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Lenrich Associates v. Heyda

December 14, 1972


Appeal from Circuit Court, Multnomah County. John C. Beatty, Jr., Judge.

Kenneth E. Roberts, Jr., Portland, argued the cause for appellant. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe, Donald Joe Willis and Ridgway K. Foley, Jr.

William S. Lebov and Stephen B. Murdock, of Legal Aid Service, Portland, argued the cause and filed a brief for respondents.

McAllister, Justice. Howell and Bryson, Justices. Denecke, Justice, specially concurring. Holman, Justice, concurring. O'Connell, Chief Justice, dissenting.


Plaintiff is the owner of a shopping center on the east side of Portland known as "Mall 205." Defendants are members of a religious organization known as the International Society of Krishna Consciousness. On a number of occasions defendants, without plaintiff's permission, engaged in various activities in Mall 205, including chanting, marching and offering for sale a magazine about their religion. On isolated occasions the defendants also played a guitar and a makeshift drum and burned and sold incense. Plaintiff sought an injunction to prevent defendants from engaging in all those activities on plaintiff's property. The trial court decreed that defendants must be allowed to enter the common areas of the mall for the purpose of communicating ideas, to discuss the tenets and nature of their religion and to distribute and sell their magazines and other printed matter relating to their religion. Plaintiff appeals and contends that its property rights guaranteed under the Fifth and Fourteenth Amendments of the Constitution of the United States are infringed by the decree.

The following description of Mall 205 is adapted from the statement of facts in appellant's brief, which was adopted by respondents. The shopping center consists of two large department stores, White Front Department Store, located at one end of the complex, and Montgomery Ward, located at the other end, which together constitute approximately 65 per cent of the total floor space, and 39 relatively small specialty shops and vacant space for approximately 10 more shops. All of the shops are included in and covered by a single ground-level building. Nine of the shops are food and beverage establishments. Except

for one restaurant and bar establishment, which has an outside entrance for after-hours traffic, customers enter the small shops solely from the interior mall.

The central mall is an enclosed covered corridor approximately 415 feet in length and 35 feet in width. At each end are two courts with a fountain and planter, connecting the central mall with Montgomery Ward and White Front. Access to the interior mall is restricted to two open entryways from Montgomery Ward and White Front, and three sets of swinging doors between the center's parking facilities and the mall. All entrances are closed and locked after normal business hours.

The interior mall is a climate-controlled environment, with background music, designed to create a pleasant business atmosphere. The interior mall includes, in addition to the walkway portions, two water fountains and two planters, together with approximately a dozen park-like benches and a directory assistance and a telephone kiosk. The mall is also the site of a candy shop, and space is available for three additional commercial kiosks.

Although each specialty shop has its own leased area which is separated from the other tenants with walls, many shops do not physically separate their premises from the interior mall; that is, that portion of the shop which fronts the interior mall is entirely open. In all cases, those establishments which do have doors keep them physically propped open during business hours. At the south end of the mall is a restaurant complex with some restaurant seating open to the interior mall.

Most Mall 205 customers arrive and depart by automobile and park in the center's privately owned

parking facilities and walk to and from such facilities via sidewalks owned by the plaintiff.

After this case was decided by the trial court the Supreme Court decided Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 92 S Ct 2219, 33 L Ed 2d 131 (1972). Plaintiff contends that Tanner controls the disposition of this case and requires reversal. If so, the other issues raised by the appeal need not be considered.

In Tanner it was held that the owners of the Lloyd Center in Portland had a right to prohibit the distribution of political handbills in the privately-owned interior mall. The federal district court had held that the Lloyd Center was the "functional equivalent of a public business district," and that the prohibition of the distribution of handbills in the mall was a violation of First Amendment rights of free expression. 308 FS 128 (1970). The Court of Appeals for the Ninth Circuit affirmed. 446 F2d 545 (1971). Those courts relied on the reasoning of the Supreme Court in Marsh v. Alabama, 326 U.S. 501, 66 S Ct 276, 90 L Ed 265 (1946) and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S Ct 1601, 20 L Ed 2d 603 (1968). The Supreme Court held, however, that Marsh and Logan Valley were distinguishable and that the rationale of those cases did not prevent the owners of Lloyd Center from prohibiting handbilling on their premises.

We have carefully examined the agreed statement of facts and the attached exhibits and find no significant distinctions between the facts in this case and the facts in Lloyd Corp. v. Tanner. If there are any such distinctions the defendants have not called our attention to them. Although the defendants repeatedly contend that plaintiff's mall is the "functional equivalent"

of a public business district, which was the basis of the holding of the federal district court in Tanner, the Supreme Court indicated that this was not the critical question. 33 L Ed 2d at 139-140. The Supreme Court held that private owners of shopping centers could prohibit free speech activities on their premises, in spite of a general invitation to the public to enter for business-related purposes, unless some additional factor was present. In Marsh the additional factor was the private ownership of an entire town; in Logan Valley it was the direct relationship between the message of the picketers and the operation of one of the businesses in the shopping center. The Court found no such additional factor in Tanner, and Mall 205 presents, if anything, a less compelling case than does Lloyd Center. It is smaller and public access is more limited. We find nothing in the circumstances of this case which would justify a different result than that reached in Tanner.

Defendants argue that this court can give the individual rights of expression and religious freedom greater protection than that provided under Tanner by reliance on the appropriate provisions of the state constitution.*fn1 We are, of course, free to enforce the guarantees of our state constitution so as to allow greater freedom or to give greater protection to individual liberties than are given under the federal Bill of Rights as interpreted by the United States Supreme Court. That power was recently exercised in Stevenson

v. Holzman, 254 Or 94, 103-104, 458 P2d 414, 419 (1969) and in State v. Brown, 262 Or 442, 497 P2d 1191 (1972). In State v. Childs, 252 Or 91, ...

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