Doe v. Reed

• Decision Date: 23 October 2012
• Docket Number: No. 11–35854.,11–35854.
• Parties: John DOE # 1, an individual; John Doe # 2, an individual; Protect Marriage Washington, Plaintiffs–Appellants, v. Sam REED, in his official capacity as Secretary of State of Washington; Brenda Galarza, in her official capacity as Public records Officer for the Secretary of State of Washington, Defendants–Appellees, Washington Coalition for Open Government; Washington Families Standing Together, Intervenors–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

697 F.3d 1235

2012 Daily Journal D.A.R. 14,700

John DOE # 1, an individual; John Doe # 2, an individual; Protect Marriage Washington, Plaintiffs–Appellants,

v. Sam REED, in his official capacity as Secretary of State of Washington; Brenda Galarza, in her official capacity as Public records Officer for the Secretary of State of Washington, Defendants–Appellees,Washington Coalition for Open Government; Washington Families Standing Together, Intervenors–Defendants–Appellees.

No. 11–35854.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 22, 2012.

Filed Oct. 23, 2012.

James Bopp, Jr., Terre Haute, IN, for the plaintiffs-appellants.

Anne E. Egeler, Deputy Solicitor General, Olympia, WA, for the defendants-appellees.

Leslie R. Weatherhead, Witherspoon Kelley, Spokane, WA, for intervenor-defendant-appellee Washington Coalition for Open Government.

Kevin J. Hamilton, Perkins Coie, Seattle, WA, for intervenor-defendant-appellee Washington Families Standing Together.

Paul S. Ryan, Washington, DC, for amicus curiae, The Campaign Legal Center.

Appeal from the United States District Court for the Western District of Washington, Benjamin H. Settle, District Judge, Presiding. DC No. 3:09–cv–05456–BHS.

Before: HARRY PREGERSON, A. WALLACE TASHIMA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge TASHIMA; Concurrence by Judge N.R. SMITH.

OPINION

TASHIMA, Circuit Judge:

Plaintiffs Protect Marriage Washington (“PMW”), John Doe # 1, and John Doe # 2 (collectively, “Plaintiffs”) seek to enjoin Defendants, the Secretary of State and Public Records Officer of the State of Washington, from releasing the names of people who signed petitions supporting a Washington referendum. These petitions are already widely available on the internet. We dismiss this case as moot because we cannot grant Plaintiffs effective relief.

I

Washington citizens can use the referendum process to reject bills passed by the Washington legislature. Wash. Const. art. II, § 1(b). The referendum process is initiated when petitions with enough valid signatures of registered voters, together with their printed names and addresses, are filed with the Secretary of State. Wash. Rev.Code § 29A.72.130. Washington's Public Records Act (“PRA”) requires state agencies to make public records available for public inspection. Id. § 42.56.070.¹

Washington Senate Bill 5688 expanded the rights and responsibilities of state-registered domestic partners. On July 25, 2009, PMW submitted signed petitions to the Secretary of State in support of a referendum to overturn Senate Bill 5688. Three days later, Plaintiffs filed a two-count complaint which sought to enjoin the State from publicly releasing the petitions. The district court granted a temporary restraining order the next day.

Count I of the Plaintiffs' complaint alleges that the PRA violates the First Amendment as applied to referendum petitions because it is not narrowly tailored to serve a compelling government interest. The district court initially agreed. Doe v. Reed, 661 F.Supp.2d 1194 (W.D.Wash.2009). We reversed, Doe v. Reed, 586 F.3d 671 (9th Cir.2009), and granted Plaintiffs'motion for a stay pending final resolution of the appeals. The Supreme Court affirmed our decision, Doe v. Reed, –––U.S. ––––, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010), and also rejected a motion to vacate the stay, (U.S. Dkt. Oct. 20, 2009).

On remand, the district court considered Count II, which claims that releasing the names of the signers of this petition would violate the First Amendment because the signers would be subjected to threats, harassment, and reprisals. On October 17, 2011, the district court granted Defendant's motion for summary judgment and dissolved the preliminary injunction. The State immediately began to release the petitions.

Also on October 17, Plaintiffs filed a notice of appeal and a motion for an injunction pending appeal in the district court. Before the district court ruled on that motion, Plaintiffs filed an emergency motion for an injunction pending appeal in this Court on October 20, 2011. We denied the motion without prejudice, but enjoined the State from releasing the petitions until five days after the district court's ruling. On November 8, 2011, the district court denied Plaintiffs' motion because it found that Plaintiffs failed to show a likelihood of success on the merits. The next day, Plaintiffs renewed their motion before this panel, and a week later we denied the renewed motion. Plaintiffs requested an injunction pending appeal from Circuit Justice Kennedy, who referred the matter to the full Court, which in turn denied it.

The petitions are now available in original and in searchable form on the internet.

II

This Court reviews a district court's grant of summary judgment de novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir.2007). We review mootness de novo. S. Cal. Painters & Allied Trades v. Rodin & Co., Inc., 558 F.3d 1028, 1034 n. 6 (9th Cir.2009).

III

Standing is a “jurisdictional issue[ ] deriving from the requirement of a case or controversy under Article III.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). “The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.” Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir.2008) (internal quotation marks omitted). This case is moot because no effective relief remains available to Plaintiffs. No exception to the mootness doctrine applies because this is not the type of case that is capable of repetition, yet evading review.

A

Count II seeks an injunction preventing defendants from making these petitions available to the public. This relief is no longer available because the petitions are now available to the public.

“In deciding a mootness issue, the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Or. Natural Res. Council v. U.S. Bureau of Land Mgmt., 470 F.3d 818, 820 (9th Cir.2006) (internal quotation marks and alterations omitted); see also Feldman, 518 F.3d at 642. PMW argues that we could grant “effective relief” by preventing the State from fulfilling additional public records requests for the petitions and preventing Intervenors Washington Coalition for Open Government and Washington Families Standing Together from distributing the petitions. But the petitions are already available on websites that are not under the control of the State or Intervenors. If anyone with an internet connection can easily obtain the images of the original documents online, it is not clear why anyone would bother filing an additional public records request. And if someone did file such a request, the State would realistically not be contributing to the “further disclosure” of the petitions by responding to the request. A moot case cannot be revived by alleged future harm that is “so remote and speculative that there is no tangible prejudice to the existing interests of the parties.” Feldman, 518 F.3d at 643 (internal quotation marks omitted) (holding a claim seeking the humane removal of feral pigs from an island became moot once monitoring indicated that all pigs had been killed).

Similarly, in the FOIA context, we have held in an appeal challenging the district court's order unsealing FOIA documents, that the appeal would become moot once the documents were unsealed, because “the unsealing cannot be reversed.” Islamic Shura Council of S. Cal. v. FBI, 635 F.3d 1160, 1164 (9th Cir.2011).

The Eleventh Circuit has also held that a case seeking to keep a document secret is moot once third parties have control over copies of the document. See C & C Prods., Inc. v. Messick, 700 F.2d 635, 636–37 (11th Cir.1983) (dismissing appeal as moot because plaintiff's “sole assignment of error is that the district court erred in modifying the protective order to permit [a third party] to utilize the discovery materials,” but the materials had been released to the third party and “no order from this court can undo that situation”). This is in contrast to situations in which a court can grant some effective relief with an order directed at the parties appearing before it. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (the court could “effectuate a partial remedy” in a case seeking to prevent IRS from obtaining certain evidence after IRS obtained the evidence by “ordering the Government to destroy or return any and all copies it may have in its possession”); In re Grand Jury Investigation No. 78–184, 642 F.2d 1184, 1188 (9th Cir.1981), aff'd sub nom. United States v. Sells Eng'g, Inc., 463 U.S. 418, 422 n. 6, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) (rejecting mootness argument because not all attorneys, paralegals, and staff had seen the released material and therefore “we can grant partial relief by preventing further disclosure”); see also United States v. Nix, 21 F.3d 347, 350 (9th Cir.1994) (release of grand jury documents to litigants who had settled case was not moot because some class members had opted out and “there still exists the potential for further litigation and further disclosure”).

Plaintiffs cite two cases in which, they argue, a court found a live controversy after documents had been disclosed to parties who were not before the court. We decline to follow Detroit International Bridge Company v. Federal Highway Administration, which held that a case seeking to prevent the release of a report to a congressman was not moot even after the defendant released the report to the congressman. 666 F.Supp.2d 740, 742–45 (E.D.Mich.2009). The court in Detroit International admitted that it was “skeptical” and acknowledged that it...