FILED DEC;’- 20119 · 2010. 1. 9. · No. 09-559 Supreme Court, U.S. FILED DEC;’- 20119 OFFICE OF THE CLERK In the John Doe #1, John Doe #2, and Protect Marriage Washington, Petitioners

No. 09-559

Supreme Court, U.S.FILED

DEC;’- 20119OFFICE OF THE CLERK

In the

John Doe #1, John Doe #2, and ProtectMarriage Washington,

PetitionersV.

Sam Reed, Secretary of State of Washington;and Brenda Galarza, in her official capacity as

Public Records Officer for the Secretary ofState of Washington,

Respondents

On Petition for A Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit

Respondent Washington Families StandingTogether’s Brief in Opposition to

Petition for Writ of Certiorari

Kevin J. HamiltonCounsel of RecordNicholas P. GellertPERKINS COIE LLP1201 Third Ave., Suite 4800Seattle, WA 98101-3099(206) 359-8000

Counsel for Respondent

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QUESTION PRESENTED

Whether Washington’s Public Records Act,which requires disclosure of public records toprotect the public interest, violates the FirstAmendment when applied to require publicdisclosure of copies of referendum petitions, whichare typically signed in public without promise orsuggestion of confidentiality and thereafterintentionally submitted to state election officials forthe purpose of placing the referendum on the ballot.

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PARTIES TO THE PROCEEDINGSAND RULE 29.6 STATEMENT

In addition to the parties named in thecaption, both Washington Families StandingTogether ("WAFST") and Washington Coalition forOpen Government are Defendants-Intervenorsbelow.

WAFST has no parent corporation and nopublicly held company owns any stock in it.

II.

III.

IV.

Vo

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TABLE OF CONTENTSPage

OPINIONS BELOW .......................................1

JURISDICTION .............................................1

PERTINENT STATUTES AND RULES .......1

STATEMENT OF THE CASE .......................2

A. The Referendum Process inWashington State ....................................2

B. Washington’s Public RecordsAct ............................................................6

C. Petitioners’ Action ...................................7

REASONS FOR DENYING THEPETITION ......................................................9

A. This Case Is a Poor Vehicle forResolving Whether theDisclosure of ReferendumPetitions Complies With theFirst Amendment ..................................10

1. The Factual Record IsLimited and Undevelopedand Cannot Support anInquiry into the Petitioners’Challenges ..................................10

2. The Issues Presented HaveNot Been Addressed byOther Courts ...............................13

VI.

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B. The Questions Presented AreNot Important Issues of LawThat Conflict with the Decisionsof This Court .........................................15

1. The Issues Presented AreNot Important Questions ofFederal Law ................................15

2. The Court of Appeals’Decision Is Correct and DoesNot Conflict with Decisionsof This Court ...............................15

a. The ReferendumProcess Is anInherently PublicProcess ........................16

b. The PRA IsConstitutional asApplied toReferendumPetitions ......................17

CONCLUSION .............................................19

oV-

APPENDIX TABLE OF CONTENTS

Page

Washington State ConstitutionArticle II ......................................................la

Revised Code of Washington§ 29A.72.010 ...............................................5a

Revised

Revised

Revised

Revised

Revised

Code of Washington29A.72.100 ...............................................6a

Code of Washington29A.72.130 ...............................................6a

Code of Washington29A.72.150 ...............................................8a

Code of Washington29A.72.160 ...............................................8a

Code of Washington42.56.030 .................................................9a

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TABLE OF AUTHORITIES

Page

CasesBar-Nevon v. Brevard County

Sch. Bd., 290 Fed. Appx. 273(11th Cir. 2008) ...................................................17

Braxton v. United States, 500U.S. 344 (1991) ...................................................14

Buckley v. AmericanConstitutional LawFoundation Inc. 525 U.S. 182(1999) ..................................................................11

Buckley v. Valeo, 424 U.S. 1(1976) ....................................................................6

Bunting v. Mellen, 541 U.S.1019 (2004) .........................................................14

Eu v. San Francisco CountyDemocratic Centr. Comm.,489 U.S. 214 (1989) ............................................18

Grosjean v. American Press Co.,297 U.S. 233 (1936) ..............................................6

Jacobs v. Clark County Sch.Dist., 526 F.3d 419 (9th Cir.2008) ....................................................................17

Meyer v. Grant, 486 U.S. 414(1988) ............................................................11, 12

United States v. O’Brien, 391U.S. 367 (1968) .............................................17, 18

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United States v. Seckinger, 397U.S. 203 (1970) ...................................................14

Vlasak v. Super. Ct. of Cal., 329F.3d 683 (9th Cir. 2003) .....................................17

Statutes

28 U.S.C. § 1254(1) ...................................................1

Chapter 29A.72 Wash. Rev. Code ...........................1

Wash. Rev. Code § 29A.72.010 ............................2, 3

Wash. Rev. Code

Wash. Rev. Code

Wash. Rev. Code

Wash. Rev. Code

Wash. Rev. Code

§ 29A.72.100 ............................2, 3

§ 29A.72.130 ............................2, 3

§ 29A.72.150 ........................2, 3, 4

§ 29A.72.160 ............................2, 4

§ 29A.72.230 ................................4

Wash. Rev. Code § 29A.72.240 ................................6

Chapter 42.56 Wash. Rev. Code ..........................1, 6

Wash. Rev. Code § 42.56.030 ...............................2, 6

Wash. Rev. Code § 42.56.070 ...................................6

Regulations and Rules

Fed. R. of Civ. P. 65(b) .............................................8

Constitutional Provisions

Wash. Const. art. II, § l(b) ..................................1, 2

Wash. Const. art. II, § l(d) ......................................6

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Brief in Opposition to Petition for Writof Certiorari for Washington Families

Standing Together

I. OPINIONS BELOW

The decision of the court of appeals isreported at __ F.3d __, 2009 WL 3401297 (9th Cir.Oct. 22, 2009). The district court’s order andopinion, which granted a preliminary injunction infavor of Plaintiffs below and was reversed by thecourt of appeals, is unreported. Pet. App. 23a.1

II. JURISDICTION

Respondent WAFST agrees that jurisdictionunder 28 U.S.C. § 1254(1) is proper.

III. PERTINENT STATUTES AND RULES

The relevant statutes and rules are includedin the appendix to the Petition for Writ ofCertiorari ("Petition" or "Pet."). Petitioners claimthat Washington’s Public Records Act, Chapter42.56 Wash. Rev. Code, which requires publicrecords to be available to the public, violates theFirst Amendment (Pet. App. 46a) when applied torequired public disclosure of copies of referendumpetitions, which are submitted to state electionofficials for the purpose of placing a referendum onthe ballot pursuant to the WashingtonConstitution, article II, § l(b) (Pet. App. 46a) andChapter 29A.72 Wash. Rev. Code.

l "Pet. App." refers to the Appendix to the Petition forWrit of Certiorari filed by Petitioners John Doe #1, John Doe#2, and Protect Marriage Washington.

The following are appended because they arenot included in the appendix to the Petition:Washington Constitution article II, section 1(App. la); Wash. Rev. Code § 29A.72.010 (App. 5a);Wash. Rev. Code § 29A.72.100 (App. 6a); Wash.Rev. Code § 29A.72.130 (App. 6a); Wash. Rev. Code§ 29A.72.150 (App. 8a); Wash. Rev. Code§ 29A.72.160 (App. 8a); Wash. Rev. Code§ 42.56.030 (App. 9a).

IV. STATEMENT OF THE CASE

The Referendum Process in WashingtonState

Petitioner Protect Marriage Washington("PMW") was the sponsor and principal proponentof a referendum petition ("Referendum 71") (Pet.App. 29a) that qualified for Washington’s statewideelection ballot in November 2009. Pet. 2. The JohnDoe petitioners signed the petition to placeReferendum 71 on the ballot and thereafterobjected to the public disclosure of copies of thepetitions bearing their signatures. Pet. 2.2

The Washington Constitution reserves to thepeople of Washington State the power to requirevoter approval of any bill adopted by the legislaturethrough the referendum process. Wash. Const. art.II, § l(b) (Pet. App. 46a). This process begins whenreferendum proponents file their proposed

2 Petitioners do not challenge the constitutionality ofWashington’s referendum process. Pet. 11. The FirstAmendment issue raised in this case, however, must beconsidered in context with the referendum laws inWashington and how they were applied to Referendum 71.

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referendum with the Secretary of State, Wash. Rev.Code § 29A.72.010 (App. 5a), and then circulatepetitions for signatures of registered voters, Wash.Rev. Code § 29A.72.150 (App. 8a).

The unchallenged referendum petitionstatute requires the petitions to be in a certainform. In particular, signers must print and signtheir names, and state their address, including thecity and the county in which they are registered tovote. Wash. Rev. Code § 29A.72.130 (App. 6a).Each referendum petition sheet is to have "lines fornot more than twenty signatures," Wash. Rev. Code§29A.72.100 (App. 6a), and the petition forReferendum 71 had exactly twenty. Pet. App. 29a-30a. Thus, each person who is asked to sign thepetition can observe, record, and even copy thenames and addresses of the voters who havealready signed the same sheet (or attached sheets).Petition gatherers and proponents of thereferendum petition are under no obligation to keepthe petitions confidential and may use them forfundraising, canvassing, and other politicalpurposes without restriction.

Signatures for the Referendum 71 petitionswere gathered in public locations across the Stateof Washington, including several churches andoutside retail stores such as Wal-Mart, Target, andFred Meyer. ER 068-069.3

After gathering a sufficient number ofsignatures, referendum petition proponents are tofile the signed petitions with the Secretary of State

3 "ER" refers to the Excerpt of Record filed with the

court of appeals.

by no later than 90 days after the finaladjournment of the session of the legislature whichpassed the act. Wash. Rev. Code §§ 29A.72.150,160 (App. 8a). PMW filed most of its petitions withthe Secretary of State by the deadline for filingsuch petitions. PMW, however, failed to timely fileall of the signed petitions it had gathered, and theSecretary of State refused to accept the late-filedpetition sheets. PMW’s Memorandum inOpposition to Plaintiffs Motion for a TemporaryRestraining Order, served in Washington FamiliesStanding Together v. Secretary of State Sam Reed,Superior Court of the State of Washington for KingCounty, Case No. 09-2-31908-1 SEA. PMWmaintained those rejected, signed petitions in itspossession, with no obligation to keep themconfidential.4 Indeed, even with respect to petitionssubmitted and accepted by the Secretary of State,the proponents were free to make and retain copiesof the petitions and to utilize them for fundraising,canvassing, and analysis to help focus theirpolitical activity regarding the referendum (or forany other political purpose).

The Secretary of State is tasked withverifying and canvassing the names and signatureson the petitions to ensure that they are ofregistered voters, to eliminate any duplication andto determine that the minimum number of validsignatures exists to place the measure on theballot. Wash. Rev. Code § 29A.72.230 (Pet. App.

4 In fact, there is no way of knowing whether the John

Doe petitioners signed petitions that were actually filed withthe Secretary of State--and thus subject to publicdisclosure---or whether the sheets they signed were part ofthe group that PMW submitted late and were rejected.

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49a). This verification and canvassing process isopen to public observation by both proponents andopponents of the referendum petition. Id. WithReferendum 71, which had generated publicinterest and media attention, the verification andcanvassing stage was also open to members of themedia. ER 078-079. Copies of the petitions werethus publicly available during the review process,allowing media and campaign representatives toview individual names, signatures and addresseswithout obstruction.5

Any citizen who disagrees with the Secretaryof State’s determination on the validity or thenumber of the petition signatures may apply toWashington superior court for a review of that

5 Although the Secretary of State has adopted rules topreclude the observers from recording or disclosing individualnames on the petitions during the evaluation process, seeDeclaration of Mona Smith in Support of Plaintiffs Motion forTemporary Restraining Order Ex. A, filed in WashingtonFamilies Standing Together v. Secretary of State Sam Reed,Superior Court of the State of Washington for King County,Case No. 09-2-31908-1 SEA, Dkt. # 3B, at least forReferendum 71, the rule was neither effectively nor uniformlyenforced. Indeed, the proponents of the referendum petition(Petitioners here) violated that very rule by not only takingnote of the name of an individual who signed the petition, butby contacting a relative of that individual, all in expressviolation of the Secretary of State’s rules. Declaration ofAmanda J. Beane in Support of Plaintiffs Motion forInjunctive Relief, Exhibit B: Declaration of Kevin J. Hamiltonin Support of Plaintiffs Motion for Temporary RestrainingOrder ¶ 8, filed in Washington Families Standing Together v.Secretary of State Sam Reed, Superior Court of the State ofWashington for Thurston County, Case No. 09-2-02145-4,Dkt. # 7.

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determination. Wash. Rev. Code § 29A.72.240 (Pet.App. 50a). The court and parties to such litigationmust be able to examine the signatures todetermine their validity. If the court determinesthat the petition contains the required validsignatures, then the referendum is placed on theballot at the next general election. Wash. Const.art. II, § l(d) (App. 4a).

B. Washington’s Public Records Act

Washington’s Public Records Act, Chapter42.56 Wash. Rev. Code (the "PRA"), mandates thatpublic records be made available for publicinspection and copying. Wash. Rev. Code§42.56.070 (Pet. App. 56a.) The PRA itselfadopted pursuant to Washington’s initiativeprocess--is designed to promote transparency ingovernment and access to governmental records.In the words of the statute, "[t]he people of thisstate do not yield their sovereignty to the agenciesthat serve them. The people, in delegatingauthority, do not give their public servants theright to decide what is good for the people to knowand what is not good for them to know. The peopleinsist on remaining informed so that they maymaintain control over the instruments that theyhave created." Wash. Rev. Code § 42.56.030 (App.9a). This Court has routinely recognized publicdisclosure is an important interest. Buckley v.Valeo, 424 U.S. 1, 66-68 (1976) (holding that publicdisclosure constitutes a substantial governmentinterest on public informational, anti-corruptionand record-keeping grounds); Grosjean v. AmericanPress Co., 297 U.S. 233, 250 (1936) (observing thatan "informed public opinion is the most potent of allrestraints upon misgovernment"). Petitioners

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acknowledge that the Secretary of State considersreferendum petitions filed with the Secretary ofState to be part of the legislative process and publicrecords.

C. Petitioners’ Action

Soon after PMW filed the signed petitions forReferendum 71 with the Secretary of State, severalentities made public records requests for thepetitions, pursuant to the PRA. Pet. App. 30a-31a.Later, after it had initiated legal proceedings insuperior court challenging the Secretary of State’sdetermination of the validity of signatures for thereferendum, WAFST also filed a public recordsrequest. WAFST’s purpose was to obtain access tosufficient information to determine if there wereirregularities relating to the signatures that theSecretary of State had counted.

On July 28, 2009, Petitioners filed aComplaint against Defendants ("Complaint") and aMotion for a Temporary Restraining Order andPreliminary Injunction ("Motion"). The Complaintset forth two causes of action: (1) that the PRA"violates the First Amendment as applied toreferendum petitions because the [PRA] is notnarrowly tailored to serve a compelling governmentinterest"; and (2) that the PRA "is unconstitutionalas applied to the Referendum 71 petition becausethere is a reasonable probability that thesignatories of the Referendum 71 petition will besubjected to threats, harassment, and reprisals."ER 475 at ¶ 62 & 65. The Complaint alleged thatthe proponents of the Referendum 71 petition, areferendum which sought to repeal a domesticpartnership law enacted in Washington State, had

been, or imagined that they would be, subject tovarious threats and harassment. ER 470 at ¶ 25.The Motion, which sought to enjoin the release ofthe petitions, was supported by a singledeclaration--that of Petitioners’ own attorney. ER088-091. This declaration attached exhibits ofvarious websites and newspaper articles,declarations from litigation in California, andopinions from other cases, none of which involvePetitioners.

The district court granted the TemporaryRestraining Order ("TRO") on July 29 and, despitethe temporal restrictions imposed by Federal Ruleof Civil Procedure 65(b), extended its effect formore than a month and ordered that thepreliminary injunction hearing take place onSeptember 3. Petitioners then moved toconsolidate the preliminary injunction hearing witha trial on the merits; Defendants opposed thismotion. On September 1, Petitioners filed threeadditional declarations in support of their Motionpurporting to show that petition signers faced harmif their identities were disclosed, and the identitiesof the declarants themselves were redacted. ERO24-043.

Before the preliminary injunction hearing,WAFST moved to intervene in the action, having bythat time fried its legal challenge to the signatureverification and made its PRA request for thepetitions. WAFST has an interest in an open andpublic referendum process and sought the ability toscrutinize the petition signatures for forgery orfraud under the applicable statutes. The districtcourt granted WAFST’s intervention motion.

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At the preliminary injunction hearing onSeptember 3, the district court entertained oralargument but did not take any testimony. At theconclusion of the hearing, the district courtextended the TRO and took the motion forpreliminary injunction under advisement, whiledenying Petitioners’ motion to consolidate thepreliminary injunction hearing with a trial on themerits (implying that there were further factualissues to be resolved before a permanent injunctionshould issue). ER 018.

On September 10, the district court grantedthe preliminary injunction. Pet. App. 23a. Thedistrict court held that Petitioners were likely tosucceed on the merits of Count I and therefore didnot reach Count II. Pet. App. 43a. Defendants andIntervenors appealed from this Order, and afterexpediting the appeal, the court of appealsreversed. Pet. App. la. On October 20, in responseto Petitioners’ emergency application, this Courtstayed the court of appeals’ reversal, thuspreserving the district court’s preliminaryinjunction to allow consideration of this petition fora writ of certiorari. Pet. App. 21a.

REASONS FOR DENYING THEPETITION

The Petition should be denied. This case is aparticularly poor vehicle for consideration of theissues raised: the record is notably incomplete,procedurally complicated, and the issue at handinvolves neither a Circuit split nor an issue offundamental importance that would warrantreview at this stage.

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The vast majority of the Petition is spentarguing that the court of appeals was wrong on themerits. Petitioners, however, fail to explain whythe Court should grant the Petition. Petitionersapparently contend that the Court should act as acourt of error correction, regardless of whether thecase is otherwise proper for a writ of certiorari.With all due respect and for the reasons set forthbelow, the Petition should be denied.

This Case Is a Poor Vehicle forResolving Whether the Disclosure ofReferendum Petitions Complies Withthe First Amendment

1. The Factual Record Is Limitedand Undeveloped and CannotSupport an Inquiry into thePetitioners’ Challenges

Petitioners claim that the public disclosurerequirement of the PRA as applied to signatures onpetitions submitted as part of the State ofWashington’s referendum process violates the FirstAmendment. To support this argument,Petitioners assert that disclosure of theirsignatures compels them to speak,that suchcompelled speech is subject to strict scrutiny, andthat the government’s regulation of this speech isnot narrowly tailored to a compelling governmentinterest. The resolution of these questions requiresa developed factual record that does not exist inthis case. The district court granted thepreliminary injunction a little over 30 days afterPetitioners filed their Complaint, and the recordconsists of only a handful of declarations untestedby cross-examination and most of which involve

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unrelated individuals in other states undermarkedly dissimilar circumstances. None of thePetitioners have been deposed; no discovery hasoccurred with respect to the Petitioners’ own use ofthe copies of the petitions they retained; and nodiscovery has occurred with respect to theexpectations of those signing the petition. Indeed,it is not even clear that the Petitioners here wereincluded on petitions timely filed with theSecretary of State.

In contrast, Supreme Court casesconsidering as-applied challenges to election andpetition processes on First Amendment groundsrely on well-developed records. For example, inBuckley v. American Constitutional LawFoundation Inc.--cited heavily by Petitioners--theCourt granted certiorari and issued an opinion onlyafter discovery, cross-motions for summaryjudgment and a full bench trial. Throughout itsopinion, the Court cited to the well-developed trialrecord to evaluate First Amendment challenges tothree Colorado state petition process regulations.See 525 U.S. 182, 193-94, 198 (1999); see also id. at219-220 (O’Connor, J. concurring); id. at 229(Rehnquist, J. dissenting). The majority, aconcurring opinion, and the dissenting opinion eachfound trial testimony crucial in helping to confirmstatistical representations, the full extent of theburden imposed on free speech, and the actualchilling effects of each regulation.

Similarly, in Meyer v. Grant, a unanimousCourt relied extensively on the trial testimony of anappellee to determine whether the act of gatheringpetition signatures (an activity that is similar tothe signing of a referendum petition) was core

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political speech. 486 U.S. 414, 421 n.4 (1988). In acase where, as here, it was unclear whether anexpressive activity qualified as core politicalspeech, the Court used detailed trial testimonyabout the nature of the activity to make aninformed determination.

Here, crucial factual questions remainunanswered because of the procedural posture ofthe case.

First, there is almost no evidence as towhether petition signers had any expectation ofanonymity when signing. In fact, the limitedevidence indicates that the collection of signaturesoccurred in public locations and on petition formsthat on their face publicly disclosed up to 19 othernames, signatures, and addresses, thus makingimplausible the suggestion that those who signedhad any expectation of anonymity.

Second, there is no evidence on whetheranyone, much less a significant number, wouldhave been---or were--discouraged from signing thepetitions because of an apprehension of disclosureof the petitions to the public. Indeed, the recorddemonstrates quite the opposite. PMW was able tocollect a sufficient number of signatures to placethe referendum on the ballot, demonstrating theabsence of any significant or measurable burden onFirst Amendment rights. At a minimum, therecord is significantly undeveloped on this pointand, as postured at present, is ill-suited for thisCourt’s consideration of the issue.

Third, the record is woefully incomplete withrespect to the centerpiece of PMW’s case: the

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alleged threats posed to those whose names appearon the petitions and who fear threats or abusiveresponses from their fellow citizens. The recordconsists of a small handful of cursory declarations,many of which concern incidents occurring inCalifornia or elsewhere. None of the declarantsthemselves have been deposed, nor have any of theother signatories (much less those who are accusedof making harassing or threatening statements).6Indeed, it would not be difficult to identify similarstatements in the press, on the Web, or elsewhereabout virtually any issue of public concern, andbefore this Court considers this issue, it shouldhave a complete record before it.

Given the procedural posture and inadequaterecord of this case, it is not an appropriate vehicleto decide the First Amendment questionsimplicated by the Petition.

2. The Issues Presented Have NotBeen Addressed by Other Courts

The Petition identifies no opinion from anyother court of appeals or state court on point andessentially concedes there is no split of authorityregarding the questions presented. Accordingly,not only has this case not been fully developed atthe district court level, but the overarching

6 Indeed, even the limited record before the lowercourts demonstrated the perils of an incomplete record. PMWaffidavits suggested threats had been made to force"uncomfortable conversations," but as the court of appealsnoted, the full quotation reveals the misleading nature of thepartial quotation and the entirely appropriate (and non-threatening) statements. Pet. App. 9a n.4.

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question of whether disclosure of referendumpetitions violates the First Amendment has notpercolated through the federal or state courts. Thiscase is therefore not an appropriate vehicle todecide the constitutionality of disclosingreferendum petitions. See Bunting v. Mellen, 541U.S. 1019, 1021 (2004) (justifying the denial ofcertiorari because of "the absence of a direct conflictamong the Circuits"); Braxton v. United States, 500U.S. 344, 347 (1991) (reaffirming that conflictamong lower courts is "[a] principal purpose" ofgranting certiorari); United States v. Seckinger, 397U.S. 203, 204 (1970) (explaining that grant ofcertiorari was to rectify "divergent results that thelower courts have reached in construing the sameor similar provisions"). Given the far-reachingimplications of a ruling, the Court should allow thelower courts to consider these issues in the firstinstance.7

7 There is, of course, no urgency at this point forresolving the dispute at hand. At the 2009 general election,Washington voters overwhelmingly passed Referendum 71,thus approving the expanded domestic partnership lawenacted by the Washington Legislature. Moreover, allowingother courts to consider the issue in a variety of factualcontexts may ultimately make consideration by this Courtunnecessary.

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The Questions Presented Are NotImportant Issues of Law That Conflictwith the Decisions of This Court

The Issues Presented Are NotImportant Questions of FederalLaw

Although the Petition asserts that thequestions presented are important questions offederal law that should be decided by this Court, itdoes nothing, other than identify the fact that otherstates have initiative and referendum laws, tosupport this argument. The fact that other suchlaws exist in other states cannot possibly besufficient to establish the type of importantquestion that should be decided by this Courtbefore a proper record has been developed belowand before the questions presented have beenallowed to percolate through the lower courts.

2. The Court of Appeals’ Decision IsCorrect and Does Not Conflictwith Decisions of This Court

Even if this Court were to reach the merits,certiorari is not warranted because the court ofappeals correctly concluded that the district courterred in finding that the speech at issue isanonymous and in applying strict scrutiny. Thecourt of appeals appropriately applied intermediatescrutiny and held that the state had importantinterests at stake when disclosing referendumpetitions under the PRA and that disclosure did notdirectly burden speech. Thus, even if this Courtwere to reach the merits (and WAFST submits thatit need not do so), the Petition should nonethelessbe denied.

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a. The Referendum Process Isan Inherently PublicProcess

The limited record below establishes that theentire referendum process is open to publicinspection from beginning to end. Signatures aregathered in public places, and in front of petitioncirculators, other petition signers and anyone elsewho may be standing near the petition signer.After a voter signs a petition, other voters may signon the same page below, and those later signers cansee all the information of the previous signers. Thereferendum petition proponents have no obligationto keep those signatures confidential, and in fact,they cannot keep them private because they arerequired to submit them to the Secretary of State’soffice for verification and canvassing. Staff at theSecretary of State’s office reviews the signatures,and both proponents and opponents of thereferendum petition can observe the process.Additionally, a citizen who is dissatisfied with theSecretary of State’s determination can challenge itin court, where the parties can examine thesignatures and review the Secretary of State’scanvass. Thus, at every step in the process, thesignatures are not private and signers can have noreasonable expectation of confidentiality,s

8 Additionally, whether the petition signers actuallyhad an expectation of anonymity is not developed in thefactual record below and, as discussed in Section V(A)(1), thatfact is a compelling reason why the Petition should be denied.

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The PRA Is Constitutionalas Applied to ReferendumPetitions

Intermediate scrutiny is applied where aregulation has only an incidental effect onexpressive conduct. Here the public act of signing areferendum petition is expressive conduct with aspeech element, much like burning a draft card inO’Brien. See United States v. O’Brien, 391 U.S.367, 376 (1968); see also Jacobs v. Clark CountySch. Dist., 526 F.3d 419, 434 (9th Cir. 2008)(finding school uniforms to be a form of expressiveconduct and applying intermediate scrutiny touphold the school policy); Bar-Nevon v. BrevardCounty Sch. Bd., 290 Fed. Appx. 273 (llth Cir.2008) (assuming wearing of jewelry by students tobe expressive conduct and applying intermediatescrutiny); Vlasak v. Super. Ct. of Cal., 329 F.3d 683,690-91 (9th Cir. 2003) (concluding that actions atprotest were expressive conduct and applyingintermediate scrutiny). Furthermore, the court ofappeals correctly concluded that the PRA imposesonly an incidental burden on potential petitionsigners. Pet. App. 14a at "15. Specifically, there isno evidence in the record to conclude any potentialpetition signers actually refused to sign petitionsthat they otherwise supported because they wereconcerned that their signatures might become partof the public record.9 The court of appeals

9 The lack of a record on this issue further illustrateswhy this case is not appropriate for the Court’s review.Moreover, as noted above, the limited record before the Courtin fact suggests that few, if any, voters were dissuaded fromsigning the Referendum 71 petitions for fear of publicdisclosure since the petition proponents collected a sufficientnumber of signatures to qualify the measure for the ballot.

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accordingly did not err in concluding that theappropriate standard is intermediate scrutiny. Pet.App. 14a at "14.

Under intermediate scrutiny, the PRA as itapplies to petitions submitted as part of thereferendum process is constitutional if it (1)fallswithin the constitutional power of the state,(2) furthers an important state interest that isunrelated to the suppression of free expression, and(3) has an incidental restriction on FirstAmendment rights that is no greater thannecessary to justify the interest. O’Brien, 391 U.S.at 377; Pet. App. 16a at "16. Under this standard,the PRA as applied to referendum petitions isconstitutional.

The State asserted two interests, both ofwhich are unrelated to any alleged suppression offree expression: (1) preserving the integrity ofelections by promoting accountability andtransparency, and (2) providing information tovoters regarding support for placing a referendummeasure on the ballot. The court of appealscorrectly concluded that these are both importantinterests, and in fact, that preserving the integrityof elections is a compelling state interest. See Eu v.San Francisco County Democratic Centr. Comm.,489 U.S. 214, 231 (1989). The court of appeals alsocorrectly concluded that the incidental effect of thePRA on speech was no greater than necessary. Pet.App. 19a at *20.

For these reasons, the court of appealsopinion is consistent with this Court’s FirstAmendment jurisprudence. This case is, in anyevent, simply not an appropriate vehicle for

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deciding the First Amendment questions presentedgiven the limited and undeveloped factual recordand the lack of decisions from other federal or statecourts.

VI. CONCLUSION

For the reasons set forth above, the petitionfor writ of certiorari should be denied.

Respectfully submitted,

Kevin J. HamiltonCounsel of Record

Nicholas P. GellertPERKINS COIE LLP1201 Third Ave., Suite 4800Seattle, Washington 98101(206) 359-8000

Counsel for Respondent

December 4, 2009

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