AGO helped to craft a tax to not only overturn nearly a century’s worth of legal precedent banning a progressive income tax, but prevent voters from weighing in via a referendum

TJ Martinell
The Center Square Washington

Former State Attorney General Rob McKenna is criticizing the AGO’s involvement in crafting a millionaire’s tax specifically intended to not only overturn nearly a century’s worth of legal precedent banning a progressive income tax, but prevent voters from weighing in via a referendum.

“I had not seen before this week an example of the AG’s office actively collaborating with a legislative sponsor on how to draft a bill that could get the get the Constitution basically reinterpreted, and 95 years of precedent overturned,” McKenna, who is on the legal team fighting the tax, told The Center Square in an interview.

Earlier this week, The Center Square published an exclusive story regarding 988 pages of records that revealed the AGO and SB 6346 sponsor Sen. Jamie Pedersen, D-Seattle, collaborated on how to craft the bill so it would “force” the state Supreme Court to take up the question of whether individuals’ income is their property, which the state’s high court has concluded since 1933. As a result, a progressive income tax is illegal under the state constitution’s uniformity clause for property taxes based on their class.

“The reason we have an elected Attorney General in our state…is to have an independent officer and office that will defend the Constitution and the laws of the state,” McKenna said. “Getting into the role of strategizing with a legislator on how to get around the Constitution just isn’t right. It should not be done.”

McKenna was elected attorney general in 2004 and served until 2013; he was the 2012 Republican gubernatorial candidate and unsuccessfully ran against Jay Inslee. He is currently a partner with Orrick’s Seattle office and recently joined a lawsuit against the millionaire’s tax, along with former state Supreme Court Justice Phil Talmadge, filed by the Citizen Action Defense Fund.

“When we went over to talk to the legislature about proposed legislation that was unconstitutional or, you know, problematic, we would have a conversation with them behind closed doors and say, ‘Look, you got a problem'” he said. “This is why we think the problem is, for example, we think your bill violates the Constitution, and you know, you might want to rethink it, because it could invite a court challenge.’”

In contrast, he said he was surprised by the AGO communications with Pedersen that included an email from Solicitor General Noah Purcell advising to include an emergency clause in the bill to prevent a referendum.

“It is…just disappointing that legislative leaders and now the attorney general’s office seem to be working so hard to keep this issue away from the voters,” he said. “A bill that’s necessary for the support of state government doesn’t require an emergency clause to avoid a referendum challenge. That’s why the state budget cannot be subjected to a referendum when the budget passes. I was surprised that the Solicitor General either didn’t know that or didn’t acknowledge it.”

McKenna added that “there was something noticeably absent, I think, from the records….I didn’t see anyone saying, ‘Hey, this proposed income tax you want, Senator, can be constitutional. You just have to do what every legislature before you has done since 1933, which is to put the votes together for a constitutional amendment, then send that to the voters, and the voters can vote on it.’”

The first proposed constitutional amendment to specifically remove income as property as defined in the Washington Constitution’s 14th Amendment was rejected by voters in 1934. The 14th Amendment defines property as “all things tangible and intangible, subject to ownership.”

“Ownership is a hallmark of property,” McKenna said. “I’m waiting to hear the Solicitor General, the Attorney General, Governor, the legislative sponsors, explain why people don’t own their incomes, why they don’t have a property interest in their income. So that’s going to be very interesting.”

Brown’s staff did not immediately respond to a request for comment on McKenna’s statements.

This report was first published by The Center Square Washington.