WashCOG responds to Court of Appeals ruling on ‘legislative privilege’
The new definition of “legislative privilege” could block Washington’s sunshine laws.
March 11, 2026 — In a disappointing decision, the Washington state Court of Appeals in Tacoma ruled Tuesday that the state Legislature has a “privilege” to withhold internal legislative records from public disclosure.
The ruling came in the case of Jamie Nixon and the Washington Coalition for Open Government v. State of Washington. It is one of two cases that challenged the Legislature’s claim that it has a constitutional “privilege” to withhold records from the public.
All three appellate judges in the most recent ruling agreed that the separation of powers doctrine gives state lawmakers a “legislative privilege” that exempts their internal deliberations from the state Public Records Act.
WashCOG President Mike Fancher said that from a transparency perspective, the decision is unworkable. He said the coalition will work with legislators and the public to ensure that the people’s right to know is protected.
“We believe the people are with us on this,” he said.
Writing for the majority, Judge Bradley Maxa said, “The legislative privilege is necessary to protect the integrity of the legislature’s decision making process and to maintain the boundaries between the different branches of government.”
Maxa defined the scope of the privilege by referring to the trial court. The lower court said the separation of powers “provides a privilege against the disclosure of records revealing internal legislative deliberations concerning bills contemplated or introduced in either house of the Legislature.”
Maxa added that lawmakers could apply the privilege to their aides when they act on their legislators’ behalf. Individual legislators can waive the privilege for themselves but not others.
WashCOG and Nixon had argued that legislators may not keep all internal deliberations secret, just those that are required to be kept secret for the public welfare. The doors of the Legislature must otherwise remain open.
Fancher said, “Rather than require the Legislature to clarify limitations in statute, the court said all internal legislative deliberations are secret. The public has no right to question lawmakers in any meaningful way because no one can now look behind the scenes. The public has been relegated to audience-only seating to view contrived performances.”
WashCOG will work with Nixon, its co-plaintiff, to consider its options going forward, including possibly seeking review by the state Supreme Court.
Late last month, another panel of judges at the appellate court in Tacoma issued a similar ruling in a separate case that challenged lawmakers’ claim of a “legislative privilege.”
In the case of Arthur West v. the Washington state Legislature, issued Feb. 24 in the same Division 2 appellate court, the majority found a “privilege” in the separation of powers doctrine as well as a provision in the state Constitution that shields lawmakers from lawsuits and prosecution “for words spoken in debate.”
For more background and a review of WashCOG’s activities on this issue, go to Legislative Privilege.
