State plans to appeal on Ref. 71

FEDERAL COURT: Signers kept secret

BY GENE JOHNSON | The Associated Press • Published September 12, 2009

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But state assistant attorney general Jim Pharris told the judge that Protect Marriage hasn�t shown significant harm beyond rude comments or phone calls � nothing that would �be appropriate to overturning the state�s strong tradition for open government.�

Protect Marriage lawyer Stephen Pidgeon said Friday that he wasn�t surprised the government is appealing, but he said, �They�re wrong on the law.�

�The First Amendment right to free speech is superior to the public�s right to have an electronic database of names that they can cull from for the purposes of harassment,� he said.

Pidgeon acknowledged that the public has a legitimate interest in being able to review petitions, but he said the Public Records Act is not �narrowly tailored� to meet that interest because it automatically releases petitions to anyone who asks.

Instead, he suggested, the state should craft a system whereby people must show some threshold need for accessing the records, and they can then be held accountable by the secretary of state�s office for how they use those records.

Courts have repeatedly held that the government has no business in deciding who gets to review public records � if they�re public, they�re public. The exception in Washington state is that people serving prison sentences may be blocked from filing public disclosure requests if a judge determines the intent is to harass or intimidate a public official.

Seattle First Amendment lawyer Michele Earl-Hubbard, who frequently represents news organizations, including The Associated Press, called Settle�s suggestion that he would strike down the Public Records Act �very, very terrifying,� and said his reading of the case law was incorrect.

In suggesting that people have a right to participate anonymously in the political process, the judge cited Supreme Court opinions that said Colorado could not force signature gatherers to wear identification badges, Ohio could not require that campaign literature bear the name and address of the person circulating that literature and California could not require �any handbill under any place under any circumstances� to bear the name of the person who prepared it.

All of those affirmed the right of people to remain anonymous in their dealings with the public � in effect, their right to speak from a soap-box without identifying themselves.

But that doesn�t mean people have a right to be anonymous in their dealings with the government, especially when they sign a petition seeking to put an initiative or referendum on the ballot, Earl-Hubbard said.

�The public has a right to know whether these are valid signatures,� Earl-Hubbard said. �Are they living people? Are they dead people? Do they live in the right jurisdiction? I don�t know how in the world you can test petitions if you can�t see the names. It totally destroys the political process.�

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