James Lombardo v. Bruce Warner, in His Official Capacity as Director of the Oregon Capacity as Director of the Oregon Department of Transportation

ORDER CERTIFYING QUESTION TO THE SUPREME COURT OF OREGON

We took this case en banc, Lombardo v. Warner, 371 F.3d 538 (9th Cir.2004) (order of the Chief Judge), 1 to determine whether the Oregon Motorist Information Act of 1971 (“OMIA”), Or.Rev.Stat. §§ 377.700-377.840, which prohibits all “outdoor advertising signs,” subject to certain exceptions not at issue in this case, id. § 377.715, but exempts “on-premises signs,” id. § 377.735(1)(e), passes constitutional muster under the First Amendment. Also challenged in this case is the OMIA’s provision, id. § 377.735(2), which permits a party to obtain a variance from the temporary sign restriction, including the temporary size limitation. Section 377.735(2) permits the issuance of a variance “for good cause shown,” and contains no temporal limitation within which the Department of Transportation (the “Department”) must act on an application for a variance.

*1009 Mindful of the Supreme Court’s admonition that “[p]rior to reaching any constitutional questions,- federal courts must consider nonconstitutional grounds for decision,” Jean v. Nelson, 472 U.S. 846, 854 , 105 S.Ct. 2992 , 86 L.Ed.2d 664 (1985) (citations and internal…

dissenting.

I must respectfully dissent from the Certification Order for the reason that the Order requests the Oregon Supreme Court to answer questions based on mere speculation.

The District Court held that the plaintiff (“Lombardo”) lacks standing to raise an as-applied challenge against the variance provision of the OMIA. It is clear that he does not have standing. Lombardo admits that he has not applied for a variance. He alleges nothing in his amended complaint that shows that it would be futile to apply for a variance. The variance provision is concerned only with the size and permanency of signs and specifically not with the sign’s message. There is no censorship.

With regard to his due process claim, Lombardo contends that the variance provision is unconstitutional because it lacks adequate safeguards necessary to guard against the suppression of protected speech. Again, the statute specifically states that the content of a sign cannot' be considered in deciding whether to grant a variance.

Variances are granted or denied on the basis of specific fact situations that cannot possibly be enumerated in the variances themselves. This matter has been pending before the…

391 F.3d 1008 James LOMBARDO, Plaintiff-Appellant, v. Bruce WARNER, in his official capacity as Director of the Oregon capacity as Director of the Oregon Department of Transportation, Defendant-Appellee. No. 02-35269. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc October 12, 2004. Filed December 3, 2004. Alan R. Herson, Jacksonville, OR, for the plaintiff-appellant. Janet A. Metcalf, Assistant Attorney General, Salem, OR, for the defendant-appellee. Appeal from the United States District Court for the District of Oregon, Michael R. Hogan, District Judge, Presiding. D.C. No. CV-98-03001-MRH. Before SCHROEDER, Chief Judge, and FERGUSON, KLEINFELD, TASHIMA, THOMAS, McKEOWN, WARDLAW, FISHER, BERZON, CLIFTON, and BYBEE, Circuit Judges. SCHROEDER, Chief Circuit Judge. 1 ORDER CERTIFYING QUESTION TO THE SUPREME COURT OF OREGON 2 We took this case en banc, Lombardo v. Warner, 371 F.3d 538 (9th Cir.2004) (order of the Chief Judge), 1 to determine whether the Oregon Motorist Information Act of 1971 ("OMIA"), Or.Rev.Stat. §§ 377.700-377.840, which prohibits all "outdoor advertising signs," subject to certain exceptions not at issue in this case, id.…