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Originally published September 10, 2009 at 8:57 PM | Page modified September 28, 2009 at 1:52 PM

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Judge shields signatures in gay-rights referendum

A federal judge has continued to keep private the names and addresses of those who signed Referendum 71, saying they likely are protected under the First Amendment and that the state failed to prove a compelling public interest in their release. The state attorney general's office says it will appeal.

Seattle Times staff reporter

A federal judge has continued to keep private the names and addresses of those who signed Referendum 71, saying they likely are protected under the First Amendment and that the state failed to prove a compelling public interest in their release.

U.S. District Judge Benjamin Settle in Tacoma granted a preliminary injunction today, blocking the state from making the petitions public.

Settle's decision alarmed state officials and some public-records advocates, who said that the judge misinterpreted Supreme Court precedent and that the decision could eviscerate open government laws.

The Washington state attorney general's office says it will appeal the decision.

R-71 asks voters whether to approve or reject a recently passed state law granting marriage-like benefits to same-sex couples who are registered domestic partners. The law also applies to heterosexual couples where one partner is at least 62.

Protect Marriage Washington, a consortium of religious conservative groups and individuals opposed to domestic-partner benefits, filed a lawsuit seeking to block release of the names of those who signed petitions to get R-71 onto the November ballot.

The secretary of state's office — the defendant in the case — has said it is obligated under the state Public Records Act to release the petitions to those who request them.

But Protect Marriage argued that the law "chills free speech ... particularly when it is reasonably probable that those exercising their First Amendment rights would be subjected to threats and harassment."

Some gay-rights activists — with groups knowthyneighbor.org and whosigned.org — have said they would post and make searchable online the names and addresses of all who signed R-71 petitions.

Stephen Pidgeon, attorney with Protect Marriage, said: "We think this is a good decision. It protects Washington voters' right to speak freely even in impassioned debate."

Brian Murphy, who is prepared to post the names of signers on his searchable Web site, whosigned.org, called it "shocking that Protect Marriage Washington is attacking gay and lesbian couples and their families and then somehow claiming the right to secrecy and victim status for themselves."

Spokeswoman Janelle Guthrie said Attorney General Rob McKenna — whose office represents the secretary of state in the case — will ask the Ninth U.S. Circuit Court of Appeals to review the decision on a fast track. In the meantime, he wants the appeals court to lift the injunction blocking the names.

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Brian Zylstra, spokesman for Secretary of State Sam Reed, said the Judge Settle's order was "a step away from open government."

"When people sign a referendum or initiative petition, they are trying to change state law," he said. "We believe that changing state law should be open to public view."

If Settle's ruling stands, Zylstra added, "we are very concerned that it could set a dangerous precedent that sponsors of future initiatives or referenda might use to prevent their petition sheets from being made available to the public, even though they are government documents."

Settle had previously granted a temporary restraining order blocking release of the names. His order Thursday preserves the status quo — the names remain secret — while he decides the case on its merits.

Still, in issuing the preliminary injunction, Settle said Protect Marriage has shown it likely would prevail.

Settle said Protect Marriage has established that it's likely that signing a referendum petition is protected free speech, which includes the right to speak anonymously.

He said he was "not persuaded that waiver of one's fundamental right to anonymous political speech is a prerequisite for participation in Washington's referendum process."

Furthermore, in light of the state's own verification process, Settle said he wasn't convinced that release of the names is necessary as "an important check on the integrity of the referendum election process."

Indeed, Settle said that Protect Marriage is likely to succeed in its claim that the public-records act is unconstitutional as applied to the disclosure of referendum petitions.

If Settle also decides that way in his final ruling, it could affect public disclosure not just on R-71 but other referendums and initiatives, said Jim Pharris with the Attorney General's Office.

"We're concerned about any ruling that suggests our public-disclosure law is unconstitutional" as it applies to referendums, Pharris said.

Seattle First Amendment lawyer Michele Earl-Hubbard, who frequently represents news organizations including The Seattle Times, believes Settle's 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 soapbox 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."

Pidgeon, with Protect Marriage, said he expects the judge to move forward with deciding the merits of the case within the next several weeks.

The extended domestic-partnership law was supposed to take effect July 26, but the referendum campaign put it on hold. Now, it will take effect only if approved by voters.

If the law is rejected at the polls, previously enacted legislation on domestic partnerships, with fewer benefits, would remain in place.

More than 5,900 domestic-partnership registrations have been filed in Washington since the first law took effect in July 2007.

Seattle Times staff reporter Lornet Turnbull and The Associated Press contributed to this report.

Janet I. Tu: 206-464-2272 or jtu@seattletimes.com

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