Critics of the man opposing the Portland arts tax that funds nonprofit arts programs and public school art teachers may argue he has no heart. The truth is, he doesn't.

Retired attorney George Wittemyer filed suit against the City of Portland in March 2013, arguing its arts tax is unconstitutional. His heart stopped in October 2015.

On Monday, the 76-year-old with a mechanical heart device argued his case before the Oregon Supreme Court.

"There were two things I wanted to do" after the high-tech heart machine extended his life, Wittemyer said, grinning after Monday's oral arguments. "One was to come back and finish the arts tax case."

The court will decide whether the tax of $35 per person for certain types of earners age 18 or older violates Oregon's Constitution. The Constitution prohibits a "head tax."

On Monday, the court's seven justices sought to determine whether Portland's arts tax is in fact a head tax by wrestling with a related, and thorny, question: What exactly constitutes a head tax? The state Constitution does not spell it out.A trial court and the Oregon Court of Appeals both ruled that the arts tax is not a head tax, due to its numerous exceptions, and therefore is legal.

Portland voters approved the tax in 2012. Taxpayers have been expected to pay it every year since, including this tax season. But many have refused.

"It's not a popular tax," Wittemyer said. "It's amazing how many people in Portland have called me asking if there is anything (they) can do to help. I just hope I don't let them down as I have so far."

Taxpayers earning less than $1,000 and all individuals in households at or below the federal poverty line are exempt from the tax. Income from Social Security and Oregon public employee pensions is not considered taxable under the arts tax rule.

Deputy City Attorney Denis Vannier argued Monday that exempting certain taxpayers based on those criteria made the tax legal.

"We're confident the Supreme Court will reach a good decision in this case," Vannier said.

Wittemyer argued that the tax violates the state's prohibition on a head tax because there is only one level of taxation.

A head tax, he argued, is any tax applied uniformly to a group of people. Excusing anyone who makes less does not create different tax brackets, he said. Instead, it shrinks the pool of taxpayers getting charged a head tax.

"A tax of zero is not a tax," Wittemyer said.

Vannier argued the tax is far from uniform per person, with its many exemptions.

"It really comes down to what are these exclusions based on," Vannier argued. "Are they based on income, property or resources? If they are, it is not by definition a poll or head tax."

The League of Oregon Cities -- a group representing 241 incorporated cities-- filed a brief in support of the City of Portland. So did the Portland Public School District.

The city league argued that requiring "all taxes imposed by a governmental entity in Oregon be proportionally related to each individual person's income has the potential to utterly dismantle how government in Oregon is funded."

Wittemyer asked justices whether they took that argument seriously, noting that the arts tax is the first time anyone has asserted a head tax was being imposed in Oregon since 1910.

"The head tax is unique here," Wittemyer said.

The school district argued the tax is critical to students' success because arts training teaches them skills that benefit their other coursework.

Lewis & Clark law professor John Bogdanski and Portland economist Eric Fruits filed briefs in support of Wittemyer.

After the hearing, Wittemyer complimented the Supreme Court justices' "strict" and "astute" questioning and Vannier's performance.

"I have great respect for the city attorney's office, perhaps not the City of Portland," said Wittemyer, who represented himself in the case. "We're lucky to have that good of an attorney. I just wish they weren't so good."

Wittemyer said he does not oppose funding arts for children. The tax currently pays his grandson's trumpet teacher's salary at West Sylvan Middle School, he said. Nor does the $35 charge bother him, he said.

Arguing this case is a matter of principle and constitutionality, he said.

"If it's an unconstitutional tax, I don't care for what purpose it's being used," Wittemyer said. "If it's unconstitutional, it ought not to be allowed."

The state's Supreme Court agreed to hear just 8 percent--or about 58 cases--of 708 petitions for review in 2015, court spokesman Phil Lemman said.

The state Supreme Court could take as long as several months to a year to issue its decision on the tax, Lemman said.

--Jessica Floum

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