Wittemyer v. City of Portland

• Decision Date: 08 June 2016
• Docket Number: A154844
• Citation: 377 P.3d 589,278 Or.App. 746
• Parties: George Wittemyer, Plaintiff–Appellant, v. City of Portland, Defendant–Respondent.
• Court: Oregon Court of Appeals

278 Or.App. 746

377 P.3d 589

George Wittemyer, Plaintiff–Appellant

v.City of Portland, Defendant–Respondent.

A154844

Court of Appeals of Oregon.

Submitted May 2, 2014.

June 8, 2016

George Wittemyer filed the briefs pro se.

Denis M. Vannier filed the brief for respondent.

John A. Bogdanski filed the brief amicus curiae pro se.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Haselton, Senior Judge.

HASELTON, S.J.

Plaintiff, a resident of the City of Portland, brought this action seeking, inter alia , a declaration that Portland City Code (PCC) 5.73.020, which imposes a tax of $35 “on the income of each income-earning resident of the City of Portland” for support of the arts in the public schools (the Arts Tax)¹ , is a “poll or head tax” in violation of Article IX, section 1a, of the Oregon Constitution.² Plaintiff appeals from a limited judgment in the city's favor under ORCP 67 B, assigning error to the trial court's allowance of the city's motion for summary judgment and denial of plaintiff's cross-motion for summary judgment on the claim. We, like the trial court, conclude that the Arts Tax is not a “poll or head tax” in violation of the Oregon Constitution. Accordingly, we affirm.³

The facts are not disputed, and the appeal presents only a question of law. In 2012, the Portland City Council referred to voters a resolution for passage of the Arts Tax, to generate funding for art and music education in the public schools.⁴ As enacted, the measure provides:

“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.

The Portland City Code defines an “income-earning resident” as “a resident who has income of $1,000 or more in the tax year.” PCC 5.73.010(E). Further, the city's “Arts Education and Access Income Tax” administrative rules define and limit what constitutes “income” for purposes of the tax. Specifically, those rules provide:

“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 US Treasury bill notes and bonds interest.

“2. The City may tax income federal and/or state governments choose not to tax.”

Revenue Division, Arts Education and Access Income Tax Administrative Rules , available at https://www.portlandoregon.gov/revenue/article/434547 (accessed May 26, 2016).

Thus, the Arts Tax is not imposed on all Portland residents who are age 18 or older, or even on all such residents who earn income as that term is commonly understood. Rather, residents are broadly subject to—or, concomitantly, excluded from—the tax by reference to the amount and source of their individual income or their household's income. For example, none of the following Portland residents is subject to the Arts Tax: (1) a person who earns $900 in annual wages; (2) a person who receives total annual “income” (in the generic sense) of $1,500, of which $999 is wages and $501 is PERS benefits; (3) a person who receives annual PERS benefits of $75,000 but less than $1,000 of income from other, non-exempt sources; and (4) a person who earns annual wages exceeding $1,000 but is a member of a household which is at or below federal poverty guidelines.

In this action, plaintiff, who is a taxpayer in the city and subject to the Arts Tax, asserts that the tax violates Article IX, section 1a, which, as previously noted, provides, in part: “No poll or head tax shall be levied or collected in Oregon.” The parties filed cross-motions for summary judgment.⁵ In rejecting plaintiff's motion for summary judgment and granting the city's motion, the trial court reasoned that the Arts Tax is not a “poll or head tax” within the meaning of Article IX, section 1a, because the class of Portland residents subject to the tax is defined, in material part, by reference to the amount and source of individual income, as well as total household income:

“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 $1000, (2) non-exempt income sources, and (3) income of individuals residing in households 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.”

On appeal, plaintiff and amicus contend that, contrary to the trial court's conclusion, the Arts Tax is assessed per capita because, although it states that it is imposed “on income,” the tax is assessed identically on all required tax-filers (i.e. , on all individuals over the age of 18 who meet the minimum income criteria), regardless of income level.

The city responds that the Arts Tax is not a “poll or head” tax because, as shown by the text, context, and legislative history of Article IX, section 1a, the electors viewed a “poll or head tax” as a tax “levied uniformly on every individual within a class or group, without regard to income, property, or resources.” In the city's view, the Arts Tax does not fit that description, because, whether a person is subject to the tax includes consideration of the person's income level (individual income of $1,000 or above) and resources (household income above the federal poverty level).

As noted, the pertinent text of Article IX, section 1a, was enacted by initiative in 1910.⁶ Our task is to determine the voters' intent in enacting the measure. In doing so, “[w]e interpret an initiated or referred constitutional amendment the same way that we interpret a statute; that is, we look to the text, context, and legislative history of the amendment.” State v. Reinke , 354 Or. 98, 106, 309 P.3d 1059, adh'd to as modified on recons . , 354 Or. 570, 316 P.3d 286 (2013). Within that construct, “[t]he best evidence of the voters' intent is the text and context of the provision itself.” State v. Harrell/Wilson , 353 Or. 247, 255, 297 P.3d 461 (2013). Pertinent context “includes the historical context against which the text was enacted—including preexisting constitutional provisions, case law, and statutory framework.” State v. Sagdal , 356 Or. 639, 642, 343 P.3d 226 (2015). Pertinent history includes “ ‘sources of information that were available to the voters at the time that the measure was adopted and that disclose the public's understanding of the measure,’ such as the ballot title, arguments included in the voters' pamphlet, and contemporaneous news reports and editorials.” Id. at 642–43, 343 P.3d 226 (quoting Ecumenical Ministries v. Oregon State Lottery Comm. , 318 Or. 551, 559 n. 8, 871 P.2d 106 (1994) ). Finally, we are admonished that we should be “cautious in relying on statements of advocates, such as those found in the voters' pamphlet, because of the partisan character of such material.” Sagdal , 356 Or. at 643, 343 P.3d 226.

The text of Article IX, section 1a provides, in part: “No poll or head tax shall be levied or collected in Oregon.” The provision does not define a “poll or head tax.” However, at the time of its enactment in 1910, the commonly understood meaning of “poll tax” was “a tax levied by the head or poll; a capitation tax.” Webster's Int'l Dictionary 1108 (unabridged ed. 1907). See also Black's Law Dictionary 911 (2d ed. 1910) (defining “poll tax” as “[a] capitation tax; a tax of a specific sum levied against each person within the jurisdiction of the taxing power and within a certain class (as, all males of a certain age, etc.) without reference to his property or lack of it”). Although the parties have not identified—and we have not found—a contemporaneous definition of “head tax,” it appears that the two terms were closely synonymous and probably interchangeable.⁷

Black's qualification of the tax as being levied “without reference to [a person's] property or lack of it” comports with the consensus of understanding expressed in contemporaneous case law. See, e.g. , People of State of New York ex rel. Hatch v. Reardon , 204 U.S. 152, 159, 27 S.Ct. 188, 51 L.Ed. 415 (1907) (describing “poll tax” as a “tax of a fixed sum, irrespective of income or earning capacity ” (emphasis added)); Thurston County v. Tenino Stone Quarries , 44 Wash. 351, 356, 87 P. 634 (1906) (“The underlying nature and purpose of a poll tax are disassociated entirely from any consideration of property.”).

With respect to context, reported Oregon decisions antedating the initiative's enactment are nondescript, but appear to relate to local measures conforming to the same common understanding. See , e.g. , City of Oregon City v. Moore , 30 Or. 215, 217, 46 P. 1017 (1896), reh'g den . , 305 Or. 221 (1897) (describing “a poll tax of two dollars upon each and every person liable therefor”); City of Salem v. Marion County , 25 Or. 449,...