*1 6,1992, Argued reassigned February April March submitted decisionof Appeals grounds; judgment the Court of affirmed on different of the district court 28,May reversed OREGON, STATE OF Review, Petitioner on DAMERON, WILLIAM C.
Respondent on Review. (DC S37145) D881992M; A60258; CA SC
Steven Hillsboro, L. argued cause for respon- dent on review. Hinkle,
Charles F. of Stoel Rives Jones & Boley Grey, filed a brief for amicus curiae Portland, Inc. Meyer, Gile Downes, Schulte, R. Anderson, Downes DeFrancq, & Carter, P.C., Portland, filed a brief for amicus curiae International Centers, Council of Shopping Inc.
Before Carson, Justice, Chief Peterson, Gillette, Van Hoomissen, Unis, Fadeley, Justices, and retired Tongue, Justice pro tempore.
VAN HOOMISSEN, J. J., concurred and filed an
Fadeley, opinion. an in which Unis, J., opinion concurred and filed specially J. Fadeley, joined. specially retired Justice concurred
Tongue, pro tempore, an and filed opinion.
Peterson, J., concurred in and dissented specially part and filed an opinion. part Carson, in which
Gillette, J., dissented and filed an opinion J., Peterson, J., joined. C. *3 HOOMISSEN,
VAN J. appeals Appeals decision that The a Court state trespass in the for criminal defendant’s conviction reversed dispositive degree. whether The issue is ORS 164.245. second unlawfully premises. The Court on the remained defendant of engaged was Appeals at trial that he that defendant established held activity constitutionally protected and, there ain ruling that the order for defen fore, trial court erred in premises Dameron, 101 was lawful. State v. dant to leave the (1990). App was 237, 238, P2d 707 Because defendant Or light in the most trial, at we view the evidence convicted 721, 609 Harris, 288 Or to the state. State v. favorable (1980). record a matter of law that on thе We hold as P2d 798 presented have fact case rational trier of could no beyond reasonable doubt that defendant remained found unlawfully Accordingly, premises. we deci affirm the on the Appeals grounds. different sion of the Court July undisputed. are Most of facts gathering signatures petition initiative defendant was for an privately to a Fred owned sidewalk outside an entrance entirely Meyer a 16-acre store. That store is located inside Washington County property private in suburban tract of commonly (Cen- Raleigh Shopping Hills known as Center ter). by the was to leave the sidewalk Defendant directed person charge of the Fred store. When he refused trespassing. was so, do he arrested description place was seek- A where defendant signatures necessary put ing this case context.1 property on the east and west 16-acre Center is bordered by major private property and on north and south arterial public privately owned busi- sidewalks. Several streets nesses, including Center’s automotive service both directly open within a few feet the streets. stations, onto or Appendix, See infra. *4 “premises” in this case are the entire the record whether the It is not clear from charges complaint Meyer that defendant or the Fred store. 16-acre Center knowingly premises at 7700 unlawfully remain the enter and located “did adjacent Meyer store its Hwy on the Fred 10.” The state’s evidence focuses S.W. i.e., narrow, argue appear that focus too does not sidewalks and defendant the argue specifically Center constitutes that the entire 16-acre does not defendant “premises.” public stops adjacent There are public bus on the streets bordering sidewalks All Center. entrances to and public еxits from the Center cross sidewalks. Access to major bordering arterial streets the Center on the north and gained by may south be use several entrances to and exits using private running through Center, from the roads it. large, signpost positioned A billboard-sized at the north entrance to the “FRED Center reads: MEYER Meyer RALEIGH HILLS.” The store, Fred located inside the unquestionably Center, is the Center’s anchor store. It is any larger several Fred centers.” The Fred than times other business the Center. Meyer “one-stop shopping advertises its stores to be
Meyer very large, free-standing is a store building completely by parking that is surrounded lots that by anyone visiting any are available use the Center for purpose, e.g., shop, eat, browse, lawful shop, beauty bank, visit a barber professional day facility,
salon,
offices,
care
garden
through
center,
trial,
stroll
etc.At
the state offered
specific
public
gather
no
evidence of
numbers of the
who
Meyer
Lloyd
either at the Fred
store or at the Center. See
(1993)
Corporation
Or
Whiffen,
Several other owned golf crystal, pizza parlor, a store, china, store, and silver telephones, space and a store that sells sub-lease inside the (Tenant 1). Meyer Building Fred store of those Each busi- opens Meyer nesses onto the sidewalk outside of the Fred People may store where defendant was arrested. some of those businesses from inside the also enter Meyer At
Fred store. Meyer security trial, Fred officerPhilbrick testified that there couple were “a however, banks” in the clear, area. It is not Mеyer whether those banks are inside store, the Fred public telephone outside the store but inside Center. A Meyer booth is located outside the entrance to store. Located on the lot tract, same 16-acre Center across a parking Meyer store, south from the Fred is Fred Meyer’s Improvement Home and Garden Center. Patrons shoppers wishing go and window from the Fred *5 Improvement and Center natu- Garden the Home store to Meyer normally rally the use sidewalk outside Fred the and they parking that then must cross lot to reach the store Improvement get and Garden Center. to Home to the order Improvement Directly and the of the Home to east 4) (Tenant Building building detached Center is a Garden privately-owned businesses, includ- other that houses several bakery shop, clothing ing pastry a store, a womens’ and a beauty agency, salon, a and other travel center, a nutrition retail privately shoppers shops. who enter those Patrons and window large privately the owned businesses from owned Meyer public parking the or from the lot east of Fred store adjacent High- to Southwest Beaverton-Hillsdale sidewalk naturally normally way the the Fred and use sidewalk outside Meyer store. Meyer store, and of the Fred To the west southwest (Tenant parking buildings lots, are detached
across Building several veterinary day professional and clinic and care buildings) privately more owned busi- that house several framing shop, shop, including locksmith, a nesses, a a barber day veterinary restaurant, store, clinic, a a a a vacuum cleaner playground, professional offices, one of care center and and window center’s automotive service stations. Patrons and the shoppers privately and who businesses enter those owned Meyer professional the offices from Fred store or from the naturally parking Meyer and east of Fred store lot the the Meyer normally use the sidewalk outside the Fred store. Meyer parking store, across a To east of Fred (Tenant Building buildings 3, service lot, are several detached bank) privately owned and that several more station, house shop, printing shop, including a ski a a businesses, fabric savings shop, loan, a shop, and video a branch of a rental large bank, a service station. and branch of commercial past going shoppers Fred from or and window Patrons Meyer naturally nor- and would store to those businesses Meyer Meyer mally the Fred outside use the Fred sidewalk store. had that defendant trial,
At the state contended being Meyer’s premises unlawfully after on Fred remained lawfully charge. person The state directed to leave argued legal that defendant had no ignore the direc- tion from person charge the store that he leave the premises.2
Defendant did not Fred dispute Meyer store adjacent its sidewalks are premises open the public, of the Fred store person charge directed Meyer him leave, that he refused to do so. Defendant argued had a he constitutional remain on the sidewalk and, outside store therefore, that he did not remain on the sidewalk within unlawfully the mean 164.245(1) 164.205(3)(b). ing of ORS ORS He relied 8,3 Article primarily IV, l,4 *6 Constitution, the the Oregon Court of Appeals’ decision in 629, v. 89 Or Lloyd 750 P2d Corporation Whiffen, App 1157 (1988), and the decisions of the of Supreme Court California and the Court of the v. Supreme United States Robins Center, PruneYard 23 Cal 899, 3d 153 Cal Shopping Rptr argued Meyer’s The state at trial defendant also had remained on Fred premises allegedly restraining at when a time there was a court in existеnce order people witnesses, gathering signatures Meyer’s property. from on Fred The state’s however, order; they vague alleged were about the did know who had been restrained, order, “premises” covered, scope the of the what the order what court order, county had entered or in what it had the been entered. The state did not offer any evidence, restraining prosecutor order and the told the trial he court that identify allegedly could not even the had court that issued the order. There was no alleged restraining himself, evidence that was the order directed at defendant he order, any personal knowledge any provisions had of or that such its covered the Fred Meyer Raleigh Nothingin remotely suggests store. record here Hills the that the trial guilty any court found defendant because violated court he order. 8, Constitution, Oregon provides: Article of the passed restraining expression opinion, “No law be the or shall free of write, whatever;
restricting speak, print freely any subject to the but every person responsible right.” shall be the abuse of for this IV, Constitution, part: provides of the “(2)(a) people power, The reserve to themselves the to initiative which is propose reject laws and amendments to the Constitution and enact or them at an independently Assembly. Legislative election of the “(b) may proposed petition only by signed by An initiative law a be a qualified equal percent number of voters to six of the total number votes cast for all candidates for Governor at election at which a Governor was elected years preceding filing petition. for a term next of four of the “(c) may proposed only by An initiative amendment be a Constitution petition signed qualified equal еight percent a number of voters of the total number of cast for for a votes all candidates Governor at the election at which years preceding filing Governor was elected for a term of four next petition.” (1979), P2d 854, 592 nom PruneYard Shopping sub aff’d L 2d 741 447 US 100 S Ct 64 Ed Robins, Center (1980). part: court trial found of Fred sought signatures patrons 1. “[Defendant immediately one outside Meyer on the sidewalk Meyer Fred within feet the entrance.” entrances to was anyone 2. is no evidence that dissuaded “There * * Fred *.”5 shopping Meyer from at significant “There are also factual differences 3. petition place speech between the exercise Corporation Whiffen[, the ones in [Lloyd u.] occurred [than] Robins, supra,] Shopping [PruneYard v.] Center areas, large This was not mall with common there [supra]. benches, establishments, gardens no fewer no or other were encourage people facilities that would [non-commercial] congregate non-shopping purposes.” concluded: The court proven beyond has a reasonable doubt that
“[T]he state the defendant entered and remained on owned premises Inc., 6, 1988, in July Washington County, premises by person asked having after been to leave charge. ‘lawfully was The sole issue whether defendant premises. directed’ leave the
# $ * * no remain and there- “Defendant had constitutional II.”6 fore is of Criminal guilty Trespass Appeals appeal, On Court of defendant’s *7 explaining: reversed,
“This
is not
from State v.
distinguishable
Cargill,
case
336,
(1990),
anby
equally
Or
Defendant established he was in a constitu- tionally protected activity, and the court [trial] erred ruling that the order for defendant leave the premises was Dameron, lawful.” State v. 101 Or supra, App at 238. petition We allowed the state’s for review. review,
On the state contends that Court Appeals holding erred in that trial court erred in ruling that the order for defendant leave was lawful. premises 101 Or at I, 238. state App neither Article argues IV, 1, section nor Article section creates a to collect signatures initiative private over owner’s property objection. Defendant argues that he had a legal right ignore the direction leave and, the Fred sidewalk therefore, he thus, was lawfully and, directed to leave that he did not remain on the unlawfully premises. 164.245(1) provides:
ORS person trespass “A commits the crime of criminal degree second if the or person unlawfully enters remains added.) upon premises.” (Emphasis ORS 164.205 provides part: 164.270, except
“As used ORS 164.205 to as the requires context otherwise:
“(3) ‘Enter unlawfully’ or remain means: * #
* *
every comparable
store,
Appeals
retail
the Court of
since
it
has made
clear that an
expansive reading Cargill
McDonald,
Meyer,
was not intended. See Fred
Inc. v.
(1992) (each
321, 322, 828
App
property
112 Or
P2d 1054
must lie considered on its
facts)
(1993).
own
rev den 3Í
457 " (b) open public that leave are premises fail to To charge. in by person to do so being lawfully directed after ‘ “ (4) by which their premises means public’ to the Open custom, lack nature, function, usage, notice or physical a at the time would cause circumstances thereof or other or permission no enter to believe that reasonable person required. remain is
“(5)
representa-
a
a
charge’
person,
in
means
‘Person
who
lawful control of
has
employee
person
or
tive
other
tenancy, official
or
by ownership,
position
premises
** *
legal relationship.
“ (6)
any
prop-
any building and
real
‘Premises’ includes
(Emphasis
erty,
publicly
whether
owned.”
privately
added.)
of private prem
that
the owner
requires
No statute
to other
entry
premises
persons
must
to the
provide
ises
on
initiative petition.
an
signatures
the purpose
gathering
to remain
However,
legal right
a
have a
may
person
leave
by
person
after
been directed to
premises
having
(Article
II,
IV, section
order to leave was rests state. provides: ORS 161.055 “(1) ‘defense,’ an ‘affirmative defense’ defined When a other than as (2) section, trial, a has of this is raised at the state the burden subsection disproving beyond reasonable the defense a doubt. “(2) defense, chapter by to be an ‘affirmativedefense’ When a declared trial, proving at Laws is raised a the defendant has the burden of by preponderance the defense of the evidence. “(3) required negate a The is not defense as defined in subsection state (1) unless it is raised the defendant. ‘Raised the defendant’ writing state commencement of trial or means either notice to the before by in chief.” affirmative evidence defense witness the defendant’s case argue is an affirma- does defendant’s state constitutional defense state defense, properly before or that the defense was not raised trial. tive prove every
The state must
material element of the
beyond
charged
10.095(6);
a reasonable
crime
doubt. ORS
(1985).
Rainey,
Beyond
459, 465,
State
Or
premises at the time he was directed to leave charge, person lawfully in the he was not directed to leаve 164.205(3)(b) meaning within the of and, ORS 164.245 and unlawfully premises. therefore, he did not remain on the supra, I, In 680, 307 Or at an action for an Whiffen injunction against ing unreasonably the defendants for interfer- plaintiffs private property, with the use of its this court concluded on a subconstitutional level that the defendants in right petition plaintiffs property that case had a subject to on the place, time, reasonable and manner restrictions. In premises privately I, the were “a described as owned Whiffen ’’ open shopping public purposes. center to the for commercial 677. In Id. at I, this court noted that did that case Whiffen present private simple trespass a nuisance but, issue public rather, a situation which interest atwas stake. public allowing signa- the While interest the collection measures, IV, tures for ballot under Article section the Oregon unqualified right Constitution, does not create an privately shopping open public enter a owned center to the purposes gather signatures, commercial neither is such activity entirely private premises. barred on all Id. In I, that, this court held because nature the Whiffen Lloyd private place of the Center was the antithesis of and large public gathered because number the who there, persons engaged signature-gathering activity to exclude public would not serve interest. Id. at 685. This court held signature-gathers enjoined entering that the “cannot be from express opinion, long they the Center to their do so as so reasonably interfering plaintiffs and without with commer- enterprise.” “Clearly they they cial Id. at can 687. if do so reasonably, quietly, peaceably.” pre- Id. Under the facts however, sented court noted that some Whiffen signature-gathering did activities interfere with commercial activity intrusive could be and, therefore, enterprise Id. enjoined. II, Or at this court held In Whiffen ‘ on initiative seeking petitions signatures ‘persons have a Center constitutional Lloyd areas of
common 1, of the Constitu- IV, Article to do so under time, manner restric- tion, to reasonable place, subject time, place, does reasonable tions.” This case not involve Inc., claims an Indeed, Meyer, Fred manner restrictions. from initiative seeking to prohibit anyone absolute right argued on At the state tried, its property. petition signatures remain whatsoever defendant had no private Meyer’s property. II, could exer where premises people Whiffen IV, gather cise rights signatures their as cen “large shopping initiative were described See ters], at 503. such as Center.” 315 Or Lloyd Town Center Wolf, Clackamas Assoc. 557, 560, 315 Or (same). (1993) II, P2d concluded *10 In this court Whiffen is of initiative people power” “access to the lifeblood on of the mall that some minimal intrusion the rights owner in view of the of justified importance power Id. at 511. This court held to the people. initiative reserved where initiative signatures peti seek persons may 1, tions to the of the IV, is essential Article section purposes Constitution, vital in Oregon and is of importance making 1. Id. IV, at 511-12. We effective the Article purpose in the of Appeals with the Court agreed following language Cargill, supra: State in opinion IV, in must implicit people
“It is Article section that sign the opportunities [initiative] have adequate ” legislators. Or necessary App for them to act as that are at 343. II, IV, Article In court sec- interpreted this Whiffen peaceably
tion favor of the 1, liberally peoples’ right for This court then initiative gather signatures petitions. held: signatures peti- on initiative prohibit gathering of
“[T]o
as
large shopping
in the common areas
centers such
tions
the
rights’
on constitutional
Lloyd
‘impinge
Center would
state
the provisions
conferred on
citizens of this
IV,
rights,
Constitution. Such
however,
subject
time,
are
to reasonable
place, and manner
* *
II,
restrictions
“It is a fundamental canon of construction that a Consti- tution should receive a liberal interpretation in favor of citizen, especially with respect to those provisions which designed were safeguard liberty and security of the regard citizen in added.) person to both and property.” (Emphasis During argument appel- oral in this court, the state’s very late meager counsel stated: “This case arises on a agree. Although parties record.” We in this case refer to involving Meyer evidence other cases different Fred stores, emphasize only we that this case involves the Fred Raleigh Shopping store that is located within the Hills Cen- analysis solely ter. Our here is based on the record this case. cases, most the state would meet its burden to prove unlawfully private that the defendant remained property by showing that the defendant failed to leave the premises open public being that are to the after directed to do 164.205(3)(b). person charge. so ORS However, ORS 164.245(1) requires prove beyond also the state to a reason unlawfully able doubt that the defendant remained on the premises. privately legal authority person charge large of a of a shopping open public
owned center to the com purposes person premises, mercial to direct a to leave the necessarily person however, does not determine whether the lawfully directed to leave wаs directed to do so. ORS 164.205(3)(b). prosecution In other words, in a criminal prove, under ORS 164.245, the state must that the *11 person charge premises, in directed the defendant to leave the premises but also that the direction to leave the lawful, was legal right ignore i.e., that the defendant had no to 161.055(1) (“When direction to leave. See ORS ‘defense,’ a other than an ‘affirmative defense’ as defined in subsection (2) of this section, is raised at trial, the state has the burden of doubt”). disproving beyond the defense a reasonable
461
The trial court
in part:
found
significant
also
factual
between
“There are
differences
the
the
speech
petition
exercise of
and
place
[than]
occurred
Robins,
and
This
a mall with
supra.
ones in
large
was not
Whiffen
areas,
benches,
were no
fewer establish-
common
there
or
ments,
gardens
no
other
facilities that
[non-commercial]
encourage
congregate
non-shopping
people
would
purposes.”10
for
are
the premises
there
some differences between
Although
Robins,
I
here and those
and
the sum total
Whiffen
in this case
a
are
presents
picture
evidence
of premises
those
I
not
different from
involved
and
materially
Whiffen
a
premises
privately
Robins.11 The
here are
owned
large
for
center
to the
commercial
open
purposes.
shopping
public
Moreover,
We be owned large some differences between the privately shopping to the for commerсial public purposes centers open Whiffen II and Town and the owned privately Clackamas Center large for open purposes center commercial shopping public case, in this defendant’s state constitu dispositive is Rather, tional defense here. it was incumbent on state Fred at trial that the Meyer a reasonable doubt prove beyond 10 example, for the the trial that “there were no benches” For court found however, security officers, testimony Meyer’s public shows that The Fred use. provided past, that the were removed because benches but benches had been they monopolized by being “transients.” were public large shopping open to the privately owned center question whether activity premises petitioning is purposes is kind of where for commercial IV, counting the number of protected not answered under Article is art, benches, murals, beds, “gardens, statuary, various works of other flower * * * escalators, stairways bridges, booths” in the and information directories J., II, (Gillette, dissenting). shopping Or at center. See Whiffen “walkways Moreover, are bordered shopping have centers it is common any II that the Rather, focus of Id. at 529-30. it clear from is storefronts.” Whiffen public open shopping inquiry center directed on whether a must be gather people” “large “large,” purposes whether numbers commercial there. Id. at 512. photographs include received evidence The exhibits Center, large diagrams properties. of those store and the *12 center”
“one-stop shopping within the Center in this case was not to the analogous center in shopping en. See ORS Whiff (burden 161.055 defense disproving beyond reasonable state). doubt rests on the This the state failed utterly to do and, as noted, note it is supra not even clear from the record what premises the parties and the court were thought subject of this prosecution.
On record, we do not believe that a rational trier of fact could have found beyond any reasonable doubt that the state proved that the subject here, premises whatever those premises may be, were not a large privately owned shopping center to the open public for commercial purposes where defendant had a under Article IV, section 1, to peaceably seek petition It signatures. follows, therefore, as a matter of law that the state failed to prove beyond a reasonable doubt that defendant was “lawfully directed” to leave or that he “remained on the unlawfully” premises.
Because we decide this case on a narrow and sub- constitutional it is ground, for this court necessary draw the line all time and for all future cases involving claims of rights constitutional to seek signatures on initiative petitions on private property. Rather, it is sufficient for us to conclude here that the state failed to prove it is “almost certainly true,” Hill General Riley Contractor v. Tandy Corp., supra, 303 Or at that defendant was “lawfully directed” to leave the premises and, therefore, that he “remained on the unlawfully” within premises the meaning 164.245(1) 164.205(3)(b). of ORS We hold as a matter of law that on the record presented this case no rational trier of fact could have found beyond a reasonable doubt defendant remained unlawfully premises. Accordingly, we reverse defendant’s conviction for failure of proof we affirm the decision of the Court of on different Appeals grounds.
The dissent argues that there is no state constitu tional right to gather petition signatures on privatе property. II, The dissent is wrong. supra; Clackamas Town Whiffen Assoc, Center v. Wolf, supra. The decision of the Court of is Appeals affirmed on different grounds. judgment the district court reversed.
FADELEY, J., concurring. discussing Arrested on a sidewalk while proposed defendant his appeals conviction for legislation, subsequent that, criminal Defendant contends his trespass. given occupa- time, tion at the he was not on the sidewalk “unlawfully.” Defendant was on an initiative seeking signatures petition that a new law be proposing adopted by voters of the state. The sidewalk was used in common by customers and visitors to a store and various other businesses department arrayed lot, along the sides of a but was owned parking privately An of the store caused defendant’s arrest property. employee after defendant to an individual had attempted speak who way left the store and was on her to her automobile parked a lot on the other side of the sidewalk. and,
I concur with the lead opinion as to the outdoor sidewalk center described in the shopping opinion, lead I also concur in the concurring opinion Unis, J. The order to leave these to the premises open public was neither lawful nor to be. Neither of those discuss the dissent proved opinions or the exhortation of Retired Justice Tongue (serving pro case) in this to avoid tempore pitfalls delays he found when he served between will present 1969 and 1982.1 both, discuss with starting the dissent.
I
The dissent asserts that signature-gathering
*14
activity
* *
never “could be*
316 Or at
constitutionally protected.”
491
in
of two
(emphasis
original). Rejecting applicability
— free
Oregon
guarantees
constitutional
speech
political
matters
such as voter initiatives and the
propose
—
the initiative1
the dissent
states: “there
legislation by
flatly
is no such constitutional
to gather
signatures
petition
(Gillette, J., dissenting).
any subject whatever
IV,
2, provides
part:
power,
propose
people
“The
reserve to themselves
initiative
which is to
reject
indepen-
laws and amendments
to the Constitution and enact or
them
*
* *
*
* *
dently
Legislative Assembly.
may
proposed only
An
be
initiative
by petition signed by
[required]
qualified
a
number of
voters.”
law
be used
view,
may
criminal
state
Under that restrictive
and the initiative.
speech
to thwart both
governmentally
seems to make
absolute
inviolability
That position
this criminal
deciding
the touchstone for
property”
“private
that private
case. I certainly agree
petition
trespass/initiative
though
even
magnitude,
are of constitutional
property rights
can be cited
rights
regarding property
no constitutional
text
and of initiating
of free
rights
speech
to diminish or condition
as it
Inconsistently,
them.
abrogating
let alone
legislation,
in numerous decisions over
seems,
joined
have
the dissenters
restrictions on
substantial
years
uphold
a number of
form of land-use laws. For
rights
private property
(state action)
a
frequently requires
regulation
state
example,
substantial off-street park
commercial developer
provide
for
to avoid the need
as a condition of
ing
development
This
exaction substi
governmental
created
publicly
parking.
have
that otherwise would
walkways
tutes for
and
parking
i.e.,
street,
public place.
substitutes
been on the public
a door-to-door peddler’s rights
And in the area of speech,
in Hillsboro v.
were
upheld
intrude into private property
(1988),
a business
Purcell, 306 Or
547,
The dissent’s
reasoning
law,
That
since
the criminal
law itself.3
trespass
provisions
1971,
private prop-
kind of
plainly recognized
separate
has
164.205(3)
(4),
enacted
to the
ORS
public.”
erty “open
135,
recognize
Laws
chapter
limitations
place
sort of
owned
specific
privately
property
direc-
that the
on directions to leave such property, requiring
(1969)
tion be a lawful one. Former
ORS 164.460
(repealed
1505, 123
Network,_US__.,
Discovery
L
113 S Ct
also Cincinnati v.
See
(1993) (ban
held,
publications
on sidewalk newsracks for commercial
Ed 2d 99
Amendment).
alia,
That
to offend First
case
inter
content neutral and therefore
not
Meyer’s
speech
abridged
may
unless it
freedom of
answer a contention that Fred
speech
premises.
on its
can exercise content control over
to,
Lloyd Corporation v.
Nor,
they
held in
able
after this court
should
be
(1989)
I),
power
the state
Whiffen,
that the
and
the 1971
did not mention
erty open
public.
Heyda,
to the
But see Lenrich Associates v.
(1972) (O’Connell,
122, 135-36,
J.,
264 Or
the dissent state action before there is protection, constitutional but refuses to see state action prosecution by attorney criminal the district in the name of creating Likewise, the state. other state actions involved in shopping privatized community gathering places centers as ignored.4 are abrogate
I would not allow that state criminal law to speech either or initiative in those A Fred circumstances. Meyer employee Cargill, testified in State v. 316 Or (1993), corporation permitted P2d 1141 that the initiative petitioning parking years near its lots for a number of but prohibited During corporation later it. the time that permitted petitioning, place, time, reasonable and manner place. conditions were There is no substantial business why reason the record that accommodation is not available employed now. State criminal laws should not be before place, time, reasonable and manner conditions are tried and have failed. Cargill
The trial court in found as fact that: think, clear, they “It I quite undisputed, is also and that if [petition signature gatherers] are not allowed to seek peti- at Meyer’s, Meyer tions stores like Fred and Fred [is] state, biggest community presence we have here in the a lot of petitions, petitions, going initiative are not to make it on * * the ballot governmental regulations, government- Favorable land use decisions and provided government-assisted developmental financing, government accommoda through highway changes, government tions road and transfers of streets public private examples governmental roads from use are other action involved. Cargill, case, companion State v. example, P2d 1141 For 316 Or (1993), court, changed was from a decided six members of the Madison Street Hawthorne, public parking lot at the 39th and street to benefit access Portland, Meyer department store. private employer. largest “com- Its this state’s Fred munity presence” The kind of voters interested is statewide. Oregonians affecting majority is the kind legislation *16 Meyer. shop an voters, those on Access to who at voters process necessary to work if the initiative is basis, is efficient properly in this state.
II
Tongue, appointed pro tempore in
Retired Justice
Lloyd Corporation
315 Or
Whiffen,
case and in
this
(1993)
acknowledged
every
(Whiffenll),
by
be
This is Tongue published this has criticisms of career Justice Oregon Supreme of Indeed, aimed at the Court.5 much sort today be from what he writes seems to lifted word-for-word (1981) Quinn, 383, 409-22, 290 Or 623 P2d State v. 630 concurring). (Tongue, specially J., Tongue’s
Justice criticism is directed toward possibility past, this is in not the for the future that court things Tongue recognizes today, As Justice action achieve.6 are better here at Quinn they present than were when he wrote years. That after had been the court over ten he on for surprise the current commit- is no and results from court’s responsibly, docket, a two and one-half ment to clear the coming successfully, September.7 year plan end, this that is to years Tongue Writing ago, said Quinn: 12 Justice by find and saddened failure myself “I both frustrated a solution of what this to take effective action toward of court 5 may times he was Chair of the Judicial Administration There be other when territory. Judge-bashing goes with that of the Bar. Committee 6 Indeed, figures by Tongue specific will not be an accurate used Justice They will pending published in advance sheets. picture of cases at all as this is in wax like historical villains a museum. instead be statues of instituted, plan penalty pending where the cases when the was The 23 death sеntences, of court death review this court all trial law mandates an automatic Many this becoming consuming. with time of those caseshadtobe dealt were then infrequently having separate appeals, appeal or more in two with an court assigned errors. problem a magnitude
has become of such to result in as paralysis what I believe to be a partial effective justice court functioning this court as a in the sense that ” ‘justice delayed justice is denied.’ Id. at 417. Tongue suggested Justice there that the court individual require appellate judges “could at least write opinions assigned within proposed cases them days.” 416. Id. at employs currently
This court game. rule ahead of that opinion May 11, At the conference on five of the six publication argued be cases voted released were much days including argued less than earlier, two the first week May. completed The sixth was voted for release on a draft days previously. less than 60
Indeed, to court, members it seems that we running hitting marathon, have been have overcome “the *17 experience, sight wall” that in distance runners and are of the spectators finish line and the seated at the finish line. As we approach, victory sight, in our one of stands them and pie-in-the-face runners, delivers a to the lead as it seems. Tongue The standard to which Justice would hold any appellate by this, was Bar court, and enunciated a commis- reporting By sion to the in American Association 1977. its operate panels, terms, it is directed to courts not to supreme point courts such this state the court,8 as but made guide. good in 1977 a is nonetheless Talking about case, Dameron, this State v. Justice Tongue says: mostly unnecessary delays “After for 13 reassigned April months, it 7, 1993, was on to Justice Van Hoоmissen.” 316 Or at The 487. Justice is too modest. After being assigned, along II, first with to one of Whiffen (Dameron) dissenting herein, the members this case was 8 one, collegial operating by justices In a en banc court such as and all this opinion, author, contributing just together to the named come the we must on reasoning the participating seven-legged decision. At is a bit in a the times that like sack, participants, leg sack race where all each one with the same must cross the course, together. produces Llewellyn, finish line Of excerpted this what Karl Aldisert, (1976), steadying group Process Judicial 681 called the factor of decision.
469 while it was a for a little before Tongue to Justice reassigned a time to Justice Van Hoomissen.9 second reassigned Justice delay by Another criterion discussed Quinn between date when elapsed is the time the Tongue issue, case at and the filed, last brief is or the is otherwise as argument. receives a such oral hearing date when case in his law review wrote about that criterion He also He said: Oregon Supreme article about on Court. delay average elapsed filing over-all time between the “[T]he hearing is one approximately last brief and the of the case Tongue, Appeals year.” Delays Oregon Supreme (1957). Court, 36 Or Law Rev civil However, cases, time between average elapsed as and oral date, argument the last brief as filing reported Ibid. one years. was and one-half then-lawyer Tongue, — That time at issue until appeal criterion from — today, is not dealt with Justice oral argument Tongue because court is in on that perhaps exemplary this condition (this month) May criterion. Cases heard in were on petitions review, mandamus, an all original direct appeal, year.10 allowed notiсed calendar Five of cases March, heard this month were allowed the middle of and one days hearing. was at issue two before its Of the cases (as May 25, before the court with no draft written opinions earlier, were 1993), remainder, heard three weeks March. two, were heard the first week in less In Quinn Tongue quote Justice chose to report, Interim Committee as follows: Legislative “ cases. primary ‘The function of the court is decide law, while at synthesizing The function of exploring ” * ** incidental one.’ 290 at 419-20. helpful, times an Or *18 that it is more important thus done” argues “get That report “ ’’ I am not it a view that has its adherents. right, than still get opinions one of our them, purpose one of given major 9 (1993), Cargill, 1141 nor Or 851 P2d Neither Dameron nor State v. 316 (1993) II), 500,849 (Whiffen Whiffen, have Lloyd Corporation 446 ever 315 Or culpas P2d unsuccessfully urged assigned My are I to me. mea in other areas. been reassignment. stay Tongue longer its second He with a bit before Dameron Justice reassignment. suggested the request parties. the was November 1992 at the One case reset from of to provide should be a practitioners reasonable to opportunity predict the outcome of other cases by applying to them the law in the course, announced current case.11 of Predictability, solid all requires reasoning, by adhered to or a clear majority and, of justices stare perhaps, by a habit of to adherence decisis.
Because Justice seventh criticism of Tongue’s the (nor court looks to the and the past, not to future even the current situation as is complete published), this it is not That totally accurate.12 is of small moment, because the marathoners are to the about cross finish line. And his will try charm, seventh be the it already clear.
UNIS, J., specially concurring.
Defendant was signatures on an gathering initiative (neаr while petition standing the sidewalk the main entrance) of the Meyer store, a large privately-owned the “one-stop shopping center” for commercial open public (ed Wigmore, Leflar, excerpted in Appellate Opinions Dean Judicial 1974), “get-it-done” seems to criticize the when school he discusses one of the shortcomings appellate opinions of as follows: place, overburdening cramps “In next labor them. number of appeals, popular dispatch, quick pressure and the for demand unite to make a for hurry. study This means that there is no time to and master ‘ad hoc’ the whole subject. case, specific
law of a There is time to master the record of the purpose peruse precedents brief, for this on the cited or some of them.” (Emphasis original.) Tongue says, Justice 316 Or at that: * * * mostly by granting “This court it hears cases which choosesto hear petitions Appeals.” of for review decisions of the Court take, time-consuming having There are classes other cases this court must no penalty appeal, choice in frequently involving matter. “Automatic” death cases per direct come assignments penalty 50 or more of error case. The 23 death years appeals cases few placed running with automatic back need court in marathon, Direct, many people. statutorily permitted appeals this in the view of proceedings legal sufficiency come from the Tax Court. Direct to review titles, statements, explanatory elections, procedural ballot matters related (one priority litigation constitute a not amount of inconsiderable of which is decided arose). today, days by special less than 30 after election case first Cases sent law directly, legislative for constitutional review in court, court this from enactment pension-taxation such as or siting, corrections construction bond financ- ing corpus priority jurisdiction Original requests also consume chunks of time. in habeas stop, and mandamus as to which this court is the first continue unabated. Moreover, by significant the number review has increased So, years. seems, percentage subject statutorily in recent it have number of matters expedited priority handling.
471 Shop- the 16-acre Hills Raleigh and located within purposes of the store employee He was asked to leave an Center. ping refused, he was arrested for criminal when defendant and, 164.245(1). Defendant degree. second ORS in the trespass a constitutional under right that he had raised the defense 1, of the Constitution to stand IV, section Article on an signatures for the purpose collecting the sidewalk therefore, the order for him to that, and initiative petition lawful.1 leave was not Fred Meyer “one-stop shopping my opinion, is Hills Center Raleigh Shopping within
center” located
in
Lloyd Corpora
to the
Center
Lloyd
sufficiently analogous
(1993)
II),
(Whiffen
500,
P2d 446
Whiffen,
tion v.
315 Or
849
in Clackamas Town
Center
to the Clackamas Town
(1993),2
Wolf,
Assoc. v.
557,
Or
TONGUE, tempore, spe- retired Justice cially concurring. opinion by
I concur in the Justice Van Hoomissen agree with his conclusion that the state did not sustain its proof burden of that the order to defendant to leave the sidewalk in front of the Fred store was a “lawful order.” specially concurring opinion I write this for three (1) why, my opinion,
reasons: to state reasons in the evidence prove affirmatively was sufficient to that defendant had the signatures IV, 1, under Article section to seek on initia- petitions standing tive Meyer while on the sidewalk the (2) why, my store near entrance; its to state reasons in opinion, rights in addition to defendant’s IV, under Article signatures petitions, 1, to solicit on initiative he also (free speech); had the to do so under Article section 8 (3) express my long delays by to concern over the this in court its decision of this and other cases. -
I.
IV,
ARTICLE
SECTION 1
INITIATIVE AND REFERENDUM
Lloyd Corporation
In
v. Whiffen,
500, 510,
315 Or
(1993)
II),
(Whiffen
approved
property penalized entrepreneurial owners in be for their success
473 Court effect, Supreme the California To the same Center, 854, 592 Rptr 153 Cal Shopping v. PruneYard Robins (1980), held, (1979), quoting 447 US 341, P2d aff’d is held sub- cases, private property “[all] from previous its for the use government regulate power ject the interest of 344, P2d that “where at welfare,” public such society, with the interests individual conflicts welfare,” to the general individual interest subordinated speech interest id. at 345, peaceful and that “the public for control over owners property the desires outweighs id. at that in cases the owners 347, but such their property,” regula- “reasonable adopt are entitled of private property * * * with activities do not interfere those tions assure use,” id. at 347. operations normal business II, en 512, this held 315 Or at court Whiff IV, of the Oregon it is implicit adequate must have people opportunity Constitution that and that includes to seek on initiative signers time, and manner right, place, reasonable subject restrictions, areas of to seek such the common signatures centers, the malls of such shopping because large shopping centers are and are “the antithesis of places” “public Cor Lloyd This held court also private place.” previously (1989) P2d poration Whiffen, 307 Or *21 I), initia (Whiffen of on peaceful signatures that solicitation center large shopping tive in the common areas petitions itself, substantial interference not, does and of constitute activity. with the center’s The Center” “One-Stop Shopping Sidewalks Large
A. seeking considering involving persons a case initiative on signatures petitions exercise their seek been to which the has public on privately-owned property time, and manner place, and the reasonableness invited so, their to do the private property restrictions upon rights many The putting that property to a use attracts customers. their business punish private should now be rewritten to successful Constitution ’’ entrepreneurship. dissent, adopts dissenting case, by the same opinion in this its reference to that majority and the dissent position. fundamental between the This difference case and also in this case. involved in such a case may range from a small “mom and pop” grocery store to areas near stores in a town. company
Even for a small “mom and store, pop” grocery it would be both clearly unlawful and unreasonable for the owner to and adopt a rule post stating any person the store entering a shirt with wearing a political slogan would be asked leave, and if that refused person to leave he would be arrested for criminal trespass. hand, On the other it would not to be either unlawful appear or unreasonable the owner of such a store to adopt a rule forbidding persons to enter seeking inside the signatures initiative petitions store to do so. Such persons so, however, could do while public sidewalk outside and near on the standing entrance to the store.
At the other extreme, for the owner of a company town with streets and privately-owned sidewalks to and adopt enforce a rule prohibiting persons from their exercising of free speech by seeking on initiative signatures such privately-owned sidewalks near the entrances of stores bordering such sidewalks or unlawful, streets would be as Alabama, held in Marsh v. supra. But, again, it would appear not to be either unlawful or unreasonable for the owner of a company town to adopt enforce a rule prohibiting solic- itation of signatures on initiative petitions inside stores bor- dered such sidewalks and streets.
In between these two extremes are at least two types categories private with retail property stores to which (1) the public is invited: centers such large shopping as Lloyd Center, which have common areas and wide malls (2) are similar in function to sidewalks-, public large downtown department stores their modern counterpart — suburban large “one-stop shopping centers,” which do not have areas, malls or common but which offer a variety items for sale downtown comparable large department stores, and which have commonly large privately-owned parking lots and privately-owned sidewalks for use cus- tomers going from their cars the entrances of such stores. *22 all Fred
Although same, stores are not Meyer to a brief in according it case, is a matter of common knowledge Meyer provide that Fred advertises its stores “one-stop shopping any appears event, centers.” In it from Meyer large the record this case that this Fred store is a “one-stop shopping large parking suburban and a sidewalk that its center” with a lot
potential customers are invited to use going to and from entrances to the store. previously supra, noted, II, As this court Whiffen Oregon that, hеld under Article IV, section of the Constitu- persons right signatures tion, petitions have the to seek on initiative (the large shopping
inside centers first of these two (sidewalks) categories) designated at areas on the malls inside shopping bordering such centers, but not inside the stores walkways. such categories,
This case involves the second of the two large “one-stop shopping suburban center,” without inside malls, but with outside sidewalks. right go
Defendant did not assert the inside the Meyer signatures petitions, Fred store to seek on initiative standing but contends that he had the to do so while on entrance, sidewalk near its a far less “intrusive” invasion private property. Defendant contends that his to do so request when, was violated at store, ofthe he was arrested trespass. for criminal of the criminal His arrest was the enforcement, use
trespass statute, ORS 164.295, rule adopted by persons the owner of the store that be would not permitted signatures petitions any to solicit on initiative part privately-owned property. of its my opinion reasons,
For these it is that the rule adopted by Meyer forbidding signa- Fred the solicitation of petitions any part property tures on initiative of its was not rule, an unreasonable but that, a rule when enforced trespass, the arrest of defendant for criminal violated his rights IV, under Article section of the Constitution. place, It time, would be a reasonable and manner restriction Meyer designate for Fred areas near the entrances to its by persons seeking signatures store for use on initiative petitions, persons seeking II, as in in which Whiffen signatures designated permitted on initiative were to do so in Lloyd Center,
areas in the malls of the but the rule adopted by is not such a reasonable rule. reasons,
For these same it is my opinion *23 exterior sidewalk of a centеr” is a large shopping “one-stop of such a public place nature defendant had a constitu- IV, tional under Article seek right to on signatures standing Indeed, initiative while on such a petitions sidewalk. this conclusion is in the by Justice Van implicit opinion Hoomissen.
It follows that the order by the of “person charge” this Fred Meyer property defendant to directing stop activity and to leave those was “lawful “premises” not a order.” case,
In this it is not necessary attempt adopt by rules “tests” which this court can determine properly all the outcome of future cases which claim the persons signatures petitions private seek on initiative to which the has been invited its owner. property by public Just as make no rules what is attempt adopt courts defining seizure,” on a a “reasonable search and but decide such cases basis, also, in in which “case-by-case” my so cases opinion, claim a to seek on initiative signatures persons to the must be private open public likewise property basis. “case-by-case” decided on a event, however, court desire In the that this should in such or “tests” for adopt application to state and rules would cases, the same result as stated previously future New by adopted by follow in this case tests adoption Schmid, v. 582, 423 NJ A2d State 84 Court Jersey Supreme (1980). Jersey B. The New Tests tests to determine when property
In the
of
adoption
of
constitutional
accommodate
exercise
interests must
Jersey
the New
invited on
private property,
rights
persons
in Marsh
as stated
from the same premise
court proceeded
(that
Alabama,
private property
of
the more
owner
supra
use,
rights
the owner’s
the more
for public
opens
property
it,
use
those who
rights
the cоnstitutional
are limited
II,
supra.
629), as did this court
A2d at
Whiffen
that:
then held
court
Jersey
New
we
here
which
are
our State Constitution
it is
“Since
strong
our own
look to
fitting that we
it is also
expounding,
prize
rights
traditions which
the exercise of individual
and
obligations
stress the societal
that are concomitant to a
enjoyment See
v. Glass
public
private property.
Vasquez
Ass’n,
100-101, 415
1156;
supra,
Service
83 N.J. at
A.2d
boro
State v.
Shack,
305-308,
369;
N.J. at
277 A.2d
supra,
Elks,
&
Order
Zelenka v. Benevolent Protective
386-387,
N.J.
at
In case, and “normal” use of this “primary” is as a retail property large “one-stop store, center” shopping a wide assortment of The extent and selling goods. nature of the public’s invitation is to come that and into upon property that sale, store to there offered for and the purchase goods of the purpose “expressional aсtivity” undertaken on such is the property signatures peti- solicitation on initiative tions, a activity. constitutionally-protected consideration and New Jer-
Upon application of the sey case, test to the evidence in this I would find that sidewalk of this Fred store is a where constitu- Meyer place tional on initiative rights gather signatures petitions may Further, be I exercised. would find that of such gathering signatures on the sidewalk near the entrance to this Fred center” would not Meyer “one-stop substantially shopping interfere with its and that the rule Fred operation adopted by on Meyer absolutely signatures the solicitation barring initiative not a petitions any part property on of its was time, reasonable and manner restriction. place, of interference. The conduct
There is no evidence petitions seeking signatures on initiative this defendant blocking, standing an near, on the sidewalk but while any Meyer store did not interfere to this Fred entrance way In en with the business of the store. substantial Whiff “[t]he supra, 687, held that solicitation of 307 Or at this court patrons inter- in and of itself constitute substantial does not supra, II, effect, held, in that this court ference.” Whiffen Lloyd may adopted restrict initiative Center the rules activity signature gathering to the extent that such enterprise. substantially with its commercial interferes my upon application opinion, of the follows,in It Jersey IV, under Article tests defendant had New signatures Oregon Constitution to seek standing near the while on the sidewalk initiative Fred store. entrance to this my opinion reasons, it the same For Meyer property given to defendant to leave the direction 164.205(3)(b), under ORS “lawful” direction was not a rights IV, under Article it violated his constitutional because 1, of the Constitution. in which a state court has not the first case This is сonstitutionally protected permitted the exercise of large privately-owned In Robins v. sidewalk of a retail store. Shopping Center, P2d at PruneYard following quoted approval Supreme Court with California previous 2d Lane, in In re 71 Cal it in its decision statement (1969), Rptr in which 729, 457 P2d 872, 79 Cal privately-owned sidewalk reference to a held, court with *25 large grocery a store: outside in the sense of not this sidewalk is not
“Certainly, private it is invited to use public openly to the being open public. leaving premises. the and in the gaining in access to store members of the Thus, it area which public our view is rights.” (Emphasis Amendment exercise First public may added.) principle agree that it that and believe with the statement of I rights applicable the IV, 1, section of under Article to is Oregon gather signatures Constitution to on initiative petitions.2 - I,
II. ARTICLE SECTION 8 OF FREEDOM SPEECH pro- I,
Article section of Constitution vides as follows:
“No law shall be passed restraining the free
expression
opinion,
restricting
write,
or
speak,
print
or
freely
any subject whatever;
every
but
shall be
person
added.)
responsible
the abuse
this right.” (Emphasis
applica-
Courts in other states have considered the
provisions
tion of similar
of the constitutions of such states.
A. The State Cases
dissenting opinion
II,
As stated in the
in Whiffen
(but
order),
involving shopping may centers be divided into two categories:
1. Those cases
from states
which courts have
that,
ruled
under the constitutions of such
there
states,
must
component
respect
private
be a “state action”
with
(or
owner)
property
private property
question
before it
appropriate
particular persons’
is
to consider whether
consti-
rights
expression
tutional
have been violated. In this
category, cases from the courts of seven states hold that
under the constitutions of those states there is
such “state
no
component
private operation
action”
is inherent
Spencer,
225, 228,
(1980),
It was held in State v.
289 Or
“functional equivalent” business center.3 with with no
2. Cases from states constitutions others, They include, requirement. among “state action” Center, v. and State v. Shopping supra, Robins PruneYard Schmid, their These on the that supra. proceed premise cases of speech provisions provide state freedom constitutions’ also action,” from “abuse” “state but protection by “every person.” from “abuse” note these two in the important It is that cases that are from with constitutions second cases states category Arti- similar to the provisions remarkably provisions have I, 8, of the Constitution. Oregon cle section
The PruneYard Case Center, v. Shopping Robins PruneYard
In
in a
affirmed
the United States
California
decision
court*
(1980),
Court, 447
74
held that free
Supreme
speech
US
must
permitted
shopping
of initiative
be
signing
2,
of the California Constitu-
I,
centers under
case,
court held that:
tion.
that
California
adopted
have
the words of
“Thоugh
framers could
(See Note,
Rights they
Bill
chose not to do so.
federal
(1974) 26
Rights
Declaration
Rediscovering
California
481.)
thus accorded
protections
speech
L.J.
Hastings
Special
Superior
in this
Wilsonv.
Court
opinions.
are marked
court’s
(1975)
652,
468,
658,
472,
119
532 P.2d
13 Cal.3d
Cal.Rptr.
116, 120,
instance,
protective provision
‘[a]
noted
than
First Amendment
more definitive and inclusive
right
of the
guarantee
in our state constitutional
contained
of free
” 592 P2d
press.’
at 346.
speech
conclusion, and without
reference
Based
upon
be
any
might
applicable,
“law” or “state action”
center
held that owners of the large shopping
California court
3
(SC
McPherson,
Constitution, the two constitutional remarkably are similar.
Article I, 2, section of the California Constitution provides:
“Every person may freely speak, write and publish his or her sentiments all subjects, being responsible for the right. abuse of this A may law not restrain abridge liberty or of speech press.” or
First, it is to be noted that this article of the Califor- provision may “[a] nia Constitution includes the that law abridge liberty speech press[,]” just restrain or I, as Article provides “[n]o 8, section of the Constitution that * * passed restraining expression law shall be the free *.” Similarly, although compared in reverse order to our I, 8, Article section I, 2, Article section of the California * * * provides “[ejvery person being Constitution that ’’ responsible right[,] just for the abuse of this I, as our Article “* * * provides every person responsi- section 8, that shall be right.” ble for abuse of this previously Supreme
As noted, the California Court quoted approval previous with court, decision hold- ing “[a] protective provision more definite and inclusive than the First Amendment is contained in our constitutional guarantee speech press.” of free P2d at 346.
Thus, I, 2, because Article section of the California provision Constitution is a which contains action” no “state requirement, my opinion, follows, it I, that our Article interpreted requiring should also be as not “state “trigger” guarantee speech action” to its of free because of its “every person responsible provision that shall be for added right.” the abuse of this Case
The Schmid category Also in the second is the New included supra, Jersey Schmid, in which case of State v. another case speech provisions free of a state constitution was determined requirement. Again, significant action” it is to have no “state Jersey par. I, Constitution to note that Article provides: 6 of the New freely write and his “Every person may speak, publish subjects, being responsible all the abuse sentiments on abridge law be to restrain or right. passed No shall * * added.) liberty press (Emphasis or of the *.” speech nearly provision more identical Indeed, this is even except provisions for the to the reversal in order of its two sentences. of our Jersey Schmid, The New court State v. quoted provisions constitution, its state as
A2d at provi- reaching previously that this stated. In its conclusion *28 action,” “state that court reasoned sion was not limited to recog- “[o]n have our own courts that nized the New numerous occasions Jersey and to be an alternative Constitution rights.” independent of individual Id. at 625. source previous of deci- then referred to one “ its The court right holding to construe our State that ‘wehave the sions, provision with what we conceive in accordance constitutional ” meaning.’ plain Id. to be its Referring provision constitution, the its to the of stated that: court sweeping more pronouncements,
“The constitutional Amendment, were language of the First than the scope with the organic law of this State into the incorporated * * * early This constitu-' Constitution. of the 1844 adoption constituting an recognized as itself has been tional model rights.” Id. at individual protectable source of independent omitted). (footnote 626-27 by stating: court continued The New Jersey the assembly guaranteed and rights speech “[T]he against govern- only are not protectable State Constitution bodies, but under some circumstances public mental * * * well. against persons as private ‡ # therefore, conclude, Constitution
“We State freedoms of complementary to individuals the furnishes reasonable exercise assembly protects speech directly govern- rights. guarantees These extend those exercising governmental persons as well as to mental entities unreasonably restric- powers. They against are also available private entities that conduct on the oppressive part tive or obligation have otherwise assumed constitutional freedoms because the individual exercise of such abridge Id. property.” (emphasis use of their at public added). The court then went on to consider question such restraints and what private property subject what is time, place, upon are and manner restrictions reasonable exercise of the of free speech private property.
The of the California and New free speech provisions to limitations Jersey provided that, Constitutions addition free restricting every person responsible laws speech, in the of this Clearly, abuse of the of free absence speech. added both the California court PruneYard provision, held, as held court in Schmid would have New Jersey under First Constitution of the United Amendment States and also under similar in the constitutions provisions for free states, of other the constitutional provisions limited to protection in both of those states was speech laws and “state action.” against required B. Oregon Cases II, contended, and the plaintiff Whiffen Consti- that Article agreed,
dissent “laws” from tution only government protects private parties It is and is a action.” true limitation “state upon *29 (1980), the 225, 228, 289 Or 611 P2d State v. Spencer, I, 8, of the Constitu- court stated that Article section prohibits tion on the branch. It prohibition legislative “is legislature enacting restraining expres from laws the free * * opinion quoted by sion *.” That statement later was Robertson, this court in State v. Or 402, 412, 649 P2d 569 (1982). cases, In neither however, of those was the issue the question 8, I, whether Article section was limited to “laws'.” Instead, the issue in both cases was whether the laws involved Spencer in those cases were valid. In both Robertson, unconstitutionally issue was whether statutes were vague or over-broad.
In neither case did this court consider the additional requirement “every person I, 8, Article section that shall be responsible right.” for the abuse of this It follows by statement this court in both cases the effect that Article upon “legislative I, 8, section is a restriction branch” was necessary to the decision in those cases and nowas more than dictum. previously noted, I, As 8, section Ore- “
gon stating [n] Constitution, in addition o shall law be passed restraining expression opinion, the free or restrict- ing speak, print freely any subject write, goes “every person whatever[,]” also on to state that shall be responsible right.” for the abuse of this provision
This added
has been considered
this
previous
Henry,
court in
cases. In
510,
State v.
302 Or
(1987),
The issue case, decision in that how- obscenity was ever, whether an law I, violated Article 8. case, Prior to this this court has not whether considered provision imposes upon added in Article private persons any “responsibility” in addition to “civil responsibility for harm done.” my opinion, adopt reasoning this court should Jersey the courts of California New in PruneYard and required “trigger”
Schmid,
no
“state action” is
*30
speech,
reasons,
guarantee
that,
and hold
the same
of free
remarkably
provisions
I,
8, of the
Article section
of
the
similar
require
Oregon
“state action” to do so.
does not
Constitution
8,
I,
I
that Article section
words,
In other
would hold
Oregon
provision
interpreted
the
Constitution
be
as a
of
must
that
or
protects
from “abuse”
citizens not
by
express
by
also,
terms,
action,”
its
“state
but
restraint
by private
protects
against
“abuse”
restraint
them
persons.
Minielly
State,
490, 499,
(1966),
holding
in
involved that
court, in
that the statute
this
Oregon Constitution,
I,
8,
case violated
quoted
by
following
approval
the United
statement
with
Sweezy
Hampshire,
Supreme
US
New
Court
v.
States
(1957):
1203,
“State action”
cow,”
should not be a “sacred
as the
dissent
it
apparently believes
to be. Instead, what is “sacred”
should be a
giving
broad protection to citizens in their
“fundamental”
of free speech. In so
I
holding, would
adopt the same interpretation
I,
of Article
as did the
Court in Robins v. PruneYard Shopping
Supreme
California
Center, supra, and the New
Schmid,
State v.
court in
Jersey
in their
interpretations
similar
remarkably
provisions of the constitutions of California and New Jersey.
As previously noted,
Unfortunately, no “history” might demonstrate the intent thosе who wrote Article section 8. *31 See Carey, History of the Oregon Constitution 100-120 (1926). If, however, a delegate the Oregon constitutional convention had been instructed to an write as article for its Bill of a Rights guarantee of freedom of speech that would provide protection against abuse or restraint both by “laws” enacted by and also legislature against or abuse restraint by private persons, it is difficult to conceive of words that would more such an clearly express intent than the words: restraining
“No law shall be passed expression free opinion, restricting write, or right speak, print or freely subject whatever; any on every person but shall be for responsible right.” Const, I, the abuse of this § Or Art 8. For reasons, all of these I would hold the provi- I, 8, sion of Article “every section person shall be responsible for the abuse of this right,” should be interpreted not as virtually words, meaningless but by giving these words their clear plain, and literal so meaning, as to extend the protection of free from speech “abuse” or restraint not “state only by action,” but also from “abuse” or restraint “private persons.” I would
Accordingly, hold Fred Meyer “per- son” for the responsible “abuse” of defendant’s of free right defendant, speech; in seeking signatures on initiative petitions while on the sidewalk standing near the entrance to this store, was to exercise his thereby attempting constitu- tional of free that his right to do so under speech; I, 8, recognition by was entitled to owners this reason- center,” subject “one-stop shopping Meyer that, as restrictions, and manner time, place, able “abused” case, Fred this the facts of result, and under him arrested by having speech free defendant’s trespass. criminal later, come, time will sooner my opinion, inter- restrictive presently will abandon its this court
when of its 8, the words give of Article pretation for the to be “every “responsible person” provision requiring their clear plain, freedom of right” speech abuse this meaning. literal DELAYS ON APPEAL
III. always who has of this court As a former member nation, isit of the best in the court as one devoted this been strongly its I operation. to be critical of for me difficult to this on delays that the believe, however, problem appeals make appropriate serious as to has become so court to this attention calling writing concurring opinion of a problem. ain decision my opinion concurring is not first
This
court,
long delays
concern over
but
expressing
See,
v.
State
e.g.,
arguments
oral
and decisions.
between
State
(1979);
Classen,
Or
argument. 24 of Only these cases were decided within 90 days after oral In addition argument. to State v. Cargill, supra, one other case remains undecided after over two years.
For the first four months of this year, ending May 1, there have been “signed opinions,” 15 of which were deсided within 90 while 9 were days, not decided until more than months after oral argument, including decided for than more 18 months.
The Standards Relating to Courts, Appellate as adopted Bar by American Association Commission on of Standards Judicial (1977), Administration provide for Standards of Timely Disposition, Section including 3.52(b)(4), which provides as follows: sitting “Decision. aFor court of panels judges, three average rendering
the days; time for decision should not exceed 30 any case, the maximum time for of except one extraor- dinary complexity, days. should not exceed 60 For a court sitting in larger panels, average time should not exceed days; time, the maximum except extraordinary cases of added.) complexity, should not days.” exceed 90 (Emphasis
ORS 1.050 that all provides trial Oregon judges shall sign a “Certificate as a Compliance,” condition for pay- salaries, ment of their that they have no cases under advise- ment or undecided for more than three months “unless prevented by sickness or casualty, unavoidable or the time be extended by stipulation in writing[.]” Because an opinion by General Attorney this statute is uncon- stitutional, it no longer does, however, is enforced. It state the view of the citizens Oregon, through their elected represen- tatives, that courts should decide within ordinarily cases days.
This court no all longer required hear cases it, but hears appealed mostly cases which it to hear chooses granting review of decisions Because, result, Court Appeals. as a can now court control the number of cases to be it, heard and decided by there is no reason it good should be unable to decide why promptly those cases which it chooses hear.
489 following I the am told inquiry, further Upon the problem are made to corrеct being have been and efforts results: following with delays appeal, of cases other consider many does The court promptly following by published opinion it decides signed, than those 1,000 The court considers about oral argument. in an each analyzes for mandamus each year
review or 90 in approximately review is denied opinion; unpublished takes in a decision that generally of those cases percent of The cases which filing. the time days about 60 from ones, and challenging are the legally court review allows The of all. normally challenging are the most delayed cases is issues law thorny to reach consensus court’s attempts (and than exasperating) more time-consuming a process the trial court judges imagine. their lawyers, parties, that, justifia- years ago The court realized about two a had become serious not, problem. ble or decisional delay court’s backlog were undertaken to reduce the Serious efforts All justices agreed more seven opinions promptly. issue circulation to hasten procedures designed to revised internal a has been sharp The result publication opinions. in the improvement and a marked backlog decrease in the time for decision. the court had May
A before oral year ago, arguments, 34 time, only cases. This at the same of 88 backlog year, cases, 34 two- Among those cases were under advisement. within the six months. Of past thirds had been argued cases, repeat- most have after the court reassigned older been or the failed to either the rationale edly agree upon tried but author; reassignment, after assigned result proposed weeks. The “back- are within opinions generally published entirely fast and is shrinking expected disаppear log” “backlog” of the older year, within this Already months. that are cases remain Only been five published. cases have old. year more than 1992, only
Among signed opinions published days argument. issued within 90 were percent were issued within opinions of all published half nearly the court hears of new cases majority days argument. 46 cases within 90 Of the days. will be year published from argued January through April have already been decided. and,
These efforts the court in particular, by *34 Justice, Chief to overcome the problem of delays in its deci- sions and apparent efforts, success such as indicated by these current statistics, should come as welcome news both to the bar and the public.
It remains to seen, course, be whether these efforts will continue to be successful.
Cases appealed this court involve serious concerns of real people, such as those of defendants in criminal cases who contend that their convictions must be reversed because their constitutional rights violated, have been as in this case, and persons to collect trying substantial sums of money as the result of judgments personal injury breach of contract. These are people entitled to reasonably prompt decisions court that is efficient in its operation.
To these, such as “Jus- people others, to many tice justice is delayed denied.” J.,
PETERSON, in specially concurring part in dissenting part. I join in the
Although
dissenting
Gillette,
opinion
J., I
concur with
specially
the lead
in this
opinion
respect:
(1993)
Lloyd
Corporation Whiffen,
Or
I in the join IV, right under have no circulators initiative petition to circulate Constitution, of the involved in this case as those such premises owned privately II. and in Whiffen J.,
GILLETTE, dissenting. expand then trying a bad idea and Starting with This is that reached this case. results like it upon produces prop was on private who indisputably of a trespasser a case by a who person to leave that property and was ordered erty majority The nonetheless property. charge was in for criminal trespass conviction trespasser’s reverses the a reason beyond failed to disprove, state ground was trespasser engaged “defense” that the doubt, able viz., activity, petition signature constitutionally protected majority’s approach fault with the principal gathering.1 the activity its which unspoken major premise, lies in (the that, declines to determine majority could be question *35 is) I I it As believe case, constitutionally protected. in this Or Corporation Whiffen, have demonstrated in Lloyd (1993) II) (Gillette, J., 528-56, (Whiffen 849 P2d no constitutional gather there is such dissenting), It follows signatures private property. petition disprove, the state had to had no “defense” that defendant therefore should trespass for criminal and that his conviction be affirmed. J., dissenting
Carson, J., Peterson, join C. opinion. single majority opinion, disposition I is no but to which refer There
agreed upon by four members of the court.