Wittemyer v. City of Portland

• Decision Date: 21 September 2017
• Docket Number: CC 130304234 SC S064205.
• Citation: 402 P.3d 702,361 Or. 854
• Parties: George WITTEMYER, Petitioner on Review, v. CITY OF PORTLAND, Respondent on Review.
• Court: Oregon Supreme Court

361 Or. 854

402 P.3d 702

George WITTEMYER, Petitioner on Review,

v.CITY OF PORTLAND, Respondent on Review.

CC 130304234 SC S064205.

Supreme Court of Oregon.

Argued and submitted March 6, 2017

September 21, 2017

George Wittemyer, Pro Se, Portland, argued the cause and filed the briefs on behalf of himself as petitioner on review.

Denis M. Vannier, Deputy City Attorney, City of Portland, argued the cause and filed the brief on behalf of respondent on review.

John A. Bogdanski, Pro Se, Portland, argued the cause and filed the on behalf of himself as amicus curiae.

Kristian Roggendorf, Lake Oswego, filed the brief on behalf of amicus curiae Eric Fruits, Ph.D.

Sean O'Day, League of Oregon Cities, Salem, filed the brief for amicus curiae League of Oregon Cities.

P.K. Runkles-Pearson, Miller Nash Graham & Dunn LLP, Portland, filed the brief on behalf of amicus curiae Portland Public School District.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices.^**

LANDAU, J.

The Portland City Code imposes a $35 tax on each resident of the city who is at least 18 years old, has income of $1,000 or more per year, and does not reside in a household that is at or below federal poverty guidelines. The funds generated by the tax are used to support public art and music education programs. Plaintiff, a city resident, argues that the "arts tax" violates Article IX, section 1a, of the Oregon Constitution, a provision adopted in 1910 that prohibits the imposition of a "poll or head tax." He asserts that the tax violates the state constitution because all who are subject to it are required to pay the same amount, without regard to their income. The City of Portland argues that its arts tax does not violate the state constitutional prohibition on poll or head taxes because the tax does take income into account: Those residents who earn less than $1,000 per year or are within a household that is at or below federal poverty guidelines do not have to pay the tax at all.

We conclude that a tax that takes into account the income, property, or other resources of taxpayers is not a "poll or head tax" within the meaning of Article IX, section 1a. In this case, the City of Portland arts tax exempts certain residents based on their income and household resources. Thus, the tax does take income into account and, as a result, does not amount to a "poll or head tax" within the meaning of the state constitution.

I. BACKGROUND

The relevant facts are few and undisputed. In 2012, the Portland City Council referred a proposed Arts Education and Access Income Tax to the Portland voters. According to the voters' pamphlet, the tax was intended to generate funding "to restore arts and music education" in public schools "by providing stable, long-term funding for certified arts and music teachers." Official Voters' Pamphlet, General Election, Nov. 6, 2012, M-54. The voters passed the tax in the general election. After it took effect, the City Council amended it twice in ways that are not pertinent to the issues in this case.

The arts tax is now codified at Portland City Code (PCC) 5.73:

"A tax of $35 is imposed on the income of each income-earning resident of the City of Portland, Oregon who is at least eighteen years old. No tax will be imposed on filer(s) within any household that is at or below the federal poverty guidelines established by the federal Department of Health and Human Services for that tax year."

PCC 5.73.020. Individuals with under $1,000 in income are not considered "income-earning residents," meaning that they are not taxed. PCC 5.73.010(E).

The city adopted administrative rules to implement the arts tax. Those rules define what "income" includes and does not include within the meaning of the tax:

"A. ‘Income’ includes, but is not limited to, all income earned or received from any source. Examples of income include, but are not limited to, interest from individual or joint savings accounts or other interest bearing accounts, child support payments, alimony, unemployment assistance, disability income, sales of stocks and other property (even if sold at a loss), dividends, gross receipts from a business and wages as an employee. ‘Income’ does not include benefits payable under the federal old age and survivors insurance program or benefits under section 3(a), 4(a) or 4(f) of the federal Railroad Retirement Act of 1974, as amended, or their successors, or any other income a city or local municipality is prohibited from taxing pursuant to applicable state or federal law.

"1. Examples of income the city is prohibited from taxing include, but are not limited to, Social Security benefits, Public Employee Retirement (PERS) pension benefits, federal pension benefits (FERS) and income from U.S. Treasury bill notes and bonds interest.

"2. Effective for tax years that begin on or after January 1, 2015, U.S. Department of Veterans Affairs (VA) disability benefits will not be considered taxable income for purposes of the Arts Tax."

Revenue Division, Arts Education and Access Income Tax Administrative Rules, https://www.portlandoregon.gov/revenue/article/434547 (accessed Sept. 12, 2017).

Plaintiff is a resident of Portland who is subject to the arts tax. He filed a "Complaint for Disparate Treatment and Unconstitutional Taxation," which alleged three claims. Two of the claims concern a dispute between plaintiff and the city's Water Bureau; those claims are not at issue in this appeal. The third claim challenged the constitutionality of the city's arts tax under Article IX, section 1a, of the Oregon Constitution. Plaintiff alleged that the tax "fits perfectly the definition of a capitation or poll tax: ‘a levy of a fixed amount on all persons, or a selected group of persons, within the taxing area, imposed without reference to property, income or activity.’ " He asked the court to declare the arts tax unconstitutional and to enjoin the city from collecting it.

Both plaintiff and the City of Portland filed motions for summary judgment on the arts-tax claim. The trial court denied plaintiff's motion and granted the city's motion, explaining that the arts tax is not a prohibited poll or head tax, given that it takes into consideration the income of taxpayers:

"The Arts Tax is not a head or poll tax because it is not assessed per capita. In assessing the tax, the City considers persons' income in three distinct provisions: the tax applies only to (1) income exceeding $1,000, (2) non-exempt income sources, and (3) income of individuals residing in house-holds with income above the federal poverty guidelines. Taxpayers who are under the age of 18 are exempt from the tax. The practical effect of the tax is to tax income of certain City residents within a certain income range and is therefore not a poll or head tax."

The court entered a limited judgment dismissing plaintiff's arts-tax claim.

Plaintiff appealed, arguing that the trial court erred in concluding that the city's arts tax did not violate the state constitutional prohibition on the imposition of a poll or head tax and in dismissing his claim. The city responded that the trial court's decision was correct. The arts tax, argued the city, is not a prohibited poll or head tax because it is assessed only against income from certain sources that rises above a certain level and takes into account household resources.

The Court of Appeals affirmed the dismissal of plaintiff's arts tax claim. Wittemyer v. City of Portland , 278 Or.App. 746, 747, 377 P.3d 589 (2016). The court reasoned that, by the time Article IX, section 1a, was adopted, the terms "poll tax" and "head tax" were commonly understood to refer to a very limited form of taxation that did not take income or resources into account in any way. The court explained that, at that time, " ‘poll or head tax’ had a precise and particular meaning that did not include measures with exemptions based on the amount or source of individual or household income. Rather, ‘poll or head’ taxes were levied uniformly without financial exemption." Id. at 754-55, 377 P.3d 589 (emphasis in original). The court concluded that, because the Portland arts tax takes into account income and resources, it does not run afoul of the poll or head tax prohibition of Article IX, section 1a. Id.

II. ANALYSIS

On review before this court, plaintiff reprises his contention that the city's arts tax violates Article IX, section 1a. According to plaintiff, the fact that the tax includes exemptions for persons of limited means is irrelevant to a determination whether the tax is a poll or head tax within the meaning of the state constitution. He notes that, throughout history, poll or head taxes have included such exemptions and not, as a result, lost their character as poll or head taxes. He cites as an example a road poll tax that the Oregon legislature imposed in 1893, which exempted all women and children, as well as males under 21 and over 50 years of age. He notes that, in spite of those exemptions, the legislature referred to the tax as a "road poll tax." In plaintiff's view, the existence of exemptions from taxation—for whatever reason—is beside the point; the controlling fact is whether the tax applies uniformly to all persons who are subject to the tax.

Amicus curiae Bogdanski similarly argues that the city's arts tax violates Article IX, section 1a, because "the amount of the tax is identical for all individuals who are required to pay it." Amicus Fruits adds to plaintiff's historical examples by noting that poll or head taxes have included exemptions based on income and not lost their character as poll or head taxes.

The city reprises its contention that its arts tax does not violate the state constitutional prohibition against levying poll or head taxes because the tax takes into account sources of income, level of income, and household resources. The city argues that early historical examples of flat taxes that included income-based exemptions were actually "capitation"...