Thurston judge will decide next month if state lawmakers have privilege to withhold records

Months after a lawsuit was filed against state lawmakers for withholding public records under the legally untested concept of legislative privilege, plaintiffs — and the public — will soon learn whether legislators are entitled to use the exemption.

Thurston County Superior Court Judge Anne E. Egeler will rule in late September whether lawmakers are entitled to the privilege. But regardless of the outcome, the issue will most likely end up in front of the Washington State Supreme Court, Joan Mell, attorney for the plaintiffs, told McClatchy in an interview.

Last week, Egeler granted a motion to stay discovery in the lawsuit at the state’s request, meaning both parties would stop the process of obtaining evidence necessary to prove their case. The state argued that discovery shouldn’t play a role in the lawsuit because the case itself simply questions whether or not legislative privilege is a constitutional matter.

“Further discovery is stayed pending resolution of the State’s forthcoming motion for summary judgment or upon further order by the Court,” Egeler wrote. “Any further discovery is to be limited to the public records requests identified in the Complaint.”

McClatchy first reported in January that state lawmakers were secretly using legislative privilege to withhold public records. A joint report from McClatchy and Crosscut in February also found that the Legislature has spent more than 15 years attempting to consolidate its power and keep secrets from citizens by invoking legislative privilege.

Lawmakers have since claimed that the exemption is rooted in the state’s constitution, although legislators only first started using the privilege in 2021.

“Members of the Washington State Legislature, like those of other states and members of Congress, enjoy a constitutionally protected privilege for their deliberations on legislative acts,” the state wrote in court documents for the lawsuit, in agreement with lawmakers.

Attorneys for the state then quoted Article II, Section 17 of the Washington Constitution that says “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate,” as an argument for the privilege.

The state also wrote that they believed it “would be unduly burdensome and expensive to require the State to further answer Petitioners’ byzantine discovery requests without first understanding the scope and limits of the legislative privilege.”

The lawsuit was filed by plaintiffs Jamie Nixon, an open government advocate, and the Washington Coalition for Open Government, a nonprofit state government watchdog group. Mell, an attorney for III Branches Law in Fircrest, represents the plaintiffs.

Mell wrote in response to the state’s motion that the stay denies “petitioners’ constitutional right to discovery in this matter of first impression that will likely be finally decided by the Washington State Supreme Court.”

“With its pure legal question approach, the Legislature seeks to have this Court create judicially a (Public Records Act) exemption, which petitioners oppose on several grounds to include separation of powers,” Mell continued. “The Legislature is the proper party to create such an exemption, but has so far elected not to do so, which are facts this Court should know from speaking agent and leadership deposition testimony requested by petitioners.”

“There’s nothing constitutional about self-serving interests,” Mell told McClatchy. “There’s no component of lawmaking that needs to be secret.”

She noted too that the concept of legislative privilege has profound implications.

“There’s no telling how far it will go,” Mell said.

Jessica Goldman, an attorney for the state, told McClatchy in an email that they “look forward to resolving the important legal issues here.”

At least one other lawsuit has been filed against the state Legislature for withholding records. The petitioner in that case is Arthur West, also an open government advocate. West most recently filed an additional lawsuit against lawmakers for “silently withholding” public records.