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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTONTACOMA
__________________________________________________________________
)
JOHN DOE, et al )
Plaintiffs ) No. 09 CV 05456 BHS
) WEST'S SUPPLEMENTAL
Vs. ) MEMORSANDUM IN
) SUPPORT OF MOTION
SAM REED, et al ) TO INTERVENE
Respondents ) NOTE ON MOTION CALENDAR
) FOR September 3, 2009
__________________________________________________________________
Comes now Arthur West, and respectfully submits the following Memorandum in support
of his application to for leave to intervene in this action and in opposition to consolidation of a
hearing on the merits with the hearing on the temporary injunction and the proposed Sealing
Order which appears to be inconsistent with the requirements of the clearly established precedent
in Seattle Times v. Ishikawa:
A further profound misconception of the plaintiff in this case concerns their belief that
official public records filed with the Secretary of State are subject to a privacy right. Nothing
could be further from the truth. When filed in the office of the Secretary of State, signatures
initiative or referendum petition are in the public domain subject to a state certification process
and disclosure to interested persons.
There is no dispute in the State of Washington that the 1st Amendment protects the right
to receive information concerning the conduct of government as a central prerequisite to the
exercise of all other rights. As our Supreme Court held in Fritz v. Gorton 83 Wn.2d 275, 517 P.2d
911 (1974), “We accept as self-evident the suggestion in the brief of intervenors (The League of
Women Voters) that the right to receive information is the fundamental counterpart of the right of
free speech.”
It is this self evident and fundamental counterpart to the right of free speech that the
plaintiffs, and this Court, have abridged in this case.
If closure and/ or sealing is sought to further any right or interest besides the
defendant's right to a fair trial, a "serious and imminent threat to some other
important interest" must be shown.
The burden of persuading the court that access must be restricted to prevent a
serious and imminent threat to an important interest shall be on the proponent
unless closure is sought to protect the accused's fair trial right. Because courts are
presumptively open, the burden of justification should rest on the parties seeking
to infringe the public's right. SEE NEBRASKA PRESS ASS'N v. STUART, 427
U.S. 539, 558-59, 569-70, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). From a
practical standpoint, the proponents will often be in the best position to inform the
court of the facts which give rise to the alleged need for closure or sealing. For
example, the prosecutor in the Marler case had knowledge of matters such as
ongoing investigations, safety of witnesses and the possibility that other
defendants might be charged. It is alleged that these interests have been served by
secrecy in this case.
2. "Anyone present when the closure [and/ or sealing] motion is made must be
given an opportunity to object to the [suggested restriction]". KURTZ, at 62.
For this opportunity to have meaning, the proponent must have stated the grounds
for the motion with reasonable specificity, consistent with the protection of the
right sought to be protected. At a minimum, potential objectors should have
sufficient information to be able to appreciate the damages which would result
from free access to the proceeding and/ or records. This knowledge would enable
the potential objector to better evaluate whether or not to object and on what
grounds to base its opposition.
Clearly, in light of the procedurally dubious “protective” sealing order proposed by the
current parties, West should be allowed to intervene to protect his individual interest in open and
public Court proceedings in conformity to Ishikawa requirements, in addition to the particular
interest he has in the application of the law he has done so much to shape over the last two
decades.
WEST'S RIGHTS ARE NOT ADEQUATELY PROTECTED BECAUSE THE STATE HAS
FAILED IN THE PAST TO ACT, AND IN THAT THE STATE AND WEST DO NOT AGREE
ON WHAT THESE RIGHTS ARE TO BEGIN WITH IN REGARD TO POPULIST
LEGISLATION
In addition to the evident lack of protection of West's (and the public's) interest in open
Court proceedings, due to the res judicata effect of the ruling of Division I in Mortenson v. PDC,
disclosure of records related to I602, there can be no argument that his intervention is improper
in this case or that his interests are adequately protected by the State, as these issues have already
adequately protected by an entity that has failed to act in the past, and which, in many cases, has
differing conceptions of what these rights are to begin with.
It is impossible for the plaintiffs to represent that West's interest in regard to populist
legislation such as the initiative, referendum and recall are adequately protected by the State, in
that the Washington State Secretary of State, the primary defendant in this case, has filed
briefing opposing West's views as to the proper interpretation of State constitutional provisions
relating to the recall in an an ongoing State Supreme Court Case, in re the recall of Telford.
WEST CLEARLY HAS STANDING TO INTERVENE AND ARGUE THAT HIS 1st
AMENDMENT RIGHTS ARE VIOLATED BY THIS COURT'S INJUNCTION
As the Supreme Court ruled in new york Times v. Sullivan, in 1964, the first Amendment
provides that “debate on public issues...[should be]... uninhibited, robust, and wide open.”
Although perhaps well intentioned, the prior restraint entered in this case (see P. 515 of
the plaintiff's Memorandum on prior Restraints) restricts access to information of an undeniably
public character, and has the additional defect of restraining some degrees of conduct that, while
perhaps offensive, is not within the permissible bounds of governmental regulation.
Petitioning is an inherently public activity, and the requirement of the State Constitution
that the right of petition shall not be abridged (Article I, section 4) extends to the abridgement of
the rights of the rest of the petition signers, as well as West and the rest of the public, to an open
and legitimate referendum process. The temporary injunction issued in this case itself violates
the 1st Amendment, and this Court's failure to afford equal protection under the Constitution to all
citizens alike is especially problematic.
Amendment and engage in criminal harassment and intimidation, ex post facto criminal
prosecutions and long jail terms are the most effective and least constitutionally objectionable
deterrent. Suppressing disclosure of information about the many tens of thousands of individuals
who signed the referendum other than those few who have been subject to unpleasant incidents as
part of their participation in the political process is not only misguided, and potentially
restraint.
I certify the foregoing to be correct and true. Done September 2, 2009.
. _____________
Arthur West