Doe v. Reed: The Special Pleading Express

Oral arguments are set for tomorrow (Wednesday) in Doe No. 1 v. Reed, a U.S. Supreme Court case involving the disclosure (under Washington’s public disclosure law) of the names and addresses of voters who sign a petition to put a measure on a ballot. The groups that put the measure on the ballot want to keep the signers’ names secret, while the state, in furtherance of Washington’s Public Records Act, wants to disclose the signers’ names in connection with a public disclosure request. Of course, the fact that the measure granted widespread rights for domestic partners (including same-sex couples) gives the case a political dimension that wouldn’t be present if this was just some parks issue.

I know a thing or two about Washington’s Public Records Act; I’m writing my law review comment on Chevron-type deference in agency determinations under the PRA. All that I will add to the already voluminous discourse is this: I find it disingenuous that the petition-signers — people who have used the petition process to put a measure on the ballot — are trying to avoid disclosure under a statute that was itself passed by the voters 38 years ago.

The PRA was adopted in November 1972 as Initiative 276. Washington voters were getting fed up with what they saw as increasing secrecy in state and local government, and so they passed a law allowing interested members of the public to inspect public records and obtain copies of most government documents. There were a few exceptions for things like investigative records and personal information about public school students and government employees. Nowhere in the original measure, nor in any of the exceptions that the state legislature has added since then, is there anything about keeping the names of petition-signers secret.

And what is more, the people who signed this petition knew that when they signed it, or they were at least on notice. The PRA has been on the books since 1973, and in all that time, no one has mounted this sort of a challenge, despite some pretty contentious stuff that people have signed petitions for. The question that the Supreme Court is faced with is can people be forced to put their names out in public when they sign a petition for a ballot measure? To me, the answer is an unequivocal yes. Participation in public life is a public process. If I submit something to a state agency in connection with a proposed regulation (as I recently have), my name and e-mail address (at least) go into the agency’s rulemaking file, there to sit forever and ever. And if someone comes along and submits a PRA to the agency for that rulemaking file, they will get my name and e-mail address. It would be the same thing if I testified at a hearing at the state legislature (although they wouldn’t get my e-mail address, they would definitely get my name).

All that being said, I’m sorry to say that I think this will come down 5-4 to reverse the 9th Circuit and bar disclosure. Justice Scalia will probably write the majority opinion, which will be full of historical references, and Breyer will probably write a vigorous dissent. If I’m wrong about the judgment (that they uphold the 9th Circuit and allow disclosure), Scalia will write a polemic in the style we’ve come to know and love. There’s an outside shot that the Supreme Court might split the baby and say names are OK, but addresses are not, but that would require a degree of finesse that I’m not sure this Court is capable of right now.

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