Lloyd Corp., Ltd. v. Whiffen
| Decision Date | 23 March 1993 |
| Docket Number | Nos. CC,SI-LLOYD,s. CC |
| Citation | 849 P.2d 446,315 Or. 500 |
| Parties | LLOYD CORPORATION, LTD., a California corporation, Respondents on Review, v. Lucinda WHIFFEN, Hale Lee Weitzman and Eric Stachon, Petitioners on Review.ASSOCIATES, an Indiana limited partnership, Respondents on Review, v. John DOES 1-100, Defendants. A8512-08127, A8803-01216; CA A62648; SC S38606. |
| Court | Oregon Supreme Court |
Sean Donahue, Portland, argued the cause and filed the brief for respondents on review. With him on the brief were Duane Bosworth, and Lory J. Kraut, Portland.
Ridgway K. Foley and Bernard M. Ryan, of Schwabe, Williamson & Wyatt, Portland, filed a brief for amici curiae Washington Square, Valley River Shopping Center, Oakway Center, and Pioneer Place.
David F. Sugerman, of Paul & Sugerman, Portland, and Evelyn Conroy Sparks, of Jolles, Sokol & Bernstein, Portland, filed a brief for amicus curiae National Lawyers Guild.
Mark A. Anderson, Portland, filed a brief for amicus curiae ACLU Foundation of Oregon.
Mark G. McDougal, Portland, filed a brief for amicus curiae Oregon AFL-CIO.
Charles F. Hinkle, Portland, filed a brief for amici curiae Fred Meyer, Inc. and PayLess Drug Stores Northwest, Inc. With him on the brief was Alan K. Brickley, Portland, for amicus curiae Oregon Land Title Ass'n.
Before CARSON, C.J., PETERSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ., and TONGUE, Retired Justice, Pro Tem.
The question presented for decision in this case is whether the owner of a large shopping center, such as the Lloyd Center, may be required by the provisions of either Article IV, section 1 (initiative and referendum), or Article I, section 8 (free speech), of the Oregon Constitution, to allow persons to seek signatures on initiative petitions in the common areas of the shopping center.
We hold that persons seeking signatures on initiative petitions in the common areas of the Lloyd Center have a constitutional right to do so under Article IV, section 1, of the Oregon Constitution, subject to reasonable time, place, and manner restrictions. We further hold that three of the present restrictions, as adopted by plaintiff Lloyd Corporation (respondent on review) and approved by the trial court in this case, are unreasonable.
This is the second time that this case has been before this court. In Lloyd Corporation v. Whiffen, 307 Or. 674, 773 P.2d 1294 (1989) (Whiffen I ), this court held, on a "subconstitutional basis," that defendants have some right to petition on plaintiff's property. The case then was remanded to the trial court for consideration of reasonable time, place, and manner restrictions upon the exercise of that right. In response to that decision, Lloyd Corporation then adopted rules that limited petition-gathering activity in the Lloyd Center.
Defendants then, from time to time, attempted to solicit signatures for initiative petitions in the common areas of the Lloyd Center. They wish to do so on a scale greater than that permitted by plaintiff's rules.
Plaintiff Lloyd Corporation made application to the trial court for an injunction to enjoin defendants from doing anything not in accordance with Lloyd Corporation's adopted rules. The trial court then entered an injunction enjoining defendants from soliciting signatures on initiative petitions at Lloyd Center in violation of time, place, and manner restrictions in the rules adopted by Lloyd Corporation. Defendants appealed. The Court of Appeals affirmed. Lloyd Corporation v. Whiffen, 107 Or.App. 773, 813 P.2d 573 (1991). We allowed defendants' petition for review and now affirm in part and reverse in part.
Defendants contend that:
"The Court erred in confining petitioners to specified areas, in requiring 24 hour prior personal written notice of an intent to petition, in limiting the number of petitioners at any given time, and in banning petitioning during the Christmas and Rose Festival seasons."
To the contrary, plaintiff Lloyd Corporation contends that:
1. "On the present record, the court cannot avoid a constitutional analysis."
2. "Forcing the Lloyd Center to Allow Petitioning Activity on its Private Property Violates the United States and Oregon Constitutions.
3. "Petitioners do not have a Constitutional Right to Gather Signatures on Private Property.
4. "Lloyd Center's Rules are a Reasonable Means of Minimizing Safety Risks and Reducing Distractions which Interfere with Commercial Activity."
Several amicus curiae briefs also have been submitted in support of the positions of both parties.
During oral argument, a question was raised by a member of the court whether the fact that the City of Portland had vacated eight acres of public streets that now lie inside the Lloyd Center, which occupies about 80 acres, may provide a basis on which defendants may have a right to enter the Lloyd Center to seek signatures on initiative petitions. The parties were then requested to submit supplemental briefs on that question.
Plaintiff Lloyd Corporation, in its supplemental brief, contends, among other things, that vacating a city street extinguishes all of the public's interest in the property. Defendants did not submit a supplemental brief on this issue, but in a letter to the court stated that they would "rely on the arguments submitted on our behalf by amicus curiae." The brief submitted by Oregon AFL-CIO, as amicus curiae, states that:
"[T]he street vacation is not what gives rise to the public's right to gather signatures, rather the public's right arises from the fact that Lloyd Center's common areas are a public forum."
Because neither of the parties contend that the vacation of the streets provides a proper basis for the decision of this case, we find no need to discuss that question.
We next consider the contentions by plaintiff Lloyd Corporation and agree with its first contention that "on the present record, the court cannot avoid a constitutional analysis."
Plaintiff contends that compelling it to provide a forum on its private property is a "taking" under both Article I, section 18, of the Oregon Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States.
Article I, section 18, of the Oregon Constitution provides:
"Private property shall not be taken for public use * * * without just compensation[.]"
The Fifth Amendment to the Constitution of the United States provides:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.)
By the Fourteenth Amendment, the rights of persons as guaranteed under the Fifth Amendment are made applicable to the states.
Plaintiff does not suggest any different analysis under the Oregon Constitution than under the Constitution of the United States. Therefore, we assume, without deciding, that the analysis would be the same under both constitutions. See Dept. of Trans. v. Lundberg, 312 Or. 568, 572 n. 4, 825 P.2d 641 (1992), cert. den. 506 U.S. 975, 113 S.Ct. 467, 121 L.Ed.2d 374 (1992) (making that assumption). In addition, as held in Hughes v. State of Oregon, 314 Or. 1, 34, 838 P.2d 1018 (1992), "[n]ot every acquisition of a private property interest by the state constitutes a taking under section 18[.]"
In a previous case involving the Lloyd Center, Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), the Supreme Court of the United States held that the First Amendment to the Constitution of the United States did not confer upon persons seeking to distribute handbills within the Lloyd Center the right to do so. 1 But in the later case of PruneYard Shopping Center v. Robins, 447 U.S. 74, 81-83, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), the Court held:
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