Fred Meyer, Inc. v. Casey, 92-35067

• Decision Date: 10 October 1995
• Docket Number: No. 92-35067,92-35067
• Parties: 95 Cal. Daily Op. Serv. 7970, 95 Daily Journal D.A.R. 13,656 FRED MEYER, INC., a Delaware corporation, Plaintiff-Appellant, v. William CASEY; Herb L. Gray; Ken Benjamin; Mike Wiley; Lon Mabon; Phillip Z. Ramsdell; No Special Rights Committee; Oregon Citizens Alliance; John Does, 1 Through 50; Jane Does, 1 Through 50, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1412

67 F.3d 1412

95 Cal. Daily Op. Serv. 7970, 95 Daily Journal

D.A.R. 13,656

FRED MEYER, INC., a Delaware corporation, Plaintiff-Appellant, v. William CASEY; Herb L. Gray; Ken Benjamin; Mike Wiley;

Lon Mabon; Phillip Z. Ramsdell; No Special Rights

Committee; Oregon Citizens Alliance; John Does, 1 Through

50; Jane Does, 1 Through 50, Defendants-Appellees.

No. 92-35067.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 5, 1993.

Decided Oct. 10, 1995.

Charles F. Hinkle, Stoel, Rives, Boley, Jones & Grey, Portland, Oregon, for plaintiff-appellant.

Bruce R. McCain, Portland, Oregon, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before REINHARDT, BRUNETTI, and FERNANDEZ, Circuit Judges.

Opinion by Judge BRUNETTI; Concurrence by Judge REINHARDT.

BRUNETTI, Circuit Judge.

I. INTRODUCTION

Appellant Fred Meyer, Inc. ("Fred Meyer") brought a 42 U.S.C. Sec. 1983 claim against appellee defendants. Fred Meyer is a Delaware corporation which operates approximately forty freestanding, large retail stores in Oregon. The defendants are organizers and proponents of two initiative petitions. The district court dismissed the action for failure to state a claim, because it found that Fred Meyer failed to show that defendants were acting under color of state law. This appeal followed. We review the district court's dismissal de novo. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 920 F.2d 1496, 1507 (9th Cir.1990); Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir.1986). We affirm.

II. FACTUAL BACKGROUND

Beginning on December 14, 1991, certain of defendants entered onto properties of Fred Meyer without its permission to solicit signatures of registered voters to qualify two initiatives for election. The first initiative for which the defendants sought signatures would have amended the charter of the City of Portland to restrict the ability of the City of Portland to pass or enforce laws related to the sexual orientation of any person. The second initiative for which defendants sought signatures would have amended the Oregon Constitution in a similar fashion. Several defendants stood outside the main entrances of various Fred Meyer stores asking shoppers to sign the petitions. When these defendants started soliciting signatures, customers of Fred Meyer began complaining and threatening to boycott Fred Meyer stores and to return prior purchases for refunds. Many customers believed that Fred Meyer was sanctioning the petitions by "allowing" the defendants to remain on its properties. Fred Meyer, however, opposed the presence of the defendants on its properties and has maintained a consistent policy of forbidding all persons, regardless of their cause, from soliciting signatures for initiative petitions on Fred Meyer properties.

In the past, when persons entered the properties of Fred Meyer to solicit signatures for initiative petitions, it would ask them to leave. Fred Meyer's consistent policy has been to seek civil injunctions against petitioners who refuse to leave its premises and to lobby against bills introduced in Oregon legislative sessions which create a statutory privilege to petition on private property. In addition, Fred Meyer has called the police and had petitioners arrested for criminal trespass.

III. DISCUSSION

A. 42 U.S.C. Sec. 1983

Fred Meyer brought this action under Sec. 1983 which provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. Sec. 1983 (1988). Under this section, Fred Meyer must allege and prove that (1) defendants acted or are acting under color of the laws of Oregon; and (2) defendants deprived Fred Meyer of a right secured by the Constitution or laws of the United States. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978).

Fred Meyer contends that defendants were and are acting under color of the laws of Oregon, since the defendants claim the right to enter the properties of Fred Meyer by virtue of the decision of the Oregon Court of Appeals in State v. Cargill, 100 Or.App. 336, 786 P.2d 208 (1990), aff'd by an equally divided court, 316 Or. 492, 851 P.2d 1141 (1993).

Fred Meyer argues that it has met the second of the Sec. 1983 requirements because defendants have violated several of its Constitutional rights. First, Fred Meyer claims that it has a Sec. 1983 claim against defendants because it has a right under the First Amendment to the United States Constitution not to be associated with the speech and ideas of defendants. Second, Fred Meyer alleges that defendants' actions amount to a "taking" of its property without just compensation as prohibited by the Fifth and Fourteenth Amendments to the United States Constitution.

Because we find that Fred Meyer failed to satisfy the first requirement that defendants are acting under color of state law, we affirm the district court's dismissal of this action. Like the district court, we need not decide whether the second requirement has been satisfied, although we note that the Supreme Court's decision in PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), would appear to preclude Fred Meyer's claim.

B. STATE v. CARGILL

In Cargill, the defendants solicited signatures on sidewalks outside the entrances of a Fred Meyer store in Portland. After refusing to obey the directive of Fred Meyer to leave its property, the defendants were arrested and subsequently convicted of criminal trespass in the second degree.

The Oregon Court of Appeals reversed defendants' convictions, holding that Article IV, section 1 of the Oregon Constitution ¹ "prohibits using a criminal prosecution to prevent the people from collecting signatures on initiative and referendum petitions in areas that have replaced traditional forums for the collection of signatures, so long as there is no substantial interference with the owner's use of the property for business or other purposes." Id. 786 P.2d at 215. The court stated that "[p]rosecuting defendants for criminal trespass for refusing to obey a direction [of Fred Meyer] to leave the entrance of the store under these circumstances would render inadequate the people's opportunity to function in their legislative role and would violate Article IV, section 1." Id. at 214-15. The court found that "[t]he Fred Meyer store at which defendants were arrested is a modern replacement for the town square or park. It is open to the public, and citizens are invited to come and congregate on the premises." Id. at 212. Significantly, the court concluded that Fred Meyer itself had opened its property to the public:

Fred Meyer's invitation to the public was broad and for more than just commercial activity. Its premises, by reason of the owner's invitation, became a forum for assembly by the community. Notwithstanding the company's apparent policy against allowing petitioners on its property, there is no evidence that defendants' activities substantially interfered with Fred Meyer's commercial activity, had a serious economic impact on the company or interfered with its "reasonable investment backed expectations."

Id. at 214.

C. STATE ACTION

Fred Meyer's Sec. 1983 claim requires a showing that defendants are acting under "color of state law." The Supreme Court has stated that "conduct satisfying the state-action requirement of the Fourteenth Amendment satisfies the statutory requirement of action under color of state law." Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 2752 n. 18, 73 L.Ed.2d 482 (1982). In Lugar, the Court established a two-part state action test to determine if conduct that allegedly caused the deprivation of a federal right could be fairly attributable to the State. The two requirements are that:

First, the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible.... Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.

Id. at 937, 102 S.Ct. at 2754.

In this case, the first prong of the state action test is met, since the Oregon Constitution authorizes defendants' obtaining signatures for the initiative and referendum process. However, the defendants are not state actors, and thus the second prong is not met.

Describing this second prong, the Supreme Court has stated that an individual may be a state actor "because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Id. Applying this test, the Court examined the following: "the extent to which the actor relies on governmental assistance and benefits; whether the actor is performing a traditional governmental function; and whether the injury caused is aggravated in a unique way by the incidents of governmental authority." Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621-22, 111 S.Ct. 2077, 2083, 114 L.Ed.2d 660 (1991) (citations omitted).

In this case, the defendants are private citizens and entities, not state officials or employees. However, Fred Meyer argues that defendants are state actors because the State of Oregon, acting through its court system by virtue of Cargill, provides the defendants' sole authorization for their use of its property. Fred Meyer believes that defendants have the right to collect...