734 P.2d 885 | Or. | 1987
Lead Opinion
The petitioner on review, Multnomah County, has filed a motion which reads as follows:
“Petitioner herein, Multnomah County, hereby withdraws its Petition for Review as though the same was never filed, and moves the Court to dismiss the Petition without taking any other action. If the Court should refuse to grant this Motion to withdraw Petition and instead proposes to vacate the Court of Appeals Opinion involved herein, petitioner and respondent ask leave to be heard further on that matter.”
Without expressing an opinion on the merits of this case, we dismiss the Petition for Review.
Dissenting Opinion
dissenting.
In Banister Continental Corp. v. NW Pipeline Corp., 301 Or 763, 724 P2d 822 (1986), we vacated a decision of the Court of Appeals when the case was settled and became moot after argument in this court. In Saechao v. Matsakoun, 302 Or 155, 727 P2d 126 (1986), the case was settled after this court allowed a petition for review but before argument, and the court thereafter “dismissed the petition for review.” The present case demonstrates why the disposition in Banister, which also is the practice in the United States Supreme Court, is the better practice after this court has taken review of a case, or at a minimum, after the case has been argued and submitted. See Saechao v. Matsakoun, supra (Linde, J., concurring).
The present case has a curious history. Multnomah County adopted an ordinance regulating outdoor “off-premise” advertising signs, which Ackerley Communications, Inc. unsuccessfully attacked before the Land Use Board of Appeals. The Court of Appeals reversed the board’s decision, holding that the ordinance violated the Oregon Constitution by distinguishing between commercial and noncommercial outdoor advertising signs. Ackerley Communications, Inc. v. Multnomah Co., 72 Or App 617, 696 P2d 1140 (1985).
We allowed the county’s petition for review on June 18, 1985, and asked the parties for additional memoranda on
On January 13, 1987, the county filed the following document with this court:
“Petitioner herein, Multnomah County, hereby withdraws its Petition for Review as though the same was never filed, and moves the Court to dismiss the Petition without taking any other action. If the Court should refuse to grant this Motion to withdraw Petition and instead proposes to vacate the Court of Appeals Opinion involved herein, petitioner and respondent ask leave to be heard further on that matter.”2
The court requested further clarification. The county’s (petitioner’s) answer stated in part:
“Petitioner requests this Court to follow whatever procedure is appropriate to accomplish termination of the pending review with the same result reached in Saechao v. Matsakoun, 302 Or. 155 (1986), and not the result in Banister Continental Corp. v. N.W. Pipeline Corp., 301 Or. 763 (1986).
“Petitioner does not want the Court of Appeals Opinion vacated herein. Petitioner suggests that simply withdrawing its Petition for Review, as though it were not filed, should terminate this Court’s jurisdiction to act further.”
Respondent’s answer to the court’s inquiry further explained the reason for the unusual form of petitioner’s motion. Its letter stated in part:
“The particular language placed in respondent’s [sic] Motion to Withdraw Petition for Review was selected in an effort to have the Court reach the same result as it did in Saechao v. Matsakoun, 302 Or. 155 (1986), where it simply noted that it expressed no opinion on the merits, and dismissed the Petition for Review. Compare Banister Continental Corp. v. N.W. Pipeline Corp., 301 Or. 763 (1986).
“To the extent necessary, respondent asks the Court to accept this position as its half of Stipulated Order of Dismissal exactly as was set forth in Saechao, supra.
“Respondent also asks the Court to consider that it is important to it to let the Court of Appeals Opinion remain intact. In addition to that Opinion being important to respondent in its dealings with the petitioner, it is important for respondent in its dealings with other governmental entities in this state. Respondent is hopeful it will not be put to the great expense not only of money, but time, of its key employees in relitigating similar issues involving other governmental entities.
“Part of the benefit that respondent should receive from its settlement of disputes with Multnomah County is the ability to maintain the Court of Appeals Opinion intact.”3
In short, the parties explained that they had bargained to preserve the precedential effect of a lower court opinion for use against other governmental entities as part of the settlement of a case between one county and one advertising sign company. That is commendable candor. But it cannot be an acceptable way to manipulate this court’s treatment of lower court opinions once a petition for review is allowed and this court has jurisdiction of the case.
The present case is not simply a private claim for money damages, like Banister Continental Corp. and Saechao. This case concerns a public policy that one legislative body enacted into law and that others perhaps might consider emulating. The parties tell us that this is exactly the reason why they bargained over an adverse constitutional opinion of the Court of Appeals. That court’s decision may or may not have reached a correct result, but this court considered the question sufficiently important and sufficiently doubtful to allow review and ask for further briefing. The Attorney General filed a brief for the State of Oregon drawing attention to the effect of the opinion below on the control of roadside billboards under state statutes and the federal Highway Beautification Act.
Competent lawyers of course understand that an opinion of the Court of Appeals is not the final word on the constitutionality of such laws, or any other legal issue. Cf. 1000 Friends of Oregon v. Bd. of Co. Comm., 284 Or 41, 584 P2d 1371 (1978). Nonetheless, they understandably feel obliged to follow the opinion unless they are prepared to relitigate the validity of a diverging policy to the point of review in this court. This is entirely reasonable, but it also shows why officials of one county should not be able to bargain away the existing or potential public policies of other state and local lawmakers in a settlement that leaves all of them facing an apparently authoritative constitutional barrier.
This is exactly the kind of case in which the disposition made in Banister Continental Corp. is needed. If petitioner Multnomah County wishes to withdraw its resistance to respondent’s attack on its ordinance, the decision of the
The Court of Appeals held that the off-premises sign control ordinance was an impermissible regulation of message content because it regulated advertising that had only “commercial” content but exempted “noncommercial” outdoor advertising such as signs displaying political, educational, philosophical, social, or public service messages. The focus of our questions was whether the distinction could be regarded as an allocation of priorities in a limited resource (opportunity to command the attention of persons using the roads or streets) created by the government in channeling traffic along those roads or streets.
At the same time, respondent moved to withdraw its notice of appeal in a related case in the Oregon Tax Court.
The letter also discussed the status of the decision of the Land Use Board of Appeals if the decision of the Court of Appeals were vacated.