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to Section One | to Arts & Entertainment
posted Friday, October 26, 2012 - Volume 40 Issue 43
WA marriage foes lose another round
Section One
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WA marriage foes lose another round

R-71 petitioners' names must remain public, court says

by Mike Andrew - SGN Staff Writer

The Ninth Circuit Court of Appeals has dismissed yet another attempt to shield the names of people who signed Referendum 71 petitions. In a decision announced October 23, the court said that since the petitions were already widely available on the Internet, the case is moot.

R-71 was a 2009 ballot measure asking voters to approve or reject the state's then-new domestic partnership law. As with R-74, right-wing opponents of LGBT rights succeeded in putting the measure on the ballot through a petition campaign.

HARASSMENT FEARED
Anti-Gay activists sought to conceal the names of petition-signers, alleging they would be subject to harassment if their names were published.

The Ninth Circuit refused to keep the names secret, however, and the U.S. Supreme Court upheld that decision in June 2010.

In October 2011, U.S. District Judge Benjamin Settle ruled that Protect Marriage Washington - the group opposing domestic partnerships - and two anonymous petition signers had failed to demonstrate the potential for harassment if the names were released.

The anti-Gay plaintiffs appealed, but the Ninth Circuit declined to stay disclosure pending their appeal, and the U.S. Supreme Court also denied a stay in November 2011. In its October 23 ruling, the Ninth Circuit rejected the plaintiffs' appeal.

THE QUESTION IS MOOT
Two of the three judges who heard the case came to the conclusion that the case was moot because the names had already been released and were available online.

'This case is moot because no effective relief remains available to plaintiffs,' according to the majority opinion authored by Judge A. Wallace Tashima.

'No exception to the mootness doctrine applies because this is not the type of case that is capable of repetition, yet evading review.'

The third judge, N. Randy Smith, wrote that the case was not moot, but found against the plaintiffs on the merits.

'Plaintiffs fail to provide any link between the harms they allege and how those harms will likely be caused by the specific government action at issue: the continued disclosure of already disclosed names,' Smith wrote.

Smith added that the plaintiffs made a 'tactical error' earlier when they failed to file a motion for a stay on releasing the names with the District Court, thus allowing the names to be released in the first place.

'Thus, the only government action now at issue is whether the state of Washington can continue to disclose these names,' he wrote.

NO EVIDENCE
Smith then went on to shred the plaintiffs' central claim - that releasing signers' names would expose them to retaliation.

'Though R-71 petitions have been available for three months, plaintiffs have presented no evidence of an R-71 signer being threatened or harassed as a result of that disclosure,' Smith wrote.

'When the District Court ordered plaintiffs to submit supplemental summary judgment briefing providing evidence that any R-71 signer had been harassed or threatened, plaintiffs responded that 'there is no such evidence.'

'In oral argument, when asked about this evidence, plaintiffs admitted that no campaign of intimidation has been waged, or appears likely to be waged, against R-71 petition signers in Washington,' Smith found.

Protect Marriage could now ask for an en banc hearing of the full Ninth Circuit, or it could file another appeal to the U.S. Supreme Court, but neither option seems likely to succeed.

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