by JANN CARSON  Do Oregonians have a state constitutional right to circulate initiative petitions in public spaces such as the public transit mall in Eugene or in privately owned shopping malls? Yes and no. Oregon Courts have issued decisions on these questions recently and the ACLU of Oregon participated in those cases. In Leppenan v. Lane Transit District, the ACLU Foundation of Oregon successfully challenged a rule of the Lane Transit District (LTD) that prohibited canvassers, pickets, and solicitors from working at the boarding platforms, ticket counters and doorways of the Eugene station.

Earlier this year, LTD used this ordinance to prevent Steven Leppanen from collecting signatures on the boarding platforms in downtown Eugene.

In June, Lane County Circuit Court Judge Gregory Foote ruled that while LTD would place some limits on initiative petition signature collectors, the bus system could not ban them completely.

ACLU of Oregon Executive Director Dave Fidanque said of the ruling, "The judge has made it clear what other courts have said, which is the initiative and referendum process goes to the core of our political system in Oregon, and petition circulators have a right to go to public places to collect signatures."

Lane Transit District is appealling this decision in the Oregon Court of Appeals.

Oregon Supreme Court reverses itself

In the case of Stranahan v. Fred Meyer, Inc., when the Oregon Supreme Court considered the right of petitioners to circulate initiative petitions at privately owned Fred Meyer stores, a rare thing happened. The Oregon Supreme Court completely reversed itself from earlier decisions and ruled that the right to initiative and referendum found in Article IV, Section 1 of the Oregon Constitution does not encompass the right to solicit signatures for initiative petitions on private property over the owner's objection. The ACLU Foundation of Oregon filed an amicus brief with the Oregon Supreme Court on behalf of Lois Stranahan. Our cooperating attorney was Mark Anderson.

The ACLU of Oregon has long believed that large shopping malls, although privately owned, become the modern day equivalent of the "town square" when the public is invited into the malls to do more than shop. In fact, many large malls have taken on characteristics of community centers by providing services and activities unrelated to their commercial retail purpose.

In a series of cases beginning in the 1980s, the Oregon ACLU has filed friend of the court briefs arguing that initiative petitioners have a constitutional right to solicit signatures in the common areas of large malls. The Oregon Court of Appeals and Oregon Supreme Court ruled in these cases that petitioners did have a right to solicit signatures in large malls and that right emanated from the Oregon Constitution's Right to Initiative and Referendum, Article IV, Section 1.

Over the years, the Fred Meyer Corp. brought many legal actions to prohibit petition circulators from soliciting on Fred Meyer property. In the Stranahan case, Fred Meyer argued that it has free speech rights as well and cannot be forced to allow speech with which Fred Meyer disagreed on Fred Meyer property.

The Oregon Supreme Court, in a 4-1 decision, determined that it should revisit its earlier holdings in this area because in those earlier decisions the Court had failed to follow its established methodology for determining the intended meaning of a constitutional provision. The result is a significant loss of opportunities for Oregonians to exercise their rights to circulate initiative petitions in places where people gather on a daily basis - private shopping malls.