Fred Meyer, Inc. v. McDonald

828 P.2d 1054 (1992)

112 Or. App. 321

FRED MEYER, INC., a Delaware corporation, Appellant, v. James T. McDONALD, Christian Groth, Diane Topp, Holli Messenger, Lisa Horowitz, Woodrow J. Kuhnhausen, Jeff Smalley, Valerie Filterer, and Susan Beeler, Defendants, and Hale WEITZMAN, Respondent.

9003-01409; CA A64868.

Court of Appeals of Oregon.

Argued and Submitted July 11, 1991.

Decided April 8, 1992.

*1055 Charles F. Hinkle, Portland, argued the cause for appellant. With him on the brief was Stoel Rives Boley Jones & Grey, Portland.

Gregory Kafoury, Portland, argued the cause and filed the brief for respondent.

Before RICHARDSON, P.J., and ROSSMAN and DE MUNIZ, JJ.

PER CURIAM.

Plaintiff appeals from a judgment dismissing its action for declaratory and injunctive relief. It sought to prevent persons, including defendant Weitzman,[1] from locating themselves at 41 of its stores for the purpose of soliciting signatures on initiative petitions. It did not seek to prohibit signature-collecting activities at any other Fred Meyer store.

The trial court determined that, under State v. Cargill, 100 Or.App. 336, 786 P.2d 208, rev. allowed 310 Or. 133, 794 P.2d 794 (1990), defendant was engaged in constitutionally protected activity and could not be prohibited from collecting signatures at the entries to plaintiff's stores, because Cargill determined that the Fred Meyer store in that case was a "forum for assembly by the community." 100 Or.App. at 348, 786 P.2d 208. The court concluded that Cargill required that result in this case, but said, "[W]ere it not for the Cargill decision, this Court would have no reluctance in granting the relief that [plaintiff] seeks."

The holding in Cargill is limited by its facts. It involved a single store at which the defendants were arrested for trespassing. The trial court here was not bound to come to the same conclusion just because the signature gatherers were located at plaintiff's stores. Because it erred in determining that the rule in Cargill applies to all of the stores specified in this action, without evaluating each store on the record before it, we remand for that purpose.[2]

Reversed and remanded for proceedings not inconsistent with this opinion.

[1] Before trial, for unexplained reasons, plaintiff dismissed all defendants but Weitzman.

[2] The Oregon Supreme Court allowed review in Cargill in 1990. We held this case pending the Supreme Court's decision in Cargill. In the interests of justice we are not waiting any longer.