It's now been reported that prominent Portland blogger and tax professor Jack Bogdanski has filed suit to declare the $35/head Portland arts tax unconstitutional. Here's why Professor Bogdanski will win.
In 2000, in the case of Cook v. City of Portland, the Oregon court of appeals described a poll tax as "a fixed tax assessed on each eligible person." In that case, Vern Cook (1925-2008), a Gresham lawyer, legislator, and longtime civic gadfly, challenged the City of Portland business license tax for four reasons, one of which was that it was (in Mr. Cook's view) an unconstitutional head tax. The court of appeals easily decided that the business license tax was not an unconstitutional head tax, using these words:
Portland's business license fee is not a head or poll tax. It is not assessed per capita. Rather, it is assessed only on those persons or corporations who choose to do business within the city. Moreover, although there is a minimum tax, the tax is proportional. The amount of the tax is generally a function of the income a licensee earns. The tax does not possess the same characteristics that prompted the people to add Article IX, section 1a, to the Oregon Constitution.
By contrast, Portland's arts tax is assessed per capita (per person), and it is not a function of the income that a Portland resident earns. The tax is either $0 or $35.
Does the Portland arts tax "possess the same characteristics that prompted the people to add Article IX, section 1a, to the Oregon Constitution"? Here's how the court of appeals described those characteristics:
Article IX, section 1a, which prohibits those taxes, was added to the constitution in 1910. The amendment's supporters explained that a poll or head tax "is unjust not only because it is collected from very few of the men who are supposed to pay, but also because it bears so unequally on men in proportion to their ability to pay." Voters' Pamphlet, General Election, November 8, 1910, at 24-25. The problem that the measure's supporters perceived was that poll or head taxes are not graduated. As they explained, "[t]he laborer supporting a family on $2 a day pays exactly the same poll tax as the corporation manager with a salary of ten thousand dollars a year." Id.
That sounds exactly like the Portland arts tax, if you adjust for inflation: the laborer supporting a family on $100 a day pays exactly the same arts tax as the corporation manager with a salary of $200,000 a year. Based on the 1910 Voter's Pamphlet arguments as interpreted by the Oregon courts, the arts tax is an unconstitutional head tax.
"But wait," you might say, "didn't a judge already declare that the arts tax is not an unconstitutional head tax?" Yes -- and no. In August 2012 a Multnomah County judge, John A. Wittmayer, ruled that the arts tax was not a head tax, but he did not rule that it was constitutional. Rather, he ruled only that the tax did not need to be described on the ballot as a head tax or poll tax, in response to challenges brought against the proposed ballot title and summary. In Judge Wittmayer'>s words: "The proposed tax at issue here is not a head tax or a poll tax because it is not assessed per capita -- it is assessed only upon income-earning individuals age 18 or older in households above the federal poverty guidelines." (Judge Wittmayer's opinion, at page 5.)
The good judge is saying that a flat tax of $35 per person is not a head tax if not everyone has to pay it, suggesting that a $35/person tax is not a head tax unless absolutely everyone has to pay it. Because the petitioners were challenging the ballot title, and not arguing that the measure was unconstitutional, the judge never ruled that the arts tax is constitutional -- no one asked him to decide that question. Likely none of the parties invited him to read the 1910 Voter's Pamphlet and the decision in Cook v. City of Portland to see that the voters and the appellate courts consider "head tax" and "poll tax" to include taxes that are assessed at a flat amount per eligible person.
Look for a different decision this time around.