Outdoor Media Dimensions Inc. v. State

• Decision Date: 08 March 2001
• Parties: OUTDOOR MEDIA DIMENSIONS INCORPORATED, an Oregon corporation, Petitioner on Review, v. STATE of Oregon, Jimmy L. Odom, Julie Evey, and Henry Montes, Respondents on Review.
• Court: Oregon Supreme Court

20 P.3d 180

331 Or. 634

OUTDOOR MEDIA DIMENSIONS INCORPORATED, an Oregon corporation, Petitioner on Review, v. STATE of Oregon, Jimmy L. Odom, Julie Evey, and Henry Montes, Respondents on Review.

(94-3953-L2; CA A91779; SC S44590)

Supreme Court of Oregon.

Argued and Submitted November 9, 1998.

Decided March 8, 2001.

Alan R. Herson, Jacksonville, argued the cause and submitted the briefs and memoranda for petitioner on review.

Rives Kistler, Assistant Attorney General, Salem, argued the cause for respondents on review. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

James E. Mountain Jr., Salem, and Donald Joe Willis, Portland, filed the briefs for amicus curiae Oregon Outdoor Advertising Association.

G. Kenneth Shiroishi, Portland, filed the brief for amicus curiae American Civil Liberties Union Foundation of Oregon.

Madelyn Wessel, Portland, filed the briefs for amicus curiae City of Portland.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, LEESON, and RIGGS, Justices.²

RIGGS, J.

Outdoor Media Dimensions Inc. (plaintiff) brought this civil action that, among other things, challenges the constitutionality of the Oregon Motorist Information Act (OMIA). ORS 377.700 to ORS 377.840; ORS 377.992. Plaintiff contends that the OMIA, which regulates signs along Oregon highways, violates the free speech provisions of both the state and federal constitutions. The trial court disagreed and granted summary judgment to defendants, the State of Oregon and three of its employees (collectively "the state"). The Court of Appeals affirmed. Outdoor Media Dimensions Inc. v. State of Oregon, 150 Or. App. 106, 945 P.2d 614 (1997). This court allowed review, primarily to address plaintiff's arguments under the Oregon Constitution. As discussed below, however, we are unable to reach those arguments in this case. For the reasons that follow, we affirm the decision of the Court of Appeals and the judgment of the trial court.

I. BACKGROUND

The legislature enacted the OMIA in 1971. Or Laws 1971, ch 770. The OMIA was Oregon's effort to comply with the federal Highway Beautification Act of 1965(HBA), 23 U.S.C. § 131. The HBA established federal standards for erecting and maintaining outdoor advertising signs, displays, and devices along interstate and federally aided primary highways. See 23 U.S.C. § 131(a) (stating purposes of HBA). The HBA requires that, unless a state provides "effective control" of outdoor advertising signs, the state will lose 10 percent of its federal highway funds. 23 U.S.C. § 131(b), (c). "Effective control" essentially requires states to prohibit all outdoor advertising signs that are visible from an interstate or primary highway, unless a particular sign meets one of five statutory exceptions or is located in an industrial or commercial zone. See 23 U.S.C. § 131(c), (d) (setting out that prohibition and listing exceptions).³

The OMIA generally prohibits erecting or maintaining most signs visible to the traveling public from a state highway, unless the sign complies with the provisions of the OMIA, rules adopted under the OMIA, and any federal requirements. ORS 377.715 (1991).⁴ As relevant to this case, the OMIA prohibits all but certain pre-existing "outdoor advertising signs," ORS 377.725, and restricts the placement of those signs, id.; ORS 377.765(1). An "[o]utdoor advertising sign" is one that advertises: (1) "[g]oods, products or services which are not sold, manufactured or distributed on or from the premises on which the sign is located," ORS 377.710(24)(a); or (2) "[f]acilities not located on the premises on which the sign is located," ORS 377.710(24)(b). The exception to the OMIA's general prohibition against outdoor advertising signs applies to outdoor advertising signs that existed before June 12, 1975, in commercial or industrial zones. The OMIA permits the owners of such signs to obtain permits allowing those signs to remain. ORS 377.712; ORS 377.725. With certain limits and upon written notice, the owner of an outdoor advertising sign that meets the above criteria may transfer the permit for that sign to another sign owner. ORS 377.725(2).

II. FACTS

As noted, the trial court resolved this case on summary judgment. Accordingly, we view the facts and all reasonable inferences that may be drawn from the facts in favor of plaintiff, the nonmoving party. Jones v. General Motors Corp., 325 Or. 404, 408, 939 P.2d 608 (1997). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. A genuine issue of material fact is lacking when "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id.

Plaintiff is an outdoor advertising company that owned a billboard along Route 62 in Jackson County. Plaintiff did not have a permit for the billboard. Plaintiff placed a religious message on one side of the billboard and a radio station advertisement on the other. In February 1993, the state notified plaintiff by letter that the billboard violated the OMIA:

"This is to notify you that the referenced sign, visible to a state highway, is in violation of the Oregon Motorist Information Act. The sign violates Oregon Revised Statute (ORS) 377.725, installed without permit authority. The sign advertises an activity which is not at the location of the sign and is, therefore, an off-premise sign. Oregon Law, pursuant to the Federal Highway Beautification Act, has prohibited the erection of new off-premise advertising signs visible to state highways since June 12, 1975. The sign must be removed or corrected within 30 days from the date of this notice.

"* * * * *

"Enclosed is a copy of the ORS Section of the law under which this determination was made. If you feel your sign is not in violation of the law, you may request a hearing before the Highway Engineer (within 30 days from the date of this notice) * * * [t]o present your arguments.

"If you fail to respond, or if the sign is not removed or corrected as provided in this notice, it becomes subject to removal by the Highway Division * * *."

(Boldface and underscoring in original.)

Following receipt of the notice, plaintiff advised the state of its intention to apply for a relocation permit for the billboard. An employee of the state told plaintiff that, because plaintiff had expressed an intention to apply for a relocation permit, the notice was moot and plaintiff should not seek a hearing. In reliance on that statement, plaintiff did not request a hearing and, instead, attempted to obtain a relocation permit. That attempt failed.

At some point thereafter, the state informed plaintiff that, if plaintiff removed all speech from the billboard, then the state would not remove the billboard. In April 1994, in reliance on that statement, plaintiff removed the religious message and the radio advertisement from the billboard, leaving the structure empty. Nevertheless, in September 1994, the state removed the billboard. Plaintiff filed this action shortly thereafter.

Plaintiff initially asserted two claims for relief: conversion and a claim under 42 U.S.C. § 1983 (1994).⁵ Shortly after filing its complaint, plaintiff filed an amended complaint, adding a third claim for relief for a declaratory judgment and for an injunction. Plaintiff's third claim pertained to a second billboard, located along Interstate 5 near Ashland. Plaintiff had placed an advertisement on that billboard for stores that were located off the premises of the sign. As with the first billboard, the state sent plaintiff a notice that the second billboard violated the OMIA.

With respect to that billboard, however, and unlike plaintiff's course of conduct as to the first billboard, plaintiff requested an administrative hearing. Plaintiff did not prevail at that hearing, removed the advertisement from the billboard, and replaced the advertisement with a religious message. The state did not notify plaintiff to remove that message. Plaintiff nevertheless later removed the message. In its amended complaint, plaintiff alleged an intention to have the billboard advertise an activity that was located off the premises of the sign. Based in part on that alleged intention, plaintiff sought a declaration that the OMIA violates both the Oregon and United States Constitutions, and an injunction prohibiting the state from removing from the second billboard any advertisement of an activity conducted off the premises.

In its answer, the state raised various affirmative defenses. Included among those was the claim that plaintiff had failed to exhaust its administrative remedies and, therefore, was barred from bringing its first and third claims for relief.⁶ After the state filed its answer, plaintiff moved for summary judgment on its third claim for relief. Plaintiff argued that the OMIA, on its face, was invalid under both the Oregon and United States Constitutions and, therefore, as a matter of law, plaintiff was entitled to the declaratory judgment and injunction that it sought. The state filed a cross-motion for summary judgment, asserting that the OMIA was facially valid. The trial court granted the state's cross-motion.

Plaintiff then filed a second amended complaint. With respect to the conversion claim, the second amended complaint added a new allegation, viz., that the state had permitted plaintiff to retake possession of the first billboard, but had demanded that plaintiff pay the state $962.50 for the cost of removing that billboard. Plaintiff claimed $90,000 in damages based on the alleged conversion and, in addition, requested a declaration from the trial court that plaintiff was not indebted to the state for the removal costs. Plaintiff also claimed that amount of damages with respect to its section 1983 claim.

With respect to plaintiff's claim for...