It’s possible the Legislature has spent more than what those public records showed for litigating both lawsuits.
The House and Senate paid Summit Law Group nearly $208,000 from July 2023 through September 2024, according to the state’s spending information website, although it is unclear if that amount was paid to the firm solely for the legislative privilege lawsuits. Sarah Bannister, Secretary of the Senate, confirmed in a phone call that the Legislature is not currently using Summit Law Group for any lawsuits outside of legislative privilege.
From March 2022 through June 2023, the website shows the Legislature paid Summit nearly $79,000, with part of the payments going to the legislative privilege lawsuit, and for another lawsuit, Palmer v. Hobbs, related to redistricting.
That’s not considering the other costs associated with litigating the case, noted Joan Mell, attorney for plaintiffs in one of the legislative privilege lawsuits. For example, wages paid by the Legislature to legislative counsel Jeffrey Even, formerly the Deputy Solicitor General with the Attorney General’s Office, are not reflected in the invoices obtained by Cascade PBS.
It’s been nearly two years since the public was made aware of Washington lawmakers trying to hide their records under the guise of privilege — a legal concept lawmakers claim exists in the Washington Constitution’s “Speech and Debate Clause,” which states that “No member of the legislature shall be liable in any civil action or criminal prosecution whatever, for words spoken in debate.” Although the clause does not mention documents produced by lawmakers, members of the Legislature have interpreted it as another exemption to the state’s Public Records Act.
The first lawsuit against the Legislature was filed by open-government advocate Arthur West in January 2023, followed by another filed in April 2023 by the Washington Coalition for Open Government (WashCOG) and open-government advocate Jamie Nixon.
Jessica L. Goldman of Summit Law Group and Even represent the Legislature in both lawsuits. According to a recent blog post on Summit’s website written by Goldman, both cases are now on appeal after two Thurston County judges sided with lawmakers in Superior Court.
Goldman claims in her blog post that “Both cases arose from public records requests to Washington State Legislators from frequent requestors for the express purpose of then litigating the anticipated assertion of legislative privilege,” but does not mention the involvement of WashCOG, an independent, nonpartisan nonprofit that works to defend the state’s open-government laws.
In a phone call with Mell, she pushed back on the claims in Goldman’s post and said that not only were Goldman’s statements “wrong” but also “offensive” and “practically unethical.”
“It’s not an avocation, it’s a constitutional interest in ensuring that the people she represents don’t abuse the power of their offices, and she has streamlined their ability to operate in the dark,” Mell added. “It’s terrifying to see that there’s some sort of desire to vilify people like Jamie Nixon, and associations like WashCOG, who absolutely believe that in order to make good choices about public officials and empower them to act, there has to be absolute transparency.”
Public records show invoice details from Summit dating back to February 2023, the first charge for an email exchange between Even and attorneys at Summit totaling $178 billed at less than one hour.
Other charges show exchanges costing upward of $500, including more emails and Zoom meetings with Even billed for 1.2 hours at $534; emails with West and counsel for WashCOG and a revised stipulation billed for 3.2 hours at $1,424; and drafting answers to complaints billed for 6.6 hours at $2,937.
The most expensive invoice viewed by Cascade PBS showed nearly $37,500 in charges for August 2023, including for things like 3.6 hours of research for discovery, billed for $1,501, and research and analysis of legislative privilege, billed for nearly six hours at $2,418.
All of these charges culminate as the state is facing a $10 billion to $16 billion shortfall over the next four years and lawmakers are scrambling to adjust expenses in the state budget. Additionally, the overall public does not have much trust in the government.
It’s worth noting this isn’t the first time lawmakers have tried to exempt themselves from the state’s public disclosure laws.
In 2018, state lawmakers from both sides of the aisle bypassed legislative procedures to vote and pass a bill in less than 48 hours to limit disclosure on records such as calendars and communication with lobbyists. After public outrage, Gov. Jay Inslee vetoed the bill.
In 2019, the State Supreme Court affirmed that lawmakers are subject to the Public Records Act, and as such must turn over emails, schedules and other materials used for their work.
A joint report by Cascade PBS and McClatchy in 2023 detailed how lawmakers are using the privilege, including to hide embarrassing text exchanges, but mostly to conceal deliberation on documents related to legislation and communications with stakeholders.
The state Supreme Court will have the ultimate say on whether or not lawmakers can invoke legislative privilege, which is not popular with the public.
A Cascade PBS/Elway poll released in January 2024 showed that 82% of those polled, including Republicans, Democrats and independents, said they believed lawmakers should comply with the state’s public disclosure laws and not invoke legislative privilege.
However, lawmakers don’t necessarily agree with the public. A survey published by The Seattle Times and McClatchy in March showed that fewer than half of lawmakers in the Legislature said they would not invoke legislative privilege.
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