Stranahan v. Fred Meyer, Inc.

• Decision Date: 22 April 1998
• Citation: 153 Or.App. 442,958 P.2d 854
• Parties: Lois STRANAHAN, Appellant--Cross-Respondent, v. FRED MEYER, INC., a Delaware corporation, Respondent--Cross-Appellant. 9110-06504; CA A88372. *
• Court: Oregon Court of Appeals

Page 854

958 P.2d 854

153 Or.App. 442

Lois STRANAHAN, Appellant--Cross-Respondent, v. FRED MEYER, INC., a Delaware corporation, Respondent--Cross-Appellant.

9110-06504; CA A88372.

Court of Appeals of Oregon In Banc ^*.

Argued and Submitted March 26, 1997.

Resubmitted Feb. 11, 1998.

Decided April 22, 1998.

Gregory Kafoury and Mark McDougal, Portland, argued the cause and filed the briefs for appellant--cross-respondent.

Charles F. Hinkle, Portland, argued the cause for respondent--cross-appellant. With him on the briefs were Scott J. Kaplan and Stoel Rives LLP.

RIGGS, Presiding Judge.

Plaintiff Lois Stranahan brought this action for false arrest against defendant Fred Meyer, Inc. (Fred Meyer), and a jury returned a verdict in her favor for $125,000 in compensatory damages and $2 million punitive damages. After trial, the trial court reduced the punitive damage award from $2 million to $375,000. Both parties have appealed. We reverse on appeal and affirm on cross-appeal.

Before turning to the parties' specific arguments, we must set forth the rather complicated factual and legal context surrounding this case. Because most of the assignments of error concern the denial of Fred Meyer's motion for a directed verdict, we set forth the relevant facts in the light most favorable to Stranahan as the nonmoving party, and give her every reasonable inference that may be drawn from the evidence. Shockey v. City of Portland, 313 Or. 414, 422-23, 837 P.2d 505 (1992), cert. den. 507 U.S. 1017, 113 S.Ct. 1813, 123 L.Ed.2d 444 (1993).

Stranahan has long been a political activist in Oregon, and has promoted her political beliefs through use of the initiative process. This political activity has often involved gathering signatures to put the initiatives she supports on the ballot. Her first signature-gathering efforts to put an initiative on the ballot occurred in the 1940s, and involved lowering the voting age. At the time of the incident at issue in the present case, Stranahan was gathering signatures to put initiatives on the ballot concerning sales taxes and the rights of initiative petitioners. Fred Meyer, a chain of shopping centers, maintains that it has a right to exclude initiative petitioners such as Stranahan from its shopping centers and its property surrounding those shopping centers.

On October 11, 1989, Stranahan and another signature-gatherer, Philip Mitchell, were arrested for trespassing outside a Fred Meyer shopping center at Southeast 82nd and Foster, in Portland. This litigation stems from that arrest.

Stranahan went into the shopping center and notified the manager that she would be petitioning outside for several hours. The manager told her not to come within five steps of the doors, and she agreed. She gathered signatures for several hours. In the late afternoon, Michael McClendon, an employee of Fred Meyer's security department, was dispatched from Fred Meyer's headquarters and went to the shopping center where Stranahan was petitioning. He had written directions for dealing with initiative petitioners that instructed him to take with him a preliminary injunction that had been issued against Lloyd Marbet in an unrelated matter concerning petitioning on Fred Meyer premises. McClendon ordered Stranahan to leave. Stranahan and Mitchell explained that they had a legal right to be there and showed him a newspaper article about a recent trial court ruling that an initiative petitioner had a constitutional right to petition at a Fred Meyer shopping center. McClendon told Stranahan that if she did not leave, he would call the police and have her taken to jail. Stranahan did not leave.

Parkerson, a police officer, was summoned to the shopping center by Fred Meyer security where he was met by McClendon. McClendon showed Parkerson the Marbet injunction, and told him that it was an injunction against petitioners petitioning on Fred Meyer property. Parkerson asked Stranahan to leave, and she refused to do so. Stranahan was taken into custody and transported to jail. As she was entering the police car, she injured her back while trying to avoid parts of the seats that had blood on them. She later began to have chest pains, and needed to take a nitroglycerine tablet at the police station. She eventually was issued a citation and then released. No criminal charges were pursued against Stranahan because it was the policy of the Multnomah County District Attorney's office at that time not to pursue this type of criminal trespass case against initiative petitioners. Fred Meyer knew about that policy at the time of Stranahan's arrest.

According to McClendon, his orders concerning initiative petitioners were to try to persuade them to leave and, if they would not, to call the police and show them the Marbet injunction. He claimed that he was never to arrest petitioners himself and was not to sign any complaints. ¹ McClendon testified that he did not arrest Stranahan and did not ask Parkerson to arrest Stranahan. ² Parkerson, however, testified that Stranahan had been arrested by McClendon. The citation that Parkerson issued indicated that Stranahan had been arrested by McClendon.

John Velke, a vice president of Fred Meyer, was aware of the practice of dispatching security personnel to locations where citizens were petitioning, using the unrelated Marbet injunction to try to make the petitioners leave, and showing the injunction to police officers. Velke acknowledged that it might be misleading if police officers were led to believe that the injunction applied to petitioners not connected with the Marbet matter. Velke testified that Fred Meyer stopped using the Marbet injunction in that manner in 1990. Velke testified that it had always been the policy of Fred Meyer not to arrest initiative petitioners. However, evidence was introduced that Mr. DeHahn, head of Fred Meyer security, had instructed a store manager to place an initiative petitioner under citizen's arrest on December 31, 1988. Evidence also was introduced that DeHahn had testified in 1988, in previous litigation concerning the rights of initiative petitioners to petition at Fred Meyer shopping centers, that he had ordered the arrests of initiative petitioners. Evidence was introduced that Robert Cornutt, also with Fred Meyer security, had testified in another case some three months after Stranahan's arrest that it was company policy to arrest initiative petitioners.

Kellie Petersen, another initiative petitioner, testified that she had been arrested while petitioning at a Fred Meyer shopping center in Oregon City, that her case had gone to trial on September 29, 1989, and that she had been acquitted on the ground that she had a constitutional right to petition at the shopping center in question. Approximately three weeks after her acquittal (and shortly after Stranahan's arrest at issue in this case), Petersen attempted to gather signatures on a petition outside a Fred Meyer shopping center in Portland and was arrested again. She was handcuffed and taken to jail, but the charges were dismissed. Several months later, Cherie Holenstein, who had previously been arrested for petitioning at a Fred Meyer shopping center and eventually had her conviction overturned on appeal, ³ returned to the same shopping center where she previously had been arrested. She was again arrested for gathering signatures on an initiative petition. In February 1992, Petersen again attempted to gather signatures on an initiative petition at a Fred Meyer shopping center. Fred Meyer personnel presented Petersen with a set of petitioning rules that purportedly were issued by a state circuit court. Those rules indicated that only two petitioners could be present, that they had to give 24 hours notice before petitioning, that they had to pay a $50 deposit, and that they could not get up from their table. This document also stated: "The Circuit Court of the State of Oregon shall have continuing jurisdiction to modify and enforce these rules, in the event of a change of circumstances or allegations of rule violation." Petersen was told that the rules were a court order. Petersen, however, had with her a copy of the actual court order concerning petitioning at Fred Meyer shopping centers, which allowed up to four petitioners, did not require a $50 deposit, did not require petitioners to stay at a table, and did not require 24 hours notice. When Petersen presented the Fred Meyer personnel with the real court order, they left her alone.

Multnomah County District Attorney Michael Schrunk met in 1988 and 1989 with representatives of Fred Meyer, expressing his view that initiative petitioners were not criminals, that his office was busy with murders, rapes, and armed robberies, and suggesting that Fred Meyer resolve its disputes with initiative petitioners through civil rather than criminal processes. He agreed to pursue one criminal case (the Cargill case discussed at length below), but indicated that his office would not pursue this type of criminal trespass case until it received an appellate ruling concerning initiative petitioners' constitutional rights. Stranahan's arrest, as well as Petersen's 1989 arrest in Portland, occurred during this period when the District Attorney's office was not prosecuting this type of trespass case.

A vice president of Fred Meyer, Cheryl Perrin, testified that Fred Meyer had never permitted initiative petitioning in its shopping centers, except on one occasion when it sponsored a ballot measure to allow sales of liquor at its shopping centers. She testified that Fred Meyer did not reevaluate that policy in the light of the Oregon Supreme Court's decision in Lloyd Corp. v. Whiffen, 307 Or. 674, 773 P.2d 1294 (1989) (discussed below). ⁴ She testified that in the past Fred Meyer had allowed voter registration drives and food drives for the needy at its shopping centers. At trial in this case, she denied that Fred Meyer had decreased these...