Doe v. Reed

• Decision Date: 24 June 2010
• Docket Number: No. 09–559.,09–559.
• Parties: JOHN DOE #1, et al., Petitioners, v. Sam REED, Washington Secretary Of State, et al.
• Court: U.S. Supreme Court

561 U.S. 186

130 S.Ct. 2811

177 L.Ed.2d 493

JOHN DOE #1, et al., Petitioners,

v.Sam REED, Washington Secretary Of State, et al.

No. 09–559.

Supreme Court of the United States

Argued April 28, 2010.

Decided June 24, 2010.

James Bopp, Jr.

Terre Haute, IN, for the petitioners.

Robert M. McKenna, Atty. Gen., for the respondents.

James Bopp, Jr.

, Counsel of Record, Richard E. Coleson, Sarah E. Troupis, Scott F. Bieniek, Bopp, Coleson & Bostrom, Terre Haute, IN, for petitioners.

Kevin J. Hamilton

, Counsel of Record, Nicholas P. Gellert, Amanda J. Beane, Perkins Coie LLP, Seattle, WA, for Respondent Washington Families Standing Together.

Leslie Weatherhead, Counsel of Record, Duane Swinton

and Steven Dixson, Witherspoon Kelley, for Respondent Washington Coalition for Open Government.Opinion

Chief Justice ROBERTS

delivered the opinion of the Court.

The State of Washington allows its citizens to challenge state laws by referendum. Roughly four percent of Washington voters must sign a petition to place such a referendum on the ballot. That petition, which by law must include the names and addresses of the signers, is then submitted to the government for verification and canvassing, to ensure that only lawful signatures are counted. The Washington Public Records Act (PRA) authorizes private parties to obtain copies of government documents, and the State construes the PRA to cover submitted referendum petitions.

This case arises out of a state law extending certain benefits to same-sex couples, and a corresponding referendum petition to put that law to a popular vote. Respondent intervenors invoked the PRA to obtain copies of the petition, with the names and addresses of the signers. Certain petition signers and the petition sponsor objected, arguing that such public disclosure would violate their rights under the First Amendment.

The course of this litigation, however, has framed the legal question before us more broadly. The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to consider in the first instance the signers' more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court.

I

The Washington Constitution reserves to the people the power to reject any bill, with a few limited exceptions not relevant here, through the referendum process. Wash. Const., Art. II, § 1(b)

. To initiate a referendum, proponents must file a petition with the secretary of state that contains valid signatures of registered Washington voters equal to or exceeding four percent of the votes cast for the office of Governor at the last gubernatorial election. §§ 1(b), (d)

. A valid submission requires not only a signature, but also the signer's address and the county in which he is registered to vote. Wash. Rev.Code § 29A.72.130

(2008).

In May 2009, Washington Governor Christine Gregoire signed into law Senate Bill 5688, which “expand[ed] the rights and responsibilities” of state-registered domestic partners, including same-sex domestic partners. 586 F.3d 671, 675 (C.A.9 2009)

. That same month, Protect Marriage Washington, one of the petitioners here, was organized as a “State Political Committee” for the purpose of collecting the petition signatures necessary to place a referendum on the ballot, which would give the voters themselves an opportunity to vote on SB 5688. App. 8–9. If the referendum made it onto the ballot, Protect Marriage Washington planned to encourage voters to reject SB 5688. Id., at 7, 9.

On July 25, 2009, Protect Marriage Washington submitted to the secretary of state a petition containing over 137,000 signatures. See 586 F.3d, at 675;

Brief for Respondent Washington Families Standing Together 6. The secretary of state then began the verification and canvassing process, as required by Washington law, to ensure that only legal signatures were counted. Wash. Rev.Code § 29A.72.230. Some 120,000 valid signatures were required to place the referendum on the ballot. Sam Reed, Washington Secretary of State, Certification of Referendum 71 (Sept. 2, 2009). The secretary of state determined that the petition contained a sufficient number of valid signatures, and the referendum (R–71) appeared on the November 2009 ballot. The voters approved SB 5688 by a margin of 53% to 47%.

The PRA, Wash. Rev.Code § 42.56.001 et seq.

, makes all “public records” available for public inspection and copying. § 42.56.070(1) (2008). The Act defines “[p]ublic record” as “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency.” § 42.56.010(2). Washington takes the position that referendum petitions are “public records.” Brief for Respondent Reed 5.

By August 20, 2009, the secretary had received requests for copies of the R–71 petition from an individual and four entities, including Washington Coalition for Open Government (WCOG) and Washington Families Standing Together (WFST), two of the respondents here. 586 F.3d, at 675.

Two entities, WhoSigned.org and KnowThyNeighbor.org, issued a joint press release stating their intention to post the names of the R–71 petition signers online, in a searchable format. See App. 11; 586 F.3d, at 675.

The referendum petition sponsor and certain signers filed a complaint and a motion for a preliminary injunction in the United States District Court for the Western District of Washington, seeking to enjoin the secretary of state from publicly releasing any documents that would reveal the names and contact information of the R–71 petition signers. App. 4. Count I of the complaint alleges that “[t]he Public Records Act is unconstitutional as applied to referendum petitions.” Id., at 16. Count II of the complaint alleges that “[t]he Public Records Act is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories of the Referendum 71 petition will be subjected to threats, harassment, and reprisals.” Id., at 17. Determining that the PRA burdened core political speech, the District Court held that plaintiffs were likely to succeed on the merits of Count I and granted them a preliminary injunction on that count, enjoining release of the information on the petition. 661 F.Supp.2d 1194, 1205–1206 (W.D.Wash.2009)

.

The United States Court of Appeals for the Ninth Circuit reversed. Reviewing only Count I of the complaint, the Court of Appeals held that plaintiffs were unlikely to succeed on their claim that the PRA is unconstitutional as applied to referendum petitions generally. It therefore reversed the District Court's grant of the preliminary injunction. 586 F.3d, at 681.

We granted certiorari. 558 U.S. 1142, 130 S.Ct. 1133, 175 L.Ed.2d 941 (2010).

II

It is important at the outset to define the scope of the challenge before us. As noted, Count I of the complaint contends that the PRA “violates the First Amendment as applied to referendum petitions.” App. 16. Count II asserts that the PRA “is unconstitutional as applied to the Referendum 71 petition.” Id., at 17. The District Court decision was based solely on Count I; the Court of Appeals decision reversing the District Court was similarly limited. 586 F.3d, at 676, n. 6.

Neither court addressed Count II.

The parties disagree about whether Count I is properly viewed as a facial or as-applied challenge. Compare Reply Brief for Petitioners 8 (“Count I expressly made an as-applied challenge”), with Brief for Respondent Reed 1 (“This is a facial challenge to Washington's Public Records Act”). It obviously has characteristics of both: The claim is “as applied” in the sense that it does not seek to strike the PRA in all its applications, but only to the extent it covers referendum petitions. The claim is “facial” in that it is not limited to plaintiffs' particular case, but challenges application of the law more broadly to all referendum petitions.

The label is not what matters. The important point is that plaintiffs' claim and the relief that would follow—an injunction barring the secretary of state “from making referendum petitions available to the public,” App. 16 (Complaint Count I)—reach beyond the particular circumstances of these plaintiffs. They must therefore satisfy our standards for a facial challenge to the extent of that reach. See United States v. Stevens, 559 U.S. 460, ––––, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010).

III

A

The compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment. An individual expresses a view on a political matter when he signs a petition under Washington's referendum procedure. In most cases, the individual's signature will express the view that the law subject to the petition should be overturned. Even if the signer is agnostic as to the merits of the underlying law, his signature still expresses the political view that the question should be considered “by the whole electorate.” Meyer v. Grant, 486 U.S. 414, 421, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)

. In either case, the expression of a political view implicates a First Amendment right. The State, having “cho[sen] to tap the energy and the legitimizing power of the democratic process, ... must accord the participants in that process the First Amendment rights that attach to their roles.” Republican Party of Minn. v. White, 536 U.S. 765, 788, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (internal quotation marks and ellipsis omitted).

Respondents counter that signing a petition is a legally operative legislative act and therefore “does not involve any significant...