Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.
WINSTON CHURCHILL
When you’ve been in as many court battles as the Freedom Foundation has, you learn to think in terms of marathons, not sprints.
Progress too often feels agonizingly slow, as the litigants jab back and forth with seemingly endless motions, counter-motions and counter-counter-motions. And by the time you finally hammer out a settlement both sides can live with, you’ve completely forgotten what real victory looks like.
On paper, the announcement last week that Douglas County Superior Court Judge Brian Huber had tossed out the state of Washington’s motion to dismiss a conjoined lawsuit challenging the state’s backdoor attempt to levy an income tax on its residents by disguising it as a capital gains tax might have fallen into that category.
But this development was more.
For starters, Huber wasn’t exactly equivocal in his ruling. In fact, he rejected every single one of the state’s arguments in favor of those advanced by the Freedom Foundation, its co-counsel, the Seattle law firm of Lane, Powell PC, as well as a second group of complainants whose lawsuit was voluntarily merged with ours.
As income tax opponents have done since the turn of the last century, the Freedom Foundation is simply pointing out that the measure, which would tax certain investments at 7 percent on earnings in excess of $250,000 a year, violates the Washington State Constitution by treating higher earners different than everyone else.
Attorneys for the state insist they have no worries about arguing the case on its merits — and thanks to Judge Huber, it appears they’ll get the chance. But first they had to try a little legal sleight of hand by introducing a motion to abort the case before it could even be heard.
Their argument, in essence, was that the plaintiffs in the suit — a collection of Washington residents likely to be affected by a capital gains/income tax — lacked standing to file a lawsuit because the tax isn’t scheduled to take effect until January, meaning they can’t know for certain whether they will even be affected by it.
Laughable though it is, it’s not impossible to envision a more state-beholden judge swallowing that argument — particularly if the judge had first granted the state’s other motion to move the hearing from Douglas County to Attorney General Bob Ferguson’s backyard in Thurston County.
Huber didn’t take the bait on either line.
Instead, he noted that the plaintiffs have already been forced to make financial decisions — including selling assets — merely in anticipation of the tax taking effect. More to the point, he cited case law stipulating that a plaintiff doesn’t already have to have suffered damages to file a lawsuit. In most cases, the strong likelihood of damage is sufficient.
The wisdom of Huber’s decision(s) was so obvious on its face, you wonder state attorneys filed such a frivolous motion in the first place. Lest we forget, however, Ferguson and his henchmen are playing with house money. It costs taxpayers money when they abuse the legal system by wasting weeks or months on a fool’s errand, but it costs them nothing.
Thankfully, Huber wasn’t buying it for a minute. And now the real show begins.
