August 15, 2010
Trial Court Issues TRO in Second Round of Doe v. Reed
Judge Benjamin Settle (W.D. Wa.) last week issued a temporary restraining order to prevent the Washington Secretary of State from releasing names and addresses of supporters of R-71, the referendum measure to overturn Washington's domestic partnership law, until the court can schedule a hearing and rule on the merits. Washington's domestic partnership law extends the benefits of marriage to state-registered domestic partners, including same-sex domestic partners.
The case is a continuation of the Supreme Court case Doe v. Reed issued earlier this summer. In that case, the R-71 petition sponsor and certain signers argued that the Washington Public Records Act, which compelled disclosure of signers' names and addresses, violated the First Amendment for all referendum petitions (and not just the R-71 petition). Plaintiffs alleged that petition signers would be subject to threats and harassment from supporters of Washington's domestic partnership law if their names and address were released. The Supreme Court treated the claim as a facial challenge and rejected it. The Court held that Washington had a sufficient interest in preserving the integrity of the electoral process, and that disclosure was sufficiently related to that interest because it complemented the Secretary's own signature verification process and thus helped to root out fraud and mistakes. The Washington PRA thus satisfied the "exacting scrutiny" standard, requiring a substantial relation between the disclosure requirement and a sufficiently important government interest, in general.
The Court declined to rule on a second issue, whether the disclosure requirement violated the First Amendment as applied in this case. (Plaintiffs raised this second issue in their original complaint, but the lower courts did not rule on it.) The Supreme Court expressly noted that its ruling in Doe v. Reed did not foreclose success on this "as applied" challenge still pending at the district court.
After the district court reopened the plaintiffs' "as applied" challenge, plaintiffs moved for a TRO, alleging that threats and harassment directed toward supporters of Prop 8 in California would spill over into Washington and that some R-71 supporters received threats because of their opposition to Washington's domestic partnership law. After briefing and argument, the district court granted the TRO, restraining the Secretary of State from releasing names and addresses of R-71 signers.
While the case still has to go to hearing, it's quite likely that the district court will rule in favor of the plaintiffs on the merits and bar the release of their personal information under the PRA: Judge Settle had to conclude that plaintiffs were likely to succeed on the merits as part of his TRO ruling (although the 2-page ruling doesn't contain this analysis), and he previously ruled that disclosure likely violated the First Amendment for all petitions in his preliminary injunction ruling that ultimately led to Doe v. Reed at the Supreme Court.
But however the case comes out on the merits, look for it to head next to the Ninth Circuit and perhaps again to the Supreme Court.
The Washington Secretary of State collects all the documents in this case, going back to the original complaint, here.
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