OREGON NATURAL RESOURCES COUNCIL FUND, dba Oregon Wild, Plaintiff-Respondent, Cross-Appellant,
PORT OF PORTLAND, Defendant-Appellant, Cross-Respondent.
and submitted October 6, 2015; resubmitted en banc May 17,
County Circuit Court 130913593 Eric J. Neiman, Judge pro
Matthew J. Kalmanson argued the cause for
him on the briefs were Karen O'Kasey and Hart Wagner LLP.
M. Christ argued the cause and fled the briefs for
Hadlock, Chief Judge, and Armstrong, Ortega, Sercombe,
Duncan, Egan, DeVore, Tookey, Garrett, DeHoog, and Shorr,
Judges, and Flynn, J. pro tempore.
Summary: Defendant Port of Portland (the Port) appeals a
judgment declaring that the Port violated Article I, section
8, of the Oregon Constitution when it rejected a proposed
advertisement that plaintiff Oregon Natural Resources Council
(Oregon Wild) wanted to run at Portland International
Airport. The circuit court reasoned that the Port's
advertising policy imper-missibly restricts the content of
speech by prohibiting political but not commercial
advertisements-a ruling based largely on our decision in
Karuk Tribe of California v. TriMet, 241 Or.App. 537, 251
P.3d 773 (2011), aff'd by an equally [286 Or. 448]
divided court, 355 Or. 239, 323 P.3d 947 (2014), in which we
held that TriMet had violated Article I, section 8, when it
similarly restricted advertisements on the side of public
busses. On appeal, the Port argues that this case is
distinguishable legally and factually from Karuk Tribe
because (1) the Port's advertising policy is not a
"law" for purposes of Article I, section 8 (an
argument that Karuk Tribe did not address); (2) even if the
policy is a law, it does not regulate speech based on content
but rather based on concerns inherent in managing an
international commercial airport, which are very different
from concerns about the outside of busses; and (3) even if
the policy is a law that regulates speech based on content,
the restrictions nonetheless fall within a well established
historical exception for municipal corporations acting in a
proprietary rather than governmental capacity. Oregon Wild
responds that the case is moot, because its advertisement has
run and it has no present plans to run it again. As for the
merits, Oregon Wild argues that the circuit court correctly
followed Karuk Tribe and rejected the Port's arguments.
Held: The circuit court's declaration of the
parties' rights and obligations continues to have a
practical effect on them, notwithstanding Oregon Wild's
representation that it has no present plan to run the
particular advertisement in question; thus, the appeal is not
moot. With regard to the merits, the Port's advertising
policy, which is a rule enacted by a government that
regulates the conduct of anyone who seeks to place
advertisements on the government's property, is a
"law" within the meaning of Article I, section 8.
The text of the advertising policy expressly regulates based
on the content of particular advertisements, prohibiting
religious and political content while allowing commercial
content; thus, that content-based restriction is
unconstitutional unless wholly confined within a well
established historical exception. The circuit court correctly
ruled that the Port failed to demonstrate any such historical
exception for "government as proprietor."
on appeal; cross-appeal dismissed at moot.
Or. 449] DUNCAN, J.
Port of Portland (the Port) appeals a judgment declaring that
the Port violated Article I, section 8, of the Oregon
Constitution when it rejected a proposed advertisement that
plaintiff Oregon Natural Resources Council (Oregon Wild)
wanted to run at Portland International Airport (PDX). The
circuit court reasoned that the Port's advertising policy
impermissibly restricts the content of speech by prohibiting
political but not commercial advertisements-a ruling based
largely on our decision in Karuk Tribe of California v.
TriMet, 241 Or.App. 537, 251 P.3d 773 (2011), affd
by an equally divided court, 355 Or. 239, 323 P.3d 947
(2014), in which we held that TriMet had violated Article I,
section 8, when it similarly restricted advertisements on the
side of public busses. On appeal, the Port argues that this
case is distinguishable legally and factually from Karuk
Tribe because (1) the Port's advertising policy is
not a "law" for purposes of Article I, section 8
(an argument that Karuk Tribe did not address); (2)
even if the policy is a law, it does not regulate speech
based on content but rather based on concerns inherent in
managing an international commercial airport, which are very
different from concerns about the outside of busses; and (3)
even if the policy is a law that regulates speech based on
content, the restrictions nonetheless fall within a well
established historical exception for municipal corporations
acting in a proprietary rather than governmental capacity.
Wild responds that this case is moot, because its
advertisement has run and it has no present plans to run it
again. As for the merits, Oregon Wild argues that we should
follow Karuk Tribe, reject any arguments that are
not directly controlled by that case, and affirm the circuit
court's declaratory judgment.
discussed more fully below, we are not persuaded that the
case is moot, and we therefore proceed to the merits of the
Port's appeal. On the merits, we agree with Oregon Wild
that the Port's arguments do not yield a different result
[286 Or. 450] from Karuk Tribe and, adhering to our
reasoning in that case, affirm the circuit court's
relevant factual background for this appeal is not in
dispute. The Port is a port district and municipal
corporation created in 1891. See generally Cook v. The
Port of Portland, 20 Or. 580, 27 P 263 (1891)
(describing the creation of the Port). The Port's purpose
is to promote its maritime, shipping, aviation, commercial,
and industrial interests, and it is authorized to acquire and
convey property, contract with third parties, and generally
"do any other acts and things which are requisite,
necessary or convenient in accomplishing the purpose
described or in carrying out" that purpose. ORS 778.015.
The Port owns and operates PDX.
2008, the Port adopted Ordinance No. 423-R, which regulates
the operation of PDX. Section 1.1.8 of the ordinance states
that the Port finds that "[establishing reasonable
Regulations at its Airports limiting commercial and
noncommercial activity within the Airport are
essential." To that end, section 4.1.1 delegates
authority to the Port's director to "adopt Rules
governing the operation of Airport facilities for each Port
accordance with section 4.1.1, the Port adopted the
"Portland International Airport Rules." Chapter 13
of those rules concerns "Advertising, Promotion and
Signage." Under that chapter, private parties are
permitted to lease advertising space at the airport, but
there are restrictions on the content of the advertisements.
Most significantly, for purposes of this case, the Port
"does not permit the placement of advertising materials
at the Airport that contain * * * religious or political
Or. 451] In 2013, Oregon Wild submitted a request to lease
advertising space at PDX. The proposed advertisement
contained a photograph of a tree-covered mountaintop, part of
which had been clear cut. The caption read, "Welcome to
Oregon[-]Home of the Clearcut." (Uppercase altered.) The
advertisement also included a website address, www.
Port denied Oregon Wild's request, deeming the
advertisement to be "political advertising." The
Port invited Oregon Wild to apply instead for a permit for
free speech activities, which the Port allowed in certain
areas of PDX.Oregon Wild declined that invitation and
filed this action for writ of review and declaratory relief,
alleging, among other things, that the Port's rejection
of the advertisement, based on its content, violated the
free-speech guarantees in Article I, section 8, of the Oregon
Constitution and the First Amendment to the United States
the return of the writ and the record, the parties filed
cross-motions for summary judgment. The cross-motions
addressed the import of our decision in Karuk Tribe,
review of which was pending at that time in the Supreme
Court. Because that decision frames the parties'
arguments below and on appeal, we pause to summarize it.
Karuk Tribe, the question before us was whether
TriMet, a mass transit district, had violated Article I,
section 8, by rejecting the petitioners' proposed
advertisement [286 Or. 452] based on a policy that allowed
commercial but not political advertisements on the sides of
its vehicles. TriMet defended its advertising policy on two
grounds, both of which related to TriMet's proprietary
functions as a municipal corporation. First, TriMet argued that
the framework set out in State v. Robertson, 293 Or.
402, 649 P.2d 569 (1982), for evaluating Article I, section
8, claims-a framework in which regulations based on the
content of expression are impermissible unless wholly
confined to a historical exception- should not apply to
TriMet's policy because it was acting in its proprietary
rather than regulatory capacity as a transit district. That
is, notwithstanding Robertson, TriMet urged the
court to construe Article I, section 8, to "allow
government-drawn distinctions based on the content of
expression where the government acts in its proprietary
capacity." Karuk Tribe, 241 Or.App. at
Second, in its reply brief, TriMet advanced the alternative
argument that, even if the Robertson framework were
to apply, a similar "government as proprietor"
distinction puts TriMet's advertising policy restrictions
within a well-established historical exception to the reach
of Article I, section 8. Karuk Tribe, 241 Or.App. at
rejected both of those "government as proprietor"
arguments. The first we rejected on the merits, concluding
that "TriMet's arguments before us that this is not
a Robertson case are unpersuasive." Karuk
Tribe, 241 Or.App. at 547. The second, however, we
concluded had been raised [286 Or. 453] too late in the
litigation. We explained that "[w]e do not reach the
merits of that [historical exception] argument for two
reasons: not only did TriMet fail to preserve that argument
below, but, as we have often had occasion to remind others, a
party may not raise an issue for the first time in a reply
brief." Id. at 548 (internal quotation marks,
alterations, and citations omitted).
process of rejecting those arguments, we also identified but
did not address yet another possible "government as
proprietor" issue under Article I, section 8-that is,
whether TriMet's advertising policy was even a
"law" for purposes of that constitutional
provision. We noted:
"TriMet does not contend that an advertising policy
adopted by a governmental officer that only affects
contractual relationships of that government does not enact
or implement a 'law' under Article I, section 8.
Indeed, TriMet eschewed any such contention at oral argument.
***. Neither we nor the Supreme Court have decided whether a
governmental policy adopted by an executive officer that only
affects contractual relationships of that government, and
does not enact or implement a general rule of civil conduct,
qualifies as a 'law, ' whose enactment or enforcement
is constrained by Article I, section 8. It may be that the
relevant 'law' here is ORS 267.140(2), empowering the
general manager to adopt the policy in question. As we have
said, however, any legal distinction about the meaning of a
'restricting' or 'restraining' 'law'
under Article I, section 8-although related to TriMet's
'government as proprietor' thesis-is outside the
legal questions presented to the reviewing court below and
advanced on appeal."
Karuk Tribe, 241 Or.App. at 547 n 7.
October 2011, the Supreme Court allowed review of our
decision, and it remained pending in that court at the time
that Oregon Wild and the Port filed their summary judgment
motions in this case in 2013. In its motion, Oregon Wild
argued that this case was "nearly identical" to
Karuk Tribe: "The issue in both cases is
whether the government can regulate the content of
advertising on government-owned property that has been opened
to the public for that purpose." Oregon Wild urged the
circuit court to simply [286 Or. 454] follow that decision-at
least until the Supreme Court said otherwise.
Port, in its cross-motion, argued that Karuk Tribe
resolved only one of the grounds upon which the Port defended
its advertising policy. The Port's motion advanced four
bases for granting summary judgment in its favor under
Article I, section 8: (1) The Port's advertising policy
is not a "law, " and therefore Article I, section
8, does not apply; (2) the Robertson framework does
not apply because the Port was acting in a proprietary rather
than regulatory capacity; (3) even if Robertson
applies, the Port's policies are reasonable time, place,
and manner restrictions that regulate, not proscribe, speech
at PDX; and (4) again assuming Roberson applies, the
advertising policy falls within a historical exception for
conduct taken by a municipal corporation acting in its
proprietary capacity. Only the second argument, the Port
argued, was controlled by our decision in Karuk
Tribe, and the rest were open questions-the first and
fourth, expressly so.
letter opinion on the cross-motions, the circuit court ruled
in favor of Oregon Wild. The court explained:
"The protection given to freedom of speech by Article I,
Section 8 of the Oregon Constitution has its own body of case
law. I am persuaded that this case is controlled by
[Karuk Tribe]. Defendant argues that, at the time of
adoption of the Oregon Constitution in 1857, the framers had
in mind an exception to the freedom of speech guarantee for
governments to limit speech on premises operated in their
proprietary capacity. There is a heavy burden on [the Port],
which proposes to restrict speech, to demonstrate the
existence of this exception. The cases and examples cited by
[the Port] do not satisfy this burden.
"Unless the Oregon Supreme Court tells us otherwise when
it decides Karuk Tribe, [the Port's] policy
regulates the content of speech and not simply its effects.
For that reason, plaintiff is entitled to the relief sought
under the Oregon Constitution."
court then entered a judgment, in accordance with its ruling,
declaring that the Port "violated Article I, section 8,
of the Oregon Constitution * * * when it rejected [Oregon
[286 Or. 455] Wild's] proposed advertisement, as alleged
in [Oregon Wild's] complaint." The judgment further
stated, "in accordance with the writ of review statutes,
ORS 34.010 to 34.102, the court reverses [the Port's]
decision to reject the advertisement and, instead, orders
[the Port] to accept it."
Port subsequently filed its appeal and, before the parties
had filed their briefs, the Supreme Court issued its decision
in Karuk Tribe-a per curiam opinion that
affirmed by an equally divided court, with only six justices
participating. 355 Or. 239. Shortly after that decision, the
Port asked this court to certify the case directly to the
Supreme Court, so that the issues presented in Karuk
Tribe could be addressed by a full seven-member court.
Oregon Wild opposed the motion, ...