Washington Courts

Some governments allow citizens to directly petition for or against legislation to their fellow citizens. In Washington State, the Constitution allows for this petition by initiative and by referendum. Initiative is where the petitioners ask the electorate to pass legislation. Referendum is where the petitioners ask the electorate to accept or reject legislation passed by the legislature. One of the more successful initiative petitions in Washington was the initiative for the adoption of the Public Disclosure Act in the fall of 1972. The Public Disclosure Act was a comprehensive piece of legislation calling for public disclosure of most, if not all, of the functions of government, state and local. The initiative passed by a substantial 72% majority.

The disclosure of public records portion of the initiative says that the court is to pursue a liberal interpretation of the public records provisions. The public records provisions have experienced significant litigation and appellate decision making. A few days ago, the Washington Supreme Court held that the Public Disclosure Act provisions do not apply to the Washington State judicial system.

Another public records disclosure issue which is now wending its way through federal courts and Washington State courts is the question whether the names and addresses of people who have signed petitions for initiative or referendum are to be disclosed under the Act.

In one case, the federal court case, referendum petition gatherers seeking to overturn domestic partnership legislation passed by the Washington State Legislature last year seek to prevent the names of the signatories to their referendum petition being disclosed to a group which wants to publish the names on a public website.

In another case, a Washington State lobbyist seeks copies of initiative petitions and the signatories to the petitions of initiatives advanced by a person who has become known as a person who persistently presents petitions to the electorate. The lobbyist seeks copies of petitions with respect of several different initiatives advanced by the professional initiative generator.

There is a certain ‘bad cases make bad law’ aspect to the disclosure efforts in the federal and Washington State cases. In the federal case, it seems the people who want to know who signed the initiative referendum want to publish the names so as to bring political pressure and perhaps dishonor on those who have sought to have the electorate approve or disapprove of the domestic partnership legislation.

In the state case, one might suppose that the names of the signatory petitioners are sought perhaps to make a comparison of names from one initiative to the next to determine whether there isn’t some sort of adjuvant legislature being or having been formed.

These purposes and others one might speculate about will most assuredly have an impact on how the courts decide whether the Public Disclosure Act, these records are clearly subject to the Public Disclosure Act, is essentially trumped by the First Amendment as applicable to the state of Washington under the due process clause of the 14th Amendment, or by the State Constitution and its provisions pertaining to the right to petition ones government and to assemble.

The essential point of the discussion, it seems to me, will be whether a petition signatory has a right to petition and associate in private. In a sense, the signatory is only a voter. He is not voting in favor of the initiative or the referendum. He is not the one who advanced the initiative or referendum. He is one who voted to have a vote on the initiative or referendum. The only way the initiative or referendum can gain ballot access is by virtue of having a sort of pre-ballot access testing.

Each time a person votes in an election, the state has the ability to determine how that particular person voted. Because voting is to be done in private and because we have a long-standing recognition of the privacy of voting, the state does not keep a record or attempt to generate a record of how it is a person voted.

The voting process for an initiative must, of necessity, have a public aspect to it. The public aspect is no different than the public aspect of a voter going into a voting booth and coming out. The only record that is kept is a record of the vote being made or not made. Similarly, the only record that can be kept or should be kept with respect of the ballot access requirements being met for an initiative or a referendum is the fact of a vote in favor of the access.

Once the name and the signature on a petition have been legitimized, the vote is and must be established as a confidential matter.

Now it could be that Mr. Sanai is generally a bad guy. But that was not the issue. And that is not something about which members elected to the Washington state Supreme Court should be making judgments.