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Originally published September 11, 2009 at 2:48 PM | Page modified September 28, 2009 at 1:57 PM

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Wash. to appeal judge's decision on R-71 signers

The state attorney general said Friday he is appealing a federal judge's decision to keep secret the names of people who signed petitions supporting Referendum 71, which calls for a public vote on expanded domestic partnership benefits in Washington.

Associated Press Writer

SEATTLE —

The state attorney general said Friday he is appealing a federal judge's decision to keep secret the names of people who signed petitions supporting Referendum 71, which calls for a public vote on expanded domestic partnership benefits in Washington.

Attorney General Rob McKenna said he would ask the 9th U.S. Circuit Court of Appeals to review the decision on a fast track and lift an injunction that blocks the release of the names.

U.S. District Judge Benjamin Settle issued the injunction Thursday in Tacoma, saying signature petitions for R-71 should not be released because such a release would likely chill the First Amendment rights of the signers, who claimed they could be subject to harassment.

Settle said people have a right to participate anonymously in the political process, and the state's Public Records Act is likely unconstitutional because it abridges that right.

The decision alarmed state officials and public records advocates, who said he misinterpreted Supreme Court precedent and would eviscerate open government laws.

To qualify for the ballot, a referendum must be backed by signatures totaling 4 percent of the turnout for the previous governor's election. Without being able to review those names, the public would have no way of determining whether the secretary of state's office counted them properly.

"Government documents are public records and they should be made public upon request," Brian Zylstra, a spokesman for Secretary of State Sam Reed, said Friday. "We're pleased the attorney general is appealing."

The referendum, sponsored by a group called Protect Marriage Washington, asks voters to approve or reject the "everything but marriage" law that state lawmakers passed earlier this year. The law would give domestic partners all rights enjoyed by married heterosexuals.

Supporters sued in July to prevent the secretary of state's office from releasing the petitions under the Public Disclosure Act. They argued that some R-71 backers, including Larry Stickney of Protect Marriage Washington, the campaign's organizer, had been subject to threats and harassment, and such harassment could increase if the names of all petition signers were made public.

But state Assistant Attorney General Jim Pharris told the judge that Protect Marriage hasn't shown significant harm beyond rude comments or phone calls - nothing that would "be appropriate to overturning the state's strong tradition for open government."

Protect Marriage lawyer Stephen Pidgeon said Friday he wasn't surprised the government is appealing, but he said, "They're wrong on the law."

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

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

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

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

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

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

All of those affirmed the right of people to remain anonymous in their dealings with the public - in effect, their right to speak from a soap-box without identifying themselves. But that doesn't mean people have a right to be anonymous in their dealings with the government, especially when they sign a petition seeking to put an initiative or referendum on the ballot, Earl-Hubbard said.

"The public has a right to know whether these are valid signatures," Earl-Hubbard said. "Are they living people? Are they dead people? Do they live in the right jurisdiction? I don't know how in the world you can test petitions if you can't see the names. It totally destroys the political process."

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On the Net:

Protect Marriage Washington: http://www.protectmarriagewa.com

Washington Families Standing Together: http://www.wafst.org

WhoSigned.Org: http://www.whosigned.org

Domestic partnership information: http://www.secstate.wa.gov/corps/domesticpartnerships

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