John Doe 1 v. Sam Reed

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE #1, an individual; JOHN  DOE #2, an individual; PROTECT

MARRIAGE WASHINGTON,

Plaintiffs-Appellants, v. SAM REED, in his official capacity No. 11-35854 as Secretary of State of Washington; BRENDA GALARZA, in her official capacity as Public  DC No. 3:09-cv-05456-BHS records Officer for the Secretary OPINION of State of Washington, Defendants-Appellees,

WASHINGTON COALITION FOR OPEN

GOVERNMENT; WASHINGTON

FAMILIES STANDING TOGETHER,

Intervenors-Defendants-Appellees.  Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted June 22, 2012—Pasadena, California

Filed October 23, 2012

Before: Harry Pregerson, A. Wallace Tashima, and N. Randy Smith, Circuit Judges.

Opinion by Judge Tashima; Concurrence by Judge N.R. Smith

12881 DOE #1 v. REED 12883

COUNSEL

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

Anne E. Egeler, Deputy Solicitor General, Olympia, Wash- ington, for the defendants-appellees. 12884 …

concurring in the judgment:

I concur in the judgment affirming the district court, because Plaintiffs have not raised a successful as-applied challenge. However, because Supreme Court precedent makes clear that this case is not moot where continued government disclosure of confidential materials can be prevented, I write separately to address the merits.

I. Mootness

As the majority noted, the district court granted Defendant’s motion for summary judgment and dissolved the preliminary injunction in October 2011. The State immediately began to release the R-71 petitions. Plaintiffs may have prevented the release of petitions from occurring by asking the district court to stay its order pending appeal and filing a motion for stay here. As a result of Plaintiffs’ tactical decisions, the records became public before Plaintiffs took any steps to prevent disclosure.

Because the names of R-71 petition signers have been released to the public at large, the question of mootness now hinges entirely on the relief that Plaintiffs seek. If Plaintiffs only seek to secure total confidentiality for the names of R-71 petition signers, then this relief is clearly no longer available. As Chief…

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

OPINION

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.

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…