Petition for Writ of Certiorari — Fred Meyer, Inc. v. Casey

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No. CE OF ey eyes

In the

Supreme Court of the Gnited States

October Term, 1995

FRED MEYER, INC., a Delaware corporation,

Petitioner,

Vv.

WILLIAM CASEY, HERB L. GRAY, KEN BENJAMIN,

MIKE WILEY, LON MABON, PHILLIP Z. RAMSDELL,

NO SPECIAL RIGHTS COMMITTEE, . OREGON

CITIZENS ALLIANCE, JOHN DOES 1 through 50, and

JANE DOES 1 through 50,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Charles F. Hinkle*

*Counsel of Record

STOEL RI LLP

900 SW Fifth Avenue, Ste. 2300

Portland, OR 97204-1268

Telephone: (503) 224-3380

Counsel for Petitioner

February 15, 1996

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POP LC RNC.

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QUESTIONS PRESENTED

1. In Oregon, statutes and state constitutional

amendments are frequently proposed by initiative petition and

enacted by popular vote. When sponsors of initiative

petitions enter private property without the owner’s

permission to solicit signatures, and they make that entry

under authority granted to them by the state constitution, are

they acting “under color of” state law, within the meaning of

42 U.S.C. § 1983?

2. When the owner of a single, free-standing retail

store is compelled by the State to allow initiative petitioners

to stand next to the entrances of the store in order to promote

a particular viewpoint on a controversial political issue, has

the State violated the owner’s First Amendment rights?

3. When the owner of a single, free-standing retail

store is compelled by the State to allow initiative petitioners

to use its property for the purpose of soliciting signatures for

their petitions, has the State effected a taking of the owner’s

property without just compensation?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2.6.5 0.0502). ROS. i

TAREE OF AU FR Ss. FE ee ee iv

OPERONS BELOW. Sa 28 FP PAS 1

FURERCTON 2 oi ccs ees weet eae 1

STATUTORY PROVISIONS INVOLVED ........ 1

CONSTITUTIONAL PROVISIONS INVOLVED .... 2

STATEMENT OF THE CASS 2 2) 0.0 oe. 5

REASONS FOR GRANTING THE PETITION ...... 9

I. The Ninth Circuit’s Holding that Initiative

Petitioners Are Not State Actors Is

Contrary to This Court’s Precedents and

Conflicts with a Ruling of the Court of

Appeals for the District of Columbia

Circuit. It Effectively Prevents Fred

Meyer from Obtaining a Federal Court

Adjudication of its Federal Constitutional

TO. ns ss a ee eee ae 9

ill

II. No State, Other Than Oregon, Has

Required the Owner of a Single, Free-

Standing Store to Provide a Forum for

Initiative Petitioners. In Imposing that

Requirement, the Oregon Courts Have

Misread This Court’s PruneYard Opinion

and Violated Fred Meyer’s Rights Under

the Free Speech Clause of the First

Amendment and the Takings Clause of the

Tee ee es 16

SI Ge rts SN ke ws 25

EE RT au VL Ca iam A-1

OPINION (Ninth Circuit Court of Appeals,

a A-1

OPINION (District Court,

ee ee? oak Se PE A-25

ORDER (Ninth Circuit Denial of Rehearing,

dated November 17, 1995) .............. A-35

iV

TABLE OF AUTHORITIES

Cases Page

Alliance for Community Media v. F.C.C.,

56 F.3d 105 (D.C. Cir. 1995),

cert granted, 116 S.Ct. 471 (1995) ........... is, 12

Cohen v. Cowles Media Co., 501 U. S. 663 (1991)... 14

Dolan v. City of Tigard, 114 S. Ct. 2309 (1994) .... 25

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) . 10, 11

Judlo, Inc. v. Vons Companies, Inc.,

211 Cal.App. 3d 1020, 259 Cal. Rptr. 624 (1989) ... 16

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982) .. 13

Lloyd Corporation v. Whiffen,

315 Ore. 500, 849 P.24 446 (1993) ........... 8, 11

Loretto v. Teleprompter Manhattan CATV Corp. ,

450 U.S. See Cael sa ds 5 ks ce 12, 13, 19, 22

Nellan v. California Coastal Commission,

ae tras EE 8 Fc Fel ae a he 22-24

OEA v. Roberts, 301 Ore. 228, 721 P.2d 837 (1986) .. 11

Vv

Pacific Gas & Elec. v. P.U.C. of California,

GTS VS PE 6-65 ec RAO) BS < te 4 17, 18

PruneYard Shopping Center v. Robins,

WSs Bs: PO AN oa oe are 16-18, 20-22, 24

San Francisco Arts & Athletics, Inc. v.

United States Olympic Comm., 483 U.S. 522 (1987) .. 13

Smith v. Allwright, 321 U.S. 649 (1944) ........ 9, 11

State v. Cargill, 100 Ore. App. 336, 786 F.2d 208

(1990), aff'd by an equally divided court,

316 Ore. 492, 851 P.2d 1141 (1993) ........ 7, 8, 14

Terry v. Adams, 345 U.S. 461 (1953) ......... 10, 13

United States v. Classic, 313 U.S. 299 (1941) .. 9, 10, 15

Statutes lations

Ae CBee 6 oo we Dee ek 1

ie Ree as A 9 this: 4 aah s ia Geaelc Wipe aes Sa l

Ore. Admin. Rules 165-14-005 to 165-14-090 ...... 11

oe re ee ee 11

Cee: Tiev, BR. Be ise plidcn Bed lelcwtece « 12

v1

Ore. Rev. Stat. §§ 164.205(3), 164.245 .....

Ore. Rev. Stat. §§ 250.035, 250.065 ......

Constitutional Provisions

Oregon Constitution, Article IV, section] ...

United States Constitution, Fifth Amendment

United States Constitution, First Amendment .

~ ay bay BA,

16, 17, 19

16, 17, 19

PETITION FOR WRIT OF CERTIORARI

Petitioner Fred Meyer, Inc. respectfully petitions for

a writ of certiorari to review a judgment of the United States

Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 67 F.3d 1412 (1995), and is reprinted in

the appendix, p. A-1, infra. The opinion of the United States

District Court for the District of Oregon is reported at 781 F.

Supp. 1511 (D. Or. 1993), and is reprinted in the appendix, p.

A-25, infra.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on October 10, 1995. (A-3.) Petitioner’s

Petition for Rehearing was denied in an Order filed

November 17, 1995. (A-35.) The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

42 U.S.C. § 1983 provides in pertinent part as

follows: \

“Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any state ***, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

2

to the deprivation of any rights, privileges, or

immunities served by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. ***.”

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides, in part:

“#*** [Nor shall private property be taken

for public use, without just compensation.”

Article IV, section 1 of the Oregon Constitution

provides, in part:

“(1) ‘The legislative power of the state,

except for the initiative and referendum

powers reserved to the people, is vested in a

Legislative Assembly, consisting of a Senate

and a House of Representatives.

“(2)(a) The people reserve to themselves

the initiative power, which is to propose laws

and amendments to the Constitution and enact

or reject them at an election independently of

the Legislative Assembly.

“(b) An initiative law may be proposed

only by a petition signed by a number of

qualified voters equal to six percent of the

3

total number of votes cast for all candidates

for Governor at the election at which a

Governor was elected for a term of four years

next preceding the filing of the petition.

“(c) An initiative amendment to the

Constitution may be proposed only by a

petition signed by a number of qualified

voters equal to eight percent of the total

number of votes cast for all candidates for

Governor at the election at which a Governor

was elected for a term of four years next

preceding the filing of the petition.

“(d) An initiative petition shall include

the full text of the proposed law or

amendment to the Constitution. A proposed

law or amendment to the Constitution shall

embrace one subject only and matters properly

connected therewith.

“(e) An initiative petition shall be filed

not less than four months before the election

at which the proposed law or amendment to

the Constitution is to be voted upon.

“(3)(a) The people reserve to themselves

the referendum power, which is to approve or

reject at an election any Act, or part thereof,

of the Legislative Assembly that does not

become effective earlier than 90 days after the

end of the session at which the Act is passed.

4

“(b) A referendum on an Act or part

thereof may be ordered by a petition signed

by a number of qualified voters equal to four

percent of the total number of votes cast for

all candidates for Governor at the election at

which a Governor was elected for a term of

four years next preceding the filing of the

petition. A referendum petition shall be filed

not more than 90 days after the end of the

session at which the Act is passed.

“(c) A referendum on an Act may be

ordered by the Legislative Assembly by law.

Notwithstanding section 15b, Article V of this

Constitution, bills ordering a referendum and

bills on which a referendum is ordered are not

subject to veto by the Governor.

KKK

“(5) The initiative and referendum

powers reserved to the people by subsections

(2) and (3) of this section are further reserved

to the qualified voters of each municipality

and district as to all local, special and

municipal legislation of every character in or

for their municipality or district. The manner

of exercising those powers shall be provided

by general laws, but cities may provide the

manner of exercising those powers as to their

municipal legislation. In a city, not more than

15 percent of the qualified voters may be

5

required to propose legislation by the

initiative, and not more than 10 percent of the

qualified voters may be required to order a

referendum on legislation.”

STATEMENT OF THE CASE

Petitioner Fred Meyer, Inc. (“Fred Meyer”) operates

retail stores for the sale of groceries, apparel, and household

and variety items in seven western states. Approximately 40

of its stores are in Oregon. Without exception, Fred Meyer

stores in Oregon are freestanding, single buildings, situated on

property owned or leased by the company. None of them is

located in a large regional shopping center. They have no

auditoriums, gardens, fountains, malls, skating rinks, or any

other facilities that can be used by the public to congregaie or

assemble. Fred Meyer invites the public to enter its premises

for one purpose only: to buy the products it offers for sale.

The process of making laws by way of initiative

petition and popular vote was made a part of the Oregon

Constitution in 1902. In every general election year since

1904 (except 1966), measures have been placed on the ballot

by initiative petition, proposing new statutes or constitutionai

amendments. To place a measure on the statewide ballot, its

sponsors must obtain the signatures of the number of voters

equal to six percent (for a statute) or eight percent (for a

constitutional amendment) of the total number of votes cast for

Governor in the preceding election.

Fred Meyer, like the owners of other freestanding

retail stores in Oregon, has never permitted initiative

petitioning on its premises. In recent years, initiative

petitioners have insisted upon the right to use Fred Meyer’s

property, without its permission, to solicit its customers to sign

their petitions. Unlike large, multiple-tenant shopping centers,

Fred Meyer stores have no central mall or other common area,

and when initiative petitioners appear at Fred Meyer stores,

they station themselves immediately outside the main

entrances.

The company’s experience has been that the presence of

initiative petitioners at the entrances to its stores discourages

a significant number of customers from patronizing its stores.

It has received a large number of customer complaints about

the presence of such petitioners, many asking why the

company supports a particular cause by allowing its proponents

to use its property to gather signatures. Initiative petitions in

Oregon typically address extremely emotional and divisive

issues (initiative proposals relating to abortion, the death

penalty, obscenity, assisted suicide, equal rights for gay and

lesbian persons, and welfare reform have all appeared on the

Oregon ballot in recent years). Fred Meyer wishes to attract

customers who may have strong feelings on all sides of these

controversial issues, or who may simply wish to do their

grocery shopping without being importuned to sign a political

petition. Fred Meyer wants to be known as a good place to

buy bread and light bulbs and socks, not as a forum for

political activity, and it does not wish to have its name

associated with the controversial issues that are the subject of

the typical initiative petition in Oregon.

Respondents in this case were the proponents of two

initiative petitions aimed at restricting “gay rights.” In

7

December 1991, they entered the premises of several Fred

Meyer stores, without the company’s permission, stationed

themselves immediately outside the main entrances to the

stores, and began soliciting signatures from Fred Meyer

customers. Their presence elicited hundreds of customer

complaints and threats to boycott Fred Meyer stores as long as

the petitioners were present at the stores. Fred Meyer

personnel therefore directed respondents to leave Fred Meyer’s

property, and they refused to do so.

A refusal to leave premises that are open to the public

after being “lawfully directed” to do so is a criminal trespass

in Oregon. Ore. Rev. Stat. §§ 164.205(3), 164.245.

Respondents contended that these statutes did not apply to

them, because Article IV, section 1 of the Oregon Constitution

gave them a right to use Fred Meyer’s property for their

petitioning purposes. That section says nothing about creating

a right to enter private property for petitioning purposes.

Nevertheless, in 1990 the Oregon Court of Appeals held, in a

criminal trespass case involving six initiative petitioners who

refused to leave the premises of a Fred Meyer store, that the

right to gather signatures on private property that is open to

the public is “implicit” in Article IV, section 1. State v.

Cargill, 100 Ore. App. 336, 786 P.2d 208 (1990), aff’d by an

equally divided court, 316 Ore. 492, 851 P.2d 1141 (1993).

The court in that case reversed the trespass convictions of the

six petitioners, holding that Fred Meyer’s directive to them to

leave its premises was not “lawful” because that directive

violated their “implicit” constitutional right to carry out their

petitioning activity on Fred Meyer’s property.

8

When the respondents in this case entered Fred

Meyer’s property in late 1991 to carry out their petitioning

activity, therefore, Fred Meyer was unable “lawfully” to direct

them to leave, because the State of Oregon, in its Constitution

as construed in Cargill, compelled Fred Meyer to provide a

forum for them.'

1

Three years after the Oregon Court of Appeals

decided Cargill, the Oregon Supreme Court agreed (by a vote

of 4 to 3, in a case involving a large regional shopping

center) that there is a constitutional right, under Article IV,

section 1, to enter at least some kinds of private property for

the purpose of initiative petitioning. Lloyd Corporation v.

Whiffen, 315 Ore. 500, 849 P.2d 446 (1993). One of the

permanent members of the court recused herself from that

case, and the fourth and deciding vote was cast by a retired

justice sitting pro tem.

9

REASONS FOR GRA? TING THE PETITION

I. The Ninth Circuit’s Holding that Initiative

Petitioners Are Nou State Actors Is Contrary

to This Court’s Precedents and Conflicts with

a Ruling of the Court of Appeals for the

District of Columbia Circuit. It Effectively

Prevents Fred Meyer from Obtaining a

Federal Court Adjudication of its Federal

Constitutional Rights.

Three lines of precedent in this Court’s cases point to

the conclusion that initiative petitioners, when they invade

private property in order to gather signatures on their petitions,

are state actors.

A. Delegation of State Power to Private Individuals

When a state confers on private parties a power that

has traditionally been the exclusive prerogative of the

government, the private parties are state actors when they

exercise that power. That principle is as old as United

States v. Classic, 313 U.S. 299, 326 (1941): “Misuse of

power, possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state

law, is action taken ‘under color of’ state law.”

The Court amplified and applied that principle in

Smith v. Allwright, 321 U.S. 649 (1944), where it held that the

Fifteenth Amendment forbids the exclusion of black voters

from primary elections conducted by a private entity (the

Democratic Party of Texas). The Court in Allwright said that

10

Classic “makes clear that state delegation to a party of the

power to fix the qualifications of primary elections is

delegation of a state function that may make the party’s action

the action of the state.” Jd. at 660.

The Court came to a similar conclusion three years

later with respect to the “pre-primary” elections of the Jaybird

Democratic Association, an organization of white voters in

Texas whose candidates nearly always ran unopposed in the

subsequent primary and general elections. Terry v. Adams, 345

U.S. 461 (1953). The Court held that these pre-primary

elections were subject to the restrictions of the Fifteenth

Amendment even though there was a “complete absence” of

formal state connection to any of the activities of the

Association. /d. at 489 (Minton, J., dissenting).

Commenting on Jerry and Smith in Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149, 158 (1978), the Court stated

that “[w]hile many functions have been traditionally performed

by governments, very few have been ‘exclusively reserved to

the state.” [{] One such area has been elections.” But as

Terry and Smith demonstrate, even though elections are

“exclusively” the function of the state, it is possible for states

to permit private entities to conduct them. When that happens,

and private individuals are permitted to conduct the

“exclusive” state function of elections, those private

individuals become state actors, for “the conduct of the

elections themselves [remains] an exclusively public function.”

Flagg Bros., 436 U.S. at 158.

The same principle applies here. Laws are not made

by private individuals; they are made by the sovereign. In our

11

system of government, the state is sovereign. When private

individuals engage in “public lawmaking”? by circulating

petitions to put a proposed law on the ballot, they are engaged

in an “exclusively public function,” Flagg Bros., 436 U.S. at

158, just as much as the members of the legislature are when

they draft and debate proposed laws.

Furthermore, in Smith v. Allwright the Court stated

that extensive statutory control of primary elections in Texas

“makes the party which is required to follow these legislative

directions an agency of the state in so far as it determines the

participants in a primary election.” 321 U.S. at 663. A

similar conclusion is appropriate here, for the entire process of

initiative petitioning in Oregon is subject to detailed state

regulation. The form and content of the petition and the

method of gathering signatures must conform to strict statutory

and regulatory requirements. Ore. Rev. Stat. chapter 250;

Ore. Admin. Rules 165-14-005 to 165-14-090. Before

petitions are circulated, two of Oregon’s six state-wide elected

executive officials must participate in their preparation, and

often the State Supreme Court does so as well. The Secretary

of State must determine whether the measure satisfies the “one

subject” rule of the Oregon Constitution. OEA v. Roberts, 301

Ore. 228, 721 P.2d 837 (1986). The Attorney General must

prepare a ballot title for the proposed measure, which must

comply with detailed statutory requirements. Ore. Rev. Stat.

§§ 250.035, 250.065. Electors who are dissatisfied with the

2

The Oregon Supreme Court so described the

initiative petitioning process in Lloyd Corporation v. Whiffen,

307 Ore. 674, 684, 773 P.2d 1293 (1989).

12

Attorney General’s ballot title may, and frequently do, petition

the Supreme Court to change it. Ore. Rev. Stat. § 250.085.

The initiative petitioning process in Oregon is thus

subject to extensive statutory control, and as with the primary

election process at issue in Smith v. Allwright, that control

makes the individuals who are subject to it agents of the state

in so far as they determine which proposed laws will be

presented to the voters for their approval.

B. State Authorization for Private Individuals to

Invade Private Property.

In this case, the State of Oregon has not merely

delegated the public function of lawmaking to private

individuals; it has also authorized them to enter private

property when they carry out that function. When private

individuals take advantage of that authorization, and invade

private prope:ty, they act “under color of” state law. That

principle is illustrated by Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982). In that case, a New York

Statute required landlords to permit cable television companies

to install their cables and related equipment on the landlord’s

property. The state did not compel the private cable

companies to make that invasion; it simply authorized the

invasion, and compelled the property owner to accept it. This

Court concluded that the Takings Clause of the Fifth

Amendment applied to that invasion of private property by a

private company, and the private company was clearly acting

“under color of” state law when it carried out that invasion.

13

The state action aspect of Loretto was recently

described by the Court of Appeals for the District of Columbia

Circuit as follows:

“State action existed in both of those cases

[that is, Loretto and Larkin v. Grendel’s Den,

Inc., 459 U.S. 116 (1982)] because the

government conferred on private parties

power that ‘traditionally had been the

exclusive prerogative’ of the government

(San Francisco Arts & Athletics, Inc. v.

United States Olympic Comm. , 483 U.S. 522,

544 (1987)), in Larkin the power to veto

liquor licenses, in Loretto the power to enter

an occupied private property without the

owner’s consent.” Alliance for Community

Media v. F.C.C., 56 F.3d 105, 113 (D.C.

Cir. 1995), cert granted, 116 S.Ct. 471

(1995).

That is exactly what has happened in this case: state

law (here, the state constitution) has conferred on private

parties the power to enter Fred Meyer’s private property in

order to carry out their law-making activity, and at the same

time it has compelled Fred Meyer to provide a forum on its

property for that law-making activity. Under Smith, Terry,

and Loretto, the respondents in this case were acting “under

color of” state law when they invaded Fred Meyer’s property

for that purpose.

14

C. Application of State Rules of Law to Restrict

Constitutional Rights

If Fred Meyer were to use self-help to protect its

property rights, by placing initiative petitioners under arrest

for trespass or forcibly removing them from its property, the

petitioners would be able to use Oregon’s judicial system to

stop Fred Meyer from doing so. They could sue Fred Meyer

for false arrest (one such case recently resulted in a jury award

of damages against the company, after the trial judge

instructed the jury, in reliance on State v. Cargill, that Fred

Meyer’s directive to a petitioner to leave its property was not

“lawful” and that therefore her subsequent arrest for trespass

was “false”), or they could sue the company for declaratory

and injunctive relief, requiring it to allow them on its property.

They would thus be using the judicial power of the state in a

manner that would violate Fred Meyer’s Fifth Amendment

right not to have its property taken without just compensation.

When legal obligations are enforced through the “official

power of [state] courts[,] *** that is enough to constitute ‘state

action’ for purposes of the Fourteenth Amendment.” Cohen v.

Cowles Media Co., 501 U. S. 663, 668 (1991).

D. The Error in the Ninth Circuit’s Reasoning

The Ninth Circuit erred in concluding that respondents

were not acting under color of state law when they invaded

Fred Meyer’s property. That court reasoned that Fred Meyer

might still be able to obtain injunctive relief against some

petitioners in some circumstances, and that therefore the

respondents in this case who entered Fred Meyer’s property in

15

order to gather signatures were not acting under color of state

law. That conclusion is a non sequitur. As Judge Reinhardt

correctly pointed out in his concurring opinion (A-12), the

question of whether Fred Meyer can obtain injunctive relief or

ask the state to prosecute petitioners for criminal trespass is

irrelevant to the issue of whether the defendants are state

actors. The evidence in this case was uncontradicted that these

respondents did enter Fred Meyer’s premises and solicited its

customers to sign their initiative petitions, causing significant

disruption to Fred Meyer’s business while they did so; and the

only reason they were able to do so was that they were

“clothed with the authority of state law,” United States v.

Classic, 313. U.S. at 326 -- in this case, the Oregon

Constitution. The issue here is not, as the majority of the

Ninth Circuit panel seemed to conceive it, what may happen

with respect to other petitioners on other occasions; the issue

is whether in this case, these petitioners were acting under

color of state law when they invaded Fred Meyer’s property.

Plainly they were.

The Ninth Circuit’s erroneous view of this Court’s

“state action” precedents conflicts with the correct view of

those precedents set out in the District of Columbia Circuit’s

opinion in Alliance for Community Media v. F.C.C. The

Court should grant certiorari to resolve the conflict.

16

II. No State, Other Than Oregon, Has Required

the Owner of a Single, Free-Standing Store to

Provide a Forum for Initiative Petitioners. In

Imposing that Requirement, the Oregon

Courts Have Misread This Court’s PruneYard

Opinion and Violated Fred Meyer’s Rights

Under the Free Speech Clause of the First

Amendment and the Takings Clause of the

Fifth Amendment.

In PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), the Court rejected Free Speech and Takings Clause

challenges to a ruling by the California Supreme Court that the

California Constitution protects speech and petitioning in

privately owned shopping centers. In the 16 years since

PruneYard was decided, the courts of the various states have

divided sharply on the question of whether their state

constitutions confer a right on private individuals to enter the

private premises of large regional shopping centers in order to

solicit signatures on petitions.

However, no reported appellate court decision in the

nation has extended the PruneYard principle to a single

freestanding store, except for the decisions of the Oregon

courts with respect to Fred Meyer stores. In California itself,

for example, where a state constitutional right to use shopping

center premises for expressive purposes was first recognized,

the courts have limited that ruling to large regional shopping

centers and have held that individual retail stores, similar to

Fred Meyer stores, are not public forums, even when they are

located in a small strip mall. Judlo, Inc. v. Vons Companies,

Inc., 211 Cal. App.3d 1020, 259 Cal. Rptr. 624 (1989).

17

By requiring Fred Meyer to provide a forum for

initiative petitioning on the premises of its single, freestanding

stores, the Oregon courts have misapplied this Court’s decision

in PruneYard, and in doing so have violated Fred Meyer’s

rights under the Free Speech Clause of the First Amendment

and the Takings Clause of the Fifth Amendment.

A. When the State of Oregon Requires Fred Meyer

to Provide a Forum for Initiative Petitioners, It

Violates Fred Meyer’s Rights Under the First

Amendment.

In Pacific Gas & Elec. v. P.U.C. of California, 475

U.S. 1, 11 (1986), the Court reiterated the principle that the

First Amendment protects both a right to speak and “a

concomitant freedom not to speak publicly.” (Emphasis in

original; internal quotation marks and citation omitted.) Under

the First Amendment, “the State is not free *** to force

[someone] to respond to views that others may hold,” id. at

11, and “[flor corporations as for individuals, the choice to

speak includes within it the choice of what not to say.” /d. at

16. Under those principles, the Court held that California

could not require a utility to carry in its own billing envelopes

messages from a citizens group with which it disagreed.

In PruneYard, the Court held that California did not

violate a shopping center owner’s right “not to speak” when

the state required the owner to permit a group of high school

students to set up a card table in one corner of a central

courtyard known as the “Grand Plaza” to distribute pamphlets

and solicit support for a petition opposing a United Nations

resolution. In that case, however, there was no evidence that

18

patrons of the shopping center objected to the students’

presence, 447 U.S. at 77; there was no likelihood that the

students’ message would be associated with the shopping

center, id. at 87; and (as the Court later noted) “the owner did

not even allege that he objected to the content of the

pamphlets.” Pacific Gas & Elec., 475 U.S. at 12. Moreover,

Justice Powell’s concurring opinion emphasized that the

Court’s decision was tied to the particular facts of the case

before it, PruneYard, 447 U.S. at 96, and that if the record

established that the third party’s views were likely to be

associated with those of the shopping center, then the shopping

center would be forced to speak in violation of its right not to

speak. Jd. at 101. “On the record before us,” he said, “I

cannot say that the customers of this vast center would be

likely to assume that the appellees’ limited speech activity

expressed the views of PruneYard or of its owner.” Id.

The record in this case reveals a very different set of

facts. Where a shopping center is a diffuse entity with scores

of stores and shops owned and operated by many different

persons and entities, there may be little risk that customers

will identify the views of third parties who use the center’s

common areas with the views of the center’s owner. Fred

Meyer stores, however, are not diffuse entities, and the

evidence in the record here showed that when initiative

petitioners solicit signatures right outside the main entrance to

its stores, the Fred Meyer name becomes associated with their

particular causes--causes that are controversial and divisive.

Many customers assume that Fred Meyer supports the

petitioners’ cause whenever any petitioners appear at its stores,

and in this particular case, the Company received hundreds of

19

customer complaints, and threats to boycott its stores, as long

as the respondents were present at the stores.

Fred Meyer does not wish to be identified in any way

with the controversies surrounding those causes, but if it is

required to provide a forum for the expressions of views on

these issues, it would be required to speak when it would

prefer not to speak, simply in order to disassociate itself from

those views. By requiring Fred Meyer to provide a forum for

initiative petitioners, therefore, the State of Oregon has

violated its First Amendment right not to speak, not to be

associated with particular political points of view, and not to

subsidize or. appear to endorse the political speech of other

persons.

B. This Court’s Recent Takings Clause Decisions

Demonstrate that By Requiring the Owners of

Single Freestanding Stores to Provide a Forum for

Initiative Petitioning, the State of Oregon is

Taking the Owners’ Property without Just

Compensation in Violation of the Fifth

Amendment.

“[A] permanent physical occupation authorized by

government is a taking without regard to the public interests

that it may serve.” Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. at 426. The Oregon Constitution, as

construed by Oregon’s appellate courts, requires Fred Meyer

to provide a permanent, year-round forum for initiative

petitioning activity. That fact, together with the physical

characteristics of Fred Meyer stores (which make the presence

of initiative petitioners far more intrusive than they are at a

20

large regional shopping center), distinguishes this case from

PruneYard, where the Court held that a taking had not

occurred, and shows why a taking Aas occurred in this case.

First, the intrusion in PruneYard was brief and

insignificant: it consisted of a single act of soliciting

Signatures by a group of high school students who set up a

card table in a corner of the central courtyard of the shopping

center to gather signatures on a petition directed to the United

Nations. There was no evidence in the record that the

students, or any other group, wanted to return to PruneYard

to solicit signatures. 447 U.S. at 83-84 (majority opinion);

id.at 96 (Powell, J., concurring). In contrast, the evidence

here is that initiative petitioners seek access to Fred Meyer’s

property on a year-round basis. Requiring Fred Meyer to

permit such repeated physical invasions of its property

constitutes precisely the type of extended, continuous physical

invasion that the Court found to constitute a taking in Loretto.

Second, Fred Meyer stores are not like the Prune Yard

Shopping Center. The PruneYard Center covered 21 acres

occupied by walkways, plazas, sidewalks, and buildings

containing more than 65 separate retail shops, 10 restaurants,

and a movie theater. In contrast, Fred Meyer stores have no

central plaza or any other common areas that resemble public

sidewalks in a business district. Rather, Fred Meyer stores are

single free-standing buildings with two or three principal

entrances leading to an adjacent parking lot. Shoppers who

patronize the stores in a large regional shopping center may

not even be aware of the presence of petitioners in the

typically vast common areas of such centers, but everyone who

patronizes a Fred Meyer store must pass immediately by, or

21

take evasive action to avoid, the petitioners stationed at Fred

Meyer’s doors.

Third, the presence of initiative petitioners at the

entrances to Fred Meyer stores has caused a substantial

number of customer complaints. This increased interference

with the owner’s use of its property demonstrates that a taking

has occurred, a conclusion supported by Justice Powell’s

concurrence in Prune Yard:

“*** T join Parts I-IV [of the Court’s

Opinion] on the understanding that our

decision is limited to the type of shopping

center involved in this case. Significantly

different questions would be presented if a

State authorized strangers to picket or

distribute leaflets in privately owned,

freestanding stores and commercial premises.

Nor does our decision today apply to all

‘shopping centers.” This generic term may

include retail establishments that vary widely

in size, location, and other relevant

characteristics. Even large establishments

may be able to show that the number or type

of persons wishing to speak on their premises

would create a substantial annoyance to

customers that could be eliminated only by

elaborate, expensive, and _ possibly

unenforceable time, place, and manner

restrictions. As the Court observes, state

power to regulate private property is limited

to the adoption of reasonable restrictions that

22

‘do not amount to a taking without just

compensation or contravene any other federal

constitutional provision.’” 447 US at 96-97.

The limitation on the Prune Yard holding suggested by

Justice Powell’s concurrence has been fully borne out in the

Court’s more recent decisions under the Takings Clause.

First, in Loretto v. Teleprompter Manhattan CATV Corp.,

supra, the Court held that a taking had occurred when New

York authorized Teleprompter to string 36 feet of 1/2 inch

coaxial cable and to place two switch boxes, all amounting to

about 1 1/2 cubic feet of material, on a private building. The

Court drew a distinction between governmental regulation and

governmental activities which amount to a physical occupation

of property (either directly or by authorizing others to do so).

The distinction lies in the fact that “a physical invasion [of

property] is a government intrusion of an unusually serious

character.” 458 U.S. at 433 (footnote omitted). The Court

also made it clear that physical occupation authorized by state

law is a taking regardless of whether the state, or a party

authorized by the state, is the occupant. 458 U.S. at 433 n.9.

Second, in Nollan v. California Coastal Commission,

483 U.S. 825 (1987), the Court overturned a permit condition

of the California Coastal Commission which required a

property owner to grant a public easement over a portion of

the owner’s property as a condition for securing a building

permit. Prior to reaching the regulatory taking analysis,

however, the Court stated that if the state had affirmatively

required the property owner to grant an easement (as opposed

to conditioning a permit approval upon grant of an easement),

such action would clearly have constituted a physical taking:

23

“Had California simply required the

Nollans to make an easement across their

beach front available to the public on a

permanent basis in order to increase public

access to the beach, rather than conditioning

their permit to rebuild their house on their

agreeing to do so, we have no doubt there

would have been a taking.” 483 U.S. at 831.

The court noted that for purposes of determining whether a

physical taking has occurred, the appropriate analysis is

whether the State has authorized a permanent right to pass

through real property. It is not necessary to a physical taking

that a particular individual or individuals be permanently

located upon the property.

“We think a ‘permanent physical

occupation’ has occurred, for purposes of that

rule [Loretto], where individuals are given a

permanent and continuous right to pass to and

fro, so that the real property may continuously

be traversed, even though no particular

individual is permitted to station himself

permanently upon the premises.” 483 U.S. at

832.

Nollan distinguished PruneYard on the ground that

“there the owner had already opened his property to the

general public, and in addition permanent access was not

required.” 483 U.S. at 832 n.1. This case is distinguishable

from PruneYard for similar reasons: the evidence here showed

(a) that Fred Meyer has opened its property to the general

24

public only for the business purpose of shopping at its stores,

and not for browsing, congregating, assembling, window-

shopping, being educated or entertained, or for any of the

other activities that may take place at a large regional shopping

center, and (b) that initiative petitioners seek access to Fred

Meyer’s premises on a year-round basis--in effect, a permanent

easement for political activity.

If the Oregon Legislature were to commandeer Fred

Meyer’s property to use as a meeting place to carry out its

legislative function, no one would doubt that a taking had

occurred. When respondents commandeered Fred Meyer’s

property for the purpose of carrying out their legislative

function, there is likewise no doubt that a “taking” has

occurred.

Less than two years ago, in a case also arising from

Oregon in which the Court rejected the Oregon Supreme

Court’s erroneously narrow view of the Takings Clause, the

Court observed that that clause is “as much a part of the Bill

of Rights as the First Amendment or the Fourth Amendment,”

and it reiterated that the “right to exclude others is ‘one of the

most essential sticks in the bundle of rights that are commonly

characterized as property.”” Dolan v. City of Tigard, 114 S.

Ct. 2309, 2320 (1994) (citation omitted). The Court should |

grant certiorari in this case in order to make it plain that a

state may not compel the owner of a single freestanding retail

store to provide a forum on its property for the political

activity of initiative petitioners.

Ee

25

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Charles F. Hinkle*

STOEL RIVES LLP

900 SW Fifth Avenue, Ste. 2300

Portland, OR 97204-1268

Telephone: (503) 224-3380

*Counsel of Record for Petitioner

February 15, 1996

APPENDIX

A-l

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED MEYER, INC., a )

Delaware corporation, ) Court of Appeals

) No. 92-35067

Plaintiff-Appeliant, )

) District Court

v. ) No. 91-1320-FR

)

WILLIAM CASEY; ) OPINION

HERB L. GRAY; KEN )

BENJAMIN; MIKE )

WILEY; LON MABON; )

PHILLIP Z. RAMSDELL, )

NO SPECIAL RIGHTS )

COMMITTEE; OREGON _)

CITIZENS ALLIANCE; )

JOHN DOES 1 Through 50; )

JANE DOES, 1 Through )

)

)

)

50,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Helen J. Frye, District Judge, Presiding

Argued and Submitted

November 5, 1993 -- Portland, Oregon

Decided October 10, 1995

A-2

Before: Reinhardt, Brunetti, and Fernandez,

Circuit Judges.

Opinion by Judge Brunetti;

Concurrent by Judge Reinhardt.

COUNSEL

Bruce R. McCain, Portland, Oregon, for defendants-appellees.

Charles F. Hinkle, Stoel Rives Boley Jones & Grey, Portland,

Oregon, for the plaintiff-appellant.

OPINION

BRUNETTI, Circuit Judge:

I, INTRODUCTION

Appellant Fred Meyer, Inc. (“Fred Meyer”) brought

a 42 U.S.C. § 1983 claim against appellee defendants. Fred

Meyer is a Delaware corporation which operates approximately

forty freestanding, large retail stores in Oregon. The

defendants are organizers and proponents of two initiative

petitions. The district court dismissed the action for failure to

state a claim, because it found that Fred Meyer failed to show

that defendants were acting under color of state law. This

Appeal followed. We review the district court’s dismissal de

novo. See Del Monte Dunes at Monterey, Ltd. v. City of

Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990); Bergquist v.

County of Cochise, 806 F.2d 1364, 1367 (9th Cir. 1986). We

affirm.

A-3

Il, FACTUAL BACKGROUND

Beginning on December 14, 1991, certain of

defendants entered onto properties of Fred Meyer without its

permission to solicit signatures of registered voters to qualify

two initiatives for election. The first initiative for which the

defendants sought signatures would have amended the charter

of the City of Portland to restrict the ability of the City of

Portland to pass or enforce laws related to the sexual

orientation of any person. The second initiative for which

defendants sought signatures would have amended the Oregon

Constitution in a similar fashion. Several defendants stood

outside the main entrances of various Fred Meyer stores asking

shoppers to sign the petitions. When these defendants started

soliciting signatures, customers of Fred Meyer began

complaining and threatening to boycott Fred Meyer stores and

to return prior purchases for refunds. Many customers

believed that Fred Meyer was sanctioning the petitions by

“allowing” the defendants to remain on its properties. Fred

Meyer, however, opposed the presence of the defendants on its

properties and has maintained a consistent policy of forbidding

all persons, regardless of their cause, from soliciting signatures

for initiative petitions on Fred Meyer properties.

In the past, when persons entered the properties of

Fred Meyer to solicit signatures for initiative petitions, it

would ask them to leave. Fred Meyer’s consistent policy has

been to seek civil injunctions against petitioners who refuse to

leave its premises and to lobby against bills introduced in

Oregon legislative sessions which create a statutory privilege

to petition on private property. In addition, Fred Meyer has

A-4

called the police and had petitioners arrested for criminal

trespass.

Iti. DISCUSSION

A. 42 U.S.C. § 1983

[1] Fred Meyer brought this action under § 1983

which provides in part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress.

42 U.S.C. § 1983 (1988). Under this section, Fred Meyer

must allege and prove that (1) defendants acted or are acting

under color of the laws of Oregon; (2) defendants deprived

Fred Meyer of a right secured by the Constitution or laws of

the United States. See Flagg Bros., Inc. v. Brooks, 436 U.S.

149, 155, 98 S. Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978).

Fred Meyer contends that defendants were and are

acting under color of the laws of Oregon, since the defendants _

claim the right to enter the properties of Fred Meyer by virtue

of the decision of the Oregon Court of Appeals in State v.

A-5

Cargill, 100 Or.App. 336, 786 P.2d 208 (1990), aff'd by an

equally divided court, 316 Or. 492, 851 P.2d 1141 (1993).

Fred Meyer argues that it has met the second of the

§ 1983 requirements because defendants have violated several

of its Constitutional rights. First, Fred Meyer claims that it

has a § 1983 claim against defendants because it has a right

under the First Amendment to the United States Constitution

not to be associated with the speech and ideas of defendants.

Second, Fred Meyer alleges that defendants’ actions amount to

a “taking”of its property without just compensation as

prohibited by the Fifth and Fourteenth Amendments to the

United States Constitution.

Because we find that Fred Meyer failed to satisfy the

first requirement that defendants are acting under color of state

law, we affirm the district court’s dismissal of this action.

Like the district court, we need not decide whether the second

requirement has been satisfied, although we note that the

Supreme Court’s decision in PruneYard Shopping Center v.

Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L.Ed.2d 741

(1980), would appear to preclude Fred Meyer’s claim.

B. STATE vy. CARGILL

In Cargill, the defendants solicited signatures on

sidewalks outside the entrances of a Fred Meyer store in

Portland. After refusing to obey the directive of Fred Meyer

to leave its property, the defendants were arrested and

subsequently convicted of criminal trespass in the second

degree.

A-6

The Oregon Court of Appeals reversed defendants’

convictions, holding that Article IV, section 1 of the Oregon

Constitution’ “prohibits using a criminal prosecution to prevent

the people from collecting signatures on initiative and

referendum petitions in areas that have replaced traditional

forums for the collection of signatures, so long as there is no

substantial interference with the owner’s use of the property

for business or other purposes.” Jd. 786 P.2d at 215. The

court stated that “[p]rosecuting defendants for criminal trespass

for refusing to obey a direction [of Fred Meyer] to leave the

entrance of the store under these circumstances would render

inadequate the people’s opportunity to function in their

legislative role and would violate Article IV, section 1.” Jd.

At 214-15. The court found that “[t]he Fred Meyer store at

which defendants were arrested is a modern replacement for

the town square or park. It is open to the public, and citizens

are invited to come and congregate on the premises.” Jd. At

212. Significantly, the court concluded that Fred Meyer itself

had opened its property to the public.

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. Notwithstanding the company’s apparent

policy against allowing petitioners on its property, there is no

evidence that defendants’ activities substantially interfered with

Fred Meyer’s commercial activity, had a serious economic

> This section of the Oregon Constitution authorizes

initiative and referendum. See Or. Const. art. IV, § 1.

A-7

impact on the company or interfered with its “reasonable

investment backed expectations.”

C. STATE ACTION

[2] Fred Meyer’s § 1983 claim requires a showing

that defendants are acting under “color of state law.” The

Supreme Court has stated that “conduct Satisfying the state-

action requirement of the Fourteenth Amendment satisfies the

Statutory requirement of action under color of state law.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102

S. Ct. 2744, 2752 n. 18, 73 L.Ed.2d 482 (1982). In Lugar,

the Court established a two-part state action test to determine

if conduct that allegedly caused the deprivation of a federal

right could be fairly attributable to the State. The two

requirements are that:

First, the deprivation must be caused by

the exercise of some right or privilege created

by the State or by a rule of conduct imposed

by the State or by a person for whom the

State is responsible.... Second, the party

charged with the deprivation must be a person

who may fairly be said to be a state actor.

Id. At 937, 102 S. Ct. At 2754.

In this case, the first prong of the state action test is

met, since the Oregon Constitution authorizes defendants’

obtaining signatures for the initiative and referendum process.

However, the defendants are not state actors, and thus the

second prong is not met.

A-8

Describing this second prong, the Supreme Court has

stated that an individual may be a state actor “because he is a

state official, because he has acted together with or has

obtained significant aid from state officials, or because his

conduct is otherwise chargeable to the State.” Jd. Applying

this test, the Court examined the following: “the extent to

which the actor relies on governmental assistance and benefits;

whether the actor is performing a traditional governmental

function; and whether the injury caused is aggravated in a

unique way by the incidents of governmental authority.”

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 621-22,

111 S. Ct. 2077, 2083, 114 L.Ed.2d 660 (1991) (citations

omitted).

[3] In this case, the defendants are private citizens and

entities, not state officials or employees. However, Fred

Meyer argues that defendants are state actors because the State

of Oregon, acting through its court system by virtue of

Cargill, provides the defendants’ sole authorization for their

use of its property. Fred Meyer believes that defendants have

the right to collect signatures in front of its stores only because

of this “significant aid” from state officials, and it contends

that the State thus requires it to provide a forum for

defendants’ activity.

We disagree. Cargill does not merit a finding that the

defendants in this case were state actors. The Oregon courts

have limited the application of Cargill. See State v. Dameron,

316 Or. 448, 853 P.2d 1285, 1289 n. 7 (1993) (“Although

Cargiil could be read expansively to apply to every Fred

Meyer store in Oregon and, by inference, to every comparable

retail store, the Court of Appeals since has made it clear that

A-9

an expansive reading of Cargill was not intended.”); see also

Fred Meyer, Inc. v. McDonald, 112 Or.App. 321, 828 P.2d

1054 (1992), rev. den., 316 Or. 382, 852 P.2d 839 (1993).

Moreover, Fred Meyer, which has opened its properties to the

public, still has the options to restrict petitioning in front of its

stores.

Cargill leaves room for the case in which Fred Meyer

could ask the State to prosecute individuals for criminal

trespass if it could show substantial business interference with

its property. Cargill, 786 P.2d at 215. Thus, Fred Meyer

cannot assume that the State would not prosecute solicitors for

criminal trespass if they substantially interfered with business.

Fred Meyer also argues that after Cargill and the

subsequent case of Fred Meyer, Inc. v. McDonald, it cannot

even obtain a civil injunction to prevent solicitation of

signatures in front of its stores. In McDonald, the trial court

held that based on Cargill, it could not issue Fred Meyer a

civil injunction. See Fred Meyer, Inc. v. McDonald,

No. 9003-01409 (Multnomah County Cir.Ct. May 4, 1990).

However, the Oregon Court of Appeals reversed the trial

court’s decision in McDonald, holding that “Cargill is limited

by its facts. It involved a single store at which the defendants

were arrested for criminal trespass. The trial court was not

bound to come to the same conclusion just because the

Signature gatherers were located at [Fred Meyer] stores.”

McDonald, 828 P.2d at 1055. Thus, Fred Meyer is incorrect

to assume that Cargill precludes it from obtaining a civil

injunction. In fact, Fred Meyer obtained a preliminary

injunction from a state court against the defendants in this case

because it showed that defendants’ petitioning caused a

A-10

substantial interference with business. See Fred Meyer v.

Casey, No. 9112-08270, (Multnomah County Cir.Ct. Order of

Preliminary Injunction January 13, 1992). The state court’s

issuance of the injunction shows that the courts will treat Fred

Meyer stores and the specific facts of each case individually.

Other courts have also supported the issuance of civil

injunctions restricting solicitation of ballot signatures, further

suggesting that Cargill is limited to its facts. In Lloyd Corp.,

Ltd. v. Whiffen (Whiffen II), 315 Or. 500, 849 P.2d 446,

454-55 (1993) (internal quotations omitted), the Oregon

Supreme Court accepted the principle that although the

plaintiff could not obtain “an injunction to prohibit peaceful

solicitation of signatures in the mall or on its walkways that

does not substantially interfere with the commercial activity of

the premises ... defendants’ right to gather signatures in the

common areas of [plaintiff's center] are subject to reasonable

time, place, and manner restrictions.” This principle allows

courts to

issue an injunction imposing reasonable

restrictions on any attempted possession (e.g.,

setting up card tables) by defendants of any

part of plaintiff's premises and may also place

reasonable restrictions on the time, place, and

manner of seeking petition signatures in

plaintiff's mall or on its walkways so as to

reduce or eliminate interference and

distraction, short of confining signature

solicitors to the least traveled byways and to

times when few people are at the [mall]. The

Ee

A-11

number of petition signature-gatherers may

also be limited.

Lloyd Corp., Ltd. v. Whiffen (Whiffen I), 307 Or. 674, 773

P.2d 1294, 1301 (1989). Thus, Fred Meyer is incorrect to

state that it does not have any recourse to limit the actions of

solicitors of ballot signatures.

On the basis of our holding, Fred Meyer’s argument

that the defendants, who are private actors, became state actors

because they solicited signatures only with the help of state

authority is without merit, and its attempt to parallel its action

to such cases is unpersuasive. See Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L.Ed.2d

660 (1991); U.S. v. DeGross, 960 F.2d 1433, 1440 (9th Cir.

1992). In addition, Fred Meyer’s claim that defendants are

state actors because they engaged in a traditional state function

fails, since legislation in Oregon is not the exclusive

prerogative of the state. See Rendell-Baker v. Kohn, 457 U.S.

830, 842, 102 S. Ct. 2764, 2771-72, 73 L.Ed.2d 418 (1982).

IV. CONCLUSION

The district court properly dismissed Fred Meyer’s action.

The defendants in this case are not state actors by virtue of the

Oregon Court of Appeals’ decision in Cargill, since Cargill is

limited to its facts, allows Fred Meyer to limit solicitation of

ballot signatures in front of his stores, and specifically states

that Fred Meyer itself opened its properties by extending a

broad invitation to the public. Oregon is not providing

significant aid to the defendants; it is Fred Meyer and not the

State of Oregon that created a public forum where defendants

A-12

in this case solicited signatures. Fred Meyer has not alleged

the requisite state action and thus has not stated a cognizable

§ 1983 claim.

AFFIRMED.

REINHARDT, Circuit Judge, concurring:

The question in this case is whether private individuals

gathering signatures on Fred Meyer’s property are state actors.

I agree with the majority that they are not and, therefore, that

the district court properly dismissed Fred Meyer’s section

1983 claim. I do not, however, agree with the majority’s

confusing and misleading explanation of why the defendants

are not state actors. My colleagues make the problem far

more complicated than it is, rely on the wrong law, and leave

the erroneous impression that our answer might be different

but for the niceties of Oregon appellate court decisions.

My colleagues reach their conclusion for two

overlapping and equally irrelevant reasons: first, that the right

of access to certain property articulated in State v. Cargill, 100

Or.App. 336, 786 P.2d 208 (1990), aff'd by an equally divided

court, 316 Or. 492, 851 P.2d 1141 (1993), has been limited by

later Oregon state court cases; second, that Fred Meyer may

impose reasonable time, place and manner restrictions on the

activities of signature-gatherers. Rather than resting on these

wholly irrelevant grounds, the first of which has the additional

vice of being based on an erroneous reading of Oregon court

decisions, I prefer to rely on elementary principles of law

regarding the distributions of powers between the people and

A-13

their government, as well as non-controversial and controlling

United States Supreme Court precedent.

The whole purpose of the initiative process is to

permit the people to act when their government fails to do so.

In the absence of some unprecedented and peculiar state law

that would transform that process into its polar opposite,

citizens gathering signatures to place a measure on a ballot

simply are not state actors. |

I.

I should note preliminarily that the only defendants

here are the signature-gatherers and that there is no contention

that in collecting signatures they were acting in conjunction

with any state officials. The United States Supreme Court’s

decisions clearly delineate the limited situations under which

a private individual may be considered a state actor. This case

is indisputably not among them.

In Edmonson v. Leesville Concrete Co., the Court

stated: “Although the conduct of private parties lies beyond

the Constitution’s scope in most instances, governmental

authority may dominate an activity to such an extent that its

participants may be deemed to act with the authority of the

government and, as a result, be subject to constitutional

restraints.” 500 U.S. 614, 619, 111 S. Ct. 2077, 2082, 114

L.Ed.2d 660 (1991). In determining whether a defendant is a

State actor, courts should examine: “[1] the extent to which

the actor relies on governmental assistance and benefits,

[2] whether the actor is performing a traditional governmental

function, and [3] whether the injury caused is aggravated in a

A-14

unique way by the incidents of governmental authority.” Jd.

at 662, 111 S. Ct. at 2083. Fred Meyer has no colorable

argument to offer regarding the third factor, and its arguments

on the first two factors fail completely in light of Flagg Bros.,

Inc. v. Brooks, 436 U.S. 149, 98 S. Ct. 1729, 56 L.Ed.2d 185

(1978).4

A.

The first relevant question, for purposes of

determining whether the defendants are state actors, is the

extent to which they rely on “governmental assistance and

benefits.” Edmonson, 500 U.S. at 621, 111 S. Ct. At 2083.

It is with respect to this question that the majority launches

into its search and destroy mission through Oregon state law.

That expedition is, of course, wholly unnecessary. The state

has provided no governmental assistance or benefits to the

defendants.

The closest analogy is found in Flagg Bros. The state

Statute at issue in that case permitted the defendant storage

company to dispose of the plaintiff's property. The plaintiffs

argued that the defendant could be deemed state actors

because, by enacting the statute, the state had “authorized and

encouraged” the defendants’ conduct. 436 U.S. at 164, 98

S. Ct. At 1737-38. The Court rejected the argument. It said

that the state had simply “announce[d] the circumstances in

* The third factor enumerated in Edmonson--that the

injury be aggravated in a unique way by the incidents of

governmental authority--is clearly inapplicable here, since no

incidents of governmental authority are involved.

— ee eS ee

A-15

which its courts will not interfere” with deprivations of

property. Jd. At 166, 98 S. Ct. at 1738-39. The state’s

declaration that it would not act was, in the Court’s view,

insufficient to transform the private defendants into state

actors. Id. at 164-65, 98 S. Ct. at 1737-38.

As in Flagg Bros., “the crux of [Fred Meyer’s]

complaint is not that the State has acted, but that it has refused

to act.” Flagg Bros., 436 U.S. at 166, 98 S. Ct. at 1738. By

refusing to prosecute the defendants as trespassers, and by

limiting the circumstances in which Fred Meyer can obtain an

injunction against their activities, the state has simply

“decline[d] to provide a remedy for [a] private deprivation{ ]

of property.” Jd.° That does not constitute state assistance

and, thus, does not transform the defendants into state

actors--regardless of the scope of the petition gatherers’ rights

of access. :

In fact, the Oregon court decisions granting signature-

gatherers a right of access to property do not make the

defendants state actors, wholly aside from any active/passive

distinction set forth in Flagg Bros. A judicial declaration that

citizens have the right to enter certain privately owned

property in order to gather signatures for initiative petitions

* Although the state rule authorizing defendants’

conduct in the present case is decisional rather than statutory,

the incidental analysis applies. See Flagg Bros., 436 U.S. at

161 n. 10, 98 S. Ct. At 1735 n. 10 (concluding that “the

mere existence of a body of property law in a State, whether

decisional or statutory,” was insufficient to support a finding

that defendants were state actors).

A-16

does not constitute the providing of “governmental assistance

of benefits” to those citizens. Instead, it simply constitutes a

recognition that certain rights are protected by the Oregon

Constitution. A declaration of constitutional rights does not

convc.t private individuals to whom those rights inure into

state actors.

B.

The next question is whether the defendants are

exercising a traditional governmental function. While I agree

with the conclusion the majority expresses in its one-sentence

resolution of this issue, I think it worthwhile to offer a

reasoned explanation of why they are not.

Cases falling within the traditional governmental

function rationale have been narrowly and carefully defined.

Flagg Bros., 436 U.S. at 156--60, 98 S.Ct. At 1734-35. In

dismissing the plaintiffs’ argument that the defendants were

state actors, the Flagg Bros. Court explained that “very few”

State functions are traditionally exclusively reserved to the

state, with the primary examples being the function of

conducting elections of state officials and the municipal

function.® Jd. At 157-58, 98 S.Ct. At 1733-35 (citing, inter

® The court also left open the possibility that such

functions as education, fire and police protection, and tax

collection would be found to have been administered with a

sufficient degree of exclusivity to be covered by the

traditional governmental function doctrine. Jd. at 163 &

n. 14, 98 S.Ct. At 1737 & n. 14. Tax collection appears

(continued...)

|

A-17

alia, Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed.

1152 (1953) (“white primary” case), and Marsh v. Alabama,

326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (“company

town” case));’ see also Edmonson, 500 U.S. at 625-26, 111

S.Ct. at 2086 (peremptory challenges in jury selection).

According to Flagg Bros., the exclusive governmental function

doctrine does not reach private political activity, but only the

conduct of elections. Flagg Bros., 436 U.S. at 158, 98 S.Ct.

At 1735.

This case involves private political activity. The

initiative power exercised by the defendants is not an exclusive

State function or a state function at all. To the contrary, that

power is “reserved to the people” by the Oregon Constitution.

See Lloyd Corp. v. Whiffen, 315 Or. 500, 849 P.2d 446,

451-52 (1993) (quoting Or. Const., Art. IV, Sect. 1, which

States that “the initiative and referendum powers,” part of the

legislative power, are “reserved to the people”). So too with

(...continued)

clearly to qualify. Some of the others may be more

problematic. See Rendell-Baker v. Kohn, 457 U.S. 830, 102

S.Ct. 2764, 73 L.Ed.2d 418 (1982) (private school funded

primarily by public sources and regulated by public

authorities not state actor).

” In light of Marsh and its progeny, there is

considerable irony in Fred Meyer’s claim that the defendants

are state actors. The locus of dispute in this line of cases has

always been whether the property-owner can properly be

deemed a state actor. See, e.g., Whiffen II, 849 P.2d at 474

(Gillette, J., dissenting).

A-18

the initiative process in the other states. See Cal. Const.

Art. II, § 8.

Fred Meyer plainly confuses the powers of the state

with those of the people. The people act for themselves when

they exercise their reserved powers, not on behalf of the state.

The state acts by conducting elections, collecting taxes, and

performing other governmental functions. See Ball v. James,

451 U.S. 355, 366, 101 S.Ct. 1811, 1818-19, 68 L.Ed.2d 150

(1981); Flagg Bros., 436 U.S. at 163, 98 S.Ct. at 1737. The

functions performed by the people are entirely different.

When a person votes in a state-conducted election, he is

exercising a reserved power; he is not a state actor. When a

person pays taxes to a state tax collector, he is acting as a

private citizen. It is the polling official, the vote counter, and

the tax collector who are the state actors. Similarly, when a

person petitions the government to redress his grievances, he

is indisputably not acting on behalf of the state or under color

of law. So too, when a person seeks to have a measure placed

on the ballot, either by collecting signatures or otherwise, he

is exercising the privileges of a citizen, not acting on behalf of

the state. Thus, both a proper reading of Flagg Bros., and an

elementary understanding of the distribution of powers in a

democratic society make clear that the defendants are in no

way performing a traditional governmental function.

In short, citizens gathering signatures to place an

initiative measure on the ballot are just not state actors.

Il.

A-19

Because signature-gatherers are not state actors, there

is absolutely no reason for the majority’s peregrination through

State law in an effort to divine where and when Oregon

permits individuals to go about the task of collecting

signatures. How Oregon courts limit or do not limit signature-

gatherers’ right of access to private property is wholly

irrelevant to the question before us. However, because |

believe in the line of Oregon cases that the majority

misconstrues to be of exceptional importance, I feel compelled

to point out the majority’s errors.

The first reason given in the proposed opinion for

rejecting Fred Meyer’s claim that the defendants are state

actors is that the “Oregon courts have limited the application

of Cargill.” Opinion at 1415. That is incorrect. Cargill is

one of a series of Oregon cases staking out a right of access to

private property for proponents of initiative petitions. See also

Lloyd Corp., Ltd. v. Whiffen (Whiffen I), 307 Or. 674, 773

P.2d 1294 (1989); Lloyd Corp., Ltd. v. Whiffen (Whiffen II),

315 Or. 500, 849 P.2d 446, 452 (1993); State v. Dameron,

316 Or. 448, 852 P.2d 1285 (1993). Specifically at issue in

Cargill was whether the state could enforce its trespass laws

by prosecuting a defendant who had been gathering signatures

for an initiative petition on the privately-owned sidewalk

outside the main entrance of a Fred Meyer store. Cargill, 786

P.2d at 209. After emphasizing that “[tJhe Fred Meyer store

at which defendants were arrested is a modern replacement for

the town square or park,” that “Fred Meyer’s invitation to the

public was broad and for more than commercial activity,” and

that there was “no evidence that defendants’ activities

substantially interfered with Fred Meyer’s commercial

A-20

activities,” the court reversed the defendants’ trespassing

convictions. Jd. At 212, 214.

Subsequent Oregon Supreme Court cases strengthened

and elaborated upon the principles enunciated in Cargill, rather

than limiting the case to its facts, as the majority opinion

suggests. In Whiffen II, the court ruled that, under Article VI,

section 1, of the Oregon Constitution, the owner of a large

shopping center may be required to allow persons to use

privately-owned common areas to seek signatures on initiative

petitions.* In doing so, it relied heavily on the California

Supreme Court’s decision in Robins v. Pruneyard Shopping

Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341

(1979), aff'd, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741

(1980), as well as on related constitutional decisions from

other state and federal courts. E.g., Marsh v. Alabama, 326

U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Woodland v.

Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337

(1985). While concluding that “to prohibit the gathering of

signatures On initiative petitions in the common areas of large

shopping centers ... would ‘impinge on constitutional rights’

conferred on the citizens of this state” by the Oregon

Constitution, the court also stated that the resulting

* It was the second time that the Oregon Supreme

Court had ruled in the same action. In Lloyd Corp., Ltd. v.

Whiffen (Whiffen I), 307 Or. 674, 773 P.2d 1294 (1989)--a

case relied upon by the Oregon Court of Appeals in

Cargill--the court had held that persons have a

“subconstitutional” right to seek signatures on shopping

center property.

a e

A-21

constitutional right of access was subject to reasonable time,

place, and manner restrictions. Whiffen II, 849 P.2d at 447.

The Oregon Supreme Court again faced these issues

in State v. Dameron, 316 Or. 448, 853 P.2d 1285 (1993), a

subsequent case procedurally equivalent to Cargill in which

persons seeking petition signatures on the privately-owned

sidewalks of a Fred Meyer store had been prosecuted for

trespassing.’ The court affirmed the appellate court’s reversal

of the defendants’ convictions. Reaffirming its holding in

Whiffen II that persons gathering petition signatures have a

State constitutional right of access to certain privately-owned

shopping centers, the court nonetheless cautioned against an

overly expansive interpretation of that right. It emphasized the

fact-specific nature of the inquiry into whether any given

shopping center must provide access to such persons, noting

that the focus of the inquiry must be on whether the shopping

center is large and whether large numbers of persons gather

there. Dameron, 853 P.2d at 1289 n. 7, 1292 n. 10.

The majority erroneously relies on the Oregon Court

of Appeals’ statement in an earlier case that “Cargill is limited

by its facts.” Opinion at 1415 (quoting Fred Meyer, Inc. v.

McDonald, 112 Or.App. 321, 828 P.2d 1054, 1055 (1992),

rev. denied, 316 Or. 382, 852 P.2d 839 (1993)). Aside from

the fact that the McDonald statement is quoted out of context,

McDonald was decided a year prior to the Oregon Supreme

* On the same day that it issued the opinion in

Dameron, the Supreme Court also issued its one-sentence

affirmance of Cargill. See 316 Or. 492, 851 P.2d 1141

(1993).

A-22

Court’s definitive resolution of this issue. In Whiffen II, the

court unequivocally stated: “We agree with the reasoning of

the Court of Appeals in State v. Cargill.” 849 P.2d at 452;

see also Whiffen II, 849 P.2d at 470 (Gillette, J., dissenting)

(“[c]onsistent with Cargill, defendants here also assert--and the

majority agrees--that they have a [constitutional] right to gather

signatures”). McDonald thus tells us little about the Oregon

Supreme Court’s view as to the breadth of Cargill’s holding.

Although courts have cautioned against an overly

expansive reading of Cargill, they have in no way narrowed its

holding. What later opinions have said is that each case must

be considered on its facts, i.e., that evaluating what property

that initiative proponents have the right to enter requires an

extremely fact-specific inquiry. Nothing in Cargill is to the

contrary. Accordingly, such statements do not limit Cargill.

Rather, the principles set forth in Cargill remain as strong as

ever.

Moreover, even if Cargill were narrowly interpreted

and only applied, for example, to a few of the largest Fred

Meyer stores (there are 40 of them), this would not defeat the

logic of Fred Meyer’s claim, as the majority opinion suggests.

Rather, it would simply serve to limit Fred Meyer’s claim to

those few stores. Fred Meyer asserts in its brief that because

of the state court decision in Cargill, the defendants have been

granted access to Fred Meyer stores generally. If, however,

only certain stores are affected, then that would only mean that

Fred Meyer’s state action argument would fail as to the other

stores. The problem with respect to the affected stores would,

of course, be identical whether Cargill had been limited or

not. Accordingly, concluding (erroneously or not) that Cargill

A-23

has been limited to certain stores in no way brings us any

nearer to the ultimate answer in this case.

Most important, the problem with the majority

opinion’s heavy reliance on the “limiting” of Cargill is that it

implies that, given an unlimited or invigorated Cargill (or a

stronger case from another jurisdiction, see, e.g., Robins v.

Pruneyard, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341

(1979)), Fred Meyer’s claim might be upheld. As explained

in part I, such a conclusion would be clearly wrong, given the

nature of the initiative process and the controlling Supreme

Court precedent. Whether Cargill is limited or unlimited,

signature-gatherers are simply nof state actors.

The second reason given in support of the opinion’s

holding is that Fred Meyer “still has options to restrict

petitioning in front of its stores.” Opinion at 1415; see also

opinion at 1416 (“Fred Meyer is incorrect to state that it does

not have any recourse to limit the actions of solicitors of ballot

signatures”). Specifically, the opinion refers to the fact that

the Oregon courts have ruled that store-owners may impose

reasonable time, place, and manner restrictions on the

activities on signature-getters. See, e.g., Whiffen II, 849 P.2d

at 454 (1993).

The time, place, and manner argument, like the

number of stores argument, is not relevant to the issue of

whether the defendants are state actors. It is directed instead

to the substance of Fred Meyer’s taking claim. The argument

is that the infringement of property interests that has allegedly

occurred is not as grave as Fred Meyer claims—in other words,

that no violation of a constitutionally protected right has

A-24

occurred. This fact, however, has nothing to do with whether

the defendants are state actors. As one academic commentator

has emphasized, the state action inquiry looks solely to “the

extent of the challenged action’s connection with the state; it

does not purport to consider the extent to which the

complained-of feats impairs a constitutional value in the

particular case.” Cole, Federal and State “State Action”: The

Undercritical Embrace of a Hypercriticized Doctrine, 24

Ga.L.Rev. 327, 331 (1990).

When private citizens exercise their fundamental right

to seek to have an initiative measure placed on the ballot, they

are private individuals and nothing more. Whether they gather

signatures outside some or all of Fred Meyer’s stores, and

whether they do so only in the mornings or twenty-four hours

a day, they are not state actors. In short, I strongly disagree

both with the overall approach taken in the majority opinion

and with the majority’s analysis of Oregon law. The

majority’s interpretation of that state’s decisional law not only

is erroneous, but it has no relevance to the pivotal question:

Whether the defendants are state actors. Because Fred Meyer

has not alleged the requisite state action, it has not stated a

cognizable section 1983 claim. I would affirm the dismissal

on this ground.

A-25

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

FRED MEYER, INC., a

Delaware corporation,

Plaintiff, Court of Appeals

No. 92-35067

v.

District Court

WILLIAM CASEY No. 91-1320-FR

HERB L. GRAY, KEN

BENJAMIN, MIKE OPINION

WILEY, LON MABON,

PHILLIP Z. RAMSDELL,

NO SPECIAL RIGHTS

COMMITTEE, OREGON

CITIZENS ALLIANCE,

JOHN DOES 1 Through 50;

JANE DOES, 1 Through

50,

Filed January 10, 1992

ll i i i a a i i a a ee

Defendants.

A-26

Charles F. Hinkle

Gregory R. Mowe

Stoel Rives Boley Jones & Grey

Portland, Oregon 97204

For Plaintiff

Bruce R. McCain

Portland, Oregon

For Defendants

OPINION

FRYE, District Judge:

This is a civil rights action for injunctive relief and

damages brought pursuant to 42 U.S.C. § 1983 by plaintiff,

Fred Meyer, Inc. (“Fred Meyer”), against the defendants,

William Casey, Herb L. Gray, Ken Benjamin, Mike Wiley,

Lon Mabon, Phillip Z. Ramsdell, the No Special Rights

Committee, and the Oregon Citizens Alliance. The matters

before the court are (1) the motion of Fred Meyer for a

preliminary injunction (#2); (2) the motion of the defendants

to dismiss for failure to join an indispensable party (#10); and

(3) the motion of the defendants to dismiss; in the alternative

for summary judgment (#11).

BACKGROUND

A. Factual Background

Fred Meyer is a Delaware corporation which operates

approximately 40 freestanding, large retail stores in the State

A-27

of Oregon. The Oregon Citizens Alliance (the “OCA”) is a

private educational foundation. The No Special Rights

Committee is a political action committee. William Casey is

the Multnomah County director of the OCA. Herb Gray

solicits signatures for initiative petitions sponsored by the OCA

and the No Special Rights Committee. Ken Benjamin is a

volunteer with the Multnomah County chapter of the OCA.

Mike Wiley is the membership director of the OCA. Wiley

also raises funds for the OCA and the No Special Rights

Committee. Lon Mabon is the chairman and founder of the

OCA. Mabon is also the chairman of the No Special Rights

Committee. Phillip Ramsdell is the political director of the

OCA. None of the individual defendants are elected officials

of the State of Oregon or employees of the State of Oregon.

The OCA and the No Special Rights Committee are private

entities.

The defendants are organizers and proponents of two

initiative petitions. The first initiative for which the

defendants are seeking signatures would amend the charter of

the City of Portland to restrict the ability of the City of

Portland to pass or to enforce laws related to the sexual

orientation of any person. The second initiative for which the

defendants are seeking signatures would amend the Oregon

Constitution in a similar fashion.

Beginning on December 14, 1991, members of the

OCA and the No Special Rights Committee entered upon the

properties of Fred Meyer without permission from Fred Meyer

to solicit the signatures of registered voters in order to qualify

the two initiatives for election. Defendants Gray and Benjamin

and several Doe defendants stood outside the main entrances

en

A-28

of various Fred Meyer stores asking shoppers to sign the

petitions. When the defendants started soliciting signatures,

customers of Fred Meyer started complaining and threatening

to boycott Fred Meyer stores and to return purchases already

made for refunds. Many customers believed that Fred Meyer

was sanctioning the petitions by “allowing” the defendants to

remain on its properties. Fred Meyer, however, opposes the

presence of the defendants on its properties and maintains a

consistent policy of forbidding all persons, whatever their

causes, from soliciting signatures for initiative petitions on its

properties.

In the past, when persons entered the properties of

Fred Meyer for the purpose of soliciting signatures for

initiative petitions, Fred Meyer would ask them to leave. If

they refused, Fred Meyer would call the police and have the

petitioners arrested for criminal trespass. This option is no

longer available to Fred Meyer following the decision by the

Oregon Court of Appeals in State v. Cargill, 100 Or.App.

336, 786 P.2d 208, rev. allowed, 310 Or. 133, 794 P.2d 794

(1990).

The facts in Cargill involve a criminal prosecution for

trespass. Defendants were solicitors of signatures on the

sidewalks outside the entrances of a Fred Meyer store in the

City of Portland. After refusing to obey the directive of Fred

Meyer to leave its property, the defendants were arrested and

subsequently convicted of criminal trespass in the second

degree. The defendants appealed their convictions to the

Oregon Court of Appeals.

A-29

The Oregon Court of Appeals held that Article IV,

section 1 of the Oregon Constitution’® “prohibits using a

criminal prosecution to prevent the people from collecting

signatures on initiative and referendum petitions in areas that

have replaced traditional forums for the collection of

signatures, so long as there is no substantial interference with

the owner’s use of the property for business or other

purposes.” Jd. 100 Or.App. At 348, 786 P.2d 208. Finding

that the Fred Meyer store had replaced the traditional forum

for the collection of signatures, the court reversed the

convictions of the defendants. The State petitioned the Oregon

Supreme Court for review. On July 3, 1990, the Oregon

Supreme Court granted review. State v. Cargill, 310 Or. 133,

794 P.2d 794 (1990). The appeal is still pending.

B. Procedural Background

On December 19, 1991 Fred Meyer filed this action

under 42 U.S.C. § 1983 seeking a temporary restraining order,

a preliminary injunction, damages, and attorney fees. Fred

Meyer argues that it has a right under the First Amendment to

the United States Constitution not to be associated with the

speech and ideas of the defendants. Fred Meyer further argues

that the actions of the defendants amount to a “taking” of its

property without just compensation as prohibited by the Fifth

and Fourteenth Amendments to the United States Constitution.

'0 [The court’s footnote at this point set out the text

of Article IV, section 1 of the Oregon Constitution, as it

appears on pages ___ of this Petition.]

A-30

The court denied the motion of Fred Meyer for a temporary

restraining order.

On December 20, 1991, Fred Meyer filed a complaint

in the Circuit Court of the State of Oregon for the County of

Multnomah seeking injunctive relief to prevent the same

defendants named herein from gathering signatures on Fred

Meyer properties during the holiday shopping season--

Thanksgiving Day to January 3, 1992. Fred Meyer, Inc. v.

Casey, No. 9112-08270 (Multnomah County Cir. Ct. Dec. 20,

1991). On that same day, the Honorable Donald H. Londer,

Multnomah County Circuit Court Judge, granted the motion of

Fred Meyer for a temporary restraining order thereby

prohibiting the defendants from gathering signatures at Fred

Meyer stores through January 3, 1992.

On December 27, 1991, the defendants filed a motion

in this court to dismiss Fred Meyer’s complaint for the failure

to join an indispensable party, and a separate motion to

dismiss, or in the alternative, a motion for summary judgment.

The defendants seek a ruling of this court that the complaint

filed by Fred Meyer does not sufficiently allege that the

defendants acted under color of state law; that the defendants

have absolute legislative immunity from suit; and that Fred

Meyer has failed to join an indispensable party, namely the

State of Oregon.

APPLICABLE LAW

[1] Fred Meyer has brought this action under 42

U.S.C. § 1983, which provides:

A-31

“Every person who, under color of any

Statute, ordinance, regulation, custom, or

usage, or any State or Territory or the District

of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit or equity, or other proper

proceeding for redress. For the purposes of

this section, any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District of

Columbia.”

42 U.S.C. § 1983 requires Fred Meyer to allege and prove

(1) that the defendants acted or are acting under color of the

laws of the State of Oregon; and (2) that the defendants

deprived Fred Meyer of a right secured by the Constitution or

the laws of the United States. Flagg Bros., Inc. v. Brooks,

436 U.S. 149, 155, 98 S.Ct. 1729, 1732, 56 L.Ed.2d 185

(1978).

ANALYSIS

In its complaint, Fred Meyer alleges that the

defendants were and are acting under color of the laws of the

State of Oregon because the defendants claim the right to enter

the properties of Fred Meyer by virtue of the decision of the

Oregon Court of Appeals in State v. Cargill, 100 Or.App.

336, 786 P.2d 208, rev. allowed, 310 Or. 133, 794 P.2d 794

A-32

(199), and that the defendants are engaging in legislative

activity authorized by Article IV, section 1 of the Oregon

Constitution. Fred Meyer argues that the conduct of the

defendants is chargeable to the State of Oregon pursuant to the

Cargill decision.

[2] The first question for the court to decide is

whether the defendants acted or are acting under color of the

laws of the State of Oregon. Since it is undisputed that the

individual defendants are private citizens and the OCA and the

No Special Rights Committee are private entities, the court

must determine whether the actions of these private citizens

and these private entities are “fairly attributable” to the State

of Oregon. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937,

102 S. Ct. 2744, 2753, 73 L.Ed.2d 482 (1982). If the actions

of these private citizens and these private entities are fairly

attributable to the State of Oregon, then the requirement that

they acted or are acting under color of state law has been

satisfied. See id. In Lugar, the Court enunciated a two-part

approach for analyzing the conduct of a citizen or a private

entity to determine whether the conduct of the private citizen

or private entity could be fairly attributable to a State. “First,

the deprivation must be caused by the exercise of some right

or privilege created by the State or by a rule of conduct

imposed by the state or by a person for whom the State is

responsible.... Second, the party charged with the deprivation

must be a person who may fairly be said to be a state actor.”

Id.

[3] Under the laws of the State of Oregon, the

defendants are entitled to solicit signatures on the properties of

Fred Meyer under the authority of the initiative and

A-33

referendum provisions of the Oregon Constitution without the

fear of arrest. This is sufficient to satisfy the first part of the

test set forth in Lugar. However, it is not sufficient, by itself,

to fairly characterize the conduct of the defendants as the

conduct of state actors. See Flagg Bros., Inc. v. Brooks, 436

U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (conduct by

private party pursuant to statute, without more, not sufficient

to characterize party as a state actor): Thus, the court must

examine part two of the Lugar test: whether the defendants

may fairly be said to be state actors. Lugar, 457 U.S. at 937,

102 S.Ct. at 2753.

The defendants are not state officials or employees.

They did not act with the aid of or together with state officials

or employees in soliciting signatures on the properties of Fred

Meyer.

The defendants were performing a function which has

traditionally been a state prerogative. See Rendell-Baker v.

Kohn, 457 U.S. 830, 842, 102 S.Ct. 2764, 2771, 73 L.Ed.2d

418 (1982). The defendants, in soliciting signatures in order

to place an initiative on the ballot, are participating in the

process of enacting law. The enactment of laws is a

traditional state function. In the State of Oregon, however, the

legislature does not have the exclusive power to enact laws.

See id. (defendants may be fairly characterized as state actors

if they perform “a function which has been traditionally the

exclusive prerogative of the State” (quoting Jackson vy.

Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42

L.Ed.2d 477 (1974) (emphasis in Rendell-Baker)). Since

1902, the Oregon Constitution has reserved to the people of

the State of Oregon the powers of initiating and referring to

A-34

the voters of the State of Oregon proposed legislation.

Although the acts of the defendants in participating in the

legislative process serve a public function, such service does

not transform their conduct into state action. See id.

RULING

Fred Meyer has failed to show that the defendants

were acting under color of state law, and, consequently, Fred

Meyer has not stated a claim under 42 U.S.C. § 1983.

Accordingly, the motion of the defendants to dismiss; in the

alternative for summary judgment (#11) is granted. The

motion of Fred Meyer for a temporary restraining

order/preliminary injunction (#2) and the motion of the

defendants to dismiss for failure to join an indispensable party

(#10) are deemed moot.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRED MEYER, INC., a

Delaware corporation, Court of Appeals

No. 92-35067

Plaintiff-Appellant,

District Court

v. No. CV-91-1320-FR

WILLIAM CASEY;

HERB L. GRAY; KEN

BENJAMIN; MIKE

WILEY; LON MABON;

PHILLIP Z. RAMSDELL,

NO SPECIAL RIGHTS

COMMITTEE; OREGON

CITIZENS ALLIANCE;

JOHN DOES 1 Through 50;

JANE DOES, 1 Through

50,

ORDER

Ne ee eee ee ee ee ee ee ee ee ee ee”

Defendants-Appellees.

BEFORE: REINHARDT, BRUNETTI, and FERNANDEZ,

Circuit Judges

Se

A-36

The panel has voted to deny the petition for rehearing

and to reject the suggestion for a rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has requested a

vote on the suggestion for rehearing en banc. Fed. R. App.

P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

FILED: November 17, 1995.

PDX3-135480.1 49900-0250