A Multnomah County Circuit Court judge has ruled the Portland Arts Tax is constitutional.
Judge Kelly Skye ruled today that a lawsuit brought by George Wittemeyer incorrectly claimed that the city's $35-a-person tax is a head tax violating the Oregon Constitution or a poll tax violating the U.S. Constitution.
"The Arts Tax is not a Poll or Head tax because it is not assessed per capita," Skye wrote. "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 ruling cites an exemption for people making less than $1,000 a year—an exemption created by Mayor Charlie Hales' office earlier this year, after voters passed the tax.
Hales says he is still seeking legal advice before distributing money from the beleaguered tax to schools and arts organizations.
“Asked and answered,” Hales said in a statement. “Can the challenges be appealed? Yes, but we don’t know that they will. We want to wait to hear from the city attorney regarding our best options, and then we want to get the input of the entire City Council before moving forward.”
Wittemyer, a Northwest Portland resident who lives near Forest Park, claimed that the arts tax violates the equal protection clause of the 14th Amendment by creating a "poll tax" tied to voter registration—the same kind of poll tax used to disenfranchise African-American voters in the Jim Crow era.
The arts tax challenge was the last of three claims in Wittemyer's suit.
His other two claims were demands for compensation because Portland
Parks & Recreation wouldn't let him hook up his home water line to
parks utility service. His Forest Park house burned down in 2006, and he
said the parks bureau reneged on a water-service deal when he rebuilt.
Wittemyer wanted $40,000 in damages.
The dismissal means no legal challenges currently face the Arts Tax.
Lewis & Clark Law School professor Jack Bogdanski has said he will challenge the Arts Tax all the way to the Oregon Supreme Court. His lawsuit was thrown out of Oregon Tax Court last month when a judge ruled he didn't file in the proper jurisdiction.