Huffman and Wright Logging Co. v. Wade

• Citation: 857 P.2d 101,317 Or. 445
• Parties: , 62 USLW 2148 HUFFMAN AND WRIGHT LOGGING CO., an Oregon Corporation, Respondent on Review, v. Valerie J. WADE, Michele D. Miller, Karen V. Wood, Kelpie J. Wilson, Kamala Redd and James R. Jackson, Petitioners on Review. CC L87-2850; CA A61324; SC S38633.
• Decision Date: 19 August 1993
• Court: Supreme Court of Oregon

Page 101

857 P.2d 101

317 Or. 445, 62 USLW 2148

HUFFMAN AND WRIGHT LOGGING CO., an Oregon Corporation, Respondent on Review, v. Valerie J. WADE, Michele D. Miller, Karen V. Wood, Kelpie J.

Wilson, Kamala Redd and James R. Jackson,

Petitioners on Review.

CC L87-2850; CA A61324; SC S38633.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 4, 1992.

Reassigned Aug. 10, 1993.

Decided Aug. 19, 1993.

[317 Or. 446-C] Bruce E. Smith, Eugene, argued the cause for petitioners on review. On the petition was David E. Atkin, Eugene.

Mark C. Rutzick, of Preston, Thorgrimson, Shidler, Gates & Ellis, Eugene, argued the cause for respondent on review. With him on the response briefs was Cynthia Lombardi.

Bruce Smith, Gregory E. Skillman, Ellen D. Adler, and Nickolas Facaros, Eugene, filed a brief for amicus curiae American Civ. Liberties Union Foundation of Oregon, Inc.

Harlan Edward Jones, of Bolliger, Hampton & Tarlow, Portland, filed a brief for amicus curiae Lovejoy Surgicenter, Inc.

GRABER, Justice.

In an action for trespass to chattels, the jury awarded compensatory and punitive damages to plaintiff. Defendants concede their liability for trespass and for compensatory damages, but argue that Article I, sections 8 and 26, of the Oregon Constitution, ¹ The material facts are not disputed. Plaintiff is a private corporation that operates a logging business. Defendants are six members of "Earth First!" In July 1987, defendants participated in a demonstration on a United States Forest Service logging road in the North Kalmiopsis area of the Siskiyou National Forest. The demonstration was organized to protest Forest Service policies regarding the area. During the demonstration, five of the six defendants climbed on, and chained themselves to, plaintiff's logging equipment. The sixth defendant climbed to the top of a yarder belonging to plaintiff and hung a large banner that read: "FROM HERITAGE TO SAWDUST--EARTH FIRST!" The banner also depicted two trees being turned into sawdust. While defendants were attached to the equipment, they made statements, sang songs, and chanted slogans relating to their beliefs about the need for greater environmental protection of the North Kalmiopsis area. The demonstration was widely publicized.

and the First and Fourteenth Amendments to the Constitution of the United States ² prohibit an award of punitive damages against them, because their trespassory conduct was "expressive" political speech designed to change government policies. The Court of Appeals affirmed the judgment for punitive damages. Huffman and Wright Logging Co. v. Wade, 109 Or.App. 37, 817 P.2d 1334 (1991). We also affirm.

Defendants did not have permission to be on, or otherwise to interfere with the use of, plaintiff's personal property, and they knew that they did not. Defendants' actions caused part of plaintiff's logging operation to be suspended for most of a day.

Defendants were arrested and charged with criminal mischief in the third degree, ORS 164.345. ³ After a trial to the court on stipulated facts, defendants were convicted. Each defendant served two weeks in jail, and each was ordered to pay a $250 fine and to make full restitution to plaintiff for its lost revenues resulting from defendants' actions.

Plaintiff then filed this civil action against defendants. As material here, the complaint alleged that defendants committed a trespass by "intentionally and wrongfully interfering with and depriving Plaintiff of the use and possession of [its] logging equipment." Plaintiff sought compensatory damages for lost revenues in the amount of $7,818.26, plus punitive damages of $50,000.

Defendants conceded liability for compensatory damages (although they disputed the amount). As an affirmative defense to the claim for punitive damages, they asserted that Article I, sections 8 and 26, of the Oregon Constitution, and the First and Fourteenth Amendments to the Constitution of the United States precluded the imposition of punitive damages for their actions. On the same ground, defendants later moved for partial summary judgment Defendants appealed, raising two assignments of error. The first related to defendants' argument that punitive damages are constitutionally barred in this case. The second related to the admission of certain evidence. The Court of Appeals considered both assignments of error and affirmed. Huffman and Wright Logging Co. v. Wade, supra. Defendants sought review only with respect to the constitutionality of the award of punitive damages, and we allowed their petition. ⁴

and for a directed verdict. The trial court denied each motion and submitted plaintiff's claim for punitive damages to the jury. Defendants did not request an instruction that would have limited the [317 Or. 449] jury's consideration to punitive damages based on non-expressive conduct. The jury returned a verdict in plaintiff's favor, awarding $5,717.34 in compensatory damages and $25,000 in punitive damages. Defendants moved for judgment notwithstanding the verdict on the claim for punitive damages, continuing to assert the same constitutional theories. The trial court denied that motion and entered judgment for plaintiff.

Defendants contend that, as a matter of law, no punitive damages are recoverable, because all their activity was "expressive conduct" protected from an award of punitive damages by the state and federal constitutions. Defendants make no particularized argument that any one segment of their activity was separately immune from an award of punitive damages. Accordingly, our inquiry is whether any of defendants' activities constitutionally could support an award of punitive damages. If any of their activities could do so, then the trial court did not err in allowing the issue of punitive damages to go to the jury and in refusing to disturb the jury's verdict.

ARTICLE I, SECTION 8

The jury awarded compensatory and punitive damages for trespass to chattels. From the evidence presented, the jury could have found that the acts of trespass were defendants' climbing on plaintiff's logging equipment, chaining themselves to it, affixing an object to it, and rendering the equipment inoperable during that time. Although those acts undoubtedly had a communicative effect, in the sense that most purposive human activity communicates something about the frame of mind of the actor, the acts were conduct, not speech. ⁵ The question becomes, then, whether defendants are nonetheless constitutionally immune from potential responsibility for punitive damages because of the message that their conduct assertedly was trying to convey, the reason for their conduct, or the fact that speech accompanied their conduct.

Two lines of cases from this court demonstrate that the answer under Article I, section 8, is "no." The first line of cases, beginning with State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), evaluates whether various criminal laws violate Article I, section 8. ⁶ In the second line of cases, beginning with Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979), this court has addressed directly the availability, under Article I, section 8, of punitive damages for various torts involving speech.

Although the two lines of cases have developed independently, an examination of their methodologies and rationales discloses their fundamental interrelatedness. The imposition of punitive damages Turning to the first line of cases, this court's most recent discussion of the method of analyzing a criminal law under Article I, section 8, is found in State v. Plowman, 314 Or. 157, 838 P.2d 558 (1992). There, the court summarized the applicable principles derived from State v. Robertson, supra:

is akin to the imposition of criminal responsibility because, where punitive damages "beyond any actual injury are allowable, the plaintiff collects them as a form of public punishment." Hall v. The May Dept. Stores, 292 Or. 131, 146, 637 P.2d 126 (1981). ⁷ See also ORS 18.540 (a portion of award of punitive damages goes to the state); Oberg v. Honda Motor Co., 316 Or. 263, 281-83, 851 [317 Or. 451] P.2d 1084 (1993) (punitive damages are allowable to punish a wrongdoer). We also note that, although cases involving intentional torts usually hinge on common-law rules rather than on statutes, those common-law rules likewise are enforced by courts.

"In State v. Robertson, supra, this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. 293 Or. at 416-17 . The court reasoned that a law of the former type, a law 'written in terms directed to the substance of any "opinion" or any "subject" of communication,' violates Article I, section 8,

" '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.' Id. at 412 .

"Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. The coercion law at issue in Robertson was of that category. Id. at 417-18 . Such laws are analyzed for overbreadth:

" 'When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such 'overbreadth.' Ibid.

"The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:

" 'If [a] statute [is] directed only against causing the forbidden...