In a refreshing display of bipartisan cooperation, former Republican Washington State Attorney General Rob McKenna, former Democrat State Senator and State Supreme Court Justice Phil Talmadge, and Jackson Maynard Executive Director of the Citizen Action Defense Fund (CADF), joined forces to lead a high-profile lawsuit challenging the state’s newly enacted “millionaires’ tax.”
Filed on April 9, 2026, in Klickitat County Superior Court—the suit argues that the 9.9% income tax on high earners violates the Washington Constitution’s longstanding requirements for uniform taxation. This cross-aisle legal team, backed by the CADF and representing business owners, farmers, and small organizations, brings decades of combined experience and credibility that could signal a promising path forward for taxpayers seeking constitutional clarity.
The lawsuit targets Democrats’ SB 6346, which Governor Ferguson signed into law on March 30. The law imposes a 9.9% tax on “taxable income” above $1 million, effective January 1, 2028. Income at or below that threshold is taxed at 0%, and married couples share the $1 million threshold regardless of filing status.
“This was decided by the voters of Washington state when they enacted Amendment 14 to the Constitution in 1930,” said McKenna at Thursday’s press conference. “The express purpose of that amendment was to expand the definition of property to cover everything, whether tangible or intangible, subject to ownership. Every Supreme Court panel that’s looked at the question has reached the same conclusion. Income is subject to ownership. So, unless you think you don’t have an ownership interest in your income, you have to see that income, in fact, is part of property.”
Washington State’s Constitution requires that taxes on the same class of property be applied at a uniform rate (no graduated tax brackets based on amount).
The suit filing in Eastern WA offers grounds for optimism, as the case will be heard by a superior court judge in a region often more attuned to concerns over government overreach and economic burdens on residents and businesses.
McKenna served as WA AG from 2005 to 2013, winning his races by large margins (before the death grip of mail-in voting laws and ballot harvesting practices totally ravaged the state). Universal vote-by-mail was mandated statewide in 2011.
McKenna did not seek a third term as AG and ran for Governor in 2012, when Democrat Jay Inslee was selected by 94,557 votes (51.4% to 48.3%). Democrat King County Councilman Bob Ferguson (now governor) was selected in the 2012 AG election against Republican Reagan Dunn by 203,433 votes (53.5% to 46.5%).
Talmadge served as a WA State Senator for LD 34 (West Seattle) from 1979 to 1995 and as a State Supreme Court Justice from 1995 to 2001. In 2017, McKenna and Talmadge successfully collaborated to defeat an unconstitutional Seattle income tax, demonstrating their ability to win against leftist ideologies and navigate income tax constitutional arguments effectively.
Plaintiffs in the case include homebuilder Benjamin Petter and his wife Lauren Petter of Chelan County; farmer Robert Mercer and his wife Brenda Mercer, who own property in Klickitat and Benton counties; trucker Curt Nuccitelli and Beatrice Gasper of Kent; and four nonprofit businesses: the Ethnic Chamber of Commerce Coalition, Yakima Klickitat Farm Association, Building Industry Association of WA and the National Federation of Independent Business.
“For nearly a century, Washington courts have been clear: income is property, and property taxes must be uniform and limited,” said McKenna. “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.”
“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. I support the idea of tax reform in Washington, but the bottom line here is the Legislature has to enact this kind of change in the law by a constitutional amendment,” said Talmadge.
According to the complaint, Culliton v. Chase, 174 Wash. 363 (1933), struck down a graduated income tax, and subsequent rulings, including Jensen v. Henneford (1936), Power Inc. v. Huntley (1951), and Kunath v. City of Seattle (2019). The complaint also states that a graduated rate violates the uniformity requirement and that the 9.9% rate exceeds the 1% cap.
Voters have overwhelmingly rejected income tax proposals 10 times since 1934. Most recently, in 2010, a proposed tax on people earning more than $200,000 a year was easily defeated by a 64.15% to 35.85% statewide margin.
“The legislature chose not to do what all the other legislatures have done, which have wanted a graduated income tax, which was to send a constitutional amendment to the ballot to allow voters to decide,” Said Mckenna. “This legislature is doing everything it can to avoid giving the voters a say. They don’t want this issue to be in front of the voters.”
The lawsuit also has issue with the law’s “necessity clause,” declaring it necessary for the support of state government, which prevents a public referendum under Article II, Section 1(b) of the Constitution, pointing out the fact that the tax does not take effect until 2028 and revenue will not be collected until 2029.
The more people learn about the proposed income tax, the more they hate it.
Yesterday, it was disclosed in a Center Square interview that the WA Dept of Revenue is preparing to handle the administrative bureaucracy to collect the tax - and plans to hire more than 300 new government employees over the next few years, with the first to be hired this summer. Between employee government payroll and benefits and new office equipment and software, the state expects to spend more than $557 million by 2029.
“I think the amount of money and the number of people they’re hiring exposes exactly what we’ve been saying in that this is not designed to be a small, limited tax on a small number of people,” said Let’s Go WA Founder Brian Heywood. “This is putting in place the infrastructure to collect a broad-based income tax. There’s no doubt about that. Any of them that say they’re not doing it are just straight up lying to the public.”
The tax is expected to eventually expand beyond high earners and inevitably capture the middle class. Most everyone in WA may have to submit income tax forms and attach detailed financial disclosures to the DOR each year.
This tax would be devastating to the state’s economy: Here is an excellent video showing the math and explaining exactly how the income tax law will impact WA State: If 2,300 families subject to the income tax leave, the new unconstitutional WA state income tax will bring in less money to the state than before the tax…
Last week. Heywood and LGW announced that the State Supreme Court agreed to hear their state income tax referendum case, speeding up what is normally a lengthy legal process. “At the direction of the Court Commissioner, the emergency motion for accelerated review is granted as follows: Any answer to the petition for writ of mandamus should be served and filed by April 10, 2026. Any reply to any answer should be served and filed by April 14, 2026. The petition for writ of mandamus is referred to the Court for consideration at its April 30, 2026, en banc conference” (meaning the court will hear the case and should render a decision on LGW’s ability to run a referendum).
The court will review and rule on the proper interpretation of the state constitution’s referendum exemption language, specifically the “necessity clause” in section 1208 of ESSB 6346 (which declares the tax “necessary for the support of the state government and its existing public institutions”).
The referendum case is not a full constitutional challenge to whether the income tax itself is allowed under the state constitution. It is a narrow, procedural challenge focused on whether the Sec of State can refuse to process a referendum filing based on that clause — and whether the clause validly blocks voter review.
The hearing is good news for the remaining taxpayers still in the state. By granting the emergency motion for court review, the court has signaled its willingness to address the issue urgently. This fast-tracking is essential to follow the State Constitution Art. 2 Sec 1; The second power reserved by the people is the referendum, and to prevent unnecessary barriers to citizen-led initiatives.
If the court grants the petition, the Secretary must process the referendum, and signature collection could begin immediately. More info here and here.
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