Huffman and Wright Logging Co. v. Wade

• Decision Date: 27 November 1991
• Citation: 817 P.2d 1334,109 Or.App. 37
• Parties: HUFFMAN AND WRIGHT LOGGING CO., an Oregon corporation, Respondent, v. Valeri J. WADE, Michele D. Miller, Karen V. Wood, Kelpie J. Wilson, Kamala Redd and James R. Jackson, Appellants. L87-2850; CA A61324.
• Court: Oregon Court of Appeals

Page 1334

817 P.2d 1334

109 Or.App. 37

HUFFMAN AND WRIGHT LOGGING CO., an Oregon corporation, Respondent, v. Valeri J. WADE, Michele D. Miller, Karen V. Wood, Kelpie J Wilson, Kamala Redd and James R. Jackson, Appellants.

L87-2850; CA A61324.

Court of Appeals of Oregon.

Argued and Submitted June 14, 1991.

Decided Sept. 25, 1991.

Reconsideration Denied Nov. 27, 1991.

David E. Atkin, Eugene, argued the cause and filed the briefs, for appellants.

Mark C. Rutzick, Portland, argued the cause, for respondent. With him on the brief, were Cynthia L. Hull and Preston, Thorgrimson, Shidler, Gates & Ellis, Portland.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Defendants appeal a judgment that awards compensatory and punitive damages to plaintiff. They assign as error ¹ the trial court's failure to grant their motions ² regarding the punitive damages award and to sustain their objections to plaintiff's questions, evidence and arguments about the beliefs of their group. We affirm.

Plaintiff is a private logging corporation. Defendants are members of the environmental group, "Earth First!." In July, 1987, defendants participated in a demonstration on a U.S. Forest Service logging road in the North Kalmiopsis area of the Siskiyou National Forest to protest the Forest Service's policies regarding the area. During the demonstration, five of the defendants climbed on and chained themselves to plaintiff's logging equipment. The sixth defendant climbed to the top of a yarder and hung a large banner that read, "FROM HERITAGE TO SAWDUST--EARTH FIRST!." It depicted two trees being converted into sawdust. Defendants did not have permission to be on plaintiff's property. While they were attached to the equipment, they made statements sang songs and chanted slogans regarding their beliefs about the need for greater environmental protection of the North Kalmiopsis area.

As a result of defendants' actions, part of plaintiff's logging operation was shut down for most of the day. Defendants testified that their actions were justified, because "[w]ithout the nonviolent civil disobedience element of the demonstration, the event would not have been considered 'newsworthy' by the press, and so likely would not have brought the issue to the attention of the public or of elected or appointed officials." The demonstration was widely publicized.

Later the same day, the Curry County Sheriff's Department removed defendants from the equipment and arrested them. Defendants peaceably submitted to arrest. They were charged with and convicted of third degree criminal mischief, ORS 164.345, and served two weeks in the Curry County Jail. They also were each ordered to pay a $250 fine and to make full restitution to the sheriff's department and to plaintiff for its down time.

Plaintiff filed a civil action against defendants, alleged that they had committed a trespass and sought $7,818.26 compensatory damages and $50,000 punitive damages. Defendants conceded liability for compensatory damages and asserted as an affirmative defense that their actions were not subject to the imposition of punitive damages because of the Oregon and United States constitutional guarantees of the freedom of expression and the freedom to petition the government. Or. Const. Art. I, §§ 8, 26; U.S. Const., Amends. I, XIV. They moved for partial summary judgment and, later, a directed verdict on the punitive damages issue. The court denied both motions. The jury awarded plaintiff $5,717.34 compensatory damages and $25,000 punitive damages. Defendants moved for judgment notwithstanding the verdict, which was also denied.

Defendants argue that ARTICLE I, SECTION 8, OF THE OREGON CONSTITUTION³ prohibits the imposition of punitive damages for their conduct, because it was expressive conduct. They rely on Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1984), and Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979), which both held that punitive damages may not be awarded for injuries that arise solely as a result of the abuse of the right to free expression under Article I, section 8. In the trial court, therefore, they made no attempt to segregate their expressive conduct from the non-expressive trespasses and did not request an instruction limiting the jury's consideration to non-expressive conduct insofar as punitive damages were involved. See Lewis v. Oregon Beauty Supply Co., 302 Or. 616, 629, 733 P.2d 430 (1987). They argued that the issue of punitive damages should have been removed from the jury's consideration altogether.

We limit our review to the argument made below. Plaintiff asserts that, because defendants "did much more than speak or express their opinions," section 8 does not prohibit the award of punitive damages in this case. In Wheeler v. Green, supra, the court said, regarding an action for defamation:

"In the sensitive area of free expression, * * * the threat of large damage recoveries can easily inhibit the exercise of constitutionally protected expression, as well as its abuse. This is likely to be particularly true in Oregon where the courts having no power of remittitur, have little or no control over the amounts which juries award as punitive damages." 286 Or. at 119, 593 P.2d 777. (Footnotes omitted.)

Under Wheeler, therefore, if defendants' conduct was protected conduct, punitive damages could not be awarded.

In State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982), the court said "Article I, section 8, * * * forbids lawmakers to pass any law 'restraining the free expression of opinion or restricting the right to speak, write or print freely on any subject whatever,' beyond providing a remedy for any person injured by the 'abuse' of this right. This forecloses the enactment of any law written in terms directed to the substance of any 'opinion' or any 'subject' of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach."

In other words, a law violates section 8 if, on its face, it restrains the "free expression of opinion or restrict[s] the right to speak" on any subject and prohibits a kind of expression that was not prohibited before 1859. See, e.g., State v. Moyle, 299 Or. 691, 696, 705 P.2d 740 (1985); State v. Grimes, 85 Or.App. 159, 162, 735 P.2d 1277, rev. den. 304 Or. 56, 742 P.2d 1187 (1987). Section 8 protects speech from intrusion by any branch of government, including the judiciary and the judge-made doctrine of punitive damages. ⁴ Lloyd Corporation v. Whiffen, 307 Or. 674, 680, 773 P.2d 1294 (1989); see also In re Fadeley, 310 Or. 548, 574, 802 P.2d 31 (1990) (Unis, J., concurring in part; dissenting in part). We apply those tests to the doctrine of punitive damages as it relates to defendants' conduct.

In the complaint, plaintiff alleged that defendants committed a trespass by "intentionally and wrongfully interfering with and depriving [it] of the use and possession of [its] logging equipment * * *." Unlike in Wheeler v. Green, supra, or Hall v. The May Dept. Stores, supra, where the allegedly tortious conduct was the content of the speech or the expression of opinion, the focus of the claim for punitive damages was on the harm arising from the physical trespass. The award of punitive damages does not restrict the right to speak or chill the expression of opinion, because the complaint is directed against only non-protected tortious conduct even though the conduct is accompanied by speech. Moreover, we are unaware of, and defendants do not point to, any pre-1859 law that protected a trespass to chattels if it also involved expressive activities. See, generally, Statutes of Oregon 1855 (1855). We conclude that the award of punitive damages does not violate Article I, section 8.

Defendants next assert that the punitive damages award violates their right to free expression under the First and Fourteenth Amendments. In particular, they argue that, because they were engaged in symbolic conduct, the punitive damages award

"violates[s] the requirement that the government use the least restrictive alternative when limiting First Amendment freedoms [as] established by the U.S. Supreme Court in United States v. O'Brien, 391 US 367, 88 S Ct 1673, 20 L Ed 2d 672 (1968)." (Emphasis supplied.)

They also argue that, under the First Amendment, plaintiff's private property rights must give way to their right to free expression. They refer to "a long line of cases" in support of that argument: Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972); and PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

The answer to both of defendants' arguments depends on whether they had a right to use plaintiff's property for their expressive purposes. The "long line of cases" to which they refer does not support their argument. First, in Lloyd Corp. v. Tanner, supra, the Court held that the First and Fourteenth Amendments did not afford anti-war activists the right to distribute anti-war literature in a private shopping center. That holding runs contrary to defendants' position. Second, we reject their reliance on Amalgamated Food Employees v. Logan Valley Plaza, supra, because it was repudiated in Lloyd Corp. v. Tanner, supra, and was overruled by Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). Finally, we reject defendants' characterization of Marsh, Logan Valley Plaza and PruneYard as affording a general right to engage in expressive activities on private property.

The First Amendment does not afford individuals who wish to express their...