Danielle Chenette

The Portland Arts Tax has big problems, but it's not unconstitutional.

In what should amount to the final say in the matter, the Oregon Supreme Court this morning issued an opinion finding that the $35 dollar annual charge doesn't amount to an illegal "poll tax" or "head tax," as long argued by George Wittemeyer, a Portland retiree who's challenged the tax in state-level and appellate courts.

In its ruling, the Supreme Court agrees with lower courts, saying that exemptions for people at or under the federal poverty line—or people who live in households above that line, who make less than $1,000 a year—mean the tax is okay.

"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 1a," reads the opinion from Justice Jack Landau. " 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."

While opponents—including economist Eric Fruits and Lewis and Clark College law professor Jack Bogdanski—had argued similar taxes in the 1890s were considered head taxes even with limited exemptions, the Supreme Court's opinion said that didn't matter. When voters outlawed head taxes in 1910, justices found, the definition of such taxes had shifted.

"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," the court ruled.

The ruling clears the way for the tax to continue, but that doesn't mean it's going to have smooth sailing. We reported this week on structural flaws within the tax that city council will likely try to correct in coming months.

Update, 8:29 am: Commissioner Nick Fish's office issued a press release shortly after we posted this news.

“We are gratified that the Supreme Court has affirmed the judgments of the Court of Appeals and the trial court,” City Attorney Tracy Reeve said in the release, “and held that the Arts Income Tax is fully constitutional.”

It also quotes Fish, who says: “Today’s decision is a big win for Portland’s kids. Thanks to the ruling of the Oregon Supreme Court, over 30,000 Portland children will continue to have arts education in school.”