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Doe v. Reed

October 22, 2009

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.
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,
AND 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.



Appeals from the United States District Court for the Western District of Washington DC Nos. CV 09-5456 BHS, CV 09-5456 BHS & CV 09-5456 BHS Benjamin H. Settle, District Judge, Presiding.

The opinion of the court was delivered by: Tashima, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 14, 2009 -- Pasadena, California

Before: Harry Pregerson, A. Wallace Tashima, and N. Randy Smith, Circuit Judges.

Opinion by Judge Tashima

OPINION

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 would expand the rights and responsibilities accorded state-registered 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 referendum process. Wash. Const., art. II, §§ 1 & 1(b).*fn1 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 ยง 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 ...


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