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purpose of preventing publication and public scrutiny must be deemed an unconstitutional,

vague, and overbroad prior restraint.

STATEMENT OF THE CASE

This is an action to secure records concerning the conduct (and admitted misconduct) of public officials of the Ports of Tacoma, and Olympia, Washington. Despite the requirement that

exemptions to disclosure be narrowly construed, the Trial Courts in the State of Washington

routinely allow broad use of exemptions, which may, as in the case of both the Koenig and

Yousoufian cases, require over a decade to resolve. Counsel for the port acknowledges the

unconstitutionally overbroad nature of the exemptions in RCW 42.56 when they refer to the

interplay and overlap of the statutory exemptions and assert multiple exemptions for each

record. While a restraint upon expression must be narrowly tailored to achieve its legitimate

goals, the overlap and interplay and assertion of multiple exemptions is not narrowly tailored

to any legitimate goal, and has the onerous side effect of unduly protracting proceeding in a

manner at variance with procedural protections required for any abridgement of First

Amendment liberties.

Such a proliferation of overbroadly asserted exemptions, procedural morass, and

attendant unreasonable delays upon disclosure of the information necessary to the sound

governance of a free society, even under the best of circumstances, would pose serious

constitutional issues. It is an additional aggravating factor that the circumstances in this case are,unfortunately, not the best.

Despite the exemptions and records in this case having been submitted to the Pierce

County Superior Court for review months ago, the honorable Judge Fleming has declined to

review the records or proceed with this case in any reasonably prompt manner in accord with the

fundamental liberties protected in our most sacred political manuscripts and WSCA IV & 20.

Worse still, it now appears that in addition to unreasonable delays, the Court has

determined to require an additional unlawful license, imprimatur and prior restraint upon

plaintiffs rights to petition and expression, in the form of an onerous and unlawful fee for the

review of the multiple exemptions asserted by the port by a private Special Master under a civil

rule pertaining to private records and disputes. This procedure is not even as swift and certain as

that employed in Koenig or Yousoufian (which both took over a decade), nor is it open and

PLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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without unreasonable delay. As interpreted and applied in the present case, the PRA constitutes

both an unconstitutional abridgement of liberty and an especially insidious, pernicious, vague

and overbroad unconstitutional prior restraint upon petition, expression, and publication.

PORTS PRIVILEGE LOG EXEMPTIONS AND THE APPLICATION OF RCW 42.56IN THIS CASE HAVE EFFECTED AN UNCONSTITUTIONAL AND OVERBROADPRIOR RESTRAINT UPON PUBLICATION OF INFORMATION BY THE MEDIA

The excerpts from the exemption logs filed by the Port in this case demonstrate

incontrovertibly that the intent of the port in asserting privilege (AKA exemption) under RCW

42.56 is to effect an unlawful prior restraint on political expression and publication.

The undeniable circumstance is that the ports claims of privilege seek to restrain

publication and undermine the peoples inherent political power and sovereignty. This is

demonstrated beyond dispute by the express wording of the privileges (AKA exemptions)asserted by the port. In the ports inverted Alice in Wonderland view of the law, it is the State

that has privileges, not the citizenry, and they may be invoked to restrain distortion by the media

and politicization and media comments. Thus, from the ports privilege exemption logs, a

sampling of a small minority of the most egregious explanations for withholding of records

under RCW 42.56

If the lists were disclosed, public scrutiny of the issues , which would be takenout of context and distorted by the media , would impede deliberations (SeePort exemption log 23, P.1)

If the draft statement were disclosed, public scrutiny of the issues could betaken out of context and distorted by the media , or could impede deliberations.(See Port exemption log 24 at P. 2)

If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media , would impede deliberations politicization and media comments will by definition inhibit the delicate

balance (See Port exemption log 24 at P. 3-4)

If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media , would impede deliberationspoliticization and media comments will by definition inhibit the delicate

balance(See Port exemption log 24 at P. 3-4)



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If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media , would impede deliberations politicization and media comments will by definition inhibit the delicate

balance(See Port exemption log 24 at P. 5)

If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media , would impede deliberations

politicization and media comments will by definition inhibit the delicate balance(See Port exemption log 24 at P. 6-7)

If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media , would impede deliberations. politicization and media comments will by definition inhibit the delicate

balance(See Port exemption log 24 at P. 8)

Similar statements appear on nearly every subsequent page of the nineteen (19) page

exemption log. (Page 16 is the sole exception)

Although an exhaustive survey of each and every specific prior restraint upon publication sought

by the Port in this case is impossible in the scope of a this memorandum, logs 29 and 34, for

example echo this mantra, again upon virtually every page of their Twenty Four (24) and Twenty

Eight (28) page lengths, respectively. (further citations omitted)

Significantly, both Port Counsel and Port Executive John Wolfe echo this obscurest

mantra that the Public Records Act may properly be employed to enjoin legitimate public

scrutiny and media publication of information concerning the operations of government, even

long after the decisions about the SSLC have been made. This is an abuse of the deliberative

process exemption and a classic example of an insidious and underhanded assault on the rights of

expression and petition for redress.

Public scrutiny of the preliminary issues, may be taken out of context anddistorted by the media, would impede deliberations. Wolfe declaration of May21, 2008.

If the lists were disclosed, public scrutiny of the issues, which would be takenout of context and distorted by the media, would impede deliberations. SeeDeclaration of John Wolfe. (Port Counsel Brief of May 21, page 16, lines 14-17)



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Under these circumstances, it is beyond dispute that the ports understanding and

intended application of Washington State law RCW 42.56 serves to legitimize and perpetuate an

insidious and underhanded system of prior restraints that freezes both media publication and

citizen exercise of 1 st Amendment liberties.

THE PORTS CONCEPTION AND APPLICATION OF RCW 42.56 AS A PRIOR RESTRAINT ON PUBLICATION OF INFORMATION CONCERNING THE CONDUCTOF GOVERNMENT IS INTOLERABLE IN A FREE SOCIETY

As will be shown below, the central intent of the application of RCW 42.56 in this case is

a prior restraint upon media publication and the accompanying public scrutiny-in the manner of a

classic prior restraint. The expressed intent of the port in this case is not merely to chill

exercise of fundamental liberties, but to freeze them in their tracks for so long that they are, for

all intensive purposes, foreclosed. This undermines public scrutiny and oversight of governmentessential to the exercise of the sovereignty of the people.

Article I, Section 1 of the Constitution of the State of Washington states in no uncertain

terms that All political power is inherent in the people, and governments derive their just

powers from the consent of the governed, and are established to protect and maintain

individual rights.

It is beyond reasonable dispute that the consent referred to by the framers of this

document was an informed consent. Similarly, the provisions of Article 4 and 5 regarding

petition, assembly, publication and speech, contain implicitly within their bounds the access to

the information necessary to the informed exercise of these rights. The public right to

information on the conduct of government is as old and venerable as the Roman Forum itself or

the Moots of the Icelandic sagas, which were also conducted in an open forum. As a natural right

the right to information must also be considered reserved to the people under the Great

Residium of Articles IX and X of our Federal Constitution, the Supreme law of the land binding

upon the States through the XIV Amendment. (See also USCA 1)

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government for a redress of grievances.



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Yet despite all of these rights reservations and prohibitions, the manner in which the Port

of Tacoma and the State of Washington understand and employ RCW 42.56 operates to deny all

of the above, in addition to the clear language of Article 1, Section 10 of the Washington State

Constitution that

Justice in all cases shall be administered openly and without unnecessary delay.

As shown above, the central intent of the ports application of RCW 42.56 in this case is

an indefinite prior restraint upon media publication and the accompanying public scrutiny. While

this may not precisely fit the exact definition of a classic prior restraint, it is a prior restraint

nonetheless, and just as offensive to the fundamental tenets of representative democracy and the

sound administration of a free society.

A FIRST AMENDMENT RIGHT TO INFORMATION CONCERNING GOVERNMENTIS RECOGNIZED BY THE WASHINGTON COURTS AS A SELF EVIDENT ANDNECESSARY PREREQUISITE TO THE RIGHT TO PUBLISH, SPEAK AND PETITIONIN AN INFORMED MANNER

There is no dispute that the 1 st Amendment protects the right to receive information

concerning the conduct of government as a central prerequisite to the exercise of all other rights.

As the 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.

As such, any order or system which, by judicial action or requirement for imprimitur,

abridges the right to receive information may properly be subject to traditional prior restraint

analysis.

"Freedoms of speech, press, and religion are entitled to a preferred constitutional position

because they are `of the very essence of a scheme of ordered liberty.' They are essential not only

to the persons or groups directly concerned but to the entire community. Our whole political and

social system depends upon them. Any interference with them is not only an abuse but an

obstacle to the correction of other abuses. Because they are essential, the guarantees of free

speech, press, and religion in the First Amendment, though not all constitutional guarantees, are

within the `liberty' which is protected by the due process clause of the Fourteenth Amendment.



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And in the recent flag salute case the Supreme Court said: `The right of a State to regulate, for

example, a public utility may well include, so far as the due process test is concerned, power to

impose all of the restrictions which a legislature may have a "rational basis" for adopting. But

freedoms of speech and of press, of assembly, and of worship may not be infringed on such

slender grounds.' Adams v. Hinkle, 51 Wn.2d 763, 322 P.2d 844 (1958

"The same philosophy governs the approach of citizens or groups of them to

administrative agencies (which are both creatures of the legislature, and arms of the executive)

and to courts, the third branch of government. Certainly, the right to petition extends to all

departments of the Government. The right of access to the courts is indeed but one aspect of the

right to petition. California Motor Transport v. Trucking Unlimited. Significantly, one of the very

abuses of King George that precipitated the formation of our nation involved public recordsthe

Declaration of Independence states...He has called together legislative bodies at places unusual,uncomfortable, and distant from the depository of their public Records, for the sole purpose of

fatiguing them into compliance with his measures.

The actions of the Port and State in this matter have the intent and effect of suppressing

media publication, politicization and public scrutiny-and therefore the concomitant rights of

expression and petition for redress-in a manner that King George would have heartily approved

of. In fact, had the British King been able to so effectively suppress information, there might

never have been a Boston Tea Party, or a gathering on Boston Green. Under such circumstances,

the Shot heard round the world might well have been the shot of which public scrutiny,

politicization and media distortion of might impede the just deliberation of his Majesties royal

privy court.

It is just as true today as it was in 1776 that information on the operation of government

is a fundamental prerequisite to democratic society. Such actions as the Port has attempted in

this case bear a damning historical stigma, and are just as unlawful and illegal as a classic type

of unlawful prior restraint.

THE DOCTRINE OF PRIOR RESTRAINT APPLIES TO ANY PREDETERMINEDJUDICIAL RESTRICION OR IMPRIMATUR RELATED PROHIBITION ONEXPRESSION, WHETHER IMPLICIT OR EXPLICIT



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The prohibition against prior restraint derives from the First Amendment and is intended

to perpetuate the very public scrutiny, politicization and media publication that the port seeks to

indefinitely restrain. The courts define a prior restraint as "a predetermined judicial prohibition

restraining specific expression." Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th

Cir. 1975). The prohibition against prior restraint derives from the First Amendment to the

United States Constitution, which provides: Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people peaceably to assemble, and to petition the

government for a redress of grievances.

Similarly, the Washington State Constitution, at Article I, section 4 provides that: The

right of petition and of the people peaceably to assemble for the common good shall never be

abridged. The First Amendment to the United States Constitution applies to the states throughthe Due Process clause of the Fourteenth Amendment, and it is because of these federal and state

constitutional provisions that prior restraints are often held invalid.

Prior restraints restricting disclosure of information have often been successfully

challenged. The issue of prior restraint has been present in many widely publicized cases. The

government unsuccessfully sought to enjoin publication of the "Pentagon Papers" in New York

Times, Co. v. United States, 403 U.S. 713 (1971). CBS successfully challenged a prior restraint

barring litigants in a group of civil suits arising out of the antiwar demonstrations at Kent State

University from discussing the cases with the news media. CBS, Inc. v. Young, 522 F.2d 234 (6 th

Cir. 1975). A temporary restraining order preventing CBS from broadcasting the government's

undercover videotape of John DeLorean was struck down in CBS, Inc. v U.S. District Court, 729

F.2d 1174 (9th Cir. 1984). Former Panama Leader Manuel Noriega unsuccessfully attempted to

restrain CNN from broadcasting recorded conversations between him and his defense counsel in

U.S. v. Noriega, 917 F.2d 1543 (11th Cir. 1990).

The actions of the Port in this case restrict dissemination of information no less than, and

in certain manners more effectively than any of the prior restraints mentioned above. In addition,

plaintiffs substantive and procedural due process rights have also been abridged by the failures

of the Courts of this State to proceed in an expeditious manner to adjudicate issues under the



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PRA. Such actions are just as unlawful and illegal-any ultimately more destructive of liberty as

any classic type of unlawful prior restraint.

A PRIOR RESTRAINT CAN TAKE MANY FORMS-AND, IN THE HANDS OF PORT

COUNSEL, RCW 42.56 IS ONE SUCH FORM

While the most obvious form of prior restraint is a judicial injunction or "gag order"

against the dissemination of particular information the media has obtained, there is no basis to

restrict its application to disclosed information, particularly in the case where the information has

already been disclosed to the court and relies for its concealment upon a judicial imprimatur.

Thus, A court injunction prohibiting Business Week magazine from publishing documents which

the court had placed under seal in a case involving Procter & Gamble's investment in derivatives

was held to be an unconstitutional prior restraint, in Procter & Gamble Co. v. Bankers Trust Co.,78 F.3d 219 (6thCir. 1996). The court stated that prohibiting the publication of a news story is

"the essence of censorship." Any burden placed on communication prior to its dissemination is

arguably prior restraint, regardless of the form that burden takes. A special use tax on paper and

ink products used in newspaper production was held to violate the First Amendment.

Minneapolis Star & Tribune Co. v. Minnesota Commr. Of Revenue, 460 U.S. 575 (1983). An

Illinois statute requiring a licensee to advertise in certain law enforcement publications was held

unconstitutional as a prior restraint. Hornstein v. Hartigan, 676 F.Supp. 894 (C.D. Ill. 1988).

Ordinances banning news racks in residential areas have been declared unconstitutional as prior

restraints. Chicago Newspaper Publishers Assn. v. City of Wheaton, 697 F.Supp. 1464 (N.D. Ill.

1988). A federal regulation requiring a government permit prior to protesting in a national park

was declared an invalid prior restraint in U.S. v. Frandsen, 212 F.3d 1231 (11th Cir. 2000). An

Illinois statute making it a crime to interfere with a hunter legally taking a wild animal (the

Illinois Hunter Interference Prohibition Act) was found to be unconstitutional as a prior restraint

in People v. Sanders, 182 Ill.2d 524 (1998). Under this broad view, the provisions of RCW 42.56,

as applied by the Port and the Pierce County Superior Court constitute a system of prior restraints upon receipt of information, and accompanying rights to expression and petition for

redress. Clearly, if government could always operate in secrecy, there would be no opportunity

for the core activities of expression and petition concerning the conduct of government. Such

indirect assaults on the First Amendment are more dangerous and insidious than an honorablePLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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frontal assault, and must yield to an as applied challenge. As applied by the Port and Judge

Fleming, the Washington State Statute RCW 42.56 unreasonably restricts publication of

identifiable and specific information under Court seal, and further abridges the citizens rights to

receive information on the conduct of their government. Any procedure or law by which the

government is enabled to keep from the public the information necessary for preservation of the

sound governance of a free society (and necessary for the exercise of the petitioners rights to

expression and petition), for which procedural safeguards such as accelerated review are

unavailable, is unconstitutional. The Washington State Constitution requires that the Federal

Constitution be the supreme law of the land. The XIV Amendment also requires the States to

observe the 1stAmendment and Due Process. The actions of the Port and the Pierce County

Court abridge the expression, petition, and substantive and procedural due process rights of

plaintiff West and the citizens of this State. Such actions are just as unlawful and illegal as anyclassic type of unlawful prior restraint, and in the end, more certain of the destruction of our

democratic institutions.

THE PROHIBITION AGAINST PRIOR RESTRAINT IS ONE OF OUR MOST SECUREFIRST AMENDMENT RIGHTS AND PROPERLY APPLIES TO ANY JUDICIALORDER OR IMPRIMATUR REQUIREMENT THAT FREEZES EXPRESSION OR PUBLICATION

The sweep of the first amendment to the Federal constitution precludes the state from

enacting any law abridging the freedom of speech or press. In Bridges v. California, 314 U. S.

252, 263, 86 L. Ed. 192, 62 S. Ct. 190, 159 A. L. R. 1346, the United States Supreme Court

declared:

"For the First Amendment does not speak equivocally. It prohibits any law `abridging the

freedom of speech, or of the press.' It must be taken as a command of the broadest scope that

explicit language, read in the context of a liberty-loving society, will allow." Consequently, there

is no presumption of constitutionality of statutes abridging those rights. Near v. Minnesota, 283

U. S. 697, 75 L. Ed. 1357, 51 S. Ct. 625.

There is thus a heavy presumption that any prior restraint on publication of information

or ideas such as that posed by the application of RCW 42.56 in this case by the port is



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constitutionally invalid. This doctrine has been firmly established for 60 years, since the U.S.

Supreme Court decided Near v. Minnesota, 283 U.S. 697 (1931). Thus of all the protections

accorded to the public and the 4 th estate under the First Amendment, the prohibition against prior

restraint is perhaps the most secure. Chief Justice Warren Burger, in delivering the opinion in

Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), reviewed prior decisions of the Court and

concluded that: The thread running through all these cases is that prior restraints on speech and

publication are the most serious and least tolerable infringement on First Amendment rights. A

prior restraint . . . has an immediate and irreversible sanction. If it can be said that a threat of

criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for

the time. Prior restraints are not per se unconstitutional, U.S. v. Frandsen, but they are such an

"extraordinary remedy" that they will only be upheld where the evil that would result...can be

shown to be both "great and certain," and cannot be militated by less intrusive measures." Procter & Gamble Co. v. Bankers Trust Co. Any prior restraint upon disclosure and petition such as

those facilitated by RCW 42.56, and those implicit in the rulings of the Honorable Judge Fleming

freezes and aborts the exercise of 1 st Amendment rights just as effectively-or more so-than any

classic restraint on mere publication. Again, the actions of the Port and County in this matter

also abridge substantive and procedural due process rights to petition for redress, and such

actions are just as unlawful and illegal as a classic type of unlawful prior restraint.

THE DEFENDANTS SEEK TO RESTRAIN PUBLICATION OF INFORMATIONABOUT GOVERNMENT BY THE MEDIA, THE AGENT OF THE PUBLIC, THAT ISNECESSARY FOR THE PRESERVATION OF THE INTEGRITY OFGOVERNMENTAL PROCESS

It is well to remember that, although classic prior restraint doctrine focuses particularly

upon the impacts upon the Fourth Estate, the media is protected by the First Amendment, not

because of any special status accorded the news media, but because in seeking out news and

reporting it, the media act as an agent of the public to preserve the integrity of governmental

process. The Supreme Court has held that "[the] First Amendment generally grants the press no

right to information superior to that of the general public." Nixon v. Warner Communications,



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Inc., 435 U. S. 589 (1978). However, Justice Thomas Clark in Sheppard v. Maxwell, 384 U.S.

333 (1966), wrote for the majority as follows:

A responsible press has always been regarded as the handmaiden of effective judicial

administration,. An impressive record of service in this regard documents its function over

several centuries. The press does not simply furnish information, but guards against the

miscarriage of justice by subjecting police, prosecutors and judicial processes to extensive public

scrutiny and criticism.

The preservation of the integrity and regularity of governmental process ensured by this

type of extensive public scrutiny and criticism of the conduct of government is exactly what the

Port and county seek to prevent by misguided application of RCW 42.56 in this matter.

OVERBROAD AND VAGUE PRIOR RESTRAINTS ARE INVALID, AND THEOVERLAP AND INTERPLAY OF PRA EXEMPTIONS, AS APPLIED, AREUNREASONABLY VAGUE AND OVERBROAD

Any restriction of fundamental liberty must be narrowly tailored to further a compelling

state interest. Yet the broad and sweeping scope of the exemptions under the PRA particularly

when applied by the port in its overlapping and interplay interpretation, inevitably leads to

vague and overbroad orders unlawfully restrictive of disclosure, expression, and publication.

Orders restricting expression or publication (ie Gag orders) have been repeatedly and

consistently struck down on grounds that they are overbroad and vague. A restraining order

prohibiting Monsanto, manufacturer of the chemical dioxin, from any media contact in

connection with a case it was defending, was found to be both overbroad and vague, and thus

unconstitutional, in Kemner v. Monsanto Co., 112 Ill.2d 223 (1986). An order restraining a

newspaper from publishing any editorial regarding a libel suit it was defending was declared

invalid in Cooper v. Rockford Newspapers, Inc., 34 Ill.App.3d 645 (2nd Dist. 1975), on the

grounds it was overbroad. Just so, the Order of Judge Hicks restraining disclosure in the case of

West, et al v. Port of Olympia, et al, was overbroad and vague and was ruled to be so on July 21,

2008 by Division I of the Court of Appeals at least as far as the deliberative process was

concerned.



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Similarly, in a further published opinion of May 13, 2008, by Division II in West v.

Thurston County, the application of the Case or controversy and Attorney Client privilege

was found to be overbroad, as applied. Yet despite almost universally overbroad application, the

restrictions on the self evident right to access information about government (See Fritz) the

Washington state PRA continues to be, as applied, an unconstitutional system of prior restraints

and imprimaturs. In both the Yousoufian and Koenig cases, these restrictions continued for over

a decade, effectively barring any use of the information in a timely manner.

In this case, the Courts decision to apply the PRA to allow records to be concealed

without prompt judicial review, and its refusal to order actual disclosure of electronic records

acts just as surely as any gag order to effect an unlawful prior restraint on Appellants rights to

have access to this information to properly be able to petition the government for redress of

grievances.

CONCLUSION- CONSTITUTIONAL RIGHTS MAY NOT BE FORECLOSED BYMERE LABELS, AND ANY RESTRICTION OF SUCH RIGHTS NECESSITATESPROCEDURAL PROTECTIONS ABSENT IN THE APPLICATION OF RCW 42.56-WHICH MUST THEREFORE BE RULED UNCONSTITUTIONAL AS APPLIED

Just as it is self evident that the right to obtain ammunition is a necessary corollary of the

2nd Amendment right to Bear Arms, so too it is self evident that the right to receive information

is a necessary corollary to the exercise of 1st Amendment the right to Freedom of Speech. SeeFritz v. Gorton, 83Wn.2d 275, 517 P.2d 911 (1974) In NAACP v. Buttons, the Federal Supreme

Court enunciated two basic principlesThe first is that a state cannot foreclose the exercise of

Constitutional rights by mere labels The second is that abstract discussion is not the only

species of communication which the Constitution protects; the First Amendment also protects

vigorous advocacy, certainly of lawful ends, against governmental intrusion. Thomas v. Collins,

323 U. S. 516, 323 U. S. 537; Herndon v. Lowry, 301 U.S. 242, 301 U. S. 259-264. Cf. Cantwell

v. Connecticut, 310 U. S. 296; Stromberg v. California, 283 U. S. 359, 283 U. S. 369; Terminello

v. Chicago, 337 U. S. 1, 337 U. S. 4.

The Supreme Court recognized that in certain contexts, litigation is not a technique of

resolving private differences; it is a means for achieving lawful objectives. It is thus a form of

political expression. Groups which find themselves unable to achieve their objectives through the



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ballot frequently turn to the courts. Just as it was true of the opponents of New Deal legislation

during the 1930's, for example, no less is it true of plaintiff West today. And under the conditions

of modern government, litigation may well be the sole practicable avenue open to some citizens

to petition for redress of grievances. (See NAACP v.Button, 371 U.S. 415 (1963)

A state is not free to abridge First Amendment rights under the mere use of a label,

whether that label comes in the guise of a Public Records Disclosure Statute or another, more

orthodox and classic version of a prior restraint. More recently in Island School District our

precedents have focused "not only on the role of the First Amendment in fostering individual

self-expression, but also on its role in affording the public access to discussion, debate, and the

dissemination of information and ideas."First National Bank of Boston v. Bellotti, 435 U. S. 765,

435 U. S. 783 (1978). And we have recognized that "the State may not, consistently with the

spirit of the First Amendment, contract the spectrum of available knowledge." Griswold v.Connecticut, 381 U. S. 479, 381 U. S. 482 (1965).

In keeping with this principle, we have held that, in a variety of contexts, "the

Constitution protects the right to receive information and ideas." Stanley v. Georgia, 394 U. S.

557, 394 U. S. 564 (1969); see Kleindienst v. Mandel, 408 U. S. 753, 408 U. S. 762-763 (1972)

(citing cases). This right is an inherent corollary of the rights of free speech and press that are

explicitly guaranteed by the Constitution, in two senses. First, the right to receive ideas follows

ineluctably from the sender's First Amendment right to send them: "The right of freedom of

speech and press . . . embraces the right to distribute literature, and necessarily protects the right

to receive it." Martin v. Struthers, 319 U. S. 141, 319 U. S. 143 (1943) (citation omitted).

"The dissemination of ideas can accomplish nothing if otherwise willing addressees are

not free to receive and consider them. It would be a barren marketplace of ideas that had only

sellers, and no buyers."Lamont v. Postmaster General, 381 U. S. 301, 381 U. S. 308 (1965)

(Brennan, J., concurring). More importantly, the right to receive ideas is a necessary predicate to

the recipient's meaningful exercise of his own rights of speech, press, and political freedom. `

Madison admonished us : "A popular Government, without popular information, or

the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.

Knowledge will forever govern ignorance, and a people who mean to be their own

Governors must arm themselves with the power which knowledge gives." 9 Writings of



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James Madison 103 (G. Hunt ed.1910). Island Trees Sch. Dist. v. Pico by Pico, 457 U.S. 853, at

(1982)

Ironically, if Plaintiff West, instead of seeking access to public records, wished to display

a swastika, wear a storm trooper uniform, and goose step through the streets inciting racial hatred

and the extermination of certain minority groups, it is clearly established that any State action

restraining these First Amendment rights would be subject to rigorous procedural safeguards,

accelerated trial court rulings, and immediate appellate review. If a State seeks to impose a

restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380

U.S. 51 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423

U.S. 1319, 1327 (1975) (Blackmun, J., in chambers). Absent such review, the State must instead

allow a stay. National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977)

Yet appellant West has no interest in displaying a swastika, or inciting racial hatred; hemerely seeks to obtain the necessary information to determine whether his government is

operating correctly so that he can write, speak, vote, and contact his elected representatives and

members of the media in a reasoned and informed manner. These are all core First Amendment

rights. They are entitled to protection no less encompassing than the lesser rights of Goose

Stepping around the City of Skokie in a Halloween costume preaching racial hatred in an attempt

to incite some form of modern day pogrom. In the context of the First Amendment, (and

especially in consideration of the more liberal provisions of the State Constitution Article 1,

Sections 4 and 5) if public records are withheld from disclosure with the express intent of

suppressing public scrutiny and publication thereof and review is not expedited, a violation has

occurred.

Any judicially sanctioned prior restraint on publication such as the port has obtained in

this case meets with a heavy presumption against its validity-particularly in the absence of

procedural safeguards requiring accelerated and final determination. The courts consider prior

restraint the most serious and least tolerable infringement on First Amendment rights. Prior

restraints will be justified in exceptional circumstances only. No such exceptional circumstances

exist here. The system of prior restraints and imprimaturs caused by the application of RCW

42.56 must be struck down as violative of the federal Constitution, the supreme law of the land.

As the Supreme Court noted in Boddie v. Conneticut



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Our cases further establish that a statute or a rule may be held constitutionally invalid as

applied when it operates to deprive an individual of a protected right although its general validity

as a measure enacted in the legitimate exercise of state power is beyond question. Thus, in cases

involving religious freedom, free speech or assembly, this Court has often held that a valid

statute was unconstitutionally applied in particular circumstances because it interfered with an

individual's exercise of those rights. (citation omitted)

No less than these rights, the right to a meaningful opportunity to be heard within the

limits of practicality, must be protected against denial by particular laws that operate to

jeopardize it for particular individuals. See Mullane v. Central Hanover Tr. Co; Covey v. Town of

Somers, 351 U. S. 141 (1956).

It is ironic that those who most ardently champion the American way of life and the

militarized perpetuation of democratic institutions abroad may sometimes fall short in their militancy when the fundamental exercise of liberty essential to the perpetuation of those same

institutions is endangered within our beloved republic itself.

Dated August 20, 2008___________________________

APPENDIX I Fritz v. Gorton 83 Wn.2d 275, 517 P.2d 911, (1974)While there are many intimate details which may be beyond the scope of legitimate public interest,information which clearly and directly bears upon the qualifications and the fitness of those whoseek and hold public office is unquestionably in the public domain.First amendment freedom of the press has been dramatically construed to encourage and protect

public discourse regarding the conduct of public officials. In New York Times Co. v. Sullivan, 376U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964), the Supreme Court of theUnited States quoted with approval the language of Sweeney v. Patterson, 128 F.2d 457 (D.C. Cir.),

cert. denied, 317 U.S. 678 (1942), in which the circuit court had approved the dismissal of acongressman's libel suit against a newspaper,"Cases which impose liability for erroneous reports of the political conduct of officials reflect theobsolete doctrine that the governed must not criticize their governors. . . . The interest of the publichere outweighs the interest of appellant or any other individual. The protection of the public requiresnot merely discussion, but information." (Italics ours.) New York Times Co. v. Sullivan, supra at272.In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 41-42, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971),PLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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the court further elucidated the fundamental nature of the public's right to know:Self-governance in the United States presupposes far more than knowledge and debate about thestrictly official activities of various levels of government. The commitment of the country to theinstitution of private property, protected by the Due Process and Just Compensation Clauses in theConstitution, places in private hands vast areas of economic and social power that vitally affect thenature and quality of life in the Nation.Our efforts to live and work together in a free society not completely dominated by governmentalregulation necessarily encompass far more than politics in a narrow sense. . . ."Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about whichinformation is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. 88, 102 (1940).. . . [L]ater decisions have disclosed the artificiality, in terms of the public's interest, of a simpledistinction between "public" and "private" individuals or institutions:"Increasing in this country, the distinctions between governmental and private sectors are blurred. . .In many situations, policy determinations which, traditionally were channeled through formal

political institutions are now originated and implemented through a complex array of boards,committees, commissions, corporations, and associations, some only loosely connected with theGovernment. This blending of positions and power has also occurred in the case of individuals 50that many who do not hold public office at the moment are nevertheless intimately involved in theresolution of important public questions. . . ". . . Our citizenry has a legitimate and substantialinterest in the conduct of such persons, and freedom of the press to engage in uninhibited debateabout their involvement in public issues and events is as crucial as it is in the case of `publicofficials.'" Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C.J., concurringin result).The crux of evaluating the capabilities and motivations of any candidate for public office or incumbent public official is information bearing upon fitness for office. We need not fear that anycandidate or official may not apprise the electorate of his capabilities. Opponents, of course, willemphasize any lack of ability. Nonetheless, other factors that may influence the electorate'sevaluative processes are not always disclosed in the heat of a campaign and less often when theofficial has taken office.

[6] We accept as self-evident the suggestion in the brief of intervenors (The League of WomenVoters) that the right to receive information is the fundamental counterpart of the right of freespeech. The broad protections accorded the speech of public officials, Bond v. Floyd, 385 U.S. 116,17 L. Ed. 2d 235, 87 S. Ct. 339 (1966), and the criticism of such speech, Garrison v. Louisiana,379 U.S. 64, 13 L. Ed. 2d125, 85 S. Ct. 209 (1964), are essential to ensure "that debate on public issues should beuninhibited, robust, and wide-open . . ." New York Times Co. v. Sullivan, supra at 270. Theconstitutional safeguards which shield and protect the communicator, perhaps more importantly alsoassure the public the right to receive information in an open society. Time, Inc. v. Hill, 385 U.S.374, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). Freedom of speech without the corollary - freedom toreceive - would seriously discount the intendment, purpose and effect of the First Amendment.33 The right to receive information, or the right of the people to know, has been repeatedly

recognized by the United States Supreme Court as a fundamental tenet of the American politicalsystem:[T]he Constitution protects the right to receive information and ideas. "This freedom [of speech and

press] . . . necessarily protects the right to receive. . . . [citations omitted] This right to receiveinformation and ideas, regardless of their social worth [citation omitted] is fundamental to our freesociety. (Italics ours.) Stanley v. Georgia, 394 U.S. 557, 564, 22 L. Ed. 2d 542, 895. Ct. 1243(1969).It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.PLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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[citations omitted] . . . It is the right of the public to receive suitable access to social, political,esthetic, moral, and other ideas and experiences which is crucial here. (Italics ours.) Red LionBroadcasting Co. v. FCC, 395 U.S. 367, 390, 23 L.Ed. 2d 371,89 S. Ct. 1794 (1969).Those guarantees are not for the benefit of the press so much as for the benefit of all of us. Time, Inc.v. Hill, 385 U.S. 374, 389, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967).The right of freedom of speech and press includes not only the right to utter or to print, but the rightto distribute, the right to receive, the right to read . . . (Italics ours.) Griswold v. Connecticut, 381U.S. 479, 482, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965).APPENDIX II, BODDIE V. CONNETICUT, 401 U.S. 371 (1971)At its core, the right to due process reflects a fundamental value in our American constitutionalsystem. Our understanding of that value is the basis upon which we have resolved this case.Perhaps no characteristic of an organized and cohesive society is more fundamental than its erectionand enforcement of a system of rules defining the various rights and duties of its members, enablingthem to govern their affairs and definitively settle their differences in an orderly, predictable manner.Without such a "legal system," social organization and cohesion are virtually impossible; with theability to seek regularized resolution of conflicts, individuals are capable of interdependent actionthat enables them to strive for achievements without the anxieties that would beset them in adisorganized society. Put more succinctly, it is this injection of the rule of law that allows society toreap the benefits of rejecting what political theorists call the "state of nature."Page 401 U. S. 375American society, of course, bottoms its systematic definition of individual rights and duties, as wellas its machinery for dispute settlement, not on custom or the will of strategically placed individuals,

but on the common law model. It is to courts, or other quasi-judicial official bodies, that weultimately look for the implementation of a regularized, orderly process of dispute settlement.Within this framework, those who wrote our original Constitution, in the Fifth Amendment, andlater those who drafted the Fourteenth Amendment, recognized the centrality of the concept of due

process in the operation of this system. Without this guarantee that one may not be deprived of hisrights, neither liberty nor property, without due process of law, the State's monopoly over techniquesfor binding conflict resolution could hardly be said to be acceptable under our scheme of things .Only by providing that the social enforcement mechanism must function strictly within these bounds

can we hope to maintain an ordered society that is also just. It is upon this premise that this Courthas, through years of adjudication, put flesh upon the due process principle.Such litigation has, however, typically involved rights of defendants -- not, as here, persons seekingaccess to the judicial process in the first instance. This is because our society has been so structuredthat resort to the courts is not usually the only available, legitimate means of resolving privatedisputes. Indeed, private structuring of individual relationships and repair of their breach is largelyencouraged in American life, subject only to the caveat that the formal judicial process, if resortedto, is paramount. Thus, this Court has seldom been asked to view access to the courts as an elementof due process. The legitimacy of the State's monopoly over techniques of final dispute settlement,even wherePage 401 U. S. 376some are denied access to its use, stands unimpaired where recognized, effective alternatives for the

adjustment of differences remain. But the successful invocation of this governmental power by plaintiffs has often created serious problems for defendants' rights. For at that point, the judicial proceeding becomes the only effective means of resolving the dispute at hand, and denial of adefendant's full access to that process raises grave problems for its legitimacy.Recognition of this theoretical framework illuminates the precise issue presented in this case. As thisCourt on more than one occasion has recognized, marriage involves interests of basic importance inour society. See, e.g., Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535(1942); Meyer v. Nebraska, 262 U. S. 390 (1923). It is not surprising, then, that the States havePLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, individualsmay freely enter into and rescind commercial contracts, for example, but we are unaware of any

jurisdiction where private citizens may covenant for or dissolve marriages without state approval.Even where all substantive requirements are concededly met, we know of no instance where twoconsenting adults may divorce and mutually liberate themselves from the constraints of legalobligations that go with marriage, and, more fundamentally, the prohibition against remarriage,without invoking the State's judicial machinery.Thus, although they assert here due process rights as would-be plaintiffs, we think appellants' plight,

because resort to the state courts is the only avenue to dissolution of their marriages, is akin to thatof defendants faced with exclusion from the only forum effectively empowered to settle their disputes. Resort to the judicial process by these plaintiffs is no more voluntary in a realistic sensethan that of the defendant called upon toPage 401 U. S. 377defend his interests in court. For both groups, this process is not only the paramount disputesettlement technique, but, in fact, the only available one. In this posture, we think that this appeal is

properly to be resolved in light of the principles enunciated in our due process decisions that delimitrights of defendants compelled to litigate their differences in the judicial forum.IIThese due process decisions, representing over a hundred years of effort by this Court to giveconcrete embodiment to this concept, provide, we think, complete vindication for appellants'contentions. In particular, precedent has firmly embedded in our due process jurisprudence twoimportant principles upon whose application we rest our decision in the case before us.APrior cases establish, first, that due process requires, at a minimum, that, absent a countervailingstate interest of overriding significance, persons forced to settle their claims of right and dutythrough the judicial process must be given a meaningful opportunity to be heard. Early in our

jurisprudence, this Court voiced the doctrine that "[w]herever one is assailed in his person or his property, there he may defend," Windsor v. McVeigh, 93 U. S. 274, 93 U. S. 277 (1876). See 68 U.S. 417, has continually recurred in the years since Baldwin, Windsor, and Hovey. [Footnote 3]Although "[m]any controversies

Page 401 U. S. 378have raged about the cryptic and abstract words of the Due Process Clause," as Mr. Justice Jacksonwrote for the Court in Mullane v. Central Hanover Tr. Co.,@ 339 U. S. 306 (1950),"there can be no doubt that, at a minimum, they require that deprivation of life, liberty or property

by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of thecase."Id. at 339 U. S. 313.Due process does not, of course, require that the defendant in every civil case actually have ahearing on the merits. A State, can, for example, enter a default judgment against a defendant who,after adequate notice, fails to make a timely appearance, see Windsor, supra, at 93 U. S. 278, or who, without justifiable excuse, violates a procedural rule requiring the production of evidencenecessary for orderly adjudication, Hammond Packing Co. v. Arkansas, 212 U. S. 322, 212 U. S.

351 (1909). What the Constitution does require is "an opportunity . . . , granted at a meaningfultime and in a meaningful manner,"Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 552 (1965)(emphasis added), "for [a] hearing appropriate to the nature of the case," Mullane v. CentralHanover Tr. Co., supra, at 339 U. S. 313. The formality and procedural requisites for the hearingcan vary, depending upon the importance of the interests involved and the nature of the subsequent

proceedings. [Footnote 4] That the hearing required by due processPage 401 U. S. 379is subject to waiver, and is not fixed in form does not affect its root requirement that an individual bePLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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given an opportunity for a hearing before he is deprived of any significant property interest,[Footnote 5] except for extraordinary situations where some valid governmental interest is at stakethat justifies postponing the hearing until after the event. [Footnote 6] In short, "within the limits of

practicability," id. at 339 U. S. 318, a State must afford to all individuals a meaningful opportunityto be heard if it is to fulfill the promise of the Due Process Clause.BOur cases further establish that a statute or a rule may be held constitutionally invalid as appliedwhen it operates to deprive an individual of a protected right although its general validity as ameasure enacted in the legitimate exercise of state power is beyond question. Thus, in casesinvolving religious freedom, free speech or assembly, this Court has often held that a valid statutewas unconstitutionally applied in particular circumstances because it interfered with an individual'sexercise of those rights. [Footnote 7]

No less than these rights, the right to a meaningful opportunity to be heard within the limits of practicality, must be protected against denial by particular lawsPage 401 U. S. 380that operate to jeopardize it for particular individuals. See Mullane v. Central Hanover Tr. Co.,supra; Covey v. Town of Somers, 351 U. S. 141 (1956).In Mullane, this Court held that the statutory provision for notice by publication in a localnewspaper, although sufficient as to beneficiaries of a trust whose interests or addresses wereunknown to the trustee, was not sufficient notice under the Due Process Clause for known

beneficiaries. Similarly, Covey held that notice by publication in a foreclosure action, even thoughsufficient to provide a normal person with an opportunity for a hearing, was not sufficient where thedefendant was a known incompetent. The Court expressly rejected an argument that"the Fourteenth Amendment does not require the State to take measures in giving notice to anincompetent beyond those deemed sufficient in the case of the ordinary taxpayer."Id. at 351 U. S. 146.Just as a generally valid notice procedure may fail to satisfy due process because of thecircumstances of the defendant, so too a cost requirement, valid on its face, may offend due process

because it operates to foreclose a particular party's opportunity to be heard. The State's obligationsunder the Fourteenth Amendment are not simply generalized ones; rather, the State owes to each

individual that process which, in light of the values of a free society, can be characterized as due.IIIDrawing upon the principles established by the cases just canvassed, we conclude that the State'srefusal to admit these appellants to its courts, the sole means in Connecticut for obtaining a divorce,must be regarded as the equivalent of denying them an opportunity to be heard upon their claimedright to a dissolution of their marriages, and, in the absence of a sufficient countervailingPage 401 U. S. 381

justification for the State's action, a denial of due process. [Footnote 8]The arguments for this kind of fee and cost requirement are that the State's interest in the preventionof frivolous litigation is substantial, its use of court fees and process costs to allocate scarceresources is rational, and its balance between the defendant's right to notice and the plaintiff's right toaccess is reasonable.

In our opinion, none of these considerations is sufficient to override the interest of these plaintiff appellants in having access to the only avenue open for dissolving their allegedly untenablemarriages. Not only is there no necessary connection between a litigant's assets and the seriousnessof his motives in bringing suit, [Footnote 9] but it is here beyond present dispute that appellants

bring these actions in good faith. Moreover, other alternatives exist to fees and cost requirements asa means for conserving the time of courts and protecting parties from frivolous litigation,Page 401 U. S. 382such as penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of PLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,WASHINGTON, 98501


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process, to mention only a few. In the same vein, we think that reliable alternatives exist to service of process by a state-paid sheriff if the State is unwilling to assume the cost of official service. This is perforce true of service by publication which is the method of notice least calculated to bring to a potential defendant's attention the pendency of judicial proceedings. See Mullane v. Central Hanover Tr. Co., supra. We think, in this case, service at defendant's last known address by mail and postednotice is equally effective as publication in a newspaper.We are thus left to evaluate the State's asserted interest in its fee and cost requirements as amechanism of resource allocation or cost recoupment. Such a justification was offered and rejectedin Griffin v. Illinois, 351 U. S. 12 (1956). In Griffin, it was the requirement of a transcript beyondthe means of the indigent that blocked access to the judicial process. While, in Griffin, the transcriptcould be waived as a convenient but not necessary predicate to court access, here the Stateinvariably imposes the costs as a measure of allocating its judicial resources. Surely, then, therationale of Griffin covers this case.IVIn concluding that the Due Process Clause of the Fourteenth Amendment requires that theseappellants be afforded an opportunity to go into court to obtain a divorce, we wish to reemphasizethat we go no further than necessary to dispose of the case before us, a case where the bona fides of

both appellants' indigency and desire for divorce are here beyond dispute. We do not decide thataccess for all individuals to the courts is a right that is, in all circumstances, guaranteed by the DueProcess Clause of the Fourteenth Amendment so that its exercise may not be placed beyond thereach of any individual,Page 401 U. S. 383for, as we have already noted, in the case before us, this right is the exclusive precondition to theadjustment of a fundamental human relationship. The requirement that these appellants resort to the

judicial process is entirely a state-created matter. Thus, we hold only that a State may not, consistentwith the obligations imposed on it by the Due Process Clause of the Fourteenth Amendment,

preempt the right to dissolve this legal relationship without affording all citizens access to the meansit has prescribed for doing so.Reversed.

PLAINTIFFS MEMO ARTHUR WEST120 STATE AVE NEON PRIOR RESTRAINTS OLYMPIA,

flem prior memo

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