Lenrich Associates v. Heyda

DENECKE, J.,

specially concurring.

The majority holds that we cannot give the individual rights of expression and religious freedom greater protection by reliance on rights under the appropriate provisions of the Oregon Constitution than those provided under Lloyd Corp., Ltd. v. Tanner, 407 US 551 , 92 S Ct 2219 , 33 L Ed2d 131 (1972). The majority decision is based upon the opinion that Tanner decides that the shopping center owner has property rights which are protected by the Fifth and Fourteenth Amendments of the Federal Constitution and these rights would be violated if the defendants were permitted to continue their activity on plaintiff’s property.

I agree with Mr. Justice McAllister’s statements in the majority opinion that the language used by Mr. Justice Powell seems to indicate that Lloyd’s property *130 rights are being accorded the federal constitutional protection of the Fifth and Fourteenth Amendments. Despite this language, I am of the opinion that this cannot be the basis for the decision of the United States Supreme Court. I reach this conclusion because such a basis would be a drastic departure from what I thought to be established constitutional law and Mr. Justice Powell makes no mention of any change in direction in interpreting the Fifth and Fourteenth Amendments.

■ The Fifth and Fourteenth Amendments prohibit the government from depriving a person of his property without due process of law, and, in the case of the Fourteenth Amendment, denying equal protection. The Fifth Amendment applies to the' federal government and the Fourteenth Amendment to the states. From the Civil Rights Cases, 109 US 3 , 3 S Ct 18 , 27 L Ed 835 (1883), to the present the Fourteenth Amendment has been interpreted to prohibit conduct by the state but to leave conduct by private persons untouched.

The issue in Moose Lodge No. 107 v. Irvis, 407 US 163 , 92 S Ct 1965 , 32 L Ed2d 627 (1972), decided 10 days before Lloyd Corp., Ltd. v. Tanner, supra ( 407 US 551 ), was whether the conduct was state conduct or private conduct. The Moose Lodge refused to serve liquor to a Negro guest. The guest filed suit in federal district court for an injunction, contending-that the lodge was able to serve liquor only because of a license issued by the State of Pennsylvania; therefore, the conduct of the lodge was state action. A federal court granted relief; however, the United States Supreme Court held there was no state action, therefore, the Fourteenth Amendment was not violated.

In Tanner the Court points out that the ■ First *131 Amendment, through the Fourteenth, safeguards the rights of free speech “by limitations on state action, not on action by the owner of private property * * 407 US at 567. In Tanner the Lloyd Corporation’s security guards, commissioned by the city, threatened to arrest Tanner and his associates unless they ceased distributing their handbills within the Lloyd’s center. The Court did not state whether this constituted state action against Tanner which would invoke the protection of the First and Fourteenth Amendments. I would think it would be.

The question I have about Tanner , however, is what state action was there against the Lloyd Corporation so as to wrap Lloyd’s property rights in the protection of the Fourteenth Amendment. ■ Tanner and his associates were a threat to the sanctity of Lloyd’s property interests but there is no suggestion in the statement of the facts or the law thatany state action threatened Lloyd’s property rights.

As stated, the United States Supreme Court opinion seems to place Lloyd’s property rights under the protection of the Fifth Amendment, as well as the Fourteenth. The due process clause of the Fifth Amendment is a restriction on the federal government. In Tanner the federal district court, a branch of the federal government, enjoined Lloyd Corporation front interfering with Tanner’s right to distribute handbills on Lloyd’s property. Court action has been held to be sufficient state action to invoke the Fourteenth Amendment protections. In Shelley v. Kraemer, 334 US 1 , 68 S Ct 836 , 92 L Ed 1161 , 3 ALR2d 441 (1947), the state courts enjoined violation of restrictive racial covenants in conveyances. The Court held that judicial action was sufficient state action to invoke the protection of the Fourteenth Amendment.

*132 The United States Supreme Court did not intimate that the action of the district court was the necessary federal action. If the district court decree were deemed sufficient federal action I would consider such a decision to be a significant extension of Shelley v. Kraemer, supra ( 334 US 1 ), and would expect such an extension to be extensively commented upon in the opinion.

In addition, I was of the opinion that in order to constitute a deprivation of property which was invalid under the Fifth and Fourteenth Amendments' there had to be a “talcing” of property. This is not present in Tanner .

If the majority’s interpretation of Tanner is correct, that decision logically would appear to greatly restrict the rights of states and their subdivisions to regulate the use of property.

First Amendment rights are regarded as the ultimate in the scale of constitutional rights. The majority interprets Tanner to hold that these top-rated First Amendment rights must yield to a constitutionally protected right to have one’s private, but publicly used, property free from peaceful handbilling. Under such a rationale what will be the future fate of a zoning ordinance prohibiting the use of all the property in a city for use as an automobile wrecking yard where the purpose of the ordinance was to protect the esthetic sense of the community? In Oregon City v. Hartke, 240 Or 35 , 400 P2d 255 (1965), we held this to be valid. It seems apparent, however, that the infringement on property rights is much greater in the zoning case than the infringement on the Lloyd Corporation’s property. The protection of the esthetic sense of the community, *133 while laudable, in my opinion, is “not in the same league” with the protection of the right of free speech.

I do not believe Tanner has to be interpreted in this manner. Tanner, supra ( 407 US 551 ), Marsh v. Alabama, 326 US 501 , 66 S Ct 276 , 90 L Ed 265 (1946), and Amalgamated Food Employees v. Logan Valley Plaza, 391 US 308 , 88 S Ct 1601 , 20 L Ed2d 603 (1968), all agree that persons are not entitled to exercise First Amendment rights on private property which is in no way open to the public; for example, on private residential property surrounded by a high fence with large signs stating, “Keep Out.” No suggestion was made in the cases prior to Tanner that such a property owner was protected against intruders by the Fifth and Fourteenth Amendments. I construe those opinions to quite clearly state that the property owner was protected by the state law of property, particularly the state property law that provides that a property owner has the right to be free from trespassers.

I believe Tanner can most logically be interpreted as an extension of this kind of reasoning. The invitation by the property owner to the public to come in and shop does not sufficiently alter the character of the property so as to deprive the property owner of its rights under the state property law to oust persons it does not want on the premises although such persons come on the property endeavoring to exercise First Amendment rights.

I conclude that the Tanner case does not hold that Lloyd’s property rights were protected by the Federal Constitution. I am, therefore, not foreclosed by that decision from considering what protection is afforded the defendants’ rights under §§ 3, 8, Art I, of the Ore *134 gon Constitution. ① (Freedom of exercise of religion and speech.)

These two sections commence, “No law shall * * Similarly, § 9, Art I, prohibiting unreasonable searches or seizures commences, “No law shall, * * We have interpreted this prohibition to apply to not only the legislative branch but to the judiciary and executive as well. State v. McDaniel, 115 Or 187, 209 , 231 P 965 , 237 P 373 (1925); Crouch v. Central Labor Council, 134 Or 612, 622 , 293 P 729 (1930).

I am uncertain whether there is “a law” restraining defendants’ alleged Oregon constitutional rights of free speech and exercise of religion. I will assume there is. Nevertheless, I am of the opinion that under the facts in this case, defendants’ rights under the Oregon Constitution have not been violated. My reasoning is similar to that expressed by Mr. Justice White, dissenting in Logan Valley Plaza except that I am of the opinion that the facts in this case are stronger for the property owner than they were in Logan Valley Plaza . The public was only invited for a limited purpose, browsing or shopping. The owner did not invite persons who entered for a purpose that had no connection with shopping. On the other side, there was a public area in close proximity where the defendants could exercise their religion and speech and communicate to most of the patrons of the mall and others in the neighborhood.

“No law shall in any case whatever control the free exercise, and enjoyment of religious opinions, or interfere with the rights of conscience.

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“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”