As everyone expected, a lawsuit was filed on April 9, 2026, in Klickitat Superior Court challenging the unconstitutional income tax adopted this year in Washington. The lead attorneys are former state Attorney General Rob McKenna, a former Democratic state lawmaker and Supreme Court Justice Phil Talmadge, and Jackson Maynard of the Citizen Action Defense Fund.
Discussing the lawsuit, Rob McKenna said: “For nearly a century, Washington courts have been clear: income is property, and property taxes must be uniform and limited. This law disregards both the plain language of the constitution and decades of consistent Supreme Court precedent. We are confident the courts will strike it down.”
The legal brief opens by noting that the legislature and Gov. Bob Ferguson willfully defied numerous state supreme court rulings by imposing the income tax without a constitutional amendment: “Democratic constitutions delineate the structure of government and protect individual liberty. They prescribe and constrain the ways in which governments can act to the benefit of the citizenry. When these limits are transgressed, liberty suffers. Indeed, a branch of government that arrogates for itself power that a constitution has not conferred—even when based on perceptions of what, ‘in one instance, may be the instrument of good’—’is the customary weapon by which free governments are destroyed.’ Farewell Address (1796), in 35 The Writings of George Washington 229 (J. Fitzpatrick ed. 1940). This case is about what happens when the political branches openly defy the limits of their founding document as interpreted, for nearly a century, by their independent and coordinate branch of government.”
This is a simple case coming down to one question: Do Washingtonians own their income?
For nearly 100 years, the state supreme court has ruled that Washingtonians own their income, meaning it is property. This is why a graduated income tax (non-uniform and at more than 1% of value) requires a constitutional amendment.
The income tax in question is imposed at a rate of 9.9% and lacks uniformity by having a million-dollar exemption. Both these provisions fail the state constitution’s requirement for the tax treatment of property.
Here is how Washington’s constitution defines property: “The word ‘property’ as used herein shall mean and include everything, whether tangible or intangible, subject to ownership.”
This definition of property wasn’t part of the state’s original constitution but was instead added by 61% of voters in 1930. It is one of the broadest definitions of property in any state constitution.
Six prior times in the state’s history (1934, 1936, 1938, 1942, 1970, and 1973), the Washington Legislature understood that to follow the rule of law and comply with numerous state Supreme Court rulings, a constitutional amendment was required to impose a non-uniform income tax in excess of 1%. Though these constitutional amendments were all rejected by the voters, they were the proper way to try to impose an income tax.
Because nearly a century of legal precedent prohibits a graduated income tax, including a case as recent as 2019 (Seattle income tax), even income tax advocates expect to lose in the trial and appellate courts.
The Division One Court of Appeals said in that 2019 ruling: “In a series of decisions dating back to 1933, the Washington Supreme Court has unequivocally held income is property, a tax on income is a tax on property, taxes on property must be uniformly levied, and a graduated income tax is not uniform. Therefore, the Washington Constitution bars any graduated income tax.”
The state supreme court refused to hear that 2019 case and let the Division One ruling stand.
The Washington State Standard highlighted this comment from income tax sponsor Sen. Pedersen: “Pedersen, who is a lawyer, said not to be surprised when the superior court judge who gets the case rules the law is unconstitutional. Trial courts, he said, must follow Supreme Court precedents.”
Don’t expect this time to be any different than the numerous other income tax challenges. As the state supreme court noted in 1960, an income tax should be decided with a constitutional amendment: “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.”
As explained by Phil Talmadge: “This legislation is not a close call—it is a direct conflict with settled constitutional law. The Washington Supreme Court has repeatedly reaffirmed that graduated income taxes are unconstitutional. This lawsuit ensures those protections are upheld.”
Amen.
The state constitution’s definition of property hasn’t changed since 1930. Washingtonians owned their income then, and they still do today.
