Stranahan v. Fred Meyer, Inc.

• Decision Date: 14 September 2000
• Citation: 11 P.3d 228,331 Or. 38,331 Ore. 38
• Parties: Lois STRANAHAN, Respondent on Review, v. FRED MEYER, INC., a Delaware corporation, Petitioner on Review.
• Court: Oregon Supreme Court

11 P.3d 228

331 Or. 38

331 Ore. 38

Lois STRANAHAN, Respondent on Review, v. FRED MEYER, INC., a Delaware corporation, Petitioner on Review.

(CC 9110-06504; CA A88372; SC S45547)

Supreme Court of Oregon.

Argued and Submitted November 5, 1999.

Decided September 14, 2000.

Charles F. Hinkle, of Stoel Rives LLP, Portland, argued the cause and filed the briefs for petitioner on review.

Gregory Kafoury and Mark McDougal, Portland, argued the cause for respondent on review. Gregory Kafoury filed the brief.

Mark A. Anderson, Portland, filed a brief for amicus curiae ACLU of Oregon.

Eli D. Stutsman, Portland, filed a brief for amicus curiae Progressive Campaigns, Inc.

Linda K. Williams, Portland, filed a brief for amicus curiae AFL-CIO of Oregon.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, and KULONGOSKI, Justices.²

GILLETTE, J.

The underlying issue in this false arrest case is whether this court's decision in Lloyd Corporation v. Whiffen, 315 Or. 500, 849 P.2d 446 (1993) (Whiffen II,) correctly states the law of Oregon under Article IV, section 1, of the Oregon Constitution,³ with respect to the right of initiative petitioners to utilize private property over the objection of the property owner. A majority of the Court of Appeals, considering itself bound by that precedent, concluded that it does. Stranahan v. Fred Meyer, Inc., 153 Or.App. 442, 451, 958 P.2d 854 (1998). For the reasons that follow, we now conclude that Whiffen II does not state correctly the law of Oregon on that subject. We therefore reverse the decision of the Court of Appeals.

We take our statement of facts from the Court of Appeals' majority opinion and the record, omitting those facts that relate to issues other than the one that is central to the case on review:

"Plaintiff Lois Stranahan brought this action for false arrest against defendant Fred Meyer, Inc. (Fred Meyer) * * *. * * *

"* * * * *

"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. * * * 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 * * * were arrested for trespassing outside a Fred Meyer shopping center at Southeast 82nd and Foster, in Portland.[⁴] This litigation stems from that arrest."

Id. at 444, 958 P.2d 854.

Stranahan's actions throughout her petitioning activity and the ensuing arrest were peaceful. She had notified Fred Meyer management that she would be soliciting signatures, and she had been doing so for several hours at the time of her arrest. In the course of being arrested, Stranahan suffered physical injuries. She later filed this false arrest action against Fred Meyer, maintaining that she had a state constitutional right to be on Fred Meyer's property for the purpose of soliciting signatures, that her arrest therefore was unlawful, and that Fred Meyer should be required to respond in damages for the injuries that she had sustained. For its part, Fred Meyer argued that Stranahan had no such constitutional right and, therefore, that it was entitled to have her arrested for trespass when she refused to leave the premises after having been directed to do so by Fred Meyer personnel.

At the time when Stranahan was arrested, a number of legal proceedings had grown out of the efforts of various private property owners in Oregon, including Fred Meyer, to prevent petitioning activity on their property. To place the trial of Stranahan's action in context, we set out that procedural history here.

The first legal proceeding took place in 1984, when Fred Meyer obtained a restraining order that prevented a group of petitioners from soliciting signatures at its stores. Two years later, Fred Meyer obtained final judgments in two separate cases that also stated that Fred Meyer had a right to bar petitioning activity at its stores.

In February 1988, the Court of Appeals issued a decision that called the judgments in the earlier Fred Meyer cases into question. In Lloyd Corporation v. Whiffen, 89 Or.App. 629, 634, 750 P.2d 1157 (1988) (hereafter "the Court of Appeals' decision in Whiffen I"), the Court of Appeals held that a broadly worded injunction that prevented petitioning activity inside Lloyd Center, a large shopping center in Portland, implicated the petitioners' rights of free expression under Article I, section 8, of the Oregon Constitution.⁵ The court further held that, although the owner of Lloyd Center could not ban such activity outright, it could adopt reasonable time, place, and manner regulations relating to that activity. Id. at 638-39, 750 P.2d 1157.

Fred Meyer then sought to determine whether that decision—which, as noted, involved a large shopping center—applied to its stores. It did so by filing a complaint for an injunction against Lloyd Marbet, a petitioner who often worked with Stranahan on behalf of an organization known as the Coalition for Petition Rights (Coalition). On May 5, 1988, the trial court in the Marbet case held that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer stores and, accordingly, enjoined Marbet and all other persons petitioning with him from soliciting signatures on Fred Meyer's property. The Marbet case later was held in abeyance, pending this court's review of the Court of Appeals' decision in Whiffen I.

Meanwhile, on May 4, 1988, other petitioners from the Coalition, including Stranahan, were cited for trespassing on Fred Meyer's property when they refused to leave a Fred Meyer store after being directed to do so. At Stranahan's trial on that trespass charge in July 1988, the court ruled that the Court of Appeals' decision in Whiffen I did not apply to the Fred Meyer store at issue. Stranahan and the other petitioners thereafter were convicted of trespass.

In June 1988, in light of Fred Meyer's action against Marbet and the criminal case against Stranahan, the Coalition filed an action against Fred Meyer, seeking to enjoin Fred Meyer from prohibiting petitioning activity at its stores. A trial court rejected the Coalition's request, ruling that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer's stores. At about the same time, two additional trial courts in two other cases similarly ruled that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer's stores.⁶ In May 1989, this court affirmed the Court of Appeals' decision in Whiffen I. Lloyd Corporation v. Whiffen, 307 Or. 674, 773 P.2d 1294 (1989) (hereafter "Whiffen I "). However, the court did not reach the issue whether an injunction barring the petitioners from soliciting signatures inside Lloyd Center violated their free expression rights under Article I, section 8. Rather, the court addressed the case on what it characterized as "subconstitutional" grounds, 307 Or. at 680,773 P.2d 1294, concluding that principles of equity required that the petitioners be allowed to solicit signatures inside Lloyd Center, so long as they did so reasonably, quietly, and peaceably, and without substantially interfering with the owner's commercial enterprise. Id. at 686-87, 773 P.2d 1294. The court further held that the trial court could issue an injunction imposing reasonable time, place, and manner restrictions on petitioning activity inside Lloyd Center. Id. at 687-88, 773 P.2d 1294. We discuss the reasoning set out in Whiffen I in greater detail later in this opinion.

Five months after this court's decision in Whiffen I, a petitioner was acquitted of trespassing on Fred Meyer's property, following a trial judge's ruling that she was within her rights to refuse to leave the property when asked to do so. Stranahan again was arrested that same month, on October 11, 1989, giving rise to the case at bar. At that time, the Marbet case still was pending. In February 1990, the trial court in the Marbet case reaffirmed its earlier ruling that Whiffen I did not apply to Fred Meyer stores and entered a declaratory judgment stating that Fred Meyer had a legal right to remove initiative petitioners from its stores.

At about that same time, the Court of Appeals reversed the earlier trespass convictions of Stranahan and others, which had arisen from their petitioning activity at a Fred Meyer store. See State v. Cargill, 100 Or.App. 336, 786 P.2d 208 (1990)

(so ruling). Analyzing the case under Article IV, section 1, of the Oregon Constitution, the Court of Appeals concluded that it was "implicit" in that section "that the people must have adequate opportunities to sign the petitions that are necessary for them to act as legislators." Id. at 343, 786 P.2d 208. The Court of Appeals then held:

"Article IV, section 1, * * * prohibits using a criminal prosecution to prevent the people from collecting signatures on initiative and referendum petitions in areas that have replaced traditional forums for the collection of signatures, so long as there is no substantial interference with the owner's use of the property for business or other purposes."

Id. at 348, 786 P.2d 208. This court affirmed by an equally divided court. State v. Cargill, 316 Or. 492, 851 P.2d 1141 (1993).

Meanwhile, in response to this court's decision in Whiffen I, the owner of Lloyd Center had adopted time, place, and manner restrictions that limited petitioning activity inside Lloyd Center. A group of petitioners attempted to solicit signatures outside the scope of those restrictions, and the owner responded by seeking an injunction. A...