A new legal analysis written for Washington Policy Center by respected former state Supreme Court Justice Phil Talmadge finds that, if passed by voters this November, Initiative 1098 would likely be ruled unconstitutional by the state Supreme Court.
Justice Talmadge was a state Supreme Court Justice from 1995-2001 and served as a Democratic member of the State Senate from 1979-1995, where he chaired the Judiciary and Health Care Committees. Talmadge wrote:
“The proponents of a graduated net income tax in Washington have vociferously argued that these older cases are no longer viable, because they allegedly rely on United States Supreme Court precedent that no longer finds that income-based taxes constitute taxes on property. This argument finds full flower in a 1993 law review article [by law professor Hugh Spitzer]. The essence of the argument advanced by Mr. Spitzer is found in the Context section of Initiative 1098.
However, since 1993, the Washington Supreme Court has been confronted with cases in which the continuing validity of the ‘income as property’ cases was questioned and has rejected the argument articulated in the Spitzer law review article.. . . Based upon this authority, it is likely the Washington Supreme Court would find the tax created by Initiative 1098 is a property, not an excise, tax.”
Seattle attorney Hugh Spitzer contends the 1933 Washington State Supreme Court decision was flawed and that the view of income as property is an antiquated one.
The bottom line is if I-1098 should pass in November, do not rush to the state Dept. of Revenue to get your new state income forms because this issue will be tied up in the courts for a long time.
Don C. Brunell, President, (DonB@awb.org)
