Leppanen v. Lane Transit District

• Decision Date: 01 May 2002
• Citation: 181 Or. App. 136,45 P.3d 501
• Parties: Steven E. LEPPANEN, Respondent, v. LANE TRANSIT DISTRICT, a municipal corporation of the State of Oregon and a public body, corporate and politic, Appellant.
• Court: Oregon Court of Appeals

45 P.3d 501

181 Or. App. 136

Steven E. LEPPANEN, Respondent, v. LANE TRANSIT DISTRICT, a municipal corporation of the State of Oregon and a public body, corporate and politic, Appellant.

12-00-009315; A111022.

Court of Appeals of Oregon.

Argued and Submitted July 16, 2001.

Decided May 1, 2002.

Rohn M. Roberts, Eugene, argued the cause for appellant. With him on the briefs were Suzanne C. Powell and Arnold Gallagher Saydack Percell & Roberts, P.C.

C. Edward Gerdes, Jr., Eugene, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and HASELTON, Judge.

LANDAU, P.J.

Plaintiff, a City of Eugene resident, attempted to solicit initiative petition signatures at the downtown Eugene transit station. The Lane Transit District (LTD) prohibited him from doing that, invoking an ordinance that, among other things, prohibits solicitation of initiative petition signatures in the vicinity of a bus boarding platform area. Plaintiff then initiated this action challenging the constitutionality of the ordinance, arguing that it violates his right to initiate legislation reserved in Article IV, section 1, of the Oregon Constitution, as well his rights of free expression and free association guaranteed by Article I, section 8, and Article I, section 26, respectively. The trial court concluded that portions of the ordinance violate Article IV, section 1, of the Oregon Constitution, and awarded plaintiff his attorney fees and costs. LTD appeals, assigning error both to the conclusion that the ordinance is unconstitutional and to the award of attorney fees. We affirm, concluding that the ordinance violates the free speech guarantees of Article I, section 8, of the Oregon Constitution. Because we conclude that the ordinance violates that provision of the state constitution, we do not address whether it also violates Article I, section 26, or Article IV, section 1. As for the attorney fees and costs, we conclude that the trial court did not err.

The relevant facts are few and undisputed. LTD is a mass transit district. See generally ORS 267.010 to ORS 267.430 (pertaining to mass transit districts). As such, it is a public body, ORS 267.200, authorized to acquire real and personal property, ORS 267.200(2), and to enact ordinances relating to the use of that property, ORS 267.150.

In the 1990s, LTD constructed the Downtown Eugene Station, a central boarding area located on a city block in downtown Eugene designed to move boarding activity away from public sidewalks. To regulate the conduct of people using the new station, LTD adopted Ordinance 36, section 1.15, which provides, in part:

"(23) Solicitation. To ensure the safety, comfort and convenience of District passengers, and the safe and efficient operation of the Transit System:

"(a) No person shall impede or block the free movement of passengers, or otherwise disrupt the function of the District in any District Station or in any District Vehicle;

"(b) No person shall canvass, seek signatures, picket, collect money, solicit sales, or sell or distribute anything of commercial or non-commercial value, on any District Vehicle, within a shelter, on any District Boarding Platform Area, or within eight feet of any District Station doorway or ticket counter, nor otherwise interfere with passenger or public safety[.]"

The "Boarding Platform Areas" of the downtown transit station where canvassing, seeking signatures, and other specified activities are prohibited are designated by a color-coded map that is attached to the ordinance.

Plaintiff is a volunteer signature gatherer. He attempted to solicit initiative petition signatures within a Boarding Platform Area of the downtown station. An LTD representative informed plaintiff that, under section 1.15(23)(b) of the LTD ordinance, he was not permitted to solicit initiative petition signatures within that area. Plaintiff then commenced this action challenging the constitutionality of section 1.15(23)(b) of the ordinance.

After a bench trial, the court issued an opinion concluding that portions of section 1.15(23)(b) are unconstitutional. The trial court noted that, under Lloyd Corp. v. Whiffen, 315 Or. 500, 849 P.2d 446 (1993) (Whiffen II),¹ members of the public have the constitutional right reserved by Article IV, section 1, of the Oregon Constitution, to solicit initiative petition signatures in the common areas of a private shopping center, subject to reasonable restrictions. The trial court reasoned that members of the public must have at least the same rights with respect to public property; accordingly, the only question was the reasonableness of the restrictions imposed by section 1.15(23)(b). The court concluded that the prohibition against soliciting initiative petition signatures within eight feet of bus doors while the buses are loading is a reasonable restriction but that, in all other respects, the restrictions on soliciting initiative petition signatures imposed by the ordinance were unreasonable. The court entered judgment for plaintiff.

Plaintiff moved for an award of attorney fees. LTD objected that no applicable statute provided authority for awarding attorney fees. Plaintiff argued that, because he brought the action to vindicate important constitutional rights, the court possessed inherent authority to award the fees. The trial court agreed, concluding that plaintiff brought this action to vindicate important constitutional rights and not personally to benefit financially from a favorable ruling. The court awarded approximately $4,000 in fees and costs.

On appeal, LTD first assigns error to the trial court's ruling that the restrictions of section 1.15(23)(b) on the solicitation of initiative petition signatures violate Article IV, section 1, of the Oregon Constitution. Plaintiff argues that the trial court was correct in concluding that the ordinance violates Article IV, section 1. In the alternative, plaintiff argues that, even if the ordinance does not violate Article IV, section 1, it does violate Article I, sections 8 and 26.

The trial court based its decision on Article IV, section 1, as construed in Whiffen II. During the pendency of this appeal, in Stranahan v. Fred Meyer, Inc., 331 Or. 38, 11 P.3d 228 (2000), the Supreme Court overruled Whiffen II, thereby casting some doubt on the conclusion that the LTD ordinance violates Article IV, section 1. We need not address that issue, however. In our view, even assuming that the ordinance does not violate Article IV, section 1, it does violate Article I, section 8.

At the outset, we must determine the method of analysis that applies to Article I, section 8. In State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960), the court examined the language and historical context of the adoption of Article I, section 8, and concluded that it was most likely intended to embody the formulation expressed in Blackstone's Commentaries that the state may not engage in prior restraint of publications but may reasonably regulate speech after the fact to preserve public peace and good order. Id. at 346-49, 356 P.2d 495.

In State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), however, the court adopted a different method of analysis. Under Robertson, analysis of the constitutionality of a regulation depends on whether it is aimed at the content of speech or is aimed at forbidden effects that are caused by speech. If the former, then the regulation is unconstitutional unless wholly contained within a well-established historical exception to the protections of Article I, section 8. If the latter, then the regulation is evaluated for overbreadth or on an as-applied basis, depending, respectively, on whether it expressly prohibits speech as a means of regulating the forbidden effect or prohibits the effect caused by speech or otherwise. Id. at 412-18, 649 P.2d 569. Since Robertson, the court has applied that method of interpreting Article I, section 8. As for Jackson, the court has declared that the idea that the guarantees of freedom of expression apply only to prior restraint of publications is simply "inadequate." State v. Henry, 302 Or. 510, 514, 732 P.2d 9 (1987).

But then in Stranahan, the court declared that the proper method of interpreting any provision of the original Oregon Constitution is to ascertain "the intent of the framers * * * and of the people who adopted it," 331 Or. at 54, 11 P.3d 228 (quoting Jones v. Hoss, 132 Or. 175, 178, 285 P. 205 (1930)), by examining the wording of the provision, the case law surrounding it, and the historical circumstances that led to its creation. Stranahan, 331 Or. at 56, 11 P.3d 228 (citing Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992)). Indeed, in Stranahan, the court specifically stated that that method of interpretation applies to Article I, section 8. Certain amici curiae had suggested that the court hold that Article I, section 8, confers a right to solicit initiative petition signatures on private property. The court declined to entertain the suggestion, explaining:

"Any such analysis would require this court to follow the analytical construct set out in Priest, 314 Or. at 411, 840 P.2d 65, because Article I, section 8, is a part of the original constitution. Amici make no attempt to follow that (or any other) methodology, arguing instead for the outcome that they wish to see on policy grounds. * * * Lacking any assistance from amici in that respect, we decline to undertake on our own an effort to determine whether there is a basis for a different decision under Article I, section 8[.]"

Stranahan, 331 Or. at 66 n. 19, 11 P.3d 228 (emphasis added). In the meantime, the Supreme Court has not overruled Robertson or any of the cases applying it for the purpose of determining the effect of Article I, section 8.

We conclude that the analytical method set out in Robertson controls our evaluation of the parties' Article I, section 8, contentions. Although the...