Flem Prior Memo

Assigned to department 7

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR PIERCE COUNTY ) ) plaintiff ) No. 08-2-04312-1 ) vs. ) PLAINTIFF’S NOTICE ) AND MEMORANDUM ) ON THE DOCTRINE OF PORT OF TACOMA, ) UNCONSTITUTIONAL defendant ) PRIOR RESTRAINT ) ___________________________________ )________________________________________ ARTHUR WEST,

Comes now the plaintiff, Arthur West, and provides notice to the Washington State Attorney General, the Pierce County Superior Court and the defendant, the Port of Tacoma, that the application of Washington State Law RCW 42.56 in this case constitutes an overbroad, unconstitutional, and procedurally protracted prior restraint upon publication by the media of information concerning the operation of government, as well as the rights of the citizenry to informed petition and expression. No one would reasonably dispute that access to a supply of ammunition is a necessary prerequisite for the exercise of the 2nd Amendment right to bear arms, and it is equally unreasonable to maintain that the exercise of 1st Amendment rights of publication, expression, and petition do not similarly require reasonable access to the information that the Washington State Statute, RCW 42.56, refers to as “a fundamental prerequisite to the sound governance of a free society”. As such, the present application of RCW 42.56 to the records in this case barring meaningful and timely access to records concerning the conduct of government, for the express

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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 plaintiff’s 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 PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS 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. PORT’S “PRIVILEGE” LOG EXEMPTIONS AND THE APPLICATION OF RCW 42.56 IN THIS CASE HAVE EFFECTED AN UNCONSTITUTIONAL AND OVERBROAD PRIOR 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 port’s claims of “privilege” seek to restrain publication and undermine the people’s 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 port’s 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 port’s “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 taken out of context and distorted by the media, would impede deliberations” (See Port exemption log 23, P.1) If the draft statement were disclosed, public scrutiny of the issues could be taken 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 taken out 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 taken out 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)

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“If the lists were disclosed, public scrutiny of the issues, which would be taken out 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 taken out 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 taken out 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 and distorted by the media, would impede deliberations. Wolfe declaration of May 21, 2008. If the lists were disclosed, public scrutiny of the issues, which would be taken out of context and distorted by the media, would impede deliberations. See Declaration of John Wolfe. (Port Counsel Brief of May 21, page 16, lines 14-17) PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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Under these circumstances, it is beyond dispute that the port’s 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 1st Amendment liberties. THE PORT’S CONCEPTION AND APPLICATION OF RCW 42.56 AS A PRIOR RESTRAINT ON PUBLICATION OF INFORMATION CONCERNING THE CONDUCT OF 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 government essential 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. PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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 port’s 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 GOVERNMENT IS RECOGNIZED BY THE WASHINGTON COURTS AS A SELF EVIDENT AND NECESSARY PREREQUISITE TO THE RIGHT TO PUBLISH, SPEAK AND PETITION IN AN INFORMED MANNER There is no dispute 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 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. PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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 records…the 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 PREDETERMINED JUDICIAL RESTRICION OR IMPRIMATUR RELATED PROHIBITION ON EXPRESSION, 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 through the 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, plaintiff’s 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 honorable PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS 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 petitioner’s 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 any “classic” 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 SECURE FIRST AMENDMENT RIGHTS AND PROPERLY APPLIES TO ANY JUDICIAL ORDER 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 PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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 4th 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 1st 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 INFORMATION ABOUT GOVERNMENT BY THE MEDIA, THE AGENT OF THE PUBLIC, THAT IS NECESSARY FOR THE PRESERVATION OF THE INTEGRITY OF GOVERNMENTAL 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 THE OVERLAP AND INTERPLAY OF PRA EXEMPTIONS, AS APPLIED, ARE UNREASONABLY 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 Court’s 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 BY MERE LABELS, AND ANY RESTRICTION OF SUCH RIGHTS NECESSITATES PROCEDURAL PROTECTIONS ABSENT IN THE APPLICATION OF RCW 42.56WHICH 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. See Fritz v. Gorton, 83Wn.2d 275, 517 P.2d 911 (1974) In NAACP v. Buttons, the Federal Supreme Court enunciated two basic principles…The 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 PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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 PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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; he merely 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… PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

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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 who seek 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, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964), the Supreme Court of the United 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 a congressman's libel suit against a newspaper, "Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information." (Italics ours.) New York Times Co. v. Sullivan, supra at 272. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 41-42, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971), PLAINTIFF’S MEMO ARTHUR WEST 120 STATE AVE NE ON PRIOR RESTRAINTS OLYMPIA, WASHINGTON, 98501

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 the strictly official activities of various levels of government. The commitment of the country to the institution of private property, protected by the Due Process and Just Compensation Clauses in the Constitution, places in private hands vast areas of economic and social power that vitally affect the nature and quality of life in the Nation. Our efforts to live and work together in a free society not completely dominated by governmental regulation 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 which information 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 simple distinction 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 the Government. This blending of positions and power has also occurred in the case of individuals 50 that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions. . . ". . . Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of `public officials.'" Curtis Publishing Co. v. Butts, 388 U.S. 130, 163-164 (1967) (Warren, C.J., concurring in 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 any candidate or official may not apprise the electorate of his capabilities. Opponents, of course, will emphasize any lack of ability. Nonetheless, other factors that may influence the electorate's evaluative processes are not always disclosed in the heat of a campaign and less often when the official has taken office. [6] 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. 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. 2d 125, 85 S. Ct. 209 (1964), are essential to ensure "that debate on public issues should be uninhibited, robust, and wide-open . . ." New York Times Co. v. Sullivan, supra at 270. The constitutional safeguards which shield and protect the communicator, perhaps more importantly also assure 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 to receive - would seriously discount the intendment, purpose and effect of the First Amendment.«3» «3» 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 political system: [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 receive information and ideas, regardless of their social worth [citation omitted] is fundamental to our free society. (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. PLAINTIFF’S MEMO ARTHUR WEST 120 STATE AVE NE ON PRIOR RESTRAINTS OLYMPIA, WASHINGTON, 98501

[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 Lion Broadcasting 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 right to distribute, the right to receive, the right to read . . . (Italics ours.) Griswold v. Connecticut, 381 U.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 constitutional system. 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 erection and enforcement of a system of rules defining the various rights and duties of its members, enabling them 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 the ability to seek regularized resolution of conflicts, individuals are capable of interdependent action that enables them to strive for achievements without the anxieties that would beset them in a disorganized society. Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the "state of nature." Page 401 U. S. 375 American society, of course, bottoms its systematic definition of individual rights and duties, as well as 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 we ultimately 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, and later 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 his rights, neither liberty nor property, without due process of law, the State's monopoly over techniques for 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 Court has, through years of adjudication, put flesh upon the due process principle. Such litigation has, however, typically involved rights of defendants -- not, as here, persons seeking access to the judicial process in the first instance. This is because our society has been so structured that resort to the courts is not usually the only available, legitimate means of resolving private disputes. Indeed, private structuring of individual relationships and repair of their breach is largely encouraged in American life, subject only to the caveat that the formal judicial process, if resorted to, is paramount. Thus, this Court has seldom been asked to view access to the courts as an element of due process. The legitimacy of the State's monopoly over techniques of final dispute settlement, even where Page 401 U. S. 376 some 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 a defendant'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 this Court on more than one occasion has recognized, marriage involves interests of basic importance in our 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 have PLAINTIFF’S MEMO ARTHUR WEST 120 STATE AVE NE ON PRIOR RESTRAINTS OLYMPIA, WASHINGTON, 98501

seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, individuals may 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 two consenting adults may divorce and mutually liberate themselves from the constraints of legal obligations 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 that of 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 sense than that of the defendant called upon to Page 401 U. S. 377 defend his interests in court. For both groups, this process is not only the paramount dispute settlement 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 delimit rights of defendants compelled to litigate their differences in the judicial forum. II These due process decisions, representing over a hundred years of effort by this Court to give concrete embodiment to this concept, provide, we think, complete vindication for appellants' contentions. In particular, precedent has firmly embedded in our due process jurisprudence two important principles upon whose application we rest our decision in the case before us. A Prior cases establish, first, that due process requires, at a minimum, that, absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through 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. 378 have raged about the cryptic and abstract words of the Due Process Clause," as Mr. Justice Jackson wrote 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 the case." Id. at 339 U. S. 313. Due process does not, of course, require that the defendant in every civil case actually have a hearing 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 evidence necessary 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 meaningful time 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. Central Hanover Tr. Co., supra, at 339 U. S. 313. The formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. [Footnote 4] That the hearing required by due process Page 401 U. S. 379 is subject to waiver, and is not fixed in form does not affect its root requirement that an individual be PLAINTIFF’S MEMO ARTHUR WEST 120 STATE AVE NE ON PRIOR RESTRAINTS OLYMPIA, WASHINGTON, 98501

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 stake that 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 opportunity to be heard if it is to fulfill the promise of the Due Process Clause. B 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. [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 laws Page 401 U. S. 380 that 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 local newspaper, although sufficient as to beneficiaries of a trust whose interests or addresses were unknown 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 though sufficient to provide a normal person with an opportunity for a hearing, was not sufficient where the defendant 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 an incompetent 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 the circumstances 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 obligations under 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. III Drawing upon the principles established by the cases just canvassed, we conclude that the State's refusal 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 claimed right to a dissolution of their marriages, and, in the absence of a sufficient countervailing Page 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 prevention of frivolous litigation is substantial, its use of court fees and process costs to allocate scarce resources is rational, and its balance between the defendant's right to notice and the plaintiff's right to access 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 untenable marriages. Not only is there no necessary connection between a litigant's assets and the seriousness of 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 as a means for conserving the time of courts and protecting parties from frivolous litigation, Page 401 U. S. 382 such as penalties for false pleadings or affidavits, and actions for malicious prosecution or abuse of PLAINTIFF’S MEMO ARTHUR WEST 120 STATE AVE NE ON PRIOR RESTRAINTS OLYMPIA, WASHINGTON, 98501

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 posted notice 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 a mechanism of resource allocation or cost recoupment. Such a justification was offered and rejected in Griffin v. Illinois, 351 U. S. 12 (1956). In Griffin, it was the requirement of a transcript beyond the means of the indigent that blocked access to the judicial process. While, in Griffin, the transcript could be waived as a convenient but not necessary predicate to court access, here the State invariably imposes the costs as a measure of allocating its judicial resources. Surely, then, the rationale of Griffin covers this case. IV In concluding that the Due Process Clause of the Fourteenth Amendment requires that these appellants be afforded an opportunity to go into court to obtain a divorce, we wish to reemphasize that 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 that access for all individuals to the courts is a right that is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth Amendment so that its exercise may not be placed beyond the reach of any individual, Page 401 U. S. 383 for, as we have already noted, in the case before us, this right is the exclusive precondition to the adjustment 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, consistent with 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 means it has prescribed for doing so. Reversed.

PLAINTIFF’S MEMO 120 STATE AVE NE ON PRIOR RESTRAINTS WASHINGTON, 98501

ARTHUR WEST OLYMPIA,