Court of Appeals hears ‘legislative privilege’ arguments

Attorneys and an open-government advocate argued before the state Court of Appeals Dec. 4, 2025 in the first of two challenges to the Washington state Legislature’s claim that it has a constitutional “privilege” to withhold records from the public.

A three-judge panel for the appellate court in Tacoma heard oral arguments in the case of Arthur West v. the Washington state Legislature. The court will hear the appeal on a second, companion case in January.

At stake are competing visions for the state Legislature. One would shield lawmakers from a large degree of public scrutiny while they do their work; the other would make visible much of the Legislature’s labor under the Capitol dome.

Two legal questions were especially prominent in the speakers’ give and take with the court.

First, what was the original intent of the authors of the state Constitution in 1889 when they inserted a single sentence on “freedom of debate”? It says, “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.”

Attorney Jessica Goldman, representing the state Legislature, said the 19th century authors lifted the provision verbatim from the Wisconsin Constitution and adopted it without discussion. In subsequent years the Wisconsin Supreme Court said the sentence applied not only to spoken words but also more broadly to the legislature’s work.

Plaintiff Arthur West, representing himself, told the court that the territorial residents of 1889 had an “extreme distrust” of central authority. They and their delegates to the state’s constitutional convention never intended to give the Legislature the authority to hide its work from the public.

West said the scope of the provision is limited by the plain meaning of its language – “words spoken in debate,” not written records.

Second, should Washington state’s judiciary resolve the issue by following rulings from courts in other parts of the country?

Goldman said a “legislative privilege” to withhold records is widely recognized by other state and federal courts. She cited the Arizona Supreme Court’s interpretation of that state’s own “freedom of debate” clause, which is identical to Washington’s provision except for a missing comma.

But attorney Joan Mell, who represents Jamie Nixon and WashCOG in the companion challenge, told the court that Washington case law differs from other states, as does its Public Records Act.

A question from the bench shed light on the Legislature’s preferred mode of operation.

When asked by Judge Bradley Maxa on the purpose of “legislative privilege,” Goldman, the state’s attorney, said the “privilege” creates a space where legislators can deliberate and debate privately before making public pronouncements.

Afterwards, West said he thought the session went well, but the stakes are high.

If the Legislature prevails and wins its “privilege” in court, West said, “the legislative process will be closed to the citizens in a manner that I don’t think is compatible with real democracy.”

Mell later said she was pleased by the historical context that West introduced to the court. The delegates who wrote the state Constitution “didn’t intend secrecy,” she said. “They were terrified of secrecy and corruption, and the railroads and the power of money and the influence of legislators.”