I just finished a big trial for an outdoor advertising company against the State over alleged violations of various administrative regulations, including those imposing a minimum distance between signs and ramps. These types of location, spacing, and proximity regulations are usually pretty straight forward and easy to interpret.  In this case, however, the State argued that the current regulation governing the distance from ramps (and the method for measuring it) applied, instead of the one in force 10 years ago when the permit was granted and the sign was constructed. And, significantly, the parties virtually agreed that the sign complied under the prior regulation, but that after undergoing a couple of amendments and interpretations, the current regulation would prohibit the sign as too close to the ramp.  To make matters worse, the State argued, since the applicable regulation was violated, the permit should be cancelled, the sign removed, and $1,000,000 in daily $1,000 penalties imposed.

When we were initially engaged on this case, my first reaction was that, surely common sense and fairness would render this sign legal, grandfathered, and compliant, when the State inspected the sign, applied the applicable regulation, and issued the permit a decade ago, all of which was relied on when our client built and operated the sign without incident thereafter.  And, fortunately for our client, Article I, Section 16 of the State Constitution agreed: “No bill of attainer, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.” Even a century old billboard case cited this constitutional prohibition on subsequently passed legislation as invalidating governmental efforts to prevent the erection of a billboard: “A law passed subsequent to such erection attempting to punish him who put up billboards prior to the passage of such law would be ex post facto and forbidden the Constitution.” Cain vs. State.

Unfortunately for our client, however, the law, common sense, and equity didn’t seem to be much of a deterrent  to the State DOT, which still argued that the general health, safety, and welfare promoted in its sign regulations over rode these constitutional and case law protections. And, indeed, the Courts have held that, while this is not a blanket and absolute prohibition on any retroactive legislation, the Constitution does “protect settled expectations” and prevents “abuses of legislative power” by imposing a “heavy presumption against retroactive laws” that can only  be “overcome” through proof of a “compelling public interest.” Robinson vs Crown Cork & Seal Co. The State, therefore, claimed the proximity of the ramp to the sign, properly permitted under its decade old regulation, was such a safety hazard and a compelling enough interest to justify its attempt to retroactively apply the current regulation.

We’re still waiting on the Judge’s rulings, which is one of the reasons I haven’t disclosed the parties’ identities in our case. However, while researching our closing brief to the Judge, we happen to come across the State’s briefing in a separate but very similar case, which seems to indicate the State would like to have it both ways. Specifically, in it’s appellate brief in Zaatari vs City of Austin, the State wrote quite elegantly: “Our legal system recognizes that laws altering the legal consequences of past actions are often fundamentally unjust. ‘Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly…After all, ‘in a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.’…The nation’s founders expressed their distrust for retroactive legislation in no fewer than five separate provisions of the United States Constitution that prohibit-or at the least, inhibit-certain types of retroactive legislation…” I couldn’t say it any better myself.

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