This article originally appeared in The Detroit News November 5, 2024. 

Years ago, I learned an important lesson while litigating a public records case in Washington state.

Christine Gregoire, then-governor of Washington, claimed “executive privilege” when rejecting requests for records in her office. Unlike Michigan, this state has a public records law that applies to the governor.

Gregoire asserted executive privilege more than 500 times from 2007 to 2011, provoking a robust policy debate. Open government advocates, including the organization I worked for, argued that the Nixonian privilege was nowhere in the state constitution or the public records law. The governor, we argued, did not have the power to invent reasons to withhold records — she had to cite a reason spelled out in law.

Gregoire, on the other hand, argued that executive privilege was inherent in the state constitution and the separation of powers doctrine. She said the legislative branch could not order her to release privileged records.

The dispute eventually focused on six documents the governor refused to release, including documents about an aging elevated highway on the Seattle waterfront. My organization sued in 2011 to get the records.

The Washington attorney general appointed an experienced litigator to represent the governor. Off to court we went.

Trial court proceedings can be like a barroom brawl. Issues appear unexpectedly, deadlines are tight, and the lawyers haven’t refined their best arguments yet.

Even so, my opposing counsel and I put an immense amount of work, research and care into the early stage of the case. We assumed the case would go to the Washington Supreme Court — it did — and we wanted a solid foundation of argument. We wrote trial court briefs back and forth that were worthy of law review publication. I suppose no one in the state knew more about the history of executive privilege than the two of us.

At the end of one of the hearings, opposing counsel and I shook hands.

“I tried to go easy on you,” I joked. He smiled. “No, you didn’t,” he said. “That was good work.”

True, we had both done good work. But his compliment still surprised me. Here we were, on different sides of a blockbuster government accountability case. The rhetoric was heated. Newspapers across the state highlighted the case with coverage and editorials. Either outcome would shape public records law for years to come. But we treated each other with respect while doing the best possible job for our respective clients.

Respect is a voluntary exchange. You don’t build it by demanding it or criticizing the other person. Henry L. Stimson, who served presidents of both parties before retiring in 1945, said it well: “The only way you can make a man trustworthy is to trust him; and the surest way to make him untrustworthy is to distrust him and show your distrust.”

My legal adversary and I continued to litigate the case, all the way to the Washington Supreme Court, where the justices ruled in favor of the governor.

That loss still rankles me, though it had an unexpected benefit. The case drew so much attention that in the subsequent 2012 gubernatorial election, both candidates pledged to reject Gregoire’s practice and not conceal records by claiming executive privilege. Gov. Jay Inslee’s office confirmed that he has kept his pledge over three terms in office.

I never forgot my opponent’s example. Take a stand. Argue with passion. Don’t back down. And treat people on the other side of a debate with dignity and respect.

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