The Washington Federation of State Employees has filed suit against the State Ethics Commission , alleging its sanctions against of two members who appeared in union-sponsored TV commercials in 2011 will have a “chilling effect” on the free speech rights of all state employees.

The union filed the lawsuit May 10 in U.S. District Court.

The TV spots, filmed on private property and during the members’ off-work hours, “encouraged members of the public to have their legislatures (sic) stop blaming public servants for the state’s budget woes.”

The employees volunteered to appear, union officials insist, and were not paid for their comments.

The Washington Federation of State Employees says the state Ethics Commission had no right to fine two of its members for appearing in a union-sponsored commercial.

The ads, they say, carried a clear identification that the union had paid for the spots and making it clear the two members “were clearly serving in representative capacities for the WFSE and the thousands of employees of the State of Washington it represents and speaking on a matter on behalf of the organization and its members,” the court document says.

But ethics watchdogs cited and fined the two members for alleged illegal use of state resources for personal gain because the commercials listed their state job titles under their names.

“The Ethics Commission basically said the state owns its employees’ job titles,” the union said in a news release on Thursday afternoon.

“The court should declare that the above-described conduct by defendants (the Ethics Commission) violates plaintiffs’ rights to freedom of speech under the First Amendment of the United States Constitution Art. I, U.S. Constitution by censoring and chilling plaintiffs’ speech and deterring them and other state employees from exercising their First Amendment rights,” the Federation lawsuit says.

The two member plaintiffs are Brad Samples, of Local 53 in Tacoma, who works for the state agency that oversees social and health services programs to protect developmentally disabled citizens; and Ginger Richardson, of Local 308 in Seattle, who works for the state agency in charge of state prisons and post-release correctional programs to protect the public.

“Samples and Richardson have shown great courage during this ordeal,” the press release stated, “so we’re not using their job titles or state agency names because challenging one ridiculous ethics commission action at a time is enough.

“We have not reported on this lawsuit sooner for those reasons,” it said, “but the lawsuit and their names began appearing May 17, so we thought it was safe to go public, too.”

The entire lawsuit can be viewed here.

The Thurston County commissioners decided this spring -- with the assistance of hundreds of incensed hunters -- to shelve a proposed shooting ban. But in doing so, they may have violated the state's Open Meetings Law.

Just because the Thurston County commissioners ultimately made the correct decision doesn’t made it correctly.

That’s the message about two dozen property rights advocates delivered on Tuesday with respect to the county’s recently scrapped shooting ordinance.

“While I agreed with the commissioners in this decision, process is policy,” said Glen Morgan, property rights director at the Olympia-based Freedom Foundation. “And when you fail to follow the clear legal process as provided in state law, then we must ask you to correct your mistakes.”

Earlier this year, the commissioners proposed an ordinance would have created no- or controlled-shooting zones in the urban-growth areas of Lacey, Olympia, Tumwater and Grand Mound, portions of Eld and Henderson inlets and some residential areas zoned for one or two dwellings per acre.

It also would have prohibited shooting within 300 yards of the ordinary high-water line along Puget Sound, limiting areas for waterfowl hunters.

The idea outraged property rights advocates, who believe the core issue is more than safety or gun rights.

Glen Morgan

“The bigger conversation about the no-shooting ordinance, of course is why our county government spent two and a half years and countless staff hours on five of an ordinance that was unnecessary and clearly illegal,” Morgan said. “All the reasons provided by this commission for not voting on this ordinance were accurate. But those justifications were provided to this commission two years ago, and you still chose to squander our resources and staff time.”

The Thurston commissioners ultimately decided by a 2-1 margin in April to scrap plans for the shooting ban – presumably encouraged by the 1,800 e-mails they received and the 3,200 signatures on a petition opposing the ordinance.

Commissioners Cathy Wolfe and Sandra Romero voted to kill the measure, while Commissioner Karen Valenzuela said she wanted to see the issue taken to the next step.

In reaching their decision, however, the commissioners held several closed-door meetings to discuss strategy.

Morgan and others at Tuesday’s hearing believe the county violated the state’s Open Meetings Act.

“Specifically, this violation occurred when the commissioners made their majority decision to not pursue the no-shooting ordinance on April 17 – just a few weeks ago,” Morgan said. “This may not be the only violation in Thurston County, but we will no longer allow this commission to make these violations with impunity moving forward.”

A single visit to Washington in seven years can subject an out-of-state company to local B&O taxes, the state's Department of Revenue contends.

A one-day visit to Washington state has turned out to be a taxing experience – literally — for a California  businessman whose case could either open the door to a whole new revenue stream or, more likely, scare off would-be vendors in droves.

According to the state’s Department of Revenue, Pete Vegas owes it seven years’ worth of back B&O taxes  – totaling more than $180,000.

That comes as a major surprise to him, considering his business is located 1,100 miles away in Los Angeles.

“The Appellate Court judge basically said in his opinion that if you visit the state of Washington one time, you’ve established nexus and you’re subject to their business and occupations taxes,” Vegas said in an interview with The Tax Foundation, a nonpartisan watchdog agency based in Washington, D.C.

Vegas is founder and president of Sage V Foods, which produces a number of products including rice flour. And one of the company’s regular customers is based in Seattle.

Fortunately for Vegas, the product he sells that company is so specialized few competitors offer it – which means the client doesn’t require a lot of personal attention. In fact, he’d called on the client face-to-face only once in seven years.

Pete Vegas

But that was apparently enough to put the state revenue collectors on his scent.

Vegas likened Washington state’s policy to a speed trap, noting that one of his company’s trucks was stopped at the Oregon border and the information got back to the state Department of Revenue, which then sent a tax form to his office in California.

“If you don’t know how to answer the questions, you don’t know what you’re getting into,” he said. “They ask questions like, ‘Do you have a facility in the state of Washington?’ and, ‘Do you have employees in the state of Washington?’ And every answer was no, no, and no.

“Then they have a question — and this is sent to my controller, who has no idea she’s being set up – that asks, ‘How many times a year do you visit Washington?’” Vegas said. “How do you answer a question like that knowing I’ve been before, but not very often? So she said one time a year.”

Washington responded with a bill for seven years’ worth of back taxes, interest and penalties.

“There initially was physical presence required in the state of Washington (to impose B&O taxes),” Vegas said. “But as they’ve become hungry for revenue, they’ve started stretching that.

“So then it was, if you had a sales office in the state of Washington,” he said. “Then it became if you had a broker in the state of Washington. Then it was if you had a salesman frequently visiting Washington. What’s up in the air at this point, and my case will probably set the precedent, is how many times do you have to visit the state of Washington in a seven-year period to be liable for these taxes?

The federal Interstate Commerce Act, Vegas notes, requires a company to have a “substantial presence” in a state to establish a nexus.

“In my case, they’re basically saying one visit is enough,” Vegas said.

Vegas, who earned an MBA at the Harvard Business School, said he was told by Washington attorneys familiar with the procedure that, even if he won his case, he’d wind up paying as much in legal fees as he’d recover in damages.

Consequently, he’s representing himself in the appeal, which is scheduled for July 31.

“I have not met another company that realizes this is happening,” he said. “I think the state of Washington would shut down if people knew this was going on.

“If you send an employee to a convention or an exhibition in the state of Washington, you’ve established nexus,” Vegas said. “There should be no convention center in Washington. All the hotels should be going out of business, but no one knows this is happening. It’s just a matter of whether they catch you or not.”

The Department of Transportation's reluctance to release the results of drug and alcohol tests administered to the captain and crew of the M/V Wenatchee after it crashed into Colman Dock in 2009 has sparked a court battle that's still ongoing.

A Washington State Appeals Court on Thursday ruled that federal transportation laws created to protect the privacy of public employees trump the state Public Disclosure Act — even if that means shielding a ferry captain who may have been intoxicated on duty.

The case arose when Washington State Ferries vessel M/V Wenatchee slammed into Colman Dock in Seattle on Aug. 30, 2009, causing hundreds of thousands in property damage and minor injuries to one passenger.

The official inquiry ruled out drugs or alcohol as a cause of the mishap, and no WSF employee lost their job. Nonetheless, the Olympia-based Freedom Foundation responded the day after the accident with a request to view all records associated with the incident, including the results of mandatory blood and alcohol tests administered to the captain and crew.

“We weren’t so much implying we didn’t believe their version of the events as we were saying, ‘Trust us, everything’s fine,’ isn’t good enough,” said Mike Reitz, the Freedom Foundation’s general counsel . “If drugs and alcohol weren’t involved, show us the records and prove it.”

Mike Reitz

The Washington State Department of Transportation, however, released a redacted version of the records on Nov. 5 omitting any discussion of the substance abuse test or its results, citing U.S. Coast Guard regulations dealing with personnel matters.

The Foundation submitted a second public records request on Nov. 19 and WSDOT responded a month later with essentially the same information but did include a description of the kinds of tests and methodology used to determine whether the employees were impaired at the time of the accident.

WSDOT released the names of the captain and crew members it had tested, but steadfastly declined to discuss the test results, prompting The Freedom Foundation on April 16 to file a motion to disclose public records in Thurston County Superior Court.

The case was dismissed on a summary judgment when the judge ruled WSDOT was prohibited by federal law from disclosing personnel records.

The Freedom Foundation appealed the case in September 2011.

Yesterday’s appellate ruling affirms the Foundation’s position that WSDOT’s initial response was too heavily redacted and awards the plaintiffs court costs and legal fees. At the same time, it did not require WSDOT to release the test results as requested.

“From Day 1, we told WSDOT it was in violation of the law,” Reitz said. “It’s gratifying to see the Court of Appeals agree that we were entitled to 90 percent of the information we sought.”

He continued, ““The broad mandate of openness in our state law should not be so easily displaced by the mere existence of a federal regulation. In 2011, the federal government completed 3,611 rulemaking proceedings. Our state transparency laws could be swamped over by the thousands of pages of rules pouring out of Washington, D.C.

“The public ought to know the details of a public employee’s on-the-job conduct,” Reitz said, “especially given the potential loss of life and property if a mishap were to occur.”

The authors of Referendum 74 -- one of two ballot measures that would overturn Washington's same-sex marriage law -- say they'll have no problem gathering enough signatures to qualify for the November general election.

The success in North Carolina on Tuesday night of an amendment to the state constitution banning same-sex marriages is seen by advocates of a much narrower measure in Washington as a sign of validation.

“It just proves what we’ve been saying all along,” said Joseph Backholm, president of the Family Policy Institute of Washington. “Despite what the media want you to believe, most people still think marriage should be between one man and one woman.

“That’s why same-sex marriage has failed in every state where it’s been on the ballot,” he said. “We’re 31 for 31 now, and Washington state will be 32.”

Backholm is currently an organizer of Preserve Marriage Washington, which is promoting a referendum that would overturn a law passed by the 2012 legislature that legalizes same-sex marriages in Washington state. The law is currently on hold waiting to see whether the voters will strike it down.

Joseph Backholm

Referendum 74 is actually one of two proposed ballot measures that would have the same effect. The other, Initiative 1192, would establish a state law limiting marriage to one man and one woman.

In order to be included on the November general election ballot, the authors of both measures are required to collect thousands of signatures on their petitions by June 6. Because of the large numbers of duplicate or unverifiable signatures that always show up on the documents, organizers typically turn in an extra 20 percent more just to be sure.

With a little less than a month remaining until the deadline, Referendum 74 has around 75,000 of the 125,000 signatures in hand, while I-1192 has just over 45,000 and needs an additional 200,000.

“I’m new to this, so it makes me a little nervous that we still have so much ground to make up,” Backholm said. “But people who do this all the time tell me it’s not unusual for more than half of the petitions to be turned in the last week alone.

“We’ve sent thousands of petitions and we know where all of them are,” he said. “Mostly they’re still sitting on people’s desks or kitchen tables waiting to be turned in. We’re not worried. We’ll get there. Both (of the ballot measures) will.”

Backholm said he’s not discouraged by public opinion polls that show the measures losing in Washington state.  “That’s fairly typical in these contests,” he said. “The media are often the ones who conduct or sponsor the polls, and they have a vested interest in discouraging opposition.”

Nationwide, he said, the polls tend to overestimate the strength of same-sex marriage support by 5 to 7 percent.

“In California, there was never a poll that showed Proposition 9 passing,” Backholm noted. “But when the votes were counted, it passed 52-48. That should tell you something about the polls. I’m actually very excited about where we are right now.”

Stephen Pidgeon

Stephen Pidgeon, who is overseeing the I-1192 campaign, admits his forces have a daunting task ahead of them, but he noted that Costco generated 300,000 signatures in three weeks last year in its successful attempt to privatize state liquor sales.

“Obviously most of the people collecting signatures want to have as many as they can, so they don’t  turn in their petitions until the very last minute,” he said. “We’re confident we’ll have enough.”

Pidgeon believes his efforts are complicated, however, by an opinion paper written by Attorney General Rob McKenna several years ago that treats petition signatures as public information subject to disclosure requests by anyone who wants them.

A website called WhoSigned.org in 2009 requested and published the names of everyone who signed Referendum 71, which sought to overturn the state’s just-passed domestic partnership rule. Many on the list were subjected to harassing phone calls and e-mails, Pidgeon said, and the experience is making them think twice about going public this time.

He also cited the experience of a Yakima man who in April was quoted in the newspaper as promising to bring the R- 74 campaign to that community. The same night the quotes appeared, referendum opponents vandalized and totaled his wife’s car.

“There’s a climate of fear in this state,” he said. “Am I saying the left is violent, intolerant and bullying? Yes, absolutely I am.”

Like Backhold, Pidgeon wasn’t surprised by the outcome of the North Carolina constitutional amendment vote and believes it bodes well for Washington.

“Homosexuals who want to marry represent less than 1 percent of the entire population,” he said. “This isn’t about equal rights for homosexuals. It’s about crushing values, and people are starting to figure that out.”

“The other side’s argument in favor of same-sex marriage consists entirely of, ‘You’re a bad person if you disagree with us,’” Backholm said. “But for us, there’s strength in numbers.

“When you look at how the vote went in North Carolina and everywhere else it’s been tried,” he said, “it’s hard to make the case that same-sex-marriage is only opposed by bigots when the bigots always seem to be in the majority.”

Artist's conception of light rail on the I-90 Bridge -- assuming a lawsuit being appealed to the State Supreme Court by the Eastside Transportation Association doesn't derail the project.

Opponents of a plan to allow Sound Transit use of the center two lanes on the Interstate 90 Bridge in order to extend light rail from Seattle to Bellevue are planning to take their case back to the state’s highest court.

Representatives from the Eastside Transportation Association, including former State Sen. Jim Horn and Bellevue developer Kemper Freeman, announced on Tuesday they will appeal a Kittitas County Superior Court ruling that in March dismissed the group’s lawsuit, which named Gov. Gregoire, Department of Transportation Secretary Paula Hammond and Sound Transit as defendants.

The case dates back to 2009 and was originally heard by the Supreme Court in September 2010, but the justices ruled in April 2011 the plaintiffs could not prevent the Washington State Department of Transportation from transferring the lanes before the fact.

Kemper Freeman

Sound Transit plans to connect Seattle’s Central Link with Bellevue and the Eastside’s future East Link by building light rail line along Interstate 90 where the carpool lanes currently are.

Sound Transit hopes to start construction of East Link in 2015 or 2016 and launch passenger service in 2023.

In its effort to thwart the project, the ETA argued that, “any transfer of the lanes” from an original plan for the I-90 bridge, one that did not include light rail at the time as it predated Sound Transit 2, “would essentially be an unlawful diversion of motor vehicle fund money” and that the state is prohibited “from entering into ‘any agreement’ with Sound Transit for use of the two center lanes of I-90 for high-capacity light rail.”

The Supreme Court rejected the first argument but left open the possibility of a future lawsuit.

ETA responded by filing a similar action last fall, only to see it thrown out by Kittitas County Judge Michael Cooper, who declared that the East Link light rail project, approved by voters in 2008, conforms to plans and agreements that have been in place since before the bridge was built.

ETA’s appeal has not yet been officially filed with the State Supreme Court, which could still decide to hear it.

Attorney General Rob McKenna says a lawsuit filed by a Democratic activist over his decision to join the ongoing lawsuit against Obamacare is politically motivated and frivolous.

An alliance of 90 patients, organized by supporters of gubernatorial candidate Jay Inslee, has filed suit against Washington Attorney General Rob McKenna alleging his overstepped his responsibilities in joining a multi-state lawsuit against Obamacare.

The suit, filed in King County Superior Court, alleges that McKenna has been unethical and hasn’t told the truth to his clients, the public. It also seeks to force McKenna to file new briefs asking the U.S. Supreme Court to uphold parts of the law that benefit the suing patients, even if the court strikes down the law’s mandate for people to buy health insurance.

“McKenna’s unethical representation of the state poses a real threat to plaintiffs and women throughout Washington,” wrote attorney Knoll Loney, a Democratic activist. “At least two plaintiffs are young cancer survivors who would likely be subject to a ‘lifetime cap’ on their health insurance if the (Affordable Care Act) were to be totally invalidated.

Knoll Loney

“Other plaintiffs depend upon the ACA for comprehensive birth control coverage, and their right to obtain contraception and other preventative care without cost-sharing,” he continued. “Without the ACA, the plaintiffs and women across the state will have to pay hundreds or thousands of dollars every year for birth control and preventative care which they can receive for free under the ACA.”

The U.S. Supreme Court heard the complaint, lodged by the attorneys general of 31 states, in March. Attorneys for the plaintiffs argued that Obaacare is unconsitutional because it “individual mandate” requires all Americans to purchase a product.

McKenna was among a minority of AGs who felt the Supreme Court could strike down the individual mandate but still preserve the rest of the law.

Lowney said McKenna can’t knowingly sign onto a suit that isn’t in the best interests of the state.

“The client is Washington state, and nobody believes it is in the best interest of Washington state for the entire thing to be invalidated,” Lowney said in news conference in Seattle. “McKenna says he doesn’t support that, and how could he?”

The politically-charged lawsuit supported by liberal group Fuse comes eight months after the state Supreme Court decided McKenna had the authority to pursue the challenge.
Lowney denied the suit was politically motivated.

“It’s a long time before this race,” he insisted, “and my clients don’t care about this race. The Affordable Care Act and our once-in-a-generation opportunity to get health care reform is far more important than any partisan race.”

A McKenna spokesman called the lawsuit “frivolous” and said the attorney general is doing his duty to uphold the Constitution against ”a law that requires every American to purchase a government-approved insurance product in the private marketplace.”

State GOP chairman Kirby Wilbur offered withering criticism of Lowney — and Inslee’s avowed support for the suit.

“Congressman Inslee and his extreme allies have officially thrown in the towel on any new ideas for this campaign,” Wilbur said. “It seems a little early for Inslee to resort to calling in that noted loser of lawsuits Knoll Lowney to make one of his typically dubious legal claims against a Republican candidate. But since Inslee doesn’t have any positive solutions for the state, I guess he has to resort to scurrilous partisan attacks.”

Wilbur continued, “It’s truly unfortunate that Congressman Inslee and his allies should seek to exploit the pain and suffering of the women they claim are behind this lawsuit, when its motivation is entirely political. However, when you are as desperate to cling to power as Inslee and the Democrats are this year, you must not care who gets hurt by your sleazy tactics.”

Senate Minority Leader Lisa Brown hasn't said what she plans to do next, but insists she won't be running for office in the immediate future.

Washington State Senate Majority Leader Lisa Brown (D-Spokane), following a spring that saw her party lose a bruising floor fight during which minority Republicans joined with a handful of Democratic defectors to defeat her preferred budget, has decided not to seek re-election this fall.

Brown, 55, announced on Thursday that after 20 years in the Legislature, she intends to retain  her part-time teaching position at Gonzaga University in Spokane, but otherwise is going to “wait and see what comes along.”

For the immediate future, she said, her plans do not include running for another political office.

“It wasn’t something I was planning to do, it was just one of those epiphanies,” she told The Associated Press. “It just felt like the right time, while I can still be open to other challenges.”

Brown has served as Senate majority leader for eight years, and before that she was minority leader for two years. Prior to that, she served in the House.

Democrats currently hold a 27-22 advantage in the Senate, but this year, three disgruntled Democrats voted with Republicans on a key budget decision late in the regular legislative session, infuriating Brown and her fellow Democratic leaders.

Brown, who won her seat four years ago with 75 percent of the vote, was slated to face off against Spokane councilwoman Nancy McLaughlin in this fall’s election. Her announcement leaves Democrats scrambling to find a replacement with the filing period set to open on May 14.

Brown’s official statement is reprinted below:

I have decided not to seek re-election to the 3rd district Senate seat this fall. Returning home two weeks ago, I began taking stock of my twenty years in the Legislature, reflecting on what I have been able to achieve with the help of colleagues and supporters. I decided that, though it is still immensely gratifying to serve Spokane and the state of Washington in this capacity, I am ready for new challenges.

During my tenure in the Legislature we have created in Spokane a health sciences education and research campus, which will be a centerpiece of our regional economy and will educate thousands of pharmacists, nurses, dentists, doctors, and other health professionals. The building that will house the University of Washington medical school and the Washington State University pharmacy received its final funding in this year’s capital budget.
I have also championed the clean-up and protection of the Spokane river, Spokane’s aerospace cluster, our film and video industry, and spearheaded the funding of the Fox Theater, the MAC, the refurbished YMCA/YWCA facilities, and numerous non-profits in Spokane, such as Crosswalk, the Northwest Autism Center and Sally’s House.

At the state level, I am most proud of my work to create mental health parity legislation, and my work on the state budget to enhance childcare and healthcare for working families. I am equally proud of my efforts to protect the state’s partnership with numerous non-profits who serve vulnerable people across the spectrum: abused and neglected children, the elderly, homeless people, and people with disabilities, and of our fourteen year fight to pass a simple majority plan for school levies.

Given the challenges of the recession and the reductions in the alternate budget proposed by the Senate Republicans, I am particularly pleased with this year’s final budget, which protected not only vital human service programs, but also made no further reductions to K-12 education or higher education.

I have been involved in the promotion of women’s rights and civil rights throughout my life and legislative career. This year’s path-breaking marriage equality and human-trafficking laws are two examples of the kind of legislation that originally motivated me to run for office. Serving as Ways and Means chair and then as the leader of my caucus for ten years has given me a tremendous opportunity to be deeply involved in all the major public policy issues facing our state and to work with talented elected officials and advocates.

I would like to thank Gov. Chris Gregoire and Speaker Frank Chopp for their leadership and for the productive relationship we have enjoyed for eight years. In particular, I appreciate the governor’s unwavering commitment to the economic future of Spokane and I want to thank the speaker for his dedication to the most vulnerable people in our state.

I will miss the incredibly dedicated staff of the state Senate and many of my colleagues in both chambers and on both sides of the aisle. In particular, I appreciated working with Sen. Jim Hargrove on mental health and human service funding, Sen. Ed Murray on marriage equality and the budget, Sens. Tracey Eide and Rosemary McAuliffe on simple majority, Sen. Jeanne Kohl-Welles on gender equity, Sen. Derek Kilmer on economic development initiatives, Sen. Joe Zarelli on the Rainy Day fund constitutional amendment, Rep. Ruth Kagi on childcare and early learning, and my seatmates Timm Ormsby and Andy Billig on numerous Spokane initiatives.

Senate Democrats are well-positioned to continue to lead the state. I look forward to watching the careers of our seasoned members as well as our emerging leaders.

The people of Spokane have given me the tremendous honor of representing and serving them for 20 years.

My son, Lucas, and many dear friends have accompanied me and supported me on this journey. I am immensely grateful to all of them.

Black-hooded anarchists smash windows in downtown Seattle on Tuesday as part of the May Day protests.

Masked anarchists clad in black outfits joined with hundreds of other protesters to smash dozens of store windows, spray-paint buildings and slash car tires in downtown Seattle on Tuesday in what organizers billed as a revolution against capitalism, economic unfairness and social injustice.

More than a dozen people were arrested and numerous minor injuries were reported. Property damage could be in the hundreds of thousands of dollars.

“This is a city that loves protests, that’s proud of their ability to have protests, and the vast majority of the time, we’re able to do it quite well,” Police Chief John Diaz told reporters. “It’s extremely unfortunate that we have small groups of people wanting to hijack these events.”

Seattle Mayor Mike McGinn issued an emergency order later in the evening, allowing police to confiscate items that could be used as weapons.

“We had reports from officers of paint and rocks flying, hammers and tire irons being used to damage property,” McGinn said.

“Sound bombs” and firecrackers also were reported. Police said they confiscated several homemade incendiary devices and bags of feces from protesters.

“Our concerns were real, and I think we handled it as best we could,” Seattle Police Sgt. Sean Whitcombsaid late Tuesday night. “These were, for the most part, peaceful demonstrations. It’s such as shame that such a small group of individuals were able to hijack the event and dilute the message to one of violence. They came here and they smashed it up.”

The Washington State Supreme Court has agreed to hear -- for the first time -- a challenge to the governor's alleged abuse of the state's executive privilege statute.

OLYMPIA—The Washington State Supreme Court on Tuesday agreed to hear a challenge to the state’s executive privilege statute — a presumed “right” that Gov. Christine Gregoire asserted nearly 500 times in a four-year period to stymie dozens of public records requests.

“If the governor is allowed to withhold records through executive privilege, it would be the most significant expansion of government secrecy in years,” said Mike Reitz, general counsel for the Olympia-based Freedom Foundation, which originally brought the suit a year ago this month.

Reitz, who will argue the case along with Michele Earl-Hubbard of the Allied Law Group, contends that executive privilege is not a valid exemption to the Public Records Act.

Mike Reitz

“We’re also concerned with the trial court’s deferential test that gives the governor the right to automatically seal records by decree,” he said.

The Public Records Act requires that all records held by government agencies are to be provided upon request, unless a law specifically exempts the record from disclosure. Nonetheless, the Governor’s Office has refused to release records related to criminal pardons, tribal gaming agreements, the Seattle Supersonics, Alaskan Way Viaduct replacement proposals, judicial appointments, and medical marijuana regulations.

On July 22, 2011, Thurston County Superior Court Judge Carol Murphy ruled in Gregoire’s favor, holding that executive privilege is inherent in the Washington State Constitution even though no appeals court in Washington has ever recognized that the state’s governor enjoys executive privilege.

Murphy also established a three-part test for determining when executive privilege shields specific records.

She ruled that the governor’s assertion of executive privilege creates a presumption that the records are privileged. The burden then shifts to the requester who must show a particular need for a document in order to overcome the governor’s privilege.

If the requesting party can show a special need for the record, the court then weighs his or her need against the governor’s interests.

The Freedom Foundation appealed the case, Freedom Foundation v. Gregoire, No. 86384-9, directly to the Supreme Court of Washington on Aug. 17.

“We’re pleased the Supreme Court recognized the importance of this issue by accepting review of the case,” Reitz said. “This is first time the court will squarely address the question of whether the governor of Washington can conceal records by claiming executive privilege.”