The citation for the original opinion is Conn v. City of Reno, 572 F.3d 1047 (9th Cir. 2009) This dissenting opinion (Conn v. City of Reno, et al) was published on January 8, 2010. Although the the facts are unfortunate, their recitation is not the issue. Police detained an intoxicated woman who committed suicide subsequent to her release from civil detention. The family sued the arresting officers and the City of Reno in federal court under U.S.C. 1983. Both asserted qualified immunity in a motion for summary judgment but the Ninth Circuit three judge panel denied their defense. The dissent is important because of its criticism of the role of police mandated by the panel and judicial imposition of duties imposed on the City at the expense of individual responsibility. The dissenting judges wrote in response to a petition for a hearing en banc: “Until this opinion came along, police officers weren’t required to serve as babysitters, psychiatrists or social workers, and judges didn’t run suicide-prevention programs. Responsibility for preventing suicide rested with the individual and the family, not the state. But the panel has discovered that the Constitution demands a change in job description: Judges will henceforth micromanage the police, who in turn will serve as mental health professionals. The panel’s reasoning has no stopping point, and our decision to let it stand threatens unprecedented judicial intervention in our local institutions.” “At bottom, this case raises the question of whether the state has a legal (as opposed to moral) obligation to provide for the health of its citizens. We have repeatedly rejected the idea that such an obligation exists. See, e.g., DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200 (1989). This is in part because the benevolent welfare state is in tension with our tradition of liberty and individual dignity: What the state provides for you, you do not provide for yourself, and as the sphere of public largesse grows, the realm of private initiative retreats. It also reflects a judgment that any redefinition of the role of the state should occur under the supervision of democratically elected officials, not unaccountable federal judges. States may obligate themselves, but they should not have novel duties thrust upon them by judicial fiat.” “In the panel’s hands, standards that are meant to limit liability to all but the most extreme cases become tools for imposing the policy preferences of unelected federal judges. This combination of errors amounts to a toxic recipe for judicial micromanagement of local institutions.” And that last comment is at the heart of the issue. Once again a Ninth Circuit imposes policy preferences with no precedent in support of a decision clearly headed for the Supreme Court.
The Washington State Legislature enacted legislation extending rights and responsibilities to state registered domestic partners. In response, voters signed petitions to submit the legislation to a referendum. Several opposition groups sought disclosure of all the names of those who had signed the petitions. Washington law provides a Public Records Act (PRA) mandating disclosure of signatories who signed petitions in support of a referendum. To assure the integrity of an election or petition for referendum, Washington criminal law also prohibits anyone from using a false name in voting; or is not a legal voter; or otherwise makes a false statement in signing a petition. Washington statutes also provide a method for voter certification of signatures by the Secretary of State and an appellate process seeking review of the administrative decision on the integrity of ballots or petitions. Plaintiffs filed a Complaint in U.S. District Court seeking an injunction against enforcement of the PRA. In Count I of the Complaint, plaintiffs alleged disclosure of signatories to the petitions violated the First Amendment “because the PRA is not narrowly tailored to to serve a compelling public interest.” Count II alleged the PRA is unconstitutional because “there is a reasonable probability that signatories of the petitions . . . will be subject to threats, harassment, and reprisals.” In support of that allegation, plaintiffs alleged various groups have “publicly stated they intend to publish the names of signatories on the Internet . . . and have encouraged individuals to contact petition signers to have ‘personal’ and ‘uncomfortable’ conversations.” The District Court ordered injunctive relief in accord with the conventional test of finding the plaintiff likely to succeed on the merits; likely to suffer irreparable injury in the absence of an injunction; balance of equities in its favor; injunction in the public interest. The State (and other defendants) appealed. The Ninth Circuit ignores the court order for injunctive relief entirely, despite the trial judge’s obvious finding the plaintiffs would suffer injury. The Ninth Circuit panel reversed on the ground the trial judge used the wrong legal test for allegations of First Amendment violations. The Ninth Circuit reversed Count I as the District Court had ruled only on that count. After concluding the PRA is subject to “intermediate scrutiny” under First Amendment analysis, the court asks rhetorically what government interests are furthered by the PRA. Twofold, according to the court: to preserve the integrity of the election and “providing Washington voters with information about who supports placing a referendum on the ballot.” The court cites no authority for this latter “public interest” and it is patently without precedent. The purpose of assuring the integrity of an election or validity of petitions for a referendum identified in the above statutory requirements is prevention of fraud and assurance no false names or statements are counted in the ballots or petitions. Nothing in the the court’s rationale to allegedly “inform the public about who supports the referendum”, validates the need for disclosure. This supposed rationale is directly contradicted by the allegations of the Complaint that disclosure is sought to threaten or intimidate signatories, not to inform the public. The court is further confronted with another Washington statute allowing various interested parties to observe the Secretary of State staff processing the names of “qualified voters” who signed the petitions “so long as observers make no record of the names, addresses, or other information on the petitions or related records during the verification process.” In other words, the Washington statute specifically prohibits observers of the certification process from recording any names on petitions. According to the Ninth Circuit, this Washington statute is not controlling because the alleged demands for disclosure of “who is qualified” to sign petitions are insufficient to provide “information about who supports placing a referendum on the ballot.” But the defendants are not concerned about qualified voters. They want disclosure to fulfill their publicly announced interest to confront signatories. Fortunately, this erroneous judicial Ninth Circuit interpretation of First Amendment Constitutional law and Washington state law has been stayed by the Supreme Court. Buried in the footnotes of Doe v. Reed, the Ninth Circuit panel notes that its decision was stayed by Justice Kennedy who referred his decision to the entire Court-which confirmed the stay. A question: Suppose the plaintiffs were a minority group. They alleged their supporters would be threatened by disclosure. Would the Ninth Circuit issue the same rule as Doe v. Reed? Or this: Assume State legislation mandates proof of identification (disclosure) by voters before voting in an election. The Supreme Court approved that state legislation in Indiana; Crawford v. Marion Co. Election Bd., 533 U.S. 1811 (2008). Had that case been before the Ninth Circuit instead of the Supreme Court, the result would have been different.
The summary of this case is provided in a previous entry; June, 2008. The Ninth Circuit en banc court reverses that decision. The en banc majority in Hinkson undertakes the task of reviewing the proper rule of appellate courts when reviewing decisions written by district courts. Because the Ninth Circuit repeatedly substitutes its judgment for trial courts, the en banc court establishes the proper test for review: “. . .The scope of our review limits us to determining whether the trial court reached a decision that falls within any of the permissible choices the court could have made. In other words,. . . the reviewing court must still include some measure of deference to the trial court’s factual findings.” The en banc court discusses appellate review extensively and is clearly a reprimand to Ninth Circuit decisions reversing trial courts by invoking their own policy decisions.