Lloyd Corp., Ltd. v. Whiffen

• Decision Date: 09 May 1989
• Citation: 307 Or. 674,773 P.2d 1294
• Parties: , 57 USLW 2685 LLOYD CORPORATION, LTD., a California corporation, Petitioner on review, v. Lucinda WHIFFEN, Hale Lee Weitzman, Eric Stachon and John Doe 1-100, Respondents on review. CC A8512-08127 CA A38839/SC S35170.
• Court: Oregon Supreme Court

Page 1294

773 P.2d 1294

307 Or. 674, 57 USLW 2685

LLOYD CORPORATION, LTD., a California corporation Petitioner on review, v. Lucinda WHIFFEN, Hale Lee Weitzman, Eric Stachon and John Doe 1-100, Respondents on review.

CC A8512-08127

CA A38839/SC S35170.

Supreme Court of Oregon.

Argued and Submitted Sept. 7, 1988.

Decided May 9, 1989.

Milton C. Lankton and Duane A. Bosworth, of Ragen, Tremaine, Krieger, Schmeer & Neill, Portland, argued the cause and filed the petition for petitioner on review.

Gregory Kafoury, Portland, argued the cause and filed a response to the petition for respondent on review Eric Stachon.

No appearance for respondents on review Whiffen, Weitzman, and John Doe 1-100.

Charles F. Hinkle, of Stoel, Rives, Boley, Jones & Grey, Portland, filed a brief on behalf of amicus curiae Fred Meyer, Inc.

Edward J. Sack, New York City, and Gile R. Downes, of Schulte, Anderson, DeFrancq Mark A. Anderson, of Miller, Nash, Wiener, Hager & Carlsen, and Henry Kantor, Portland, filed a brief on behalf of amicus curiae The ACLU Foundation of Oregon.

Downes & Carter, P.C., Portland, filed a brief on behalf of amicus curiae Intern. Council of Shopping Centers, Inc.

James S. Coon, of Imperati, Barnett, Sherwood & Coon, P.C., Portland, filed a brief on behalf of amicus curiae National Lawyers' Guild.

Before PETERSON, C.J., LINDE, CAMPBELL, ^* CARSON, JONES and GILLETTE, JJ., and VAN HOOMISSEN, J. Pro Tem.

JONES, Justice.

The issue is whether the owner of a privately owned shopping center open to the public for commercial purposes may obtain a declaration of rights and an injunction against persons entering the shopping center to obtain petition signatures; or whether the defendant-solicitors have a right to solicit petition signatures in the shopping mall without plaintiff's permission.

The circuit court ordered that "defendants are hereby restrained and enjoined from entering upon plaintiff's private property to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without plaintiff's permission or consent." The Court of Appeals reversed, holding that the order violated defendants' rights of expression under Article I, section 8, of the Oregon Constitution, and that defendants could exercise their free expression rights in the shopping center subject to reasonable time, place, and manner regulations. Lloyd Corporation v. Whiffen, 89 Or.App. 629, 750 P.2d 1157 (1988). We affirm the decision of the Court of Appeals, but on different grounds.

FACTS

Most of the facts are undisputed. ¹ Lloyd Center (Center) is a retail shopping center located in Portland. Plaintiff is the owner of fee title to the land the Center occupies. Five public streets cross the Center and at least six other public streets run partly into and around the Center. In total, there are more than 66 blocks of publicly owned sidewalks in the Center. There is also an adjacent public park. The privately owned areas of the Center contain stores, professional and business offices, covered walkways, and open and covered areas for automobile parking. At least nine stores open directly onto or within a few feet of public streets. There are public bus stops on public streets adjacent to the public sidewalks in the Center. All entrances to and exits from the Center cross public sidewalks.

The privately owned mall and walkways are designed, decorated, and managed to promote retail business, to please plaintiff's tenants and their customers, clients, and patients, and to encourage prospective customers to come to the Center where they may view and buy merchandise or partake of services. Gardens, flower beds, statuary, murals, various other works of art, benches, elevators and escalators, stairways and bridges, and directories and information booths adorn the private mall and walkways. Recorded music is broadcast in the ice rink and throughout the Center as part of the desired atmosphere. Plaintiff and plaintiff's tenants pay the entire cost of maintaining the privately owned common areas in the Center, which exceeds $1 million per year. All this is intended to create a pleasant environment conducive to purchasing merchandise or services.

Since the inception of its business in 1960, plaintiff without discrimination has attempted to prohibit solicitation or distribution "NOTICE--Areas in the 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."

of political leaflets or petitioning in the privately owned mall and walkways of the Center. Neither tenants of the Center nor nontenants are permitted to engage in any such activity. At each of 25 entrances to the private areas, plaintiff has embedded signs in the walkways stating:

The record supports plaintiff's contention that it attempts to limit access of persons whose purpose is not to shop or "do business with" plaintiff or its tenants. It is obvious, however, that plaintiff would not exclude a person who comes only to meet an employee or a shopper at the Center or persons who simply walk through the mall for exercise. Plaintiff's signs tell the public that the open areas of the Center (1) are not public ways, (2) are for the use of the Center's tenants and the public transacting business with them, and (3) that plaintiff may revoke permission to use the areas at any time. They do not purport to deny entry to casual visitors. They do not imply that someone crossing from one street to another through the Center's public area is a trespasser. But one thing is clear, plaintiff makes no open-ended invitation to the public to use the Center as a forum to debate public issues.

In December 1985, defendants entered the Center to gather signatures on three initiative petitions. The parties agreed that "[e]mployees of the plaintiff have requested defendants and others who seek to gather initiative petition signatures to cease their activities on the privately owned portions of Lloyd Center and have asked those persons to go to public sidewalks or other public areas to obtain signatures." After this request, defendants continued their activity and declared that they would continue to do so unless arrested or enjoined. Accordingly, plaintiff commenced this litigation for an injunction and for a declaratory judgment.

ANALYSIS

I.

From the beginning, the parties have treated this as a constitutional case. Plaintiff claimed that a refusal to enjoin defendants' activity would constitute a taking of its property. Defendants counterclaimed for a declaration that they have a "right" under the Oregon Constitution to gather initiative petition signatures in the Center. ² Judicial opinions elsewhere take up the constitutional debate, displaying deep divisions about the correct analysis. ³ We will not join in that debate, however without first examining the parties' rights on a subconstitutional level. Our practice is to refrain from constitutional holdings unless ordinary legal principles cannot resolve the dispute. State v. Edgmand, 306 Or. 535, 538-39, 761 P.2d 505 (1988); Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 564, 687 P.2d 785 (1984). ⁴

A court applying a common-law rule or fashioning an equitable order must observe constitutional principles as much as a legislative or administrative body. See Hall v. The May Dept. Stores, 292 Or. 131, 145-46, 637 P.2d 126 (1981); Wheeler v. Green, 286 Or. 99, 117-19, 593 P.2d 777 (1979); Crouch v. Central Labor Council, 134 Or. 612, 622, 293 P. 729 (1930). Although court involvement may trigger constitutional analysis, it does not prove a constitutional violation. Thus, in deciding this case we will discuss constitutional provisions and interpretations without necessarily deciding any constitutional right or violation. Whether a judicial decision of a private claim invades constitutional rights depends on whether the remedy fashioned by the court invades constitutional rights. The same judicial remedy--for instance, an injunction--may be permissible in one case but not in another. In this case, we conclude on a subconstitutional level that plaintiff is not entitled to the broad injunction it sought and received.

II.

Plaintiff seeks an injunction against defendants for unreasonably interfering with plaintiff's use of its property. Plaintiff has established that defendants are on plaintiff's property without permission; indeed, defendants are transgressing a direct prohibition. Plaintiff's success in making this demonstration does not, however, automatically prove its entitlement to the injunction granted by the trial court.

In a trespass case not involving the public interest, once a plaintiff establishes that his protected interest in exclusive possession of land will be repeatedly invaded, an injunction ordinarily issues against the continuing trespass to avoid the multiplicity of law suits otherwise necessary to vindicate the plaintiff's rights in damages. ⁵ But an injunction remains discretionary and subject to equitable considerations; it is not available as a matter of right.

This court has recognized that equitable remedies against invasions of real property do not follow inexorably when a landowner seeks to deny entry. In Atkinson v. Bernard, Inc., 223 Or. 624, 355 P.2d 229 (1960), the trial court granted landowners an injunction against noisy low-level flights across their land from a small airport. The trial court applied the "privileged trespass" rule of the Restatement of Torts § 460 (1934), which this court had cited in another context: "Air travel over a plaintiff's land is still recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege." Amphitheaters Inc. v. Portland Meadows, 184 Or. 336, 344, 198 P.2d 847 (1948). In...