TCS exclusive leads to revised legal arguments in income tax referendum lawsuit

By TJ Martinell
The Center Square

Let’s Go Washington filed a supplemental brief to the state Supreme Court for its lawsuit to force a referendum on the millionaire’s tax that cited information The Center Square published in an exclusive story revealing Democrats’ internal communications about the bill.

Among records obtained under state open records laws was a Dec. 11 email sent to Sen. Jamie Pedersen, D-Seattle, regarding a draft bill that Pedersen specifically said was meant to overturn a 1933 State Supreme Court decision prohibiting a progressive income tax. That 1933 decision has been unanimously upheld by every state Supreme Court since.

Pedersen’s bill imposes a 9.9% tax on Washington state residents making $1 million or more annually.

The email sent by Solicitor General Noah Purcell noted that the draft bill did not contain an emergency clause, suggesting that it should be added to prevent a referendum.

“I did not see an emergency clause,” Purcell wrote. “Without one, someone could try to subject the bill to a referendum. It should not be subject to referendum because it raises revenue, but under the Secretary of State’s longstanding practice, they only reject proposed referenda if the bill has an emergency clause, so someone would have to sue to prevent a referendum on the bill as written. I just wanted to make sure you were aware of that.”

In its supplemental brief, Let’s Go Washington’s attorney argued that the email “carries factual weight the Court should consider,” because it affirms their legal case and contradicts that of the state.

“The State’s chief appellate lawyer, writing privately to the bill’s sponsor, described the ministerial rule as Petitioners describe it,” the supplemental brief states. “The State now defends a litigation position at odds with how its own senior appellate lawyer described the Secretary’s function, prior to any litigation.”

With the tax not taking effect until 2028 and revenue not collected until 2029, the supplemental brief also noted that “Purcell did not write to Senator Pedersen about the fiscal condition of the state. He did not describe programs that required immediate funding, services that would lapse, or institutions that would go unsupported during the 90-day period. He wrote about a single procedural risk — that “someone could try to subject the bill to a referendum” — and he proposed a procedural solution.”

In a press release statement, LGW spokesperson Hallie Herzberg slammed Attorney General Nick Brown’s staff and Pedersen for plotting to increase taxes despite voters repeatedly saying they do not support an income tax.

“The majority party’s disdain for the law and the Constitution has been on full display all session long, but this new development that the AG’s office took an active role in attempting to circumvent both the voters and the courts is especially troubling,” the news release said. “As Washington’s primary legal authority, the Attorney General has a fundamental obligation to serve both as the ‘people’s lawyer’ and to uphold the Constitution. We expect the State Supreme Court to fully recognize the seriousness of these communications between Senator Pedersen and the Solicitor General, and to consider the effort to weaponize the legal system against the people of Washington State.”

Brown’s staff and Pedersen have not responded to requests for comment from The Center Square about the records released.