WA AG defends role in drafting millionaires’ tax legislation, pushes back on McKenna’s claims

In an interview on KIRO Newsradio, Attorney General Nick Brown stated he agrees with Washington State Senator Jamie Pedersen (D-Seattle) and other lawmakers that the Washington State Supreme Court’s 1933 ruling in Culliton v. Chase — which held that a state income tax was unconstitutional — was incorrect in its ruling.

“Yeah, we agreed that it was wrongly decided,” Brown said on “The Gee and Ursula Show.”

Washington’s millionaires’ tax (SB 6346), signed this year and taking effect in 2028, introduces a 9.9% tax specifically on annual taxable income exceeding $1 million per household.

Former Washington Attorney General Rob McKenna, who’s leading the legal challenge against the millionaires’ tax alongside former State Supreme Court Justice Phil Talmadge, argued earlier this week on KIRO Newsradio that Brown and the Attorney General’s Office overstepped its role by advising the legislature on this legal matter.

“As [legislators] were thinking about that piece of legislation, as well as other iterations of that same thing, we have to advise them of the risk, the likelihood of success, and the way that they might overcome what we believe is a wrongly decided decision. That’s what we do,” Brown said. “To put this in context, this is what every attorney general in the state and in the country does. We advise our clients. We do not have the option when they come to us seeking advice to simply tell them, ‘No, we can’t help you.'”

Brown argued that the Attorney General’s Office routinely provides legal advice to legislators, state agencies, and boards and commissions.

“For AG McKenna, whom I have a lot of respect for, it took us about five minutes to find cases where Rob McKenna had gone to court as Attorney General and advocated overturning a Supreme Court precedent on behalf of Washington State agencies, which means he talked to those agencies,” Brown said. “He and his team talked to those agencies about overturning a case that they argue was wrongly decided twice.”

Emergency clause for millionaires’ tax

The Center Square went through nearly 1,000 pages of records that revealed the Attorney General’s Office and Pedersen worked together on Senate Bill 6346, the legislation for the millionaires’ tax. Among the documents uncovered, McKenna cited the creation of an “emergency clause” within the bill, which would allow a law to take effect immediately and prevent voters from challenging it through a referendum.

McKenna noted that if lawmakers truly wanted a constitutional income tax, they should follow the legal path used since 1933: Pass a constitutional amendment and let the people of Washington decide.

“I want to talk a little bit about this emergency clause provision that Rob [McKenna] was talking about, because it is incorrect,” Brown said. “I don’t know if Rob is intentionally misleading people, or if he’s forgotten about some of the obligations that he had when he was attorney general, but a bill that has revenue, a law that raises revenue to support state government, is not subject to a referendum. Period. Whether or not it has an emergency clause.”

According to the Washington Policy Center, the state constitution grants the people the power to veto unwanted legislation through the use of a referendum, unless the bill includes an “emergency clause.” Referendum power “may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health, or safety, support of the state government and its existing public institutions.”

“So the conversation that we were having with our client, the legislature, about the use of the emergency clause was not about avoiding a referendum at all, because we know, and the advice is pretty clear, that whether or not it had emergency clauses was totally irrelevant to whether or not it would be subject to a referendum,” Brown continued. “So when I hear Rob McKenna misleading about that, and I’ve read some of the reporting that’s misleading about that, it’s frustrating to me, and that’s part of the reason that I wanted to be here today to talk about our role and our obligation. The other thing that I think is important to say is that Rob McKenna and other lawyers are getting paid to represent millionaires and corporations to get rid of the millionaire’s tax. They are getting paid literally thousands of dollars per hour to represent these people, to get rid of the millionaires’ tax. Rob McKenna’s hourly rate is about $1,600 an hour.”

The legislature has previously sent constitutional amendments to the ballot six times, and voters rejected them each time by wide margins — the last by a 77-23 margin. Four income tax initiatives have also been defeated.

“I always will trust Washington voters to make the decisions that they think are right for themselves in the people that they elect and the things that they support. My job in coming here today, and in general, is not to convince you that a tax on millionaires is a good thing or a bad thing,” Brown said. “I trust Washington voters to make up their own minds on this important issue. Secondly, we didn’t write the policy. We’re not involved in drafting the policy. We’re involved in helping the legislature analyze and draft it in the way that they want to draft it and understand some of the legal risk.”

Watch the full discussion in the video above.

Listen to Gee and Ursula on “The Gee and Ursula Show” weekday mornings from 9 am to 12 pm on KIRO Newsradio.