State v. Cargill

• Decision Date: 31 January 1990
• Citation: 786 P.2d 208,100 Or.App. 336
• Parties: , 58 USLW 2491 STATE of Oregon, Respondent, v. Linda Sue CARGILL, Appellant. STATE of Oregon, Respondent, v. David Robert CHAMBERS, Appellant. STATE of Oregon, Respondent, v. Peter ELIAS, Appellant. STATE of Oregon, Respondent, v. Cherie Lambert HOLENSTEIN, Appellant. STATE of Oregon, Respondent, v. David Roger SHOUSE, Appellant. STATE of Oregon, Respondent, v. Lois R. STRANAHAN, Appellant. DA369633 -8805; CA A49496, DA369634 -8805; CA A49497, DA369631 -8805; CA A49498, DA369632 -8805; CA A49499, DA369629 -8805; CA A49500, DA369630 -8805; CA A49501.
• Court: Oregon Court of Appeals

Page 208

786 P.2d 208

100 Or.App. 336, 58 USLW 2491

STATE of Oregon, Respondent, v. Linda Sue CARGILL, Appellant.

STATE of Oregon, Respondent, v. David Robert CHAMBERS, Appellant.

STATE of Oregon, Respondent, v. Peter ELIAS, Appellant.

STATE of Oregon, Respondent, v. Cherie Lambert HOLENSTEIN, Appellant.

STATE of Oregon, Respondent, v. David Roger SHOUSE, Appellant.

STATE of Oregon, Respondent, v. Lois R. STRANAHAN, Appellant.

DA369633 -8805; CA A49496, DA369634 -8805; CA

A49497, DA369631 -8805; CA A49498, DA369632

-8805; CA A49499, DA369629 -8805; CA

A49500, DA369630 -8805; CA A49501.

Court of Appeals of Oregon.

Argued and Submitted Aug. 23, 1989.

Decided Jan. 31, 1990.

Leland R. Berger and Elizabeth Doran Jacobs, Portland, argued the cause for appellants. With them on the briefs were Evelyn Conroy Sparks, Geoffrey Squire Silver, Jeffrey A. Strang, Portland.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia Linder, Sol. Gen., Salem.

Before JOSEPH, C.J. ^* , and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Defendants appeal their convictions for criminal trespass in the second degree. ORS 164.245. The trial court reduced the charges from Class C misdemeanors to violations. ORS 161.565(2). After a trial to the court, it found defendants guilty and gave each a sentence of discharge. ORS 137.010(7)(d); ORS 161.715. ¹ We reverse.

Defendants stood on a sidewalk between the parking lot of the Fred Meyer store at 3805 S.E. Hawthorne in Portland and the store's main entrance, seeking signatures on several initiative petitions. Both the parking lot and the sidewalk were private property that Fred Meyer controlled. ² A store employee, pursuant to company policy, directed defendants to leave. They refused to, which led to their arrests and convictions.

ORS 164.245(1) provides:

"A person commits the crime of criminal trespass in the second degree if the person enters or remains unlawfully in or upon premises."

These definitions in ORS 164.205 apply to ORS 164.245:

"(3) 'Enter or remain unlawfully' means:

" * * * *

"(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge.

"(4) 'Open to the public' means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that no permission to enter or remain is required."

Defendants do not dispute that the store and the sidewalk are premises that are open to the public, that a person in charge ordered them to leave and that they failed to do so. They argue that the order to leave was not "lawful," because it was unconstitutional under Article I, section 8, and Article IV, section 1, of the Oregon Constitution. We hold that the order was not "lawful," because using it as the foundation for a criminal prosecution would improperly interfere with the people's right under Article IV, section 1, ³ to initiate legislation.

As a preliminary matter, we must decide the effect of a stipulation by the parties. Before the presentation of any evidence at trial, the parties stipulated that the state did not have to put on a prima facie case, that it could rest without putting on any evidence and that the defense would then put on evidence regarding the issue of whether the order to leave was lawful. ⁴

The state argues that the parties stipulated that defendants would have the burden of proving that the order to leave was unlawful because it was unconstitutional. We do not agree. "It is well recognized that the language of a stipulation * * * will not be so construed as to give it the effect of a waiver of a right not plainly intended to be relinquished." Johnson v. Northwest Acceptance, 259 Or. 1, 7, 485 P.2d 12 (1971). Even assuming that defendants could relinquish their right under ORS 161.055 to have the state prove that the order to leave was lawful, ⁵ the stipulation does not express a clear intention by defendants to do so.

The state also argues that State v. Marbet, 32 Or.App. 67, 573 P.2d 736 (1978), places the burden of proof on defendants. Again, we do not agree. In Marbet, we held that the authority to order a person to leave premises may be limited or circumscribed by statutory or constitutional provisions and may be raised as a defense. We did not hold that a defendant who raises the defense also has the burden of proving it. Holding that would be contrary to ORS 161.055.

We next consider, as a matter of statutory construction, the "lawfulness" of an order to leave directed to a person who is gathering signatures on an initiative petition. Previous cases give us little guidance. Orders that a known shoplifter not enter any of a company's stores or that a disruptive person leave a public hearing are lawful. State v. Ocean, 24 Or.App. 289, 546 P.2d 150 (1976); see State v. Marbet, supra. On the other hand, it would not usually be lawful to direct a person to leave because of the person's race, religion, sex, marital status, color or national origin. ORS 30.670 to ORS 30.685; see also People v. Leonard, 62 N.Y.2d 404, 410, 477 N.Y.S.2d 111, 115, 465 N.E.2d 831, 835 (1984). Although gathering signatures is an important part of the Oregon political process, no statute requires property owners as such to provide access for that purpose. See ORS ch. 250. We therefore have no basis for holding that there is a statutory exemption to ORS 164.245 for persons who are directed to leave because they are gathering signatures. We turn, then, to whether it is constitutional for the order in this case to be the foundation for a criminal prosecution.

Defendants, when seeking signatures on the petitions, were exercising their rights to function as part of the legislative branch of the state government. In Straw v. Harris, 54 Or. 424, 103 P. 777 (1909), the Supreme Court said:

"By the adoption of the initiative and referendum into our constitution, the legislative department of the State is divided into two separate and distinct lawmaking bodies. There remains, however, as formerly, but one legislative department of the State. It operates, it is true, differently than before--one method by the enactment of laws directly, through that source of all legislative power, the people; and the other, as formerly, by their representatives--but the change thus wrought neither gives to nor takes from the legislative assembly the power to enact or repeal any law, except in such manner and to such extent as may therein be expressly stated. Nor do we understand that it was ever intended that it should do so. The powers thus reserved to the people merely took from the legislature the exclusive right to enact laws, at the same time leaving it a co-ordinate legislative body with them. This dual system of making and unmaking laws has become the settled policy of the State, and so recognized by decisions upon the subject." 54 Or at 430.

See also Hall v. Dunn, 52 Or. 475, 485, 97 P. 811 (1908); Kadderly v. Portland, 44 Or. 118, 145-46, 74 P. 710, 75 P. 222 (1904).

It is implicit in Article IV, section 1, that the people must have adequate opportunities to sign the petitions that are necessary for them to act as legislators. When the people adopted the initiative and referendum, there were ample opportunities to collect signatures. Parks, town squares and courthouses were common gathering places, and store entrances were usually directly off public sidewalks. The people could meet and conduct their legislative business on public property.

Today, the situation has substantially changed. Parks and courthouses are not the only, or even primary, foci of modern life. Many people who seldom go to those places now congregate at shopping centers. Privately owned stores and shopping centers typically are connected to privately owned parking areas, and stores are constructed so that entrances open on private property rather than on public sidewalks. See note 2, supra. Every part of a store or shopping center where it is feasible to seek signatures for initiative or referendum petitions is often privately owned.

Other courts have recognized the change in societal habits as to where citizens congregate. In Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), the Court said:

"Here * * * the sidewalks leading from building to building are the functional equivalents of the * * * sidewalks of a normal municipal business district. The shopping center premises are open to the public to the same extent as the commercial center of a normal town." ⁶ 391 U.S. at 319, 88 S.Ct. at 1608-09.

In Lloyd Corporation v. Whiffen, 307 Or. 674, 773 P.2d 1294 (1989), the Supreme Court said:

"Plaintiff claims that defendants have full access to traditional public forums, such as the public park, sidewalks, and streets adjoining plaintiff's private property. But the public does not gather in the public park or use the outside sidewalks in great number. The process of gathering signatures is substantially impaired--almost doubled in time--if conducted on the public walkways or in parks instead of in the mall and on its walkways. Shopping malls have become part of American life. Large numbers of the public gather there. Although plaintiff tries to cloak a public mall as a private place, it is the antithesis of a private place." ⁷ 307 Or. at 685, 773 P.2d 1294.

The changes have had a major effect on gathering signatures for initiative petitions. A witness with extensive experience in collecting signatures testified that access to the entrances to Fred Meyer stores is worth between 10,000 and 20,000 signatures. ⁸ The trial court found that several measures might not appear on the ballot if those supporting them could not collect signatures at Fred Meyer stores.

The Fred Meyer store at which defendants were arrested is a modern...