Fred Meyer, Inc. v. McDonald
828 P.2d 1054
Or. Ct. App.
1992
Check Treatment
*322 PER CURIAM

Plaintiff appeals from a judgment dismissing its action for declaratory and injunctive relief. It sought to prevent persons, including defendant Weitzman, 1 from locating themselves at 41 of its stores for the purpose of soliciting signatures on initiative petitions. It did not seek to prohibit signature-collecting activities at any other Fred Meyer store.

The trial court determined that, under State v. Cargill, 100 Or App 336, 786 P2d 208, rev allowed 310 Or 133 (1990), defendant was engaged in constitutionally protected activity and could not be prohibited from collecting signatures at the entries to plaintiffs stores, because Cargill determined that the Fred Meyer store in that case was a “forum for assembly by the community.” 100 Or App at 348. The court concluded that Cargill required that result in this case, but said, “[W]ere it not for the Cargill decision, this Court would have no reluctance in granting the relief that [plaintiff] seeks.”

The holding in Cargill is limited by its facts. It involved a single store at which the defendants were arrested for trespassing. The trial court here was not bound to come to the same conclusion just because the signature gatherers were located at plaintiffs stores. Because it erred in determining that the rule in Cargill applies to all of the stores specified in this action, without evaluating each store on the record before it, we remand for that purpose. 2

Reversed and remanded for proceedings not inconsistent with this opinion.

Notes

1

Before trial, for unexplained reasons, plaintiff dismissed all defendants but Weitzman.

2

The Oregon Supreme Court allowed review in Cargill in 1990. We held this case pending the Supreme Court’s decision in Cargill. In the interests of justice we are not waiting any longer.