hunter of justice

Judge orders disclosure of petition signers' names in Doe v. Reed remand

On remand from the U.S. Supreme Court, Federal District Judge Benjamin Settle of the Western District of Washington ruled yesterday that the individuals who signed petitions to bring an effort to repeal the state's domestic partners law were not entitled to an exemption from the name disclosure mandated by the state's Public Records Act. Judge Settle granted summary judgment to the Secretary of State based on his finding that Protect Marriage Washington had provided no compelling evidence of threats or harassment against petition signers: 

[If Protect Marriage could get around the Public Records Act] by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations, ... disclosure would become the exception instead of the rule.

Judge Settle distinguished the case from earlier decisions granting protections to civil rights organizations that challenged laws requiring disclosure of membership lists:

Doe has not supplied competent evidence or adequate authority to support its claims that R-71 signers constitute a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been historically and pervasively rejected and vilified by both this country’s government and its citizens.

The case was on remand from the Supreme Court's decision in Doe v. Reed, 130 S.Ct. 2811 (2010), in which it ruled that the Washington state law requiring name disclosure was not facially unconstitutional as a violation of privacy rights. The Supreme Court sent the case back to District Court for a decision on whether this particular group of petition signers could demonstrate the need for an exemption from the law.

Protect Marriage Washington may appeal the new ruling as well, although numerous individuals were named in Judge Settle's opinion and the full list was made available to the public yesterday after the decision was announced. 

Doe v. Reed starts up again

The case in which Protect Marriage Washington is trying to block release of the names of persons who signed petitions against a domestic partners law is heading back to court tomorrow. This is the case in which the Supreme Court ruled that petition signers had no absolute right to remain anonymous; to secure an order stopping release of their names under a public records law, they would have to show serious risk of harm. [130 S.Ct. 2811]

So the plaintiffs have returned to U.S. District Court in Seattle, where they will try again to convince the judge that those crazy gay activists are lying in wait should the names become public. They filed a Renewed Motion for an Injunction prematurely, before the official mandate had come back to the district court from the Supreme Court, but presumably they will refile it now that it is timely. Tomorrow morning Judge Settle is having a status hearing, after which this case will be off and running...again.

Supreme Court sends battle over release of petition signers' names back to lower courts

The Supreme Court ruled today in Doe v Reed that individuals who sign referendum petitions generally do not have a First Amendment right to remain anonymous.  But the Court also held that courts should consider the particular facts in any given case to determine whether anonymity is constitutionally required.

Blocking disclosure would be constitutional, the Court holds, "if there were a reasonable probability that the group’s members would face threats, harassment, or reprisals if their names were disclosed."

Reed arose when a group called Protect Marriage sought to block release of the names of those who had signed a petition to put R-71 - a measure to stop the implementation of a state domestic partners law - on the ballot. (Voters defeated R-71 in the 2008 election, allowing the partner registration system to take effect.) A generally applicable state public records law authorizes the release of the names and addresses of those who sign referenda petitions, and several pro-lgbt groups requested that information. (More background here and  here.)

Protect Marriage argued that individuals who oppose lgbt rights fear harm because of possible retaliation by lgbt advocates, and therefore should have their identities kept private. The Court ruled that release of names and addresses of petition signers was normally justified by the state's interest in protecting against election fraud, i.e., against individuals signing a petition multiple times and/or using forged or invented names.

The case will now go back to the lower courts for a determination of whether there is a reasonable probability that signers of this petition would suffer harm if their identifying information is released. Key to that assessment will be evidence that the fear of such harm is exaggerated or fabricated. An excellent amicus brief filed by Lambda Legal and several other lgbt organizations was before the Court in Reed, and was doubtless a factor in producing some of the strong language in the Sotomayor and Stevens opinions (see below).

Although the bottom line result was a lopsided 8 to 1 split among the Justices (Thomas dissented), the reasoning was fragmented. The opinion of the Court, written by Chief Justice Roberts, stressed that the state had ample justification for treating referendum petitions as releasable public records, absent a showing of special circumstances. Justice Scalia, on the other hand, concurred in the result but wrote separately to make clear that he believed that there never should be an exception made to the law providing for name disclosure.  Other concurring opinions favoring disclosure, and suggesting that this would hold true for the R-71 names, were written by Justices Sotomayor and Stevens.

Justice Sotomayor, joined by Justices Stevens and Ginsburg, wrote:

...[T]he 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, (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.

This three-some believes that persons seeking anonymity have to demonstrate that they face the kind of threats experienced by civil rights workers 50 years ago:

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.

Justice Stevens (joined by Justice Breyer) expresses even deeper skepticism:

Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the [Public Records Act] to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated bylaw enforcement measures. 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 substantial 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."

Justice Alito also concurred in the result, but would use a far more lenient standard to assess whether Protect Marriage should be given an exemption from the disclosure rule. Noting that the Court was quite sympathetic to the concerns of potential witnesses in Perry v. Schwarzenegger when it blocked the televising of the trial, Justice Alito wrote that:

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...[I]f 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.

The only Justice who did not write or join an opinion other than the opinion of the Court was Justice Kennedy.

In sum, this battle isn't over yet, although Protect Marriage will have to meet an extremely high standard to block the release of names. In my view, this is exactly the right result.  I would not have been comfortable with a ruling declaring that there could never be constitutional protection for keeping the identities of petition signers private. At the same time, four Justices make quite clear that they are suspicious that the manufactured hysteria over fear of gay retribution is just that.

End of Supreme Court term approaches: 2 lgbt-related cases still pending

The Supreme Court operates on an academic-style calendar, with each term beginning in the fall and running through roughly the end of June.  Before it leaves for summer break, the Court issues decisions in all cases that have been argued during that term. So we are now in the final few weeks of the 2009-2010 term, with about 20 cases still undecided, and three more days on which the Court has announced it will issue opinions: this Thursday the 17th and the following two Mondays, June 21 and 28.

Among the undecided cases are Christian Legal Society v. Martinez, a CLS challenge to a policy at UC-Hastings Law School that requires all student organizations seeking recognition by the school (with the attendant benefits) to abide by a non-discrimination policy, and Doe v. Reed, in which individuals who signed petitions to put a measure to rescind the state's domestic partner law on the Washington state ballot challenged the release of their names under a state freedom of information law.

While predicting based on oral arguments is always perilous, the enterprise may be even less sensible for these two cases because in both, there is reason to expect that the opinion issued this month may not finally resolve the issue.  In the CLS case, several justices expressed frustration about whether a live controversy exists as to a central factual aspect of the case (whether the Hastings policy has in fact been applied across the board, or whether CLS was somehow singled out). In Reed, although the argument for a blanket exemption from the FOIA law for petition signers seemed to be a non-starter, a ruling to that effect might just send the case back to the lower courts for a more focused inquiry into whether an exception is justified for signers of this petition, because of their supposed fear of retaliation by pro lgbt rights advocates. Even less than final resolutions in these cases may produce some interesting opinions.

Tune in again Thursday...

Justices skeptical of blanket anonymity for petition-signers

One can never be certain of anything from an oral argument, but it sure sounds like the Protect Marriage advocates who were seeking to block release of the names of persons who signed a petition to put Referendum 71 (which would have repealed the Washington state domestic partner law) on the ballot got shellacked this morning at the oral argument of Doe v. Reed. [Here's the transcript.] Early reports, including this one by Lyle Denniston at SCOTusblog, emphasized that James Bopp, arguing for those seeking anonymity, drew mostly hostile questions, including from Justice Scalia.  However, Tom Goldstein, also writing at SCOTUSblog, points out that the case as litigated below presented two issues: whether a law permitting release of signers' names is facially (i.e. always) unconstitutional, and whether releasing names in the circumstances of the R-71 vote should have been permitted.  Only the first question is now before the Supreme Court. Goldstein agrees with Denniston that the Court is unlikely to strike the Washington statute as facially unconstitutional, but he is predicting that there will be another round after that, in the lower courts, on whether the R-71 names should be made public. [More background here.]

Excerpts from both Denniston and Goldstein after the jump -->

There's a lot in play before the Supreme Court in Doe v. Reed

In terms of litigator star power, the case being argued before the Supreme Court today - Doe v. Reed - comes in a pretty distant second to the one the Court heard 10 days ago - Christian Legal Society v. Martinez. The CLS case featured a former Solicitor General arguing against a star scholar turned 10th Circuit judge, now returned to the academy.  Yet the CLS argument turned into a messy hash over the facts, and the case may end up with no decision on the merits. By contrast, Reed may lack superstar lawyers, but in the end it could produce a far more important decision.

In Reed, Petitioners are challenging the constitutionality of a Washington state statute that provides for the public disclosure of the names of persons who sign petitions to put a referendum on the ballot. The case arose out of a dispute over Referendum 71, which gave voters the option to repeal the state's domestic partners law, an option they declined.

The lgbt angle of the case is more than coincidental because petitioners and their supporters have argued for all it's worth - and gauging what it is worth may become a key factor in the case - that gay rights advocates intimidate people who support proposals like Referendum 71 or Prop 8. If nothing else, the case has provided an opportunity for Lambda Legal and other lgbt rights organizations to file a powerful amicus brief detailing the irrationality of those claims.

As I have noted before, the gay intimidation argument has surfaced as this year's latest variation on the old standby that gays control the banks -- oops, sorry, that was the Jews, but the gays control something they shouldn't control, which threatens right-thinking people. It is the conservatives' favorite new anti-gay argument, and the outcome in the Reed case may measure how far it has gotten them.

Doctrinally, Reed is all about speech. It pits an argument that signing a petition should be treated as core political speech, subject to the highest level of scrutiny, against an argument that the government has important interests in transparency and protection against fraud in signature-gathering that trump individual privacy. Lots of good questions, from both perspectives, seem likely -- the case is one of those professor or judge dream situations, in which it is easy to play devil's advocate from both sides.

Gay rights is not the only or even the major frame into which this case fits. The lawyer arguing for protecting the anonymity of those signing petitions is James Bopp, a conservative cause lawyer who successfully argued the Citizens United v. FEC case, which deregulated  corporate campaign contributions. Bopp has said that the Reed case is a stepping stone toward his long-term goal of eliminating all limits on financial contributions. His role has drawn an amicus brief in Reed from the Brennan Center at NYU Law School, which does not support either party, but stresses that financial contributions should be treated differently (and be made subject to more disclosure) than the identities of those who signed petitions.

All of these dynamics are operating at a moment when the Court seems to be on a libertarian streak in First Amendment issues - first the Citizens United opinion, then the unanimous rejection of a ban on videos depicting cruelty to animals. The Court's decision in Reed is likely to either consolidate or offset this nascent trend. Given how late in the term the case is being argued, it will almost surely be one of the last opinions issued - probably in early to mid June. But it may also be one of the most significant public law opinions this term.

Appeals aplenty in the Perry case

(revised April 15)

The Ninth Circuit has weighed in on the latest discovery issue in Perry v. Schwarzenegger, rejecting the attempt by the ACLU and Equality California to invalidate an order by Judge Walker directing them to turn over internal documents of the No on 8 campaign. The Ninth Circuit's decision declined to issue a writ of mandamus against Judge Walker, and held that the only mechanism by which the appellate court could have jurisdiction of this question now would be if the two organizations refused to turn over the documents and were held in contempt.  This odd posture is an outgrowth of the principle that discovery orders are not immediately appealable, but citations for contempt are.

It's unclear what the ACLU and Equality CA will do next.  They could seek further review, but they may also be satisfied with the court's clarifying statement that communications about the formulation of campaign strategy and messages should be protected, regardless of whether the exchanges are internal within one organization or between persons in different groups. That was the primary issue with which the ACLU and EQCA were concerned.

There is already one discovery-related cert petition pending in the Supreme Court, 2010 WL 1436438 [No. 09-1210]. It was filed by defenders of Prop 8, who are challenging the order by Judge Walker which directed them to turn over campaign materials. That order was also upheld by the Ninth Circuit, 591 F.3d 1147 (finding mandamus jurisdiction based on the importance and novelty of the question), in an opinion that recognized a privilege for "private, internal campaign communications concerning the formulation of campaign strategy and messages," but limited it to fewer people than the defendants wanted.

Similarly to the Prop 8 opponents, the Prop 8 defenders assert that their First Amendment privacy/associational rights are violated by having to comply with the discovery order. They stated the question presented to the Supreme Court as follows:

In a post-election challenge to a law enacted by ballot initiative, does the First Amendment protect against compelled disclosure, through discovery, of nonpublic campaign speech and associational activities without regard to the speaker's organizational affiliation or role in the campaign?

You can find more excerpts from the cert petition after the jump.  Interestingly, the petition suggests that the Court wait to decide whether to grant cert until it decides Doe v. Reed, which concerns whether privacy rights are implicated by the release of the names of those who signed petitions to put an anti-gay referendum issue on the ballot last November. The Prop 8 defenders have nothing to lose by delay; it's a weak cert petition that the Court will probably deny. Linking it to Doe v. Reed also implicitly communicates to the Court that in both cases, arguments are being built on this new trope of individuals fearing intimidation by lgbt rights advocates.

Meanwhile, Judge Walker has set this Friday, April 16, as the deadline for all parties to show cause why the evidentiary record should not be closed. He clearly wants to move forward with final arguments and a decision, which have been stalled while these discovery issues were being litigated; Prop 8 defenders may ask him to hold the record open until the Supreme Court rules on their cert petition.

Supreme Court grants cert in Washington state referendum case

Yesterday the Supreme Court agreed to resolve the question of whether persons who signed a petition seeking a voter referendum to repeal a domestic partner benefits law could stop public release of their names. (The Court had earlier granted a stay to block release of the names pending further proceedings below.) Under review will be the Ninth Circuit decision in Doe v Reed, which upheld a Washington state law that permits the names to be made public. (The referendum measure that gave rise to the dispute over disclosure, R-71, was placed on the ballot and defeated in November.)

As I noted on Wednesday when the Court blocked the plan to webcast the trial in Perry v. Schwarzenegger, this new case is also highlighting claims by gay marriage opponents that they fear intimidation for speaking publicly. Unfortunately, the accident of the two cases arriving at the Court in such rapid fire succession may make the claims in each seem to reinforce each other. (A Heritage Foundation briefing paper spells out this argument; see "The Price of Prop 8.") For example, the Doe v. Reed cert petition cited knowthyneighbor.org, a searchable database with the names of persons who have signed petitions opposing gay marriage in several states, to illustrate organizations that "encourage harassment and intimidation." 

Watching how the Court responds to the factual context of the case will be the most interesting aspect of it from a lgbt rights perspective, since there will be nothing pro- or anti-gay about the outcome.  If, for example, the "pro gay" side wins and the names have to be disclosed, you can bet that anyone signing a petition in Alabama asking a city council to pass an anti-discrimination law or a school board to pass an anti-bullying law will see his/her name on the internet in a New York minute. So a "pro gay" result is likely to chill petition campaigns, but which movements will suffer most from that is anyone's guess. In other words, there is no "pro gay" position at issue, only a question about the tension between openness of political processes and protection of political expression.

I haven't yet decided exactly what my own position is.  I take some comfort in noting that legal scholars for whom I have much respect have also expressed wariness about forcing disclosure of the names of those advocating a given political position, not to mention the irony of that argument coming from the lgbt movement, which in the past has fought hard to maintain the secrecy of names of members of lgbt organizations. As Katherine Franke points out, attempts to protect names of political adherents have generally come from civil rights groups. Mike Dorf argues that precedent probably supports upholding the state law (and allowing name disclosure), but good public policy suggests altering that law to  protect the names (which would also be constitutionally permissible). I share Katherine's and Mike's ambivalence over what the best outcome would be, and I'll be chewing on these arguments in the weeks to come.

Supreme Court slams Walker for rushing through rule change to allow broadcasting of Perry trial, finds risk of irreparable harm to defense witnesses

In a 5-4 per curiam opinion, the Supreme Court today effectively shut down any broadcasting of the trial in Perry v. Schwarzenegger beyond closed circuit transmission to other rooms in the federal courthouse in San Francisco where the trial is taking place. In Hollingsworth v Perry, the Court issued a stay based on two grounds: (1) that District Court Judge Vaughn Walker failed to followed the correct procedures in deciding to allow the broadcasts; and (2) that there was a likelihood of irreparable harm to defense witnesses who expressed fear of harassment by gay marriage supporters if their testimony was broadcast.

This decision in and of itself means very little, because it turned on a fairly technical point: the Court found that there was an insufficient notice and comment period allowed after the proposal was made to change local court rules on broadcasting. The portion of Judge Walker's order authorizing the posting of video on YouTube was withdrawn before today's ruling, so the opinion did not address the YouTube issue. The dissent by Justice Breyer (joined by Justices Stevens, Ginsburg and Sotomayor) chided the majority for micromanaging how lower courts decide whether to permit cameras in the courtroom, despite the absence of any federal law that mandates what the trial courts do on this question.

The more interesting part of the opinion was the Court's willingness to find a significant risk of irreparable harm (the standard for an injunction) in the press clips about post-Prop 8 demonstrations and boycotts; these clips were filed as part of the record by Prop 8 defenders. The Court held that even if the procedural irregularity in adopting the new rule had not occurred, "questions would still remain about ... allow[ing] broadcasting of this particular trial, in which several of the witnesses have stated concerns for their own security. ... This case is therefore not a good one for a pilot program" that permits webcasting.

Meanwhile, there is another case pending before the Court  - Doe #1 v. Reed - which raises the question of whether to permit release of the names of individuals who signed a petition in support of a ballot referendum question proposing the repeal of the domestic partners/civil union law in Washington state.  In October, the Court also entered a stay in that case; release of the names is now blocked until the case is fully briefed and argued.

To me, these issues are worlds apart. Preventing the webcasting of testimony by persons who have stepped forward to serve as witnesses and whose identities are already known and will in any case be subject to major publicity in such a high visibility case is not a good precedent in a system founded on the concept of open trials. The Washington state question, on the other hand, is closer: arguably those who sign ballot petitions are acting in their capacity as voters, in a system also founded on the sanctity of the secret ballot. (Alternatively, petition signers are more comparable to legislators, who also have the power to propose legislation  - but that's for another post.)

What is clear from both these cases, however, is that gay marriage opponents are getting lots of mileage out of their asserted fears of harassment and intimidation. I do not agree with some of the actions taken by gay marriage supporters in the wake of Prop 8. However, a handful of incidents does not support concocting an exaggerated fear of an imagined mob of angry gay extremists bent on bullying the rest of society into conformity with "the gay agenda." The image is absurd, but anti-gay conservatives are using it quite effectively, not just in ads or on talk shows, but also in the nation's highest court.