Legal Brief: Seattle income tax is “subterfuge”

In preparation for the Seattle income tax trial the “Opportunity for All Coalition” represented by former Washington State Attorney General Rob McKenna, former Supreme Court Chief Justice Gerry Alexander, former Supreme Court Justice Phil Talmadge has filed its main legal brief. The brief’s introduction is a great summary of the situation:

“How did we arrive at a lawsuit over the City’s enactment of an Ordinance that levies a graduated tax on property that the City itself concedes is unconstitutional? The undisputed evidence is that members of the City Council have been coordinating with longtime income tax advocates, and working behind closed doors for at least 18 months to enact the Ordinance for the express purpose of drawing a constitutional challenge. Under their strategy, that legal challenge would give a ‘sympathetic’ Supreme Court the opportunity to overrule its prior decisions in CullitonJensen, and Huntley, which established that income is a class of property. This lawsuit is the culmination of a ‘local government’ strategy intended to open the door to the ‘progressive’ state-wide income tax Washington voters have rejected at least ten times.

This entire exercise is a misuse of judicial process and an affront to democracy. Five times the voters of Washington have been asked to amend the Constitution to allow a graduated income tax—essentially, to correct the allegedly mistaken rulings of Culliton and Jensen—and every time they have refused. There have been ten statewide votes against income taxes and, in 2016, the voters of the City of Olympia rejected a graduated income tax virtually identical to the one at issue here and promoted by the same affiliates of EOI. The proponents of this income tax do not trust democracy to choose the progressive tax they prefer, and so they ran this controversial measure through the City Council in a period of weeks without a vote of Seattle residents. That way, no opposition had time to organize to debunk their misleading public relations messaging that the City was taxing only its ‘wealthiest’ residents. The Plaintiffs in this lawsuit – some of whom are people of modest means who would be taxed on gains when they sell homes they’ve owned for decades, or their small businesses to fund retirement – tell a different story.

Make no mistake, the City’s motion asks this Court not only to overrule controlling precedent and ignore legislative intent, but also to substitute its own judgment for the will of the people, expressed on numerous occasions. The Court should refuse to do so. The Court should declare the City’s ordinance illegal and invalid because it was enacted without statutory authority and is contrary to state law prohibiting local income taxes. The Court should not reward certain City Councilmembers and income tax advocates for manipulating the machinery of local government and wasting City funds to achieve a statewide political agenda. Avoiding unnecessary constitutional questions by deciding this case on purely statutory grounds, which are open and shut, will avoid rewarding this subterfuge.”

The brief includes as evidence several of the public records I’ve received from Seattle. Perhaps that is why I suddenly received this email from the City on Friday:

“We need to revise our estimate for when we will provide the next set of records. We will have them to you by November 9, 2017. I apologize for any inconvenience.”

I was supposed to receive another batch of public records today.

Here are the next steps for the Seattle income tax lawsuit:

  • Seattle’s reply brief is due on November 1;
  • Plaintiffs’ response is due on November 10; and
  • the trial date is on November 17 at 10 a.m.

In the meantime, enjoy this pitch made by various state officials to Amazon for HQ2 that says: “Business-friendly environment – No personal income tax.”


Jason Mercier is the Director of the Center for Government Reform at Washington Policy Center and is based in the Tri-Cities. He serves on the boards of the Washington Coalition for Open Government and Candidate Verification, and was an advisor to the 2002 Washington State Tax Structure Committee. Jason is an ex-officio for the Tri-City Regional Chamber of Commerce.


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