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John Doe #1, An Individual v. Sam Reed

October 23, 2012

JOHN DOE #1, AN INDIVIDUAL;
JOHN DOE #2, AN INDIVIDUAL;
PROTECT MARRIAGE WASHINGTON, PLAINTIFFS-APPELLANTS,
v.
SAM REED, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF WASHINGTON; BRENDA GALARZA, IN HER OFFICIAL CAPACITY AS PUBLIC RECORDS OFFICER FOR THE SECRETARY 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 DC No. 3:09-cv-05456-BHS

The opinion of the court was delivered by: Tashima, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted June 22, 2012-Pasadena, California

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

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. Wash-ington's Public Records Act ("PRA") requires state agencies to make public records available for public inspection. Id. § 42.56.070.*fn1

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 in support of a referendum to overturn Senate Bill 5688. Three days later, Plaintiffs filed a two-count complaint which sought to enjoin the State from publicly releasing the petitions. The district court granted a temporary restraining order the next day.

Count I of the Plaintiffs' complaint alleges that the PRA violates the First Amendment as applied to referendum petitions because it is not narrowly tailored to serve a compelling government interest. The district court initially agreed. Doe v. Reed, 661 F. Supp. 2d 1194 (W.D. Wash. 2009). We reversed, Doe v. Reed, 586 F.3d 671 (9th Cir. 2009), and granted Plaintiffs' motion for a stay pending final resolution of the appeals. The Supreme Court affirmed our decision, Doe v. Reed, 130 S. Ct. 2811 (2010), and also rejected a motion to vacate the stay, (US Dkt. Oct. 20, 2009).

On remand, the district court considered Count II, which claims that releasing the names of the signers of this petition would violate the First Amendment because the signers would be subjected to threats, harassment, and reprisals. On October 17, 2011, the district court granted Defendant's motion for summary judgment and dissolved the preliminary injunction. The State immediately began to release the petitions.

Also on October 17, Plaintiffs filed a notice of appeal and a motion for an injunction pending appeal in the district court. Before the district court ruled on that motion, Plaintiffs filed an emergency motion for an injunction pending appeal in this Court on October 20, 2011. We denied the motion without prejudice, but enjoined the State from releasing the petitions until five days after the district court's ruling. On November 8, 2011, the district court denied Plaintiffs' motion because it found that Plaintiffs failed to show a likelihood of success on the merits. The next day, Plaintiffs renewed their motion before this panel, and a week later we denied the renewed motion. Plaintiffs requested an injunction pending appeal from Circuit Justice Kennedy, who referred the matter to the full Court, which in turn denied it.

The petitions are now available in original and in searchable form on the internet.

II

This Court reviews a district court's grant of summary judgment de novo. Bias v. Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007). We review mootness de novo. S. Cal. Painters & Allied Trades v. Rodin & Co., Inc., 558 F.3d 1028, 1034 n.6 (9th Cir. 2009).

III

Standing is a "jurisdictional issue[ ] deriving from the requirement of a case or controversy under Article III." Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000)). "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (internal quotation marks omitted). This case is moot because no effective relief remains available to Plaintiffs. No exception to the mootness doctrine applies because this is not the type of case that is capable of repetition, yet evading review.

A

[1] Count II seeks an injunction preventing defendants from making these petitions available to the public. This relief is no longer available because the ...


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