Portland Business Alliance Challenge to Proposed Capital Gains Tax Hits Setback

The Portland Business Alliance is on shaky ground as it seeks to challenge the ballot title and explanatory statement for a proposed capital gains tax that would fund lawyers for tenants facing eviction.

As WW reported earlier, a group called Eviction Representation for All filed a Multnomah County-only ballot initiative in March that would charge a new 0.75% tax on capital gains to fund a new program.

On March 28, the deadline for suggesting changes to the ballot title that the Multnomah County attorney wrote for the measure, the PBA filed a challenge in Multnomah County Circuit Court.

Related: Tenant Advocates Seek a New Multnomah County Capital Gains Tax to Pay for Eviction-Fighting Lawyers. The PBA Pushes Back.

But it turns out that when filing that challenge, PBA’s attorney, Steve Elzinga, did not include certain information. Specifically, according Elzinga’s April 6 letter to the court, “the case caption omitted the fee authority.”

The court clerk rejected the filing March 31 because of that omission. Elzinga refiled the corrected challenge about an hour later. But, he acknowledged in his letter to the court, he failed to include a cover letter to the court explaining that his correction should be applied to the original March 28 filing, so the court construed it as applying to the date of March 31. That date is beyond the deadline for challenging the ballot title and explanatory statement.

On April 6, Elzinga wrote to the court asking that it consider PBA’s objections to the ballot title and the explanatory statement along with his argument as to why the deficiencies in his initial filing and correction should be ignored.

“The overriding interest in this case is to provide the court with the opportunity to provide the ‘first and final’ review of the ballot title drafted by the county attorney,” Elzinga wrote.

But assistant Multnomah County attorney Katherine Thomas and Margaret Olney, the attorney representing the chief petitioners for the ballot initiative, disagreed with that approach in April 8 letters to the court, saying a judge should first decide whether PBA’s challenge should even be considered before weighing the merits of that challenge. Olney called the timeliness of the challenge a “threshold issue.”

PBA and Elzinga have “not explained why requiring [PBA and Elzinga] to know and comply with the uniform trial court rules results in injustice or hardship, nor provided any other basis for disregarding the rules of the court,” Thomas added in her letter.

A hearing on the matter is scheduled for April 13 at 2:30 pm in front of Circuit Judge Katharine von Ter Stegge.