SALT LAKE CITY — A federal judge issued an order Thursday ruling that the names of registered voters who signed a political ethics petition should be kept anonymous — for now.
U.S. District Judge Clark Waddoups ruled there are issues that need to be considered, such as whether the signing of a petition represents free speech and whether the release of the names would have a "chilling effect" on future political discourse.
He set a hearing on the matter for April 28.
In the meantime, the public release of the names, which had been set for 5 p.m. Thursday, will be halted for 10 days.
Waddoups heard arguments from attorneys representing Utahns for Ethical Government, which filed the complaint Wednesday, asking the judge to issue a temporary restraining order on the release of the names to allow for a "careful, searching review" of what the group considers to be a "very important constitutional issue."
Attorney Alan Smith said the release of the names would violate rights of free speech, petition and privacy. He said there would be "no harm" in putting off the release for 10 days to allow the judge to weigh whether the release of petitioners' names is unconstitutional.
He said the judge's ruling was pivotal, because it might be the first time the judiciary will address whether the signing of a petition constitutes a form of speech.
"It's an important constitutional issue that has never been tested in Utah," Smith said. "It's a clash of values between the government doing what it thinks is right and the constitutional right people have to speak out."
Assistant attorney general Thom Roberts represented Lt. Gov. Greg Bell and Attorney General Mark Shurtleff and told Waddoups that such petitions have long been considered public documents by state mandate. He also said the signing of a petition is not an assertion of free speech, but a "legislative act," because the initiatives tied to them often lead to legislative change.
He said the judge's decision "keeps the status quo" for the time being and the next hearing will address whether the case actually raises a "serious question" as to how petition signatures are treated.
In the complaint, Smith said signing a petition is akin to the "sacred" act of voting and should be afforded the same anonymity. The petition was "designed to create an independent ethics commission and code of ethics respecting the Utah State Legislature," the complaint states.
The case was initially filed in the name of UEG and "Jane Does 1 through 4" and "John Does 1 though 4," and Roberts argued there was a procedural bar that would disallow the filing of a complaint in the names of anonymous individuals without obtaining court approval.
To address this procedural issue, an amended complaint was filed that named the anonymous petitioners. The judge ordered that this be put under seal.
Roberts had also argued that delaying the release of the names would inhibit the political process from moving forward, as new legislation now allows those who sign a petition to have their names removed within a 30-day period. Though people will still have that option, they will not be able to be solicited by those who might encourage them to have their names removed. If the petitions have fewer than 95,000 names, the initiative will not be placed on the ballot in November.
The restraining order will only apply to identifying information, not to the total number of names, but Smith said the case will most likely move forward, regardless of whether the 95,000 signature requirement is met. He said it will depend on whether Waddoups decides to issue an injunction, which would be an indefinite halt on the release of the names, or finds that the case raises an "issue of significant magnitude," warranting future hearings.
The U.S. Supreme Court has issued an order to stay on a similar case regarding a same-sex partnership law in Washington state. A petition seeking to overturn the law gathered enough signatures to warrant a place on the ballot, but those who signed the petition asked to remain anonymous.
Their request for anonymity was granted by a federal judge but was overturned by the 9th Circuit Court of Appeals, which also questioned whether a petition signature constituted free speech.
The high court issued a stay on the ruling, maintaining the "status quo" by keeping the names anonymous until the election passed.
Attorney Janet Jenson, who also worked on the UEG case, said she didn't realize this government ethics case was a similar "hot button" issue, but she has heard stories of retaliation in the political sphere against those who signed the initiative. She said even incumbent lawmakers seeking re-election have been warned their signatures could lead the parties that back them not to re-nominate them.
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