Meredith v. Oregon

• Decision Date: 27 February 2003
• Docket Number: No. 01-35869.,01-35869.
• Citation: 321 F.3d 807
• Parties: Howard MEREDITH, Plaintiff-Appellee, v. State of OREGON; Bruce A. Warner, Director of Oregon Department of Transportation; Jimmy L. Odom, Outdoor Advertising Technician, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

321 F.3d 807

Howard MEREDITH, Plaintiff-Appellee, v. State of OREGON; Bruce A. Warner, Director of Oregon Department of Transportation; Jimmy L. Odom, Outdoor Advertising Technician, Defendants-Appellants.

No. 01-35869.

United States Court of Appeals, Ninth Circuit.

Submitted April 1, 2002.^*

Filed February 27, 2003.

Janet A. Metcalf, Senior Assistant Attorney General, Salem, OR, for the defendants-appellants.

Russell L. Baldwin, Lincoln City, OR, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, Chief District Judge, Presiding. D.C. No. CV-01-06140-HO.

Before D.W. NELSON, THOMPSON and PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

The posture of this case raises significant jurisdictional concerns. At issue is whether we may exercise our pendent appellate jurisdiction to review, on interlocutory appeal, the district court's denial of a motion to dismiss on the basis of Younger abstention in conjunction with reviewing the court's grant of a preliminary injunction. The State of Oregon ("State") urges us to exercise pendent appellate jurisdiction and to review the denial of its motion to dismiss. In contrast, Meredith contends that we lack jurisdiction to review the denial. We hold that, because resolution of the Younger abstention issue is "necessary to ensure meaningful review of" the grant of the preliminary injunction, we have pendent appellate jurisdiction to review this otherwise non-appealable order denying Younger abstention. We, however, affirm the district court's decision not to abstain under Younger and its grant of the preliminary injunction.

BACKGROUND

Appellee Howard Meredith ("Meredith") owned a vacant parcel of property adjacent to scenic Highway 101 in Lincoln City Oregon. He erected a sign on his property, visible to travelers on Highway 101, that advertised "The Resort at Whale Pointe," an establishment located in Depoe Bay, Oregon, which is several miles away from Meredith's property. Meredith did not apply for or obtain a permit authorizing the erection and maintenance of his sign.

On May 19, 1999, Appellant State of Oregon¹ initiated, through a notice of violation letter, an enforcement action against Meredith, advising him that his sign violated the Oregon Motorist Information Act ("OMIA"), Or.Rev.Stat. §§ 377.700-377.840,² and that he had a right to correct the sign or to request an administrative hearing. The OMIA requires that individuals obtain an annual permit if they wish to erect or maintain an "outdoor advertising sign"³ that is visible to the public from a state highway.

Meredith requested an administrative hearing, which was held on December 12, 2000. At the hearing, Meredith challenged the constitutionality of the OMIA under both federal and state law. The administrative law judge ("ALJ") issued a proposed order on February 22, 2001, dismissing Meredith's constitutional challenges as foreclosed by the Court of Appeals' decision in Outdoor Media Dimensions, Inc. v. State of Oregon, 150 Or.App. 106, 945 P.2d 614 (Or.Ct.App.1997), and requiring Meredith immediately to remove his sign from his vacant property or pay the State to remove the sign.

After the administrative hearing but before the ALJ's order became final, Meredith changed his sign to read "FOR RENT." On the basis of his changed sign, Meredith filed exceptions to the proposed order, requesting that the Oregon Department of Transportation ("ODOT") stay further enforcement proceedings and grant him a contested-case hearing to determine whether the new "FOR RENT" sign complied with the OMIA. The ODOT denied Meredith's request.

On March 8, 2001, still prior to the issuance of a final order, the Oregon Supreme Court held in Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or. 634, 20 P.3d 180, 190 (Or.2001), that an owner of a sign may change the sign's content to bring it into compliance with the OMIA. In light of this decision, Meredith changed the content of his sign to read:

ODOT IS IN VIOLATION OF PRESIDENT OF USA EXECUTIVE ORDER 12630 OF THE FIFTH AMENDMENT AND ORE. CONSTITUTION ARTICLE 1 SECTION 8 AND 20. OPINION OF H.E. MEREDITH.

He filed exceptions and argument to the ALJ's proposed order and again requested that the ODOT stay further enforcement of the OMIA until after he could establish the legality of the new sign. The ODOT denied Meredith's requests for a stay and a hearing to introduce evidence of his amended sign.

On April 25, 2001, Meredith filed suit in district court. He sought a declaratory judgment that the OMIA violated the First Amendment and certain provisions of the Oregon constitution and a preliminary injunction enjoining the ODOT from further enforcing the statute.

The ALJ issued his final order on May 17, 2001, requiring Meredith or the State (at Meredith's expense) to remove his sign because it violated the OMIA. Due to the ODOT's denial of Meredith's request to present evidence of his amended sign, the ALJ was unable to consider the amended content, reasoning that "[a]ny evidence proposed to be submitted after the hearing is not properly in the record and may not be considered here." Meredith appealed the ALJ's ruling to the Oregon Court of Appeals on June 11, 2001, and the appeal is still pending. Meredith also requested on May 22, 2001, that the ODOT stay enforcement of the ALJ's final order until he had an opportunity to raise his federal claims in the Oregon Court of Appeals. The ODOT denied his request on June 27, 2001. On September 27, 2001, the Court of Appeals affirmed the ODOT's denial of the stay and also denied Meredith's separate motion for a stay.

In district court, the State filed both a motion to dismiss and an opposition to Meredith's motion for a preliminary injunction, arguing in both that the district court was required to abstain under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The district court denied the State's motion to dismiss because the court was not convinced that Meredith would have an adequate opportunity in state court to raise his federal constitutional claims regarding his amended sign. The court noted that the ALJ had refused to review the amended content of Meredith's sign, that Meredith's federal constitutional claims therefore were not before the Oregon Court of Appeals, and that the amendment was "critical" to a proper evaluation of Meredith's claims due to its political nature. The court granted a preliminary injunction in favor of Meredith, barring the State from removing the sign until the merits of the case were resolved.

The State appealed the denial of its motion to dismiss and the grant of the preliminary injunction. We issued an unpublished memorandum disposition dismissing the State's appeal for lack of appellate jurisdiction. The State then filed a Petition for Rehearing and Suggestion for Rehearing En Banc. We granted the Petition for Rehearing and denied the Petition for Rehearing En Banc as moot.

STANDARD OF REVIEW

We review de novo the district court's decision not to abstain under Younger. Green v. City of Tucson, 255 F.3d 1086, 1093 (9th Cir.) (en banc), cert. dismissed, 533 U.S. 966, 122 S.Ct. 4, 150 L.Ed.2d 787 (2001); Dubinka v. Judges of the Superior Court, 23 F.3d 218, 221 (9th Cir.1994).

DISCUSSION

I.

We have jurisdiction to review the district court's grant of a preliminary injunction. See 28 U.S.C. § 1292(a)(1) (establishing jurisdiction of courts of appeal over "[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions"). At issue here is whether we also have jurisdiction to review the district court's order denying the State's motion to dismiss, which was based on Younger abstention. This order does not qualify as a final decision under 28 U.S.C. § 1291 or an interlocutory order as defined in 28 U.S.C. § 1292, and it does not fit within the collateral order exception to § 1291.⁴ We therefore focus on whether exercise of our pendent appellate jurisdiction is appropriate.

"Pendent appellate jurisdiction refers to the exercise of jurisdiction over issues that ordinarily may not be reviewed on interlocutory appeal, but may be reviewed on interlocutory appeal if raised in conjunction with other issues properly before the court." Cunningham v. Gates, 229 F.3d 1271, 1284 (9th Cir.2000). In Swint v. Chambers County Commission, the Supreme Court declined to settle definitively "whether or when it may be proper for a court of appeals, with jurisdiction over one ruling, to review, conjunctively, related rulings that are not themselves independently appealable." 514 U.S. 35, 50-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). The Court made clear, however, that appellate courts should exercise restraint in reviewing on interlocutory appeal otherwise non-appealable orders because "a rule loosely allowing pendent appellate jurisdiction would encourage parties to parlay Cohen-type collateral orders into multi-issue interlocutory appeal tickets...." Id. at 49-50, 115 S.Ct. 1203 (citing Abney v. United States, 431 U.S. 651, 663, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977)); see also Switzerland Cheese Ass'n v. E. Horne's Mkt., Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966) (cautioning that § 1292(a)(1)'s jurisdiction over interlocutory appeals should be applied "somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders"). Despite its reluctance to "expan[d][] the scope of an interlocutory appeal," Swint, 514 U.S. at 50, 115 S.Ct. 1203, the Court suggested that, under our pendent appellate jurisdiction, appellate courts may review rulings that are "inextricably intertwined" with or "necessary to ensure meaningful review of" decisions over which we have jurisdiction.⁵ Id. at 51, 115 S.Ct. 1203. Since Swint, we and our sister circuits have examined whether an otherwise non-appealable ruling is ...