OREGON TRUCKING ASSOCIATIONS, INC., an Oregon nonproft corporation; AAA Oregon/Idaho, an Oregon nonproft corporation;Oregon-Columbia Chapter of the Association; Redmond Heavy Hauling;Gordon Wood Insurance & Finance;Property Casualty Insurers Association of America;National Association of Mutual Insurance Companies;and Oregon Mutual Insurance Company, Plaintiffs-Respondents,
DEPARTMENT OF TRANSPORTATION and Department of Administrative Services, Defendants-Appellants.
and submitted September 3, 2015.
County Circuit Court 12C16207 Vance D. Day, Judge.
C. Moan, Assistant Attorney General, argued the cause for
appellants. With him on the briefs were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
Gregory A. Chaimov argued the cause for respondents. With him
on the brief was Davis Wright Tremaine LLP.
A. Santiago, Roy Pulvers, Garrett S. Garfeld, Nellie Q.
Barnard, and Holland & Knight LLP fled the brief amicus
curiae for NICUSA, Inc.
DeVore, Presiding Judge, and James, Judge, and Duncan, Judge
Or.App. 823] Case Summary:
declaratory judgment action, plaintiffs sought declarations
concerning an agreement between the two defendants-the Oregon
Department of Transportation (ODOT) and the Department of
Administrative Services (DAS)-that transferred a highway fund
asset and concerning the disposition of funds related to that
agreement. Following cross-motions for summary judgment, the
trial court entered a judgment in plaintiffs' favor
declaring that ODOT lacked authority to enter into the
agreement and that defendants were required to use a $3.00
fee collected in connection with the agreement only for
certain purposes. Defendants appeal, contending that the
trial court erred by granting plaintiffs' partial motion
for summary judgment and by denying defendants' motion.
Defendants argue that ODOT had authority to enter into the
agreement and that neither the agreement nor the use of the
funds connected with it ran afoul of the laws that plaintiffs
identified. Held: The trial court erred by granting
plaintiffs' partial motion for summary judgment and by
denying defendants' motion. ODOT had authority to make
the agreement with DAS, it did not violate the other
identified laws, and the $3.00 fee is not subject to the
Or.App. 824] DUNCAN, J. PRO TEMPORE
declaratory judgment action concerns agreements between the
two defendants-Oregon Department of Transportation (ODOT) and
Oregon Department of Administrative Services (DAS)-and
between DAS and a private company, NICUSA, that allow NICUSA
to make Oregon driver records available electronically, for a
fee, to companies authorized to receive and resell them
(disseminators). Plaintiffs sought declarations that ODOT
lacked authority to sell DAS an exclusive license to provide
electronic access to driver records, and that it was
violating its trust fund obligations to the State Highway
Fund (highway fund). Defendants appeal from a declaratory
judgment in favor of plaintiffs, following the grant of
plaintiffs' motion for partial summary judgment.
Defendants assign error to the trial court's grant of
plaintiffs' motion for partial summary judgment and its
denial of defendants' cross-motion for summary judgment.
Because we agree with defendants that the trial court erred
in both respects, we reverse and remand.
appeal from a judgment resulting from cross-motions for
summary judgment, in which appellants have assigned error to
the trial court's rulings on both motions, both rulings
are subject to review. Adair Homes, Inc. v. Dunn
Carney. 262 Or.App. 273, 276, 325 P.3d 49, rev
den, 355 Or. 879 (2014). We review each motion to
determine "whether there are any disputed issues of
material fact and whether either party was entitled to
judgment as a matter of law." Vision Realty, Inc. v.
Kohler. 214 Or.App. 220, 222, 164 P.3d 330 (2007).
Or.App. 825] We begin by setting out the relevant statutory
and constitutional provisions. Article IX, section 3a, of the
Oregon Constitution, requires revenues collected from certain
motor-vehicle-related taxes and fees to "be used
exclusively for the construction, reconstruction,
improvement, repair, maintenance, operation and use of public
highways, roads, streets and roadside rest areas" within
the state. ORS 366.505(1) establishes that the "State
Highway Fund shall consist of" listed funds and
revenues, which include the funds and revenues referred to in
Article IX, section 3a. Another provision of ORS 366.505
provides that the highway fund "shall be deemed and held
as a trust fund, separate and distinct from the General Fund,
and may be used only for the purposes authorized by law and
is continually appropriated for such purposes." ORS
366.395 provides, in part:
"(1) The Department of Transportation may sell, lease,
exchange or otherwise dispose or permit use of real or
personal property, *** which *** is, in the opinion of the
department, no longer needed, required or useful for
department purposes, except that real property may be leased
when, in the opinion of the department, such real property
will not be needed, required or useful for department
purposes during the leasing period."
relevant facts are undisputed. ODOT, through its Motor
Vehicle Services Division (DMV) maintains driver records and
other information. It makes certain records available to
those who are authorized by law to obtain them. See,
e.g., ORS 802.179 (authorizing or requiring disclosure
of personal information contained in motor vehicle records
under specified conditions). Before the transactions at issue
here, the fee for obtaining a driver record was $2.00, or
$1.50 for a query that failed to return a record. ORS
802.183(1) provides that ODOT may set fees at a level that is
"reasonably calculated to reimburse" the agency
"for its actual cost" of providing "personal
information" to those authorized to obtain it under ORS
802.179. The driver records are assets of the highway
Or.App. 826] In 2006, ODOT made driver records available to
disseminators electronically via a nonprofit organization,
AAMVA, which provided real-time electronic access to driver
records through a secure network. Disseminators who accessed
driver records electronically through AAMVA paid the
per-record fee set by ODOT: $0.50 in 2006, and later, $2.00.
Disseminators paid AAMVA a one-time fee to initiate the
service, and annual fees to maintain access. ODOT did not
collect any other fee for the records, and did not collect a
fee for access to the records.
2009, DAS was tasked with developing and funding a state
government internet portal. It considered the example of a
number of other states that had created a
"self-funded" internet presence through fees for
electronic access to driving records, including a
"convenience fee" that helps to pay for the portal.
DAS also obtained authority in consultation with the
Electronic Government Portal Advisory Board, to collect, or
authorize collection of, "convenience fees" for
accessing information via the state's internet portal.
DAS approached ...