Wittemyer v. City of Portland

“No poll or head tax shall be levied or collected in Oregon.” Article IX, section 1a. Based on ordinary meaning, a poll or head tax within the meaning of Article IX, section 1a of the Oregon Constitution, "is one that applies uniformly on a per capita basis, but does not take income, property, or resources into account in any way.” Wittemyer v. Portland, 361 Or. 854, 883 (2017).

Plaintiff appealed an appellate court’s ruling that affirmed the trial court’s dismissal of his claim challenging the constitutionality of the city’s arts tax under Article IX, section 1a, of the Oregon Constitution. Plaintiff assigned error to the trial court’s determination that the arts tax is not a prohibited poll or head tax because it takes into consideration the income of taxpayers. On Appeal, Plaintiff argued that whether a tax is a poll tax depends on if income, property, or other resources are taken into account when determining the amount of the tax. The City countered that the arts tax is not a poll or head tax because it considers only certain income sources above $1,000 and takes household resources into account. “No poll or head tax shall be levied or collected in Oregon.” Article IX, section 1a. Based on ordinary meaning, a “poll or head tax” within the meaning of Article IX, section 1a of the Oregon Constitution, is one that applies uniformly on a per capita basis, but does not take income, property, or resources into account in any way.” Wittemyer v. Portland, 361 Or. 854, 883 (2017). The Court of Appeals held that the appellate court did not err in determining that the Portland arts tax was not a poll or head tax because the tax takes income and household resources into account in three ways: the tax does not apply to people with less than $1,000 earned income per year; some types of income are not considered when calculating an individual’s income to determine if they are subject to the tax; and the tax does not apply to individuals living in a household below the federal poverty line. Affirmed.