Lloyd Corp., Ltd. v. Whiffen

• Decision Date: 24 February 1988
• Parties: LLOYD CORPORATION, LTD., a California corporation, Respondent, v. Lucinda WHIFFEN, Hale Lee Weitzman, Eric Stachon, and John Doe 1-100, Appellants. A8512-08127; CA A38839.
• Court: Oregon Court of Appeals

Page 1157

750 P.2d 1157

89 Or.App. 629

LLOYD CORPORATION, LTD., a California corporation, Respondent, v. Lucinda WHIFFEN, Hale Lee Weitzman, Eric Stachon, and John Doe 1-100, Appellants.

A8512-08127; CA A38839.

Court of Appeals of Oregon.

Argued and Submitted Feb. 25, 1987.

Decided Feb. 24, 1988.

Jan Peter Londahl, Portland, argued the cause for appellants. With him on the briefs was Bennett, Birmingham, Londahl & McCandlish, P.C., Portland.

Duane A. Bosworth and Milton C. Lankton, Portland, argued the cause for respondent. On the brief were Duane A. Bosworth and Ragen, Roberts, Tremaine, Krieger, Schmeer, O'Scannlain & Neill, Portland.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

NEWMAN, Judge.

Defendants appeal a judgment granting plaintiff declaratory relief and a final injunction which barred defendants from entering plaintiff's shopping center, known as Lloyd Center, "to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without plaintiff's permission or consent." We reverse for further proceedings not inconsistent with this opinion.

These facts are undisputed. ¹ The core alone of Lloyd Center, located in Portland, covers more than 18 city blocks without any intervening public streets. Plaintiff leases 115 retail stores and 100 professional and business offices to tenants. It maintains interior walkways and malls and provides off-street parking facilities for more than 1000 vehicles. The interior malls and walkways create a pleasant environment for browsing, congregating, socializing and purchasing merchandise. They contain gardens, art, benches, directories, information booths and other facilities for the convenience of shoppers. Although public sidewalks and streets give access to some of the stores and offices, most of them can only be entered through the interior walkways and malls.

Plaintiff does not permit political activities of any kind on the walkways or malls of Lloyd Center. ² Plaintiff has placed a notice in the sidewalk at many of the entrances to the Center which states:

"NOTICE--Areas in Lloyd Center Used By The Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May be Revoked At Any Time. Lloyd Corporation, Ltd."

In December, 1985, defendants entered Lloyd Center to gather signatures on three initiative petitions. ³ Plaintiff, however, requested that defendants not solicit signatures on its property, but use the adjacent publicly owned sidewalks. Defendants refused, and plaintiff brought this action.

Relying on the Oregon Constitution, defendants assert that the injunction violates their right to solicit signatures in Lloyd Center under the free expression and assembly provisions of Article I, sections 8 and 26, ⁴ and under the initiative and referendum provisions of Article IV, section 1. They filed a counterclaim in which they asked the court to enjoin plaintiff from attempting to eject them from Lloyd Center and to declare that defendants have a right under the Oregon Constitution to gather initiative petition signatures there. Plaintiff argues that Article 1, sections 8 and 26, proscribe governmental action but do not apply to actions of private property owners. Plaintiff also contends that Article IV, section 1, does not give to defendants any right to gather signatures on private property. It asserts that, under the common law and the Oregon and United States Constitutions, it can exclude defendants from its privately owned shopping center, but it acknowledges that Lloyd Center is an "important resource for initiative and petition gatherers."

We first decide whether the court's action in issuing the injunction implicates Article I, section 8. In Crouch v. Central Labor Council, 134 Or. 612, 293 P. 729 (1930), the court interpreted an injunction that the trial court had issued in a labor dispute to bar the Oregon Labor Press from publishing references to the plaintiff. In holding the injunction too broad, the court stated:

"The courts are as much subject to the Constitution of the state as is the legislature of the state. The courts should not make an order in violation of said [A]rticle I, section 8, of the Constitution, though that section itself refers only to a law." 134 Or. at 622, 293 P. 729.

Two recent cases also show that Article I, section 8, limits judicial action when it is necessary to do so to protect the right of expression. Under Wheeler v. Green, 286 Or. 99, 593 P.2d 777 (1979), courts may not grant punitive damages in actions for defamation. Under Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1981), a court may not grant punitive damages in an action for infliction of severe emotional distress, if the gravamen of the tortious conduct is speech. In both cases, the Supreme Court reconciled the clauses of Article I, section 8, respecting the right of expression with the clause respecting responsibility for abuse of that right and with Article I, section 10.

In Wheeler v. Green, supra, the court stated:

"It is true that Article I, § 8, does not by its terms limit the extent of a defendants' 'responsibility' for defamation to that which is required to satisfy the protection which a plaintiff is guaranteed by Article I, § 10. In the sensitive area of free expression, however, the threat of large damage recoveries can easily inhibit the exercise of freedom 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.

"We are convinced by these considerations that a proper application of Article I, § 8, prohibits the award of punitive damages in defamation cases, unless some other constitutional provision requires that they be allowed. As we have shown, Article I, section 10, the other provision with a direct application to defamation actions, does not." 286 Or. at 118, 593 P.2d 777. (Emphasis supplied; footnote omitted.)

In Hall v. The May Dept. Stores, supra, the court stated:

"Wheeler v. Green, supra, was a defamation case in which a jury had allowed punitive damages. On appeal, this court unanimously held that the Oregon Constitution, which guarantees a remedy for actual injury from defamation, also denies punitive damages for even defamatory expression. The holding rested on a careful accommodation of two sections of the Bill of Rights. Article I, section 8, guarantees 'the free expression of opinion' and 'the right to speak, write, or print freely on any subject whatever,' subject to responsibility 'for the abuse of this right.' Article I, section 10 guarantees every person 'a remedy in due course of law for injury done him in his person, property or reputation.' Wheeler v. Green found the proper accommodation in interpreting the responsibility for abuse which section 8 excludes from freedom of speech to be responsibility to an injured party for the 'injury done him in his person, property, or reputation' stated in section 10. It does not extend beyond compensation for the injury to punishment or deterrence." 292 Or. at 145, 637 P.2d 126. (Emphasis supplied; footnote omitted.)

Those cases rest on the proposition that, if a court grants a judgment for punitive damages, it might "inhibit the exercise of freedom of constitutionally protected expression, as well as its abuse." Wheeler v. Green, supra, 286 Or. at 119, 593 P.2d 777. Relief was limited to a judgment for compensatory damages only. Similarly, the court's action here in issuing an injunction to enforce plaintiff's property rights could inhibit defendants' rights of expression, which include the opportunity to collect signatures on initiative petitions. Accordingly, the court's action in issuing the injunction does implicate Article I, section 8. ⁵

We must, however, find the "proper accommodation," see Hall v. The May Dept. Stores, supra, 292 Or. at 145, 637 P.2d 126, between plaintiff's property rights, protected by the Fifth and Fourteenth Amendments and Article I, sections 10 ⁶ and 18, ⁷ and defendants' rights of expression under Article I, section 8.

In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), the Supreme Court held that the United States Constitution did not bar the federal court from enjoining Vietnam war protesters from distributing handbills in Lloyd Center. ⁸ Subsequently, members of the International Society of Krishna Consciousness brought an action in state court, contending that, under Article I, section 8, they were entitled to speak in "Mall 205," another large shopping center in Portland. Lenrich Associates v. Heyda, 264 Or. 122, 504 P.2d 112 (1972). The Oregon Supreme Court did not reach the state constitutional question, because it believed that Lloyd Corp. v. Tanner, supra, was controlling. It reasoned that the United States Supreme Court's interpretation of a shopping center owner's Fifth and Fourteenth Amendment property rights precludes the state from deciding that its free speech provisions prevail over them. 264 Or. at 128, 504 P.2d 112.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), however, the United States Supreme Court affirmed a California decision, Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), which held that, under the California Constitution, the appellees could enter a large shopping center to speak. It ruled that the Fifth and Fourteenth Amendments did not bar California courts from deciding under their own constitution that rights of expression, subject to reasonable time, place and manner regulations, prevail over the right of a large shopping center owner to exclude persons from its property. ⁹ In this context, the court discussed the nature and extent of the owner's property...