Lombardo v. Warner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JAMES LOMBARDO,  No. 02-35269
Plaintiff-Appellant, D.C. No.
v. CV-98-03001-
BRUCE WARNER, in his official  MRH(JPC)
capacity as Director of the Oregon District of
Department of Transportation, Oregon, Medford
Defendant-Appellee.
 ORDER

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding

Argued and Submitted En Banc
October 12, 2004—San Francisco, California

Filed March 5, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,
Warren J. Ferguson, Andrew J. Kleinfeld,
A. Wallace Tashima, Sidney R. Thomas,
M. Margaret McKeown, Kim McLane Wardlaw,
Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton,
and Jay S. Bybee, Circuit Judges.

COUNSEL

Alan R. Herson, Jacksonville, Oregon, for the plaintiff-
appellant.

Hardy Myers, Attorney General; Mary H. Williams, Solicitor
General; Janet A. Metcalf, Assistant Attorney General, Salem,
Oregon, for the defendant-appellee.

2415
2416 LOMBARDO v. WARNER
ORDER

After we took this case en banc, Lombardo v. Warner, 371
F.3d 538 (9th Cir. 2004), and after oral argument before the
en banc panel, we certified two questions to the Oregon
Supreme Court, see Lombardo v. Warner, 391 F.3d 1008 (9th
Cir. 2004). On March 23, 2006, the Oregon Supreme Court
addressed the certified questions in Lombardo v. Warner, 132
P.3d 22 (Or. 2006). On the same day, the Oregon Supreme
Court also issued a decision in Outdoor Media Dimensions,
Inc. v. Department of Transportation, 132 P.3d 5 (Or. 2006)
(“Outdoor Media”). The remedy imposed in Outdoor Media
renders Lombardo’s claims moot, and we now dismiss his
appeal.

BACKGROUND

The factual history of this case is detailed in our certifica-
tion order. Lombardo, 391 F.3d at 1008-09. In brief, Lom-
bardo wished to display at his residence a 32-square-foot sign
reading “For Peace in the Gulf,” but he could not do so with-
out first obtaining a variance from the temporary sign restric-
tion under the 1999 version of the Oregon Motorist
Information Act of 1971 (“OMIA”). Lombardo sought declar-
atory and injunctive relief, alleging that (1) the OMIA is an
impermissible content-based regulation because it favors
commercial over non-commercial speech; and (2) the
OMIA’s variance provision is an unconstitutional prior
restraint on speech. He challenged the variance provision on
First Amendment grounds because, in his view, the provision
gives state officials “unbridled discretion” and no time limit
to rule on a variance.

Of relevance to Lombardo’s underlying claims are the fol-
lowing provisions in the OMIA: The OMIA imposes a permit
requirement on “outdoor advertising signs.”1 ORS 377.725(1).
1
An “outdoor advertising sign” is defined as a “sign designed, intended
or used to advertise, inform or attract the attention of the public as to: (a)
 LOMBARDO v. WARNER 2417
Under OMIA, certain signs are exempt from the permit
requirement. For example, “on-premises signs”2 are exempt.
See ORS 377.735(1)(c). “Temporary signs” are also exempt
from the permit requirement if they meet certain conditions,
including a size limitation; specifically, § 377.735(1)(b) states
in part: “A temporary sign on private property [is exempt] if
. . . [t]he sign does not exceed 12 square feet.” Persons wish-
ing to display a temporary sign that does not satisfy the condi-
tions set forth in § 377.735(1)(b) are subject to the variance
provision in § 377.735(2), which states in part: “The Depart-
ment of Transportation may adopt rules that, for good cause
shown, allow a person displaying a temporary sign to obtain
a variance from the restrictions in subsection (1)(b) of this
section.”

Because Lombardo’s sign exceeded the 12-square-feet size
limitation for temporary signs, he was required to obtain a
variance from the temporary sign restriction. Lombardo’s
constitutional challenge focuses on the variance process, a
step that would not have been required if he were displaying
an on-premises sign.

OUTDOOR MEDIA

In Outdoor Media, an outdoor advertising company
brought suit challenging the OMIA’s on-premises/off-
premises distinction with respect to the permit requirement.

Goods, products or services which are not sold, manufactured or distrib-
uted on or from the premises on which the sign is located; (b) Facilities
not located on the premises on which the sign is located; or (c) Activities
not conducted on the premises on which the sign is located.” ORS
377.710(23).
2
An “on-premises sign” is defined as a “sign designed, intended or used
to advertise, inform or attract the attention of the public as to: (a) Activi-
ties conducted on the premises on which the sign is located; or (b) The
sale or lease of the premises on which the sign is located.” ORS
377.710(22).
2418 LOMBARDO v. WARNER
132 P.3d at 10. The Oregon Supreme Court concluded that
“the OMIA’s on-premises/off-premises distinction—more
particularly, the exemption from the OMIA’s permit and fee
requirements for on-premises signs, ORS 377.735(1)(c)—is,
on its face, an impermissible restriction on the content of
speech.” 132 P.3d at 18. Thus, the Oregon Supreme Court
held that the distinction was a violation of Article I, § 8 of the
Oregon Constitution. Id. The specific remedy imposed by the
Oregon Supreme Court was “to strike from the OMIA the per-
mit and fee requirements for outdoor advertising signs,
ORS 377.725(1).” Id. at 19.3

Section 377.725(1) provides: “Unless an annual permit has
been issued therefor, an outdoor advertising sign or a direc-
tional sign shall not be erected, maintained or replaced by any
person.” As noted, § 377.710(23) defines an “outdoor adver-
tising sign” as a sign that advertises off-premises goods, prod-
ucts, services, facilities, or activities. This definition is broad
and does not make a distinction between permanent and tem-
porary signs. Thus, a temporary off-premises sign (such as
Lombardo’s) easily falls within the definition of an “outdoor
advertising sign.”

In striking § 377.725(1) from the statute, the Oregon
Supreme Court eliminated the permit requirement for all out-
door advertising signs, which, by definition, includes tempo-
rary off-premises signs. A logical consequence of this remedy
is that § 377.735(1)(b) (providing an exemption from the per-
mit requirement for temporary signs) is now surplusage with
respect to temporary “outdoor advertising signs.” If no permit
is required, then the exemption provision is unnecessary. It
follows then that the variance provision (§ 377.735(2)),4
3
We recognize that the Oregon legislature may amend the statute,
although it has not yet done so. In such a case, it is not unlikely that the
OMIA will be before the federal courts in another incarnation. But we
leave that prospect for another day as the present case is moot.
4
The certified questions related to the details of the variance provision.
In certifying these questions, we could not have anticipated that the Ore-
gon Supreme Court would concurrently issue another opinion that dramat-
ically changed the structure of the OMIA.
 LOMBARDO v. WARNER 2419
which allows for a variance from the temporary sign restric-
tion in § 377.735(1)(b), becomes moot as to the temporary
“outdoor advertising signs.” As a matter of common sense, if
there is no permit requirement, there is no need for an exemp-
tion from that requirement, and no need for a variance from
the exemption. See City of Auburn v. United States, 154 F.3d
1025, 1028 n.5 (9th Cir. 1998) (noting that appeal should be
dismissed when an intervening decision renders a case moot).

CONCLUSION

For the foregoing reasons, we conclude that Lombardo’s
claims are now moot under the remedy imposed by Outdoor
Media. Accordingly, the appeal is DISMISSED.
 PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.