On the first day of session, 15 Democratic lawmakers filed a brief to the state Supreme Court asking justices to overturn longstanding precedent that you own your income so that a graduated income tax could be imposed without a constitutional amendment. A few days later, the Washington State Insurance Commissioner filed a similar income tax brief. While responses to those briefs aren’t due until February 10, a legal response was filed yesterday to Seattle’s efforts to have the state Supreme Court consider this issue.

Here are some of the interesting points made by former Attorney General Rob McKenna, former Chief Justice Gerry Alexander, former Justice Phil Talmadge and the other attorneys for the plaintiffs. From their legal brief:  

• “There have also been numerous democratic challenges to Culliton at the voting booth, with Washington voters supporting Culliton on every ballot. Voters have rejected proposed graduated income taxes ten times in all. Of significance to the issue of stare decisis here, Washington voters have six times rejected proposed constitutional amendments to allow income taxation not subject to the property tax uniformity restriction. All were voted down resoundingly, with at least 64% opposition to every proposed amendment since 1940; the most recent was rejected by 77% of voters statewide. Washington voters have also definitively rejected four efforts to enact statewide income taxes by initiative, which supporters evidently hoped would have presented this Court an opportunity to reconsider Culliton. The most recent of these statewide votes was the 2010 rejection of Initiative 1098, which was opposed by 64% of voters. Despite all this, in the summer of 2017, Seattle passed a graduated income tax on ‘high-income residents.’”
   
• “Culliton’s rule of constitutional construction has been reaffirmed and ratified six times by the voters (ten times including votes on statewide income taxes). This history of voter ratification belies the City’s argument that Culliton must be overturned because it was either wrong when decided or is a relic of passing legal history. The voters have rejected the argument that lack of a graduated income tax is harmful. As a result, any amendment of the rule that income is property should come through the democratic process, not in response to EOI’s ‘income tax pathway’ designed to end-run Washington voters. This Court should reject Seattle’s cynical attempt to use this Court to implement radical change in longstanding statewide tax policy contrary to the will of the voters.”
   
• “Under current tax policies, Washington’s economy is thriving, and individuals and businesses throughout the state have made major decisions in reliance on the long-standing current system. The Washington State Department of Commerce touts the fact that Washington has no income taxes as a significant competitive advantage in its promotional materials to attract businesses and citizens to locate in Washington. The thriving economy over the past ten years has produced huge increases in state and local revenues; over a decade, annual state tax revenues grew 70% to more than $25 billion as of 2019.”
   
• “Ironically, even if this Court takes review it should never reach Culliton because the City is not statutorily authorized to enact a graduated income tax. If it accepts review, this Court will almost certainly affirm Division I, but for the narrower statutory reasons stated by the trial court. Culliton aside, Seattle lacks authority to enact an income tax at all.”

The legal brief concludes by saying:

“The substantial public interest is best served by declining to accept review of a case premised upon a single city’s state-wide political agenda. Recognizing that the citizens of Washington have affirmed the holding in Culliton time and again, tax activists have worked for years to pioneer a ‘local’ pathway that would open a ‘side door’ into this courthouse as an alternative route to amend the constitution. Now that the Constitution has been construed, and with full respect for the fact that the Court’s construction was repeatedly confirmed by the voters, if there is to be a constitutional change it too should occur by a vote of the people of Washington, in full consideration of the state-wide impacts of such a change.”

I remain hopeful the state Supreme Court will have the same response to this latest effort to change the constitution via the courts as it did in 1960 when issuing this unanimous one-page ruling:

"The argument is again pressed upon us that these cases were wrongly decided. The court is unwilling, however, to recede from the position announced in its repeated decisions. Among other things, the attorney general urges that the result should now be different because the state is confronted with a financial crisis. If so, the constitution may be amended by vote of the people. Such a constitutional amendment was rejected by popular vote in 1934."

In the meantime, we wait to see if the legislature plans to act on the bipartisan bills to reaffirm the state’s local income tax ban.