and submitted March 6, 2017, at Lewis & Clark Law School,
review from the Court of Appeals.[*]CC 130304234; CA A154844
Wittemyer, Pro Se, Portland, argued the cause and
filed the briefs on behalf of himself as petitioner on
M. Vannier, Deputy City Attorney, City of Portland, argued
the cause and fled the brief on behalf of respondent on
A. Bogdanski, Pro Se, Portland, argued the cause and
fled the on behalf of himself as amicus curiae.
Kristian Roggendorf, Lake Oswego, fled the brief on behalf of
amicus curiae Eric Fruits, Ph.D.
O'Day, League of Oregon Cities, Salem, fled the brief for
amicus curiae League of Oregon Cities.
Runkles-Pearson, Miller Nash Graham & Dunn LLP, Portland,
fled the brief on behalf of amicus curiae Portland
Public School District.
Or. 855] Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Nakamoto, and Flynn, Justices. [**]
decision of the Court of Appeals and the limited judgment of
the circuit court are affirmed.
Summary: Plaintiff alleged that the City of Portland's
arts tax was a prohibited poll or head tax. The trial court
determined that the tax was not a poll or head tax. The Court
of Appeals affirmed the trial court's decision and
plaintiff petitioned for review. Held: (1) a poll or
head tax is one that does not take into account income or
resources; and (2) because the arts tax exempts certain
residents based on their income and household resources, it
takes income into account and is not a poll or head tax.
decision of the Court of Appeals is affirmed. The limited
judgment of the trial court is affirmed.
Or. 856] LANDAU, J.
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 la, 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.
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
la. 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.
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.
Or. 857] The arts tax is now codified at Portland City Code
"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."
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).
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."
Division, Arts Education and Access Income Tax Administrative
Rules, https://www.portlandoregon.gov/ revenue/article/434547
(accessed Sept 12, 2017).
Or. 858] 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 la, 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
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
"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 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."
court entered a limited judgment dismissing plaintiff's
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
Or. 859] 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 la, 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 (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 la.
review before this court, plaintiff reprises his contention
that the city's arts tax violates Article IX, section la.
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.
curiae Bogdanski similarly argues that the city's
arts tax violates Article IX, section la, because "the
amount of the tax is identical for all individuals who are
required to pay it." Amicus Fruits adds to
plaintiffs historical examples by noting that poll or head
taxes have included [361 Or. 860] exemptions based on income
and not lost their character as poll or head taxes.
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" taxes, which the city contends are not
the same as poll or head taxes. According to the city, to
constitute a poll or head tax, the tax must not take income
or resources into account in any manner.
parties' arguments present to us a question of
constitutional interpretation: What does Article IX, section
la, mean when it refers to a "poll or head tax"? We
construe the Oregon Constitution in accordance with settled
principles of interpretation, which require us to examine the
text of the provision in dispute in its historical context,
along with relevant cases interpreting it. Priest v.
Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992). In the
case of constitutional amendments adopted by initiative, our
analysis also includes "sources of information that were
available to the voters" at the time the amendment was
adopted, including the ballot title, information in the
voters' pamphlet and contemporaneous news reports and
editorials. State v. Sagdal. 356 Or. 639, 642-43,
343 P.3d 226 (2015). The goal is to "determine the
meaning of the provision at issue most likely understood by
those who adopted it." Couey v. Atkins. 357 Or.
460, 490-91, 355 P.3d 866 (2015). That analysis then provides
the basis for identifying, "in light of the meaning
understood by the framers, relevant underlying principles
that may inform our application of the constitutional text to
modern circumstances." State v. Davis. 350 Or.
440, 446, 256 P.3d 1075 (2011).
case, our analysis reveals that, at the time of the adoption
of Article IX, section la, the phrase "poll or head
tax" would have been understood to constitute a tax that
applied uniformly on a per-person basis, but did not take
into account income, property, or resources in any fashion,
even in defining exemptions from the tax. Thus, [361 Or. 861]
an otherwise uniform tax that exempted certain individuals by
income level would not have been regarded as a forbidden tax.
At earlier times, the phrase may well have had a broader
meaning, one that applied to any tax assessed uniformly on a
per-person basis, regardless of the nature of exclusions. But
beginning in the early to mid-nineteenth century, courts,
commentators, and legislatures began to view the meaning of
the term more narrowly. By the time that Oregon voters
adopted the constitutional prohibition, the term was
understood to apply only to a tax that did not take into
account income, property, or other resources in any way.
begin with the text of Article IX, section la, which provides
that "[n]o poll or head tax shall be levied or collected
in Oregon." The constitution does not define what it
means by the phrase "poll or head tax." When the
constitution does not define its terms, we presume that those
who adopted them intended or understood such terms to be
given their ordinary meanings. State v. Lane. 357
Or. 619, 624-25, 355 P.3d 914 (2015). Contemporaneous
dictionary definitions provide a helpful starting point in
our determination of that ordinary meaning. Doe v. Corp.
of Presiding Bishop. 352 Or. 77, 90, 280 P.3d 377
have noted, Article IX, section la, was adopted by the voters
in 1910. At that time, there was a well-understood meaning of
what constituted a "poll" or "head" tax,
words that were commonly used as synonymous with a
"capitation" tax. Each of them referred to a tax on
the head of each individual, without regard to income or
property or other resources. The 1907 edition of
Webster's, for example, defined a "poll
tax" as "a tax levied by the head or poll; a
capitation tax, " and "capitation" as
"[a] tax upon each head or person, without reference to
property; a poll tax." Webster's Int'l
Dictionary 214, 1108 (unabridged ed 1907).
Or. 862] Contemporaneous law dictionaries were to similar
effect. The 1910 edition of Black's Law
Dictionary, for example, defined poll tax as "[a]
capitation tax; a tax of a specific sum levied upon 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." Henry
Campbell Black, A Law Dictionary 911 (2d ed 1910).
And it defined a "capitation tax" as "[o]ne
which is levied upon the person simply, without any reference
to his property, real or personal." Id. at 168.
Burrill's Law Dictionary likewise stated that a
poll tax is " [a] tax levied by the head or poll; a
capitation tax, " Alexander M. Burrill, 2 A Law
Dictionary and Glossary 3088 (1871), while it defined a
"capitation tax" as " [a] tax on the head or
person; a poll-tax." Burrill, 1 A Law Dictionary and
Glossary at 248. The 1897 edition of Bouvier's
Law Dictionary defines a "poll tax" as "
[a] capitation tax; a tax assessed on every head,
i.e., on every male of a certain age, etc.,
according to statute, " John Bouvier, 2
Bouvier's Law Dictionary 696 (1897), and a
"capitation tax" as "[a] poll tax."
Bouvier, 1 Bouvier's Law Dictionary at 284.
Other law dictionaries from the era define "poll
tax" in similar fashion. See, e.g., Benjamin
Vaughn Abbott, 2 Dictionary of Terms and Phrases Used in
American or English Jurisprudence 286 (1879) ("a
tax of a specific sum upon each person, as distinguished from
a tax on property"); Stewart Rapalje & Robert L.
Lawrence, 2 Dictionary of American and English Law
973 (1883) ("[a] capitation tax"); William C.
Anderson, A Dictionary of Law 784 (1893) ("[a]
tax upon individual persons.").
observations are worth noting at this early juncture in our
analysis. First, the term "poll tax" was not
originally understood solely-or even primarily-to refer to a
tax imposed as a condition of voting. Rather, the word
"poll" originates from a Middle English word for
"head." 12 [361 Or. 863] The Oxford English
Dictionary 37 (2d ed 1989). And a "poll tax"
was simply a tax on each head. See generally Brian
Sawers, The Poll Tax Before Jim Crow, 57 Am J Legal
Hist 166 (2017). In fact, poll taxes were imposed long before
ordinary people could vote. In the United States, payment of
a poll tax was sometimes made a condition of voting, and that
practice later came to predominate colloquial understanding
of the term. See generally David Schultz & Sarah
Clark, Wealth v. Democracy: The Unfulfilled Promise of
the Twenty -Fourth Amendment, 29 Quinnipiac L Rev 375,
378 (2011) ("A poll tax in the United States has come to
be understood as some fee paid by an individual as a
prerequisite to being allowed to vote."). But there is no
evidence that, at the time the voters adopted Article IX,
section la, of the Oregon Constitution, the ordinary meaning
of the term was limited to that use.
the words "poll" and "head" were used
interchangeably in reference to taxation. It is true that
this court often relies on a presumption that when the people
or legislatures used different words, they intended those
words to have different meanings; application of that
presumption would suggest that "poll" taxes are
somehow distinct from "head" taxes. See, e.g.,
Monaghan v. School Dist. No. 1, Clackamas County, 211
Or. 360, 366-67, 315 P.2d 797 (1957) ("In construing the
organic law, the presumption and legal intendment are that
every word, clause, and sentence therein have been inserted
for some useful purpose."); Baker v. Croslin.359 Or. 147, 157, 376 P.3d 267 ...