Ninth Circuit to Protect Marriage Washington: your R-71 case is moot (updated)
Moot is the word that the Ninth Circuit Court of Appeals used to describe Protect Marriage Washington‘s too-late effort to prevent the Washington Secretary of State from releasing more copies of the Referendum 71 petitions to the public.
In October, Federal District Court Judge Benjamin Settle, a George W. Bush appointee, ruled in their case Doe v. Reed that PMW was not entitled to an exemption from the Public Records Act and that therefore the Referendum 71 petitions they submitted to the state must be made available to the public by the Secretary of State. He also revealed the identities of the Doe plaintiffs and witnesses which until then had been secret.
|Larry Stickney, PMW Campaign Manager and Doe witness|
PMW found itself in a pickle because they had failed to pre-file a request for a stay before Judge Settle ruled. As a group concerned with keeping the names of R-71 signatories and Doe plaintiffs secret, pre-filing a motion for a stay would have been a logical precaution for PMW to take in the event Judge Settle ruled against them.
But they didn’t. Instead they filed emergency motions for injunction after the fact.
Between the time of Judge Settle’s ruling and PMW’s after-the-fact emergency motions, numerous copies of the R-71 petitions and Judge Settle’s ruling itself had entered the public domain. In addition, some Doe witnesses have outed themselves. The genie was out of the bottle.
Here’s an excerpt from the Ninth Circuit Court of Appeals order stating that PMW’s case is moot (emphasis added):
Appellants have renewed their emergency motion for an injunction pending appeal under Ninth Circuit Rule 27-3. They seek to enjoin the Washington Secretary of State from further releasing the R-71 petitions, the Intervenors from distributing the petitions, and the district court from further disclosing the identity of Protect Marriage Washington’s John Doe parties and witnesses in the district court’s unredacted order. Because the court preliminarily believes that the appeal is moot due to the release of R-71 petitions, appellants’ renewed emergency motion for an injunction pending appeal is denied.
PMW announced today that they will file yet another too-late emergency motion. The effort seems a waste of taxpayers’ money. To prevail, PMW would not only have to convince the Court that its case really isn’t moot, but it would also have to show that it has standing to appeal on behalf of the R-71 signatories, none of whom have asked for PMW’s “help”.
PMW is affiliated with the anti-gay hate group National Organization for Marriage. Doe v. Reed is just one in a string of NOM-linked cases seeking — unsuccessfully — to use ballot measures and legislative campaigns about domestic partnerships or marriage equality as vehicles for attacking campaign finance disclosure laws or other open government laws. Recent articles describing related NOM-linked cases can be found here and here.
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 the R-71 vote to overturn the state’s domestic partnership law.
UPDATE 1, Nov. 17th: The Secretary of State’s office has resumed release of R-71 petitions.
UPDATE 2, Nov. 18th: According to the Secretary of State:
Protect Marriage Washington has asked U.S. Supreme Court Justce Anthony Kennedy to block release of Referendum 71 petitions while an appeal is underway in the 9th Circuit Court of Appeals.
While that is pending, Washington’s Office of Secretary of State will suspend release of further R-71 petition DVDs. The office has no further information on the timing of Justice Kennedy’s handling of the matter.
UPDATE 3, Nov. 21st: The U.S. Supreme Court has denied Protect Marriage Washington’s request to block the release of Referendum 71 petitions in WA while their appeal in the 9th Circuit is underway.