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SUPERIOR COURT OF WASHINGTON
FOR KING COUNTY

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S. MICHAEL KUNATH,

Plaintiff,

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v.
CITY OF SEATTLE,
and

ECONOMIC OPPORTUNITY
INSTITUTE,
Intervenor-Defendant.
SUZIE BURKE, et al.,

Plaintiff,

v.
CITY OF SEATTLE,

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Defendant,

Defendant.

DENA LEVINE, et al.,

Plaintiff,

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v.
CITY OF SEATTLE,

Defendant.

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SCOTT SHOCK, et al.,

Plaintiffs,

v.
CITY OF SEATTLE,

Defendant.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 1

No. 17-2-18848-4 SEA
ORDER ON PARTIES’
CROSS-MOTIONS FOR
SUMMARY JUDGMENT

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1.

Introduction

On November 17, 2107, this matter came before the court for oral arguments on the
following motions and cross-motions in this consolidated action:

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

Defendant City of Seattle’s Motion for Summary Judgment (Dkt. 47D).

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

Intervenor-Defendant Economic Opportunity Institute’s Motion for Summary
Judgment (Dkt. 47A)

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Plaintiff Kunath’s Cross-Motion for Summary Judgment (Dkt. 57)

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

Burke/Levine Plaintiffs’ Cross-Motion for Summary Judgment (Dkt. 56J)

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

Shock Plaintiffs’ Cross-Motion for Summary Judgment (Dkt. 56B)

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For the reasons explained below, the court will deny the Defendants’ Motions for
Summary Judgment and grant the Plaintiffs’ Motions for Summary Judgment.

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2.

Parties and Counsel

Plaintiff Kunath. Plaintiff S. Michael Kunath (“Kunath”) is represented by
Matthew F. Davis of Davis Leary.
Burke Plaintiffs. Plaintiffs Suzie Burke, Gene Burrus and Leah Burrus, Paige Davis,

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Faye Garneau, Kristi Dale Hoofman, Lewis M. Horowitz, Theresa Jones and Nigel Jones,

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Nick Lucio and Jessica Lucio, Linda R. Mitchell, Erika Kristina Nagy, Don Root, Lisa

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Sterritt and Brent Sterritt, and Norma Tsuboi (the “Burke Plaintiffs”) are represented by

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Scott M. Edwards and Ryan P. McBride of Lane Powell PC and David Dewhirst of The

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Freedom Foundation.

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Levine Plaintiffs. Plaintiffs Dena Levine, Christopher Rufo, Martin Tobias,

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Nicholas Kerr, Chris McKenzie, Alisa Artis, Lien Dang, Kerry Lebel, and Dorothy M. Sale

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(the “Levine Plaintiffs”), are represented by Robert M. McKenna, Daniel J. Dunne, Jr. and

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Adam Tabor of Orrick, Herrington & Sutcliffe LLP; Gerry L. Alexander of Bean, Gentry,

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Wheeler & Peternell, PLLC; and Philip A. Talmadge of Talmadge Fitzpatrick Tribe PLLC.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 2

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Shock Plaintiffs. Plaintiffs Scott Shock, Sally Oljar, Steve Davies and John Palmer
(the “Shock Plaintiffs”) are represented by Brian T. Hodges and Ethan W. Blevins of the
Pacific Legal Foundation.

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Defendant City of Seattle. Defendant City of Seattle (the “City”) is represented by
Seattle City Attorney Peter S. Holmes and Kent Meyer, Assistant City Attorney; Paul J.
Lawrence, Gregory J. Wong and Jamie L. Lisagor of Pacifica Law Group LLP; and Hugh D.
Spitzer.

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Defendant Economic Opportunity Institute. Defendant Economic Opportunity
Institute (“EOI”) is represented by Knoll Lowney and Claire E. Tonry of Smith & Lowney,
PLLC.

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Amicus Curiae Rental Housing Association of Washington. Amicus Curiae
Rental Housing Association of Washington (“RHA”) is represented by Katherine A. George
of Johnston George LLP.

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3.

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Documents Considered

The Court has considered the pleadings and other documents filed by the parties, and
in particular the following items, including their attachments, totaling approximately 1,200
pages:

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Pleadings By Defendant City of Seattle

Dkt. No.

Defendant City of Seattle’s Motion for Summary Judgment

47D

Declaration of Gregory J. Wong in Support of Defendant City of
Seattle’s Motion for Summary Judgment

47E

City of Seattle’s Combined Reply in support of Its Motion for Summary
Judgment and Opposition to Plaintiffs’ Cross-Motions for Summary
Judgment

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Second Declaration of Gregory J. Wong in Support of Defendant City
of Seattle’s Motion for Summary Judgment

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 3

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Pleadings By Defendant City of Seattle
City of Seattle’s Response to Amicus Curiae Memorandum of Rental
Housing Association of Washington

Dkt. No.
73

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Pleadings by Intervenor-Defendant Economic Opportunity Institute

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Intervenor-Defendant Economic Opportunity Institute’s Motion for
Summary Judgment

47A

Declaration of Claire Tonry in Support of Economic Opportunity
Institute’s Motion for Summary Judgment

47B

Economic Opportunity Institute’s Response and Reply on CrossMotions for Summary Judgment

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Economic Opportunity Institute’s Reply to Levine and Burke Plaintiffs’
Untimely Opposition Brief

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Dkt. No.

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Pleadings By Plaintiff Kunath

Dkt. No.

Kunath’s Response to Seattle Motion for Summary Judgment and
Cross-Motion for Summary Judgment

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Plaintiff Kunath’s Response to EOI’s Motion for Summary Judgment
and Cross-Motion for Summary Judgment

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Declaration of Matthew Davis in Opposition re: Motions for Summary
Judgment

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Kunath’s Reply to Seattle’s Response to Cross-Motion for Summary
Judgment

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Kunath’s Reply to Economic Opportunity Institute’s Response re:
Cross-Motion for Summary Judgment

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Declaration of Matthew F. Davis in Support of Reply on Cross-Motion
for Summary Judgment Against Economic Opportunity Institute

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Corrected Declaration of Matthew Davis in Opposition re: Motions for
Summary Judgment

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 4

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Pleadings By Burke/Levine Plaintiffs

Dkt. No.
56J

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[Burke/Levine] Plaintiffs’ Motion for Summary Judgment and
Opposition to City’s Motion for Summary Judgment

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Declaration of Christopher Rufo

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Declaration of Dorothy Sale

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Declaration of Martin Tobias

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Declaration of Nicholas Kerr

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Declaration of Dena Levine

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Declaration of Christopher McKenzie

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Declaration of Alisa Artis

56K

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Declaration of Lewis Horowitz

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Declaration of Jason Mercier

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Declaration of Adam Nolan Tabor

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Burke/Levine Plaintiffs’ Opposition to Economic Opportunity
Institute’s Motion for Summary Judgment

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Declaration of Daniel J. Dunne in Support of Burke/Levine Plaintiffs’
Opposition to Economic Opportunity Institute’s Motion for Summary
Judgment

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Burke/Levine Plaintiffs’ Reply in Support of Motion for Summary
Judgment

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Second Declaration of Adam Nolan Tabor in Support of [Burke/Levine]
Plaintiffs’ Motion for Summary Judgment

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Pleadings By Shock Plaintiffs

Dkt. No.

Shock Plaintiffs’ Response to Motions for Summary Judgment Filed by
the City and Defendant-Intervenor and Cross-Motion for Summary
Judgment

56B

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Shock Plaintiffs’ Reply in Support of Cross-Motion for Summary
Judgment

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 5

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Pleadings By Rental Housing Association of Washington

Dkt. No.

Amicus Curiae Memorandum of Rental Housing Association of
Washington

56E

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4.

Background

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A.

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On July 10, 2017, the Seattle City Council unanimously passed Council Bill 119002

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City’s Ordinance

(the “Bill”). The Bill’s title describes its purpose:
AN ORDINANCE imposing an income tax on high-income
residents; providing solutions for lowering the property tax burden
and the impact of other regressive taxes, replacing federal funding
potentially lost through federal budget cuts, providing public
services, including housing, education, and transit, and creating
green jobs and meeting carbon reduction goals, and adding a new
Chapter 5.65 to the Seattle Municipal Code.
Council Bill 119002, July 10, 2017 (Declaration of Gregory J. Wong in Support of
Defendant City of Seattle’s Motion for Summary Judgment, Ex. A (Dkt. 47E).
On July 14, 2017, Seattle Mayor Ed Murray signed the Bill, and it became Seattle
Ordinance No. 125339 (the “Ordinance”). The Ordinance is codified as Chapter 5.65 of the
Seattle Municipal Code and is entitled, “Chapter 5.65 - INCOME TAX ON HIGH-INCOME
RESIDENTS.” Ibid.
The Ordinance imposes an income tax on the “total income” of resident taxpayers
(with certain credits for income tax paid to another state or local government) as follows:
Resident taxpayers whose Internal Revenue Service
filing status was “single,” “head of household,”
qualifying widow(er) with dependent child,” or
“married filing separately” for the tax year,
including individuals making the election ins
subsection [SMC] 5.65.040.A.1, or a trust

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 6

Total income in the tax
year up to $250,000

0%

Amount of total income
in the tax year in excess
of $250,000

2.25%

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Resident taxpayers whose Internal Revenue Service
filing status was “married filing jointly” for the tax
year and not calculating total income based on
“married filing separately” status as provided for
under subsection [SMC] 5.65.040.A.1

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Total income in the tax
year up to $500,000

0%

Amount of total income
in the tax year in excess
of $500,000

2.25%

SMC 5.65.030.B. See also SMC 5.65.020 and SMC 5.65.060.
The term, “total income,” is defined at SMC 5.65.020.G:

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“Total income” means the amount reported as income before any
adjustments, deductions, or credits on a resident taxpayer’s United
States individual income tax return for the tax year, listed as “total
income” on line 22 of Internal Revenue Service Form 1040, “total
income” on line 15 of Internal Revenue Service Form 1040A,
“total income” on line 9 of Internal Revenue Service Form 1041,
or the equivalent on any form issued by the Internal Revenue
Service that is not reported on Schedule K-1 for a beneficiary.

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The City estimates that “[t]hose who would be subject to the [City’s income] tax

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have incomes in the top three percent of all Seattle households.” Declaration of Gregory J.

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Wong, Exhibit C, at 3 (“Seattle Income Tax Threshold Information Sheet,”) (Dkt. 47E).

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B.

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On July 14, 2017, the same day the Mayor signed the Ordinance, Plaintiff Kunath

Plaintiff Kunath’s Suit

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filed a Complaint for Declaratory Relief (Dkt. 1) On August 8, 2017, Plaintiff Kunath filed

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his First Amended Complaint (Dkt. 10) (the “Kunath Amended Complaint”).

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Plaintiff Kunath seeks a judgment declaring the Ordinance to be void on the
following grounds:


The Ordinance taxes “net income,” not “gross income,” and thus violates

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RCW 36.65.030, (which provides, “A county, city, or city-county shall not

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levy a tax on net income.”). Kunath Amended Complaint, at ¶¶ 10-36, 47-49,

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59.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 7

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

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XI, § 12 of the Washington Constitution (which prohibits cities from assessing

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taxes not authorized by the legislature). Id., at ¶¶ 10-36, 44-46, 60.

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others, and thus violates art. VII, § 1 of the Washington Constitution (which

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provides, in part, that “All taxes shall be uniform upon the same class of

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property within the territorial limits of the authority levying the tax…” Id.,

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at ¶¶ 37-40, 50-56, 61.

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at ¶¶ 41, 57-58, 62.
C.

Burke Plaintiffs’ Suit

On August 9, 2017, the Burke Plaintiffs filed a Complaint for Declaratory and
Injunctive Relief in in Case No. 17-2-21032-3. Later that same day, they filed an Amended
Complaint for Declaratory and Injunctive Relief (the “Burke Amended Complaint”) in that
case. On August 17, 2017, the court consolidated the Burke Plaintiffs’ suit with the Kunath
suit (Dkt. 16).
The Burke Plaintiffs seek a judgment declaring the Ordinance to be void and an
injunction preventing the City from enforcing the Ordinance on the following grounds:


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The Ordinance exceeds the City’s statutory taxing authority (Burke Amended
Complaint, at ¶¶ 2, 29(a)).



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The tax levied by the Ordinance exceeds one percent of the value of income
per year, in violation of art. VII, § 2 of the Washington Constitution. Id.,

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The tax levied by the Ordinance is a tax on “property” that “is not uniform”
because it imposes tax on the “property” of only some residents and not

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The Ordinance taxes “net income,” not “gross income,” and thus violates art.

The Ordinance violates the prohibition against net income taxes stated in
RCW 36.65.030. Id., at ¶¶ 3, 18-19, 29(b).

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The Ordinance “violates statutory limitations on Municipal gross income
taxes imposed by Ch. 35.102 RCW” because “the purposes to which the funds

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 8

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are dedicated … are not valid purposes for which municipalities are

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authorized to impose taxes.” Id., at ¶ 4; see also ¶ 5.

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authority granted to the city council by the people under the Charter of the

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City of Seattle, and, therefore, is invalid.” Id., at ¶ 32(a); ¶ 6; see also ¶¶ 6,

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31.

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disclosure of private affairs to the government.” Id., at ¶ 8; see also ¶ 35(a).

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Id., at ¶ 9; see also ¶¶ 20, 35(b).
D.

Levine Plaintiffs’ Suit

On August 9, 2017, the Levine Plaintiffs filed a Complaint for Declaratory and
Injunctive Relief in in Case No. 17-2-21076-5. On August 17, 2017, the court consolidated
the Burke Plaintiffs’ suit with the Kunath suit (Dkt. 16). On August 31, 2017, the Levine
Plaintiffs filed their First Amended Complaint for Declaratory and Injunctive Relief (the
“Levine Amended Complaint”) in this consolidated case (Dkt. 26).
The Levine Plaintiffs seek a judgment declaring the Ordinance to be void and an
injunction preventing the City from enforcing the Ordinance on the following grounds:
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“The Legislature has not authorized [the City] to tax personal income, and has
not specifically authorized [the City] to tax “total income” in particular.”

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The Ordinance “imposes an unconstitutional non-uniform tax in violation of
the Uniformity Clause, art. VII, Section 1 of the Washington Constitution.”

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The Ordinance “violates the privacy rights of Washington Citizens under art.
I, Section 7 of the Washington Constitution because [it compels] the

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The Ordinance “was enacted without a vote of the people exceeding the

Levine Amended Complaint, at ¶ 56; see also ¶¶ 53-55)
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“[T]he Legislature prohibits [the City] from taxing personal income” pursuant
to RCW 36.65.030. Id., at ¶ 57.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 9

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confer the power to tax personal income on the City [and the] City has not

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placed a Charter Amendment before the voters of Seattle that would empower

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it to tax income.” Id., at ¶ 58.

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Id., at ¶ 59.
E.

Shock Plaintiff’s Suit

On August 30, 2017, the Shock Plaintiffs filed a Complaint for Declaratory and
Injunctive Relief in in Case No. 17-2-22917-2 (the “Shock Complaint”). On November 13,
2107, the court consolidated the Shock Plaintiffs’ suit with the Kunath suit (Dkt. 77).
The Shock Plaintiffs seek a summary judgment declaring the Ordinance to be void
and an injunction preventing the City from enforcing the Ordinance on the following
grounds:
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The Ordinance exceeds the City’s statutory taxing authority. Id., at ¶¶ 33-36 .

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“The City Charter does not grant the City the authority to levy a tax on
income.” Id., at ¶¶ 37.

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“The Ordinance does not impose the tax at a uniform tax rate as required by
art. VII, Section 1 of the Washington State Constitution.” Id., at ¶¶ 21; see

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The Ordinance impermissibly imposes a tax on “net income” in violation of
RCW 36.65.030.” Shock Complaint, at ¶ 20; see also ¶¶ 35-36.

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The Ordinance “imposes a non-uniform tax on personal income” in violation
of the Uniformity Clause, art. VII, Section 1 of the Washington Constitution.

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“Seattle lacks the power to tax income under the City Charter, which does not

also ¶¶ 22, 42-43.
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The Ordinance violates the Equal Protection Clauses of the Fourteenth
Amendment to the U.S. Constitution and art. I, Section 12 of the Washington
State Constitution. Id., at ¶¶ 49-50.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 10

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F.

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By order dated September 20, 2017, the court allowed EOI to intervene as an

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Defendant-Intervenor Economic Opportunity Institute’s Suit

additional Defendant in this case.

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On September 21, 2017, EOI filed a Complaint in Intervention (Dkt. 47) (“EOI’s

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Complaint”), requesting the court to issue a judgment declaring that “RCW 36.65.030 is

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unconstitutional and void and that the [Ordinance] is valid.” EOI’s Complaint, at ¶ 2.

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EOI argues that RCW 36.65.030 violates art. II, § 19 of the Washington Constitution,

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which prohibits legislative bills from addressing more than one subject (the “Single-Subject

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Rule”) and from having a subject that is not expressed in the title of the bill (the “Subject-in-

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Title Rule”). Id., at ¶¶ 46-48.

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5.

Parties’ Cross Motions for Summary Judgment

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A.

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The City urges the court to issue a declaratory judgment upholding the Ordinance.

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Defendant City’s Motion

The City argues:
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RCW 36.65.030 (which prohibits taxes on net income) is inapplicable to the

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Ordinance because the Ordinance taxes “total income,” a figure derived from

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resident taxpayers’ federal personal income tax returns.

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The Ordinance, despite its title describing the tax as an “income tax,” actually

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imposes an “excise tax” that the City is authorized to impose pursuant to

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RCW 35A.82.020 and RCW 35.22.280(32).

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Regardless of how the tax is labeled, the City is authorized to impose it

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pursuant to RCW 35A.11.020, a 2007 statute that provides that “Within

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constitutional limitations … [the City has] all powers of taxation for local

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purposes.”

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It is time to reverse a long line of Washington Supreme Court decisions, all of
which hold that income taxes are “property taxes” and thus subject to the

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 11

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“uniformity” restrictions that art. VII, § 1 of the Washington Constitution

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applies to property taxes.
B.

Defendant EOI’s Motion

Intervenor-Defendant Economic Opportunity Institute (“EOI”) echoes the City’s
arguments, and additionally urges the court to conclude that even if RCW 36.65.030
otherwise would be applicable to the Ordinance, violates art. II, § 19 of the Washington
Constitution because it violates the “Single-Title Rule” and the “Subject-in-Title Rule.”
C.

Plaintiffs’ Cross-Motions

In their cross-motions, the Plaintiffs generally oppose each of the Defendants’ legal
arguments summarized above, and they urge the court to issue a declaratory judgment in
their favor, invalidating the Ordinance.

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6.
A.

Discussion

Summary Judgment Standard

Summary judgment is appropriate if no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Dean v. Fishing Co. of Alaska, 177
Wn.2d 399, 405, 300 P.3d 815 (2013). When determining whether summary judgment is
appropriate, the court must consider the facts and all reasonable inferences from those facts
in the light most favorable to the nonmoving party. Shoffner v. State, 172 Wn.App. 866,
871–72, 294 P.3d 739 (2013).
All parties agree that there is no dispute of any material fact and that the court may
rule on the parties’ cross-motions for summary judgment. The court has considered all
admissible evidence included in the approximately 1,200 pages of materials submitted by the
parties and the court has disregarded any inadmissible evidence.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 12

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B.

Legislature Must Expressly Delegate
Specific Taxing Authority to Municipalities

The City argues that its personal income tax is “within the taxing authority delegated
by the state” (City’s Motion, at 2), citing to the Washington Constitution, art. VII, § 9, which
provides that “[f]or all corporate purposes, all municipal corporations may be vested with
authority to assess and collect taxes;” and art. XI, § 12, which authorizes the Legislature to
grant municipalities the power to levy taxes for “county, city, town, or other municipal
purposes;” Id., at 5-8.
In Watson v. City of Seattle, 189 Wn.2d 149, 401 P.3d 1 (2017), the Washington
Supreme Court summarized the limitations on the taxing authority of municipalities:
The Washington State Constitution generally vests taxing power in
the state legislature. See WASH. CONST. art. I, § 1. Municipal
corporations have no inherent power to tax. See Arborwood Idaho,
LLC, 151 Wn.2d [359] at 365-66, 89 P.3d 217 (2004); 16
EUGENE MCQUILLIN, THE LAW OF MUNICIPAL
CORPORATIONS § 44.5 (3d ed. 2013). … [A]rticle VII permits
the legislature to delegate tax powers to cities and towns. See
WASH. CONST. art. VII, § 9 (“For all corporate purposes, all
municipal corporations may be vested with authority to assess and
collect taxes.”). …
189 Wn.2d at 165, 401 P.3d 1. See also Washington Constitution art. XI, § 12 (“[T]he
legislature may, by general laws, vest in the corporate authorities [of counties, cities, towns,
or other municipal corporations] the power to assess and collect taxes for such purposes.”
[Emphasis added]).
These constitutional provisions are not self-executing. In King County v. City of
Algona, 101 Wn.2d 789, 791, 681 P.2d 1281 (1984), the Washington Supreme Court stated,
“We have consistently held that municipalities must have express authority, either
constitutional or legislative, to levy taxes.” [Emphasis added]. See also Arborwood Idaho
LLC v. City of Kennewick, 151 Wn.2d 359, 366, 89 P.3d 217 (2004); Rivett v. City of
Tacoma, 123 Wn.2d 573, 584, 870 P.2d 299 (1994) (“It is clear that neither cities nor

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 13

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counties may levy taxes which have not been expressly authorized by the Legislature. It is
also clear that neither the broad police powers nor any other general grant of power to cities
and counties encompass the power to tax.”).
Unless the City can identify a statute that specifically authorizes it to impose the type
of tax described in the Ordinance, the Ordinance cannot withstand the Plaintiffs’ challenge.
C.

The City’s Income Tax is Not an “Excise Tax”
Authorized by RCW 35.22.280(32) and RCW 35A.82.020

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Despite the fact that the Ordinance is entitled, “Income Tax on High-Income

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Residents,” the City characterizes its tax as excise tax that the Legislature has authorized by

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reason of RCW 35.22.280(32) and/or RCW 35A.82.020. City’s Motion, at 20-21 (Dkt.

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47D); City’s Reply, at pp 27-29.

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An excise tax is a tax that is imposed on a taxpayer for voluntarily exercising a

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certain right or privilege. Tesoro Refining and Marketing Co. v. State Dept. of Revenue, 135

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Wn.App. 411, 418, 144 P.3d 368 (2006).

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RCW 35.22.280(32) allows a city to impose an excise tax for the privilege of being
licensed to do business in the city:
Any city of the first class shall have power:
***
(32) To grant licenses for any lawful purpose, and to fix by
ordinance the amount to be paid therefor, and to provide for
revoking the same. However, no license shall be granted to
continue for longer than one year from the date thereof. A city may
not require a business to be licensed based solely upon registration
under or compliance with the streamlined sales and use tax
agreement.
RCW 35A.82.020 provides that a city may issue business licenses for up to one year
at a time for purposes of “regulation or revenue:”
A code city may exercise the authority authorized by general law
for any class of city to license and revoke the same for cause, to
regulate, make inspections and to impose excises for regulation or

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FOR SUMMARY JUDGMENT – 14

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revenue in regard to all places and kinds of business, production,
commerce, entertainment, exhibition, and upon all occupations,
trades and professions and any other lawful activity…
No such license shall be granted to continue for longer than a
period of one year.

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The City asserts that Seattle residents enjoy a taxable “privilege,” and it argues that

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RCW 35.22.280(32) and RCW 35A.82.020 authorize the tax that the Ordinance imposes –

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namely, an annual license fee (excise tax) upon high-income residents based on those

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residents’ “total income.”

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The City offers alternate descriptions of the “privilege” that it is taxing. Initially, the

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City argues that “The Ordinance imposes ‘excises for … revenue … upon [the] lawful

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activity’ of resident taxpayers’ receipt of income within Seattle.” City’s Motion, at 21.

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To the extent that the Ordinance purports to impose a tax on the “privilege” of

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receiving pay for labor, such a “privilege” is not a valid basis for an excise tax. See Cary v.

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City of Bellingham, 41 Wn.2d 468, 250 P.2d 114 (1952) [Held, city’s purported “excise tax”

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on the “right to earn a living by working for wages is not a ‘substantive privilege’ permitted

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by the state. It is … one of those inalienable rights … secured to all … by the liberty,

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property, and happiness clauses of the national and state Constitutions.”]; see also Jensen v

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Henneford, 185 Wash. 209, 217-219 (1936) [rejecting the Washington State Tax

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Commission’s argument that the “Personal Net Income Tax Act of 1935” could be

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characterized as an excise tax on “the privilege of receiving income.”].

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In its reply brief, the City puts forth an alternate argument, that “[c]hoosing to live in

22

Seattle is a ‘lawful activity’ that is subject to the City’s excise tax authority” (City’s Reply,

23

at 28 (Dkt. 67)); and that

24
25
26

[t]he tax is on the benefit of taking advantage of the city’s
protections by being a Seattle resident (the incident), imposed on
personal total income above the thresholds (the measure), at a rate
of 2.25% for any amount over the threshold (the rate).

27
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 15

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8

Id., at 29.
The court disagrees. Although RCW 35.22.280(32) grants the City broad authority to
impose excise taxes on businesses for the privilege of doing business within city limits,
Watson v. City of Seattle, 189 Wn.2d 149, 170, 401 P.3d 1 (2017), the City’s right to impose
excise taxes under that statute may be levied only “upon the right to do business, not upon
the right to exist…” Id., at 168, 401 P.3d 1 (2017), citing Pac. Tel. &Tel. Co., 172 Wash.649,
654, 21 P.2d 721 (1933). The court agrees with the Burke/Levine Plaintiffs’ response to the
City’s argument:

9

[T]he right to live in the City and earn a livelihood does not
constitute a voluntary or privileged activity for which an individual
must obtain a license, nor is there any activity the city revokes if an
individual fails to pay; violators are not banished, fired from the
jobs or required to forfeit income. Margola Assocs. v. City of
Seattle, [121 Wn.2d 625,] 641[, 854 P.2d 23 (1993)] (“violation of
a traditional licensing ordinance leads to a revocation of the license
and a cessation of the licensed activity”). RCW 35.22.280(32)’s
licensing authority does not apply, because the City cannot license
the right to live in the City.

10
11
12
13
14
15
16
17
18
19

Burke/Levine’s Motion, at 17 (Dkt. 56J).
In short, the City’s tax, which is labeled, “Income Tax,” is exactly that. It cannot be
restyled as an “excise tax” on the alternate “privileges” of receiving revenue in Seattle or
choosing to live in Seattle.

20

D.

21

The City argues RCW 35A.11.020 authorizes it to impose the tax described in the

22
23
24
25

RCW 35A.11.020 Does Not Authorize the City’s Tax
as an Income Tax or as a “Sui Generis” Tax

Ordinance. That statute provides, in relevant part:
Within constitutional limitations, legislative bodies of code cities
shall have within their territorial limits all powers of taxation for
local purposes except those which are expressly preempted by the
state as provided in [certain statutes referring to liquor, motor fuel
excise, and insurance premiums, none of which is relevant here].

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 16

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This general description of code cities’ taxing power does not by itself authorize any
particular type of tax. In King County v City of Algona, 101 Wn.2d 789, 681 P.2d 1281
(1984), the Washington Supreme Court rejected the City of Algona’s claim that
RCW 35A.11.020’s “general grant of taxing power” gave it the authority to levy a tax on
another municipality. The court stated:
The general grant of taxation power on which Algona relies in
RCW 35A.11.020 contains no express authority to levy a tax on
the state or another municipality. To allow the City to impose the
tax in this case would violate the established rule that
municipalities must have specific legislative authority to levy a
particular tax. Citizens for Financially Responsible Gov’t v.
Spokane, [99 Wn.2d 339, 343, 662 P.2d 845 (1983)]; Hillis
Homes, Inc. v. Snohomish Cy., [97 Wn.2d 804, 809, 650 p.2d 193
(1982)]. [Emphasis in original]

12

101 Wn.2d 789, 793, 681 P.2d 1281; see also City of Port Angeles v. Our Water-Our

13

Choice!, 170 Wn.2d 1, 14 n.7, 239 P.3d 589 (2010).

14

Citing an out-of-state case and two scholarly articles, the City argues that its income

15

tax “also could be appropriately characterized as sui generis, for which the legislature has

16

also granted the city authority.” City’s Motion, at p. 21 (Dkt. 47D); see also City’s Reply, at

17

32-34 (Dkt. 67). Regardless of what label one may choose in classifying the City’s tax, the

18

requirement remains that the Legislature must specifically authorize the tax. The City has

19

not identified any specific statutory authorization for its tax.

20

To summarize, the general grant of taxing power recited in RCW 35A.11.020,

21

standing alone, confers no specific authority on the City to impose any tax, let alone the

22

specific authority to impose an income tax or a “sui generis” tax. Moreover, whatever effect

23

RCW 35A.11.020 otherwise might have in this case is overridden by RCW 36.65.030’s

24

prohibition on net income taxes, discussed immediately below.

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 17

 1

E.

2

In 1984, the Legislature passed Substitute Senate Bill No. 4313, which was approved

RCW 36.65.030 Prohibits the City’s Tax on Net Income

3

by the Governor and codified as RCW 36.65.030. The statute provides, “A county, city, or

4

city-county shall not levy a tax on net income.” The applicability of this statute in this case

5

turns on the definition of “net income.”

6

In interpreting RCW 36.65.030, the court first must attempt to discern the statute’s

7

“plain meaning.” If a term in the statute is undefined, then the court may look to standard

8

dictionary definitions to determine the term’s plain and ordinary meaning. State v. Watson,

9

146 Wn.2d 947, 954, 51 P.3d 66 (2002); Audit & Adjustment Co. v. Earl, 165 Wn.App. 497,

10
11

502-503, 267 P.3d 441 (2011).
The City relies on Black’s Law Dictionary’s definition of “net income” (“[t]otal

12

income from all sources minus deductions, exemptions, and other tax reductions.” [Black’s

13

Law Dictionary (10th ed. 2014]). City’s Motion, at 7 (Dkt. 47D).

14

The City also relies on the Webster’s Dictionary definition of “net income” ( “the

15

balance of gross income remaining after deducting related costs and expenses [usually] for a

16

given period and losses allocable to the period.” [Webster’s Third New Int’l Dict. 1520

17

(1993]). Id.

18

The City additionally cites to the Audit & Adjustment Co. v. Earl case, in which the

19

court treated “net earnings” and “net income” as equivalent terms, based on Black’s Law

20

Dictionary and Webster’s Dictionary:

21
22
23
24
25

The ordinary meaning of “earnings” is “the balance of revenue for
a specific period that remains after deducting related costs and
expenses incurred—compare profit.” Webster's Third New Int'l
Dictionary, at 714 (2002). “Net earnings” is equivalent to “net
income” and means “the balance of gross income remaining after
deducting related costs and expenses [usually] for a given period
and losses allocable to the period.” Webster's, supra, at 1520; see
also Black's Law Dictionary, at 832, 1139 (9th ed. 2009).
[Emphasis added]

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 18

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Audit & Adjustment Co. v. Earl, 165 Wn.App. at 503, 267 P.3d 441 (2011); see also City’s
Motion, at 5-6 (Dkt. 47D).
Plaintiff Kunath quotes the edition of Black’s Law Dictionary that was current in
1984, when RCW 36.65.030 was enacted:
Net Income. Income subject to taxation after allowable deductions
and exemptions have been subtracted from gross or total income.
The excess of all revenues and gains for a period over all expenses
and losses of the period.
Net income for income tax purposes is what remains out of gross
income after subtracting ordinary and necessary expenses
incurred in efforts to obtain or to keep it. Walling’s Estate v.
Commissioner of Internal Revenue, C.A.Pa, 373 F.2d 190, 193.
[Emphasis added]
Corrected Declaration of Matthew Davis in Opposition re: Motions for Summary Judgment,
Ex. 8 (Dkt. 78) (quoting Black’s Law Dictionary, Special Deluxe Fifth Edition (1979)); see
also Kunath Motion, at 4-8 (Dkt. 57).
The Levine/Burke Plaintiffs quote the Multistate Tax Compact, adopted by the
Washington Legislature as part of Chapter 82.56 RCW. That statute defines “income tax” as
a tax that inherently requires a netting process:
4. "Income tax" means a tax imposed on or measured by net
income including any tax imposed on or measured by an amount
arrived at by deducting expenses from gross income, one or more
forms of which expenses are not specifically and directly related to
particular transactions. [Emphasis added]
RCW 82.56.010(4); Burke/Levine Motion, at 21 (Dkt. 56J).
Regardless of which of these definitions one uses, the conclusion is the same: the
City’s income tax is a tax on net income.
The City disagrees, and argues that its income tax instead is imposed on “total
income,” which SMC 5.65.020.G defines as the amount
reported as income before any adjustments, deductions, or credits
on a resident taxpayer’s United States individual income tax return

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 19

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for the tax year, listed as “total income” on line 22 of Internal
Revenue Service Form 1040, “total income” on line 15 of Internal
Revenue Service Form 1040A, “total income” on line 9 of Internal
Revenue Service Form 1041, or the equivalent on any form issued
by the Internal Revenue Service that is not reported on Schedule
K-1 for a beneficiary.

2
3
4
5

City’s Motion, at 6-7 (Dkt. 47D). Although the amount is labeled “total income” on the

6

respective IRS forms, it is not a gross figure, but rather a net figure, because it is the sum of

7

net figures.

8

Stated another way, the “total income” figure on each IRS form is a sum comprising

9

several income sources, each of which is listed on that form, and each of which is determined

10

after deduction of allowable expenses and losses related to that income source, including net

11

income from pass-through business entities, sole proprietorships, and disregarded entities; net

12

capital gain income; net rental income; and net royalty income.

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The City concedes that the “total income” amount comprises net figures, but argues
that
although netting occurs, the netting only reflects that the taxpayer
pays personal income taxes solely on actual profits, dividends, or
other gain received. And the City taxes that total amount of such
profits, dividends, or other gain as income without deductions or
exemptions.
City’s Motion, at 8. This argument does not change the fact that the sum of several net
figures necessarily is a net figure. Additionally, although the lines below line 22 of Form
1040 allow a taxpayer to subtract additional deductions and credits and make other
adjustments, that does not change the fact that the figure on line 22 is already a net amount.
The City cites to the Audit & Adjustment Co. case in support of its argument that
“total personal income” may be analogous to “net proceeds” from a transaction, and so
cannot be considered “net income.” City’s Motion, at 8, citing Audit & Adjustment Co. v.
Earl, 165 Wn.App., at 503, 267 P.3d 441 (2011). In that case, the court distinguished

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 20

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2
3
4
5

between the term “net income” (“‘the balance of gross income remaining after deducting
related costs and expenses [usually] for a given period and losses allocable to the period.’”
[quoting Black’s Law Dictionary, 9th ed., at 832, 1139 (9th ed. 2009)], versus “net proceeds”
(“‘[t]he amount received in a transaction minus the costs of the transaction (such as expenses
and commissions).’” [citing Black’s, supra, at 1325].

6
7
8

The City’s argument is not persuasive. Although it is true that “net proceeds” is not
synonymous with “net income,” a “total income” figure that includes “net proceeds”
necessarily reflects the result of a netting process, and thus is “net income.”

9

In sum, the court concludes that the City’s Ordinance imposes a tax on net income.

10

F.

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13
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In its Motion for Summary Judgment, Intervenor-Defendant EOI repeats the
arguments raised by the City, and additionally requests the court to grant a judgment
declaring that the Ordinance “is not prohibited by RCW 36.65.030, and that RCW 36.65.030
is unconstitutional and void.” EOI’s Motion, at 2 (Dkt. 47A).

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26

RCW 36.65.030 Does Not Violate Washington Constitution Art. II § 19

EOI argues that RCW 36.65.030 violates article II, § 19 of the Washington
Constitution because it violates Single-Subject Rule and the Subject-in-Title Rule. For the
reasons explained below, the court concludes that RCW 36.65.030 does not violate those
rules.
1.

Washington Constitution Article II, § 19

Article II, § 19 of the Washington Constitution provides, “No bill shall embrace more
than one subject, and that shall be expressed in the title.” This provision is to be liberally
construed in favor of legislation. Amalgamated Transit Union Local 587 v. State, 142
Wash.2d 183, 206, 11 P.3d 762, 27 P.3d 608 (2000); Wash. Fed’n of State Emps. v. State ,
127 Wash.2d 544, 555, 901 P.2d 1028 (1995). However, the Supreme Court has held that
“when laws are enacted in violation of this constitutional mandate, the courts will not hesitate
to declare them void.” State ex rel. Wash. Toll Bridge Auth. v. Yelle, 32 Wash.2d 13, 24, 200

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 21

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P.2d 467 (1948). See Washington Ass’n for Substance Abuse and Violence Prevention v.
State, 174 Wn.2d 642, 654, 278 P.3d 632 (2012).
The purposes of art. II § 19 are to prevent “logrolling,” or pushing legislation through
by attaching it to other necessary or desirable legislation; and to assure that the members of
the Legislature and the public are generally aware of what is contained in new laws. Lee v.
State, 185 Wn.2d 608, 620, 374 P.3d 157 (2016); Patrice v. Murphy, 136 Wn.2d 845, 854855, 966 P.2d 1271 (1998).
The court must presume that RCW 36.65.030 is constitutional unless EOI proves
beyond a reasonable doubt that the statute is unconstitutional. In re Welfare of A.W., 182
Wn.2d 689, 701, 344 P.3d 1186 (2015); Island County v. State, 135 Wn.2d 141, 147, 955
P.2d 377 (1998).
2.

RCW 36.65.030 Does Not Violate the Single-Subject Rule

EOI argues that RCW 36.65.030 violates the Single Subject Rule. EOI Motion, at
8-12 (Dkt. 47A). EOI urges the court to look at the title that the Code Reviser gave to the act
after it was signed by the Governor, which is “Combined City and County Municipal
Corporations.” Chap. 36.65 RCW. EOI argues that RCW 36.65.030 violates the SingleSubject Rule because it includes a restriction upon cities and counties in a chapter of the
Revised Code that concerns only combined city and county municipal corporations. The
court disagrees for the reasons explained below.
The first step in applying the Single Subject Rule is determining whether a bill’s title
is general or restrictive. “A restrictive title ‘is one where a particular part of branch of a
subject is carved out and selected as the subject of the legislation.’” State v. Broadaway, 133
Wn.2d 118, 127, 942 P.2d 363 (1997). If a title is general, the court must determine whether
there is “a rational unity between the operative provisions themselves as well as the general
topic.” Lee v. State, 185 Wn.2d at 620-621, 374 P.3d 157. “Rational unity exists when the
matters within the body of the [legislation] are germane to the general title and to one

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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 22

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another.” Filo Foods, LLC v. City of SeaTac, 183 Wn.2d 70, 782-783, 357 P.3d 1040 (2015).
If the title is restrictive, it “limits the scope of the act to that expressed in the title.” State v.
Broadaway, 133 Wn.2d at 127, 942 P.2d 363.
In Mount Spokane Skiing Corp. v. Spokane County, 86 Wn.App. 165, 181-183, 936
P.2d 1148 (1997), the court concluded that the title, “AN ACT Relating to local government:
amending RCW 35.21.730, 35.21.756 … 35.21.755 … and repealing RCW 35.21.725” was a
general title. The court explained:
It is well established that the title of an act need not be an index to
the contents, nor express every detail contained therein. Rourke v.
Department of Labor & Indus., 41 Wn.2d 310, 312, 249 P.2d 236
(1952). The test of sufficiency is whether the title gives notice of
its object so as to lead to a reasonable inquiry of the content. State
v. Lounsbery, 74 Wn.2d 659, 664, 445 P.2d 1017 (1968). “All that
is required is that there be some ‘rational unity’ between the
general subject and the incidental subdivisions. If this nexus can be
found, the act will survive the light of constitutional inspection.”
Kueckelhan v. Federal Old Line Ins. Co., 69 Wn.2d 392, 403, 418
P.2d 443 (1966). The Laws of 1985, ch. 332 describe the
legislation as relating to local government. While the subdivisions
within the act deal with different aspects of the power of local
government, all sections relate to the general subject matter of
local government as it pertains to cities and towns. Because the
contents of the bill are encompassed within the general subject
matter of the title, the act does not violate the prohibition against
multiple subjects. RCW 35.21.730 is constitutional
86 Wn.App. at 182-183, 936 P.2d 1148.
Here, Substitute Senate Bill 4313 was the 1984 legislative bill that included what later
was codified as RCW 36.65.030. Declaration of Daniel J. Dunne, Ex. A (Dkt. 71); see also
Declaration of Matthew Davis, Ex. 16 (Dkt. 78). The title of SSB 4313 is, “AN ACT
Relating to local government; and adding a new chapter to Title 36 RCW.” The court must
consider this title, rather than the chapter title that the Code Reviser added later, because the
title of the bill is what the legislators saw and relied upon when they voted on the bill. See
Zenner v. Graham, 34 Wash. 81, 83, 74 Pac. 1058 (1904).

27
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 23

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21

The title of the bill is general because it refers generally to “local government.” See
Mount Spokane Skiing Corp. v. Spokane County, 86 Wn.App. at 181-183, 936 P.2d 1148;
Amalgamated Transit Union Local 587 v. State, 142 Wash.2d 183, 209-210, 11 P.3d 762, 27
P.3d 608 (2000). There is a rational unity between the general subject stated in the
title - “local government,” and the general subject of subsection 3 of the bill - a prohibition
against local governments levying net income taxes. See Gruen v. State Tax Commission, 35
Wn.2d 1, 22-23, 211 P.2d 651 (1949).
EOI argues that regardless of the title of the bill, the court should find a violation of
the Single-Subject Rule because “different types of local government are different subjects,”
(EOI’s Reply, at 4 (Dkt. 81)), and “the Legislature cannot bury substantive restrictions on
one form of government in a bill or statute chapter that is otherwise about another form of
government.” Ibid. But the Plaintiffs point out that nothing was “buried” in the bill; that
Section 3 (which became RCW 36.65.030) was part of the original version of the bill; and
that the legislators were aware that in order to restrict combined city-counties from imposing
income taxes, it was necessary to restrict cities and counties as well, pursuant to Washington
Constitution, art. XI, § 16. The Plaintiffs cite to a December 2, 1983 Senate Local
Government Committee memorandum regarding the bill, which states, in part:
Sec. 3 Tax on Net Income. Prohibits a city-county from levying a
tax on net income. Note: This section also includes cities and
counties because there can be no legislative prohibition or
restriction on a city-county unless such prohibition or restriction
applies equally to every other city, county, and city-county.

22

Declaration of Matthew J. Davis, Ex. 18 (Dkt. 59); see also Corrected Declaration of

23

Matthew J. Davis, Ex. 18 (Dkt.78). In other words, there was no “logrolling.” SSB 4313

24

was drafted to effectuate the constitutional requirement to restrict the powers these local

25

governments equally.

26
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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 24

 1
2

3.

RCW 36.65.030 Does Not Violate Subject-in-Title Rule

EOI argues that RCW 36.65.030 violates the Subject-in-Title Rule. EOI’s Motion,

3

at 12-13. The court disagrees. The statute complies with the Subject-in-Title Rule just as it

4

complies with the Single-Subject Rule, and for the same reasons. The title of the bill is “An

5

Act relating to local government.” There is rational unity because the subject stated in the

6

title, “local government,” is naturally and reasonably connected to the subject of Section 3 of

7

the bill, which became RCW 36.65.030, namely, taxing authority of cities, counties and city-

8

counties.

9

To summarize, EOI has not proved beyond a reasonable doubt that RCW 36.65.030

10

violates article II, § 19 of the Washington Constitution. The court therefore must give full

11

effect to RCW 36.65.030, which squarely prohibits the net income tax that the Ordinance

12

imposes.

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G.

Plaintiffs’ Alternate Claims That Ordinance
Violates Constitution Art. VII, § 1

The Plaintiffs request the court to issue a judgment invalidating the Ordinance on
grounds that the income tax is a graduated tax on property and thus violates the uniformity
requirement that Washington Constitution art. VII, § 1 imposes on property taxes. Shock
Plaintiffs’ Motion, at 10-14 (Dkt. 56B); Burke/Levine Plaintiffs’ Motion, at 24-32 (Dkt. 56J);
Kunath Motion, at 10-18 (Dkt. 57).
The court declines to address this constitutional issue. “Where an issue may be
resolved on statutory grounds, the court will avoid deciding the issue on constitutional
grounds.” Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000); Sinear v. Daily
Journal-American, 97 Wn.2d 148, 152, 641 P.2d 1180 (1982); see also Kershaw Sunnyside
Ranches, Inc. v. Yakima Interurban Lines Ass’n, 156 Wn.2 253, 277 n. 19 (2006).
The court has determined that no statute authorizes the City’s net income tax and that
RCW 36.65.030 prohibits the tax. The Ordinance being invalid on statutory grounds, it is
unnecessary to consider the art. VII § 1 issue.

27
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 25

 1

H.

2

The Shock Plaintiffs request the court to issue a judgment invalidating the Ordinance

Shock Plaintiffs’ Claim That Ordinance Violates Equal Protection

3

on grounds that it violates the equal-protection provisions of Washington Constitution

4

art. 1, § 12 and the U.S. Constitution amendment 14, §1. Shock Motion, at 14-18.

5

It is unnecessary for the court to reach this issue because the court has determined

6

that the Ordinance is invalid on statutory grounds. Tunstall v. Bergeson, 141 Wn.2d at 210, 5

7

P.3d 691; Sinear v. Daily Journal-American, 97 Wn.2d at 152, 641 P.2d 1180.

8
9

7.

Order

To summarize, the Defendants’ motions will be denied and the Plaintiffs’ motions

10

will be granted because the City’s tax is not an “excise tax” and thus is not authorized by

11

RCW 35A.82.020 and RCW 35.22.280(32); the City’s tax is not authorized by

12

RCW 35A.11.020; the City’s tax is not otherwise authorized by any other statute; and

13

RCW 35.65.030 prohibits the tax.

14

For the reasons stated above, the court:

15

1.

(Dkt. 47D);

16
17

Denies Defendant City of Seattle’s Motion for Summary Judgment

2.

Denies Intervenor-Defendant Economic Opportunity Institute’s Motion for
Summary Judgment (Dkt. 47A);

18
19

3.

Grants Plaintiff Kunath’s Cross-Motion for Summary Judgment (Dkt. 57);

20

4.

Grants the Burke/Levine Plaintiffs’ Cross-Motion for Summary Judgment
(Dkt. 56J); and

21
22

5.

Grants the Shock Plaintiffs’ Cross-Motion for Summary Judgment (Dkt. 56B).

23

Date: November 22, 2017.

24

s/ John R. Ruhl
John R. Ruhl, Judge

25
26
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ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT – 26

 King County Superior Court
Judicial Electronic Signature Page
Case Number:
Case Title:

KUNATH ET AL VS CITY OF SEATTLE

Document Title:

ORDER ON CROSS-MOTIONS FOR S.J.

Signed by:
Date:

John Ruhl
11/22/2017 2:02:09 PM

17-2-18848-4

Judge/Commissioner: John Ruhl

This document is signed in accordance with the provisions in GR 30.
Certificate Hash:
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Certificate effective date: 3/13/2014 2:24:05 PM
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