"I would affirm * * * on the ground that the mall area in this case is essentially a public place and that the defendants are entitled to the protection of Article I, § 8 of the Oregon Constitution"
How later courts described this case
- "I would affirm * * * on the ground that the mall area in this case is essentially a public place and that the defendants are entitled to the protection of Article I, § 8 of the Oregon Constitution"
Written by the judges who cited it.
The opinion
O’CONNELL, C. J.,
dissenting.
' I would affirm the decree of the trial court on the ground that the mall area in this case is essentially a *136 public place and that the defendants are entitled to the protection of Art. I, § 8 of the Oregon Constitution. ①
The majority reads Lloyd Corporation v. Tanner, 407 US 551 , 92 S Ct 2219 , 33 L Ed2d 131 (1972) as foreclosing our consideration of our own constitution in this case. This conclusion is forced, it is felt, because Lloyd Corporation is treated as holding that the plaintiff in that case was protected under the Fourteenth Amendment against a deprivation of its property rights by the kind of interference created by the defendant Tanner. Although the Court in the Lloyd case spoke of weighing the interests of the parties under the First and Fourteenth Amendments, the Fourteenth Amendment could not possibly have any application in the Lloyd case because even if the interference by Tanner could be regarded as a “taking” of the plaintiff’s private property, there was no participation by the state or the federal government in the alleged deprivation. The only possible governmental involvement directed toward the deprivation of Lloyd Corporation’s property interest was the decree of the Federal District Court restraining Lloyd from interference with Tanner’s First Amendment rights. To sa3r that the entry of a court decree constitutes governmental involvement would be patently untenable because it would mean that in every case in which the decree adversely affects property rights of a party to the litigation, he could use the decree as the predicate for asserting a constitutional claim. ②
*137 With, the removal of the Fourteenth Amendment rationale from Lloyd Corporation v. Tanner, supra, the ease stands only for the proposition that Tanner was not entitled to the protection of the First Amendment. On this reasoning, we would not he precluded from affording Tanner greater protection under our constitution than the U.S. Supreme Court saw fit to afford him under the Federal Constitution.
I would employ the reasoning of the Federal District Court of Oregon in Tanner v. Lloyd Corooration. 308 F Supp 128 (D Or 1970), and of the dissent in Lloyd Corporation v. Tanner, 407 US 551 , 92 S Ct 2219 , 33 L Ed2d 131 at 144 (1972).
I recognize that Shelley v. Kraemer, 334 US 1 , 68 S Ct 836 , *137 92 L Ed 1161 , 3 ALR2d 441 (1947) treated the decree of the Court as constituting state involvement in a case involving the Equal Protection Clause of the Fourteenth Amendment. However, the Supreme Court has not extended the idea of state action developed in Shelley v. Kraemer to other cases, even in the area of equal protection. Certainly it is not to be expected that the principle would be extended to the due process cases.