Wittemyer v. City of Portland
361 Or. 854
| Or. | 2017Background
- Portland enacted a $35 "arts tax" on residents 18+ who earn at least $1,000/year and do not live in households at or below federal poverty guidelines; certain income sources (e.g., Social Security, PERS) are excluded from the income calculation.
- Plaintiff Wittemyer sued, claiming the arts tax is a prohibited "poll or head tax" under Article IX, §1a of the Oregon Constitution.
- Trial court granted summary judgment for the City, concluding the tax is not a poll/head tax because it exempts persons based on income and household resources.
- Court of Appeals affirmed, reasoning the historical meaning of "poll or head tax" referred to taxes that do not take ability to pay into account.
- Oregon Supreme Court granted review and framed the question as constitutional interpretation of what constitutes a "poll or head tax" under Article IX, §1a.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Portland's $35 arts tax is a prohibited "poll or head tax" under Article IX, §1a | Wittemyer: The tax is a flat per-person charge (same amount for all payers) and thus a poll/head tax; exemptions do not change that character | City: The tax is not a poll/head tax because it expressly exempts residents based on income and household resources, so it takes ability to pay into account | Held: A "poll or head tax" is a per-capita tax that does not take income, property, or other resources into account; Portland's arts tax exempts residents by income/household resources and therefore is not a prohibited poll/head tax |
Key Cases Cited
- Hylton v. United States, 3 U.S. 171 (discussing capitation taxes as taxes "without regard to property, profession, or any other circumstance")
- Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (dissent noted that income-based exemptions bear on characterization of tax)
- Gardner v. Hall, 61 N.C. 21 (defining capitation tax as one on the person without reference to property or business)
- Short v. State, 80 Md. 392 (discussing poll tax as levied without reference to ability or means to pay)