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Mall owners can ban petitioning, Oregon Supreme Court says

By The Associated Press

09.15.00

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SALEM, Ore. — Shopping mall owners and other proprietors have the right to ban collectors of signatures for ballot measures, the state Supreme Court ruled yesterday.

The court, in an unusual step, overruled its own key 1993 decision that said petition carriers were constitutionally entitled to work in common areas of large shopping centers.

The unanimous ruling is a victory for store owners who complain that signature gatherers harass their customers and a defeat for a signature-gathering industry that has grown in Oregon over the years.

A national initiative-rights group termed the decision a "significant blow" to the initiative process. The group says the decision illustrates a trend in state court rulings.

"Courts have become more and more hostile to petition gatherers on private property," said M. Dane Waters, director of the Initiative and Referendum Institute in Washington, D.C.

Bill Lunch, an Oregon State University political science professor, said the decision would make signature gathering much more difficult.

"Most certainly all major shopping centers will adopt policies which bar petitioning. They know it's a distraction for their customers," he said.

Veteran petitioner Lloyd Marbet contended the ruling was a "devastating blow to democracy in Oregon."

"The shopping centers have replaced the streets and sidewalks as places for people to gather and now the court says these places are off limits to democracy," said Marbet, who's also the Pacific Green Party candidate for secretary of state.

The ruling came in response to a lawsuit brought by the Fred Meyer retail chain, which has waged a legal battle over petitioners' rights since 1984.

"I think this ends the war," said Charles Hinkle, a Portland attorney for Fred Meyer. "This says every private property owner has a right to bar petitioners."

The case involved Lois Stranahan, who was arrested for trespassing after she refused to stop petitioning outside a Fred Meyer store in southeast Portland in 1989.

She was awarded $2 million in punitive damages, which were upheld by the state Court of Appeals but overturned by the Supreme Court ruling yesterday.

The 1993 decision said petitioners could operate at common areas in the privately owned 80-acre Lloyd Center mall in Portland, on grounds that attractions including an ice-skating rink and open seating areas encouraged the mall's use as a gathering place.

But the high court reversed itself yesterday, basing its new decision upon an examination of the state's initiative system, which was adopted by voters in 1902.

"This court made no attempt to ascertain the intent of the people when they adopted the initiative and referendum provisions" 98 years ago, the court said in an opinion by Justice Michael Gillette.

"Nothing in the text or case law" dealing with the state initiative system shows that voters in 1902 "intended to require private property owners to permit petitioning activity on their property," the court said.

The justices said Fred Meyer's argument that the court didn't follow its usual analysis in reaching the 1993 decision was "well taken."

Waters argues that yesterday's ruling infringes on free-speech rights.

"The U.S. Supreme Court has equated the initiative to free speech and said there has to be a compelling state interest" to restrict the right, he said.

But Hinkle said petitioning flourished for many years before signature gatherers in the 1980s began claiming rights to go onto private property such as shopping malls.

"They prefer to go there because it makes it easier for them. They're still perfectly free to go out in the street to do their campaigning," he said.

Related

Federal judge throws out free-speech case against shopping malls
Decision in New Mexico case cites long-standing legal precedent establishing malls as private, not public, property.  07.10.00

California appeals court says no to signature-gatherers at privately owned store
Judges rule that Waremart has not 'assumed a role in Chico as the functional equivalent of a public forum in a manner comparable to the shopping center.'  12.27.00

California appeals court: Citizens don't have free-speech rights on store property
Store's interest in 'exclusive control over the use of its private property' outweighs societal interest in free speech, judges rule.  07.14.99

Georgia high court backs mall's no-solicitation policy
Justices say they are 'unwilling to depart' from precedent set in 1990 case.  07.08.99

N.J. high court opens malls to political groups
Justices say Secaucus shopping mall owners were wrong to require the Green Party to purchase a $1 million insurance policy before using mall's common spaces.  06.13.00

Signature-gatherers barred from petitioning at Anchorage stores
Alaska judge rules activists don't have constitutional right to solicit signatures on private property.  01.02.02

Taking the 'citizen' out of citizen initiatives
Analysis In some states, activists say special interests, millionaires are hijacking the process; in other states, legislators are erecting ever-higher hurdles for signature-gatherers.  10.15.02

Iowa high court OKs ban on mall protests
Justices uphold demonstrators' trespassing convictions, ruling shopping centers aren't public places.  04.04.02

Oregon appeals court strikes down anti-petitioning ordinance
Ruling upholds lower court decision that county can't ban signature-gathering at public transit stations.  05.04.02

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