Judge Benjamin H Settle denying 58 Motion to Intervene and ORDERING parties to show cause.(TG) (Entered: 09/16/2009)
USCA Case Number 09−35832 for 71 Notice of Appeal filed by Arthur West. (MW) (Entered: 09/18/2009)
75 AMENDMENT (this notice of appeal was filed at CCA, forwarded to us; duplicate of #71) to 71 Notice of Appeal #09−35832 by Intervenor Arthur West. (MW) (Entered: 09/23/2009)
USCA Case Number 09−35818 for 65 Notice of Appeal filed by Sam Reed, Brenda Galarza. (MW) (Entered: 09/23/2009)
USCA Case Number 09−35826 for 67 Notice of Appeal filed by Washington Coalition for Open Government. (MW) (Entered: 09/23/2009)
76 ORDER of USCA as to 65 Notice of Appeal #09−35818 filed by Sam Reed, Brenda Galarza, 71 Notice of Appeal filed by Arthur West #09−35832, 67 Notice of Appeal #09−35826 filed by Washington Coalition for Open Government; case is not selected for inclusion in the Circuit Mediation Program; upon agreement of the parties, briefing schedule can be modified or vacated to facilitate settlement discussions (MW) (Entered: 09/23/2009)
74 Letter from William B. Collins re Defendants Will Not Order a Transcript. (Collins, William) (Entered: 09/21/2009)
77 ORDER of USCA as to 65 Notice of Appeal #09−35818filed by Sam Reed, Brenda Galarza, 67 Notice of Appeal #09−35826 filed by Washington Coalition for Open Government; the court sua sponte consolidates these preliminary injunction appeals; aplts' request to expedite the briefing schedule is granted in part; aplts have filed their opening brief; intervenor's brief is due 9/23/09; aples' answering brief is due 9/25/09; aplts' optional reply brief is due 9/28/09; intervenor's optional reply brief is due 9/30/09; court will hear oral argument on Wednesday, 10/14/09, at 11:00am in Pasadena (MW) (Entered: 09/23/2009)
78 CERTIFICATE OF RECORD Transmitted to USCA re 65 Notice of Appeal #09−35818 by Sam Reed and Brenda Galarza (MW) (Entered: 09/23/2009)
79 ANSWER to 2 Complaint, Answer by Sam Reed, Brenda Galarza.(Pharris, James) (Entered: 09/25/2009)
80 RESPONSE TO ORDER TO SHOW CAUSE by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Exhibit Exhibit A)(Troupis, Sarah) (Entered: 09/25/2009)
81 RESPONSE TO ORDER TO SHOW CAUSE by Defendants Sam Reed, Brenda Galarza. (Pharris, James) (Entered: 09/26/2009)
82 NOTICE OF APPEAL #09−35863 by Intervenor Washington Families Standing Together. Filing Fee $455, Receipt number 09810000000001865335. (Beane, Amanda) Modified on 1/27/2010−add appeal number (MW). (Entered: 09/28/2009)
83 Civil Appeals Docketing Statement by Intervenor Washington Families Standing Together, to be transmitted by Clerk to Circuit Court of Appeals. (Beane, Amanda) (Entered: 09/28/2009)
84 APPEAL NOTIFICATION packet sent to US Court of Appeals re 82 Notice of Appeal by Intervenor Washington Families Standing Together (Attachments: # 1 docket report)(MW) (Entered: 09/28/2009)
85 MOTION to Amend 2 Complaint,, and Join Additional Parties by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Exhibit 1 − Proposed Verified First Amended Complaint, # 2 Proposed Order) Noting Date 10/7/2009, (Bieniek, Scott) (Entered: 09/28/2009)
86 MOTION for Reconsideration of the 73 Order denying the Motion to Intervene and for RECUSAL of Magistrate by Intervenor Arthur West. Noted by clerk for 9/28/2009, (CMG) (Entered: 09/30/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 12 of 29

10/02/2009 10/02/2009
10/02/2009
10/02/2009
10/02/2009 10/02/2009 10/02/2009 10/05/2009 10/07/2009 10/13/2009 10/15/2009 10/19/2009
10/19/2009

87 RESPONSE, by Defendants Sam Reed, Brenda Galarza, to 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties. (Pharris, James) (Entered: 10/02/2009)
88 DECLARATION of Vicki Rippie in Support of Defendants' Response Opposing Plaintiffs' Motion to Amend Complaint filed by Defendants Sam Reed, Brenda Galarza re 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties (Pharris, James) (Entered: 10/02/2009)
89 DECLARATION of Lori Anderson in Support of Defendants' Response Opposing Plaintiffs' Motion to Amend Complaint filed by Defendants Sam Reed, Brenda Galarza re 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties (Pharris, James) (Entered: 10/02/2009)
90 DECLARATION of Nancy Krier in Support of Defendants' Response Opposing Plaintiffs' Motion to Amend Complaint filed by Defendants Sam Reed, Brenda Galarza re 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties (Pharris, James) (Entered: 10/02/2009)
91 CERTIFICATE OF SERVICE by Defendants Sam Reed, Brenda Galarza re 87 Response to Motion, 88 Declaration, 89 Declaration, 90 Declaration,. (Pharris, James) (Entered: 10/02/2009)
92 RESPONSE, by Intervenor Washington Coalition for Open Government, to 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties. (Dixson, Steven) (Entered: 10/02/2009)
93 RESPONSE, by Intervenor Washington Families Standing Together, to 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties. (McBrayer, Ryan) (Entered: 10/02/2009)
94 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 86 MOTION for Reconsideration re 73 Order on Motion to Intervene. (Bieniek, Scott) (Entered: 10/05/2009)
95 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 85 MOTION to Amend 2 Complaint,, and Join Additional Parties MOTION to Amend 2 Complaint,, and Join Additional Parties (Bieniek, Scott) (Entered: 10/07/2009)
96 DECLARATION of Arthur West filed by Intervenor Arthur S West re 86 MOTION for Reconsideration re 73 Order on Motion to Intervene (Attachments: # 1 Exhibit 9−11 Report of proceedings, # 2 Exhibit 9−8 Report of procedings)(West, Arthur) (Entered: 10/13/2009)
97 ORDER of USCA as to 65 Notice of Appeal #09−35818 reversing district court's order. Aplt's motion for stay pending appeal is granted; Preliminary Injunction Order stayed pending final resolution of appeals. (PVO) (Entered: 10/15/2009)
98 NOTICE of Order by the Honorable Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States re 97 Order of USCA ; filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Exhibit 1 − Order of the Honorable Justice Anthony M. Kennedy)(Bieniek, Scott) (Entered: 10/19/2009)
100 Appeal Remark re 82 Notice of Appeal 09−35818, 65 Notice of Appeal 09−35826, 67 Notice of Appeal 09−35863: ORDER of the SUPREME COURT OF THE UNITED STATES−The order of the CCA which stayed the district court's order granting preliminary injunction is hereby stayed. The 9/10/09 order of the US District Court granting a preliminary injunction remains in effect pending further order. (PVO) (Entered: 10/20/2009)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 13 of 29

10/20/2009 10/21/2009 10/22/2009 10/22/2009 10/27/2009 11/19/2009
12/23/2009 01/25/2010
03/19/2010
06/29/2010 07/18/2010 07/19/2010
07/20/2010 07/21/2010 07/21/2010 07/22/2010

99 REQUEST by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington for Issue Order with Respect to the Alternative Ground Set Forth in Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction. (Attachments: # 1 Exhibit Exhibit 1)(Troupis, Sarah) (Entered: 10/20/2009)
103 ORDER of USCA as to 71 Notice of Appeal #09−35832 filed by intervenor Arthur S West; aplt's mtn for injunctive relief pending appeal is denied; briefing schedule established 10/8/09 order governs this appeal (MW) (Entered: 10/26/2009)
101 MINUTE ORDER STAYING CASE authorized by Judge Benjamin H. Settle. (MGC) (Entered: 10/22/2009)
102 ORDER/Opinion (NOT THE MANDATE) as to 82 Notice of Appeal filed by Washington Families Standing Together, 65 Notice of Appeal filed by Sam Reed, Brenda Galarza, 67 Notice of Appeal filed by Washington Coalition for Open Government; REVERSED. (PVO) (Entered: 10/22/2009)
***Motions terminated pursuant to 101 Minute Order Staying Case: 85 MOTION to Amend 2 Complaint, and Join Additional Parties; and 86 MOTION for Reconsideration re 73 Order on Motion to Intervene filed by Arthur S West. (TG) (Entered: 10/27/2009)
104 MANDATE of USCA as to 82 Notice of Appeal #09−35863 filed by Washington Families Standing Together, 65 Notice of Appeal #09−35818 filed by Sam Reed, Brenda Galarza, 67 Notice of Appeal #09−35826 filed by Washington Coalition for Open Government, judgment of this Court, judgment of this Court, entered 10/22/09, takes effect this date − REVERSED (MW) (Entered: 11/19/2009)
105 ORDER of USCA as to 71 Notice of Appeal #09−35832 filed by Arthur S West; appellees' unopposed mtn to stay proceedings is granted−stayed for 90 days; w/in 90 days aples' file a status report *See order for details** (MW) (Entered: 12/29/2009)
106 Appeal Remark re 82 Notice of Appeal #09−35863, 65 Notice of Appeal #09−35818, 67 Notice of Appeal #09−35826 : Letter from Supreme Court, #09−559, petition for writ of certiorari is granted; brief of petitioners is to be filed by 2/25/10; brief of respondents is to be filed by 3/25/10; reply brief, if any, can be filed(MW) (Entered: 01/27/2010)
107 ORDER of USCA as to 71 Notice of Appeal #09−35832 filed by Arthur S West; aple's mtn to further stay proceedings is granted−90−day stay; w/in 90 days after the date of this order, aple shall file a status report; absent timely response, stay shall be terminated and opening brief due 7/19/10; answering brief due 5/11/10; opt reply due w/in 14 days (MW) (Entered: 03/19/2010)
108 CCA Received copy of Supreme Court opinion dated 06/24/2010 (copy of that opinion available on CCA website), see document for details. (PVO) (Entered: 07/08/2010)
109 MOTION to Vacate /Join by Intervenor Arthur S West. (Attachments: # 1 Exhibit May 13, 2010 ruling in Burt v. DOL) Noting Date 8/12/2010, (West, Arthur) (Entered: 07/18/2010)
110 MOTION to Lift Stay , Grant Preliminary Injunction and in the Alternative to Grant Temporary Restraining Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order, # 2 Proposed Order) Noting Date 7/23/2010, (Troupis, Sarah) (Entered: 07/19/2010)
111 MINUTE ORDER. (MGC) (Entered: 07/20/2010)
112 NOTICE of Appearance by attorney William Berggren Collins on behalf of Defendants Brenda Galarza, Sam Reed. (Collins, William) (Entered: 07/21/2010)
113 NOTICE of Appearance by attorney Anne Elizabeth Egeler on behalf of Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 07/21/2010)
***Motion terminated: 110 MOTION to Lift Stay , Grant Preliminary Injunction and in the Alternative to Grant Temporary Restraining Order filed by John Doe

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 14 of 29

07/26/2010
08/02/2010 08/03/2010 08/11/2010 08/11/2010
08/18/2010 08/23/2010 08/26/2010 08/31/2010 09/01/2010
09/02/2010
09/02/2010 09/03/2010
09/03/2010 09/03/2010 09/10/2010

#1, John Doe #2, Protect Marriage Washington. (MGC) (Entered: 07/22/2010)
114 ORDER/LETTER from the Supreme Court #09−559 as to 82 Notice of Appeal filed by Washington Families Standing Together, 65 Notice of Appeal filed by Sam Reed, Brenda Galarza, 71 Notice of Appeal filed by Arthur S West, 67 Notice of Appeal filed by Washington Coalition for Open Government; attached is a certified copy of the judgment of this Court (MW) (Entered: 07/27/2010)
115 NOTICE of Hearing: Status Conference set for 8/11/2010 at 10:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 08/02/2010)
NOTICE re 115 Notice of Hearing on 8/11/2010: All named parties wishing to participate are required to appear in person. (MGC) (Entered: 08/03/2010)
116 MINUTE ORDER at the direction of Judge Benjamin H Settle requesting joint proposed scheduling order within 10 days of the date of this order. (TG) (Entered: 08/11/2010)
117 MINUTE ENTRY for Status Conference held on 8/11/2010 before Judge Benjamin H. Settle − Dep Clerk: G. Craft; Pla Counsel: Sarah Troupis, Stephen Pidgeon; Def Counsel: Anne Egeler, William Collins, Leslie Weatherhead, Steven Dixon; CR: Julaine Ryen; Time of Hearing: 10:00; Courtroom: E; Court considers oral arguments and grants Plaintiff's motion for a TRO. See Minute Order 116 for deadlines. (MGC) (Entered: 08/12/2010)
***Motion terminated per Minute Order of the Court (Dkt. 111): 109 MOTION to Vacate /Join filed by Arthur S West. (TG) (Entered: 08/18/2010)
118 PROPOSED ORDER (Unsigned) Joint Proposed Scheduling Order. (Egeler, Anne) (Entered: 08/23/2010)
119 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Sarah E Troupis for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bieniek, Scott) (Entered: 08/26/2010)
120 APPLICATION OF ATTORNEY Joseph E La Rue FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiff Protect Marriage Washington (Fee Paid) Receipt No. 0981−2172464. (Pidgeon, Stephen) (Entered: 08/31/2010)
121 ORDER on the 120 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Joseph E La Rue for John Doe #1, John Doe #2, and Protect Marriage Washington, by Bruce Rifkin. (No document associated with this docket entry, text only.)(CMG) (Entered: 09/01/2010)
122 MOTION for Leave to File Excess Pages by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order Granting Pls.' Ex Parte Motion to Exceed Page Limit) Noting Date 9/2/2010, (Bieniek, Scott) (Entered: 09/02/2010)
123 ORDER by Judge Benjamin H Settle granting 122 Motion for Leave to File Excess Pages.(TG) (Entered: 09/02/2010)
124 MOTION for Reconsideration re 62 Preliminary/Permanent Injunction Hearing, Terminate Motions,,,,,,,, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/24/2010, (La Rue, Joseph) (Entered: 09/03/2010)
125 Second MOTION for Protective Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 9/17/2010, (La Rue, Joseph) (Entered: 09/03/2010)
126 SEALED AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA served on 8/27/10. (CMG) Modified on 9/21/2010: sealed document; deleted name of individuals served; counsel to file redacted version (HBR). (Entered: 09/07/2010)
127 SEALED AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA served on 8/8/10. (MET) Modified on 9/21/2010: sealed document; deleted name of individual served; counsel to file redacted version (HBR). (Entered: 09/13/2010)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 15 of 29

09/13/2010 09/15/2010
09/15/2010 09/15/2010 09/15/2010 09/15/2010 09/15/2010 09/15/2010 09/16/2010 09/17/2010 09/17/2010 09/21/2010
09/30/2010 10/01/2010 10/05/2010

136 SEALED AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA served on 9/7/10. (CMG) Modified on 9/21/2010: sealed document; deleted name of individual served; counsel will refile redacted document (HBR). (Entered: 09/17/2010)
128 JOINT SCHEDULING ORDER signed by Judge Benjamin H. Settle: Pltfs Witness Disclosure under FRCP 26 due by 8/23/2010; Rebuttal Expert Disclosure due by 10/7/2010; Discovery completed by 10/22/2010; Status Conference set for 11/15/2010 at 1:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 09/15/2010)
129 RESPONSE, by Intervenor Washington Families Standing Together, to 125 Second MOTION for Protective Order. (Hamilton, Kevin) (Entered: 09/15/2010)
130 DECLARATION of KEVIN J. HAMILTON filed by Intervenor Washington Families Standing Together re 125 Second MOTION for Protective Order (Hamilton, Kevin) (Entered: 09/15/2010)
131 MOTION to Seal Exhibits A and B to K. Hamilton Declaration Regarding Response to Motion for Protective Order by Intervenor Washington Families Standing Together. (Attachments: # 1 Proposed Order) Noting Date 9/15/2010, (Hamilton, Kevin) (Entered: 09/15/2010)
132 SEALED DOCUMENT Exhibits A and B to K. Hamilton Declaration by Intervenor Washington Families Standing Together re 131 MOTION to Seal Exhibits A and B to K. Hamilton Declaration Regarding Response to Motion for Protective Order (Hamilton, Kevin) (Entered: 09/15/2010)
133 RESPONSE, by Intervenor Washington Coalition for Open Government, to 125 Second MOTION for Protective Order. Oral Argument Requested. (Dixson, Steven) (Entered: 09/15/2010)
134 SEALED DOCUMENT Defendants' Opposition to Plaintiffs' Motion for Protective Order by Defendants Brenda Galarza, Sam Reed re 128 Scheduling Order, Set/Reset Hearings,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Collins, William) (Entered: 09/15/2010)
135 NOTICE of Erroneous Request for Oral Argument re 133 Response to Motion ; filed by Intervenor Washington Coalition for Open Government. (Dixson, Steven) (Entered: 09/16/2010)
137 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 125 Second MOTION for Protective Order (Bieniek, Scott) (Entered: 09/17/2010)
138 DECLARATION of Scott F. Bieniek filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 125 Second MOTION for Protective Order (Attachments: # 1 Exhibit 1 − NOM v. McKee, No. 10−2000 (Sept. 2, 2010))(Bieniek, Scott) (Entered: 09/17/2010)
NOTICE of Docket Text Modification re 136 Affidavit of Service of Deposition Subpoena, 127 Affidavit of Service of Deposition Subpoena, 126 Affidavit of Service of Deposition Subpoena : sealed documents; counsel to file redacted version; deleted name of individuals served from docket entries. (HBR) (Entered: 09/21/2010)
149 Stipulated MOTION and Order for Continuance of Discovery Completion Date by Defendant Sam Reed. Noting Date 9/30/2010, (Egeler, Anne) (Entered: 09/30/2010)
150 STIPULATION AND ORDER by Judge Benjamin H Settle re 149 Stipulated MOTION and Order for Continuance of Discovery Completion Date filed by Sam Reed: Discovery completed by 11/12/2010, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 10/28/2010. (TG) (Entered: 10/01/2010)
151 ORDER by Judge Benjamin H Settle DENYING 124 Motion for Reconsideration.(TG) (Entered: 10/05/2010)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 16 of 29

10/06/2010 10/07/2010 10/07/2010 10/07/2010 10/13/2010 10/13/2010 10/14/2010 10/14/2010
10/14/2010
10/15/2010 10/15/2010 10/20/2010 10/20/2010 10/20/2010 11/01/2010

152 ORDER by Judge Benjamin H Settle DENYING 125 Motion for Protective Order; and GRANTING 131 Motion to Seal. Documents will be unsealed by 10/20/2010 absent a renewed motion or stipulated protective order. (TG) (Entered: 10/06/2010)
153 APPLICATION OF ATTORNEY Rhonda L. Barnes FOR LEAVE TO APPEAR PRO HAC VICE for Intervenor Washington Families Standing Together (Fee Paid) Receipt No. 0981−2209316. (Stafford, William) (Entered: 10/07/2010)
154 CERTIFICATE OF SERVICE by Intervenor Washington Families Standing Together re 153 Application for Leave to Appear Pro Hac Vice on behalf of Rhonda L. Barnes. (Stafford, William) (Entered: 10/07/2010)
155 ORDER on the 153 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Rhonda L Barnes for Washington Families Standing Together, by William M. McCool. (No document associated with this docket entry, text only.)(CMG) (Entered: 10/07/2010)
156 SEALED DOCUMENT Objection for Failure to Give Notice for Taking of Deposition of D.K. by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 152 Order on Motion for Protective Order, Order on Motion to Seal (Bieniek, Scott) (Entered: 10/13/2010)
157 SEALED DOCUMENT Objection for Failure to Give Notice for Taking of Deposition of S.K. by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 152 Order on Motion for Protective Order, Order on Motion to Seal (Bieniek, Scott) (Entered: 10/13/2010)
158 MOTION to Seal Response &Decl. of W. Stafford re Plfs' Objections for Failure to Give Notice for Taking a Deposition by Intervenor Washington Families Standing Together. (Attachments: # 1 Proposed Order Granting WAFST's Motion to File Under Seal) Noting Date 10/14/2010, (Stafford, William) (Entered: 10/14/2010)
159 SEALED DOCUMENT Response to Plfs' Objections for Failure to Give Notice for Taking a Deposition by Intervenor Washington Families Standing Together re 158 MOTION to Seal Response &Decl. of W. Stafford re Plfs' Objections for Failure to Give Notice for Taking a Deposition (Stafford, William) (Entered: 10/14/2010)
160 SEALED DOCUMENT Declaration of William B. Stafford Re Plfs' Objections for Failure to Give Notice for Taking a Deposition by Intervenor Washington Families Standing Together re 158 MOTION to Seal Response &Decl. of W. Stafford re Plfs' Objections for Failure to Give Notice for Taking a Deposition (Stafford, William) (Entered: 10/14/2010)
161 NOTICE of Appearance by attorney Jay Douglas Geck on behalf of Defendants Brenda Galarza, Sam Reed. (Geck, Jay) (Entered: 10/15/2010)
162 SEALED DOCUMENT Defendants' Response to Objection for Failure to Give Notice for Taking a Deposition and Declaration of Anne Egeler by Defendants Brenda Galarza, Sam Reed re 152 Order on Motion for Protective Order, Order on Motion to Seal (Attachments: # 1 Exhibit)(Egeler, Anne) (Entered: 10/15/2010)
163 MOTION for Protective Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 11/5/2010, (Bieniek, Scott) (Entered: 10/20/2010)
164 SEALED DOCUMENT Declaration of Scott F. Bieniek in Support of Motion for Protective Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 152 Order on Motion for Protective Order, Order on Motion to Seal (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bieniek, Scott) (Entered: 10/20/2010)
165 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney William Berggren Collins for Defendants Brenda Galarza, Sam Reed. (Collins, William) (Entered: 10/20/2010)
166 ORDER (NOT THE MANDATE) of USCA as to 71 Notice of Appeal #10−35832 filed by Arthur S West; aples' mtn to dismiss appeal as moot is denied; a review of the record indicates that questions raised are so insubstantial as not to require further argument; we summarily affirm the DC's order denying aptl's mtn to

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 17 of 29

11/02/2010 11/03/2010 11/03/2010 11/03/2010 11/03/2010
11/03/2010 11/03/2010 11/04/2010 11/04/2010 11/04/2010
11/05/2010 11/05/2010 11/15/2010
11/15/2010

intervene − affirmed (copy mailed to aplt West this date) (MW) (Entered: 11/02/2010)
167 ORDER granting intervenor WFST Motion to Seal 158 and overruling Plaintiffs' objections to deposition notice 156 157 . Signed by Judge Benjamin H. Settle.(MGC) (Entered: 11/02/2010)
168 SEALED DOCUMENT Defendants' Opposition to Plaintiffs' Renewed Motion for Protective Order by Defendants Brenda Galarza, Sam Reed re 152 Order on Motion for Protective Order, Order on Motion to Seal (Egeler, Anne) (Entered: 11/03/2010)
169 RESPONSE, by Intervenor Washington Coalition for Open Government, to 163 MOTION for Protective Order. (Dixson, Steven) (Entered: 11/03/2010)
170 SEALED DOCUMENT Declaration of Anne Egeler by Defendants Brenda Galarza, Sam Reed re 152 Order on Motion for Protective Order, Order on Motion to Seal (Attachments: # 1 Exhibit 01, # 2 Exhibit 02, # 3 Exhibit 03, # 4 Exhibit 04, # 5 Exhibit 05, # 6 Exhibit 06, # 7 Exhibit 07)(Egeler, Anne) (Entered: 11/03/2010)
171 SEALED DOCUMENT Declaration of Anne Egeler by Defendants Brenda Galarza, Sam Reed re 152 Order on Motion for Protective Order, Order on Motion to Seal (Attachments: # 1 Exhibit 08, # 2 Exhibit 09, # 3 Exhibit 10, # 4 Exhibit 11, # 5 Exhibit 12, # 6 Exhibit 13, # 7 Exhibit 14, # 8 Exhibit 15)(Egeler, Anne) (Entered: 11/03/2010)
172 RESPONSE, by Intervenor Washington Families Standing Together, to 163 MOTION for Protective Order. (Hamilton, Kevin) (Entered: 11/03/2010)
173 SEALED DOCUMENT Declaration of William B. Stafford by Intervenor Washington Families Standing Together re 163 MOTION for Protective Order (Attachments: # 1 Exhibit C−G, # 2 Exhibit H−K, # 3 Exhibit L−O, # 4 Exhibit P−R)(Hamilton, Kevin) (Entered: 11/03/2010)
174 MOTION to Seal by Intervenor Washington Families Standing Together. (Attachments: # 1 Proposed Order) Noting Date 11/4/2010, (Hamilton, Kevin) (Entered: 11/04/2010)
175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; by Intervenor Washington Families Standing Together. (Attachments: # 1 Proposed Order) Noting Date 11/19/2010, (Hamilton, Kevin) (Entered: 11/04/2010)
176 SEALED DOCUMENT Declaration of William B. Stafford Regarding Intervenor Washington Families Standing Together's Motion to Require Identification of John Doe Plaintiffs and Declarants by Intervenor Washington Families Standing Together re 175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; (Hamilton, Kevin) (Entered: 11/04/2010)
177 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 163 MOTION for Protective Order (Bieniek, Scott) (Entered: 11/05/2010)
178 SEALED DOCUMENT 2d Decl. of Scott F. Bieniek in Support of Renewed Mot. for Protective Order by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 152 Order on Motion for Protective Order, Order on Motion to Seal (Attachments: # 1 Exhibit 1)(Bieniek, Scott) (Entered: 11/05/2010)
179 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ;. Oral Argument Requested. (Bieniek, Scott) (Entered: 11/15/2010)
180 SEALED DOCUMENT Defs' Response to Intervenor WAFST's Motion to Require Identification of John Doe Plaintiffs and Declarants by Defendants Brenda

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 18 of 29

11/15/2010
11/15/2010
11/16/2010 11/19/2010 12/01/2010 12/03/2010 12/07/2010 12/22/2010 01/07/2011 01/10/2011 01/10/2011 01/12/2011

Galarza, Sam Reed re 175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; (Egeler, Anne) (Entered: 11/15/2010)
181 MINUTE ENTRY for proceedings held on 11/15/2010 before Judge Benjamin H. Settle − Dep Clerk: G. Craft; Pla Counsel: Scott Bieniek; Def Counsel: Anne Egeler, Kevin Hamilton, Ben Stafford, Steven Dixon; CR: Teri Hendrix; Time of Hearing: 2:00; Courtroom: E; Court grants 163 Motion for Protective Order, but the issue may be revisited closer to the trial date; Court sets this matter for a bench trial on 5/31/2011 at 9:00 am; the clerk will issue a new scheduling order consistent with the new trial date and as discussed on the record. (MGC) (Entered: 11/16/2010)
182 MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES: *FIVE DAY* Bench Trial is set for 5/31/2011 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Joinder of Parties due by 12/15/2010, Amended Pleadings due by 12/27/2010, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 11/22/2010, Rebuttal Expert Disclosure/Reports due by 12/22/2010, Motions due by 1/3/2011, Discovery completed by 1/31/2011, Dispositive motions due by 2/1/2011, Settlement conference to be held by 4/1/2011, 39.1 mediation to be completed by 4/21/2011, Motions in Limine due by 4/25/2011, 39.1 Settlement Report due by 5/2/2011, Pretrial Order due by 5/9/2011, Trial briefs to be submitted by 5/10/2011, Pretrial Conference set for 5/16/2011 at 1:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 11/16/2010)
183 MINUTE ORDER clarifying 182 . (MGC) (Entered: 11/16/2010)
184 REPLY, filed by Intervenor Washington Families Standing Together, TO RESPONSE to 175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal ; (Hamilton, Kevin) (Entered: 11/19/2010)
***Motions terminated: 175 SEALED MOTION to Require Identification of John Doe Plaintiffs and Declarants; re 174 MOTION to Seal filed by Washington Families Standing Together; and 174 MOTION to Seal filed by Washington Families Standing Together. Both motions were denied without prejudice during hearing of 11/15/2010, per law clerk. (TG) (Entered: 12/01/2010)
185 MOTION for Reconsideration re 176 Sealed Document,, by Intervenor Washington Families Standing Together. Noting Date 12/3/2010, (Hamilton, Kevin) (Entered: 12/03/2010)
186 ORDER by Judge Benjamin H Settle denying 185 Motion for Reconsideration.(TG) (Entered: 12/07/2010)
187 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Scott F Bieniek for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (La Rue, Joseph) (Entered: 12/22/2010)
188 Agreed MOTION for Extension of Time by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order Extension of Time) Noting Date 1/7/2011, (Bopp, James) (Entered: 01/07/2011)
189 APPLICATION Jared Haynie by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington 09812288568. (Attachments: # 1 Supplement)(Pidgeon, Stephen) (Entered: 01/10/2011)
190 ORDER on the 189 Application for leave to appear pro hac vice. Attorney Jared M. Haynie added for plaintiffs; by Clerk William M McCool. (CMG) (Entered: 01/10/2011)
191 ORDER granting 188 agreed motion for extension of time: Bench Trial is set for 9/27/2011 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. Dispositive motions due by 6/29/2011; Settlement conference to be held by 7/29/2011; Mediation to be held by 8/18/2011; Motions in Limine due by 8/22/2011; 39.1 Settlement Report due by 8/29/2011; Pretrial Order due by

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 19 of 29

01/13/2011 01/21/2011 06/24/2011 06/27/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011

9/6/2011; Trial briefs/proposed Findings of Fact and Conclusions of Law to be submitted by 9/6/2011; Pretrial Conference set for 9/12/2011 at 11:00 AM in Courtroom E before Judge Benjamin H. Settle. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 01/12/2011)
192 ORDER of USCA as to 71 Notice of Appeal #09−35832 filed by Arthur S West; aplt West's mtn for panel and en banc rehearing is construed as a mtn for reconsideration, mtn is denied; mtn for reconsideration en banc is denied; no further filings shall be accepted in this closed case. (MW) (Entered: 01/14/2011)
193 MANDATE of USCA as to 71 Notice of Appeal #09−35832 filed by Arthur S West; Judgement, entered 11/1/10, denying mtn for panel and en banc rehearing takes effect this date. (PVO) (Entered: 01/21/2011)
194 MOTION for Leave to File Excess Pages by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order Proposed Order) Noting Date 6/24/2011, (Haynie, Jared) (Entered: 06/24/2011)
195 ORDER by Judge Benjamin H Settle denying 194 Motion for Leave to File Excess Pages.(TG) (Entered: 06/27/2011)
196 SEALED MOTION to Summary Judgment Motion; re 181 Scheduling Conference, Motion Hearing,,,, ; by Defendants Brenda Galarza, Sam Reed. Oral Argument Requested. Noting Date 7/22/2011, (Egeler, Anne) (Entered: 06/29/2011)
197 SEALED DOCUMENT Declaration of Anne Egeler by Defendants Brenda Galarza, Sam Reed re 181 Scheduling Conference, Motion Hearing,,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Egeler, Anne) (Entered: 06/29/2011)
198 SEALED DOCUMENT Declaration of Ellis by Defendants Brenda Galarza, Sam Reed re 181 Scheduling Conference, Motion Hearing,,,, (Egeler, Anne) (Entered: 06/29/2011)
199 SEALED DOCUMENT Declaration of Jensen by Defendants Brenda Galarza, Sam Reed re 181 Scheduling Conference, Motion Hearing,,,, (Egeler, Anne) (Entered: 06/29/2011)
200 SEALED DOCUMENT Declaration of Keough by Defendants Brenda Galarza, Sam Reed re 181 Scheduling Conference, Motion Hearing,,,, (Egeler, Anne) (Entered: 06/29/2011)
201 SEALED DOCUMENT Declaration of Mehl by Defendants Brenda Galarza, Sam Reed re 181 Scheduling Conference, Motion Hearing,,,, (Egeler, Anne) (Entered: 06/29/2011)
202 PROPOSED ORDER (Unsigned) re 196 SEALED MOTION to Summary Judgment Motion; re 181 Scheduling Conference, Motion Hearing,,,, ; Proposed Order Granting Defendants' Motion for Summary Judgment. (Egeler, Anne) (Entered: 06/29/2011)
203 MOTION to Seal [file documents under seal] by Intervenor Washington Coalition for Open Government. (Attachments: # 1 Proposed Order) Noting Date 6/29/2011, (Dixson, Steven) (Entered: 06/29/2011)
204 SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; by Intervenor Washington Families Standing Together. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/22/2011, (Hamilton, Kevin) (Entered: 06/29/2011)
205 SEALED DOCUMENT Declaration of William B. Stafford Regarding Motion for Summary Judgment by Intervenor Washington Families Standing Together re 181 Scheduling Conference, Motion Hearing,,,, (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Hamilton, Kevin) (Entered: 06/29/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 20 of 29

06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011 06/29/2011

206 SEALED DOCUMENT Declaration of Steven J. Dixson by Intervenor Washington Coalition for Open Government re 203 MOTION to Seal [file documents under seal] (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Dixson, Steven) (Entered: 06/29/2011)
207 DECLARATION of Noel Frame In Support of Motion for Summary Judgment filed by Intervenor Washington Families Standing Together re 204 SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; (Hamilton, Kevin) (Entered: 06/29/2011)
208 SEALED MOTION to Summary Judgment; re 203 MOTION to Seal [file documents under seal] ; by Intervenor Washington Coalition for Open Government. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/22/2011, (Dixson, Steven) (Entered: 06/29/2011)
209 MOTION for Summary Judgment by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Exhibit Proposed Order, # 2 Exhibit Notice of filing of sealed document as Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3) Noting Date 8/5/2011, (Haynie, Jared) (Entered: 06/29/2011)
210 MOTION for Summary Judgment (duplicate motion) EXHIBITS by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington to 209 . Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit 4, Part 1, # 2 Exhibit Exhibit 4, Part 2, # 3 Exhibit Exhibit 4, Part 3, # 4 Exhibit Exhibit 4, Part 4, # 5 Exhibit Exhibit 4, Part 5, # 6 Exhibit Exhibit 4, Part 6, # 7 Exhibit Exhibit 4, Part 7) Noting Date 8/5/2011, (Haynie, Jared) Modified on 6/30/2011 − to correct description and add link. (CMG). (Entered: 06/29/2011)
211 MOTION for Summary Judgment (duplicate motion) EXHIBITS in support of 209 Motion for Summary Judgment by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington . Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit 4, Part 8, # 2 Exhibit Exhibit 4, Part 9, # 3 Exhibit Exhibit 4, Part 10) Noting Date 8/5/2011, (Haynie, Jared) Modified on 6/30/2011 − to correct description (CMG). (Entered: 06/29/2011)
212 MOTION for Summary Judgment (duplicate motion) EXHIBITS in support of 209 Motion for Summary Judgment by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit 4, Part 11, # 2 Exhibit Exhibit 4, Part 12, # 3 Exhibit Exhibit 4, Part 13) Noting Date 8/5/2011, (Haynie, Jared) Modified on 6/30/2011 − to correct descriptions and added link (CMG). (Entered: 06/29/2011)
213 MOTION for Summary Judgment (duplicate motion) EXHIBITS in support of 209 MOTION for summary judgment by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit 5, Part 1, # 2 Exhibit Exhibit 5, Part 2, # 3 Exhibit Exhibit 6) Noting Date 8/5/2011, (Haynie, Jared) Modified on 6/30/2011 − to correct description and add link (CMG). (Entered: 06/29/2011)
214 SEALED DOCUMENT EXHIBIT 1 in support of 209 Motion for summary judgment (attached to duplicate motion) by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 181 Scheduling Conference, Motion Hearing (Attachments: # 1 Exhibit 1, Part 1, to Plaintiffs' Motion for Summary Judgment, # 2 Exhibit 1, Part 2, to Plaintiffs' Motion for Summary Judgment)(Haynie, Jared) Modified on 6/30/2011 − to correct link and description (CMG). (Entered: 06/29/2011)
215 NOTICE of Filing Exhibit 5 (videos) to Plaintiffs' 209 Motion for Summary Judgment in Paper or Physical Form with the Clerk's Office by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Certificate of Service)(Haynie, Jared) Modified on 6/30/2011 − to add link (CMG). (Entered: 06/29/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 21 of 29

06/29/2011
06/30/2011
06/30/2011
07/05/2011 07/05/2011 07/05/2011 07/11/2011 07/18/2011 07/18/2011 07/18/2011 07/18/2011 07/18/2011

216 NOTICE of Intent to Offer Evidence under FRE 807 re 214 Sealed Document, 210 MOTION for Summary Judgment (duplicate motion) MOTION for Summary Judgment (duplicate motion), 215 Notice of Filing Paper or Physical Materials, 209 MOTION for Summary Judgment, 211 MOTION for Summary Judgment (duplicate motion) MOTION for Summary Judgment (duplicate motion), 213 MOTION for Summary Judgment (duplicate motion) MOTION for Summary Judgment (duplicate motion), 212 MOTION for Summary Judgment (duplicate motion) MOTION for Summary Judgment (duplicate motion) ; filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 06/29/2011)
***TERMINATING the 210 MOTION for Summary Judgment (duplicate motion) filed by John Doe #1, John Doe #2, Protect Marriage Washington, 211 MOTION for Summary Judgment (duplicate motion) filed by John Doe #1, John Doe #2, Protect Marriage Washington, 212 MOTION for Summary Judgment (duplicate motion) filed by John Doe #1, John Doe #2, Protect Marriage Washington, and 213 MOTION for Summary Judgment (duplicate motion) filed by John Doe #1, John Doe #2, Protect Marriage Washington, as these documents were not motions, but were actually the exhibits to the Motion for Summary Judgment (#209). (CMG) (Entered: 06/30/2011)
NOTICE of Docket Text Modification re 211 MOTION for Summary Judgment (duplicate motion), 214 Sealed Document,, 213 MOTION for Summary Judgment (duplicate motion), 210 MOTION for Summary Judgment (duplicate motion), 215 Notice of Filing Paper or Physical Materials, 212 MOTION for Summary Judgment (duplicate motion) : corrected the descriptions. added the proper hyperlink and terminated the noting date for Dkt nos. 210−213; corrected the description and added the hyperlink to dkt #214; and added the hyperlink to dkt #215. (CMG) (Entered: 06/30/2011)
217 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney James Kendrick Pharris for Defendants Brenda Galarza, Sam Reed. (Pharris, James) (Entered: 07/05/2011)
RE−SETTING the NOTING DATE for the 209 MOTION for Summary Judgment TO: 7/22/2011; pursuant to request from Chambers to accommodate the trial schedule as set.(CMG) (Entered: 07/05/2011)
218 NOTICE of Appearance by attorney William G Clark on behalf of Defendants Brenda Galarza, Sam Reed. (Clark, William) (Entered: 07/05/2011)
219 ORDER by Judge Benjamin H Settle granting 203 Motion to Seal.(TG) (Entered: 07/11/2011)
220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses by Intervenor Washington Coalition for Open Government. (Attachments: # 1 Proposed Order) Noting Date 7/18/2011, (Dixson, Steven) (Entered: 07/18/2011)
221 RESPONSE, by Intervenor Washington Families Standing Together, to 209 MOTION for Summary Judgment. (Hamilton, Kevin) (Entered: 07/18/2011)
222 SEALED DOCUMENT Response in Opposition to Plaintiffs' Motion for Summary Judgment by Intervenor Washington Coalition for Open Government re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses (Dixson, Steven) (Entered: 07/18/2011)
223 SEALED DOCUMENT Declaration of Steven J. Dixson in Support of Response to Plaintiffs' Motion for Summary Judgment by Intervenor Washington Coalition for Open Government re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses (Attachments: # 1 Exhibit A)(Dixson, Steven) (Entered: 07/18/2011)
224 SEALED DOCUMENT Motion and Response to SJ Motion by Defendants Brenda Galarza, Sam Reed re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses (Attachments: # 1 Declaration of Aaron Williams, # 2 proposed order striking declarations)(Egeler, Anne) (Entered: 07/18/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 22 of 29

07/18/2011
07/18/2011 07/18/2011 07/18/2011 07/21/2011 07/22/2011
07/22/2011
07/22/2011 07/22/2011 07/22/2011 07/22/2011 07/28/2011

225 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 196 SEALED MOTION to Summary Judgment Motion; re 181 Scheduling Conference, Motion Hearing,,,, ;. Oral Argument Requested. (Attachments: # 1 Exhibit Exhibit 8, # 2 Exhibit Exhibit 9, Part I, # 3 Exhibit Exhibit 9, Part II, # 4 Exhibit Exhibit 9, Part III, # 5 Exhibit Exhibit 10, # 6 Exhibit Exhibit 11, # 7 Exhibit Exhibit 12, # 8 Supplement Notice of Paper Filing of Exhibit 12, # 9 Certificate of Service Certificate of Service of Notice of Paper Filing, # 10 Exhibit Exhibit 13)(Haynie, Jared) (Entered: 07/18/2011)
226 SEALED DOCUMENT Exhibit 7 by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington re 181 Scheduling Conference, Motion Hearing,,,, (Attachments: # 1 Certificate of Service)(Haynie, Jared) (Entered: 07/18/2011)
227 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 204 SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ;. Oral Argument Requested. (Haynie, Jared) (Entered: 07/18/2011)
228 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 208 SEALED MOTION to Summary Judgment; re 203 MOTION to Seal [file documents under seal] ; SEALED MOTION to Summary Judgment; re 203 MOTION to Seal [file documents under seal] ;. Oral Argument Requested. (Haynie, Jared) (Entered: 07/18/2011)
229 NOTICE of Telephonic Hearing on Motion re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses: Hearing set for 7/25/2011 at 2:30 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 07/21/2011)
230 SEALED DOCUMENT Reply in Support of Its Motion for Summary Judgment by Intervenor Washington Coalition for Open Government re 219 Order on Motion to Seal, 208 SEALED MOTION to Summary Judgment; re 203 MOTION to Seal [file documents under seal] ; SEALED MOTION to Summary Judgment; re 203 MOTION to Seal [file documents under seal] ; (Dixson, Steven) (Entered: 07/22/2011)
231 SEALED MOTION to Strike and Reply in Support of Defendants' Motion for Summary Judgment; re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses ; by Defendants Brenda Galarza, Sam Reed. Oral Argument Requested. (Attachments: # 1 2nd Declaration of Williams, # 2 Proposed Order Revised Proposed Order) Noting Date 7/22/2011, (Egeler, Anne) (Entered: 07/22/2011)
232 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 209 MOTION for Summary Judgment (Haynie, Jared) (Entered: 07/22/2011)
233 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 209 MOTION for Summary Judgment (Haynie, Jared) (Entered: 07/22/2011)
234 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 209 MOTION for Summary Judgment (Haynie, Jared) (Entered: 07/22/2011)
235 REPLY, filed by Intervenor Washington Families Standing Together, TO RESPONSE to 204 SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; (Hamilton, Kevin) (Entered: 07/22/2011)
236 MINUTE ENTRY for Telephone Conference held on 7/25/2011 before Judge Benjamin H. Settle − re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal: Dep Clerk: G. Craft; Counsel: James Bopp, Jared Haynie; Anne Egeler, William Clark, Leslie Weatherhead; CR: Julaine Ryen; Time of Hearing: 3:00; Court hears arguments and grants stipulated motion with conditions, as stated on the record. (MGC) (Entered: 07/28/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 23 of 29

07/29/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/05/2011 08/08/2011 08/10/2011 08/10/2011 08/10/2011 08/10/2011 08/10/2011 08/10/2011
08/15/2011
08/22/2011 08/22/2011

237 NOTICE of Compliance Notice of Settlement Conference Held July 25, 2011 by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 07/29/2011)
238 REDACTION to 204 SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; SEALED MOTION to Summary Judgment; re 182 Minute Order Setting Trial and Pretrial Dates,,, ; by Intervenor Washington Families Standing Together. (Hamilton, Kevin) (Entered: 08/05/2011)
239 REDACTION to 205 Sealed Document, Declaration of William B. Stafford by Intervenor Washington Families Standing Together. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Hamilton, Kevin) (Entered: 08/05/2011)
240 REDACTION to 214 Sealed Document,, Plaintiffs' Redacted Ex. 1 (part 1) by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 08/05/2011)
241 REDACTION to 214 Sealed Document,, Plaintiffs' Redacted Ex. 1 (part 2) by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 08/05/2011)
242 REDACTION to 226 Sealed Document Plaintiffs' Redacted Ex. 7 by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 08/05/2011)
243 NOTICE of Hearing: Telephonic Hearing regarding mediation payment is set for 8/9/2011 at 10:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 08/08/2011)
244 REDACTION to 196 SEALED MOTION to Summary Judgment Motion; re 181 Scheduling Conference, Motion Hearing,,,, ; by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 08/10/2011)
245 REDACTION to 197 Sealed Document, Egeler Decl in Supp of Mtn for SJ by Defendants Brenda Galarza, Sam Reed. (Attachments: # 1 Exhibit Exs. 1−4, # 2 Exs. 5−6, # 3 Exs. 7−8, # 4 Exs. 9−11)(Egeler, Anne) (Entered: 08/10/2011)
246 REDACTION to 199 Sealed Document Jensen Decl in Supp of Defs Mtn for SJ by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 08/10/2011)
247 REDACTION to 201 Sealed Document Mehl Decl in Supp of Defs Mtn for SJ by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 08/10/2011)
248 REDACTION to 224 Sealed Document, Response to Pls Mtn for SJ by Defendants Brenda Galarza, Sam Reed. (Attachments: # 1 Decl re Defs Response to Pls Mnt for SJ)(Egeler, Anne) (Entered: 08/10/2011)
249 REDACTION to 231 SEALED MOTION to Strike and Reply in Support of Defendants' Motion for Summary Judgment; re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses ; SEALED MOTION to Strike and Reply in Support of Defendants' Motion for Summary Judgment; re 220 Joint Stipulated MOTION for Leave to File Documents Under Seal Relating to Naming of Confidential Witnesses ; Mtn to Strike and Reply in Supp of Defs Mtn for SJ by Defendants Brenda Galarza, Sam Reed. (Attachments: # 1 2d Decl Wms re Mtn to Strike Pls MSJ and Exs, # 2 Proposed Order Striking Decls and Exs)(Egeler, Anne) (Entered: 08/10/2011)
250 ORDER by Judge Benjamin H Settle for additional briefing on 208 SEALED MOTION for Summary Judgment; 204 SEALED MOTION for Summary Judgment; 196 SEALED MOTION for Summary Judgment Motion; 209 MOTION for Summary Judgment : RENOTED to 8/24/2011. (TG) (Entered: 08/15/2011)
251 MOTIONS IN LIMINE by Defendants Brenda Galarza, Sam Reed. (Attachments: # 1 Proposed Order) Noting Date 9/9/2011, (Egeler, Anne) (Entered: 08/22/2011)
252 Agreed MOTIONS IN LIMINE by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 9/9/2011,

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 24 of 29

08/22/2011
08/22/2011 08/22/2011 08/22/2011 08/22/2011 08/23/2011 08/23/2011 08/24/2011 08/29/2011 08/29/2011 09/01/2011 09/01/2011 09/02/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011

(Haynie, Jared) (Entered: 08/22/2011)
253 SEALED EXHIBIT Plaintiffs Pretrial Statement (with Exhibit List) re 251 MOTIONS IN LIMINE by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) Modified on 8/23/2011 − sealed as document contains personal identifiers. Redacted document filed, see #254 (CMG). (Entered: 08/22/2011)
254 REDACTION to 253 Exhibit to Defendants' Motion in Limine by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 08/22/2011)
255 MOTIONS IN LIMINE by Intervenor Washington Families Standing Together. (Attachments: # 1 Proposed Order) Noting Date 9/9/2011, (Hamilton, Kevin) (Entered: 08/22/2011)
256 DECLARATION of William B. Stafford filed by Intervenor Washington Families Standing Together re 255 MOTIONS IN LIMINE (Hamilton, Kevin) (Entered: 08/22/2011)
257 MOTIONS IN LIMINE by Intervenor Washington Coalition for Open Government. (Attachments: # 1 Proposed Order) Noting Date 9/9/2011, (Dixson, Steven) (Entered: 08/22/2011)
NOTICE of Docket Text Modification re 253 Exhibit: sealed document as it contained personal identifiers, counsel filed redacted version (See #254) (CMG) (Entered: 08/23/2011)
258 NOTICE OF SUPPLEMENTAL AUTHORITY re 244 Redacted Document ; filed by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 08/23/2011)
259 BRIEF re 250 Order, Util − Set/Reset Motion Noting Date,, Additional Briefing per Order of the Court by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 08/24/2011)
260 NOTICE from Mediator Louis D. Peterson, that on 8/29/2011, the parties participated in a mediation. (Peterson, Louis) (Entered: 08/29/2011)
261 MOTION To Use Deposition Testimony at Trial Pursuant to FRCP 32(a)(4)(E) by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 9/16/2011, (Haynie, Jared) (Entered: 08/29/2011)
262 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Jared M. Haynie for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Haynie, Jared) (Entered: 09/01/2011)
263 MOTION to Continue Trial by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 9/9/2011, (Bopp, James) (Entered: 09/01/2011)
264 SUPPLEMENT re 263 MOTION to Continue Trial by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/02/2011)
265 TRIAL BRIEF by Defendants Brenda Galarza, Sam Reed. (Egeler, Anne) (Entered: 09/06/2011)
266 TRIAL BRIEF (REDACTED) by Intervenor Washington Families Standing Together. (Hamilton, Kevin) (Entered: 09/06/2011)
267 SEALED DOCUMENT UNREDACTED TRIAL BRIEF by Intervenor Washington Families Standing Together re 181 Scheduling Conference, Motion Hearing,,,, (Hamilton, Kevin) (Entered: 09/06/2011)
268 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
269 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
270 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 25 of 29

09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011
09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/06/2011 09/07/2011 09/07/2011 09/08/2011

271 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
272 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
273 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
274 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
275 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
276 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
277 SEALED FINANCIAL AFFIDAVIT by Defendants Brenda Galarza, Sam Reed (Clark, William) (Entered: 09/06/2011)
278 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
279 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
280 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
281 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
282 SEALED DOCUMENT Designated Deposition Testimony by Defendants Brenda Galarza, Sam Reed re 236 Motion Hearing, (Clark, William) (Entered: 09/06/2011)
283 Proposed Findings of Fact by Defendants Brenda Galarza, Sam Reed (Egeler, Anne) (Entered: 09/06/2011)
284 Proposed Pretrial Order by Intervenor Washington Families Standing Together. (Hamilton, Kevin) (Entered: 09/06/2011)
285 SEALED DOCUMENT UNREDACTED AGREED PROPOSED PRETRIAL ORDER by Intervenor Washington Families Standing Together re 236 Motion Hearing, (Hamilton, Kevin) (Entered: 09/06/2011)
286 TRIAL BRIEF by Intervenor Washington Coalition for Open Government. (Weatherhead, Leslie) (Entered: 09/06/2011)
287 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 251 MOTIONS IN LIMINE. (Bopp, James) (Entered: 09/06/2011)
288 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 255 MOTIONS IN LIMINE. (Bopp, James) (Entered: 09/06/2011)
289 RESPONSE, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, to 257 MOTIONS IN LIMINE. (Bopp, James) (Entered: 09/06/2011)
290 TRIAL BRIEF by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/06/2011)
291 RESPONSE, by Defendants Brenda Galarza, Sam Reed, to 263 MOTION to Continue Trial. (Egeler, Anne) (Entered: 09/07/2011)
292 RESPONSE, by Intervenor Washington Families Standing Together, to 263 MOTION to Continue Trial. (Hamilton, Kevin) (Entered: 09/07/2011)
293 NOTICE of Rescheduled Hearing: Pretrial Conference is reset for 9/19/2011 at 9:00 AM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 09/08/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 26 of 29

09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/09/2011 09/12/2011

294 REDACTION to 268 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
295 REDACTION to 269 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
296 REDACTION to 270 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
297 REDACTION to 271 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
298 REDACTION to 272 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
299 REDACTION to 273 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
300 REDACTION to 274 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
301 REDACTION to 275 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
302 REDACTION to 276 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
303 REDACTION to 277 Sealed Financial Affidavit Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
304 REDACTION to 278 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
305 REDACTION to 279 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
306 REDACTION to 281 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
307 REDACTION to 282 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
308 REDACTION to 280 Sealed Document Designated Deposition Testimony by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
309 WITHDRAWAL of Motion re 263 MOTION to Continue Trial ; by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Bopp, James) (Entered: 09/09/2011)
310 RESPONSE, by Defendants Brenda Galarza, Sam Reed, to 261 MOTION To Use Deposition Testimony at Trial Pursuant to FRCP 32(a)(4)(E). (Egeler, Anne) (Entered: 09/12/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 27 of 29

09/12/2011
09/20/2011 09/26/2011 09/26/2011 09/26/2011 09/26/2011 10/03/2011 10/04/2011
10/17/2011 10/17/2011 10/17/2011
10/17/2011 10/18/2011 10/18/2011

311 MINUTE ORDER at the direction of Judge Benjamin H Settle terminating motions and trial deadlines, and setting oral argument on remaining motions. Motions terminated: 257 MOTIONS IN LIMINE filed by Washington Coalition for Open Government, 251 MOTIONS IN LIMINE filed by Sam Reed, Brenda Galarza, 255 MOTIONS IN LIMINE filed by Washington Families Standing Together, 261 MOTION To Use Deposition Testimony at Trial Pursuant to FRCP 32(a)(4)(E) filed by John Doe #1, John Doe #2, Protect Marriage Washington, 252 Agreed MOTIONS IN LIMINE filed by John Doe #1, John Doe #2, Protect Marriage Washington. In−court Hearing set for 9/29/2011 at 10:00 AM in E Courtroom before Judge Benjamin H Settle. (TG) (Entered: 09/12/2011)
312 NOTICE of Rescheduled Hearing: To accommodate the Court's trial calendar, the hearing on pending motions is re−set for 10/3/2011 at 2:00 PM in Courtroom E before Judge Benjamin H. Settle. (MGC) (Entered: 09/20/2011)
313 APPLICATION OF ATTORNEY Kaylan Phillips FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington (Fee Paid) Receipt No. 0981−2568003. (Pidgeon, Stephen) (Entered: 09/26/2011)
314 APPLICATION OF ATTORNEY Noel Johnson FOR LEAVE TO APPEAR PRO HAC VICE for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington (Fee Paid) Receipt No. 0981−2568065. (Pidgeon, Stephen) (Entered: 09/26/2011)
315 ORDER on the 313 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Kaylan L Phillips for John Doe #1, John Doe #2, and Protect Marriage Washington, by William M. McCool. (No document associated with this docket entry, text only.)(CMG) (Entered: 09/26/2011)
316 ORDER on the 314 Application for Leave to Appear Pro Hac Vice. The Court ADMITS Noel H Johnson for John Doe #1, John Doe #2, and Protect Marriage Washington, by William M. McCool. (No document associated with this docket entry, text only.)(CMG) (Entered: 09/26/2011)
317 MINUTE ORDER regarding 10/3/2011 hearing. Authorized by Judge Benjamin H. Settle. (MGC) (Entered: 10/03/2011)
318 MINUTE ENTRY for proceedings held before Judge Benjamin H. Settle on 10/4/2011 − Dep Clerk: G. Craft; Pla Counsel: James Bopp, Stephen Pidgeon; Def Counsel: Anne Egeler, Steven Dixon (Intervenor), Kevin Hamilton (Intervenor), William Stafford (Intervenor); CR: Teri Hendrix; Time of Hearing: 2:00; Courtroom: E; Court hears arguments from respective counsel; motions taken under advisement; Court will issue a written ruling within two weeks. (MGC) (Entered: 10/04/2011)
319 ORDER by Judge Benjamin H Settle granting summary judgment in favor of defendants and intervenors and denying plaintiffs' motion for summary judgment 196 , 204 , 208 , 209 , and 231 .(TG) (Entered: 10/17/2011)
320 MOTION Injunction Pending Appeal re 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 11/4/2011, (Bopp, James) (Entered: 10/17/2011)
321 NOTICE OF APPEAL (11−35854) as to 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. Filing Fee $455, Receipt number 0981−2592155. (Bopp, James) Modified on 10/18/2011; added CCA case number (LMK). (Entered: 10/17/2011)
322 JUDGMENT BY COURT. (MGC) (Entered: 10/17/2011)
USCA Case Number 11−35854 for 321 Notice of Appeal, filed by John Doe #1, John Doe #2, Protect Marriage Washington. (LMK) (Entered: 10/18/2011)
323 AMENDED Notice of Appeal as to 321 Notice of Appeal, by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Phillips, Kaylan) (Entered: 10/18/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 28 of 29

10/25/2011
10/26/2011 10/26/2011 10/31/2011 11/02/2011 11/04/2011 11/07/2011 11/08/2011 11/14/2011

324 ORDER of USCA (11−35854) as to 321 Notice of Appeal, filed by John Doe #1, John Doe #2, Protect Marriage Washington. Appellants motion for an injunction pending appeal is denied for failure to comply with Fed. R. App. P. 8(a). Although appellants moved for an injunction pending appeal in the district court, they neither sought expedited consideration of the same nor awaited the district courts consideration of the motion on the date noted in their motion. This denial, however, is without prejudice to renewal, ifnecessary, following the district courts ruling on the motion for an injunctionpending the appeal filed in the district court on October 17, 2011. To permit the district court sufficient time to consider the motion, the court grants temporary injunctive relief. Appellees are temporarily enjoined from releasing any further Referendum 71 petitions. This temporary injunction shall remain in effect for 5 days following the district courts ruling. The briefing schedule established previously shall remain in effect. (SA) (Entered: 10/25/2011)
325 Agreed MOTION to Expedite Plaintiffs' Motion for Injunction Pending Appeal by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Attachments: # 1 Proposed Order) Noting Date 10/26/2011, (Phillips, Kaylan) (Entered: 10/26/2011)
326 ORDER granting 325 Motion to Expedite. Signed by Judge Benjamin H. Settle.(MGC) (Entered: 10/26/2011)
327 RESPONSE, by Defendants Brenda Galarza, Sam Reed, Intervenor Parties Washington Coalition for Open Government, Washington Families Standing Together, to 320 MOTION Injunction Pending Appeal re 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment, MOTION Injunction Pending Appeal re 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment,. (Egeler, Anne) (Entered: 10/31/2011)
328 REPLY, filed by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington, TO RESPONSE to 320 MOTION Injunction Pending Appeal re 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment, MOTION Injunction Pending Appeal re 319 Order on Sealed Motion,,, Order on Motion for Summary Judgment, (Attachments: # 1 Exhibit 1)(Phillips, Kaylan) (Entered: 11/02/2011)
329 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph E La Rue for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (La Rue, Joseph) (Entered: 11/04/2011)
330 TRANSCRIPT REQUEST by Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington for proceedings held on 10/3/2011 Requesting Attorney: Kaylan L Phillips. (Phillips, Kaylan) (Entered: 11/07/2011)
331 ORDER Denying 320 Plaintiffs' Motion for injunction Pending Appeal by Judge Benjamin H Settle.(JAB) (Entered: 11/08/2011)
332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Hearing held on 10/3/2011 before Judge Benjamin H. Settle.

Parties have ten (10) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.

To purchase a copy of the transcript contact court reporter Teri Hendrix by telephone at 253−882−3831.

. Release of Transcript Restriction set for 2/13/2012, (LMK) (Entered: 11/15/2011)

Case: 3:09-cv-5456 As of: 05/14/2013 05:18 PM PDT 29 of 29

11/28/2011 03/23/2012 06/01/2012 10/23/2012 11/15/2012

333 Appeal Remark: Order from Supreme Court, Case No. 11A501; the application for injunction is denied. (CMG) (Entered: 11/30/2011)
334 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Kaylan L Phillips for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Phillips, Kaylan) (Entered: 03/23/2012)
335 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Noel H Johnson for Plaintiffs John Doe #1, John Doe #2, Protect Marriage Washington. (Johnson, Noel) (Entered: 06/01/2012)
336 OPINION of USCA (11−35854−NOT THE MANDATE) as to 321 Notice of Appeal, filed by John Doe #1, John Doe #2, Protect Marriage Washington; DISMISSED. (LMK) (Entered: 10/23/2012)
337 MANDATE of USCA (11−35854) as to 321 Notice of Appeal, filed by John Doe #1, John Doe #2, Protect Marriage Washington The judgment of this Court, entered October 23, 2012, takes effect this date. DISMISSED. (SA) (Entered: 11/15/2012)

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 JOHN DOE #1, an individual; JOHN
DOE #2, an individual; PROTECT MARRIAGE WASHINGTON,
Plaintiffs-Appellees,

v.
 SAM REED, in his official capacity
as Secretary of State of Washington; BRENDA GALARZA, in her official capacity as Public records Officer for the Secretary of State of Washington,
 Defendants-Appellants.

No. 09-35818
DC No. CV 09-5456 BHS

 JOHN DOE #1, an individual; JOHN
DOE #2, an individual; PROTECT MARRIAGE WASHINGTON,
Plaintiffs-Appellees,

v.
 SAM REED, in his official capacity
as Secretary of State of Washington; BRENDA GALARZA, in her official capacity as Public records Officer for the Secretary of State of Washington,
Defendants,

No. 09-35826
DC No. CV 09-5456 BHS

and



14587

14588

DOE #1 v. REED

WASHINGTON COALITION FOR OPEN GOVERNMENT,

 

 Defendant-intervenor-Appellant.

 JOHN DOE #1, an individual; JOHN
DOE #2, an individual; PROTECT MARRIAGE WASHINGTON,
Plaintiffs-Appellees,

v.

WASHINGTON FAMILIES STANDING

TOGETHER,

 Intervenor-Appellant,

SAM REED, in his official capacity as Secretary of State of Washington; BRENDA GALARZA, in her official capacity as Public records Officer for the Secretary of State of Washington,
 Defendants.

No. 09-35863
DC No. CV 09-5456 BHS
OPINION

Appeals from the United States District Court for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Argued and Submitted October 14, 2009—Pasadena, California

Filed October 22, 2009

Before: Harry Pregerson, A. Wallace Tashima, and N. Randy Smith, Circuit Judges.

Opinion by Judge Tashima

DOE #1 v. REED COUNSEL

14591

James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute, Indiana, for the plaintiffs-appellees.

William B. Collins, Deputy Solicitor General, Robert M. McKenna, Attorney General of Washington, Olympia, Washington, for the defendants-appellants.

Leslie R. Weatherhead, Witherspoon, Kelley, Davenport & Toole, Spokane, Washington, for intervenor-appellant Washington Coalition for Open Government.

Amanda J. Beane, Perkins Coie, Seattle, Washington, for intervenor-appellant Washington Families Standing Together.

OPINION
TASHIMA, Circuit Judge:
Washington’s Secretary of State and Public Records Officer (together, the “State”) and Intervenors, Washington Coalition for Open Government (“WCOG”) and Washington Families Standing Together (“WFST”), appeal a decision of the district court granting Plaintiffs, Protect Marriage Washington (“PMW”) and two individual signers of the Referendum 71 petition, a preliminary injunction prohibiting the State from making referendum petitions available in response to requests made under Washington’s Public Records Act (the “PRA”). Wash. Rev. Code § 42.56.001 et seq.
Under the Washington Constitution, a referendum must be ordered on a bill passed by the legislature if a specified percentage of voters sign a petition for a referendum. The Referendum 71 petition calls for a statewide election on Engrossed Second Substitute Senate Bill 5688 (“SB 5688”), which

14592

DOE #1 v. REED

would expand the rights and responsibilities accorded stateregistered domestic partners. The PRA makes public records, including referendum petitions, available for public inspection. In seeking a preliminary injunction, Plaintiffs argued that, as applied to referendum petitions, the PRA violates the First Amendment. We have jurisdiction over this appeal from the district court’s grant of a preliminary injunction under 28 U.S.C. § 1292(a)(1). We reverse.

BACKGROUND

I. Washington’s Public Records Act

The PRA requires state agencies to make public records available for public inspection and copying. Wash. Rev. Code § 42.56.070. It provides that “[i]n the event of conflict between the provisions of [the PRA] and any other act, the provisions of [the PRA] shall govern.” Wash. Rev. Code § 42.56.030. Although the PRA contains some exemptions, none applies to referendum petitions. The PRA was enacted through the initiative process and includes its own rule of construction:

The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected.

Wash. Rev. Code § 42.56.030.

II. Washington’s Referendum Process

Under the Washington Constitution, although legislative authority is vested in the state legislature, the people reserve to themselves the power to reject any bill or law through the

DOE #1 v. REED

14593

referendum process. Wash. Const., art. II, §§ 1 & 1(b).1 To initiate the referendum process, petitions must be filed with the Secretary of State containing the valid signatures of Washington registered voters in a number equal to four percent of the votes cast for the Office of Governor in the immediately preceding gubernatorial election. Wash. Rev. Code § 29A.72.150. Referendum petition sheets must include a place for each signer to sign and print his or her name, address, city, and county at which he or she is registered to vote. Wash. Rev. Code § 29A.72.130.

Once the referendum petition is filed, the Secretary of State must verify and canvass the names of the voters who signed the petition. Wash. Rev. Code § 29A.72.230. The verification and canvassing “may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process except upon the order of the superior court of Thurston county.” Id. The Secretary of State may limit the number of observers to two opponents and two proponents of the referendum if the Secretary of State deems that “a greater number would cause undue delay or disruption of the verification process.” Id.

After verification and canvassing, the Secretary of State issues a determination of whether the referendum petition contains the requisite number of valid signatures. Any citizen dissatisfied with that determination may apply to the Thurston County Superior Court for a citation requiring the Secretary of State to submit the petition to the superior court “for examination, and for a writ of mandate compelling the certification of the measure and petition, or for an injunction to prevent the certification thereof to the legislature, as the case may be.” Wash. Rev. Code § 29A.72.240. Within five days of the supe-

1The Washington Constitution includes some exceptions to this reserved power, but none applies in this case.

14594

DOE #1 v. REED

rior court’s decision, a party may seek review by the Washington Supreme Court. Id.

If it is ultimately determined that a petition contains the requisite number of valid signatures, the referendum is submitted to a vote at the next general election. Wash. Const., art. II, § 1(d).

III. Referendum 71

The Washington Governor signed SB 5688 on May 18, 2009. Known as the “everything but marriage act,” the bill expands the rights and responsibilities of state-registered domestic partners. On or about May 4, 2009, Larry Stickney, the campaign manager for PMW,2 filed notice with the Secretary of State of his intent to circulate a referendum petition on SB 5688. On July 25, 2009, PMW submitted the petition with more than 138,500 signatures to the Secretary of State for verification and canvassing.3

The petition, entitled “Preserve Marriage, Protect Children,” includes a table for the following information for each signer: printed name, signature, home address, city and county, and an optional email address. The petition also states:

To the Honorable Sam Reed, Secretary of State of the State of Washington:

We, the undersigned citizens and legal voters of the

2PMW was organized as a state political committee pursuant to Wash. Rev. Code § 42.17.040. Its purposes are to collect the requisite number of signatures to place Referendum 71 on the ballot and to encourage Washington voters to reject SB 5688.
3The State asserts that about 122,000 signatures were valid. Presumably, the PRA would make available all 138,500 signatures, however, because all petition sheets, not only valid signatures, comprise the public records.

DOE #1 v. REED

14595

State of Washington, respectfully order and direct that Referendum No. 71 . . . shall be referred to the people of the state for their approval or rejection at the regular election to be held on the 3rd day of November, 2009; and each of us for himself or herself says: I have personally received this petition, I am a legal voter for the State of Washington, in the city (or town) and county written after my name, my residence address is correctly stated, and I have knowingly signed this petition only once.

Pursuant to Wash. Rev. Code § 29A.72.140, the petition warns that “[e]very person who signs this petition with any other than his or her true name, knowingly signs more than one of these petitions, signs the petition when he or she is not a legal voter, or makes any false statement on this petition may be punished by fine or imprisonment or both.”

As of August 20, 2009, the Secretary of State had received public record requests for the Referendum 71 petition from Brian Murphy of WhoSigned.org, Toby Nixon of WCOG, Arthur West, Brian Spencer on behalf of Desire Enterprises, and Anne Levinson on behalf of WFST. Two entities, KnowThyNeighbor.org and WhoSigned.org, publicly stated that they intend to publish the names of petition signers on the internet. Plaintiffs allege that these two groups have encouraged individuals to contact petition signers to have “personal” and “uncomfortable” conversations.4

4Plaintiffs appear to be referring to a June 8, 2009, press release:
“What does happen,” says [Aaron Toleos, co-director of KnowThyNeighbor.org], “is that conversations are triggered between people that already have a personal connection like friends, relatives, and neighbors.”
“These conversations can be uncomfortable for both parties,” he said, “but they are desperately needed to break down stereotypes and to help both sides realize how much they actually have in common.”

14596

DOE #1 v. REED

IV. Procedural History

On July 28, 2009, Plaintiffs filed this action, seeking to enjoin the State from publicly releasing documents showing the names and contact information of the individuals who signed petitions in support of Referendum 71. Count I of the complaint alleges that, as applied to referendum petitions, the PRA violates the First Amendment because the PRA is not narrowly tailored to serve a compelling government interest. Count II alleges that, as applied to the Referendum 71 petition, the PRA is unconstitutional because “there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.”

The district court granted Plaintiffs a temporary restraining order on July 29, 2009, and, after a hearing, granted Plaintiffs’ motion for a preliminary injunction on September 10, 2009, enjoining release of the Referendum 71 petition.5 The district court applied strict scrutiny to the PRA and concluded that Plaintiffs established they were likely to succeed on Count I of their complaint.6 The State and Intervenors timely appealed.

On September 14, 2009, the State moved this court for an emergency stay and to expedite its appeal. We consolidated the State’s appeal with those of Intervenors WCOG and WFST. Because the election on Referendum 71 is set for November 3, 2009, we ordered expedited briefing on the consolidated appeals and heard oral argument on October 14, 2009, on the merits of the appeals, as well as on the stay motion.7

5On September 3, 2009, the district court granted the motions to intervene of WFST and WCOG.
6The district court based its preliminary injunction only on Count I. Because the district court did not reach the merits of Count II, we likewise do not reach Count II in reviewing the injunction.
7We appreciate all counsel’s efforts and cooperation in meeting a highly-expedited briefing schedule.

DOE #1 v. REED

14597

On October 15, 2009, we granted a stay pending our disposition on the merits of these appeals.8 We now reverse the preliminary injunction.

STANDARD OF REVIEW

As recently articulated by the Supreme Court, a “plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008).

We review the district court’s grant of a preliminary injunction for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (citing Lands Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)). A district court abuses its discretion if it bases its decision on an erroneous legal standard or clearly erroneous findings of fact. Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009) (citing Am. Trucking, 559 F.3d at 1052). Thus, application of an incorrect legal standard in granting preliminary injunctive relief or with regard to an underlying issue is grounds for reversal. See Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted).

ANALYSIS

We are presented with the novel questions of whether referendum petition signatures are protected speech under the First Amendment and, if so, what level of scrutiny applies to gov-

8On October 19, 2009, the Circuit Justice stayed our stay order. Doe #1 v. Reed, No. 09A356 (U.S. Oct. 19, 2009) (Kennedy, Circuit Justice). The application was thereafter referred to the full Court which confirmed the stay. Id. (Oct. 20, 2009). Nothing in either of those orders affects our consideration of the merits of these appeals.

14598

DOE #1 v. REED

ernment action that burdens such speech. For the purposes of our analysis, we assume, as did the district court, that the act of signing a referendum petition is speech, such that the First Amendment is implicated.9 See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978) (noting that when a litigant challenges a statute on First Amendment grounds, the threshold question is whether the statute burdens expression the First Amendment protects). Even assuming that speech is involved, however, we conclude that the district court applied an erroneous legal standard when it subjected the PRA to strict scrutiny.

I. District court’s analysis

[1] The district court’s analysis was based on the faulty premise that the PRA regulates anonymous political speech. The signatures at issue, however, are not anonymous. First, the petitions are gathered in public, and there is no showing that the signature-gathering process is performed in a manner designed to protect the confidentiality of those who sign the petition. Second, each petition sheet contains spaces for 20 signatures, exposing each signature to view by up to 19 other signers and any number of potential signers. Third, any reasonable signer knows, or should know, that the petition must be submitted to the State to determine whether the referendum qualifies for the ballot, and the State makes no promise of confidentiality, either statutorily or otherwise. In fact, the PRA provides to the contrary. Fourth, Washington law specifically provides that both proponents and opponents of a refer-

9The State contends, with some force, that signing a referendum petition is not speech, but is instead, a legislative act, i.e., that it is an integral part of the exercise of the legislative power reserved to the people by the Washington Constitution. See State ex rel. Heavey v. Murphy, 982 P.2d 611, 615 (Wash. 1999) (“ ‘A referendum . . . is an exercise of the reserved power of the people to legislate . . . .’ ” (quoting Belas v. Kiga, 959 P.2d 1037, 1040-41 (Wash. 1998))). Because we assume, for purposes of this case, that signing a referendum petition is speech, we do not reach this argument and intimate no view on it.

DOE #1 v. REED

14599

endum petition have the right to observe the State’s signature verification and canvassing process. Thus, the district court’s finding that the speech at issue is anonymous is clearly erroneous.10 And, because it was based on that faulty premise, the district court’s application of anonymous speech cases requiring strict scrutiny was error.

[2] To the extent the district court did not rely exclusively on anonymous speech cases, the district court nonetheless erred in applying strict scrutiny. Relying on Meyer v. Grant, 486 U.S. 414, 420-21 (1988), and Buckley v. Am. Constitutional Law Found. (Buckley II), 525 U.S. 182, 197 (1999), the district court concluded that petition signing, like petition circulation, is protected political speech, and suggested that any regulation of protected political speech is subject to strict scrutiny. This suggestion is unsupported by the applicable case law. Even assuming, as we do here, that petition signing is protected political speech, it does not follow that a regulation that burdens such speech is necessarily subject to strict scrutiny. See e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 661-62 (1994) (applying intermediate scrutiny for viewpoint- and content-neutral time, place, and manner restrictions on speech); Burdick v. Takushi, 504 U.S. 428, 434 (1992) (applying balancing test to election restriction that burdened First Amendment rights); Lincoln Club of Orange County v. City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002) (“[T]he level of constitutional scrutiny that we apply to a statutory restriction on political speech and associational freedom is dictated by both the intrinsic strength of, and the magnitude of the burden placed on, the speech and associational freedoms at issue.”).

10This appears to be more an assumption than a finding. All that the district court “found” on this issue was that “at this time, the Court is not persuaded that waiver of one’s fundamental right to anonymous political speech is a prerequisite for participation in Washington’s referendum process.” All of the facts underlying this finding are undisputed. We have, nonetheless, applied the deferential clear error standard of review to this finding.

14600

DOE #1 v. REED

II. Applicable level of scrutiny

Having concluded that the district court’s basis for applying strict scrutiny was in error, we turn to the PRA and determine what standard should be applied.

[3] As noted above, not all laws that burden First Amendment rights are subject to strict scrutiny. A regulation that has an incidental effect on expressive conduct is constitutional as long as it withstands intermediate scrutiny. See United States v. O’Brien, 391 U.S. 367, 376 (1968); Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 434 (9th Cir. 2008).

In O’Brien, a student was arrested for burning his draft card in protest of the Vietnam War. 391 U.S. at 369-70. The student argued the statute was an unconstitutional infringement upon his right to engage in political speech. Id. at 370. The Supreme Court first assumed that “the alleged communicative element in O’Brien’s conduct [was] sufficient to bring into play the First Amendment.” Id. at 376. The Court then concluded that “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. at 376. Applying intermediate scrutiny, the Court concluded that the draft card statute was not unconstitutional as applied to O’Brien. Id. at 377.

[4] As in O’Brien, we assume for the purposes of our analysis that signing a referendum petition has a “speech” element such that petition signing qualifies as expressive conduct. We also assume that the PRA’s public access provision has an incidental effect on referendum petition signers’ speech by deterring some would-be signers from signing petitions. Given these assumptions, we conclude that intermediate scrutiny applies to the PRA.11

11We note that “election regulations” are subject to a different analysis altogether. Instead of applying O’Brien intermediate scrutiny, courts apply

DOE #1 v. REED

14601

[5] Under intermediate scrutiny, as articulated in O’Brien, application of the PRA to referendum petitions is constitutional if the PRA is within the constitutional power of the government to enforce, it furthers an important government interest unrelated to the suppression of free expression, and the incidental restriction on alleged First Amendment freedoms is no greater than necessary to justify the interest. O’Brien, 391 U.S. at 377; see also Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984).

a balancing test to determine whether an election regulation is a permissible infringement on First Amendment free speech rights. See Caruso v. Yamhill County ex rel. County Comm’r, 422 F.3d 848, 859 (9th Cir. 2005) (when an election regulation imposes only “reasonable, nondiscriminatory” restrictions upon First and Fourteenth Amendment rights, “the [s]tate’s important regulatory interests are generally sufficient” to justify the restrictions) (quoting Burdick, 504 U.S. at 434); see also Burdick, 504 U.S. at 434 (holding that only when the regulation subjects such rights to severe restrictions must it be narrowly drawn to advance a compelling state interest). We assume, however, that the PRA is not an election regulation. No case offers a sound definition of an election regulation, and its meaning is not entirely discernible. However, Justice Thomas, in his Buckley II concurrence, provides examples of cases that would likely be election regulation cases, see 525 U.S. at 207, and none of them seems to parallel the current case. For example, Justice Thomas cites Burson v. Freeman, 504 U.S. 191, 198 (1992), wherein the Court subjected to strict scrutiny a Tennessee law prohibiting solicitation of voters and distribution of campaign literature within 100 feet of the entrance of a polling place. Id. He also cited Anderson v. Celebrezze, 460 U.S. 780, 788-90 (1983), which dealt with a challenge to an Ohio regulation that imposed a filing deadline for independent candidates. Id. He cited several other cases. See e.g. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Brown v. Hartlage, 456 U.S. 45, 53-54 (1982); Meyer, 486 U.S. at 421. Id. at 206-07. All of these cases, however, dealt with regulations that were content-based; they all dealt directly and specifically with the election process. The PRA, on the other hand, only incidentally deals with the election process and only has attenuated consequences. It does not prevent the petition signers from signing the petitions or from otherwise lawfully qualifying their referendum for a vote. At most, it might deter some voters from signing the petition.

14602

DOE #1 v. REED

III. Constitutionality of the PRA

Applying O’Brien, we begin by noting that Plaintiffs do not contend that “aside from its impact on speech, [the PRA] is beyond the constitutional power of the [State] to enforce.” See Clark, 468 U.S. at 298-99. We thus turn next to the government interests the PRA furthers. The State has asserted two interests: (1) preserving the integrity of the election by promoting government transparency and accountability; and (2) providing Washington voters with information about who supports placing a referendum on the ballot. Both interests plainly qualify as important.12

[6] “A [s]tate indisputably has a compelling interest in preserving the integrity of the election process.” Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (citing Rosario v. Rockefeller, 410 U.S. 752, 761 (1973)); see also Buckley II, 525 U.S. at 191 (“States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process . . . .”). In Washington, the PRA plays a key role in preserving the integrity of the referendum process by serving a government accountability and transparency function not sufficiently served by the statutory scheme governing the referendum process. The oversight procedure provided by statute allows the Secretary of State to limit observers to two opponents and two proponents of the referendum. See Wash. Rev. Code § 29A.72.230. This procedure is insufficient to shift oversight from the special interest groups to the general public. See Progressive Animal Welfare Soc’y v. Univ. of Wash., 884 P.2d 592, 597 (Wash. 1994) (“Without tools such as the [PRA], government of the people, by the people, for the people, risks becoming government of the people by the bureaucrats, for the special interests.”).

12In making its strict scrutiny analysis, the district court recognized only one of these interests, “preserving the integrity of its election process,” as a “compelling governmental interest.” It did not address the State’s interest, furthered by the PRA, of an informed electorate.

DOE #1 v. REED

14603

Without the PRA, the public is effectively deprived of the opportunity independently to examine whether the State properly determined that a referendum qualified, or did not qualify, for the general election.

Moreover, the PRA is necessary for citizens to make meaningful use of the state superior court challenge also provided by statute. See Wash. Rev. Code § 29A.72.240.13 The superior court procedure would be at best inefficient and at worst useless, if citizens have no rational basis on which to decide whether they are “dissatisfied” with the Secretary of State’s determination before filing a challenge — and they cannot gain that understanding without the right to inspect the petition sheets.

We have also recognized the State’s “informational interest” as important. See Cal. Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1179 nn.8-9 (9th Cir. 2007) (noting that the informational interest was “well-established” and that California presented persuasive evidence demonstrating that it was compelling); Canyon Ferry Rd. Baptist Church of E. Helena, Inc. v. Unsworth, 556 F.3d 1021, 1032 (9th Cir. 2009) (having “little trouble” concluding that the state’s informational interest was important).

Plaintiffs correctly note that Cal. Pro-Life and Canyon Ferry dealt with the interest in disclosure of financial backers

13That statute provides:
Any citizen dissatisfied with the determination of the secretary of state that . . . [a] referendum petition contains or does not contain the requisite number of signatures of legal voters may, within five days after such determination, apply to the superior court of Thurston county for a citation requiring the secretary of state to submit the petition to said court for examination, and for a writ of mandate compelling the certification of the . . . petition, or for an injunction to prevent the certification thereof . . . .
Wash. Rev. Code § 29A.72.240.

14604

DOE #1 v. REED

of referenda, not “generally what groups may be in favor of, or opposed to, a particular . . . ballot issue.” Canyon Ferry, 556 F.3d at 1032-33 (holding that requiring disclosure of de minimus in-kind contributions was unconstitutional because the marginal informational gain did not justify the burden of disclosure). Referendum petition signers, however, cannot be considered “generally” in favor of a particular ballot issue. Referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect. The interest in knowing who has taken such action is undoubtedly greater than knowing generally what groups are in favor of or opposed to a ballot issue.

[7] We conclude that each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition signers’ First Amendment freedoms. See O’Brien, 391 U.S. at 376-77. We conclude also that the incidental effect of the PRA on speech is no greater than necessary. See Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (holding that a restriction need not be the least restrictive means of furthering the State’s interest to survive intermediate scrutiny).

[8] Finally, no one has claimed that the State’s interests are at all related to the suppression or regulation of expression. The stated aim of the PRA, which itself was passed through the initiative process, is to keep the citizens “informed so that they may maintain control over the instruments that they have created.” Wash. Rev. Code § 42.56.030. There is no indication that despite this clear statement, the PRA was nonetheless intended to suppress free expression.

[9] Accordingly, we hold that the PRA as applied to referendum petitions does not violate the First Amendment.14

14Because we conclude that Plaintiffs have failed to satisfy the first Winters factor — likelihood of success on the merits — we need not examine the three remaining Winters factors, see supra at 14597 (quoting

DOE #1 v. REED CONCLUSION

14605

The district court applied an erroneous legal standard when it applied strict scrutiny to the PRA. The proper analysis was to apply intermediate scrutiny. Applying this analysis, we conclude that the PRA is constitutional as applied to referendum petitions.

The district court’s grant of the preliminary injunction is

REVERSED.

the four-factor Winters test), although we note that the district court’s analysis of the remaining Winters factors relied on presumptions, rather than findings of fact, arising from its erroneous legal conclusion that Plaintiffs’ First Amendment rights were likely violated.

 
 No.
tF~F.- OLERK In The Supreme Court of the United States
John Doe #1, John Doe #2, and Protect Marriage Washington, Petitioners
Sam Reed et al., Respondents
On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit
Petition for Writ of Certiorari

November 6, 2009

James Bopp, Jr. Counsel of Record
Richard E. Coleson Sarah E. Troupis Scott F. Bieniek
BOPP, COLESON 8: BOSTROM
1 South 6th Street Terre Haute, IN 47807 812/232-2434 812/235-3685 (facsimile) Counsel for Petitioners

Blank Page

Question Presented The district court granted a preliminary injunction protecting against public disclosure, as opposed to private disclosure to the government only, of those signing a petition to put a referendum on the ballot ("petition signers"). The Ninth Circuit reversed, concluding that the district court based its decision on an incorrect conclusion of law when it determined that public disclosure of petition signers is subject to, and failed, strict scrutiny. The questions presented are: 1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers. 2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.
(i)

Parties to the Proceeding Petitioners in this Court, Plaintiffs-Appellees below, are John Doe #1, an individual, John Doe #2, an individual, and Protect Marriage Washington, a state political committee and proponent of Referendum 71. Respondents in this Court, Defendants-Appellants below, are Sam Reed, in his official capacity as Secretary of State of Washington, and Brenda Galarza, in her official capacity as Public Records Officer for the Secretary of State of Washington. Additional Respondents in this Court, DefendantsIntervenors-Appellants below, are Washington Coalition for Open Government, and Washington Families Standing Together.
Corporate Disclosure Statement
No corporations are parties, and there are no parent companies or publicly held companies owning any corporation’s stock.
(ii)

Table of Contents

Questions Presented .........................

i

Parties to the Proceeding .....................

ii

Corporate Disclosure Statement .............i.i.

Table of Contents ..........................

iii

Table of Contents - Appendix ................v.i

Table of Authorities .......................

viii

Petition ...................................

1

Opinions Below .............................

1

Jurisdiction ................................

1

Constitutional and Statutory

Provisions Involved .......................

1

Statement of the Case ........................

2

Reasons to Grant the Petition .................

7

I. The Decision Below Involves an Important

Question of Law That Should Be Decided by

this Court ...............................

7

A. Petitioners Had Likely Success on the

Merits ...............................

9

(iii)

Public Disclosure Here Implicates First Amendment Privacy of Speech, Association, and Belief and Constitutes Compelled Speech ........9.
2. Strict Scrutiny Was Required .......1..7

3. Asserted Interests Were Not

Compelling ........................

23

a. No Information Interest Is

Compelling .....................

24

b. No Anti-Fraud Interest Is

Compelling .....................

25

Public Disclosure Is Not Narrowly

Tailored And There Are Less-

Restrictive Means ..................

26

ao Public Disclosure Is Not

Narrowly Tailored to Any

Information Interest .............

26

Public Disclosure Is Not

Narrowly Tailored to Any Anti-

Fraud Interest ..................

27

B. Petitioners Met the Other Elements for

a Preliminary Injunction ...............

29

1. Speech-Protective Standards Control .. 29 2. Plaintiffs Had Irreparable Harm ....3..1

3. Balancing Equities Favored

Petitioners ........................

32

(iv)

4. An Injunction Served the Public

Interest ..........................

33

Conclusion ................................

34

(v)

Table of Contents - Appendix

Order (9th Cir.) ............................

la

Opinion (9th Cir.) ..........................

3a

Order (U.S. Supreme Court) .................21a

Order (U.S. Supreme Court) .................22a

Order & Opinion (District Court) .............

23a

U.S. Const. amend. I .......................

46a

U.S. Const. amend. XIV ....................

46a

Washington Const., art. II, §l(b) ............4.6a

Revised Code of Washington§ 29A.68.011 ..... 47a

Revised Code of Washington§ 29A.72.200 ..... 48a

Revised Code of Washington§ 29A.72.230 ..... 49a

Revised Code of Washington§ 29A.72.240 ..... 50a

Revised Code of Washington§ 29A.84.210 ..... 51a

Revised Code of Washington§ 29A.84.230 ..... 51a

Revised Code of Washington§ 29A.84.250 ..... 52a

Revised Code of Washington§ 42.17.010 ....... 53a

Revised Code of Washington§ 42.56.001 ....... 55a

(vi)

Revised Code of Washington § 42.56.010 .......56a

Revised Code of Washington § 42.56.070 .......56a

Initiative 276 § 28 (1972) ...................

61a

Wash. Op. Att’y Gen. 378 (1938) .............61a

Wash. Op. Att’y Gen. 55-57 No. 274 (1956) .....63a

A. Ludlow Kramer, Letter to State

Senator Hubert F. Donohue,

July 13, 1973 ..........................

66a

A. Ludlow Kramer, Secretary of State of

Washington Official Statement,

July 13, 1973 ..........................

67a

(vii)

Table of Authorities

Cases

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ........... 13, 14

American Communications Ass’n, CIO v. Douds,

339 U.S. 382 (1950) ......................

15

Bates v. City of Little Rock,

361 U.S. 516 (1960) ......................

10

Block v. Meese, 793 F.2d 1303 (D.C. Cir. 1986) .............14

Brown v. Cal. Dept. of Transportation, 32 F.3d 290 (9th Cir. 2003) ................32

Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982) .............. 5

Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) ... 9, 10, 16, 17

Buckley v. Valeo, 424 U.S. 1 (1976) ....................

passim

Cal. Pro-Life Council, Inc. v. German, 328 F.3d 1088 (9th Cir. 2003) ........... 16, 24

Cal. Pro-Life Council v. Randolph, 507 F.3d 1172 (9th Cir. 2007) ..............19

(viii)

Canyon Ferry Road Baptist Church of East
Helena, Inc. v. Unsworth, 556 F.3d 1021 (gth Cir. 2009) ........ 16, 24, 27

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) ..............32

Citizens Against Rent Control v. Berkeley,

454 U.S. 290 (1981) ......................

16

Clean-Up ’84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985) .............16

Davis v. FEC, __ U.S. __, 128 S. Ct. 2759 (2008) ........ 17, 18

Doe v. Reed,

__ F.3d __, 2009 WL 6401297

(9th Cir. 2009) ...........................

1

Elrod v. Burns,

427 U.S. 347 (1976) ......................

32

FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981) .............. 14

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) .............. 31

FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) ........... 9, 17, 23, 28, 30

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ................ 16, 17, 24
G & VLounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .......33

(ix)

Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) ....... 30

Hegarty v. Tortolano,
No. Civ.A 04-11668-RWZ, 2006 WL 721543 (D. Mass. Mar. 17, 2006) .................. 16

Laird v. Tatum,

408 U.S. 1 (1972) ........................

15

Marks v. United States,

430 U.S. 188 (1977) .......................

9

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ..........21

Mclntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) .................. passim

Members of City Council v. Taxpayers for Vincent,

466 U.S. 789 (1984) ......................

31

Meyer v. Grant, 486 U.S. 414 (1988) ...................

16, 25

Miami Herald Publishing Comp. v. Tornillo,

418 U.S. 241 (1974) ......................

10

Neale v. Cheney,

No. 48733 (Wash. Sup. Ct. Thurston

County, Sept. 14, 1973) ....................

4

Sammartano v. First Judicial District Court, in and for County of Carson City,
303 F.3d 959 (9th Cir. 2002) ............ 32, 33

(x)

Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007) .............32

Storer v. Brown,

415 U.S. 724 (1974) ......................

17

Sweezy v. New Hampshire,

354 U.S. 234 (1957) ......................

15

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ................ 25, 26, 31

Washington Initiatives Now v. Ripple, 213 F.3d 1132 (9th Cir. 2000) ........ 25, 26, 28

West Virginia State Board of Educ. v. Barnette,

319 U.S. 624 (1943) ......................

10

White v. Lee, 227 F.3d 1214 (9th Cir. 2000) ..............15

Winter v. Natural Resources Defense Council, __ U.S. __, 129 S. Ct. 365 (2008) .......... 7, 29

Wooley v. Maynard,

430 U.S. 705 (1977) ......................

10

Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) ..............32

(xi)

Constitutions, Statutes, Regulations & Rules

28 U.S.C. § 1254 ............................

1

Fed. R. Civ. P. 5.2 ..........................

22

Idaho Code Ann. § 34-1805 ....................8

Revised Code of Washington

§ 29A.68.011 .............................

1

Revised Code of Washington

§ 29A.72.010 .............................

3

Revised Code of Washington

§ 29A.72.200 ...........................

1, 3

Revised Code of Washington § 29A.72.230 ........................

I, 3, 27

Revised Code of Washington

§ 29A.72.240 ...........................

I, 3

Revised Code of Washington § 29A.84.210 .......................

I, 25, 28

Revised Code of Washington § 29A.84.230 .......................

1, 25, 28

Revised Code of Washington § 29A.84.250 .......................

1, 25, 28

Revised Code of Washington § 42.17.010 ...........................

1, 26

(xii)

Revised Code of Washington

§ 42.56.001 ............................

1, 3

Revised Code of Washington

§ 42.56.010 ..............................

1

Revised Code of Washington

§ 42.56.070 ............................

1, 4

U.S. Const. amend. I .......................

1, 9

U.S. Const. amend. XIV ......................

1

Wash. Const. art II, §l(b) ...........1, 2, 8, 11, 25

Other Authorities

A. Ludlow Kramer, Letter to State Senator Hubert F. Donohue, July 13, 1973 ..........4.

A. Ludlow Kramer, Secretary of State of

Washington Official Statement,

July 13, 1973 ............................

4

Brad Stone, Prop 8 Donor Web Site Shows Disclosure Law Is 2-Edged Sword, N.Y. Times (Feb. 8, 2009) .................23

Brian Zylstra, The disclosure history of petition

sheets, Wash. Sec’y. of State Blogs,

Sept. 17, 2009 ...........................

22

Brief of Amicus Curiae Alliance Defense Fund in Support of Appellant,
Citizens United v. FEC, No. 08-205 (U.S. 2009) .................... 21

(xiii)

David Ammons, Who Signs R- 71 ? Foes May

Post It Online, Wash. Sec’y. of State Blogs,

June 2, 2009 ............................

18

Dick M. Carpenter II, Disclosure Costs: Unintended Consequences of Campaign Finance Reform (2007) .................

19, 20

Dick M. Carpenter II, Mandatory Disclosure for Ballot-Initiative Campaigns, The Independent Review, 578 (Spring 2009) .....2.0

Initiative and Referendum Institute,

I & R Factsheet ...........................

8

James Bopp Jr. & Josiah Neeley, How Not
To Reform Judicial Elections: Davis, White and the Future of Judicial Campaign Financing, 86 Denv. U. L. Rev. 195 (2008) ....21

Thomas M. Messner, The Price of Prop. 8, Heritage Foundation Backgrounder, No. 2328 (Oct. 22, 2009) ......21

Wash. Op. Att’y Gen. 378 (1938) ...............3

Wash. Op. Att’y Gen. 55-57 No. 274 (1956) .......3

Wash. Secretary of State,

Filing Initiatives and Referenda in

Washington State: 2009 Through

2012 (2009) .............................

26

William McGeveran, Mrs. McIntyre’s

Checkbook: Privacy Costs of Political

Contribution Disclosure, 6 U. Pa. J.

Const. L. 1 (2003) ........................

21

(xiv)

Petition
Petitioners respectfully request a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in Doe v. Reed, __ F.3d __, 2009 WL 3401297 (9th Cir. 2009).
Opinions Below
The appellate order reversing the district court (App. la) is reported at __ F.3d __, 2009 WL 3401297 (9th Cir. 2009). The district court’s order and opinion granting a preliminary injunction (App. 23a) is unreported.
Jurisdiction
The appellate court’s order (App. la) was flied on October 15, 2009. The appellate court’s opinion and judgment (App. 3a) was filed on October 22, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
Constitutional and Statutory Provisions Involved
The following are appended: First Amendment (App. 46a); Fourteenth Amendment (App. 46a); Washington Constitution, article II, § l(b); Revised Code of Washington ("RCW") § 29A.68.011 (App. 47a); RCW § 29A.72.200 (App. 48a); RCW § 29A.72.230 (App. 49a); RCW § 29A.72.240 (App. 50a); RCW § 29A.84.210 (App. 51a); RCW § 29A.84.230 (App. 51a); RCW § 29A.84.250 (App. 52a); RCW § 42.17.010 (App. 53a); RCW § 42.56.001 (App. 55a); RCW § 42.56.010 (App. 56a); and RCW § 42.56.070 (App. 56a).

Statement of the Case
On May 18, 2009, Washington Governor Christine Gregoire signed Engrossed Second Substitute Senate Bill 5688.1 (App. 29a.) It expands the rights, responsibilities, and obligations accorded stateregistered same-sex and senior domestic partners to be equivalent to those of married spouses. (App. 29a.) It is commonly called the "everything but marriage" domestic partnership bill. (App. 7a.)
In Washington, such bills may be put to a referendum with sufficient signatures. Wash. Const. art. II, § l(b). The petition forms used provide room for twenty signatures per page and require name, signature, home address, city, county, and (optional) email address. (App. 30a.)
Petitioner Protect Marriage Washington circulated a petition on Senate Bill 5688, designated Referendum 71. (App. 29a.) On July 25, Protect Marriage Washington submitted over 138,500 signatures to the Secretary of State ("Secretary"). (App. 20a.) Petitioners John Doe #1 and John Doe #2 signed the petition. The Secretary conducted an extensive canvass and verification of the petition signatures, determining that Referendum 71 qualified for the November 3 ballot.2
Washington’s statutory scheme has protections for petition signer confidentiality. Referendum petitions are not made public by the statute that
1 Additional facts are in the district court Opinion. (App. 23a.)
2 The signature verification process has been the subject of
lawsuits during the pendency of this action, but none of the state court actions involve the issues presented here.

regulates referenda and initiatives, see RCW § 29A.72.010 et seq., and proponents and opponents may have observers at the Secretary’s verification, but observers may not make any record of names, addresses, or other information on the petitions. RCW § 29A.72.230 (observers may "make no record of the names, addresses, or other information on the petitions .... ,,).3 Where the Secretary determines that the collected signatures are inadequate (and a court confirms, if appeal is taken), the petition is destroyed. RCW § 29A.72.200. So the names and other information of petition signers are divulged to the proponents of the referendum and the government for a very limited purpose--to ensure that there is sufficient public support for a referendum to justify placing it on the ballot and to allow public officials to verify the petition signatures.
For decades, and until just recently, public officials in Washington have repeatedly reaffirmed the confidentiality of petition signatures. Attorney general opinions from 1938 and 1956 stated that referendum petitions were not subject to public disclosure. Wash. Op. Att’y Gen. 378 (1938) (App. 61a); Wash. Op. Att’y Gen. 55-57 No. 274 (1956) (App. 63a). Even after the Public Records Act ("PRA") was enacted, RCW § 42.56.001 et seq., then-
3 Citizens need not see the signatures to appeal the verification process to the Court system. They need only express dissatisfaction. RCW § 29A.72.240 ("Any citizen dissatisfied with the determination of the secretary of state that an initiative or referendum petition contains or does not contain the requisite number of signatures of legal voters may.., apply to the superior court of Thurston County for a citation requiring the secretary of state to submit the petition to said court for examination .... ").

4
Secretary of State Kramer declared that the petitions were not subject to public release, see A. Ludlow Kramer, Letter to State Senator Hubert F. Donohue, July 13, 1973 (App. 66a), because "the release of these signatures [has] no legal value, but could have deep political ramifications to those signing." A. Ludlow Kramer, Secretary of State of Washington Official Statement, July 13, 1973. (App. 67a.)4
Although historically such petitions have not been considered public records, the current Secretary considers referendum petitions public records under the Public Records Act and thereby subject to public disclosure under RCW § 42.56.070. Absent the stay issued by this Court, the petitions would have been subject to release to requesting groups.5
Among those requesting a petition copy under the PRA are KnowThyNeighbor.org and WhoSigned.org, who have publicly stated their intent to place the names and addresses of those who signed Referendum 71 on the Internet (App. 31a), and to make the names searchable, with the goal of encouraging individuals to have "personal" and "uncomfortable" conversations with petition signers. (App. 31a.)
On July 28, 2009, Petitioners filed suit in the district court seeking declaratory and injunctive
4 The position that these are not public records was upheld by
state courts. See Neale v. Cheney, No. 48733 (Wash. Sup. Ct. Thurston County, Sept. 14, 1973).
5 Because of a temporary restraining order in a State case, the
Secretary of State, out of caution, did not release the records between the time the Ninth Circuit issued their Stay, and when this Court vacated that Stay.

relief to prevent public release of petition signers’ names and contact information.
In Count I of their complaint, Petitioners claimed that the PRA is unconstitutional, as applied to referendum petitions, because it violates the First Amendment free speech and association rights by not being narrowly tailored to a compelling state interest. (App. 24a.)
In Count II, Petitioners alleged that the PRA is unconstitutional as applied because "there is a reasonable probability that the signatories.., will be subjected to threats, harassment, and reprisals." (App. 24a.) This reasonable-probability test was established in Buckley v. Valeo, 424 U.S. 1 (1976), and applied in Brown v. Socialist Workers ’74 Campaign Committee, 459 U.S. 87 (1982), and subsequent cases.
The State Respondents ("State") support the release of petition signers’ names and contact information to facilitate these "conversations"--by disclosing petition signers’ names and contact information--in light of a growing amount of evidence, which the State acknowledges, that these are not"conversations" at all, but"confrontations." Petitioners submitted numerous declarations from Washington, Callfornia, and across the country illustrating the sort of confrontations that have already occurred to those whose names are publicly associated with Referendum 71 or other similar ballot measures. For instance, Larry Stickney, the campaign manager for Protect Marriage Washington, has received an email death threat telling him to avoid areas of Washington, and another email threatening to hurt his family. Stickney has taken these threats seriously,

making his family sleep in an interior living room for safety and reporting threats to the sheriff.
On September 10, the district court, after extensive briefing by the parties and intervenors, and a preliminary injunction hearing, issued a preliminary injunction preventing the release of petition signers’ names and contact information. (App. 23a.) The district court applied strict scrutiny and held that the Petitioners were likely to succeed on the merits and meet the other preliminary injunction elements. (App. 43a.)
On September 14, the State, followed later by intervenors, appealed to the Ninth Circuit, which consolidated their appeals.~ (App. 10a.) The State asked the Ninth Circuit to stay the preliminary injunction pending appeal, overturn the preliminary injunction, and expedite in light of the November 3 election. (App. 10a.) The Ninth Circuit expedited the appeal and held oral argument on October 14. (App. 11a.)
On October 15, the Ninth Circuit issued an Order staying the preliminary injunction, effective immediately, and providing no reasoning7 or stay of its Order (to allow for seeking a stay), both of which made it impossible to seek en banc review. (App. la; 10a.) Because of the Order’s immediate effectiveness, the State could have, at any time, released the names of the petition signers to the public, causing irreparable harm to the First Amendment rights to free political
6 Intervenor Washington Coalition for Open Government filed
a brief at the Ninth Circuit. Washington Families Standing Together did not file a separate brief.
7 The closest the Ninth Circuit came to any reasoning was its
statement that the District Court "relies on an incorrect legal standard." (App. 2a.)

speech, privacy, and association of the petition signers,s
Petitioners expeditiously sought a stay from this Court to prevent public release of petition signers’ names and contact information. A stay was granted by Justice Kennedy (October 19) and then the full Court (October 20), pending resolution of a timely filed petition for writ of certiorari. (App. 21a, 22a.)
On October 22, the Ninth Circuit issued its opinion, applying intermediate scrutiny and finding anti-fraud and informational interests sufficient to justify making petition signers public. (App. 20a.) It neither considered Count II (which the district court did not reach because it decided for Petitioners on Count I) nor remanded for consideration of Count II (and, in any event, there was no time to do so because the Ninth Circuit immediately stayed the district court’s preliminary injunction). (App. 10a.)
Reasons to Grant the Petition
I. The Decision Below Involves an Important Question of Law That Should Be Decided by this Court.
While this case involves the reversal of the grant of a preliminary injunction,9 at its heart lies the First Amendment free speech and association issue of whether, when the sovereign people seek to put a
s The Secretary did not publicly discloses petition signers’
names and contact information because of state court litigation.
9 This case also provides an opportunity to address the application of the preliminary-injunction standards in Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), in a speech-protective manner to the First Amendment context. See infra at 29-31.

referendum on the ballot, they may be constitutionally compelled to publicly disclose identifying information about themselves and their support for placing the measure on the ballot, or whether any State interests are satisfied by private disclosure.
The issue is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation. See, e.g., http://knowthyneighbor.org/ (searchable databases with petition-signer information on marriage issues in Arkansas, Florida, Massachusetts, and Oregon). This petition process itself is widespread in the United States. Twenty-seven states have either an initiative process, a referendum process, or both.
Initiative and Referendum Institute, I & R Factsheet, http ://www.iandrinstitute.org/New% 20 IRI% 20Web sit e%20Info/Drop%20Down%20Boxes/Quick%20Facts/ Handout%20-%20What%20is%20IR.pdf. The number of signatures required to put a referendum petition on a ballot differs from state to state, and can require the signatures of a large number of individuals. For example, Washington requires that a referendum petition contain signatures equal to or exceeding four percent of the votes cast for governor at the previous gubernatorial election. Wash. Const., art. II, § l(b). In contrast, in Idaho a referendum petition must contain the signatures of six percent of the qualified electors at the time of the last general election. Idaho Code Ann. § 34-1805 (2009).
This is an important question of law that has not been, but should be, decided by this Court.

A. Petitioners Had Likely Success on the Merits.
As should happen in First Amendment cases, the district court’s grant of a preliminary injunction and the appellate court’s reversal turned on their holdings as to the likelihood of success on the merits. The other preliminary-injunction elements (see infra) essentially follow the finding on this element.
1. Public Disclosure Here Implicates First Amendment Privacy of Speech, Association, and Belief and Constitutes Compelled Speech.
As we are reminded in FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (Roberts, C.J., joined by Alito, J.) ("WRTL-IF),1° it is vital to begin with the First "Amendment itself: ’Congress shall make no law ¯ . . abridging the freedom of speech.’ The Framers’ actual words put these cases in proper perspective." Id. at 482 (quoting U.S. Const. amend. I).
The First Amendment includes a right to speak and associate, along with a right of privacy in one’s speech, association, and belief. See Buckley, 424 U.S. at 64 ("compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment"), id. at 66 ("the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations"), 75 ("strict standard of scrutiny" required "for the right of associational privacy").
In McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), and Buckley v. American Constitutional
lo This opinion ("WRTL-Ir’) states the holding. Marks v. United States, 430 U.S. 188, 193 (1977).

10
Law Foundation, 525 U.S. 182 (1999) ("Buckley-IF), this Court addressed compelled public disclosure in violation of First Amendment privacy. Two types of public disclosure were at issue in each case: (1) public disclosure of one’s identity and (2) public disclosure about one’s belief that a measure should be defeated or put on the ballot. In McIntyre, Mrs. McIntyre was not required by the government to publicly disclose her belief that a referendum should be defeated (a belief that she disclosed by distributing handbills at public meetings), but she objected to public disclosure of her identity on her handbills, if she did so. 514 U.S. at 33738. In Buckley-II, paid petition circulators were compelled to both solicit petition signers and publicly identify themselves in order to qualify a measure for the ballot. 525 U.S. at 186.
The present case is more like Buckley-II, where petition signers are subject to compelled public disclosure of both their identity and belief. Petitioners object to the public disclosure of both their identity and their belief that Referendum 71 should be placed on the ballot. They claim their First Amendment privacy right against public disclosure of their speech, association, and belief.11
While First Amendment privacy protection against compelled public disclosure of identity and belief does
11 Absent a compelling interest, government may not compel speech. See Wooley v. Maynard, 430 U.S. 705 (1977) (display of state motto); Miami Herald Publishing Comp. v. Tornillo, 418 U.S. 241 (1974) (newspaper publication of candidate reply); Bates v. City of Little Rock, 361 U.S. 516 (1960) (disclosure of membership lists for tax purposes absent showing group is subject to licensing or tax requirement); West Virginia State Board of Educ. v. Barnette, 319 U.S. 624 (1943) (schoolchildren flag salute).

not depend on the reason why one asserts the protection, this Court has identified reasons for asserting the protection. This Court said that the desire not to be compelled to speak by public disclosure while participating in the political process "may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible." McIntyre, 514 U.S. at 341-42. These reasons inform the following analysis.
Viewing Washington’s referendum qualification process from the perspective of compelled speech, those engaging their right to associate and speak for the purpose of putting a referendum on the ballot are faced with three levels of compelled speech.
First, Washington compelled 120,577 people12 to speak and associate by signing petitions to qualify a referendum. There are less burdensome means for qualifying referenda, but the State’s system is not challenged here. This signing of petition sheets is a private disclosure of identity and belief, not a public one. Just as the Framers who published the Federalist Papers without publicly disclosing themselves had to privately associate with a printer and colleagues for the purpose of printing, binding, and distributing their pamphlets, those seeking to qualify a referendum associate privately with others. Petition signers disclose their identity to a petition circulator, who is
12 This is the number of individuals equal to four percent of those who voted for governor in Washington’s last gubernatorial election, and is the number required by the Washington Constitution for a referendum to qualify for placement on the ballot. Wash. Const. art II, § l(b). Petitioners submitted an excess number of signatures to ensure they obtained a sufficient number of signatures to appear on the ballot.

12
acting as the agent of the referendum proponents. Petition signers also disclose their identity to potentially nineteen other persons signing petition sheets containing twenty names, as they associate together to get the referendum on the ballot¯ And petition signers disclose their identity to the referendum proponents who collect and review the petition sheets before submitting them to the Secretary. Regarding McIntyre’s "desire to preserve as much of one’s privacy as possible," 514 U.S. at 342, this is a minimal, private disclosure necessary to advance the common cause of qualifying the referendum for the ballot. Regarding McIntyre’s "fear of economic or official retaliation [or]
¯ . . concern about social ostracism," id. at 341, this private disclosure poses little risk because the proponents, the circulator, and the other persons signing on the same petition sheet share the common cause of getting the referendum on the ballot.
Second, the petition signers and other members of the private association seeking to place the referendum on the ballot are compelled to speak when they submit the signatures to the Secretary for canvass and verification. This is no longer totally private speech and association, but it is "public" only in the sense that it is revealed to a public official (the Secretary) and those directly involved in the canvass and verification. It is not disclosure of identity and belief to the general public. Here also there is little concern about giving up privacy or of social ostracism or retaliation because of the statutory protections, such as the fact that a government official retains the compelled information, observers of the canvass and verification may not write down any of the disclosed information, review of verification (if requested) is done confidentially by a court, and if the referendum is not qualified then the

13
petition sheets are destroyed. See supra 2-4. Compelling this minimal disclosure to the government is justified by the interests the State has in not bearing the expense of putting issues on the ballot that have little public interest and in not requiring others to participate in this election absent such support.
Third, the petition signers are compelled to speak to the public, disclosing their identity and beliefs, if the petitions are released to the public. Suddenly one’s privacy of speech and association vanishes and the concerns about social ostracism and retaliation rush forward. The question addressed in this case is whether the government can justify this level of compelled speech.
Important to the analysis is the distinction between private disclosure to the government and public disclosure. This distinction is illustrated inAFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), a case involving an FEC investigation of campaign-finance complaints against the AFL-CIO, the Democratic National Committee ("DNC"), and others. The FEC compiled numerous internal documents detailing information about volunteers, members, employees, activities, and political strategy that it then planned to make public pursuant to its rule requiring public release of investigation materials in closed cases. The union and DNC "assert[ed] that releasing the names of hundreds of volunteers, members, and employees w[ould] make it more difficult for the organizations to recruit future personnel." Id. at 176.13 The court’s analysis empha-
13 In addition to this future chill, the court noted that disclosure of strategies to opponents would "frustrate the organizations’ ability to pursue their political goals effectively." AFL-CIO, 333 F.3d at 177.

14
sized the private-public distinction: "[E]ven when requiring disclosure of political speech activities to a government agency may be necessary to facilitate law enforcement functions, we have held that ’[c]ompelled public disclosure presents a separate first amendment issue’ that requires a separate justification." Id. at 176 (quoting Block v. Meese, 793 F.2d 1303, 1315 (D.C. Cir. 1986) (emphasis added by AFL-CIO). The Court held that the public-disclosure rule violated the First Amendment. The transferrable concept is that private (to the government) disclosure sufficed for government enforcement purposes and public disclosure was unjustifiable and in violation of First Amendment speech and association rights. Petitioners assert that any interests that Washington has may be met by private disclosure to the government. See infra.
Where a government authority is charged with overseeing core political activity, its activity must be carefully scrutinized. This was affirmed in FEC v. Machinists Non-Partisan Political League, 655 F.2d 380 (D.C. Cir. 1981), which noted that the creation of such an authority as the FEC "raises weighty constitutional objections, and its authority to exercise control over an area where ’uninhibited, robust, and wide open’ activity is constitutionally protected was approved by the Supreme Court only after being meticulously scrutinized and substantially restricted." Id. at 387 (citation omitted). In the present case, where the Secretary is charged with regulating core political activity by the people in their sovereign capacity, the Secretary’s policy of public disclosure policy bears specially strict scrutiny and special justification.
Compelling public disclosure of one’s speech, association, and belief requires special justification because

15
"[m]erely to summon a witness and compel him, against his will, to disclose the nature of his past expressions and associations is a measure of government interference .... "Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). In the present case, compelled public disclosure likewise forces a petition signer to disclose "past expressions and associations." Id. The fact that the present public disclosure is marginally less direct than being summoned as a witness matters not because "[g]overnment action may be subject to constitutional challenge even though it only has an
indirect effect on the exercise of First Amendment rights." Laird v. Tatum, 408 U.S. 1, 12-13 (1972). "The fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect ’discouragements’ undoubtedly have the same coercive effect upon the exercise of first amendment rights as imprisonment, fines, injunctions, or taxes." American Communications Ass’n, C.I.O. v. Douds, 339 U.S. 382, 402 (1950). "It is axiomatic that when the actions of government officials so directly affect citizens’ First Amendment rights, the officials have a duty to take the least intrusive measures necessary to perform their assigned functions." White v. Lee, 227 F.3d 1214, 1237 (9th Cir. 2000). "In making their First Amendment claim, Plaintiffs were obligated to prove only that the officials’ actions would have chilled or silenced ’a person of ordinary firmness from future First Amendment activities,’ not that their speech and petitioning were ’actually inhibited or suppressed."’ Id. at 1241
(citation omitted).
From the foregoing, it is clear that compelled public disclosure of the identity and belief of petition signers

burdens speech, association, and belief that the First Amendment was meant to protect. See First Nat’l Bank
of Boston v. Bellotti, 435 U.S. 765, 776 (1978). This compelled speech is no mere ministerial, procedural matter dealing with the administration of elections. It is core political speech highly protected by the First Amendment.
This is borne out by this Court’s referendum juris-
prudence. See generally Buckley-II, 525 U.S. at 182; McIntyre, 514 U.S. at 345-46; Meyer v. Grant, 486 U.S. at 422, 425 (1988); Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) ("CARC’); Bellotti, 435 U.S. at 765. In each case, the law implicated protected expression. See Buckley-II, 525 U.S. at 186-87 ("circulation is ’core political speech"’); McIntyre, 514 U.S. at 345-46 (not election mechanics but regulates speech); Meyer, 486 U.S. at 421 ("circulation... involves both the expression of a desire for political change and a discussion of the merits of the proposed change"); CARC, 454 U.S. at 294-95 ("practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process."); Bellotti, 435 U.S. at 785-86 (corporate right to engage in political speech regarding initiative). See also Canyon Ferry Road Baptist Church of East Helena,
Inc. v. Unsworth, 556 F.3d 1021, 1030-31 (9th Cir. 2009) (compelled disclosure is protected speech in
ballot-initiative context); Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1101 (9th Cir. 2003) (same) ("CPLC-F); Clean-Up ’84 v. Heinrich, 759 F.2d 1511, 1513 (11th Cir. 1985) (circulation is protected speech); Hegarty v. Tortolano, No. Civ.A. 04-11668-RWZ, 2006 WL 721543, *2 (D. Mass. Mar. 17, 2006) ("signing a petition ... constitutes speech").

2. Strict Scrutiny Was Required.
In considering applicable scrutiny, the district court recognized that "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Buckley-II, 525 U.S. at 187 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). It noted that "government may infringe on an individual’s rights to free speech but only to the extent that such infringement is narrowly tailored to serve a compelling government interest." (App. 38a (citing McIntyre, 514 U.S. at 346-47).) This agrees with this Court’s holding that when a law restricts "core political speech" or "imposes ’severe burdens’ on speech or association," the law must be narrowly tailored to serve a compelling government interest. See Buckley-II, 525 U.S. at 206-09 (Thomas, J., concurring) (laws implicating "core political speech" or imposing substantial burdens on First Amendment rights are always subject to strict scrutiny). See also Buckley-II, 525 U.S. at 192 n. 12 (strict scrutiny required); Buckley, 424 U.S. at 64 ("[C]ompelled disclosure cannot be justified by a mere showing of some legitimate government interest. ¯.. [It] must survive exacting scrutiny .... ").
"Exacting scrutiny," as used in Buckley, is "strict scrutiny." Buckley required "exacting scrutiny" of compelled disclosure provisions, id. at 64, which it called the "strict test," id. at 66, and by which it meant "strict scrutiny." See WRTL-II, 551 U.S. 449, n.7 (2007) (Buckley’s use of "exacting scrutiny," 424 U.S. at 44, was "strict scrutiny"); see also McIntyre, 514 U.S. at 347 (citing Bellotti, 435 U.S. at 786) (equating "exacting" scrutiny with "strict" scrutiny). In Davis v. FEC, 128 S. Ct. 2759, 2774-75 (2008), this Court said that

18
"exacting scrutiny" requires that "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights." Here, given the serious harm to free speech and association from public disclosure, the scrutiny must be strict. Moreover, "there must be "a ’relevant correlation’ or ’substantial relation’ between the governmental interest and the information required to be disclosed," id. (citation omitted), which nexus simply does not exist here, especially given the anemic nature of asserted interests. See infra.
That the cost of disclosure is high has become more clear since Buckley was decided. See 424 U.S. at 67, 72, 83 (concluding that "sunlight is said to be the best of disinfectants" without the benefit of any research as to the effect of disclosure on First Amendment rights). Subsequent courts and disclosure advocates have seized upon this language and often fail to ask whether disclosure is narrowly tailored to serve a compelling government interest; they often treat disclosure, or often "transparency," as a meaningful end in itself and ignore the substantial First Amendment burdens.14 Time, experience, and studies have revealed the true costs inflicted by disclosure and suggest that it may be time reemphasize the importance of applying strict scrutiny to each application of a disclosure statute.
In 2007, the Institute for Justice commissioned one of the first studies to analyze the effects of disclosure
14 See, e.g., David Ammons, Who Signs R-71? Foes May Post it Online, Wash. Sec’y of State Blogs, June 2, 2009) (available at http://www.blogs.secstate.wa.gov/FromOurCorner/index.php/20 09/06/who-signs-r-7 l-foes-may-post-it-online/)(discussing State’s commitment to "transparency"). David Ammons is the Communications Director for the Secretary.

19
on freedoms of speech, association, and belief. See Dick M. Carpenter II, Disclosure Costs: Unintended Consequences of Campaign Finance Reform (2007) (available at http://www.ij.org/publications/other/disclosurecosts.html) ("Disclosure Costs"). While the study involved campaign finance disclosure provisions, its findings illustrate the disconnect between public perception and actual evidence regarding disclosure.
Carpenter’s study is important because it probed respondents beyond their general sentiments about disclosure statutes. Thus, consistent with prior surveys, Carpenter reported that nearly 80% of respondents favored the disclosure of the identities of individuals contributing to a ballot measure campaign.15 Id. at 7. However, unlike prior surveys, Carpenter went a step further and probed respondents about the specifics of disclosure statutes. For example, when the issue was personalized, support waned significantly. Id. Only 40% felt that their own name and address should be included and fewer still (24%) felt that the name of their employer should ever be required. Id. And nearly 60% of respondents indicated that they would think twice before contributing if it meant that their name and address would be released to the public. Id. Even those who strongly supported disclosure indicated that
1~ Respondents were asked to state how they felt about the following statement. "The government should require the identities of those who contribute to ballot issue campaigns to be available to the public." The results are consistent with the findings of David Binder, relied upon by the court in California Pro-Life Council, Inc. v. Randolph, 507 F. 3d 1172 (9th Cir. 2007), where 71% of respondents felt that it was important to know the identities of individuals that contributed to a ballot measure committee. Id. at 1179.

2O
they would be less likely to contribute if their own personal information would be released. Id.
Among reasons for not wanting personal information released, respondents cited a desire to remain anonymous, fear of retaliation (personal and economic), and that public disclosure would take away their right to a secret ballot. Id. Carpenter also explored how the public uses the publicly disclosed information and concluded:
The vast majority of respondents possessed no idea where to access lists of contributors and never actively seek out such information before they vote. At best, some learn of contributors through passive information sources, such as traditional media, but even then only a minority of survey participants could identify specific funders of campaigns related to the ballot issue foremost in their mind .... Such results hardly point to a more informed electorate as a result of mandatory disclosure.
Id. at 13. See also Dick M. Carpenter II, Mandatory Disclosure for Ballot-Initiative Campaigns, The Independent Review, 578 (Spring 2009) (available at http ://www. independent, org/p d f/tir/tir_ 13_0 4_ 6_carpenter.pdf) (exploring further how the public fails to use disclosure reports). Thus, disclosure provisions do little to address the problem of voter ignorance described in Buckley, 424 U.S. at 68, while imposing substantial burdens on the First Amendment rights to privacy in speech, association, and belief.
Supplementing Carpenter’s studies are real-world examples of harms resulting from disclosure provisions

21
during recent elections.16 See, e.g., Brief of Amicus Curiae Alliance Defense Fund in Support of Appellant at 16, Citizens United v. FEC, No. 08-205 (U.S. 2009) (discussing reprisals against donors supporting California’s Proposition 8 in 2008); Thomas M. Messner, The Price of Prop 8, Heritage Foundation Backgrounder, No. 2328 (Oct. 22, 2009) (available at http://www. heritage.org/Research/Family/bg2328.cfm) (same).
Petitioners here fear that similar reprisals will be directed at petition signers, especially in light of the threats and harassment already directed at individuals connected to the Referendum 71 campaign. Supra 5.
Technology has also dramatically altered the disclosure environment considered by this Court in Buckley. In theory, government records under the PRA were "public" in 1976, but access meant a trip to a governmental office during normal business hours. (App. 61a (Initiative 276 § 28 1972)). To search through records an individual had to manually flip
16 Evidence of social costs associated with compelled public disclosure was part of the record in McConnell v. FEC, 251 F. Supp. 2d 176, 227-229 (D.D.C. 2003) (per curiam). Evidence ranged from numerous contributions at just below the disclosure trigger amount, to vandalism after public disclosure, to noncontribution because of concerns about a group’s ability to retain confidentiality, to concerns about employers, neighbors, other business entities, and others knowing of support for causes not popular everywhere and the results of such disclosure. Id.; William McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure, 6 U. Pa. J. Const. L. 1 (2003); James Bopp, Jr. & Josiah Neeley, How Not to Reform Judicial Elections: Davis, White, and the Future of Judicial Campaign Financing, 86 Denv. U. L. Rev. 195, 218-20 (2008) (discussing disclosure burdens).

22
through records stuffed into a filing cabinet.17 And it was often cost-prohibitive for an individual to obtain copies of the records. See Brian Zylstra, The disclosure history of petition sheets, Wash. Sec’y of State Blogs, Sept. 17, 2009 (available at http://blogs.secstate.wa.gov /FromOurCorner/index.php/2009/09/the-disclosurehistory-of-petition-sheets/).
Today, records are kept in computer databases. Copies cost a nominal fee, are provided in electronic format, and can be uploaded to the Internet in searchable databases almost instantly. See, e.g., http:// knowthyneighbor.org (stating Washington is "Up Next"). Once on the internet, the information can be combined with publicly available phone numbers and maps. See, e.g., Prop. 8 Maps, http://www.eightmaps.
com.
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. For example, the Federal Rules of Civil Procedure now require litigants to redact certain personal identifying information because of identity theft concerns. Fed. R. Civ. P. 5.2. The rule goes further, allowing parties to move, for good cause, to redact additional information and limit or prohibit non-parties’ electronic access to filed documents. Id.
However, the concerns here go far beyond identity theft. An employer no longer has to visit a government office building during normal business hours to learn
17 For example, Protect Marriage Washington submitted over 9,000 petitions sheets containing the names and other personal information of 138,000 individuals. (App. 7a.)

who among her employees supported a particular referendum--she can do it from the comfort of her office. The same can be said about curious customers, suppliers, or neighbors. Furthermore, recent elections demonstrate how individuals use disclosure reports to harass and intimidate individuals simply exercising their First Amendment right to engage in the political process. As Kim Alexander, president of the California Voter Foundation, recently said, "This is not really the intention of voter disclosure laws. But that’s the thing about technology. You don’t really know where it is going to take you." Brad Stone, Prop 8 Donor Web Site Shows Disclosure Law is 2-Edged Sword, N.Y. Times (Feb. 8, 2009).
Because of these disclosure burdens on free speech, expression, and belief, "exacting scrutiny" is strict scrutiny or its equivalent should be applied. Under strict scrutiny, Washington bears the burden of proving that the PRA, as applied to public disclosure of petition signers’ identity and beliefs, is narrowly tailored to a compelling interest. See WRTL-II, 551 U.S. at 464-65.
3. Asserted Interests Were Not Compelling.
Although Buckley involved candidates, contributions, and expenditures, none of which apply here, it provides guidance on possible interests:
First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office [("Information Interest")] .... Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contribu-

24

tions and expenditures to the light of publicity

[("Corruption Interest")].

Third,

recordkeeping, reporting, and disclosure requirements are an essential means of gather-

ing the data necessary to detect violations of the

contribution limits [("Enforcement Interest")]."

Id. at 66-68. Buckley’s Information Interest is focused

on "campaign money," not involved in petition signing. And the Corruption and Enforcement interests are unique to candidate elections and cannot justify public

disclosure of petition signers. See Bellotti, 435 U.S. at

789-90; Canyon Ferry, 556 F.3d at 1031-32; CPLC-I,

328 F.3d at 1105 n.23.

a. No Information Interest Is Compelling

The State asserts an information interest in publicizing names and contact information of petition signers. This interest is not compelling.

First, the Information Interest is not absolute. It is designed to disclose who has demonstrated an interest in a referendum through contributions and expenditures. See Canyon Ferry, 556 F.3d at 1032-33. It is not designed to advise the public who might generally favor or oppose referenda (even if merely signing a petition reliably indicated that, see infra). An information interest that broad could justify requiring petition signers to disclose religious affiliation or income because such data could play a role in the voter’s decision-making process. That would be extremely burdensome and chilling.

Second, the interest is compelling only if the information conveyed to the voters is significant. Marginal information gains cannot justify the substantial burdens imposed by compelled disclosure of the identi-

25
ties of 138,000 individuals,is This is especially important in the petition context where signatures may not reveal support or opposition because signers state only that an issue is too important to be left to legislatures. (App.42a.) Thus, disclosing petition signers may spread misinformation about who supports or opposes referenda. So the State lacks a compelling information interest in publicly disclosing petition signers.
b. No Anti-Fraud Interest Is Compelling.
The State asserts an anti-fraud interest that must also fail. First, fraud is a lesser concern during signature gathering than while voting. Meyer, 486 U.S. at 427-28. This is due to the justification for petition requirements--ensuring that issues have sufficient support to warrant the cost and effort of placing referenda on the ballot. At the petition stage, the question is merely whether the people should have the final say. Proponents failing to collect enough signatures would likely see their referendum fail at the polls.19 This provides little incentive for fraud during petition circulation, especially given the potentially severe criminal penalties. RCW §§ 29A.84.210; 29A.84.230; 29A.84.250. Second, prosecution for fraud in petitions is rare. Washington Initiatives Now v. Rippie, 213 F.3d 1132, 1139 (9th Cir. 2000) (two in seven years). More importantly, such fraud was detected with traditional methods (signature compari-
is See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664
(1994) (remedy must alleviate problem in "direct and material way.").
19 In Washington, a referendum petition must collect signa-
tures equal to or exceeding four percent of the signatures cast for governor at the previous gubernatorial election. Wash. Const., art. II, § l(b).

son), public disclosure playing no part. Id. Third, although petitions have been released in recent years, the State has produced no fraudulent signature detected as a result of such public release.2° This interest is not compelling.
4. Public Disclosure Is Not Narrowly Tailored And There Are Less-Restrictive Means.
Even if the asserted interests were compelling, public disclosure of petition signers is not narrowly tailored, and there are less-restrictive means of advancing any interest, making compelled disclosure of petition signers’ identity and beliefs unconstitutional.
a. Public Disclosure Is Not Narrowly Tailored to Any Information Interest.
Any information interest is more directly served through tailored regulations. There is already adequate public information about proponents and financial supporters. See generally RCW § 42.17.010 (campaign finance act). See also Washington Secretary of State, Filing Initiatives and Referenda in Washington State: 2009 Through 2012, at 6 (2009) (first step to start referendum is registration with campaign finance commission). Washington’s long history of not publicly disclosing petition signers, see supra at 2-4, reveals that this more narrowly tailored approach adequately served any information (and anti-fraud) interest.
20 Even if the State were able to produce such evidence, a single fraudulent signature detected through the public release of a referendum petition is unlikely to justify the burdens that such disclosure represents. See Turner Broad. Sys., 512 U.S. at 664 (remedy must alleviate problem in "direct and material way") (emphasis added).

27
Even as to contributions, states may not require disclosure of contributors of de minimis amounts to ballot measure campaigns. Canyon Ferry, 556 F.3d at 1034. The interest in compelling public disclosure of petition signers’ identity and beliefs is less weighty, so states cannot compel petition disclosure of petition signers’ identity and beliefs under the First Amendment. Id. As Judge Noonan asked in concurrence, id. at 1036, "How do the names of small contributors affect anyone else’s vote? Does any voter exclaim, ’Hank Jones gave $76 to this cause. I must be against it!"’ Here one could ask, "How the names of petition signers affect anyone else’s vote? Does any voter exclaim, "Hank Jones signed the petition. I must be against it!"
b. Public Disclosure Is Not Narrowly Tailored to Any Anti-Fraud Interest.
Any anti-fraud interest is met by narrowly-tailored, less-restrictive means. First, there is limited, private disclosure to the government for signature verification. Only the Secretary has authority to canvass and verify petition signatures.21 RCW § 29A.72.230. This serves the State’s interest in ensuring that sufficient voters support the referendum. Since there is no mechanism allowing individual challenges to petition signatures on the referendum petitions, the assertion that individuals will check fraud rings hollow. The integrity of the election process is protected by the Secretary who verifies signatures, by observers who ensure proper procedures, and by potential subsequent judicial review. See supra at 2-3. The fact that public disclosure occurs under the PRA, not the elections code, illustrates the weakness of the asserted interest. If the goal
See supra n. 3.

28
were to allow for public assistance in the signature verification process, one would expect the elections code to mandate public disclosure and provide procedures for submitting contested names. And while Washington has released petitions, it cites no instance where release yielded detection of a fraudulent signature. See Washington Initiatives Now, 213 F.3d at 1139.
Second, if Washington truly believes that its Secretary cannot be trusted to verify signatures, that its scheme of monitors and court review is inadequate to provide a check on the Secretary, and that citizens are needed for an independent canvass and verification, it could create some special mechanism for doing so while protecting privacy so as not to chill speech and association. It could randomly select citizen panels, along the lines of a grand jury, with members bound to secrecy in doing an independent canvass and verification.
Third, there are criminal penalties. The State has failed to demonstrate that the criminal penalties, see RCW §§ 29A.84.210; 29A.84.230; 29A.84.250, are inadequate to deter fraud. See WRTL-II, 551 U.S. at 479 (rejecting "prophylaxis-upon-prophylaxis approach"); Buckley, 424 U.So at 56 ("There is no indication that the substantial criminal penalties for violating [the Act] combined with the political repercussion of such violations will be insufficient to police [the Act]."). The fact that fraud prosecutions have been rare, Washington Initiatives Now, 213 F.3d at 1139, indicates that penalties are adequately serving any anti-fraud interest.
The State failed to prove that public disclosure of petition signers’ identity and beliefs is narrowly

29
tailored to an anti-fraud interest, and it has failed to show that less-restrictive means are inadequate.
In sum, the State failed to meet its burden of proving that public disclosure of petition signers is narrowly tailored to any compelling interest. Consequently, Petitioners had likely success on the merits of their claim.
B. Petitioners Met the Other Elements for a Preliminary Injunction.
In First Amendment cases, meeting the other preliminary-injunction elements essentially follows the likelihood of success on the merits. Where it is likely that one will succeed in proving that privacy of petition signers’ speech, association, and belief is protected by the First Amendment, there is irreparable harm if that privacy is violated by compelled speech, the government has no interest in violating constitutional rights, and enforcing constitutional liberties is clearly in the public interests. These elements are considered briefly below.
1. Speech-Protective Standards Control.
Because this is a First Amendment preliminaryinjunction case, it provides this Court the opportunity to apply its standards set out in Winter, 129 S. Ct. 365, to the free speech, association, and belief context. Where these are involved, preliminary injunction standards must be speech- and association-protective. While fuller briefing must await merits briefing, here is a brief list of protections that should be, but are not regularly, afforded in First Amendment cases.
First, preliminary injunction standards involving expressive association must reflect our constitutional principles that "[i]n a republic . the people are

3O
sovereign," Buckley, 424 U.S. at 14, and there is a ’"profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,"’ id. (citation omitted). So the First Amendment’s presumption of"no law," i.e., "freedom of speech" and expressive association, must be the constitutional default and the overriding presumption where expressive association is at issue.
Second, this presumption means that First Amendment protections must be incorporated into the preliminary injunction standards, not limited to merits consideration. So if exacting or strict scrutiny applies, as here, the preliminary-injunction burden shifts to the state to prove the elements of strict scrutiny and show the inadequacy of proffered less-restrictive means. See Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 428 (2006).
Third, because exacting or strict scrutiny is the antithesis of deference or a presumption of constitutionality, no deference or favorable presumption must be afforded the regulation of speech in preliminary injunction balancing.
Fourth, "[w]here the First Amendment is implicated, the tie goes to the speaker, not the censor." WRTL-II, 551 U.S. at 474.
Fifth, state officials have no per se interest in regulating expressive association. Their first loyalty should be to the First Amendment. Beyond that, their only interest is in enforcing the laws as they exist, with any interest in the particular content of those laws being beyond their interest in the preliminary injunction balancing of harms.

31
Sixth, the government "must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (internal citation omitted).22 Against this need for proof of real harm if a law of questionable constitutionality is preliminarily enjoined is the paramount fact that the protection of First Amendment rights is very much in the public’s interest.
Seventh, the status quo to be preserved in a First Amendment case must be the freedom of speech before the governmental restriction. If the protected status quo is the restriction, government may simultaneously violate free speech and association and shield itself from preliminary injunctions.
2. Plaintiffs Had Irreparable Harm.
If the identity and beliefs of petition signers had been publicly disclosed, their First Amendment right to privacy in speech, association, and belief would have been immediately and irreparably harmed because such compelled disclosure was not narrowly tailored to a compelling interest. And if Plaintiffs had not received judicial protection, they would have suffered the irreparable injury of a reasonable probability of
22 See also Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 803 n. 22 (1984) ("[This Court] may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgement of expressive activity."). FEC v. NRA, 254 F.3d 173, 191 (D.C. Cir. 2001) (same); see also id. at 192 (FEC may not speculate that NRA received more because it did not record contributions of under $500, citing Turner, 512 U.S. at 664).

threats, harassment, and reprisals, which would also have chilled future participation in core political activity.
"Deprivations of speech rights presumptively constitute irreparable harm for purposes of a preliminary injunction: ’The loss of First Amendment freedoms, even for minimal periods of time, constitute[s] irreparable injury."’ Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Yahoo!, Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 F.3d 1199, 1234 (9th Cir. 2006) (quoting Elrod); Brown v. Cal. Dept. of Transportation, 32 F.3d 1217, 1226 (9th Cir. 2003) (noting that a risk of irreparable injury may be presumed when Plaintiffs state a colorable First Amendment claim); Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 301 (D.C. Cir. 2006) ("Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.").
3. Balancing Equities Favored Petitioners.
In the Ninth Circuit, "[T]he fact that a case raises serious First Amendment questions compels a finding that there exists the potential for irreparable injury, or that at the very least the balance of hardships tips sharply in [Appellants’] favor." Sammartano v. First Judicial District Court, in and for County of Carson City, 303 F.3d 959, 973 (9th Cir. 2002) (internal quotations and citations omitted). This is true even where "the merits of the constitutional claim were not clearly established at this early stage in the litigation," id. (internal quotations and citations omitted), although they were clearly established in the present

case. This speech- and association-protective standard should govern First Amendment cases.
Here, once the names of the petition signers were released to groups indicating they would place petition signers’ names on the Internet, would contact signers, and would encourage harassment of signers, the First Amendment rights of those who signed the Referendum 71 petition would have been violated. Considering the anemic nature of the interests asserted in this context, a balance of harms favored Petitioners in this First Amendment context.
4. An Injunction Served the Public Interest.
The Ninth Circuit has recognized that ’"it is always in the public interest to prevent the violation of a party’s constitutional rights."’ Sammartano, 303 F.3d at 974 (quoting G & V Lounge, Inc. v. Mich. Liquor
Control Com’n, 23 F.3d 1071, 1079 (6th Cir.1994)). While the public interest in protecting First Amendment liberties has, on occasion, been overcome by "a strong showing of other competing public interests,"
Sammartano, 303 F.3d at 974, there must be some showing of an actual, strong competing interest in order for a court to find that it is in the public interest to deny injunctive relief. Id. (noting lack of plausible justification).
In the present case, there was no interest--strong or otherwise--to justify the challenged public disclosure of petition signers’ identity and beliefs. It is in the public interest that First Amendment freedoms be preserved.

34
Conclusion
This case may be decided on very narrow grounds. The State asserts anti-fraud and information interests, but these are weak (if even existent) in the context of publicly disclosing petition signers’ identity and beliefs. This case involves a referendum, so there is no corruption concern. It involves no contributions or expenditures, so there is no money to follow. It is not even about whether a referendum should be passed, only whether it should be on the ballot (and some may support it being on the ballot without stating a position on the ultimate issue). Any state interest may be accommodated by private disclosure (to government authorities) instead of public disclosure. Consequently, the First Amendment right to privacy in speech, association, and belief protects against the public disclosure of petition signers’ identity and beliefs. For the reasons stated, this Court should grant this petition for a writ of certiorari.
Respectfully submitted,
James Bopp, Jr., Counsel of Record
Richard E. Coleson Sarah E. Troupis Scott F. Bieniek
BOPP, COLESON & BOSTROM
1 South 6th Street Terre Haute, IN 47807 812/232-2434 812/235-3685 (facsimile)