It’s kinda like asking Don Wakamatsu to pinch hit…

I would feel a lot more confident about Washington state’s chances of successfully defending the constitutionality of our Public Records Act before the U.S. Supreme Court this week… if we had a better lawyer arguing our case. I’m just sayin’.


  1. 2

    notaboomer spews:

    Maybe his team would like him to take a dive.

    i would like to subscribe to your newsletter.

  2. 3

    Zotz spews:

    I want to have at the bigots as much as anyone — we should all know where NOT to spend our money for example — but here’s an observation from someone trying to get signatures on 1068:

    A significant number of the people I approach to sign (including some I know to be regular pot users) are afraid to sign for fear of ending up on a list for targeting by law enforcement or drug testing / hassle by / from their employer.

    Having petition sigs be a matter of public record is absolutely the right thing, but being public CAN be a major disincentive to signing.

  3. 5


    I’m not a lawyer so I can’t really judge the legal basis of his brief. However, the points he made in the brief did seem to be well supported by the amicus briefs, which as I understand it are formulated independently of the respondents’ attorneys (McKenna, etc.). That’s a good sign that he’s going in the right direction, isn’t it? Also, as I understand it he’s won the other cases he’s argued before the SCOTUS. Fingers crossed – we need to keep our PRA intact.

  4. 6

    Richard Pope spews:

    UW law professor Stewart Jay (who thinks McKenna is totally wrong on the Health Care Reform lawsuit) also strongly thinks that the public disclosure law is unconstitutional as applied to referendum and initiative signatures:

    But Stewart Jay, a University of Washington law professor who specializes in constitutional law, thinks the court will go the other way.

    While the Supreme Court has never ruled on what it means to sign a ballot petition, it has ruled that gathering petition signatures is core political speech, protected under the First Amendment, Jay said.

    “I would be surprised if the court found that signing a petition was not a form of political speech protected by the First Amendment,” he said.

    Furthermore, the court has a tradition of protecting anonymity for political actions such as leafleting and publishing handbills, especially related to elections, he said.

  5. 7


    Richard, everything before the last paragraph of your quote from Professor Jay seems utterly irrelevant to the issue at hand.

    No one is arguing that petition-signing is anything other than protected political speech. But political speech is, almost by definition, public speech. “Protection” doesn’t imply “anonymity” in any way, shape, or form.

    On top of that, doesn’t the Washington Constitution define initiative & referendum as the people acting as a legislature? If writing laws isn’t legislation, I don’t know what is. The legislative process is open and public — we always know who introduces a bill, who cosponsors it, who votes to bring it to the floor for consideration — and so too should the people’s legislative process.

    It’s not like we’re going so far as to make public the identity of yes/no votes on final passage of the legislation (which is also public when our representatives cast their votes in Olympia).

  6. 8

    Mary Plante spews:

    I am no fan of McKenna but this is not the first time he has argued a case before the Supreme Court and he has prevailed in all previous efforts.

  7. 9

    Governor McKenna spews:

    Zotz twists slowly in the wind. Was probably willing and eager to scour R-71 petitions to build his enemies list, but is suddenly demure about putting himself and his name on the line as a pothead. (Assuming that his post @3 is demurely self-referential.)

    So here, as a purely playful hypothetical, I present to you … Charles Alan Wilson. CAW, scanning gathered signatures on I-1077 petitions, sees that “Christine Gregoire” (who said in 2008 that she had never supported a state income tax), recently had an apparent that-was-then conversion. She’s still coy about supporting a Gates-state income tax, but that, right there, is her signature. She signed on the dotted line of a petition to get 1077 on the ballot.

    What’s a psycho to do? My guess is that he goes as postal as a California liberal jonesing on Prop 8.

    What say you?

  8. 10

    rhp6033 spews:

    The idea of a “secret” petition or initiative is ridiculous. The whole idea is to demonstrate popular support for a measure by having interested individuals being willing to put their name on the record in support of the petition or initiative. If people aren’t willing to put their names on the line in a public manner, then so be it.

    That’s a lot different from the secret ballot, which is one of our last protections against coercive voting. Your boss may put an initiative on the break table and let it be known he would look favorably on anyone who signs the thing (implying negative consequences for those who don’t), but everyone can vote their own conscious when the actual election occurs. Even those who signed the initiative are free to vote against it later.

    Of course, Timmy wants to keep initiative names private – except to himself. When he was working with churches on the anti-gay marriage initiative, he had a falling-out with the churches over his insistence that HE control the signed petitions. It seems he wanted to make sure he, and only he, had an opportunity to enter every one of those names and addresses in his database for future fundraising, before it was filed with the state. He knows how valuable that mailing-list is, and he’s going to keep tight control over it as property of his commercial enterprise.

  9. 11

    kind of like having Godless Zotz ask Don Wakamatsu to pinch hit spews:

    More like asking Don Benton to pinch your butt.

  10. 12

    kind of like having Godless Zotz ask Don Wakamatsu to pinch hit spews:

    Quiet down, class. Tennessee Ernie rhp is going to tell us about the Australian ballot and about sacred secret protections from employer coercion.

    Did you know, boys and girls, that a greedy evil employer can place an initiative in the break room and can imply negative consequences for starving suffering exploited workers who don’t sign it? Can you say wick-ed cap-it-al-ist? Good. Very good. You came very close.

    This legislation, officially titled the “Employee Free Choice Act,” will actually reduce workplace fairness and democracy. Under current law, when unions attempt to organize a workplace, employees usually vote by secret ballot in a government monitored election. This process of debate and private vote is, however, unacceptable to union bosses who often lose in a fair workplace election. The unions want to be able to demand that workers make a public decision in front of a union organizer– literally, “checking a card” instead of having the right to a private vote.

    So tell us, Tennessee Ernie rhp, why card check didn’t make into your breakroom lesson plan?

    And after that, tell us allllllll about the musty odors of Tennessee lore. The boys and girls just can’t wait to hear alllllll about Estes Kefauver and John Scopes and Andrew Johnson.

    Won’t that be fun, class? And remember: nobody goes to recess until Mr. rhp says

    Class Dismissed.

  11. 13

    Slippery Pete spews:

    Publicola’s Advokat may be right, I haven’t read the brief. But nor do I know anything about Advokat (other than that he is a lawyer).

    So until ‘cola/Advokat reveals more about his identity or qualifications, I’m going to trust that the guy who is 2/2 at SCOTUS (including one “upset” victory), by a total margin of 16-2, knows how to write a brief and deliver oral (cue Dan Savage) arguments.

  12. 14

    rhp6033 spews:

    # 12: I keep telling you, I’m only one man! I can only do so much! Feel free to add it into your answer of the essay question on the final, however.

  13. 15

    rhp6033 spews:

    As for McKenna, I really don’t think he’s a bad lawyer. Between him and his staff, I think he will do a pretty good job in front of the U.S. Supreme Court on this issue (confidentiality of initiative signers).

    But that’s why this whole idea of joining in with the Tea Bag party to attack the constitutionality of the Health Care Reform Act is so ridiculous. He clearly knows it’s a shot in the dark, and unless the Supreme Court is willing to throw out three-quarters of a century worth of legal precedent, it hasn’t got a snowball’s chance in hell. Since we know he’s a good lawyer (or at least an adequate one), we must assume the only other logical explanation – the challenge must be motivated by partison political reasons.