Washington Supreme Court exempts bar association from open meetings law

State laws requiring government-related meetings to occur in public do not apply to the association governing Washington attorneys, the state Supreme Court ruled Thursday.

The 8-1 decision exempts the Washington Bar Association from a collection of laws passed in 1971 referred to as the Open Public Meetings Act. The aim of those laws is to ensure groups conducting business required by or “pursuant to” state law do so transparently. The court was asked to determine whether the laws applied by the bar association themselves after a member legally challenged the controversial ouster of their executive director in January 2019, which was done behind closed doors.

The majority opinion, authored by Justice Gordon McCloud, found that the bar association did not meet the definition of a “public agency” required to adhere to the law because it existed in a voluntary form prior to licensing legal practitioners in the state, beginning in 1933.

“The (association) predated the state bar act by more than 40 years and operates pursuant to this court’s authority to regulate the practice of law,” McCloud wrote in her opinion.

The bar association began as a group of 35 lawyers practicing in what was then Washington Territory in 1888.

Justice Barbara Madsen dissented, arguing the association would benefit from greater transparency and that the legal profession served a public function just like the city councils, county commissions, public school boards and other professional licensing boards that must comply with the Open Public Meetings Act. The law requires that meetings take place after notification of the public, that materials including minutes be published and that votes not occur in secret.

“In no other professional area would (the association’s governing board) continue to operate in such a manner without swift intervention. This court’s inability or unwillingness to take action, coupled with (the association’s) flimsy internal transparency requirements have created a perfect storm,” Madsen wrote, after noting at least one credible sexual harassment complaint against a member that occurred before that member received a promotion, in addition to the removal of the executive director without a public explanation.

The ruling by the Supreme Court reverses a decision by a trial court in King County, which ruled that the public meeting law did apply and that the bar association needed to produce any written account of the vote that took place in a closed session for public consumption. The King County court also ruled that future meetings of the association needed to comply with the open public meetings law.

The bar association’s bylaws do require that most meetings take place in public and that meeting minutes should be published for public inspection; a violation of those rules, however, is not a violation of the law requiring penalties, as Madsen noted in her dissent. She encouraged the Washington Legislature to amend the law to make clear that it applies to the bar association. The California state Legislature took such an action in 2015.