KENJOH OUTDOOR, LLC v. JACK MARCHBANKS, Director, Ohio Department of Transportation; NATHAN FLING, Supervisor, Ohio Department of Transportation - Articles

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KENJOH OUTDOOR, LLC v. JACK MARCHBANKS, Director, Ohio Department of Transportation; NATHAN FLING, Supervisor, Ohio Department of Transportation

Posted by: Tanja Trezise on Jan 11, 2022

Court: 6th Circuit Court (Published Opinions)

Attorneys 1: ARGUED: A. Richard M. Blaiklock, LEWIS WAGNER, LLP, Indianapolis, Indiana, for Appellant.

Attorneys 2: ARGUED: Mathura J. Sridharan, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Attorneys 3: ON BRIEF: A. Richard M. Blaiklock, Charles R. Whybrew, LEWIS WAGNER, LLP, Indianapolis, Indiana, Thomas H. Fusonie, Kara M. Mundy, VORYS, SATER, SEYMOUR AND PEASE, LLP, Columbus, Ohio, for Appellant.

Attorneys 4: ON BRIEF: Benjamin M. Flowers, William J. Cole, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Judge(s): GILMAN, THAPAR, and NALBANDIAN, Circuit Judges

Court Appealed: Appeal from the United States District Court for the Southern District of Ohio at Dayton

NALBANDIAN, Circuit Judge. This is a case about Ohio’s billboard regulations. In Ohio, to place an advertising billboard on a highway, you must apply for a permit from the Ohio Department of Transportation (ODOT). But under one of its regulations, known as the compliance rule, ODOT will not process a permit application if the applicant has outstanding fees, changes his billboard without prior approval from ODOT, or maintains an illegal advertising billboard.

This controversy began when ODOT put Kenjoh’s billboard permits on hold under the compliance rule, alleging that Kenjoh was maintaining an illegal billboard. In turn, Kenjoh sued ODOT, asserting that the compliance rule is an unconstitutional prior restraint. It asked for a permanent injunction and damages under 42 U.S.C. § 1983. The district court dismissed both claims, and Kenjoh appealed. But while the case was pending on appeal, the Ohio legislature amended a key definition in the relevant statute. This changes how the regulation applies. So we VACATE and REMAND the injunction claim to the district court to consider the constitutionality of the regulation given the amendment. But as to damages, we AFFIRM the grant of qualified immunity despite the amendment. That’s because we look at the law as it existed at the time of the official action.

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