Judge dismisses GOP lawmakers’ challenge of House vax rule

Rep. Robert Sutherland and five colleagues fought a requirement barring access to the House floor unless vaccinated

OLYMPIA — In the weeks before the start of the 2022 legislative session, majority Democrats signed off on a plan for conducting business in the House of Representatives in the ongoing pandemic.

It required lawmakers be vaccinated to participate in floor session and to access their offices. It restricted where the public could go. Overall, many elements didn’t sit well with Republicans.

Six of them, including Granite Falls Rep. Robert Sutherland, sued in November, alleging the House plan created “separate and unequal classes of legislators” and violated their right to freedom of speech and laws regarding discrimination.

On July 1, their fight came to an end when Thurston County Superior Court Judge Mary Sue Wilson dismissed the case.

“After nearly 50 lawsuits, we continue our undefeated record defending state COVID-19 policies aimed at keeping Washingtonians safe,” Attorney General Bob Ferguson said.

The outcome wasn’t a total surprise. Much changed from the time the suit was filed and the session had ended when the parties faced off in court, effectively mooting many of the plaintiffs’ points.

“I think the court landed where it did because the rules we challenged had been updated throughout the legislative session,” said Pete Serrano, an attorney with the nonprofit Silent Majority Foundation that represented the legislators.

No appeal is planned.

“We feel good about the fact that the rules changed throughout the session,” he said. “We felt like we helped move the ball in those discussions. In the event it does occur again we’re well prepared to argue the issue.”

In September, the House Executive Rules Committee approved an operations plan for the fall months and 2022 session.

The four Democratic members — Speaker Laurie Jinkins and Reps. Pat Sullivan, Lillian Ortiz-Self and Monica Stonier — voted for it and the three Republican lawmakers — House Minority Leader J.T. Wilcox and Reps. Joel Kretz and Paul Harris — opposed.

The plan required lawmakers show proof of vaccination to be on the House floor and to access their legislative offices.

It also limited the number of lawmakers and staff allowed on the floor at any one time and restricted public access into the chamber and House facilities.

Sutherland and five colleagues sued the four Democratic House members, as well as Bernard Dean, the chief clerk of the House, who was responsible for carrying out the plan. Residents of each Republican lawmaker’s district were included as plaintiffs as they argued that, as a result of the rules, they were no longer properly represented in the Legislature.

The GOP lawmakers sought an injunction because “we thought the rules were unfair and violated our rights,” Sutherland said. “We didn’t get it.”

So they set out to “document the harm as it occurred” during the session, he said.

Sutherland, who was not vaccinated, said he kept track of committee meetings, hearings and votes he missed while working remotely, often due to “spotty internet service.” The information went to the court.

“We showed harm and we said we want to prevent it from happening in the future,” Sutherland said. “The courts made it impossible for us to get relief even though we could show the harm.”

Meanwhile, as the 60-day session wore on, COVID cases declined and the Executive Rules Committee eased restrictions to allow more members — vaccinated ones — onto the House floor. Access for the public eased as well.

The suit’s dismissal means the House “will maintain the ability to govern itself,” said Jinkins, D-Tacoma. “And when we have unexpected circumstances like a pandemic we will be able to figure out the best way to get the people’s work done.”

Operational rules will be reviewed again before the 2023 session.

Any requirements for members and staff will be developed based on public health data and the ability to keep people safe, Jinkins said.