Judge rules: NOM-backed Protect Marriage Washington is not allowed to legislate in secret
Over two years of litigation stemming from the 2009 Referendum 71 campaign to repeal Washington’s domestic partnership law came to an end Monday, and the good guys have won. Federal District Judge Benjamin Settle, a George W. Bush appointee, ruled in the case Doe v. Reed that Protect Marriage Washington (PMW), an affiliate of the anti-gay National Organization for Marriage (NOM), was not entitled to an exemption from the Public Records Act and that Referendum 71 petitions must be made available to the public by the Secretary of State. PMW had claimed that if they were required to adhere to the public disclosure laws, people who signed the referendum petition would be subject to harassment. Judge Settle wasn’t buying it. In his ruling he said:
“Doe has failed to supply sufficient, competent evidence that the publically known donors–as active supporters of R-71–have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case.”
“Doe has only supplied evidence that hurts rather than helps its case.”
“Doe asked the Court to grant an exemption to the PRA based on a few experiences of what Doe believes constitutes harassment or threats, the majority of which are only connected to R-71 by speculation. If Doe’s position were correct, then . . . anyone could prevail under such a standard in the context of referenda, which are often heated, regardless of the subject matter. Indeed, if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception rather than the rule.”
The irony should not go unnoticed that these right-wing groups promote divisive measures and then demand a special right to secrecy because the strong disagreement that follows makes them uncomfortable. Yet these same groups and individuals who say they may be harmed by the public having information about an election are never troubled that the very laws they try to get passed through these campaigns result in real harm to LGBT individuals and families. These groups sponsor measures with an agenda of taking away rights and then sue with exaggerated tales of victimization in an effort to hide from public view and to take away the ability of those who stand up against them to protect themselves and their fellow citizens. The Court found that the assertions they made here were no more valid than they have been in any other state where they have tried the same arguments.
In November, 2009 over 53% of the electorate voted to approve Referendum 71, making Washington the first state in the nation to vote affirmatively in support of comprehensive relationship recognition for LGBT families. PMW was the organization trying to use a referendum vote to overturn the law.
UPDATE: Naming each Doe plaintiff* in his ruling, Judge Settle also methodically described the threats or harassment that each alleged during their depositions. Although the plaintiffs had publicly declared their support for repealing the domestic partnership law and so were presumably most likely to be the recipients of untoward behavior, not one of them were able to point to significant “threats, harassment, or reprisals” stemming from their Referendum 71 activism. Click “read more” to read and judge for yourself the strength of their evidence.
*Plaintiffs were Ronald Perkins, Matthew Chenier, Richard Long, Roy Hartwell, Valerie Hartwell, Viktor Anishenko, Ken Hutcherson, Alexander Kaprian, Dmitry Kozlov, Sergey Koslov, Leonid Pisarchuk, Gary Randall, Elizabeth Scott, Valera Stevens, Larry Stickney, Matt Stickney, Robert Struble, Barbara “Rachel” Whaley.
[More below the fold.]
The following is an excerpt from Judge Settle’s Doe v. Reed Summary Judgment Order:
The Court turns now to Doe’s historical evidence that may be considered relevant and admissible to establish that Doe would face a reasonable probability of threats, harassment, or reprisals if disclosure of the R-71 signers’ information were required. The majority of evidence supplied by Doe includes individuals’ claimed experience of threats, harassment, or reprisals that Doe contends is connected to R-71.
Ronald Perkins, John Doe # 1. Ronald Perkins (“Perkins”) is a known public supporter of R-71. He has announced his opposition to same-sex marriage in an internet video, and signed the R-71 petition publically. Declaration of William B. Stafford (Stafford Decl.), Ex. A at 11-15, 16-17 (Perkins Dep.) 8:14-12:22, 22:19-23:19. In his deposition, Perkins also expressed his willingness to participate publically in this case and that he was aware of no threats to him should he testify in this case. See, e.g., Perkins Dep. 31:3-17, 45:3-21, 47:17-48:7. Although Perkins stated that the concern of harassment remains, he also stated that no one has ever threatened him for his involvement with R-71 in any way, shape, or form at work or at home. Id.
Matthew Chenier, John Doe # 2. Matthew Cheiner (“Chenier”) gathered signatures for R-71 in public locations and waved an R-71 banner in a high-traffic area with approximately seventy other people. See Stafford Decl., Ex. B (Chenier Dep.) 10:19-11:17, 14:17-15:10. Cheiner has stated he does not have concerns over the
publication of his name and that he joined this action as a John Doe for the benefit of other people. Chenier Dep. 19:8-13, 38:6-17. The only negative events that Cheiner testified about in his deposition included (1) an angry text message from his brother; (2) being “mooned” by an unidentified passenger in a passing car; and (3) being “flipped off” by people in passing cars. Id. 19:17-20:4, 22:23-23:6, 25:7-23, 29:9-23. Absent from the record is any competent evidence, other than a text from Cheiner’s brother, that these incidents pertained to R-71.
Richard Long, John Doe # 3. Pastor Richard Long (“Long”) publically endorsed R-71 on several occasions. Stafford Decl., Ex. C (Long Dep.) 10:10-18, 12:19-20, 13:124. Long likely signed the petition at his church and publically encouraged others to do so. Id. 9:23-10:21. Long stated in his deposition that he has no problem testifying publically in this matter and that his involvement with R-71 need not be kept secret. Id. 8:13-24.
Long testified that he experienced harassment related to R-71 when he received a call from a purported transgender woman. Id. 20:1-9. Long claims the woman stated that she and her friends would picket the church or attend a morning service, but she affirmed they would conduct themselves appropriately. Id. 20:10-17.
Long also testified that he only received two calls about R-71 and that these were the only “harassing” events. Long testified that he did not receive other calls about R-71 or other types of “harassment” before or after the R-71 election. See, e.g., id. 28:2-5.
Roy Hartwell, John Doe # 4. Roy Hartwell (“Hartwell) testified about R-71 in front of the Washington State legislature, gathered signatures for the petition in public places, and participated in television interviews regarding R-71. Stafford Decl., Ex. D (Hartwell Dep.) 7:13-8:18, 16:1-17:16, 25:17-23, 30:24-31:10.
Hartwell testified in his deposition that one harassing incident involved two ladies that glared at him and one said “we have feelings too.” This occurred while Hartwell was collecting signatures for R-71 at a grocery store. Id. 18:3-12 (also discussing that the comment appeared to shake an older lady up, who signed the petition anyway). Hartwell also testified about others who he believed harassed him about the R-71 petition. See, e.g., id. 19:1-20:25 (discussing a woman who approached him at the grocery and asserted she would bring her friends to the church, which did not occur); 21:10-22:16 (discussing
a lady who took Hartwell and Hartwell’s wife’s picture while they were collecting signatures at a Wal-Mart and said she would post them on Facebook to enable her friends to see what the Hartwells look like; Hartwell is unaware if the Facebook posting occurred); 22:23-23:10 (discussing a customer at Wal-Mart that asked a manager to ask the Hartwells to leave; the manager did not ask them to leave). In none of the events described by Hartwell did he feel the need to contact the police. See id. 23-11-25:9.
Valerie Hartwell, Jane Doe # 5. Ms. Hartwell’s involvement with R-71 and claimed experience with harassment related thereto is not materially different than Mr. Hartwell’s, discussed above.
Viktor Anishenko. Viktor Anishenko (“Anishenko”) was a public advocate for R71 and solicited signatures for the petition on five or six occasions. Stafford Decl., Ex. F (Anishenko Dep.) 16:12-23, 23:12-25:6. Anishenko also posted an R-71 sign in the yard of his residence. Id. 25:7-8.
Although Anishenko claims to have had two or three Post-It notes containing vulgar language placed on his vehicle, he does not know if it was related to R-71. Id. 28:21-30:24. Anishenko does not allege any other instances of threats, harassment, or reprisals. Id. 28:5-14.
Ken Hutcherson. Pastor Ken Hutcherson (“Hutcherson”) is a senior pastor at Antioch Bible Church. Stafford Decl., Ex. G (Hutcherson Dep.) 6:1-6. Hutcherson has long been a public opponent of gay marriage and has been covered extensively regarding this in the media. See, e.g., id. 13:25-17:8, 18:15-19:2 (asserting that “Googling” his name results in approximately 300,000 hits related to his stance opposing gay marriage).
Although Hutcherson points to many examples of phone calls his church has received regarding his stance on gay rights, he does not point to any calls or other methods of contact that relate specifically to R-71. Id. at 38:22-39:2, 46:4-22, 63:7-64:10, 66:3-13, 71:10-21, 75:22-76:19. Hutcherson is also not aware of any death threats, attacks, or harassment of his congregation as it relates to R-71. Id. 64:24-66:2, 48:3-8, 69:5-10.
Alexander Kaprian. Pastor Alexander Kaprian (“Kaprian”) hosted and attended a meeting to support R-71. Stafford Decl., Ex. H (Kaprian Dep.) 8:24-9:7, 14:4-11. Kaprian signed the R-71 petition at his church and posted an R-71 sign in front of his residence. Kaprian testified in his deposition that some woman took photographs of his home and that he felt he was being watched; however, he points to no incident directly attributable to R-71, and he did not report these incidents to the police. Id. 42:11-43:2, 48:10-50:22, 52:19-53:3, 38:11-22.
Dmitry Kozlov. Dimitry Koslov (“D. Koslov”) was actively involved in gathering R-71 signatures, waving R-71 signs at intersections, engaging in campaign organization and other involvement between two and three times a week for three months. Stafford Decl., Ex. I (D. Koslov Dep.) 33:23-34:5. D. Koslov remained involved with R-71 following the close of voting on the referendum, and he is not concerned about testifying publically in this case. Id. 14:8-9, 33:21-22, 9:14-22.
D. Koslov testified regarding three incidents that he characterized as harassment: (1) a man directed expletives at him and pushed him; (2) a man mooned the group and threw garbage at the group from a van, no physical injuries; and (3) a woman approached him and said “we’ll do everything to stop what you’re doing” and a man said “we’ll have your kids.” Id. 30:20-32:1. D. Koslov did not claim to have been concerned for his safety regarding any of these incidents, and he did not inform the police. Id. 32:2-12, 33:8-20.
Sergey Koslov. Sergey Koslov (“S. Koslov”) publically supported R-71 and “people knew [his] view about this matter.” Stafford Decl., Ex. J (S. Koslov Dep.) 8:610. S. Koslov is not concerned about testifying publically, and he does not claim to have experienced any harassment related to R-71. Id. 11:25-12:16. However, he did testify that notes were left near his church stating “you’re worse than the fascists,” “get out of here,” and “your children . . . will be homosexuals”; he also testified that he did not feel threatened by these notes and did not call the police. Id. 11:25-12:16, 15:15-16:16.
Leonid Pisarchuk. Leonid Pisarchuk (“Pisarchuk”) actively supported R-71 by publically gathering signatures, waving signs, and placing a bumper sticker on his car and a sign in his yard. Stafford Decl., Ex. K (Pisarchuk Dep.) 8:25-10:25, 13:17-14:14. Pisarchuk also interviewed with a reporter who published a story identifying him as an R71 supporter.
Though he is not concerned about testifying in this matter, Pisarchuk testified in his deposition that he felt harassed on a couple occasions. See id. 39:25-40:4. Specifically, he claims that passing motorists made offensive gestures and shouted insults but he was not threatened by these events. Id. 21:12-24:20, 47:20-25. He experienced being yelled at with profanity and his name was placed on a pro-gay rights website but neither of these events left him feeling concerned for his personal safety, and he did not call the police. Pisarchuk Dep. 31:1-5, 33:7-12, 34:6-11. Pisarchuk does not point to any events of threats, harassment, or reprisals following the R-71 vote. Id. 35:7-10; 51:22:4.
Gary Randall. Gary Randall (“Randall”) is the president of the Faith and Freedom Network (“FFN”) and was one of the organizers/spokesmen for R-71. Stafford Decl., Ex. L (Randall Dep.) 9:25-10:2; 91:16-18, 94:6-8. Randall has expressed his support for R-71 on websites, in public speeches, and in interviews and articles published by news organizations. Id. 19:6-20:8, 20:11-22:14, 36:6-39:10, 40:19-25, 41:22-43:3, 83:2-18, 85:10-21. Randall also authorized the FFN’s political action committee to spend funds on R-71 activities, which are disclosed at the Public Disclosure Commission’s
website. Id. 29:8-31:3.
Randall testified that he received death threats via a blog site; however, when asked to demonstrate where in the copy of the blog posting he believed a threat of his or another’s life was made he could not do so without relying on assumptions. Id. 43:4-51:3 (finally conceding that no actual death threat was made on the website).4
4The blog site that Randall relied on for his claims of a death threat is
www.pinkpistols.org. This website appears to advocate for homosexuals to be armed if desired to use only in self defense. Doe has not supplied competent evidence to the contrary.
Elizabeth Scott. Elizabeth Scott (“Scott”) was a state legislative candidate who publically endorsed R-71, including the gathering of signatures for R-71. Stafford Decl., Ex. M. (Scott Dep. 7:11-18, 11:19-13:12, 62:6-13, 89:11-13). Scott is not concerned about testifying in this matter. Id. 17:11-16.
The Everett Herald (a local paper) published an article on Scott, which included the fact that she signed the R-71 petition. Id. 8:25-9:17, 10:25-11:18. The article contained her cell phone number and other contact information; notably, Scott did not receive any calls on her mobile phone regarding R-71. Id. 23:12-24-1, 96:1-16.
However, Scott’s family did receive a phone call to its residence and the caller asked for Scott and said “I will kill you and your family,” and then hung up the phone. Id. 17:19-18:18, 21:9-25. However, other than speculation, Scott does not attribute to R-71 this death threat or any other incident that she claimed could be considered harassment that occurred before or after the R-71 vote. See, e.g., id. 32:10-20, 37:16-20, 38:17-234, 40:21-41:11, 64:15-19. Additionally, she called the police about the death threat and it was handled without further incident. Id. 19:13-21:2, 30:10-31:24.
Valera Stevens. Valera Stevens (“Stevens”), a Washington State Senator, had her picture and statement of support printed on the back of each R-71 petition. Dkt. 27, Ex. A at 12. She endorsed the websites of PMW and FFN. Stafford Decl., Ex. N (Stevens Dep.) 15:6-17:4, 24:17-25:22. Stevens also wrote a fundraising message for the PMW website and made six donations to PMW. See id. 24:17-25:22. Stevens has no concern about testifying in this case, except if it occurs during the legislative session. Id. 7:4-13.
Stevens testified that she received several calls and two faxes in October of 2009 that she believed related to her support of R-71. Id. 26:17-28:13, 36:21-37:13, 46:12 48:2. Although she recalls the callers using vulgar language she does not recall being told her support of R-71 motivated the calls. Id. 29:8-30:17. None of these contacts made Stevens feel threatened, and she did not notify the police; she has not experienced any other harassment, threats, or reprisals due to her involvement with and support of R-71. Id. 42:22-43:8, 45:10-13.
Larry Stickney. Larry Stickney (“L. Stickney”) served as PMW’s campaign manager. Stafford Decl., Ex. O (L. Stickney Dep.) 6:1-13, 7:7-11. L. Stickney testified that his involvement in R-71 is “extremely public.” Id. 22:14-17. L. Stickney has spoken with reporters and been discussed on the Internet and in print regarding R-71; he has also had upwards of twenty radio appearances, appeared on TV, participated in public debates, and spoken in front of approximately 2000 people regarding R-71. Id. 22:1823:15, 35:23-37:15, 38:7-39:20.
L. Stickney did not personally experience any physical harassment or violence during the campaign for R-71. Id. 48:16-49:9, 73:1-2. He did testify, however, that the PMW campaign received threatening and/or hostile emails. Id. 48:16-49:9, 73:1-2. He also testified that he felt threatened by a Bellingham, WA blogger who wrote “[w]hy can’t we go to Arlington and harm his family?” Id. 53:2-24, 130:15-131:2. L. Stickney contacted the police who said they would investigate the matter; he never reported any further incidents regarding the blogger. Id. 56:20-58:2, 140:21-142:6. L. Stickney also received a “bothersome” phone call from a transgendered individual. Id. 86:9-87:15, 90:7-91:3, 124:22-125:1.
The only other time L. Stickney felt threatened was when his daughter informed him that a man took a photo of his home. However, L. Stickney cannot point to any facts other than speculation to contend that this event related to R-71. L. Stickney did not contact the police with regard to the unknown photographer.
Following the R-71 vote, Stickney has remained in the public’s eye and
occasionally received emails calling him a “rat” or a “homophobic bigot.” Id. 83:17 85:21.
Matt Stickney. Matt Stickney (“M. Stickney”) publically participated in R-71 events and was listed in newspaper articles connected to the campaign. Stafford Decl., Ex. P (M. Stickney Dep.) 5:24-25, 7:3-24, 10:3-15, 11:16-25. M. Stickney commented
online regarding an article about R-71 published by The Stranger, a local publication. Id. 8:4-13. M. Stickney testified that, although people responded to his comment and made comments about his father, L. Stickney, and their family in general, “[t]hey never said anything about me – you know, they never said, you know, I am a jerk for working on the campaign or whatever.” Id. 13:17-23. M. Stickney did not testify about any personal experience of harassment, threats or reprisals due to his involvement with R-71, before or after the vote.
Robert Struble. Robert Struble (“Struble”) acted as a spokesman for PMW and shared his opinions on R-71 in public debates, on the radio, at a public state legislative hearing, and in a letter to the Kitsap Sun editor. Stafford Decl., Ex. Q (Struble Dep.) 11:8-12:8, 13:17-21, 14:4-17, 17:25-18:15. Struble testified that the fact he signed the R71 petition is “so minuscule compared to the fact that [he’s] a public spokesman, so it’s not really – [his] signature is hardly the issue.” Id. 19:1-24; see also id. 20:25-21:2 (Struble does not believe he would be at risk if the R-71 petitions were publically
Struble testified about one incident he considered to be harassment. While handing out brochures on a ferry, one person receiving a brochure, crumpled it up and threw it back at Struble stating it was “a bunch of shit” and that he and his partner “had just as much right to get married” as did Struble. Id. 23:13-20. The person attempted to get other passengers to “vote” on the issue. Id. Eventually ferry workers stopped the person from following Struble around on the ferry. Id. 29:1-3, 31:4-9.
Barbara “Rachel” Whaley. Rachel Whaley is Hutcherson’s assistant. Stafford Decl., Ex. R. (Whaley Dep.) 5:13-16. Whaley did not testify to any personal experience with threats, harassment, or reprisals related to her involvement with R-71 or for having signed the petition. See generally, Ex. R. (Whaley Dep.). She did testify, however, that the church did receive several phone calls telling the church to “shut up” and that failure to do so would result in the church being “taken down,” but nobody followed through on these statements. Id. 15:21-16:13, 24:2-10, 40:9-16.
The Court turns now to Doe’s other evidence that comes in the form of written discovery. Defendants requested that Doe produce documents “relating to any alleged harassment, threat or retaliation relating directly or indirectly to R-71.” Stafford Decl., Ex. S. Doe produced 1,542 pages of documents, which predominantly included newspaper articles regarding the California Proposition 8 campaign and the R-71
campaign in Washington.
Significantly, in his deposition, L. Stickney testified that he solicited R-71 signers to share any experiences they had with harassment. Stickney Dep. 30:3-35:8. If any responses were obtained by Doe, none were included within their production to Defendants’ request.