NO. 09-559

,~uprcmc COurt, U.S.FILED

OFFICE OF THE CLERK

IN THE SUPREME COURT OF

THE UNITED STATES

JOHN DOE #1, JOHN DOE #2, ANDPROTECT MARRIAGE WASHINGTON,

Petitioners,

Vo

SAM REED, WASHINGTON SECRETARY OF STATE,AND BRENDA GALARAZA, PUBLIC RECORDS OFFICER

FOR THE SECRETARY OF STATE’S OFFICE,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SECRETARY OF STATE SAM REED’SBRIEF IN OPPOSITION

ROBERT M. MCKENNAAttorney General

William Berggren Collins*Anne Elizabeth Egeler

Deputy Solicitors General*Counsel of Record

1125 Washington Street SEOlympia, WA 98504-0100360-753-6245

Biank Page

QUESTION PRESENTED

The Public Records Act requires governmentto make public records available for citizens toinspect. Public records are writings about theconduct of government, and include referendumpetitions voters sign to qualify a measure for theballot. Does the Public Records Act violate petitionsigners’ First Amendment right to anonymousspeech by allowing inspection of referendumpetitions upon which signers have publicly disclosedtheir names and addresses to referendum sponsors,signature gatherers, members of the public, andgovernment?

TABLE OF CONTENTS

STATEMENT .........................................................................1

A. Washington’s Public Records Act ........................1

B. Washington’s Referendum Process ......................2

C. Referendum 71 ......................................................5

D. Proceedings In The District Court ........................7

E. Proceedings In The Court Of Appeals ................10

REASONS FOR DENYING THE WRIT ............................15

A. The Sponsors’ Petition Is Based On TwoIncorrect Premises ...............................................16

The Public Records Act Does NotRequire Petition Signers To DiscloseTheir Identity Or Belief To ThePublic--Signers Disclose ThatInformation To The Public When TheySign Referendum Petitions ..........................17

° Laws Governing Initiatives AndReferendum Are Not Always SubjectTo Strict Scrutiny ........................................21

B. This Case Does Not Meet The Criteria ForIssuing A Writ Of Certiorari ...............................25

iii

The Ninth Circuit’s Decision Does NotConflict With Another Decision AndThere Is No Confusion Regarding TheApplication Of Strict Scrutiny In TheContext Of Initiatives AndReferendums ................................................25

Contrary To The Sponsors’ Claim, ThisCase Does Not Present An ImportantNational Question ........................................27

The Ninth Circuit’s Decision Is A RoutineAnd Correct Application Of The FirstAmendment .........................................................32

CONCLUSION .....................................................................36

iv

TABLE OF AUTHORITIES

Cases

Biddulph v. Mortham,89 F.3d 1491 (11th Cir. 1996), cert. denied,519 U.S. 1151 (1997) ...................................................27

Bilofsky v. Deukmejian,177 Cal. Rptr. 621 (Cal. Ct. App. 1981) ............18, 19

Brown v. Socialist Workers ’74 Campaign Comm.(Ohio),459 U.S. 87 (1982) ........................................................

Buckley v. Am. Constitutional Law Found.(Buckley II),525 U.S. 182 (1999) ..............................................passim

Buckley v. Valeo,424 U.S. 1 (1976) .......................................................... 31

Burdick v. Takushi,504 U.S. 428 (1992) .....................................................

Caruso v. YamhilI Cy. ex rel. Cy. Comm’r,422 F.3d 848 (9th Cir. 2005) .....................................27

Dobrovolny v. Moore,126 F.3d 1111 (8th Cir. 1997), cert. denied,523 U.S. 1005 (1998) ...................................................25

Eu v. S.F. Cy. Democratic Cent. Comm.,489 U.S. 214 (1989) .....................................................

Eyman v. Reed,No. 09-2-02447-0 (Thurston Cy. Wash.Oct. 14, 2009) ................................................................10

v

Gallivan v. Walker,54 P.3d 1069 (Utah 2002) ..........................................29

Gibson v. Florida Legislative Investigation

372 U.S. 539 (1963) .....................................................20

Initiative and Referendum Inst. v. Walker,450 F.3d 1082 (10th Cir. 2006) ...........................25, 25

McIntyre v. Ohio Elections Comm’n,514 U.S. 334 (1995) .......................................................8

Meyer v. Grant,486 U.S. 414 (1988) .........................................12, 22, 25

Molinari v. Bloomberg,564 Fo3d 587 (2d Cir. 2009) .......................................25

NAACP v. Alabama ex rel. Patterson,357 U.S. 449 (1958) .....................................................

ProtectMarriage.com v. Bowen,599 F. Supp. 2d 1197 (E.D. Cal. 2009) ....................3 !

Rental Housing Ass’n of Puget Sound v. City ofDes Moines,199 P.3d 393 (Wash. 2009) ..........................................2

State ex rel. Halloran v. McGrath,67 P.2d 838 (Mont. 1937) ...........................................28

State ex reI. Heavey v. Murphy,982 P.2d 611 (Wash. 1999) ........................................

State ex rel. Kernells v. Ezell,282 So. 2d 266 (Ala. 1973) .........................................29

Talley v. California,326 U.S. 60 (1960) .........................................................8

Taxpayers United for Assessment Cuts v. Austin,994 F.2d 291 (6th Cir. 1993) .....................................25

Turner Broadcast. Sys., Inc. v. FCC,512 U.S. 622 (1994) ..............................................passim

United States v. O’Brien,391 U.S. 367 (1968) ...............................................13, 33

Uphaus v. Wyman,360 U.S. 72 (1959) .................................................19, 20

Washington State Grange v. Washington StateRepublican Party,552 U.S. 442, 128 S. Ct. 1184 (2008) .......................

Winter v. Natural Res. Def. Council,129 S. Ct. 365 (2008) ...................................................28

Statutes

1973 Wash. Sess. Laws page nos. 1-31 ..........................1

2007 Wash. Sess. Laws page nos. 616-37 .....................5

Miss. Code Ann. § 25-61-1 (West 2009) ......................28

Utah Code Ann. 1953 § 20A-7-205(3)(a)(i)(West 2009) ...................................................................29

Utah Code Ann. 1953 § 20A-7-206(7)(West 2009) ...................................................................29

Wash. Rev. Code § 26.60.030(6) (2009) ......................... 5

Wash. Rev. Code § 29A.72.100 (2009) ...........................4

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Wash. Rev. Code § 29A.72.130 (2009) .......................3, 4

Wash. Rev. Code § 29A.72.140 (2009) ...............4, 34, 35

Wash. Rev. Code § 29A.72.230 (2009) .................4, 5, 13

Wash. Rev. Code § 29A.72.240 (2009) ...............5, 14, 34

Wash. Rev. Code § 42.56.010(2) (2009) ...............2, 5, 33

Wash. Rev. Code § 42.56.030 (2009) ..............................2

Wash. Rev. Code § 42.56.070 (2009) ........................2, 33

Other Authorities

55-57 Op. Att’y Gen. 274 (Wash. 1956) .......................30

Burt A. Braverman & Wesley R. Heppler, APractical Review of State Open Records Laws,49 Geo. Wash. L. Rev. 720 (1980-1981) ..................28

Constitutional Provisions

Wash. Const. art. II, § 1 ...................................................2

Wash. Const. art. II, § l(b) ..............................................3

Wash. Const. art. II, § l(b), (c) ........................................3

Biank Page

BRIEF IN OPPOSITION

The Attorney General of Washington, onbehalf of Sam Reed, the Washington Secretary ofState, and Brenda Galarza, the Secretary of State’sPublic Records Officer, respectfully requests that theCourt deny the petition for a writ of certiorari in thiscase.

STATEMENT

Washington’s Public Records Act (the Act)requires state and local government to make publicrecords available for inspection and copying at therequest of members of the public. John Does No. 1and 2 and Protect Marriage Washington (Sponsors)brought this action to declare that application of theAct to referendum petitions containing the namesand addresses of petition signers violates the FirstAmendment of the United States Constitution, andto enjoin the Secretary of State (Secretary) fromreleasing referendum petitions pursuant to requestsunder the Act. The district court held that the Act issubject to strict scrutiny because it requiresdisclosure of anonymous political speech, and that itdoes not satisfy the strict scrutiny standard. TheNinth Circuit Court of Appeals reversed, holdingthat signing a referendum petition is public speech--not anonymous speech. The Ninth Circuit held thatthe Act is subject to intermediate scrutiny, and thatit satisfies that standard.

A. Washington’s Public Records Act

The Public Records Act was enacted by thepeople in 1972, through Initiative Measure No. 276.1973 Wash. Sess. Laws page nos. 1-31. The Act

declares that the "people of this state do not yieldtheir sovereignty to the agencies that serve them.The people, in delegating authority, do not give theirpublic servants the right to decide what is good forthe people to know and what is not good for them toknow." Wash. Rev. Code § 42.56.030 (2009).Accordingly, the "people insist on remaininginformed so that they may maintain control over theinstruments that they have created." Id.

The Act defines a "public record" as "anywriting containing information relating to theconduct of government or the performance of anygovernmental or proprietary function prepared,owned, used, or retained by any state or localagency[.]" Wash. Rev. Code § 42.56.010(2) (2009).Agencies are required to "make available for publicinspection and copying all public records, unless therecord falls within [a] specific exemption[.]" Wash.Rev. Code § 42.56.070 (2009). Statutory exemptionsfrom disclosure are narrowly construed. Wash. Rev.Code § 42.56.030. Washington courts consistentlyrefer to the Act as a "strongly-worded mandate foropen government, requiring broad disclosure[.]"E.g., Rental Housing Ass’n of Puget Sound v. City ofDes Moines, 199 P.3d 393, 394 (Wash. 2009).

B. Washington’s Referendum Process

Under the Washington Constitution, thepeople of the state reserve the legislative powers ofinitiative and referendum. Wash. Const. art. II, § 1.State laws are enacted either by the statelegislature, or directly by the people through the useof the initiative and referendum powers. Areferendum "may be ordered on any act, bill, law, or

any part thereof passed by the legislature" when thelegislature refers a bill to the people or when thepeople file a petition with the requisite number ofsignatures.1 Wash. Const. art. II, § l(b). If theconstitutional prerequisites for a referendum aremet, the electorate votes on whether to accept orreject the bill passed by the legislature. Id.

When the legislature passes a bill that may besubject to referendum, the bill cannot take effectuntil 90 days after the legislative session isadjourned, during which time the people may triggera referendum by filing petitions containing the validsignatures of Washington registered voters in anumber equal to four percent of the votes cast for theOffice of Governor at the last gubernatorial electionpreceding the filing of a referendum. Wash. Const.art. II, § l(b), (c). The referendum "petition mustinclude a place for each petitioner to sign and printhis or her name, and the address, city, and county atwhich he or she is registered to vote." Wash. Rev.Code § 29A.72.130 (2009). The referendum petitionsheets signed by the voters must state:

"To the Honorable ......, Secretary of State ofthe State of Washington:

We, the undersigned citizens and legalvoters of the State of Washington, respectfullyorder and direct that Referendum Measure No...... , filed to revoke a (or part or parts of a)bill that (concise statement required by RCW29A.36.071) and that was passed by the ......

1 There are some exceptions to the referendum power,

but none of the exceptions are at issue in this case.

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legislature of the State of Washington at thelast regular (special) session of said legislature,shall be referred to the people of the state fortheir approval or rejection at the regular(special) election to be held on the .... day ofNovember, (year); and each of us for himself orherself says: I have personally signed thispetition; I am a legal voter of the State ofWashington, in the city (or town) and countywritten after my name, my residence address iscorrectly stated, and I have knowingly signedthis petition only once." Id.

The petition sheets must warn that: "[e]veryperson who signs this petition with any other thanhis or her true name, knowingly signs more than oneof these petitions, signs this petition when he or sheis not a legal voter, or makes any false statement onthis petition may be punished by fine orimprisonment or both." Wash. Rev. Code§ 29A.72.140 (2009). Each petition sheet on whichsignatures are gathered "must consist of not morethan one sheet with numbered lines for not morethan twenty signatures[.]" Wash. Rev. Code§ 29A.72.100 (2009).

Referendum signature petitions are filed withthe Secretary. The Secretary must "verify andcanvass the names of the legal voters on the petition.The verification and canvass of signatures on thepetition may be observed by persons representing theadvocates and opponents of the proposed measure[.]"Wash. Rev. Code § 29A.72.230 (2009). The Secretary"may limit the number of observers to not less thantwo on each side, if in his or her opinion, a greaternumber would cause undue delay or disruption of the

verification process." Id. During the verificationprocess, observers are prohibited from making arecord of the information on the petitions, exceptupon court order. Id.

Anyone "dissatisfied" with the Secretary’sdecision that a referendum has or has not beensigned by an adequate number of legal voters toqualify for the ballot may bring an action in superiorcourt challenging the Secretary’s decision. Wash.Rev. Code § 29A.72.240 (2009). Within five days ofthe superior court’s decision, parties may seek reviewin the Washington Supreme Court. Id.

Since referendum signature petitions filedwith the Secretary are "writing[s] containinginformation relating to the conduct of government orthe performance of any governmental or proprietaryfunction prepared, owned, used, or retained by anystate or local agency," they are public records underthe Act. Wash. Rev. Code § 42.56.010(2). None ofthe statutory exemptions from public disclosureapply to referendum petitions. Prior to thislitigation, the Secretary has routinely disclosedpetitions in response to public records requests.

C. Referendum 71

In 2007, the Washington Legislature createdstate registered domestic partnerships. 2007 Wash.Sess. Laws page nos. 616-37. A domestic partnershipmay be formed when "(a) both persons are membersof the same sex; or (b) at least one of the persons issixty-two years of age or older." Wash. Rev. Code§ 26.60.030(6) (2009). In 2009, the legislatureenacted Engrossed Second Substitute Senate Bill(E2SSB) 5688, which expanded the rights,

responsibilities, and obligations accorded stateregistered same-sex and senior domestic partners.

In May 2009, Protect Marriage Washingtonbegan gathering petition signatures for a referendumelection on E2SSB 5688. Signature gathering tookplace in public places, such as outside Wal-Mart andTarget stores. The signature gatherers set up tablesand asked members of the public walking by to signthe petition sheets. There was interaction amongmembers of the public about whether the petitionsshould be signed. The Referendum 71 petitionsheets each contained 20 lines for signatures.Nothing shielded the names and signatures on thepetition sheets, which were readily visible to otherpeople who signed or read the petition.

On July 25, 2009, the proponents ofReferendum 71 submitted their signature petitionsto the Secretary in an open, public forum.Referendum supporters and opponents were inattendance, as were several members of the newsmedia. The petition sheets were counted and theSecretary of State’s Office began the task of verifyingthe signatures. The Secretary subsequentlyconcluded that Referendum 71 had about 122,000valid signatures, and certified the measure to theNovember 3, 2009, general election ballot.

During the signature-gathering process, theorganization WhoSigned.org announced that it wouldfile a public records request to obtain theReferendum 71 petitions and post the informationfrom the petitions on the internet. The Secretarysubsequently received public disclosure requestsfrom Toby Nixon of Washington Coalition for Open

Government, Arthur West, Brian Spencer on behalfof Desire Enterprises, and Anne Levinson on behalfof Washington Families Standing Together(WAFST). Although a requestor is not required tostate the purpose of a public records request, WAFSTstated that it sought to review the signed petitions toaddress legal errors made by the Secretary related tothe form and authentication of petitions and theacceptance of certain signers as registered voters.

D. Proceedings In The District Court

On July 28, 2009, the Sponsors filed thisaction in Federal District Court. The Sponsorsalleged that the Public Records Act violated theirFirst Amendment rights, sought a declaration thatthe Act was unconstitutional, and asked for apermanent injunction. The Sponsors advanced twoclaims. First, in Count I, the Sponsors asserted thatreleasing completed signature petitions for anyreferendum would violate the signers’ FirstAmendment right to anonymous speech. Second, inCount II, the Sponsors asserted that, in any event,releasing Referendum 71 petitions under the Actwould violate the petition signers’ First Amendmentright of association because disclosure would subjectthem to threats, reprisals, and harassment. TheSponsors did not allege that referendum petitionsare not public records, as defined by the Act, or thatthe petitions are statutorily exempt from disclosure.The Sponsors also did not allege that any part ofWashington’s laws governing the referendum processviolated the Constitution.

On September 10, 2009, the district courtgranted the Sponsors’ motion for a preliminary

injunction based on Count I of the complaint. Thedistrict court first considered the Sponsors’ likelihoodof prevailing on the merits of that Count. Accordingto the district court, the Sponsors "assert that thesigners of the referendum petition are likely entitledto protections under an individual’s fundamental,First Amendment right to free speech. The type offree speech in question is anonymous politicalspeech." Pet. 33a (emphasis added).The districtcourt stated that "It]he Supreme Court hasconsistently held that a componentof the FirstAmendment is the right to anonymously participatein a political process." Pet. 34a (citing Buckley v.Am. Constitutional Law Found. (Buckley II), 525U.S. 182, 200 (1999); McIntyre v. Ohio ElectionsComm’n, 514 U.S. 334, 357 (1995); Talley v.California, 326 U.S. 60, 65 (1960)). The district courtfound that the Sponsors "have established that it islikely that supporting the referral of a referendum isprotected political speech, which includes thecomponent of the right to speak anonymously." Pet.38a. Based on this conclusion, the district court heldthat the Act was subject to strict scrutiny, and that itwas not narrowly tailored. According to the districtcourt: "In light of the State’s own verificationprocess and the State’s own case law, at this time theCourt is not persuaded that full public disclosure ofreferendum petitions is necessary as an importantcheck on the integrity of the referendum electionprocess." Pet. 42a (internal punctuation omitted).The district court also rejected the State’s interest ininforming the public of the names of the persons whosupported the referendum because no one knows"whether an individual who supports referral of a

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referendum to the next ensuing general electionactually supports the content of the referendum orwhether that individual simply agrees that thereferendum should be placed before the votingpublic." Id. Thus, for the district court, "the identityof the person who supports the referral of areferendum is irrelevant to the voter[.]" Pet. 42a-43a.

The district court’s conclusion that theSponsors were likely to prevail on the merits,effectively determined its ruling on the Sponsors’motion for a preliminary injunction. The districtcourt held that "[d]eprivations of speech rightspresumptively constitute irreparable harm forpurposes of a preliminary injunction[.]" Pet. 43a-44a(internal punctuation omitted). The district courtalso concluded that "[b]ecat~se this Court finds that[Sponsors] have established that this case likelyraises serious First Amendment questions in regardto protected speech and this Court thereby presumesirreparable injury, this court also finds that theequities tip in favor of the [Sponsors]." Pet. 44a-45a(citation omitted).

Although the district court’s order did notdirectly set out the scope of the injunction, the courtgranted the injunction based on the Sponsors’Count I claim. In their motion, the Sponsorsrequested an injunction to enjoin Defendants frommaking referendum petitions available to the publicpursuant to the Public Records Act. Thus, thepreliminary injunction was not limited toReferendum 71 petitions. The district court did notrule on Count II, the Sponsors’ claim that, as appliedto Referendum 71, the Act violates the FirstAmendment. Pet. 43a.

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E. Proceedings In The Court Of Appeals

The Secretary immediately appealed thepreliminary injunction and filed an emergencymotion seeking a stay of the preliminary injunctionand expedited treatment so the appeal could beresolved before the November 3, 2009, election onReferendum 71.2 The Ninth Circuit granted themotion for expedited review and, after oral argumenton October 15, issued an order reversing the districtcourt, and stating that an "opinion setting forth thereasons for the court’s reversal of the PreliminaryInjunction Order shall be issued expeditiously[.]"Pet. 2a-3a. The Ninth Circuit also ordered that theSecretary’s "motion for a stay pending appeal isgranted and the Preliminary Injunction Order ishereby stayed, effective immediately, pending finalresolution of these appeals." Pet. 2a.

On October 16, the Sponsors filed anapplication with Justice Kennedy to vacate the NinthCircuit’s stay of the preliminary injunction.3

Following Justice Kennedy’s referral of theapplication, the Court issued an order that thedistrict court’s preliminary injunction "shall remain

2 Washington Coalition for Open Government and

Washington Families Standing Together intervened at thedistrict court and appealed the district court order. The NinthCircuit consolidated the three appeals.

3 The Secretary did not release the Referendum 71

petitions after the Ninth Circuit’s Order on October 15 becausea state court also had issued a preliminary injunctionprohibiting release of the Referendum 71 petitions. Eyman v.Reed, No. 09-2-02447-0 (Thurston Cy. Wash. Oct. 14, 2009).The state court action is stayed pending the outcome of thiscase.

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in effect pending the timely filing and disposition of apetition for a writ of certiorari." Pet. 21a. "JusticeStevens would deny the application." Id.

On October 22, the court of appeals issued itsopinion. Pet. 3a. The court of appeals assumed that"the act of signing a referendum petition is speech,such that the First Amendment is implicated." Pet.l la. "Even assuming that speech is involved,however, we conclude that the district court appliedan erroneous legal standard when it subjected the[Public Records Act] to strict scrutiny." Pet. 12a.

The court of appeals held that "the districtcourt’s analysis was based on the faulty premise thatthe [Public Records Act] regulates anonymouspolitical speech." Pet. 12a. The Ninth Circuitrejected the district court’s conclusion that signing areferendum petition is anonymous political speechfor several reasons. "First, the petitions aregathered in public, and there is no showing that thesignature-gathering process is performed in amanner designed to protect the confidentiality ofthose who sign the petition." Pet. 12a. Moreover,"each petition sheet contains spaces for 20signatures, exposing each signature to view by up to19 other signers and any number of potentialsigners." Id. In addition, as the court of appealsobserved, "any reasonable signer knows, or shouldknow, that the petition must be submitted to theState to determine whether the referendum qualifiesfor the ballot, and the State makes no promise ofconfidentiality, either statutorily or otherwise." Id."In fact, the [Public Records Act] provides to thecontrary." Id. Finally, the Ninth Circuit observedthat "Washington law specifically provides that both

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proponents and opponents of a referendum petitionhave the right to observe the State’s signatureverification and canvassing process." Id.Accordingly, the court of appeals concluded that"It]he district court’s application of anonymousspeech cases requiring strict scrutiny was error."Pet. 13a.

The Ninth Circuit next rejected the districtcourt’s reliance on Meyer v. Grant, 486 U.S. 414,420-21 (1988) and Buckley II, 525 U.S. at 197, forthe proposition that "any regulation of protectedpolitical speech is subject to strict scrutiny." Pet.13a. According to the court of appeals: "Thissuggestion is unsupported by the applicable caselaw" because "it does not follow that a regulationthat burdens [protected] speech is necessarily subjectto strict scrutiny." Pet. 13a. In this respect, thecourt of appeals referred to Turner BroadcastingSystem, Inc. v. FCC, 512 U.S. 622, 661-62 (1994),where this Court applied intermediate scrutiny toviewpoint- and content-neutral provisions of federallaw that required cable television operators to carrylocal broadcast stations on cable systems. The courtof appeals also pointed to Burdick v. Takushi, 504U.S. 428, 434 (1992), where this Court applied abalancing test, rather than strict scrutiny, to anelection law that burdened First Amendment rightsby banning write-in voting. Pet. 13a.

Having determined that the district court’sapplication of strict scrutiny to the Act was error, thecourt of appeals then considered the appropriateconstitutional standard. The court assumed that"signing a referendum petition has a ’speech’ elementsuch that petition signing qualifies as expressive

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conduct" and further "assume[d] that the [PublicRecords Act’s] public access provision has anincidental effect on referendum petition signers’speech by deterring some would be signers fromsigning petitions." Pet. 14a-15a. In light of theseassumptions, the court of appeals concluded that theintermediate scrutiny standard of United States v.O’Brien, 391 U.S. 367 (1968), applies to the Act. Pet.14a-16a. Applying the intermediate scrutiny testarticulated in O’Brien, the court of appeals concludedthat the Public Records Act furthers importantgovernment interests unrelated to suppression ofspeech, and the incidental effect on speech is nogreater than necessary. Pet. 16a.

The court of appeals began its analysis of thegovernment interests furthered by the Act by notingthis Court’s recognition of a state’s "’compellinginterest in preserving the integrity of the electionprocess.’" Pet. 16a (quoting Eu v. S.F. Cy.Democratic Cent. Comm., 489 U.S. 214, 231 (1989)).The court of appeals concluded that Washington’sPublic Records Act "plays a key role in preservingthe integrity of the referendum process" by providinggovernment transparency and accountability to thepublic generally. Pet. 17a. The court of appealsrecognized that Washington’s statute authorizingtwo opponents and two proponents of the referendumto view the Secretary’s verification of.signaturesprovides oversight by special interesfogrotlps, butdoes not provide oversight by the general p~ublic.

Pet. 17a; Wash. Rev. Code § 29A.72.230.

The court of appeals then considered the Act’srole in enabling the public to "make meaningful use"of state law authorizing Washington citizens to

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challenge the Secretary’s determination that thepetition has sufficient signatures. Pet. 17a; Wash.Rev. Code § 29A.72.240. The court reasoned thatwithout public disclosure, citizens could not inspectpetition sheets and rationally determine whetherthey were dissatisfied with the Secretary’s decision.This would render the superior court procedure "atbest inefficient and at worst useless[.]" Pet. 17a-18a.

In addition, the court recognized that theState has an important "informational interest" indisclosure. Pet. 18a. The court explained thatunlike campaign donors, "[r]eferendum petitionsigners have not merely taken a general stance on apolitical issue; they have taken action that has directlegislative effect." Id. The public’s interest inknowing who has taken legislative action "isundoubtedly greater" than knowing what groupsfavor or oppose a ballot issue. Pet. 19a.

Based on this analysis, the Ninth Circuitconcluded that "each of the State’s asserted interestsis sufficiently important to justify the [PublicRecords Act’s] incidental limitations on referendumpetition signers’ First Amendment freedoms," andheld that the Act "as applied to referendum petitionsdoes not violate the First Amendment." Id. Becausethe Sponsors failed to meet the first factor for apreliminary injunction--likelihood of success on themerits--the Ninth Circuit found it unnecessary toexamine the remaining three factors. Id. n.14.

The court of appeals did not address theSponsors’ Count II claim specific to Referendum 71because the district court based its preliminary

15

injunction on Count I, and did not did not considerCount II. Pet. 10a n.6.

The Sponsors filed their Petition For A WritOf Certiorari on November 6, 2009.4

REASONS FOR DENYING THE WRIT

The Sponsors devote slightly more than onepage of their petition to explaining why the Courtshould grant certiorari. Pet. 7-8. The bulk of thepetition is devoted to arguing that the case satisfiesthe preliminary injunction standard. Pet. 9-33.Perhaps this is so because the Sponsors believe thattheir Petition For A Writ Of Certiorari is a mereformality, as the Court effectively made a decision togrant the writ when it issued the Order reinstatingthe district court’s preliminary injunction. However,that Order expressly contemplates that certiorarimay be denied because it provides: "Should thepetition for a writ of certiorari be denied, this stayshall terminate automatically." Pet. 21a.

There is good reason for this provision. Whenthe preliminary injunction was reinstated, the NinthCircuit had not issued its opinion. Thus, it waspossible that the court of appeal’s decision mighthave required review by the Court. Now that theNinth Circuit has issued its opinion, it is clear thatthere is no basis for certiorari. The Ninth Circuit’sdecision is not in conflict with another decision andthere is no confusion in the circuits on the questionpresented in this case. Nor does this case present an

4 On November 3, 2009, Washington voters approved

Referendum 71.

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important national question that requires review bythis Court.

Although the Ninth Circuit has issued itsopinion, the Sponsors do not discuss the opinion orexplain why intermediate scrutiny is notappropriate. The Sponsors simply argue that thePublic Records Act is subject to strict scrutinybecause (1) it requires the release of referendumpetitions that publicly disclose the signers’ identityand belief that Referendum 71 should be on theballot, and (2) laws relating to referendums aresubject to strict scrutiny because referendumsconstitute core political speech. Both of these notionsare incorrect.

The Ninth Circuit’s application ofintermediate scrutiny is a correct and routineapplication of the First Amendment. The Sponsors’petition should be denied.

A. The Sponsors’ Petition Is Based On TwoIncorrect Premises

The Sponsors’ petition is based on twopremises. The Sponsors’ first incorrect premise isthat the Public Records Act, the only Act that theSponsors challenge, requires petition signers topublicly disclose their identity and their belief thatReferendum 71 should be placed on the ballot. Pet.10. In fact, Sponsors disclose this information to thepublic long before the Public Records Act comes intoplay. Petition signers publicly disclose thisinformation during the referendum process,pursuant to state laws that the Sponsors do notchallenge. Moreover, the Act does not require theSponsors to disclose any information. Rather, the

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Act applies only to government and requires onlygovernment to disclose public records.

The Sponsors’ second incorrect premise is thatthe Act is subject to strict scrutiny because allmatters relating to referendums, including signedreferendum petitions, constitute core political speech,and the Act applies to such petitions. Pet. 17. Infact, content- and viewpoint-neutral statutes ofgeneral application that incidentally burden speech,such as the Act, are not subject to strict scrutiny.Turner Broadcasting, 512 U.S. at 661-62. The sameis true of statutes regulating many aspects of theelection process. Buckley II, 525 U.SI at 186.

1. The Public Records Act Does NotRequire Petition Signers ToDisclose Their Identity Or Belief ToThe Public--Signers Disclose ThatInformation To The Public WhenThey Sign Referendum Petitions

The premise that the Act requires petitionsigners to disclose their identity and belief to thepublic is wrong for two reasons.

The first flaw with this premise is the notionthat a signer’s name and address are only disclosedto the public when a petition is released in responseto a public records request. In fact, voters disclosethis information to the public when they sign thepetition. As the court of appeals correctly explained,"the petitions are gathered in public, and there is noshowing that the signature-gathering process isperformed in a manner designed to protect theconfidentiality of those who sign the petition." Pet.12a. The "petition sheet contains spaces for 20

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signatures, exposing each signature to view by up to19 other signers and any number of potentialsigners." Id. Moreover, this signer information isdisclosed to the sponsor of the measure, and personswho gather signatures on behalf of the sponsor, andto anyone with whom they choose to share thisinformation.

The Sponsors acknowledge this disclosure tothe public, but argue it is not really public disclosurebecause the sponsor, signature gatherers, and othersigners share a common cause. Pet. 11-12. Thisargument ignores the signature-gathering process.Individuals are asked to read the petition sheets,which openly display the signatures that have beengathered. Although some may choose to sign, otherpeople may oppose the petition. Discussion andreading of the petitions ensures that the names ofpetition supporters are exposed to persons who donot agree with the cause.

In addition, nothing in Washington lawprohibits sponsors, signature gatherers, or othersigners from further disclosing or making use of theinformation for other purposes. For example, inCalifornia, petition circulators sought to use thenames and addresses of voters who signed a priorpetition to qualify a new measure for the ballot.They sought "to use the names and addresses ofsigners to mail to them blank petitions with arequest that they circulate them and return thesigned petitions to plaintiffs for filing[.]" Bilofsky v.Deukmejian, 177 Cal. Rptr. 621 (Cal. Ct. App. 1981).The circulators also sought to use this information"to mail notices to signers of campaign events andinformation concerning the progress of the campaign,

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and to mail to them additional materials, includingsolicitations for funds, for purposes consistent withthe objective of the campaign." Id. California lawprohibited using voters’ names and addresses on thepetitions for any purpose other than qualifying themeasure for the ballot. Id. There is no similarrestriction in Washington. Indeed, a sponsor maysell the list of names and addresses to anyone.

In this case,~it appears that the Sponsors didnot gather the voters’ signatures for the sole purposeof qualifying Referendum 71 for the ballot. TheReferendum 71 petitions also had a space for thesigners to provide their email addresses, even thoughstate law does not require voters to provide theiremail addresses, and the Secretary does not useemail addresses to verify voters’ signatures. ProtectMarriage Washington, the sponsor of Referendum71, converted from a ballot committee to a PoliticalAction Committee(PAC) after the electionin November 2009. See http://www.pdc.wa.gov!QuerySystem/politicalcommittees.aspx. The PAC isnot statutorily prohibited from using information itgathered on the initiative petition while it was aballot committee. It would not be surprising if thenames, addresses, and email addresses are nowbeing used to solicit donations for the PAC. See id.

Given that voters publicly disclose their namesand addresses when they sign the petition, anyremaining associational privacy interest is verylimited. In Uphaus v. Wyman, 360 U.S. 72 (1959),the Court affirmed a judgment of civil contempt forfailure to comply with a court order to produce thenames of individuals who stayed at a camp operatedby World Fellowship, Inc. According to the Court,

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the "individual rights in an associational privacy...were here tenuous at best." Id. at 80 (emphasisadded). This was because the records sought werealready public. The Court explained that the "campwas operating as a public one, furnishing both boardand lodging to persons applying therefor. As tothem, New Hampshire law requires that WorldFellowship, Inc., maintain a register, open toinspection of sheriffs and police officers." Id.; Gibsonv. Florida Legislative Investigation Comm., 372 U.S.539, 550 (1963) ("the claim to associational privacy inUphaus was held to be ’tenuous at best,’ since thedisputed list was already a matter of public record byvirtue of a generally applicable New Hampshire lawrequiring that places of accommodation, includingthe camp in question, maintain a guest register opento public authorities.") (citation omitted).

This case presents an analogous circumstance.Washington laws that the Sponsors do not challengerequire voters who seek a referendum to publiclydisclose their names and addresses on thereferendum petition. The subsequent availability ofthat information under the Public Records Act thusimplicates no significant interest in associationalprivacy.

In sum, the Sponsors’ premise that the PublicRecords Act requires public disclosure of theiridentities and beliefs is unsound. Voters disclosethat information to the public when, as unchallengedstate law requires, they decide to sign a referendumpetition.

The Sponsors’ premise that the Public RecordsAct requires them to disclose their identity and belief

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to the public is incorrect for a second reason. TheAct does not require voters to disclose anyinformation. The Act imposes obligations only ongovernment, requiring government to maintainpublic records and to disclose them upon request.The Act does not require petition signers to discloseany information to the public or to the government.Voters disclose their names and addresses onreferendum petitions to the public and thegovernment as a consequence of state election lawsthat the Sponsors do not challenge. Indeed, the Actdoes not impose any obligations on voters at all.

2. Laws Governing Initiatives AndReferendum Are Not AlwaysSubject To Strict Scrutiny

The Sponsors’ second premise--that the PublicRecords Act is subject to strict scrutiny because itregulates referendum petitions, and all laws relatingto the referendum process constitute core politicalspeech--is also wrong for two reasons. First, the Actdoes not regulate referendum elections. It is astatute of general application that requires thedisclosure of public records--including referendumpetitions. Second, even if the Act is somehow viewedas an election regulation, laws governing initiativeand referendum elections are not always subject tostrict scrutiny.

The Court does not apply strict scrutiny to alllaws that touch upon speech. Laws "that areunrelated to the content of speech are subject to anintermediate level of scrutiny because in most casesthey pose a less substantial risk of excising certainideas or viewpoints from the public dialogue."

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Turner Broadcasting, 512 U.S. at 642 (citationomitted). The Ninth Circuit held that the PublicRecords Act was subject to intermediate scrutiny,and was valid under that standard. Pet. 14a-19a.The Ninth Circuit’s decision is a correct applicationof the First Amendment. See infra pp. 32-36.

Nor are all laws that touch on any aspect ofinitiative or referendum elections always subject tostrict scrutiny. The Court has referred to petitioncirculation, not to the entire referendum electionprocess, as core political speech because petitioncirculation involves interactive communication--theexchange of ideas between the voter and thesignature gatherer with respect to the proposedmeasure. Meyer, 486 U.S. at 421-22 ("the circulationof a petition involves the type of interactivecommunication concerning political change that isappropriately described as ’core political speech."’);Buckley II, 525 U.S. at 186 ("Petition circulation, . . .is ’core political speech,’ because it involves’interactive communication concerning politicalchange.’"). Thus, "[p]etition circulation undoubtedlyhas a significant political speech component. Whenan initiative petition circulator approaches a personand asks that person to sign the petition, thecirculator is engaging in ’interactive communicationconcerning political change.’" Id. at 215 (O’Connor,J., concurring in the judgment in part and dissentingin part).

Contrary to the Sponsors’ premise, however,not every aspect of the referendum process isinteractive communication, and not every law thatgoverns initiative and referendum elections issubject to strict scrutiny. According to the Court in

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Buckley II, "[s]tates allowing ballot initiatives haveconsiderable leeway to protect the integrity andreliability of the initiative process, as they have withrespect to election processes generally." Id. at 191."Not all circulation-related regulations target this[interactive communication] aspect of petitioncirculation .... Some regulations govern theelectoral process by directing the manner in whichan initiative proposal qualifies for placement on theballot." Id. at 215 (O’Connor, J., concurring in thejudgment in part and dissenting in part). "Theselatter regulations may indirectly burden speech butare a step removed from the communicative aspect ofpetitioning and are necessary to maintain an orderlyelectoral process. Accordingly, these regulationsshould be subject to a less exacting standard ofreview." Id.

The Court has adopted a flexible test to judgeelection regulations under the First Amendment. Asthe Court explained in Washington State Grange v.Washington State Republican Party, 552 U.S. 442,128 S. Ct. 1184, 1191-92 (2008): "Electionregulations that impose a severe burden onassociational rights are subject to strict scrutiny, andwe uphold them only if they are narrowly tailored toserve a compelling state interest. If a statuteimposes only modest burdens, however, then theState’s important regulatory interests are generallysufficient to justify reason~able, nondiscriminatoryrestrictions on election proced~resf’ (Citations andinternal quotation marks omitted).

Signed petitions are released only after theyhave been publicly signed and submitted to theSecretary--that is when they become publie records.

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Disclosure under the Act is removed from theinteractive communication that exists when asignature gatherer is trying to persuade a voter tosign the petition. In this respect, disclosure underthe Act is like the circulator affidavit the Courtapproved of in BuckIey H. There, state law requiredthe petition circulators to "attach to each petitionsection an affidavit containing, inter alia, thecirculator’s name and address and a statement thathe or she has read and understands the lawsgoverning the circulation of petitions[.]" Buckley II,525 U.S. at 188-89 (footnotes and internal quotationmarks omitted). The affidavit was a "public record."Id. at 198. The Court approved of the affidavitrequirement because it "does not expose thecirculator to the risk of ’heat of the moment’harassment. Cf. 870 F. Supp. at 1004 (observingthat affidavits are not instantly accessible, and aretherefore less likely to be used ’for such purposes asretaliation or harassment"’). Buckley II, 525 U.S. at199. The same is true with respect to the release ofpetitions under the Act. The State’s interests ingovernmental transparency and accountability, andin providing voters with information, are importantinterests that justify this modest burden. See infrapp. 34-36.

Thus, if the Public Disclosure Act is viewed asan election regulation, it would not be subject tostrict scrutiny because it does not implicate corepolitical speech, and the burden it imposes on anyremaining interest in associational privacy is modestindeed. It would be anomalous to subject a law ofgeneral application, such as the Act, to strictscrutiny in its application to referendum.petitions,

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when the Act would not be subject to strict scrutinyas an election regulation governing only suchpetitions.

B. This Case Does Not Meet The Criteria ForIssuing A Writ Of Certiorari

The Sponsors spend slightly over one page inthe petition explaining why the Court should grantthe writ. But there is no basis for certiorari. Thereis no conflict or confusion in decisions of the court ofappeals and, contrary to the Sponsors’ claim, thiscase does not present an important national questionthat requires resolution by this Court.

1. The Ninth Circuit’s Decision DoesNot Conflict With Another DecisionAnd There Is No ConfusionRegarding The Application OfStrict Scrutiny In The Context OfInitiatives And Referendums

The Sponsors do not claim that the decisionbelow conflicts with any other decision of the court ofappeals, or the highest court of a state. Nor is thereany confusion in the circuit decisions related to theQuestions Presented. The Sponsors’ first QuestionPresented asks whether the Public Disclosure Act issubject to strict scrutiny. Pet. i. The courtsconsistently draw the distinction between laws thatrestrict or regulate communicative conduct and lawsthat simply affect other aspects of the referendum orinitiative process.

Initiative and Referendum Institute v. Walker,450 F.3d 1082, 1085 (10th Cir. 2006), concerned aprovision in the Utah Constitution requiring any

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initiative relating to hunting to be passed by a two-thirds vote. The plaintiffs claimed that thisrequirement had a "chilling effect on their speech insupport of wildlife initiatives in Utah" and arguedthat the requirement was subject to strict scrutiny,relying on Meyer and Buckley II. Id. at 1088, 1099.The Tenth Circuit refused to apply strict scrutiny,and upheld the requirement. The "distinction isbetween laws that regulate or restrict thecommunicative conduct of persons advocating aposition in a referendum, which warrant strictscrutiny, and laws that determine the process bywhich legislation is enacted, which do not." Id. at1099-1100. Quoting the Tenth Circuit’s analysis, theSecond Circuit applied the same reasoning inMolinari v. Bloomberg, 564 F.3d 587, 599 (2d Cir.2009) (quoting Initiative and Referendum Inst., 450F.3d at 1099-1100). So did the Sixth Circuit inTaxpayers United for Assessment Cuts v. Austin, 994F.2d 291 (6th Cir. 1993). In Taxpayers United, thecourt recognized that "the state may constitutionallyplace nondiscriminatory, content-neutral limitationson the plaintiffs’ ability to initiate legislation.Unlike the challenged provisions in Meyer,Michigan’s initiative system does not restrict themeans that the plaintiffs can use to advocate theirproposal. Further, the Michigan procedure does notlimit speech on the basis of content." Id. at 297. TheEighth Circuit followed suit. In Dobrovolny v. Moore,126 F.3d 1111, 1113 (8th Cir. 1997), cert. denied,523U.S. 1005 (1998), the court explained that"Meyer does not require us to subject a state’sinitiative process to strict scrutiny in order to ensurethat the process be the most efficient or affordable.

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Absent some showing that the initiative processsubstantially restricts political discussion... Meyeris inapplicable." Nor is there any confusion in theNinth Circuit. See Caruso v. Yamhill Cy. ex rel. Cy.Comm’r, 422 F.3d 848, 855-56 (9th Cir. 2005)("unlike the provisions challenged in McIntyre andMeyer (which respectively prohibited the distributionof anonymous campaign literature, and the paymentof petition circulators), section 280.070(4)(a) governsthe political process more than it does politicalspeech.") (citations omitted). Finally, the EleventhCircuit is also in accord. Biddulph v. Mortham, 89F.3d 1491, 1498 (11th Cir. 1996), cert. denied, 519U.S. 1151 (1997) ("The Meyer Court did not examineColorado’s initiative process as such. Rather, theCourt indicated that a state, though generally free toregulate its own initiative process, is limited in theextent to which it can permissibly burden thecommunication of ideas about the political change atissue in an initiative proposal that occurs duringpetition circulation.") (citation and footnote omitted).

Thus, neither conflict between the courts norconfusion among the circuits--haiimark reasons forthe grant of certiorari--is present in this case.

2. Contrary To The Sponsors’ Claim,This Case Does Not Present AnImportant National Question

The Sponsors’ only argument in support ofcertiorari is that this case presents an importantquestion of whether citizens "may be constitutionallycompelled to publicly disclose identifyinginformation about themselves and their support forplacing the measure on the ballot, or whether the

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State interests are satisfied by private disclosure."Pet. 8.5 Sponsors claim that this issue arises withgreat frequency because 27 states have some kind ofinitiative and or referendum procedure. Id. In fact,outside of this case, the Sponsors point to no othercase that raises this question. Thus, the case hardlypresents an important national issue warranting theattention of the Court.

Moreover, it is not unusual for initiative orreferendum petitions to be released to the public.Every state in the union has some kind of publicdisclosure law. Butt A. Braverman & Wesley R.Heppler, A Practical Review of State Open RecordsLaws, 49 Geo. Wash. L. Rev. 720, 722 (1980-1981).6

Citizens have used these public disclosure laws toinspect initiative and referendum petitions. State extel. Halloran v. McGrath, 67 P.2d 838, 840 (Mont.1937) (referendum "petitions or sections of petitionsin the hands of the county clerk and recorder.., are

~ The Sponsors also suggest that this case provides anopportunity to address the application of the preliminaryinjunction standard in Winter v. Natural Resources DefenseCouncil, 129 S. Ct. 365 (2008), in a speech-protective manner,to the First Amendment context. Pet. 7 n.9. This is not a basisfor certiorari. The Sponsors do not claim that the Ninth Circuitmisapplied Winter or that there is any confusion about how toapply the Winter standard. It appears from the Sponsors’discussion (Pet. 29-31) that they simply invite the Court to takeup clear, well-established, preliminary injunction standards,and jettison them in favor of standards that the Sponsors wouldprefer.

6 When this article was written in 1980, Mississippi

was the only state that did not have a law requiring disclosureof public records. Mississippi adopted a public disclosure law in1983. Miss. Code Ann. § 25-61-1 (West 2009).

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at that time and place subject to public inspection. Itis undisputed that when the petitions come to theSecretary of State with the certificates of the countyclerks they are public records and subject toinspection"); State ex rel. Kernells v. Ezell, 282 So. 2d266, 269 (Ala. 1973) ("In the instant case, it seemsclear that the appellant is entitled to inspect this’public writing’ in the hands of the probate judge,namely, the referendum petition, and that the trialcourt was in error in sustaining the motion todismiss the petition for mandamus and indischarging the alternative writ under theallegations as disclosed by the petition.").

In some states, initiative and referendumpetitions are public as a matter of law without apublic records request. For example, Utah"[i]nitiative packets are public once they aredelivered to the county clerks." Utah Code Ann.1953 § 20A-7-206(7) (West 2009). In Utah, a "voterwho has signed an initiative petition may have hissignature removed from the petition by submitting anotarized statement to that effect to the countyclerk." Utah Code Ann. 1953 § 20A-7-205(3)(a)(i)(West 2009). For this reason, opponents of ameasure may "contactH the petition signers toencourage them to remove their signatures from thepetition." Gallivan v. Walker, 54 P.3d 1069, 1077(Utah 2002).

Prior to the adoption of the Public RecordsAct, the Attorney General advised that names oninitiative and referendum petitions were not publicrecords because "[w]hile there is no specific statuteon the precise question presented, the above statutesdemonstrate, in our view, a tendency on the part of

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the legislature to regard the signing of an initiativepetition as a matter concerning only the individualsigners except in so far as necessary to safeguardagainst abuses of the privilege." 55-57 Op. Att’y Gen.274 (Wash. 1956); Pet. 64a-65a. After the adoptionof the Act in 1972, there has been a specific statuteunder which petitions are public records. TheSecretary has released petitions concerning limitingmotor vehicle charges, government regulation ofprivate property, energy resource use, and long-termcare services.

Despite the fact that initiative andreferendum petitions have been released around thecountry for years, the question of whether the releaseviolates the signers’ First Amendment rights hasnever been raised until this case. This fact belies theSponsors’ claim that this case presents an importantnational question that must be resolved by thisCourt.

The Sponsors point to the fact that a website,http://knowthyneighbor.org/, has petition signerinformation on marriage issues in Arkansas, Florida,Massachusetts, and Oregon and allege that thepurpose of the site is to encourage harassment andintimidation of the signers. Pet. 8. The Sponsorsalso argue that supporters of traditional marriagehave been harassed and threatened because theyoppose same-sex marriage or domestic partnershipsbetween same-sex couples. Pet. 5-6. However, theclaim that the petitions should not be releasedbecause of the possibility of harassment and threatsis not before the Court.

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In Count II of their complaint, the Sponsorsclaim releasing Referendum 71 petitions under theAct would violate the petition signers’ FirstAmendment right of association because disclosurewould subject them to threats, reprisals, andharassment. Count II is based on NAACP v.Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958)and Brown v. Socialist Workers ’74 CampaignCommittee (Ohio), 459 U.S. 87 (1982). In these cases,the Court blocked the release of names of members ofminority groups that hold views outside themainstream, whose effectiveness may depend onprotection from disclosure of private speech oridentity. To prevail, the groups must show a’"reasonable probability’ that the compelleddisclosures [will subject those identified] to ’threats,harassment, or reprisals’" that will cause substantialharm to associational interests. Brown, 459 U.S. at88 (quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976)).Both the district court and the court of appealsexpressly declined to reach Count II, and it is notbefore this Court. Obviously, if the Court denies thewrit, the district court will have to rule on Count II.7

The Sponsors fail to demonstrate any reasonto grant certiorari. The decision below is not in

7 In ProtectMarriage.com v. Bowen, 599 F. Supp. 2d

1197, 1217 (E.D. Cal. 2009), the district court refused to enjoinrelease of the names of individuals who contributed toProposition 8, the California measure that banned same-sexmarriage because plaintiffs "do not, indeed cannot, allege thatthe movement to recognize marriage in California as existingonly between a man and a woman is vulnerable to the samethreats as were socialist and communist groups, or, for thatmatter, the NAACP."

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conflict with another decision, there is no confusionin the circuits, and this case does not present animportant national question.

C. The Ninth Circuit’s Decision Is A RoutineAnd Correct Application Of The FirstAmendment

The court of appeals held that the PublicRecords Act does not violate the First Amendmentbecause it satisfies intermediate scrutiny. Thisdecision is a correct application of the FirstAmendment, and does not require review by thisCourt.

The Court’s precedents "apply the mostexacting scrutiny to regulations that suppress,disadvantage, or impose differential burdens uponspeech because of its content." Turner Broadcasting,512 U.S. at 642. Thus, "[1]aws that compel speakersto utter or distribute speech bearing a particularmessage are subject to the same rigorous scrutiny[.]"Id. On the other hand, "regulations that areunrelated to the content of speech are subject to anintermediate level of scrutiny because in most casesthey pose a less substantial risk of excising certainideas or viewpoints from the public dialogue." Id.(emphasis added, citations omitted).

The Public Records Act is subject tointermediate scrutiny because it is a statute ofgeneral application that is content and viewpointneutral. "As a general rule, laws that by their termsdistinguish favored speech from disfavored speech onthe basis of the ideas or views expressed are contentbased." Id. at 643. "By contrast, laws that conferbenefits or impose burdens on speech without

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reference to the ideas or views expressed are in mostinstances content neutral." Id. Judged by thisstandard, the Act is content neutral. A public recordis defined as "any writing containing informationrelating to the conduct of government or theperformance of any governmental or proprietaryfunction prepared, owned, used, or retained by anystate or local agency[.]" Wash. Rev. Code§ 42.56.010(2). This definition does not distinguishbetween favored and unfavored speech. Nor does itsingle out particular speakers or content. State andlocal governments "make available for publicinspection and copying all public records, unless therecord falls within [a] specific exemption[.]" Wash.Rev. Code § 42.56.070. No conditions are imposed onthe release of public records based on favored orunfavored speech.

A statute satisfies intermediate scrutiny if:"[1] it furthers an important or substantialgovernmental interest; [2] if the governmentalinterest is unrelated to the suppression of freeexpression; and [3] if the incidental restriction onalleged First Amendment freedoms is no greaterthan is essential to the furtherance of that interest."Turner Broadcasting, 512 U.S. at 662 (quotingO’Brien, 391 U.S. at 377). "To satisfy this standard,a regulation need not be the least speech-restrictivemeans of advancing the Government’s interests.Rather, the requirement of narrow tailoring issatisfied so long as the regulation promotes asubstantial government interest that would beachieved less effectively absent the regulation."Turner Broadcasting, 512 U.S. at 662 (internalquotation marks omitted).

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The Public Records Act satisfies this standard.The State has two important governmentalinterests.8 The first is an interest in governmenttransparency and accountability. In the context ofreferendum signature petitions, this includes theability of Washington citizens independently toevaluate whether the Secretary properly determinedwhether to certify or not to certify a referendum tothe ballot. Washington election law expresslycontemplates that any of its citizens "dissatisfiedwith the determination of the secretary" will havethe opportunity to challenge the determination ofwhether "an initiative or referendum petitioncontains or does not contain the requisite number ofsignatures of legal voters[.]" Wash. Rev. Code§29A.72.240. Any meaningful opportunity tochallenge the Secretary’s determination requiresaccess to signature petitions. Without such access,persons dissatisfied with the Secretary’sdetermination would not be able to evaluate whetherthe gross number of signature petitions submitted tothe Secretary satisfied the constitutional minimum,whether the Secretary counted duplicate signatures,or whether the Secretary counted the signatures ofpersons who arenot eligible to vote underWashington law. The interest in governmenttransparency and accountability also includes theauthority of citizens to determine whether personswho sign referendum petitions in violation of statelaw are subject to appropriate prosecution--in otherwords, to evaluate whether state law enforcement

s Although strict scrutiny is not the proper level of

scrutiny, these governmental interests are compelling andnarrowly tailored and therefore would satisfy that standard.

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agencies are acting to enforce Washington election-related criminal laws. See Wash. Rev. Code§29A.72.140 (requiring referendum petitions towarn of criminal penalties for knowingly (1) signingthe same petition more than once, (2) signing whennot a legal voter, and (3) making false statements onthe petition).

The second important governmental interest isproviding Washington voters the opportunity toknow who has invoked the peoples’ direct legislativepower or, put somewhat differently, who supportsthe measure. When voters sign a referendumpetition, they "order and direct" the Secretary to putthe measure on the ballot. When voters sign apetition they are acting in their legislative capacity.State ex rel. Heavey v. Murphy, 982 P.2d 611, 615(Wash. 1999) (’"A referendum or an initiativemeasure is an exercise of the reserved power of thepeople to legislate, and the people in their legislativecapacity remain subject to the mandates of the[Washington] Constitution.’") (citations omitted).

The governmental interests in transparencyand accountability, and providing information to thepublic, are unrelated to the suppression of freeexpression. In fact, these interests enhance freeexpression by allowing people to obtain informationabout their government so that they can makeinformed decisions.

Finally, if any incidental restrictions on FirstAmendment freedoms are caused by the Act (and inour view there are none), they are no greater thannecessary to further the governmental interests.Public records are only released in response to a

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Dec. 7, 2009

request. Thus, any incidental impact on FirstAmendment freedoms exists only if a citizen requiresthe information and makes a request.

The Public Records Act satisfies intermediatescrutiny, and the Ninth Circuit decision upholdingthe Act on that basis is a correct application of theFirst Amendment. It does not require review by thisCourt.

CONCLUSION

The petition for a writ of certiorari should bedenied.

Respectfully Submitted.

ROBERT M. MCKENNAAttorney General

William Berggren Collins*Anne Elizabeth Egeler

Deputy Solicitors General*Counsel of Record

1125 Washington Street SEOlympia, WA 98504-0100350-753-6245