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Wittemyer v. City of Portland

Supreme Court of Oregon

September 21, 2017

George WITTEMYER, Petitioner on Review,
v.
CITY OF PORTLAND, Respondent on Review.

          Argued and submitted March 6, 2017, at Lewis & Clark Law School, Portland.

         On review from the Court of Appeals.[*]CC 130304234; CA A154844

          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 fled the brief on behalf of respondent on review.

          John 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.

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

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

          [361 Or. 855] Before Balmer, Chief Justice, and Kistler, Walters, Landau, Nakamoto, and Flynn, Justices. [**]

          The decision of the Court of Appeals and the limited judgment of the circuit court are affirmed.

         Case 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.

         The decision of the Court of Appeals is affirmed. The limited judgment of the trial court is affirmed.

          [361 Or. 856] 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 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.

         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 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.

         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.

          [361 Or. 857] 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).

          [361 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 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 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."

         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.

          [361 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. Id.

         II. ANALYSIS

         On 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.

         Amicus 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.

         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" 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.

         The 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).

         In this 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.

         A. Textual Analysis

         We 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 (2012).

         As we 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).[1]

          [361 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.").

         Three 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.[2] 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.").[3] 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.

         Second, 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 ...


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