Judge said legislative privilege is implied by the state constitution and allows lawmakers to engage in “candid deliberations,” including internal records, without disclosure

Randy Bracht
The Center Square Washington

Washington state lawmakers are entitled to “legislative privilege” to shield their records from public disclosure, a judge has ruled.

Thurston County Superior Court Judge Anne Egeler issued her decision after hearing arguments Friday afternoon in the civil lawsuit, Jamie Nixon and the Washington Coalition for Open Government v. the State of Washington.

Egeler said legislative privilege is implied by the state constitution and allows lawmakers to engage in “candid deliberations,” including internal records, without disclosure.

The summary judgment ruling was a setback for the coalition, a nonpartisan, nonprofit organization formed in 2002 to advocate for broad-based open public records and meetings.

An appeal is planned, said WashCOG Secretary George Erb of Bellevue.

“Although we respect the judge’s order, we are disappointed in the outcome and frankly worried about a new era of secrecy in the state Legislature, and what that means for the public,” Erb said Monday in an emailed reply to The Center Square.

The coalition and Nixon sued the state in April, challenging lawmakers’ new and unannounced use of “legislative privilege” to withhold what the plaintiffs called “a surprising array of documents from the public and the press.”

The coalition contends that neither state statutes, case law, or Washington’s constitution provide a “privilege” of secrecy to legislators or staff as they conduct their business on behalf of the public.

During Friday’s hearing, coalition attorney Joan Mell made that argument, saying any records that could lead to legislative bills should be open to scrutiny. Examples might include emails, journals, documents, deliberations, and records of meetings with constituents, organizations, and lobbyists.

Questioned by Egeler, Mell conceded there could be some privilege but it has not defined by the lawmakers themselves. “There’s no language here,” Mell told the court.

But attorney Jeffrey Even, a former deputy solicitor general representing the state, insisted that the state constitution does provide for “non-public deliberations (and) disclosures.” He cited Article II Section 17, the constitution’s “Freedom of debate” clause, which says, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

The constitutional provision applies to each individual lawmaker, beyond the legislative body as a whole, and overrides Washington state’s Public Records Act, said Even.

The provision also puts the legislature “on par” with the state’s executive and judicial branches on shielding internal deliberations from outside disclosure, said Even and attorney Jessica Goldman, who was representing the Washington legislature.

Ultimately, Egeler sided with their interpretation. The judge noted that the states of Arizona, Maryland and Wisconsin have similar or identical language in their constitutions which have been upheld by the courts, along with a federal speech-and-debate clause that also applies to documents.  

Mell took exception to Egeler’s ruling, saying Washington’s constitutional provision should be narrowly defined to protect a lawmaker from criminal or civil liability for comments made while in session, not for broad withholding of records she deemed public.

Through its Public Records Act, Washington state “has been at the forefront of saying, ‘We’re transparent,’” said Mell, later adding, “Disclosure is essential.”

How legislative privilege is defined remains uncertain. Friday’s hearing pertained to part of the Nixon/WashCOG lawsuit, but Egeler indicated that privilege does not apply to every document or lawmakers’ political activities. The judge is expected to make another ruling as part of a “second stage” to the case.

In a separate case filed by open government advocate Arthur West, Thurston County Superior Court Judge Mary Sue Wilson in October also affirmed legislative privilege for lawmakers to withhold “internal … deliberations concerning bills contemplated or introduced in either house of the Legislature.”

But WashCOG says the two rulings contradict a 2019 Washington State Supreme Court opinion which held that state legislators are subject to the Public Records Act, adopted by referendum in 1972.

“Our assumption going into this legal battle was that our case would be combined with Arthur West’s case by an appellate court. Eventually, we expect a party – quite possibly us – will ask the state Supreme Court to review a combined case,” said Erb.

He noted that state lawmakers passed an expedited bill in 2018 which exempted them from the Public Records Act, but it was vetoed by Gov. Jay Inslee after a public outcry.

“We are especially alarmed by greater secrecy in the Statehouse that increases the likelihood of hidden corruption,” said Erb. “A more secret Legislature will leave Washington residents less informed about what their lawmakers are doing, and why.  That will make it harder for voters to hold their elected representatives accountable.”

This report was first published by The Center Square Washington.