Stranahan v. Fred Meyer, Inc.

*481 LANDAU, J.,

dissenting.

At issue in this case is the extent to which Fred Meyer has the right to exclude a member of the public from gathering initiative petition signatures on the premises of its Foster Road store. The precise nature of the public’s right to use private property for that purpose has proved to be among the most divisive issues in the appellate courts of this state in recent years. So I suppose that it will come as no surprise that, in this case, the court has produced three opinions expressing three very different views on the matter. It is, however, an issue of exceeding importance, one that I hope will attract the attention of the Supreme Court. In the pursuit of that hope, I offer my dissenting view concerning the lead and concurring opinions and set forth what I believe to be a correct view and application of the controlling law.

The lead opinion approaches the question generally as an exercise in fact matching. It does not attempt to articulate any legal principles by which we can determine whether, in a given case, a private property owner may exclude members of the public from gathering signatures. Instead, it examines certain physical features of the Foster Road store to determine whether that store is “like” the stores in prior cases in which we have held the public has a right to solicit initiative petition signatures on private property. 1 It then concludes that, because the Foster Road store is as large as the stores in those prior cases, it may conclude that, in this case as well, the public has the right to solicit signatures on private property. With due respect, I maintain that constitutional rights are not determined by fact matching, but by the application of constitutional principles on a case-by-case basis. That is the manner in which we have approached these cases in the past, and the lead opinion errs in taking a constitutional short cut.

The concurring opinion takes a different approach. Based principally on a very broad reading of a 1946 United States Supreme Court decision, it contends that the Fred Meyer store in this case is subject to a public right to collect *482 initiative petition signatures because Fred Meyer “has invited the public to its shopping center for its own advantage and in the hope that its customers will give the store all of their shopping dollars.” 153 Or App at 477. I disagree with the concurrence in two respects. First, in my view, it is premised on an inaccurate reading of seminal United States Supreme Court case law; indeed, it is based on a reading that both the United States Supreme Court and the Supreme Court of this state have rejected. Second, its implications are far-reaching and at odds with the applicable cases. The concurrence, in fact, candidly acknowledges that adoption of its reasoning would necessitate overruling a number of prior decisions of this court.

As I read the case law, Article IV, section 1, of the Oregon Constitution, grants the people a right to collect initiative petition signatures on some private property. Precisely which property is subject to that right depends on the extent to which the private property owner has invited the public to treat the property as public property, that is, to assemble on it for noncommercial purposes. Various factual considerations may reveal a greater or lesser invitational scope, but the focus always is on the extent to which the property owner has encouraged members of the public to assemble for noncommercial purposes. Applying that test to the facts of this case, I conclude that Fred Meyer has demonstrated that its Foster Road store is not subject to the right of the public to gather initiative petition signatures on its premises. Accordingly, I would reverse on Fred Meyer’s cross-appeal on that ground and would not reach the other matters that the majority addresses in its opinion.

The starting point for any analysis of the law regarding the right of the public to use private property for the purpose of conducting constitutionally protected political activity is the United States Supreme Court’s decision in Marsh v. Alabama, 326 US 501 , 66 S Ct 276 , 90 L Ed 265 (1946). In that case, Marsh was arrested for distributing religious literature on the sidewalk of a suburban “town” owned in its entirety by a private business entity. The town had “all the characteristics of any other American town,” except for the fact that it was privately owned. Id. at 502 . It had

*483 “residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office. * * * [The town residents] make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. * * * In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.”

Id. at 502-03 . Marsh argued that her arrest violated her constitutional rights of freedom of press and religion. The Court agreed. Writing for a majority of the Court, Justice Black explained that merely because property is held in private ownership does not necessarily mean that it is not subject to public use. Depending on the scope of the owner’s invitation to the public, the property may be subject to a public right of use:

“The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”

Id. at 506 (citation omitted). Because the owners of the company town had given the private space all of the attributes of a public municipality, the Court held, the owners had opened the space broadly for public use. Id.

The Court arrived at a similar result, although by different reasoning, in Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 US 308 , 88 S Ct 1601 , 20 L Ed 2d 603 (1968). In that case, members of a union picketed in a parcel pick-up area adjacent to a store located in a large *484 shopping center. The Court held that the picketers could not be enjoined from exercising their rights of free expression on that private property, because the shopping center was the “functional equivalent” of a downtown business district. Id. at 325 . Interestingly, the author of the majority in Marsh disagreed with the majority in Logan Valley Plaza . Justice Black complained that, under Marsh , the public has a right to use private space for expressive purposes only when the property has “all the attributes of a town,” not just the appearance of a shopping center. Id. at 332 (Black, J., dissenting) (emphasis in original).

The Court ultimately overruled Logan Valley Plaza . In Lloyd Corp. v. Tanner, 407 US 551 , 92 S Ct 2219 , 33 L Ed 2d 131 (1972), the lower court concluded that the Lloyd Center was the functional equivalent of a downtown business district and, on that basis, enjoined the Lloyd Center from preventing members of the public from exercising their First Amendment rights on the premises. The Court reversed, concluding that the lower court erred in focusing on the equivalency of the shopping center with a downtown business district. The Court instead adopted the reasoning of Justice Black’s dissent in Logan Valley Plaza . Focusing on the scope of the Lloyd Center’s invitation to the public, the Court held that, because “[tjhere is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve[,]” there was no basis for requiring the private property owner to allow its premises to be used by the public for expression purposes. Id. at 565.

Then, in Hudgens v. NLRB, 424 US 507 , 96 S Ct 1029 , 47 L Ed 2d 196 (1976), the Court held that members of a striking union did not have the right to picket a store located in a large shopping mall. The Court expressed its intention to “make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.” Id. at 518 .

Lloyd and Hudgens focused on the extent to which the federal constitution afforded members of the public a right to conduct expressive activities on private property; *485 they said nothing about the extent to which state constitutions might bear on the matter. The California Supreme Court took on that issue in Robins v. Pruneyard Shopping Center, 23 Cal 3d 899, 592 P2d 341 (1979), aff'd 447 US 74 , 100 S Ct 2035 , 64 L Ed 2d 741 (1980). In that case, the state Supreme Court held that, although the First Amendment does not afford members of the public a right to solicit initiative petition signatures, the guarantees of free expression in the California Constitution do. The court, unfortunately, did not provide much in the way of explanation as to the reach of its decision. It emphasized the growing importance of “shopping centers” in an increasingly suburbanized city. Id. at 907-09, 592 P2d at 345-47 . But it did not explain precisely how to identify the sort of “shopping center” to which the state constitutional guarantees of free expression apply. 2 The United States Supreme Court affirmed, holding that the expansive guarantees of freedom of expression afforded by the California Constitution did not violate the shopping center’s owners’ property rights under the federal constitution. PruneYard, 447 US at 83 . 3

Meanwhile, the issue began to surface in Oregon. In Lloyd Corporation v. Whiffen, 89 Or App 629 , 750 P2d 1157 (1988), aff'd on other grounds 307 Or 674 , 773 P2d 1294 *486 (1989) (Whiffen I), the trial court issued an injunction prohibiting members of the public from entering the Lloyd Center to gather initiative petition signatures or otherwise exercise their rights of free expression. We reversed, holding that completely prohibiting the petitioners from collecting signatures interfered with their rights of free expression guaranteed by Article I, section 8, of the Oregon Constitution. We expressly based our opinion on the nature of the Lloyd Center and the broad invitation that it issued to the public to use its premises for public activities:

“Lloyd Center is large, covers numerous city blocks, contains many separate business and professional establishments and is open to the public. Plaintiff seeks to draw masses of people to it each day, provides large parking areas and seeks to create an environment conducive to shopping. It has provided interior public walkways and malls, with benches, flower gardens and music designed to encourage the public to windowshop, meet friends, congregate and pass the time. Plaintiffs invitation to the public is broad and for more than just commercial activity.”

Id. at 637 (emphasis supplied). The Supreme Court affirmed, albeit on different, ostensibly nonconstitutional, grounds. Whiffen I, 307 Or at 688-89. 4

In State v. Cargill, 100 Or App 336 , 786 P2d 208 (1990) , affd by an equally divided court 316 Or 492 , 851 P2d 1141 (1993), this court again addressed whether members of the public have a right to exercise their rights of free expression on private property — specifically, another Portland Fred Meyer store. The court this time based its holding on Article IV, section 1, of the Oregon Constitution, by which section the people reserved the powers of initiative and referendum. Even so, the court once again focused on the extent to which the shopping center was open to the public for noncommercial purposes. The court noted that the particular store at issue “is a modern replacement for the town square or park. *487 It is open to the public, and citizens are invited to come and congregate on the premises.” Id. at 344. After reciting such facts about the characteristics of the store, the court concluded, recalling verbatim its rationale in Whiffen I:

“In this case, Fred Meyer’s invitation to the public was broad and for more than just commercial activity. Its premises, by reason of the owner’s invitation, became a forum for assembly by the community.”

Id. at 348. 5

In Lloyd Corporation v. Whiffen, 315 Or 500 , 849 P2d 446 (1993) (Whiffen II), the Supreme Court first recognized a constitutional right to collect signatures on some private property, under Article IV, section 1. The majority opinion offered an abbreviated explanation of the reach of its new rule; the focus of the court’s opinion was on the existence of the right not on its extent. 6 First, it characterized the issue before it as “whether the provisions of Article IV, section 1, confer upon persons seeking signatures on initiative petitions the right to go on private property to which the public has been invited.” Id. at 509-10 (emphasis supplied). Second, the court described the right as applying to “the common areas of large shopping centers such as the Lloyd Center.” Id. at 514 (emphasis supplied). In so doing, the court expressly stated that it relied “largely upon acceptance of the rule” in Marsh and the California Supreme Court’s opinion in Pruneyard. Id.

It must be recalled that the rule in Marsh was a narrow one, based on the extent to which the property owner opened its property to public use; as subsequent cases made *488 clear, Marsh was not based on the extent to which a shopping center served as a modem replacement for a traditional downtown commercial area. The majority in Whiffen II emphasized the narrowness of the holding in Marsh by quoting from that case its explanation that the scope of the public’s right to use private property depends on the scope of the invitation to use it. Id. at 510 (quoting Marsh, 326 US at 506 ). It also must be recalled that the California Supreme Court’s decision in Pruneyard provided no explanation as to which properties are subject to the state constitutional right to solicit initiative petition signatures. Indeed, the majority in Whiffen II referred to the state court decision in Pruneyard for a different purpose; the court quoted from Pruneyard the conclusion that allowing members of the public to collect signatures at a shopping center would not interfere substantially with the business of the center. Id. at 513 (quoting Pruneyard, 23 Cal 3d at 907, 592 P2d at 345 ). Thus, it is apparent that the court in Whiffen II intended its holding to apply not merely to any large shopping center but solely to the common areas in large shopping centers to which the public has been invited for community assembly.

That, at least, has been the manner in which the courts of this state in subsequent cases have construed and applied Whiffen II 7 In Safeway, Inc. v. Jane Does 1 through 50, 141 Or App 541 , 920 P2d 168 (1996), we declined to determine that all 91 of the plaintiffs Oregon stores are not subject to a public right to collect initiative petition signatures, *489 because of the insufficiency of the factual record regarding those stores. Without purporting to articulate a constitutional test, we described the sort of evidence that would be relevant to the inquiry:

“In cases in which we and the Supreme Court have held that such a right exists, we have considered nonexclusive factors such as the size and configuration of the premises, its relationship to other businesses in the area, whether the premises are bordered by public or private properties, whether the premises are intersected by public streets and sidewalks, whether the premises and adjoining multiple privately owned businesses open directly onto public areas, and whether there are public transportation stops adjacent to the premises. Also pertinent to the inquiry are the scope of business endeavors that are included in the surrounding area and conducted on the premises, the characteristics of the invitation to the public by the businesses in the area, the availability of areas for the public to congregate for noncommercial purposes, the number of people who frequent the premises and the purposes for which the premises and common areas are used.”

Id. at 545 (emphasis supplied; footnote omitted). I acknowledge that Safeway is not terribly clear in its description of the applicable law and that the decision could be read to suggest that the scope of an invitation to use private property as public property is but one of many factors to be taken into account. Any doubt about the role of the scope of invitation in the decision-making calculus, however, was resolved shortly thereafter by our most recent decision on the subject.

In Wabban, Inc. v. Brookhart, 142 Or App 261 , 921 P2d 409 , rev den 324 Or 395 (1996), we held that two HomeBase retail outlets are not subject to the public’s Article IV, section 1, right to collect initiative petition signatures on private premises. We characterized the nature of the question before us in the following terms:

“The question before us is whether these premises, by reason of HomeBase’s express or implied invitation to the public, are a forum for assembly by the community.”

Id. at 265 (emphasis supplied). It bears emphasis that the foregoing sentence is the manner in which we characterized *490 the nature of the legal issue before us; it is not simply one of the relevant factors taken out of context. 8 That much is made clear by the fact that, after characterizing the issue as I have quoted it, we described the various considerations, listed earlier in Safeway, that bear on the scope of the express or implied invitation to the public. Id. After detailing the list of those considerations, we then reached the following conclusions in light of the facts regarding the two stores at issue:

“We conclude that the sidewalks and parking lots of [the two stores] are not the modern-day equivalent of town squares. The scope of noncommercial invitation to these premises is limited. The stores themselves sell only home improvement items. Neither shopping center in which the stores are located provides a broad array of commercial enterprises, nor does either attempt to be a ‘one stop’ shopping area. There is no evidence that the store’s parking lots or sidewalks are places where the public is consistently invited to congregate for noncommercial purposes, nor is there evidence that plaintiff has extended an invitation to the public to use its sidewalks and parking lots for noncommercial activity by providing areas for the public to congregate or community bulletin boards.”

Id. at 266 (emphasis supplied). We took note of the fact that there were hot dog carts at each store and that each store held a carnival in the parking lot each year. We nevertheless held that such activities did “not significantly alter the scope of the invitation to the public.” Id. We further noted that, although the stores were surrounded by large parking lots, on which the petition gatherers had attempted to exercise their rights to petition, those premises “are primarily premises that provide parking areas for vehicles and egress and ingress for shoppers.” Id.

The thread that runs throughout the cases — from Whiffen I through Wabban — is clear. It is that the public has a right to use private property to gather petition signatures *491 only to the extent that the property owner has made the property available to the public as a substitute for a public park or town square for purposes of noncommercial assembly. Such a rule makes sense. It is rooted firmly in the common law relating to trespass. See generally Restatement (Second) of Torts §§ 167-69 (1965) (scope of consent to enter private property determines the scope of the defense to trespass action); Prosser and Keeton on the Law of Torts 118 (5th ed 1985). 9 It also is congruent with Fifth Amendment takings jurisprudence. See, e.g., Nollan v. California Coastal Comm’n, 483 US 825, 831 , 107 S Ct 3141 , 97 L Ed 2d 677 (1987) (if a state required private property owners “to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, * * * we have no doubt there would have been a taking”). 10 It is only in that *492 context that the consideration of the many factors that we have described previously as relevant can be evaluated as a matter of law. Otherwise, we are left with an ad hoc evaluation of disembodied “criteria” that leads to a determination of the existence of constitutional rights on the basis of whether one store has the same square footage as another and one has a larger number of tenants than another. Such considerations have no constitutional significance in and of themselves; it is only in light of the invitational scope inquiry that the cases consistently apply that they obtain any relevance. 11

*493 The lead opinion demonstrates the very problem. Its entire analysis of the issue is as follows:

“Like the shopping center at issue in Cargill, the shopping center at issue here is designed to meet a wide range of consumer needs. The shopping center endeavors to provide a wide range of products and services on the premises because it wants its customers to meet all of their consumer needs, and spend all of their consumer dollars, at the shopping center. Fred Meyer has, for its advantage, extended a broad invitation to the public to come to its shopping center. None of the entrances, including entrances to the tenant businesses, is accessible from a public sidewalk. A public street separates the main shopping from the home improvement center. A wide array of commercial services is available at this shopping center and in the surrounding area. In sum, the Fred Meyer shopping center at issue here is physically similar to those at issue in Dameron and Cargill, it is used for similar purposes, and the scope of its invitation to the public is equally broad. This evidence supports the trial court’s conclusion that the shopping center at issue here is a ‘large shopping center,’ as that term as been used in cases such as Dameron.”

153 Or App at 455. Thus, the lead opinion’s conclusion rests on (1) the size of the store, (2) the fact that it offers a wide variety of opportunities for consumers to spend their money, and (3) the fact that none of the entrances is accessible from a public sidewalk. The lead opinion never explains the freestanding constitutional significance of those factors either in the abstract or in the factual context of this case. The lead opinion, for example, states that the Foster Road store is “large.” How large is large enough to be constitutionally significant? The lead opinion similarly states that the store offers a wide variety of consumer products and attempts to persuade consumers to spend all their dollars on the premises. How wide is wide enough to create a constitutional *494 right? Manifestly, considering the factors that the lead opinion does in a constitutional vacuum leads to a decision that cannot satisfactorily be defended.

I turn then to the concurring opinion. As I understand it, the linchpin of the concurrence is the United States Supreme Court’s decision in Marsh . According to the concurrence, the rule of Marsh can be summarized by reference to the Court’s observation that:

“ ‘The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’ ”

153 Or App at 472 (quoting Marsh, 325 US at 506). The concurrence places great emphasis on the words “for his advantage”:

“It is the scope of the invitation to the public to use a shopping center for the property owner’s advantage that matters when determining whether initiative petitioners may exercise a limited right to gather signatures on private property.”

153 Or App at 477 (emphasis in original). In the view of the concurrence, it is that very broad reading of Marsh that the Supreme Court of this state adopted in Whiffen II. Accordingly, the concurrence then concludes that, because there is evidence that Fred Meyer “has invited the public to its [Foster Road] shopping center for its own advantage,” Fred Meyer cannot exclude the public from collecting initiative petition signatures at that store. Id.

My principal disagreement with the concurrence concerns its premise, that is, its broad reading of Marsh . In my view, the concurrence relies unduly on a single sentence extracted from its factual context. The concurrence acknowledges that Marsh involved a private landowner that treated its property as public property, but it contends that nothing in the United States Supreme Court’s analysis suggests that that is relevant to the inquiry. Such a reading of Marsh , however, is at odds with the decision itself, with subsequent United States Supreme Court cases and with our own Supreme Court’s reading of the opinion.

*495 As to the Marsh decision itself, the quotation on which the concurrence relies is followed by an explanation that makes clear the Court’s intentions:

“Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”

Marsh, 326 US at 506 (emphasis supplied). Thus, the focus of the Court’s analysis was not — as the concurrence suggests— merely the fact that the private landowner invited the public onto the property for its advantage, but instead that the private landowner invited the public to treat the property essentially as public property, to serve, in the Court’s words, “a public function.”

That reading is borne out by the Court’s subsequent cases, as I have endeavored to demonstrate in some detail. Although the Court flirted briefly -with a broader interpretation of the decision in Logan Valley Plaza , it later overruled Logan Valley Plaza and, in its Lloyd and Hudgens decisions, explained Marsh in precisely the terms that I have described. The point is critical, because it defines the state of the law at the time of the Oregon Supreme Court’s decision in Whiffen II and therefore defines what the court in that a case referred to when it “endorsed” the Marsh holding. To conclude that the Oregon Supreme Court actually intended to endorse in Whiffen II the Logan Valley Plaza view of the Marsh decision, as the concurrence suggests, requires an assumption that the court in Whiffen II intended to adopt — -without any explanation that it was doing so — a view of federal constitutional law that already had been abandoned by the federal courts.

That the Oregon court in Whiffen II did not adopt the concurrence’s view of Marsh also is borne out by subsequent decisions of the Oregon courts. In Huffman and Wright Logging Co. v. Wade, 317 Or 445 , 857 P2d 101 (1993), the court held that the First Amendment did not preclude an award of punitive damages for the defendants’ trespass on private property to protest a logging operation. The court explained:

*496 “[T]he First Amendment does not apply to private property that is not devoted to public use. For an owner of private property to be subject to the proscriptions of the First Amendment, the property must ‘assume to some significant degree the functional attributes of public property devoted to public use.’ Central Hardware Co. v. NLRB, 407 US 539, 547 , 92 S Ct 2238 , 33 L Ed 2d 122 (1972). Devotion of private property to public use requires, at a minimum, the owner’s invitation to the general public to enter the premises. See Marsh v. Alabama, 326 US 501, 506 , 66 S Ct 276 , 90 L Ed 265 (1946) (‘The more an owner * * * opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’).”

317 Or at 461 . If the concurrence is right about Marsh , then the Oregon Supreme Court simply was wrong in Huffman and Wright Logging Co. when it said that the First Amendment does not apply to private property unless the property “assume[s] to some significant degree the functional attributes of public property devoted to public use.” Id. In my view, the Oregon court was entirely correct.

Aside from my disagreement with the concurrence’s faulty premise, I am concerned about its consequences. The concurrence contends that the public right to collect initiative petition signatures on private property depends on whether the private property owner opens the property to the public “for his advantage.” Thus, in this case, the concurrence concludes that, because there is evidence that “Fred Meyer has invited the public to its shopping center for its own advantage and in the hope that its customers will give the store all of their shopping dollars!,]” Fred Meyer cannot exclude members of the public from the entrance to its Foster Road store. 153 Or App at 477. The same could be said, however, of virtually any commercial enterprise. Any retail store, from a “mom and pop” grocery store, to a “7-Eleven”-type convenience store, to a regional shopping center, invites the public to its premises for its advantage and in the hope that the public will spend as much money there as possible. To be sure, the concurrence is careful to describe its proposed rule of law solely with reference to “shopping centers.” My point is that there is no logical justification for limiting the rule in that *497 fashion, and such an extraordinarily sweeping rule finds no support in either federal or state case law.

In my view, the proper disposition of this case is to examine the legal significance of the facts as we did in Wabban, namely, to examine, in light of the factors described in the case law, “whether the premises, by reason of [the owner’s] express or implied invitation to the public, are a forum for assembly by the community.” Wabban, 142 Or App at 265 . In that light, the record in this case fails to reveal such an invitation. The Foster Road store does occupy 110,000 square feet. By itself, however, that factor has no significance. The store sits in isolation in the middle of a parking lot. It is not located in a “shopping center” in any reasonable sense of the term. As in Wabban, there is no evidence that the parking areas or any other areas are “places where the public is consistently invited to congregate for noncommercial purposes[.]” Id. at 266 . As in Wabban, those areas instead are used exclusively for ingress and egress by patrons. The store does provide a wide variety of consumer products. However, unlike the premises at issue in Whiffen I, Cargill and Whiffen II, there are no malls, no public benches, no gardens, no theaters, no meeting rooms, no public art displays, no fountains and no public bulletin boards. There are, in fact, none of the “common areas” to which the Supreme Court in Whiffen II said the right applies. There is no evidence of a broad invitation to the public to do anything other than purchase consumer goods. Such a limited invitation, in and of itself, is insufficient if the right to gather initiative petition signatures is not to extend to virtually any successful retail enterprise.

In short, in light of a less selective consideration of the relevant factual criteria and in the context of a constitutional rule that focuses on the extent of the premises owner’s express or implied invitation to the public, I conclude that, as a matter of law, the Foster Road Fred Meyer store is not subject to the right of the public to gather signatures pursuant to Article IV, section 1. Therefore, I would reverse the trial court on Fred Meyer’s cross-appeal on that ground.

Warren, Edmonds and Haselton, JJ., join in this dissent.

In so doing, the lead opinion appears to treat the issue as one of law. I agree that that is the appropriate standard of review in this case.

The concurrence suggests that my criticism of the California Supreme Court opinion in this regard is misplaced. It then quotes from the United States Supreme Court opinion in refutation of the criticism. 153 Or App at 474 n 1.1 do not understand how what the United States Supreme Court said answers my concern about the vagueness of the California Supreme Court’s opinion. In any event, the portion of the United States Supreme Court opinion that the concurrence quotes says only that the shopping center at issue in PruneYard is “a business establishment that is open to the public to come and go as they please[,]” an observation that would hold true for virtually any commercial enterprise. PruneYard Shopping Center v. Robins, 447 US 74, 87 , 100 S Ct 2035 , 64 L Ed 2d 741 (1980).

The lead opinion finds my recapitulation of the United States Supreme Court’s First Amendment case law “puzzling” and asserts that “it does not directly contribute to an analysis of initiative petitioning activity protected under Article IV, section 1[.]” 153 Or App at 457. The failure of the lead opinion to recognize the relevance of that case law is precisely one of my complaints with its analysis. The case law, in particular the United States Supreme Court’s narrow reading of Marsh in Lloyd and PruneYard, is quite relevant, for in the Oregon Supreme Court’s cases describing the activity protected under Article IV, section 1, the court explicitly made reference to, and relied on Marsh. See text at 487-88, below. Especially in light of the fact that the court has stated — without further explanation— that it is relying on the rationale in Marsh , it seems to me fairly important to determine what the United States Supreme Court actually said in that case.

The concurrence takes me to task for quoting from this court’s recitation of the facts and notes that “[t]he Supreme Court’s description in Whiffen I is devoid of reference to any noncommercial invitation to the public.” 153 Or App at 475 n 2. What the concurrence says certainly is true, but it also is of no moment. There was no need for the Supreme Court to mention the scope of the owner’s invitation because it did not decide the case on constitutional grounds. This court did.

This is not a novel or revisionist reading of Cargill. See, e.g., State v. Purdue, 111 Or App 586 , 589 n 2, 826 P2d 1037 (1992) (“In Cargill, we held that the constitutional right to circulate an initiative petition under Article IV, section 1, barred prosecution for trespass on private property when the owner of the property had invited the public to use that particular property for more than commercial activity so as to make the property a public forum.” (emphasis supplied)).

See, e.g., Ian J. McPheron, From the Ground to the Sky: The Continuing Conflict Between Private Property Rights and Free Speech Rights on the Shopping Center Front Seventeen Years After Pruneyard, 16 N Ill U L Rev 717, 732 (1996) (“Whiffen II did not add much to the substantive analysis of the issues * * * except to increase the number of states that allow access to shopping centers for the initiative process.”).

There is language in State v. Dameron, 316 Or 448 , 853 P2d 1285 (1993) that recalls the “large shopping center” rationale oí Logan Valley Plaza. The lead opinion that contains that language, however, is one of six separate opinions, and the case was resolved explicitly on nonconstitutional grounds. Dameron, 316 Or at 462 (“Because we decide this issue on a narrow and subconstitutional ground, it is not necessary for this court to draw the line for all time and for all future cases involving claims of constitutional rights to seek signatures on initiative petitions on private property.”).

The concurrence complains that I am too “offhanded! ]” in my reading of Dameron. 153 Or App at 478. According to the concurrence, a majority of the court agreed with the lead opinion’s rejection of the conclusion “that there is no state constitutional right to gather petition signatures on private property.” Id. (quoting Whiffen II, 316 Or at 462 ). The observation is correct enough. It is simply beside the point. Four justices may have agreed with the quoted conclusion, but only two agreed on the reason for it.

It is also how we characterized Whiffen I. Wabban, 142 Or App at 265 (describing Whiffen I as “holding that signature gatherers could not be enjoined from gathering signatures at the Lloyd Center because the Center’s invitation to the public ‘was broad and for more than commercial activity’ ” (quoting Whiffen I, 89 Or App at 637 )).

Oregon follows that basic principle of real property law. Illustrating the point is State v. Donahue, 93 Or App 341 , 762 P2d 1022 (1988), rev den 307 Or 303 (1989). In that case, a police officer followed a power company meter reader onto private property and, while on the property, saw evidence of a crime. Based in part on those observations, the officer obtained a warrant to search the premises. This court held that the observations could not be considered a basis for the issuance of the warrant, because the officer’s entry onto the land constituted trespass. In response to the state’s argument that there was implied permission to have individuals enter the area near the property owner’s meter, we held that:

“Although we can agree that there must be implied permission for a utility company employe[e] to come on the property, we do not agree that the implied permission constitutes an open-ended waiver of defendant’s privacy. The police officer went on the property for the purpose of obtaining evidence of a criminal law violation and was not acting within the scope of the implied permission for a meter reader to come on the property.”

Id. at 345 (emphasis supplied).

In PruneYard, the United States Supreme Court held that, although “there has literally been a ‘taking’ ” to the extent that the California Supreme Court required owners of private property to allow public signature gathering on their premises, because the physical invasion was of such a limited nature, no violation of the Fifth Amendment occurred. PruneYard, 447 US at 82-84 . In contrast, the Court decided two years later in Loretto v. Teleprompter Manhattan CATV Corp., 458 US 419 , 102 S Ct 3164 , 73 L Ed 2d 868 (1982), that a state law requiring landlords to permit the installation of a tiny cable television connection did constitute a violation of the takings clause of the Fifth Amendment. The Court purported to distinguish its PruneYard decision on the ground that the “invasion” in that case was “temporary and limited in nature!.]” Loretto, 458 US at 434 . The distinction has been criticized as less than persuasive. See, e.g., Laurence H. Tribe, American Constitutional Law 599-604 (2d ed 1988) (characterizing the rationale of Loretto as “lame” and commenting that the Court had “abandoned” its approach in Prune-Yard)-, Robert M. DiGiovanni, Note, Eminent Domain — Loretto v. Teleprompter Manhattan CATV Corp.: Permanent Physical Occupation as a Taking, 62 NCL Rev 153, 159 (1983) (Loretto is inconsistent with PruneYard).

*492 The Oregon Supreme Court appears not to have adopted the United States Supreme Court’s distinction of PruneYard and Loretto . In GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458 , 900 P2d 495 (1995), cert den 517 US 1155 (1996), the trial court declared unconstitutional a Public Utility Commission rule that required GTE to permit other local exchange telephone companies temporarily to “collocate” on GTE property connecting switching equipment. We held that the collocation rule did not constitute a taking under the Fifth Amendment, because the rule allowed only a temporary physical invasion. GTE Northwest, Inc. v. Public Utility Commission, 130 Or App 637, 644 , 883 P2d 255 , rev’d 321 Or 458 (1995). The Supreme Court reversed, citing Loretto . The court held that we had “misread[ ] the [United States] Supreme Court’s ‘physical invasion’jurisprudence.” GTE Northwest, Inc., 321 Or at 473 . According to the Supreme Court, “[t]he duration of the ‘taking’ by physical invasion is not relevant to the determination of whether a ‘taking’ has occurred.” Id. (emphasis in original).

If what the Oregon Supreme Court said in GTE about PruneYard and Loretto is correct, then the distinction between PruneYard and Loretto is a blurry one, indeed; and the Fifth Amendment may pose a more significant constraint on the extent to which state constitutions may permit interference with private property rights than recent cases have suggested. The Oregon Supreme Court seems to be saying that the most trivial of physical invasions — even temporary ones — constitute a taking under the Fifth Amendment. If so, then it seems to follow that requiring property owners to permit uninvited members of the public to use their property to collect petition signatures — even temporarily — would pose a significant takings problem.

The lead opinion finds my references to recent takings cases “puzzling.” 153 Or App at 457. It then attempts to demonstrate at length why “it simply does not follow that Fred Meyer could arrest Stranahan, a private citizen, because its constitutional rights were supposedly being violated by the state.” Id. at 457. In so doing, the lead opinion wastes much ink attacking a position that I do not take. My point is much simpler: The constitutional analysis that I propose — indeed, that I say exists in the case law already — has historical and conceptual roots in the common law of trespass and decisions relating to the federal and state takings clauses. The analysis that the lead opinion applies does not.

The size of a store, for example, has no independent significance. I dare say that a small country store with a pot-bellied stove and a checkers table around which members of the public have gathered for years to discuss the day’s events— without spending a dime — very likely would be regarded as a place to which the public has been invited for the purpose of noncommercial assembly. Similarly, the fact that a store may lease space to a tenant, by itself, means nothing. If such factors have relevance to the inquiry at all, it is only to the extent that it follows *493 that larger shopping centers with multiple tenants are more likely to have common areas to which the public can be invited to assemble for noncommercial purposes. Thus, the Supreme Court’s explicit limitation in Whiffen II that

“we do not hold that a person pursuing signatures may go ‘anywhere one pleases’ on the property of the Lloyd Center. We hold only that such persons may seek such signatures in the common areas of the Lloyd Center, subject to reasonable time, place and manner restrictions.”

Whiffen 77, 315 Or at 511 (emphasis supplied).