WASHINGTON (CN) - The 9th Circuit on Tuesday dismissed an attempt to shield already public referendum petitions that identify Washington voters who opposed equal rights for domestic partners.
Referendum 71 was a failed attempt to quash a 2009 Washington law that granted domestic partners the same rights as married couples. Voters approved the law 53-47 percent.
Several groups sought release of the names to post on various websites, but signers wanted to keep their names secret amid worries of intimidation. They also claimed that releasing their names was a violation of their First Amendment rights.
The 9th Circuit refused to keep the names secret, and the high court agreed in June 2010, saying disclosing the names on a petition for a public referendum does not violate the First Amendment.
In October 2011, U.S. District Judge Benjamin Settle said that Protect Marriage Washington and two anonymous petitions signers had failed to demonstrate the potential for harassment if the names were released.
With nearly a year gone as the parties appealed, the petitions in question have become widely available over the Internet.
The federal appeals court decided from Pasadena on Tuesday that this development closes the case.
"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."
Judge N. Randy Smith wrote separately to address the merits because he felt that the case was not moot.
"As Chief Judge Kozinski has described it, 'removing something from the Internet is about as easy as removing urine from a swimming pool,'" Smith wrote, quoting the circuit chief's April 12, 2012, submission to the Stanford Law Review.
Smith also said that mootness hinges on the assumption "that every person in the United States or the state of Washington has access to a computer to search for these petitions." "Though widespread internet access is available to the public, the fact remains that twenty percent of the national population and almost twelve percent of Washington State's population did not have access to the internet in 2010," he wrote. "There are likely still other individuals who would not know where to look for these petitions on the internet."
The judge pointed out that Protect Marriage Washington could try to prevent Washington from further disclosing names and information of R-71 petition signers.
"Supreme Court precedent makes clear that preventing continued disclosure properly describes the remedy plaintiffs seek here, and thus the case is not entirely moot," he wrote.
Once he reached the merits, however, Smith decided against the group.
"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. "Not only did plaintiffs choose to rely primarily on past evidence of threats and reprisals, rather than more current evidence taking account of changed circumstances, plaintiffs' arguments on the merits before this court entirely fail to account for the fact that, due to plaintiffs' tactical error, the district court has already released their identities. Thus, the only government action now at issue is whether the state of Washington can continue to disclose these names."
Smith had described the "tactical error" earlier when he said that the Protect Marriage Washington could have filed its motion for stay with the District Court.
The concurring judge brushed off the group's claims that publicity has exposed petition signers to threats and 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. In view of these admissions, evidence of threats to more public individuals or individuals in other states is less persuasive, and 'the record here does not reflect the kind of focused and insistent harassment of contributors and members' required in" precedent.
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