Filed Washington State Court of Appeals Division Two
February 24, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II ARTHUR WEST, No. 60104-4-II
Appellant,
v.
THE WASHINGTON STATE PUBLISHED OPINION LEGISLATURE, THE WASHINGTON STATE HOUSE OF REPRESENTATIVES, THE OFFICE OF THE CLERK BERNARD DEAN, THE OFFICES OF REP LAURIE JINKINS, LARRY SPRINGER, AMY WALEN, MY-LINH THAI, CINDY RYU, NOEL FRAME, DAVINA DUER, KIRSTEN HARRIS-TALLEY, BILL RAMOS, MONICA STONIER, LILLIAN ORTIS-SELF, MELANIE MORGAN, SHARON SANTOS, MIA GEGERSON, STEVE KIRBY, as agencies subject to the public records act, STATE OF WASHINGTON,
Respondents.
CRUSER, C.J.—Arthur West appeals the trial court’s orders granting the legislature’s
motions for partial summary judgment. West contends that the legislature was not entitled to
judgment as a matter of law because neither article II, section 17 of the Washington Constitution
nor the constitutional separation of powers doctrine provides legislators with a privilege from
disclosure of internal legislative deliberations that extends to the Public Records Act, ch. 42.56
RCW. No. 60104-4-II
We conclude that both article II, section 17 of the Washington Constitution and the
constitutional separation of powers provide legislators with a privilege from disclosure of
legislative deliberations under the Public Records Act. Accordingly, we affirm.
FACTS
In January 2023, Arthur West submitted a public record request to the legislature asking
for “Unredacted copies of all records withheld under a claim of legislative privilege” between
January 1, 2022, and January 6, 2023. Clerk’s Papers (CP) 3. The legislature timely responded to
the request. Some legislators responded by producing redacted documents based on legislative
privilege, other legislators chose to waive the privilege. West sued the legislature and individual
legislators’ offices arguing that they violated the Public Records Act (PRA) by asserting legislative
privilege.
The trial court bifurcated the issues into two stages. The first stage concerned whether the
Washington Constitution provides “a privilege against the disclosure of any records revealing
internal legislative deliberations concerning bills contemplated or introduced in either house of the
Legislature.” Id. at 433. The second stage concerned whether the legislature’s redactions were
within the scope of the privilege, and, if not, what penalties apply. The parties filed cross motions
for summary judgment on the first issue. The legislature argued that article II, section 17 of the
Washington Constitution and the constitutional doctrine of separation of powers protect against
the compelled disclosure of legislative deliberations. West asserted that no such privilege exists
under Washington law.
The trial court granted the legislature’s motion for partial summary judgment. The trial
court found that both article II, section 17 of the Washington Constitution and the constitutional
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doctrine of separation of powers independently provide “a privilege against the disclosure of any
records revealing internal legislative deliberations concerning bills contemplated or introduced in
either house of the Legislature.” Id. at 188. The trial court further found that “[t]o the extent that
records are protected by legislative privilege they are exempt from disclosure pursuant to the
Public Records Act by RCW 42.56.070.” Id. West filed a motion for reconsideration, which the
trial court denied.
The legislature filed a second motion for summary judgment arguing that the legislature
properly applied the legislative privilege by redacting the documents at issue. The trial court
granted partial summary judgment to the legislature, finding that the records were properly
redacted for legislative privilege except two sets of records not at issue in this appeal. The trial
court entered a final judgment on the matter, awarding West $300 in costs based on the records
not at issue here. West appeals both orders granting summary judgment, the order denying West’s
motion for reconsideration, the order denying penalties, and the final judgment.
ANALYSIS
West argues that the trial court erred in denying his motion for summary judgment and
instead granting the legislature’s motion for summary judgment because neither article II, section
17 of the Washington Constitution, nor the constitutional doctrine of separation of powers,
provides a privilege from disclosure of internal legislative deliberations. We disagree.
I. STANDARD OF REVIEW AND LEGAL PRINCIPLES
We review a trial court’s grant of summary judgment de novo. Freedom Found. v.
Gregoire, 178 Wn.2d 686, 694, 310 P.3d 1252 (2013). Where there is no genuine issue of material
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fact and the moving party is entitled to judgment as a matter of law, summary judgment is
appropriate. Id. West does not contend that a genuine issue of material fact exists here.
We review constitutional issues de novo. Hanson v. Carmona, 1 Wn.3d 362, 369, 525 P.3d
940 (2023). “The construction and interpretation of . . . provisions of the constitution is a judicial
function.” State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969). We must
give the words in the constitution their common and ordinary meaning. Id. We are tasked with
interpreting constitutional language that is ambiguous, but interpretation is unnecessary where
constitutional language is unambiguous. Id. “In determining the meaning of a constitutional
provision, the intent of the framers, and the history of events and proceedings contemporaneous
with its adoption may properly be considered.” Yelle v. Bishop, 55 Wn.2d 286, 291, 347 P.2d 1081
(1959). Moreover, when interpreting our state constitution, we have held that federal case law
interpreting federal constitutional provisions is persuasive, though not binding, precedent. City of
Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 353, 96 P.3d 979 (2004). And we may consider
the reasoning of other state courts in interpreting identical or nearly identical provisions of their
own constitutions as persuasive authority. See State v. Coe, 101 Wn.2d 364, 378, 679 P.2d 353
(1984).
Article II, section 17 of the Washington Constitution provides that “No member of the
legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken
in debate.” Similarly, article I, section 6 of the United States Constitution provides that Senators
and Representatives “shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective Houses, and in
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going to and returning from the same; and for any Speech or Debate in either House, they shall not
be questioned in any other Place.”
The PRA was passed by citizen’s initiative in 1972 to ensure governmental transparency
in Washington State. Freedom Found., 178 Wn.2d at 694. The PRA directs agencies, including
the legislature, to allow public access to “all public records, unless the record falls within the
specific exemptions of subsection (8) of this section, this chapter, or other statute which exempts
or prohibits disclosure of specific information or records.” RCW 42.56.070(1); Associated Press
v. Wash. State Legis., 194 Wn.2d 915, 921, 454 P.3d 93 (2019). The court liberally construes the
PRA’s provisions and narrowly construes its exemptions to preserve the PRA’s broad mandate for
disclosure. Freedom Found., 178 Wn.2d at 695. Our supreme court has recognized that the PRA
must give way to constitutional mandates. Id.; see Wash. Pub. Emps. Ass’n v. Wash. State Ctr. for
Childhood Deafness & Hearing Loss, 194 Wn.2d 484, 506, 450 P.3d 601 (2019) (Holding
constitutional privacy right incorporated into PRA via “other statutes” exception to disclosure
requirement).
II. ARTICLE II, SECTION 17
Article II, section 17 of the Washington Constitution contains a speech or debate clause. It
states, “No member of the legislature shall be liable in any civil action or criminal prosecution
whatever, for words spoken in debate.” Id. West contends that the speech or debate clause does
not provide a privilege against the disclosure of records revealing internal legislative deliberations
because the records do not fall within the definition of speech or debate. We disagree.
West begins by focusing on the textual differences between the Washington constitution’s
speech or debate clause and the federal constitution’s speech or debate clause. West notes that
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whereas the federal constitution states that senators and representatives are protected from
questioning about their speech or debate while they are “in any other place,” the Washington
constitution contains no such language. Br. of Appellant at 22. But here, the issue is whether the
word “debate” encompasses more than words spoken on the floor of the house or senate. The term
“debate” is identical in both constitutions. Moreover, “Despite considerable textual variation”
between the federal and state constitutional provisions, “the nature of the privilege is relatively
consistent.” J. Pierce Lamberson, Drawing the Line on Legislative Privilege: Interpreting State
Speech or Debate Clauses in Redistricting Litigation, 95 Wash. U. L. Rev. 203, 208-09 (2017).
West further contends that the phrase “words spoken in debate” refers only to words
publicly spoken on the floor of the house or senate, and therefore limits the legislative immunity
contemplated by article II, section 17 to liability, not non-disclosure. Br. of Appellant at 34. We
conclude that the plain language of the Washington Constitution is ambiguous with regard to what
conduct falls within the meaning of “words spoken in debate” and whether article II, section 17’s
immunity from liability creates a legislative privilege from disclosure under the PRA of records
divulging internal legislative deliberations. Accordingly, we look to the intent of the framers, and
the history of the events and proceedings contemporaneous with the clauses’ adoption for
guidance. Yelle, 55 Wn.2d at 291.
West argues that an interpretation of article II, section 17 that recognizes not only immunity
from liability but a privilege from disclosure that extends to requests under the PRA is contrary to
the framer’s intent because, according to West, the framers drafted the constitution at a time of
heightened populist sentiment and distrust of the legislature. The legislature responds that the
history and text of article II, section 17 indicate that the framers intended to create a legislative
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privilege from disclosure so that the legislature could more effectively effectuate the will of the
people. We agree with the legislature.
A legislative privilege from liability for speech and debate emerged in Parliament in the
sixteenth century to preserve legislative independence from the crown. Steven F. Huefner, The
Neglected Value of the Legislative Privilege in State Legislatures, 45 Wm. & Mary L. Rev. 221,
230-31 (2003). The inclusion of a legislative privilege in the 1689 English Bill of Rights reflected
“ ‘the conflict between two ancient and undoubted rights, on the one hand prerogative of the king
. . . , and on the other the privileges of the people exercised through their representatives.’ ” Id. at
230 (internal quotation marks omitted) (quoting Mary Patterson Clarke, Parliamentary Privilege
in the American Colonies 10 (1943). The speech or debate clause of the federal constitution and
corresponding provisions of many state constitutions trace their lineage back to these
parliamentary origins. Id. at 231-32. In this way, legislative privilege reflects, rather than
contradicts, the populist sentiments of the framers, serving as “ ‘one of the chief means of
upholding and preserving the liberty of the subject.’ ” Id. at 230 (quoting Clarke, supra, at 10).
Prior to Washington’s adoption of article II, section 17, other states and the United States
Supreme Court interpreted their speech or debate clauses to encompass conduct other than pure
speech or debate. As early as 1808, the Supreme Court of Massachusetts interpreted a state
constitutional provision that stated, “[t]he freedom of deliberation, speech, and debate in either
house of the legislature, is so essential to the rights of the people, that it cannot be the foundation
of any accusation or prosecution, action or complaint, in any other court or place whatsoever.”
Coffin v. Coffin, 4 Mass. 1, 26 (1808) (quoting MASS. CONST. Pt. 1, art. XXI). In holding that this
provision protected a representative in an action for slander where the representative made an
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offensive remark on the floor of the house of representatives that related to a matter before the
legislature but did not make the remark while addressing the chair, the Chief Justice reasoned:
These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office; and I would define the article as securing to every member exemption from prosecution, for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases in which he is entitled to this privilege, when not within the walls of the representatives’ chamber.
Id. at 27.
In 1880, with reference to the expansive, and in its view “authoritative,” construction of
“speech and debate” articulated in Coffin, the United States Supreme Court held that the term as
used in article I, section 6 of the federal constitution encompasses certain written communications
by legislators. Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L. Ed. 377 (1880). The Court
concluded
The reason of the rule is as forcible in its application to written reports presented in that body by its committees, to resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the business before it. Id.
Against this backdrop, Washington’s article II, section 17 was adopted from the Wisconsin
Constitution “without controversy.” Robert F. Utter & Hugh D. Spitzer, THE WASHINGTON
CONSTITUTION: A REFERENCE GUIDE 72 (2d ed. 2013). It is therefore reasonable to infer that the
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framers intended to adopt the prevailing view of the term “debate.” While no Washington court
has yet interpreted this language, Wisconsin and other courts interpreting language identical to
article II, section 17 have concluded that the legislative privilege extends beyond pure speech or
debate in the legislature to matters that are an “integral part of the deliberative and communicative
processes by which Members participate in committee and House proceedings with respect to the
consideration and passage or rejection of proposed legislation” or other matters within the
jurisdiction of the legislature. Gravel v. United States, 408 U.S. 606, 625, 92 S. Ct. 2614, 33 L.
Ed. 2d 583 (1972); Fann v. Kemp in and for Cnty. of Maricopa, 253 Ariz. 537, 542-43, 515 P.3d
1275 (2022); Ariz. Indep. Redistricting Com’n v. Fields, 206 Ariz. 130, 137, 75 P.3d 1088 (2003);
State v. Beno, 116 Wis. 2d 122, 142-43, 341 N.W.2d 668 (1984). Indeed, jurisdictions take an
expansive view of “speech or debate” regardless of the language used. E.g., Coffin, 4 Mass. 27;
Kilbourn, 103 U.S. at 204; Kraus v. Ky. State Senate, 872 S.W.2d 433, 440 (1993) (speech or
debate clause extends to voting on executive appointments); Romer v. Colo. Gen. Assembly, 810
P.2d 215, 225 (1991) (speech or debate clause applies when assembly “is engaged in legitimate
legislative activity); Holmes v. Farmer, 475 A.2d 976, 983 (1984) (“the speech in debate clause
limits judicial inquiry into words or actions that are clearly a part of the legislative process.”);
Cotton v. Banks, 310 Mich. App. 104, 117, 872 N.W.2d 1 (2015) (protection extends beyond pure
speech and debate when necessary to prevent impairment of deliberations); League of Women
Voters of Pa. v. Commonwealth, 177 A.3d 1000, 1003 (2017) (clauses protections “extend to ‘fact-
finding, information gathering, and investigative activities,’ which ‘are essential prerequisites to
the drafting of bills and the enlightened debate over proposed legislation.’ ” (quoting Gov’t of the
V.I. v. Lee, 775 F.2d 514, 521 (3d Cir. 1985)).
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And jurisdictions interpreting language identical to article II, section 17 have concluded
this language not only protects legislators from liability, but also “functions as a testimonial and
evidentiary privilege.” Ariz. Indep. Redistricting Com’n, 206 Ariz. at 137; see Beno, 116 Wis. 2d
at 142. These courts reasoned that the rights of the people are best supported when legislators can
execute the functions of their office without fear of prosecution and the burden of defending
themselves. Ariz. Indep. Redistricting Com’n, 206 Ariz. at 137. We find this reasoning compelling
and conclude that article II, section 17 of the Washington Constitution not only provides legislators
with immunity from liability for “words spoken in debate,” but also functions as a testimonial and
evidentiary privilege for internal communications or records that extends to matters integral to the
legislative process.1
Moreover, we conclude that because these objectives are implicated when a legislator is
compelled to produce documents, article II, section 17 provides an exemption from disclosure
under the PRA. Compelled production of documents, whether to a requestor under the PRA, or to
a litigant in a lawsuit, or to a court, might “chill the ardor of a member to speak and act freely in
the performance of legislative functions.” Beno, 116 Wis. 2d at 142. Therefore article II, section
17 must protect legislators from compelled disclosure of legislative deliberations so that they may
exercise their duties independent of the influence of the other branches of government as the
framers intended. The fact that these objectives may at times conflict with the purposes of the PRA
1 We recognize that courts in at least one state have addressed whether the legislative privilege extends to communications with and records involving contractors or consultants who are hired to assist a legislator or legislative entity to perform their core functions. See Fann, 253 Ariz. at 543. This issue is not before us in this case, nor is there any claim here that communications and records that are not internal are protected by the legislative privilege.
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does not affect our analysis. “[T]he PRA must give way to constitutional mandates.” Freedom
Found. 178 Wn.2d at 695.
West argues that 9th circuit precedent, U.S. v. Renzi, 651 F.3d 1012 (9th Cir. 2011),
recognizes that legislative privilege is only a “use privilege,” not a non-disclosure privilege. Br. of
Appellant at 51. However, Renzi did not concern the existence of a legislative privilege, but was
instead concerned with whether the legislative privilege applied to the particular conduct and
communications at issue. Renzi, 651 F.3d at 1020. Renzi merely acknowledges that solicitation of
a bribe by a member of Congress is not a legislative act and is therefore outside the scope of the
legislative privilege. Id. at 1030-31.
Finally, West expresses concern that if this court were to recognize legislative privilege,
public access to legislative records would depend “solely on the arbitrary and capricious whims of
the Legislature.” Br. of Appellant at 72. This is not so. In light of the purposes of article II, section
17 articulated above, legislative privilege “exists only to the extent necessary for the adequate
functioning of the state legislative body.” Beno, 116 Wis.2d at 142; see Ariz. Indep. Redistricting
Com’n, 206 Ariz. at 137 (explaining that legislative privilege is limited to matters that are “ ‘an
integral part of the deliberative and communicative processes’ relating to proposed legislation or
other matters placed within the jurisdiction of the legislature” (quoting Gravel, 408 U.S. at 625).
The legislature here does not seek to protect from disclosure communications and records that
involve someone external to the legislature. Furthermore, we need not address in detail the scope
of the legislative privilege because West does not challenge the trial court’s application of the
legislative privilege to any of the records at issue in this matter.
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III. SEPARATION OF POWERS
West argues that the separation of powers doctrine does not necessitate a legislative
privilege from disclosure and that, to the contrary, the separation of powers doctrine, as our
supreme court held in Associated Press, requires the judiciary to strictly adhere “to the [PRA’s]
unambiguous language to ensure the judiciary carries out the Legislature’s will.” Br. of Appellant
at 72. Stated differently, West argues that our supreme court’s holding in Associated Press
precluded the trial court from recognizing a constitutional privilege exempting certain legislative
communications from compelled disclosure under the PRA because to do so would itself violate
the separation of powers. We disagree.
Separation of powers is one of the “cardinal and fundamental principles” of our state
constitutional system. Wash. State Motorcycle Dealers Ass'n v. State, 111 Wn.2d 667, 674, 763
P.2d 442 (1988). Our separation of powers jurisprudence protects institutional interests and guards
the balance of powers between branches. Freedom Found., 178 Wn.2d at 696. “[W]e test for
separation of powers violations by asking ‘whether the activity of one branch threatens the
independence or integrity or invades the prerogatives of another.’ ” Id. (internal quotation omitted)
(quoting Brown v. Owen, 165 Wn.2d 706, 718, 206 P.3d 310 (2009)). “[W]e apply the doctrine by
protecting the branches themselves.” Id. at 699.
West’s reliance on Associated Press is misplaced. That case involved an issue of statutory
interpretation, not of constitutional interpretation. While the trial court in Associated Press
properly observed that separation of powers principles necessitate deference to the legislature
when the judiciary interprets a statute, “[t]he construction and interpretation of . . . provisions of
the constitution is a judicial function.” O’Connell, 75 Wn.2d at 557.
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In Associated Press, our supreme court did not address the existence of a constitutional
privilege from disclosure, instead it held that individual legislators are “agencies” subject to the
PRA’s general disclosure mandate. 194 Wn.2d at 922. While legislators are subject to the PRA’s
disclosure requirements under the PRA’s terms, “the PRA must give way to constitutional
mandates.” Freedom Found., 178 Wn.2d at 695. Therefore, our supreme court’s holding in
Associated Press did not preclude the trial court from recognizing a constitutional privilege from
disclosure. West’s argument that by declining to amend the PRA to include an exemption for
legislative communications, the legislature waived its ability to argue that its non-disclosure was
justified by a constitutionally derived legislative privilege likewise fails. Legislative enactments
cannot amend or alter constitutional provisions. See id. The trial court did not exceed its judicial
power by holding that the speech or debate clause applies.
We conclude that even if article II, section 17 of our constitution does not provide a
legislative privilege from disclosure, the constitutional doctrine of separation of powers does. As
discussed above, compulsory disclosure of internal legislative deliberations under the PRA
threatens the independence and integrity of the legislature. Legislators must be free to deliberate
candidly with each other and without the burden of defending themselves in court. Our decision
to recognize a legislative privilege from disclosure rooted in the constitutional separation of
powers doctrine comports with the decisions of our sister states. See Beno, 116 Wis. 2d at 141; see
also Ariz. Indep. Redistricting Com’n, 206 Ariz. at 136; see also League of Women Voters of Fla.
v. Fla. House of Representatives, 132 So. 3d 135, 145-46, 38 Fla. L. Weekly S895 (Fla. 2013)
(holding that separation of powers creates a legislative privilege from disclosure in absence of
speech or debate clause). Accordingly, the separation of powers doctrine creates a legislative
13 No. 60104-4-II
privilege that protects certain communications from disclosure under the PRA. See RCW
42.56.070(1); see also Freedom Found., 178 Wn.2d at 695.
CONCLUSION
We conclude that the trial court did not err in granting the legislature’s motions for
summary judgment because both article II, section 17 of the Washington Constitution and the
constitutional separation of powers doctrine provide a privilege from disclosure of internal
legislative deliberations. Accordingly, we affirm trial court’s orders denying West’s motion for
summary judgment and granting the legislature’s motion for summary judgment, and judgment in
favor of the legislature.
CRUSER, C.J. I concur:
CHE, J.
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MAXA, J. (concurring in part) – I agree that the separation of powers doctrine, as
interpreted by the Supreme Court in Freedom Foundation v. Gregoire, 178 Wn.2d 686, 310 P.3d
1252 (2013), creates a legislative privilege that allows legislators to refuse to produce records
requested under the Public Records Act, chapter 42.56 RCW (PRA) that involve internal
legislative deliberations. However, I disagree that article II, section 17 of the Washington
Constitution creates such a legislative privilege.
Article II, section 17 states, “No member of the legislature shall be liable in any civil
action or criminal prosecution whatever, for words spoken in debate.” The lead opinion
completely ignores a crucial provision of article II, section 17: that a legislator cannot be “liable
in any civil action.” The proper question here is whether a PRA request subjects a legislator to
liability in a civil action.
A. PLAIN LANGUAGE ANALYSIS
The current version of Black’s Law Dictionary defines “liable” as “[r]esponsible or
answerable in law; legally obligated” and “[s]ubject to or likely to incur a fine, penalty, etc.”
BLACK’S LAW DICTIONARY at 1097 (12th ed. 2024) (hereinafter BLACK’S 2024). Black’s defines
“liability” as “[t]he quality, state, or condition of being legally obligated or accountable” and
“legal responsibility to another or to society, enforceable by civil remedy or criminal
punishment.” Id. at 1095. Black’s defines “civil action” as “[a]n action brought to enforce,
redress, or protect a private or civil right; a noncriminal litigation.” Id. at 38. Black’s defines
“litigation” as “[t]he process of carrying on a lawsuit.” Id. at 1117.
In 1889 – when the Washington Constitution was adopted – one legal dictionary defined
“liable” as “[b]ound, bound for, obligated; responsible, answerable, accountable, chargeable
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with: as, liable for money.” William C. Anderson, A Dictionary of Law at 616 (T.H. Flood &
Co. ed. 1889). The same dictionary also defined “liability” as “[t]he state of being bound or
obliged in law or justice. That condition of affairs which gives rise to an obligation to do a
particular thing to be enforced by action.” Id. Black’s Law Dictionary from this period defined
“liable” as “[b]ound or obliged in law or equity; responsible; chargeable; answerable;
compellable to make satisfaction, compensation or restitution” and “[e]xposed or subject to a
given contingency, risk, or casualty, which is more or less probable.” BLACK’S LAW
DICTIONARY at 713 (1891) (hereinafter BLACK’S 1891).
Founding era dictionaries also provide relevant definitions for “civil” and “action”. The
1889 dictionary defines “action” as “an abstract legal right in one person to prosecute another in
a court of justice; a ‘suit’ is the actual prosecution of that right.” A Dictionary of Law at 25. The
same dictionary defines “civil” as “[c]oncerning the rights of and wrongs to individuals
considered as private persons, in contradistinction to criminal or that which concerns the whole
political society.” Id. at 185. Another dictionary defined “action” as “a proceeding taken in a
court of law,” and defined “civil remedy” as “one that may be enforced by a private person for a
tort, as opposed to indictment and public prosecution.” William C. Cochran, Students’ Law
Lexicon, A Dictionary of Legal Words and Phrases at 8, 58. Black’s Law Dictionary from the
period defined “civil action” as those that “lie in behalf of persons to enforce their rights or
obtain redress of wrongs in their relation to individuals.” BLACK’S 1891 at 27. Black’s from this
era also defines “action” as “[t]he legal and formal demand of one’s right from another person or
party made and insisted on in a court of justice.” Id.
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Under these definitions of “liable,” legislators who receive a public record request under
the PRA are subject to liability. They are answerable in law and legally obligated to respond to
the request and are subject to a fine or penalty if they refuse to respond.
However, a PRA request itself – before the commencement of any legal action in the
courts – does not qualify as a civil action. According to Black’s from both the founding era and
today, an action involves litigation – a lawsuit. BLACK’S 2024 at 38, 1117; BLACK’S 1891 at 27.
A PRA request is not a lawsuit. Therefore, although a legislator may be legally obligated to
respond to a PRA request, there is no liability “in a civil action” in responding to a public record
request as a general matter.
It could be argued that if a legislator refuses to produce any records or redacts portions of
the records produced, that legislator ultimately could be subject to liability in a civil action – a
PRA lawsuit. But article II, section 17 prohibits liability in a civil action “for words spoken in
debate.” (Emphasis added). In a PRA action, the legislator would be subject to liability for
“den[ying] an opportunity to inspect or copy a public record,” RCW 42.56.550(1), not for words
spoken in debate.
Under the plain language analysis, I conclude that article II, section 17 does not provide a
legislative privilege against disclosure of records in response to a request under the PRA.
B. POTENTIALLY APPLICABLE CASES
The lead opinion cites to federal cases interpreting article I, section 6, clause 1 of the
United States Constitution, which provides that “for any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other Place.” However, that
provision does not require a “civil action.” Instead, members of Congress cannot be “questioned
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in any other place.” In addition, the federal cases do not address public record requests because
the federal Freedom of Information Act does not apply to Congress. 5 U.S.C. § 551(1)(A).
Therefore, the federal cases are not helpful.
The lead opinion relies on State v. Beno, 116 Wis.2d 122, 341 N.W.2d 668 (1984). In
Beno, the defendant issued a subpoena to a Wisconsin legislator’s administrative assistant to
attend a deposition. Id. at 128. Interpreting a constitutional provision identical to article II,
section 17 of the Washington Constitution, the Wisconsin Supreme Court stated, “[T]he words
‘liable in any civil action’ could be interpreted to mean answerable as a party to a civil action or
answerable to obey a court process such as a subpoena, whether or not the legislator is a party to
the civil action.” Id. at 140 (emphasis added). The court concluded that the Wisconsin
Constitution protected legislators “from questioning in a judicial proceeding.” Id. at 142.
Beno clearly involved a “civil action” – the administrative assistant was subpoenaed to
testify in ongoing litigation. Therefore, that case is not helpful in determining whether a PRA
request constitutes a civil action. I acknowledge that article II, section 17 likely provides a
legislative privilege regarding deposition or trial subpoenas.
The lead opinion also relies on two Arizona cases, Arizona Independent Redistricting
Commission v. Fields, 206 Ariz. 130, 75 P.3d 1088 (Ct. App. 2003) and Fann v. Kemp, 253 Ariz.
537, 515 P.3d 1275 (2022).
In Fields, several parties filed a lawsuit against a redistricting commission created by the
Arizona Constitution. 206 Ariz. at 134. The parties sought to depose commission members and
their consultants and to obtain responses to written discovery requests, and later requested
additional documents. Id. at 135. The Arizona Court of Appeals recognized a legislative
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privilege that had roots in the common law, the speech or debate clause of the United States
Constitution, and principles underlying the separation of powers. Id. at 136. The court also
noted that the privilege was embodied in the Arzona Constitution in a provision identical to
article II, section 17 of the Washington Constitution. Id. at 137 n.3. However, as in Beno, Fields
clearly involved a “civil action.” The plaintiffs filed a lawsuit against the commission, and
sought depositions and records in the context of that lawsuit. Therefore, that case is not helpful
in determining whether a PRA request constitutes a civil action.
In Fann, a party submitted a public records request for documents relating to an audit of
votes cast in the November 2020 election. 253 Ariz. at 540. The Arizona Supreme Court
recognized the existence of a legislative privilege arising from the common law, the speech and
debate clause, and separation of powers. Id. at 542-43. But the court did not explain – or even
address – how a public record request could constitute a “civil action” under the Arizona
Constitution.
The Legislature cites to a number of other state court cases. But none of those cases
address whether a public record request subjects a legislator to liability in a “civil action” under
language similar to article II, section 17. See, e.g., Smith v. Iowa District Court for Polk County,
3 N.W.3d 524, 532-35 (2024) (finding a legislative privilege despite the absence of a
constitutional provision similar to article II, section 17 or the federal speech or debate clause);
Edwards v. Vesilind, 292 Va. 510, 790 S.E.2d 469 (2016) (finding a legislative privilege under a
constitutional provision similar to the federal speech or debate clause; no requirement of a “civil
action”); State of Oregon v. Babson, 355 Or. 383, 417-23, 326 P.3d 559 (2014) (finding a
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legislative privilege under a constitutional provision similar to the federal speech or debate
clause; no requirement of a “civil action”).
C. CONCLUSION
Article II, section 17 clearly and unambiguously states that a legislator cannot be “liable
in any civil action.” No case in any other jurisdiction has addressed whether a public record
request constitutes a “civil action” under a constitutional provision similar to article II, section
17. In the absence of any authority, I would apply the plain language of article II, section 17 and
hold that this provision does not apply to record requests under the PRA.
MAXA, J.