concurrence">*464FADELEY, J.,

concurring.

Arrested on a sidewalk while discussing proposed legislation, defendant appeals his subsequent conviction for criminal trespass. Defendant contends that, given his occupation at the time, he was not on the sidewalk “unlawfully.” Defendant was seeking signatures on an initiative petition proposing that a new law be adopted by the voters of the state. The sidewalk was used in common by customers and visitors to a department store and various other businesses arrayed along the sides of a parking lot, but was privately owned property. An employee of the store caused defendant’s arrest after defendant attempted to speak to an individual who had left the store and was on her way to her automobile parked in a lot on the other side of the sidewalk.

I concur with the lead opinion and, as to the outdoor sidewalk in the shopping center described in the lead opinion, I also concur in the concurring opinion of Unis, J. The order to leave these premises open to the public was neither lawful nor proved to be. Neither of those opinions discuss the dissent or the exhortation of Retired Justice Tongue (serving pro tempore in this case) to avoid the pitfalls of delays that he found present when he served between 1969 and 1982.1 will discuss both, starting with the dissent.

The dissent asserts that signature-gathering activity never “could be* * * constitutionally protected.” 316 Or at 491 (emphasis in original). Rejecting applicability of two Oregon constitutional guarantees — free speech in political matters such as voter initiatives and the right to propose legislation by the initiative1 — the dissent flatly states: “there is no such constitutional right to gather petition signatures on private property.” 316 Or at 491 (Gillette, J., dissenting). *465Under that restrictive view, state criminal law may be used governmentally to thwart both speech and the initiative.

That position seems to make absolute inviolability of “private property” the touchstone for deciding this criminal trespass/initiative petition case. I certainly agree that private property rights are of constitutional magnitude, even though no constitutional text regarding property rights can be cited to diminish or condition rights of free speech and of initiating legislation, let alone abrogating them. Inconsistently, as it seems, the dissenters have joined in numerous decisions over a number of years that uphold substantial restrictions on private property rights in the form of land-use laws. For example, state regulation (state action) frequently requires a commercial developer to provide substantial off-street parking as a condition of development to avoid the need for publicly created parking. This governmental exaction substitutes for parking and walkways that otherwise would have been on the public street, i.e., substitutes for a public place. And in the area of speech, a door-to-door peddler’s rights to intrude into private property were upheld in Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988), as was a business solicitation in Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993). In the latter case, the invasion was accomplished by an automatic dialing device and a recorded message, rather than by a live person.2

The dissent’s reasoning also would abrogate the provisions of the criminal trespass law itself.3 That law, since 1971, has plainly recognized a separate kind of private property “open to the public.” ORS 164.205(3) and (4), enacted in Oregon Laws 1971, chapter 743, section 135, recognize that specific sort of privately owned property and place limitations on directions to leave such property, requiring that the direction be a lawful one. Former ORS 164.460 (1969) (repealed *466and replaced by the 1971 act) did not mention private property open to the public. But see Lenrich Associates v. Heyda, 264 Or 122, 135-36, 504 P2d 112 (1972) (O’Connell, C. J., dissenting) (“I would affirm * * * on the ground that the mall area in this case is essentially a public place and that the defendants are entitled to the protection of Art. I, § 8 of the Oregon Constitution”).

The dissent would permit criminal sanctions to enforce shrinking of the two constitutional guarantees. As to speech, the dissent requires state action before there is any constitutional protection, but refuses to see state action in a criminal prosecution by the district attorney in the name of the state. Likewise, other state actions involved in creating shopping centers as privatized community gathering places are ignored.4

I would not allow that state criminal law to abrogate either speech or initiative in those circumstances. A Fred Meyer employee testified in State v. Cargill, 316 Or 492, 851 P2d 1141 (1993), that the corporation permitted initiative petitioning near its parking lots for a number of years but later prohibited it. During the time that the corporation permitted petitioning, reasonable time, place, and manner conditions were in place. There is no substantial business reason in the record why that accommodation is not available now. State criminal laws should not be employed before reasonable time, place, and manner conditions are tried and have failed.

The trial court in Cargillfound as fact that:

“It is also quite clear, I think, and undisputed, that if they [petition signature gatherers] are not allowed to seek petitions at stores like Fred Meyer’s, and Fred Meyer [is] the biggest community presence we have here in the state, a lot of petitions, initiative petitions, are not going to make it on the ballot * *

*467Fred Meyer is this state’s largest private employer. Its “community presence” is statewide. The kind of voters interested in legislation affecting a majority of Oregonians is the kind of voters who shop at Fred Meyer. Access to those voters, on an efficient basis, is necessary if the initiative process is to work properly in this state.

Retired Justice Tongue, appointed pro tempore in this case and in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffenll), should be acknowledged by every member of the legal community, and the public, for his unflagging devotion to reduction in delay in the appellate systems.

This is the seventh time during his professional career that Justice Tongue has published criticisms of this sort aimed at the Oregon Supreme Court.5 Indeed, much of what he writes today seems to be lifted word-for-word from State v. Quinn, 290 Or 383, 409-22, 623 P2d 630 (1981) (Tongue, J., specially concurring).

Justice Tongue’s criticism is directed toward the past, not the possibility for the future that this court is in action to achieve.6 As Justice Tongue recognizes today, things are better here at present than they were when he wrote in Quinnafter he had been on the court for over ten years. That is no surprise and results from the current court’s commitment to clear the docket, responsibly, on a two and one-half year plan that is to end, successfully, this coming September.7

Writing 12 years ago, Justice Tongue said in Quinn:

“I find myself both frustrated and saddened by the failure of this court to take effective action toward a solution of what *468has become a problem of such a magnitude as to result in what I believe to be a partial paralysis of the effective functioning of this court as a court of justice in the sense that ‘justice delayed is justice denied.’ ” Id. at 417.

Justice Tongue there suggested that the court

“could require individual appellate judges to at least write proposed opinions on cases assigned to them within 90 days.” Id. at 416.

This court employs that rule and is currently ahead of that game. At the opinion conference on May 11, five of the six cases voted to be released for publication were argued much less than 90 days earlier, including two argued the first week of May. The sixth was voted for release on a draft completed less than 60 days previously.

Indeed, to members of this court, it seems that we have been running a marathon, have overcome hitting “the wall” that distance runners experience, and are in sight of the finish line and the spectators seated at the finish line. As we approach, victory in our sight, one of them stands and delivers a pie-in-the-face to the lead runners, as it seems.

The standard to which Justice Tongue would hold this, and any appellate court, was enunciated by a commission reporting to the American Bar Association in 1977. By its terms, it is directed to courts that operate in panels, not to courts such as this state supreme court,8 but the point made in 1977 is nonetheless a good guide.

Talking about this case, State v. Dameron, Justice Tongue says: “After mostly unnecessary delays for 13 months, it was reassigned on April 7, 1993, to Justice Van Hoomissen.” 316 Or at 487. The Justice is too modest. After first being assigned, along with Whiffen II, supra, to one of the dissenting members herein, this case (Dameron) was *469reassigned to Justice Tongue for a little while before it was a reassigned a second time to Justice Van Hoomissen.9

Another criterion of delay discussed by Justice Tongue in Quinnis the elapsed time between the date when the last brief is filed, or the case is otherwise at issue, and the date when the case receives a hearing such as oral argument. He also wrote about that criterion in his 1957 law review article about delay on the Oregon Supreme Court. He said:

“[T]he over-all average elapsed time between the filing of the last brief and the hearing of the case is approximately one year.” Tongue, Delays on Appeals to the Oregon Supreme Court, 36 Or Law Rev 253, 255 (1957).

However, as to civil cases, the average elapsed time between filing the last brief and oral argument date, as reported by then-lawyer Tongue, was one and one-half years. Ibid.

That criterion — time from at issue on appeal until oral argument — is not dealt with by Justice Tongue today, perhaps because this court is in exemplary condition on that criterion. Cases heard in May (this month) were on petitions for review, a direct appeal, and an original mandamus, all allowed or noticed this calendar year.10 Five of the cases heard this month were allowed the middle of March, and one was at issue only two days before its hearing. Of the 26 cases before the court with no draft opinions written (as of May 25, 1993), 19 were heard three weeks earlier, and the remainder, less two, were heard the first week in March.

In Quinnin 1981, Justice Tongue chose to quote a 1958 Legislative Interim Committee report, as follows:

“ ‘The primary function of the court is to decide cases. The function of exploring and synthesizing the law, while at times helpful, is * * * an incidental one.’ ” 290 Or at 419-20.

That report thus argues that “get it done” is more important than “ get it right, ’ ’ a view that still has its adherents. I am not one of them, given that one major purpose of our opinions *470should be to provide practitioners a reasonable opportunity to predict the outcome of other cases by applying to them the law announced in the current case.11 Predictability, of course, requires solid reasoning, adhered to by all or a clear majority of justices and, perhaps, by a habit of adherence to stare decisis.

Because Justice Tongue’s seventh criticism of the court looks to the past, and not to the future (nor even the complete current situation as this is published), it is not totally accurate.12 That is of small moment, because the marathoners are about to cross the finish line. And his seventh try will be the charm, it is already clear.

Article I, section 8, provides in part:

“No law shall be passed restraining the free expression of opinion * * * on any subject whatever * *

Article IV, section 2, provides in part:

“The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them independently of the Legislative Assembly. * * * An initiative * * * may be proposed only by a petition signed by the [required] number of qualified voters.”

See also Cincinnati v. Discovery Network,_US__., 113 S Ct 1505, 123 L Ed 2d 99 (1993) (ban on sidewalk newsracks for commercial publications only held, inter alia, not content neutral and therefore to offend First Amendment). That case may answer a contention that Fred Meyer’s freedom of speech is abridged unless it can exercise content control over speech on its premises.

Nor, should they be able to, after this court held in Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) CWhiffen I), that the power of the state courts should not be used, through injunctions, to quell initiative speech exercised at a reasonable time, place, and manner.

Favorable governmental land use decisions and regulations, government-provided or government-assisted developmental financing, government accommodations through road and highway changes, and government transfers of streets and roads from public to private use are other examples of governmental action involved. For example, in the companion case, State v. Cargill, 316 Or 492, 851 P2d 1141 (1993), decided by six members of the court, Madison Street was changed from a public street to benefit the access and parking lot at the 39th and Hawthorne, Portland, Fred Meyer department store.

There may be other times when he was Chair of the Judicial Administration Committee of the Bar. Judge-bashing goes with that territory.

Indeed, the specific figures used by Justice Tongue will not be an accurate picture of pending cases at all as this is published in the advance sheets. They will instead be like statues of historical villains in a wax museum.

The 23 death penalty cases pending when the plan was instituted, where the law mandates an automatic review by this court of all trial court death sentences, were then becoming time consuming. Many of those caseshadtobe dealt with by this court in two separate appeals, with an appeal not infrequently having 50 or more assigned errors.

In a collegial court such as this one, operating en banc and by all justices contributing to the opinion, not just the named author, we must come together on the reasoning of the decision. At times that is a bit like participating in a seven-legged sack race where all participants, each with one leg in the same sack, must cross the finish line together. Of course, this produces what Karl Llewellyn, excerpted in Aldisert, The Judicial Process 675, 681 (1976), called the steadying factor of group decision.

Neither Dameron nor State v. Cargill, 316 Or 492, 851 P2d 1141 (1993), nor Lloyd Corporation v. Whiffen, 315 Or 500,849 P2d 446 (1993) (Whiffen II), have ever been assigned to me. My mea culpas are in other areas. I unsuccessfully urged that Dameron stay with Justice Tongue a bit longer before its second reassignment. He suggested the reassignment.

One case was reset from November 1992 at the request of the parties.

Dean Wigmore, excerpted in Leflar, Appellate Judicial Opinions 151 (ed 1974), seems to criticize the “get-it-done” school when he discusses one of the shortcomings of appellate opinions as follows:

“In the next place, the overburdening labor cramps them. The number of appeals, and the popular demand for quick dispatch, unite to make a pressure for hurry. This means that there is no time to study and master ‘ad hoc’ the whole law of a subject. There is only time to master the record of the specific case, and for this purpose to peruse the precedents cited on the brief, or some of them.” (Emphasis in original.)

Justice Tongue says, 316 Or at 488, that:

“This court * * * hears mostly cases which it chooses to hear by the granting of petitions for review of decisions by the Court of Appeals.”

There are other classes of time-consuming cases that this court must take, having no choice in the matter. “Automatic” death penalty cases come by direct appeal, frequently involving 50 or more assignments of error per case. The 23 death penalty cases with automatic appeals a few years back placed the court in need of running this marathon, in the view of many people. Direct, statutorily permitted appeals come from the Oregon Tax Court. Direct proceedings to review legal sufficiency of ballot titles, explanatory statements, and procedural matters related to elections, constitute a not inconsiderable amount of priority litigation (one of which is decided today, less than 30 days after the election case first arose). Cases sent by special law for constitutional review in this court directly, from legislative enactment to this court, such as pension-taxation or corrections construction siting, and bond financing also consume chunks of priority time. Original jurisdiction requests in habeas corpus and mandamus as to which this court is the first stop, continue unabated.

Moreover, the number of petitions for review has increased by a significant percentage in recent years. So, it seems, have the number of matters statutorily subject to expedited or priority handling.

Citation profile

How this case has been treated — in progress