# Opposition Brief — Barber v. Texas Department of Transportation

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2228%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1177

## Text

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No. 03-510

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In the
Supreme Court of the United States

PAT BARBER,
Petitioner,

vs

TEXAS DEPARTMENT OF TRANSPORTATION, ET AL.,
Respondents.

On Petition for Writ of Certiorari to the
Supreme Court of Texas

BRIEF IN OPPOSITION

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE

First Assistant Attorney General
EDWARD D. BURBACH

Deputy Attorney General for

Litigation
R. TED CRUZ

Solicitor General

Counsel of Record
AMY WARR

Assistant Solicitor General
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700

COUNSEL FOR RESPONDENTS

1
QUESTION PRESENTED

Whether the Texas Supreme Court majority erred in
concluding that the Texas Highway Beautification Act can
be applied, consistent with the First Amendment, to prohibit
Petitioner from engaging in political speech on a billboard
on his own property.

il

TABLE OF CONTENTS
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I. The Petition Fails to Demonstrate a Conflict for the
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II. Barber’s Claim Is Moot Because He Has Voluntary
Removed, and Never Re-erected, the Sign That Is the

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III. The Texas Supreme Court’s Decision Was Correct .. 11

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TABLE OF AUTHORITIES
Cases

Ackerley Communications of Mass., Inc. v.
City of Cambridge, 88 F.3d 33 (CA1 1996) ............ 7

Arizonans for Official English v. Arizona,
oy re 10

Barber v. Tex. Dep't of Transp.,
49 S.W.3d 12 (Tex. App.—Austin 2001),

rev @, 111 5.W.3d 86 (Tex. 2003) ....... 0... 0.0 00e 1-2
Boag v. MacDougall, 454 U.S. 364 (1982) ............04.. 5
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .......... 10
City of Renton v. Playtime Theaters, Inc.,

ces kik ok alae sks VHA Y RES RON OSS 11
ila v. Town of Needham, 764 F.2d 58 (CA1 1985)..... 7

Metromedia v. City of San Diego, 453 U.S. 490 (1981) ... 6, 12

Murphy v. Hunt, 455 U.S. 478 (1982) ................ 10, 11
Nat'l Adver. Co. v. Town of Babylon,

ee We BOO i vice e hensive cseiavavens 7
O'Shea v. Littleton, 414 U.S. 488 (1974) ..........0..... 10

mene v. Geary, S01 U.S. 312 (1991)... 6. cece wes 10

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Wheeler v. Commissioner of Highways,
822 F.2d 586 (CA6 1987), cert. denied,
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Whitton v. City of Gladstone, 54 F.3d 1400
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Rules, Statutes & Constitutional Provisions

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TEX. TRANSP. CODE §391.001(10)....... | Perr Tr eT eee ee 3
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TEX. TRANSP. CODE §391.002(b)(2) .... 00.0... ee eee
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TEX. TRANSP. CODE §391.031(a)(1) ............ ccc ee eee
TEX. TRANSP. CODE §391.031(a)(2) ...........c cece ee
TEX. TRANSP. CODE §391.031(b)........... 0.00. ee eee

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STATEMENT OF THE CASE

This case concerns an as applied, First-Amendment-based
challenge to the Texas Highway Beautification Act (THBA) arising
from the placement of a sign on the Petitioner’s non-residential,
rural property. The case is splitless, and Petitioner asks merely for
error correction. The decision of the Texas Supreme Court is
correct, and there are significant vehicle problems with the case
because Petitioner has voluntarily removed the sign in question,
leaving nothing to sustain a controversy.

if. THE SIGN.

The genesis of this suit is a billboard bearing the statement,
“Just say NO to searches,” installed in 1997 by Pat Barber, an
attorney, on a strip of non-residential property adjacent to Interstate
20 in Mitchell County, Texas. See Pet. App., at 4a. Barber failed
to apply for a license to display the sign, which was within 660 feet
of the right-of-way in a rural area and which admittedly did not
qualify for any of the THBA’s exemptions. See id., at 45a. The
Texas Department of Transportation (TxDOT), which is charged by
law with enforcing the THBA, TEX. TRANSP. CODE §391.034(b),
sent Barber written notice that the sign violated the THBA and
requested its removal. See id., at Sa.

In response, Barber filed this lawsuit, seeking injunctive relief
and a declarat« ry judgment that the THBA is unconstitutional. /d.,
at 6a. The State filed a counterclaim seeking to enforce the THBA.
Id. The trial court granted the State summary judgment, held that
the THBA is constitutional under the Texas and United States
Constitutions on its face and as applied to Barber, enjoined Barber
from displaying the sign, and awarded the State attorneys’ fees and
costs. See id., at 45a. Prior to judgment, Barber voluntarily
removed his sign. See App. 2a-3a, 7a. On appeal, Barber argued
that the THBA as applied to his sign was unconstitutional. The
state court of appeals reversed and held that the THBA as applied
to Barber violated the First Amendment of the United States
Constitution. Barber v. Tex. Dep't of Transp., 49 S.W.3d 12, 25

2

(Tex. App.—Austin 2001), rev'd, 111 S.W.3d 86 (Tex. 2003). Two
years later, the Supreme Court of Texas reversed and rendered
judgment for the State. See Pet. App., at la-2a.

II. THE TEXAS HIGHWAY BEAUTIFICATION ACT.

Like similar statutes across the nation, the THBA was passed in
response to the Federal Highway Beautification Act, which requires
States to “effective[ly] control” outdoor advertising in areas
adjacent to interstate and federally funded state highways or forego
ten percent of their federal highway funds. 23 U.S.C. §131(b). The
federal act seeks to curb the proliferation of billboards along the
nation’s highways and to “protect the public investment in...
highways, to promote the safety and recreational value of public
travel, and to preserve natural beauty.” 23 U.S.C. §131(a).

The express purpose of the THBA is to comply with the federal
law: “{I]t is the intent of the legislature to comply with the
Highway Beautification Act of 1965 (23 U.S.C. §§131, 136, 319)
to the extent that it is implemented by the Unitec States Congress.
This chapter is conditioned on that law.” TEX. TRANSP. CODE
§391.002(a). Consistent with the federal law, the purpose of the
THBA is to “promote the health, safety, welfare, morals,
convenience, and enjoyment of the traveling public,” and to
“protect the public investment in the interstate and primary
systems.” Jd. §391.002(b)(1), (2).

To accomplish these objectives, the THBA prohibits “outdoor
advertising” in a limited protected area along interstates and
federally funded state highways: either (1) within 660 feet of a
right-of-way if the advertisement is visible from the interstate or
primary highway system, ' or (2) if outside an urban area, more than

1. The definition limits the THBA’s coverage to federally funded
highways in Texas. See TEX. TRANSP. CODE §391.001(5); 23 U.S.C.

3

660 feet from the right-of-way, but visible from the highway and
erected for the purpose of having its message seen from the
highway. /d. §391.031(a)(1), (2). “Outdoor advertising,” is defined
as:

an outdoor sign, display, light, device, figure, painting,
drawing, message, plaque, poster, billboard, or other thing
designed, intended, or used io advertise or inform if any
part of the advertising or information content is visible from
the main-traveled way of the interstate or primary system.

Id. §391.001(10) (emphasis added). By including the terms
“advertise or inform,” the definition applies to both commercial and
noncommercial signs. The THBA restricts advertising only along
this federal corridor. It does not apply to any other locations in the
State.

In compiiance with federal directive, the THBA exempts from
regulation:

(1) directional or othei official outdoor advertising
authorized by law, including advertising pertaining te a
natural wonder or a scenic or historic attraction;

(2) outdoor advertising for the sale or lease of the property
on which it is located;

(3) outdoor advertising solely for activities conducted on the
property on which it is located;

(4) outdoor advertising located within 660 feet of the
nearest edge of a right-of-way in an area in which the land
use:

§131(t).

4

(A) is designated industrial or commercial under
authority of law; or

(B) is not designated industrial or commercial under
authority of law but the land use is consistent with an
area designated industrial or commercial;

(5) outdoor advertising that has as its purpose the protection
of life and property; or

(6) outdoor advertising erected on or before October 22,
1965, that the commission, with the approval of the
secretary of the United States Department of Transportation,
determines to be a landmark of such historic or artistic
significance that preservation is consistent with the
purposes of this subchapter.

§391.031(b); see also 23 U.S.C. §131(b), (c), (d) (federal directive).

In addition, the THBA exempts signs solely for and relating to
a public election if the sign:

(1) is on private property;

(2) is erected not earlier than the 90th day before the date of
the election and is removed not later than the 1 0th day after
the election date;

(3) is constructed of lightweight material; and
(4) has a surface area not larger than 50 square feet.
Id. §391.00S.
SUMMARY OF THE ARGUMENT

The Court should decline to grant a writ of certiorari for three
reasons. First, no conflict exists between the Texas Supreme
Court’s decision and decisions of other state supreme courts or
federal courts of appeals on the particular issue in this case. In fact,

5

the only circuit court decision addressing a similar statute upheld
that statute’s constitutionality. Absent a conflict among courts,
Barber essentially asks the Court to engage in error correction, an
exercise that does not justify the Court’s certiorari jurisdiction.
Second, Barber’s suit is moot because he voluntarily removed his
sign at the outset of the litigation and because his case does not fit
any exception to the mootness doctrine. Finally, the Court should
deny the writ because the Supreme Court of Texas properly
concluded that the Texas statute comports with the First
Amendment.

ARGUMENT

I. THE PETITION FAILS TO DEMONSTRATE A CONFLICT FOR
THE COURT TO RESOLVE.

In his petition, Barber fails even to allege a conflict between the
decisions of the Texas Supreme Court and federal circuit courts or
other state high courts as a basis for granting certiorari. He does not
argue that there is a conflict over the constitutionality of state
statutes enacted pursuant to the FHBA. He does not
contend—much less demonstrate—that another relevant court
would have reached a different decision than the decision below
when presented with the same facts. Rather, he argues merely that
the Supreme Court of Texas “misapplie[d] the law for determining
whether a restriction on speech is_ content-based” and
“undervalue[d] Petitioner’s right to engage in core political speech
on his own property.” Pet., at 5. But an allegation of a single
misapplication of the law simply does not satisfy the Court’s
prerequisites for review. See S.CT. R. 10. Despite the fact that
“this Court is not a forum for the correction of errors,” Boag v.
MacDougall, 454 U.S. 364, 368 (1982) (Rehnquist, J., dissenting),
that is precisely the task that the petition requests the Court to
perform.

6

Although Barber argues, as a general proposition, that the
multiple opinions in Metromedia v. City of San Diego, 453 U.S.
490 (1981), have led to disparate decisions among the lower courts,
see Pet., at 5-6, 19, he merely cites a string of cases with no
discussion of their facts or holdings and no explanation of why they
allegedly conflict with the Texas Supreme Court’s decision in this
case. The most Barber can say about this group of cases is that it
demonstrates “disparate directions in applying the First Amendment
to billboards,” id., at 19, a “conflict” of such generality that it does
not bear on Barber’s question presented. Far from establishing a
conflict between the Texas Supreme Court’s decision and a
decision of a relevant court striking down a substantially similar
statute, Barber alleges only that lower courts have generally applied
the Court’s Metromedia decision both narrowly and broadly. /d.,
at 19. Barber’s observation does not even come close to
demonstrating that, if presented with the same facts, a federal
circuit court or state high court would reach a different conclusion
than the one reached by the Supreme Court of Texas. If all that
were necessary to show a conflict were one decision upholding and
one decision invalidating a restriction of some type on a billboard
somewhere, with no similarity of statute and facts, then every
billboard case—or every First Amendment case regarding any
means of communication—would be appropriate for certiorari.

Not surprisingly, when Barber’s cases are examined, it is
apparent that they do not support a genuine conflict. Only one of
the decisions, Wheeler v. Commissioner of Highways, 822 F.2d 586
(CA6 1987), involves a similar statute and circumstance, and that
case does not demonstrate any division in the lower courts. Rather,
the Sixth Circuit, like the Texas Supreme Court in this case, upheld
Kentucky’s Billboard Statute, which was also enacted pursuant to
the Federal Highway Beautification Act and is almost identical to
the THBA. Thus, far from being in conflict, Wheeler is entirely in
agreement with the decision below.

7

The Court declined certiorari in Wheeler, 484 U.S. 1007 (1988),
and no conflict has arisen since then that make this issue any more
worthy of the Court’s review. Indeed, Petitioner has been unable
to point to even a single case—state or federal—striking down a
state highway beautification act on First Amendment grounds.

Moreover, the cases identified by Barber all concern statutes
wholly distinct from the THBA, making them insufficient to
support a conflict. The THBA permits signs related to onsite
activity (without regard to whether the activity is commercial or
non-commercial), offsite signs in industrial or commercial areas,
and various other types of offsite signs. See Pet. App., at 70a-7 1a.
By its terms, therefore, the THBA does not ban all offsite signs.
See id. Yet all but one of Barber’s cited cases striking down
billboard restrictions concern total bans on offsite billboards. See
Matthews v. Town of Needham, 764 F.2d 58, 59-60 (CA1 1985);
Ackerley Communications of Mass., Inc. v. City of Cambridge, 88
F.3d 33, 34 (CAI 1996); Nat’l Adver. Co. v. Town of Babylon, 900
F.2d 551, 554 n.1 (CA2 1990). In contrast, the THBA permits
many categories of offsite signs. See Pet. App., at 70a-7la. The
fact that other courts have held that total bans on offsite billboards
violate the First Amendment sheds no light on whether those courts
would also hold that a more narrow ban is unconstitutional, nor do
they suggest that the Texas Supreme Court was incorrect in
deciding that the THBA’s limited ban is constitutional. Thus, these
decisions demonstrate no conflict.

The single case Barber cites that did not concern a total ban on
offsite billboards addressed a restriction directed solely at political
speech. See Whitton v. City of Gladstone, 54 F.3d 1400, 1402 n.2-4
(CA8 1995) (overturning restriction on election signs). Whitton did
not address the onsite/offsite distinction or the subject-matter
exceptions that are at the heart of this case; thus, it likewise does
not conflict with the decision below.

8

Because no genuine conflict exists with regard to the decision
below, nor any important and unsettled question of constitutional
law, the Court should deny certiorari. See S. CT. R. 10. Even if
Barber were correct that this case presents an important issue of
constitutional law, then it surely would recur again in another
context. The fact that Barber can point to no decision, state or
federal, invalidating any state highway beautification act—despite
the existence for decades of many such state states pursuant to the
federal Highway Beautification Act of 1965—powerfully refutes
Barber’s claim that this case presents an important and recurring
issue of constitutional law.

At a minimum, the Court should allow the issue to percolate
and wait until a conflict does develop before granting review. To
grant review now, as Barber urges—before any federal court of
appeals or state supreme court has heard and accepted a First
Amendment challenge to a state highway beautification act—would
be premature. With the passage of time, three outcomes are
possible: first, given the paucity of reported cases challenging these
laws over the past four decades, no further decisions could issue;
second, additional federal courts of appeals and state supreme
courts could consider the issue and agree with the Texas Supreme
Court; or third, a conflict could develop, and other courts could
write opinions explaining their reasoning for questioning the
constitutionality of state highway beautification statutes. In the first
two instances, the issue would not merit this Court’s consideration,
and, in the third, the Court would have the benefit of the analysis of
the lower courts before deciding whether to grant review. In short,
if the issue does not recur, it is not important, and if it does, then the
Court should wait for a conflict before considering the question.

Accordingly, because there is no conflict'in the courts of
appeals or the state supreme courts, and because a conflict is
unlikely to arise, the Court should deny certiorari.

9

II. BARBER’S CLAIM IS MOOT BECAUSE HE HAS VOLUNTARY
REMOVED, AND NEVER RE-ERECTED, THE SIGN THAT ISTHE
SOURCE OF CONTROVERSY.

Additionally, a significant vehicle problem strongly counsels
against granting certiorari: Barber’s suit challenging the THBA
became moot when he voluntarily removed his sign prior to any
order of the district court that he do so. Contrary to subsequent
statements he has made, Barber admitted in his trial-court pleadings
that he voluntarily removed his sign on November 4, 1999—prior
to the court’s summary judgment order—because TxDOT had
declined to postpone any enforcement action to remove the sign
pending appeal. App., at 2a-3a, 7a. Any intention Barber might
have to erect the billboard again cannot revive his suit after it has
been moot for over four years.”

Moreover, and critically, there is no evidence that Barber made
any attempt to raise the billboard anew during the two-year interval
between the state appeals court’s decision, which was favorable to
Barber, and the Texas Supreme Court’s reversal of that decision.
During that two-year interval, Barber was entirely free to re-erect
the billboard, as the state appeals court had held the THBA
unconstitutional as applied to it. But he did not. Because Barber
voluntarily removed, and never replaced, the billboard in question,
there is no live controversy for the Court to resolve.

For a plaintiff to have standing, an actual controversy must exist
at all stages of the litigation, not merely at the time the complaint

2. The Supreme Court of Texas rejected TxDOT’s mootness
argument without discussion. See Pet. App., at 7a. Although that court
properly resolved the merits of the First Amendment issue, it should have
determined that Barber’s suit was moot, and mootness remains a barrier
to this Court’s jurisdiction.

10

is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67
(1997). A case becomes moot “when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the
outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (internal
quotations omitted).

Barber’s voluntary acts of removing his sign and then failing to
replace it after the state court of appeals’s decision rendered the
litigation merely hypothetical. See Arizonans for Official English,
520 US., at 72 (recognizing that voluntary resignation from public
sector employment mooted case). Lacking a current controversy,
Barber’s suit challenging the THBA rests instead on his assumed
intention to put up the sign again, an assumption belied by his
conduct during the two years after the court of appeals decision.
Yet “[a]bstract injury is not enough . .. . The injury or threat of
injury must be both ‘real and immediate,’ not ‘conjectural’ or
‘hypothetical.’ O'Shea v. Littleton, 414 U.S. 488, 494 (1974); see
also City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). Past
exposure to allegedly illegal conduct does not in itself show a
present case or controversy. Renne v. Geary, 501 U.S. 312, 320-21
(1991); O'Shea, 414 US., at 494.

Barber argued below that his case falls within the “capable of
repetition, yet evading review” exception to the mootness doctrine.
This exception, however, applies only in rare circumstances. To
invoke the exception, a plaintiff must prove that (1) the challenged
action was too short in duration to be litigated fully before the
action ceased or expired; and (2) a reasonable expectation exists
that the same complaining party will be subjected to the same .
action again. Murphy, 455 U.S., at 482 (emphasis added). A
plaintiff must demonstrate that he meets both elements of the
mootness-exception test. /d., at 482 (observing that the “doctrine
[is] limited to the situation where two elements are combined.”).

11

Barber’s suit cannot satisfy the first prerequisite of this
exception because TxDOT’s enforcement of the THBA was not too
short in duration to be litigated fully before Barber removed his
sign. Indeed, TxDOT had not even secured a judgment on its
counterclaim to enforce the THBA when Barber removed the sign
on his own initiative. App., at 2a-3a, 7a. In fact, in granting
summary judgment on TxDOT’s counterclaim, the district court
had to strike through the portion of the order requiring Barber to
remove the sign because he had already removed it. App., at 2a-3a.
Rather than litigating his case fully, Barber voluntarily removed the
sign and with it his sole basis for bringing suit. Therefore, even if
Barber could satisfy the second prong of the mootness exception,
he could not satisfy the first requirement, and so the exception
cannot apply. See Murphy, 455 U.S., at 482. Because this case is
moot by virtue of the petitioner’s voluntary action of removing the
sign, the Court should deny certiorari.

Hil. THE TEXAS SUPREME COURT’S DECISION WAS CORRECT.

Even if the Court were inclined to grant certiorari for the error-
correction purpose to which the petition is on its face limited, this
case would not be an appropriate candidate because it was correctly
decided by the Supreme Court of Texas. As that court properly
determined, the THBA is content-neutral, treating commercial and
non-commercial speech equally. See Pet. App., at 17a-24a. Thus,
as recognized by the court, it is subject to, and satisfies,
intermediate scrutiny because it is narrowly tailored to serve the
substantial state interests of highway safety and aesthetics. See id.,
at 25a (citing City of Renton v. Playtime Theaters, Inc., 475 U.S.
41, 47 (1986)). Moreover, as the Texas Supreme Court concluded,
it leaves open adequate alternative channels of communication,
because Barber could arrange to erect his sign in an industrial or
commercial area along the same highway. See id., at 26a-29a.

12

The main concern advanced in the petition is that the THBA’s
exception for signs related to onsite activities, although facially
neutral as between commercial and non-commercial speech, will in
practice result in greater restrictions on non-commercial speech,
which, Barber contends, is prohibited by the plurality opinion in
Metromedia. See Pet., at 8-11. Thus, although the onsite-activity
exception would allow a veterans organization to display a sign on
its property stating, “Support Our Vietnam Veterans,” and would
allow a church to exclaim, “Praise God,” just as it would permit a
restaurant to advertise, “Eat at Joe’s,” Barber argues that this
exception impermissibly favors commercial speech. Yet this appeal
is not an appropriate vehicle to address Barber’s concern, because
he introduced no evidence that signs with non-commercial
messages are less likely to fall under the onsite-activity exception
than signs with commercial messages nor any evidence that the
exception has had any discriminatory effect historically, despite the
fact that the THBA has been in effect for over thirty years. The
Court should decline to accept Barber’s invitation to engage in
presumptions concerning the alleged disparate impact of the onsite-
activity exception when he failed to introduce any evidence
supporting his disparate-impact contention.

Because the petition does not identify any weaknesses in the
decision below that merit the Court’s attention, the Court should
deny certiorari.

13

CONCLUSION
The Court should deny the petition for writ of certiorari.
Respectfully submitted,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

EDWARD D. BURBACH
Deputy Attorney General,
Litigation

R. TED CRUZ

Solicitor General
Counsel of Record

AMY WARR
Assistant Solicitor General

P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
(512) 936-1700

COUNSEL FOR RESPONDENTS

January 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2228%3A2. Public record. Not legal advice.