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Oregon Trucking Associations, Inc. v. Department of Transportation

Court of Appeals of Oregon

November 15, 2017

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,
v.
DEPARTMENT OF TRANSPORTATION and Department of Administrative Services, Defendants-Appellants.

          Argued and submitted September 3, 2015.

         Marion County Circuit Court 12C16207 Vance D. Day, Judge.

          Rolf 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.

          Louis A. Santiago, Roy Pulvers, Garrett S. Garfeld, Nellie Q. Barnard, and Holland & Knight LLP fled the brief amicus curiae for NICUSA, Inc.

          Before DeVore, Presiding Judge, and James, Judge, and Duncan, Judge pro tempore.[*]

         Reversed and remanded.

         [288 Or.App. 823] Case Summary:

         In this 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 identified restrictions.

         [288 Or.App. 824] DUNCAN, J. PRO TEMPORE

         This 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[1] 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.

         In an 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).

         [288 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 366.505(2).

         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."

         The 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 fund.[2]

         [288 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.

         In 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 ...


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