Fred Meyer, Inc. v. Casey

67 F.3d 1412, 95 Daily Journal DAR 13656, 95 Cal. Daily Op. Serv. 7970, 1995 U.S. App. LEXIS 28025, 1995 WL 592804

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 10, 1995
• Docket: No. 92-35067
• Status: Published

Opinions

Opinion by Judge BRUNETTI; Concurrence by Judge REINHARDT.

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.

II. 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 called the police and had petitioners arrested for criminal trespass.

III. DISCUSSION

A. 42 U.S.C. § 1983

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; and (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. 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 v. 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.

The Oregon Court of Appeals reversed defendants’ convictions, holding that Article IV, section 1 of the Oregon Constitution¹ “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.” Id. 786 P.2d at 215. The court stated that “[pjrosecuting 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.” Id. 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.” Id. 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 impact on the company or interfered with its “reasonable investment backed expectations.”

Id. at 214.

C. STATE ACTION

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.

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.” Id. 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).

In this ease, 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 Cargill 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 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 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 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 [plaintiffs 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 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 1438, 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 in this case solicited signatures. Fred Meyer has not alleged the requisite state action and thus has not stated a cognizable § 1983 claim.

AFFIRMED.

1 . This section of the Oregon Constitution authorizes initiative and referendum. See Or. Const. art. IV, § 1.