Filed: September 14, 2000

LOIS STRANAHAN,

Respondent on Review,

v.

FRED MEYER, INC.,
a Delaware corporation,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted November 5, 1999.

Charles F. Hinkle, of Stoel Rives LLP, Portland, argued the cause and filed the briefs for petitioner on review.

Gregory Kafoury and Mark McDougal, Portland, argued the cause for respondent on review. Gregory Kafoury filed the brief.

Mark A. Anderson, Portland, filed a brief for amicus curiae ACLU of Oregon.

Eli D. Stutsman, Portland, filed a brief for amicus curiae Progressive Campaigns, Inc.

Linda K. Williams, Portland, filed a brief for amicus curiae AFL-CIO of Oregon.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, and Kulongoski, Justices.**

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

Van Hoomissen, J., concurred and filed an opinion.

*Appeal from Multnomah County Circuit Court,

Robert W. Redding, Judge.

153 Or App 442, 958 P2d 854 (1998).

**Leeson and Riggs, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

The underlying issue in this false arrest case is whether this court's decision in Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (Whiffen II), correctly states the law of Oregon under Article IV, section 1, of the Oregon Constitution, (1) with respect to the right of initiative petitioners to utilize private property over the objection of the property owner. A majority of the Court of Appeals, considering itself bound by that precedent, concluded that it does. Stranahan v. Fred Meyer, Inc., 153 Or App 442, 451, 958 P2d 854 (1998). For the reasons that follow, we now conclude that Whiffen II does not state correctly the law of Oregon on that subject. We therefore reverse the decision of the Court of Appeals.

We take our statement of facts from the Court of Appeals' majority opinion and the record, omitting those facts that relate to issues other than the one that is central to the case on review:

"Plaintiff Lois Stranahan brought this action for false arrest against defendant Fred Meyer, Inc. (Fred Meyer) * * *. * * *

"* * * * *

"Stranahan has long been a political activist in Oregon, and has promoted her political beliefs through use of the initiative process. This political activity has often involved gathering signatures to put the initiatives she supports on the ballot. * * * At the time of the incident at issue in the present case, Stranahan was gathering signatures to put initiatives on the ballot concerning sales taxes and the rights of initiative petitioners. Fred Meyer, a chain of shopping centers, maintains that it has a right to exclude initiative petitioners such as Stranahan from its shopping centers and its property surrounding those shopping centers.

"On October 11, 1989, Stranahan and another signature-gatherer * * * were arrested for trespassing outside a Fred Meyer shopping center at Southeast 82nd and Foster, in Portland.[ (2)] This litigation stems from that arrest."

Id. at 444.

Stranahan's actions throughout her petitioning activity and the ensuing arrest were peaceful. She had notified Fred Meyer management that she would be soliciting signatures, and she had been doing so for several hours at the time of her arrest. In the course of being arrested, Stranahan suffered physical injuries. She later filed this false arrest action against Fred Meyer, maintaining that she had a state constitutional right to be on Fred Meyer's property for the purpose of soliciting signatures, that her arrest therefore was unlawful, and that Fred Meyer should be required to respond in damages for the injuries that she had sustained. For its part, Fred Meyer argued that Stranahan had no such constitutional right and, therefore, that it was entitled to have her arrested for trespass when she refused to leave the premises after having been directed to do so by Fred Meyer personnel.

At the time when Stranahan was arrested, a number of legal proceedings had grown out of the efforts of various private property owners in Oregon, including Fred Meyer, to prevent petitioning activity on their property. To place the trial of Stranahan's action in context, we set out that procedural history here.

The first legal proceeding took place in 1984, when Fred Meyer obtained a restraining order that prevented a group of petitioners from soliciting signatures at its stores. Two years later, Fred Meyer obtained final judgments in two separate cases that also stated that Fred Meyer had a right to bar petitioning activity at its stores.

In February 1988, the Court of Appeals issued a decision that called the judgments in the earlier Fred Meyer cases into question. In Lloyd Corporation v. Whiffen, 89 Or App 629, 634, 750 P2d 1157 (1988) (hereafter "the Court of Appeals' decision in Whiffen I"), the Court of Appeals held that a broadly worded injunction that prevented petitioning activity inside Lloyd Center, a large shopping center in Portland, implicated the petitioners' rights of free expression under Article I, section 8, of the Oregon Constitution. (3) The court further held that, although the owner of Lloyd Center could not ban such activity outright, it could adopt reasonable time, place, and manner regulations relating to that activity. Id. at 638-39.

Fred Meyer then sought to determine whether that decision -- which, as noted, involved a large shopping center -- applied to its stores. It did so by filing a complaint for an injunction against Lloyd Marbet, a petitioner who often worked with Stranahan on behalf of an organization known as the Coalition for Petition Rights (Coalition). On May 5, 1988, the trial court in the Marbet case held that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer stores and, accordingly, enjoined Marbet and all other persons petitioning with him from soliciting signatures on Fred Meyer's property. The Marbet case later was held in abeyance, pending this court's review of the Court of Appeals' decision in Whiffen I.

Meanwhile, on May 4, 1988, other petitioners from the Coalition, including Stranahan, were cited for trespassing on Fred Meyer's property when they refused to leave a Fred Meyer store after being directed to do so. At Stranahan's trial on that trespass charge in July 1988, the court ruled that the Court of Appeals' decision in Whiffen I did not apply to the Fred Meyer store at issue. Stranahan and the other petitioners thereafter were convicted of trespass.

In June 1988, in light of Fred Meyer's action against Marbet and the criminal case against Stranahan, the Coalition filed an action against Fred Meyer, seeking to enjoin Fred Meyer from prohibiting petitioning activity at its stores. A trial court rejected the Coalition's request, ruling that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer's stores. At about the same time, two additional trial courts in two other cases similarly ruled that the Court of Appeals' decision in Whiffen I did not apply to Fred Meyer's stores. (4)

In May 1989, this court affirmed the Court of Appeals' decision in Whiffen I. Lloyd Corporation v. Whiffen, 307 Or 674, 773 P2d 1294 (1989) (hereafter "Whiffen I"). However, the court did not reach the issue whether an injunction barring the petitioners from soliciting signatures inside Lloyd Center violated their free expression rights under Article I, section 8. Rather, the court addressed the case on what it characterized as "subconstitutional" grounds, 307 Or at 680, concluding that principles of equity required that the petitioners be allowed to solicit signatures inside Lloyd Center, so long as they did so reasonably, quietly, and peaceably, and without substantially interfering with the owner's commercial enterprise. Id. at 686-87. The court further held that the trial court could issue an injunction imposing reasonable time, place, and manner restrictions on petitioning activity inside Lloyd Center. Id. at 687-88. We discuss the reasoning set out in Whiffen I in greater detail later in this opinion.

Five months after this court's decision in Whiffen I, a petitioner was acquitted of trespassing on Fred Meyer's property, following a trial judge's ruling that she was within her rights to refuse to leave the property when asked to do so. Stranahan again was arrested that same month, on October 11, 1989, giving rise to the case at bar. At that time, the Marbet case still was pending. In February 1990, the trial court in the Marbet case reaffirmed its earlier ruling that Whiffen I did not apply to Fred Meyer stores and entered a declaratory judgment stating that Fred Meyer had a legal right to remove initiative petitioners from its stores.

At about that same time, the Court of Appeals reversed the earlier trespass convictions of Stranahan and others, which had arisen from their petitioning activity at a Fred Meyer store. See State v. Cargill, 100 Or App 336, 786 P2d 208 (1990) (so ruling). Analyzing the case under Article IV, section 1, of the Oregon Constitution, the Court of Appeals concluded that it was "implicit" in that section "that the people must have adequate opportunities to sign the petitions that are necessary for them to act as legislators." Id. at 343. The Court of Appeals then held:

"Article IV, section 1, * * * 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. at 348. This court affirmed by an equally divided court. State v. Cargill, 316 Or 492, 851 P2d 1141 (1993).

Meanwhile, in response to this court's decision in Whiffen I, the owner of Lloyd Center had adopted time, place, and manner restrictions that limited petitioning activity inside Lloyd Center. A group of petitioners attempted to solicit signatures outside the scope of those restrictions, and the owner responded by seeking an injunction. A trial court issued the injunction, and, in June 1991, the Court of Appeals affirmed, concluding that the restrictions were reasonable. Lloyd Corporation v. Whiffen, 107 Or App 773, 813 P2d 573 (1991). In March 1993, this court affirmed in part and reversed in part, reasoning that the right to initiate laws and constitutional amendments under Article IV, section 1, implicitly included the right to solicit signatures for initiative petitions in the common areas of large shopping centers such as Lloyd Center. Whiffen II, 315 Or at 514. We discuss the Whiffen II decision in greater detail later in this opinion.

Shortly after issuing Whiffen II, this court decided State v. Dameron, 316 Or 448, 853 P2d 1285 (1993), which involved a criminal defendant who had been convicted of trespass after soliciting signatures outside a Fred Meyer store that was located inside a privately owned shopping center. The Court of Appeals had reversed the conviction, reasoning that the defendant's actions constitutionally were protected under Cargill. This court affirmed the decision of the Court of Appeals, holding that the state had not proved that the Fred Meyer store at issue was different in character from a large shopping center such as Lloyd Center. Id. at 461-62.

The trial in Stranahan's false arrest action against Fred Meyer commenced in February 1995. At trial, Fred Meyer introduced evidence that, in its view, demonstrated that the store at issue bore characteristics that distinguished it from a large shopping center. Both parties also introduced a number of appellate decisions into evidence, including Cargill, Whiffen II, and Dameron.

At the close of evidence, Fred Meyer moved for a directed verdict on the ground, inter alia, that the store at issue had not been opened to the public for petitioning purposes under Cargill and Dameron. The trial court denied that motion, concluding that the store fit within the facts of Cargill and Dameron, and, therefore, that Stranahan had a right to solicit signatures on the privately owned sidewalk outside the store. The court later instructed the jury to that effect and further instructed that Fred Meyer had a right to direct Stranahan to leave its premises, but did not have a legal right to have her arrested for trespass after she refused to do so.

The jury returned a substantial verdict in Stranahan's favor, including punitive damages totaling $2 million, which the trial court later reduced to $375,000. Stranahan appealed that reduction to the Court of Appeals, and Fred Meyer cross-appealed, contending, inter alia, that, under Whiffen II and Dameron, it had a right to prohibit petitioning activity at the store in question, because that store was different in character from a large shopping center.

A divided, en banc Court of Appeals affirmed on Fred Meyer's cross-appeal, specifically ruling that the trial court had not erred in denying Fred Meyer's multiple motions for a directed verdict. (5) Stranahan, 153 Or App at 454-62. The majority reasoned, in part, that the Fred Meyer store at issue was similar in character to the Fred Meyer stores involved in Cargill and Dameron, and that, like the owner of Lloyd Center in Whiffen II, Fred Meyer had extended a broad invitation to the public to shop there. It followed, in the majority's view, that Fred Meyer had not established that Stranahan's petitioning activity was unlawful, rendering baseless its defense to her claim of false arrest. Id. at 455. One judge concurred in the result, contending that the critical fact under Whiffen II was that Fred Meyer had invited the public to its stores for its own commercial business advantage. Id. at 477-78 (Leeson, J., pro tempore, concurring). Four judges dissented, asserting that, because the evidence did not demonstrate an intent on Fred Meyer's part to invite the public to do anything other than purchase consumer goods at the store in question, that store was not subject to Stranahan's right to solicit signatures under Article IV, section 1. Id. at 497 (Landau, J., dissenting).

Fred Meyer petitioned for review, contending, inter alia, that Article IV, section 1, does not create a right to solicit signatures for initiative petitions on private property and, consequently, that Whiffen II was decided incorrectly and should be overruled. (6) We allowed review to consider that issue.

We first note that, before this court's decision in Whiffen II, there had been a long history of federal constitutional litigation pitting the rights of persons engaging in political activity, such as petitioning, against the rights of private property owners. See Marsh v. Alabama, 326 US 501, 505-09, 66 S Ct 276, 90 L Ed 265 (1946) (holding that Jehovah's Witness who had been convicted of trespassing after refusing to stop distributing religious literature on sidewalk of "company town" could not be denied the right to express her freedom of religion and freedom of the press under the First Amendment to the United States Constitution, (7) simply because a single company held legal title to the entire town); Food Employees v. Logan Plaza, Inc., 391 US 308, 318-19, 88 S Ct 1601, 20 L Ed 2d 603 (1968) (extending Marsh rationale to peaceful union picketing activity outside shopping center; holding that shopping center was "functional equivalent[]" of business district in company town); Lloyd Corp. v. Tanner, 407 US 551, 561-64, 567-69, 92 S Ct 2219, 33 L Ed 2d 131 (1972) (retreating from "functional equivalency" discussion in Logan Plaza; confining Logan Plaza to its facts; holding that shopping center owner could prohibit political handbill distributions on its property); Hudgens v. NLRB, 424 US 507, 520-21, 96 S Ct 1029, 47 L Ed 2d 196 (1976) (rejecting contention that First Amendment required that union members protesting labor practices at employer's warehouse be permitted to picket employer's retail store located inside privately owned shopping center); Pruneyard Shopping Center v. Robins, 447 US 74, 80-88, 100 S Ct 2035, 64 L Ed 2d 741 (1980) (sustaining decision of California Supreme Court under California Constitution and holding that unwanted, reasonable petitioning activity in privately owned shopping center neither violated shopping center owner's right to free speech under First Amendment nor effected taking without just compensation under Fifth Amendment (8)).

The foregoing Supreme Court cases can be summarized as follows. First, in determining whether the First Amendment protects petitioning or other political activity on private property, the test is not whether that property amounts to the "functional equivalent" of a public forum. Rather, a court must determine whether, under the facts of the particular case, it could be said that state action implicating the First Amendment has occurred. Hudgens, 424 US at 520-21; Tanner, 407 US at 562-63. Second, although the First Amendment generally is not implicated when persons engage in petitioning or other political activity inside privately owned shopping centers, certain state constitutional provisions might mandate that such activity be permitted. Pruneyard Shopping Center, 447 US at 81. Finally, where such state constitutional provisions exist, the property owner's rights under the First and Fifth Amendments might or might not be implicated, depending on the facts of the particular case. Id. at 82-88.

The foregoing Supreme Court decisions provided the background against which this court has addressed the issue whether the Oregon Constitution requires permitting petitioning activity inside privately owned shopping centers, even when the owner objects to such activity. This court first addressed that issue in Whiffen I, which, as noted earlier, involved petitioning activity inside Lloyd Center. In that case, the trial court had entered an injunction that had restrained the petitioners from "entering upon [the owner's] private property to exercise their expressions of opinion or to gather signatures in the initiative and referendum process without [the owner's] permission or consent." 307 Or at 677 (internal quotation marks omitted). The Court of Appeals had reversed, reasoning that the injunction violated the petitioners' rights to free expression under Article I, section 8, of the Oregon Constitution, but that those rights constitutionally could be subjected to reasonable time, place, and manner restrictions. Id.

In affirming the Court of Appeals' decision on different grounds, this court avoided the constitutional issue. Rather, this court reasoned on a "subconstitutional" basis, id. at 680, that the equitable determination whether an injunction should be entered required a balancing of the interests involved -- specifically, the public interest implicated in the people's power of initiative and referendum under Article IV, section 1, and the owner's interest in preventing injury to its commercial enterprise. Id. at 684-85. The court concluded that, under application of those equitable principles, the petitioners could not be enjoined from entering Lloyd Center because "[t]he solicitation of signatures of patrons does not in and of itself constitute substantial interference" with the owner's commercial enterprise. Id. at 687. In reaching that conclusion, the court emphasized that the process of signature solicitation was a "fundamental principle of the Oregon government," id. at 684, and that the public policy behind that process "limits equitable enforcement of [the owner's] preferred total exclusion of signature solicitors." Id. at 687. Thus, although it did not base its decision on either Article I, section 8, or Article IV, section 1, the court did highlight the political importance of the ability to solicit signatures for initiative petitions.

As noted earlier, following this court's decision in Whiffen I, the owner of Lloyd Center adopted a number of restrictions limiting the ability of initiative petitioners to solicit signatures inside Lloyd Center. The owner's effort to enforce those restrictions led to this court's decision in Whiffen II. The trial court in that case had issued an injunction in favor of the owner of Lloyd Center, and the Court of Appeals had affirmed, concluding that the rules adopted were reasonable. Before this court, the owner contended that requiring it to allow petitioning activity on its private property violated the takings, free expression, and free speech provisions of the state and federal constitutions. The owner also contended that neither Article I, section 8 or 26, (9) nor Article IV, section 1, granted to the petitioners the right to solicit signatures inside a privately owned shopping center over the owner's objection. Whiffen II, 315 Or at 503-04.

The Whiffen II court began its analysis by disposing of the owner's contentions that compelling it to provide a forum for petitioning activity constituted a taking under either the state or federal constitutions. After assuming that the takings analysis under Article I, section 18, of the Oregon Constitution, (10) would be the same as the analysis under the Fifth Amendment to the United States Constitution, the court applied Pruneyard Shopping Center, 447 US at 82-85, and concluded that no "taking" of a constitutional dimension had occurred. Whiffen II, 315 Or at 505-07. The court similarly disposed of the owner's assertion of its rights to free expression and free speech under Article I, section 8, of the Oregon Constitution, and the First Amendment to the United States Constitution, again applying a federal constitutional analysis to both provisions and concluding, under Pruneyard Shopping Center, 447 US at 85-88, that no constitutional violations had occurred. Whiffen II, 315 Or at 507-09.

The court then turned to the issue whether the initiative and referendum provisions of Article IV, section 1, of the Oregon Constitution, which the people originally adopted by legislative referral in 1902, conferred a right to solicit signatures for initiative petitions "on private property to which the public had been invited." Id. at 510. The court began by noting that, although the United States Supreme Court had concluded in Tanner that the First Amendment did not confer such a right, the Court also expressly had stated in Pruneyard Shopping Center that Tanner did not "limit the authority of [a] [s]tate to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." Id. at 510 (internal quotation marks omitted). The court then agreed with the holding in Marsh -- a case decided under the First Amendment -- that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id. (internal quotation marks omitted).

Next, the court held in summary fashion that "persons may seek signatures in the common areas of the Lloyd Center, subject to reasonable time, place, and manner restrictions." Id. at 511. As support for that holding, the court cited Oregon's longstanding tradition of facilitating the process of signature solicitation, reiterating the statement in Whiffen I that such activity is a "fundamental principle of the Oregon government." Id. at 512 (emphasis and internal quotation marks omitted). The court also noted its agreement with the Court of Appeals' holding in Cargill, 100 Or App at 348, that Article IV, section 1, implicitly required that persons have adequate opportunities to sign initiative petitions. Whiffen II, 315 Or at 512. Finally, the court cited Pruneyard Shopping Center and Marsh -- again, both First Amendment cases -- as support for its holding that Article IV, section 1, permits petitioning activity inside privately owned shopping centers, even over the owner's objection. Id. at 513-14. The court concluded its decision by reviewing the time, place, and manner restrictions imposed by the owner of Lloyd Center, striking the restrictions that it found "unduly restrictive" of the petitioners' right to solicit signatures, absent a showing that interference with the owner's commercial enterprise was so substantial as to place an "unreasonable burden" on the owner. Id. at 515-19.

Shortly after deciding Whiffen II, this court decided Dameron, 316 Or 448, which, as noted earlier, overturned the trespass conviction of a criminal defendant who had solicited signatures outside a Fred Meyer store that was located inside a privately owned shopping center. The issue in that case was whether the defendant unlawfully had remained on the premises within the meaning of ORS 164.245(1) (1993) and ORS 164.205(3)(b), (11) after being directed to leave by a person in authority. The Court of Appeals had reversed the defendant's conviction, reasoning that the defendant had engaged in constitutionally protected activity under Cargill. 316 Or at 455-56. On review, in affirming the Court of Appeals' decision, this court did not revisit its holding in Whiffen II. Indeed, the court concluded that, in light of the defendant's right under Article IV, section 1, to solicit signatures in the common areas of privately owned shopping centers (as set out in Whiffen II), the state bore the burden of proving that "the direction to leave the premises was lawful, i.e., that the defendant had no legal right to ignore the direction to leave." Id. at 460. The court then held that, because the state had failed to prove that the Fred Meyer store in question was different in character from a large shopping center, the state had not met its burden of proving that Fred Meyer lawfully had requested the defendant to leave the premises. Id. at 461-62.

This court's decisions in Whiffen II and, to a lesser extent, Dameron, lead us to the present case. As can be seen from the foregoing case law summary, unless Whiffen II was wrongly decided or, if correctly decided, is distinguishable in some way, the Court of Appeals majority correctly ruled on Fred Meyer's cross-appeal in this case. Before this court, Fred Meyer's principle contention is that Whiffen II -- specifically, its Article IV, section 1, analysis -- was decided incorrectly and, therefore, should not be followed. We turn to that issue, but begin with some preliminary observations concerning the methodology to be used when this court is asked to reconsider a constitutional decision.

The question is one of stare decisis, a doctrine that attempts to balance two competing considerations. On one hand is the undeniable importance of stability in legal rules and decisions. That consideration applies with particular force in the arena of constitutional rights and responsibilities, because the Oregon Constitution is the fundamental document of this state and, as such, should be stable and reliable. On the other hand, the law has a similarly important need to be able to correct past errors. This court is the body with the ultimate responsibility for construing our constitution, and, if we err, no other reviewing body can remedy that error. See Hungerford v. Portland Sanitarium, 235 Or 412, 415, 384 P2d 1009 (1963) ("[t]he pull of stare decisis is strong, but it is not inexorable").

We repeat a further observation concerning the doctrine of stare decisis made nearly a half century ago, but equally apt today:

"'"A deliberate or solemn decision of a court or judge, made after argument of a question of law fairly arising in a case, and necessary to its determination, is an authority, or binding precedent, in the same court or in other courts of equal or lower rank, in subsequent cases, where 'the very point' is again in controversy; but the degree of authority belonging to such a precedent depends, of necessity, on its agreement with the spirit of the times or the judgment of subsequent tribunals upon its correctness as a statement of the existing or actual law, and the compulsion or exigency of the doctrine is, in the last analysis, moral and intellectual, rather than arbitrary or inflexible."'"

Landgraver v. Emanuel Lutheran, 203 Or 489, 528, 280 P2d 301 (1955) (quoting State v. Mellenberger, 163 Or 233, 259, 95 P2d 709 (1939)), overruled in part on other grounds by Hungerford, 235 Or at 414 (emphasis added).

Consistent with the foregoing, we remain willing to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question. We will give particular attention to arguments that either present new information as to the meaning of the constitutional provision at issue or that demonstrate some failure on the part of this court at the time of the earlier decision to follow its usual paradigm for considering and construing the meaning of the provision in question. With those considerations in mind, we turn to Fred Meyer's arguments respecting the alleged defects in this court's decision in Whiffen II.

Fred Meyer argues, inter alia, that this court departed from its well-established methodology for construing constitutional provisions when it decided Whiffen II. Fred Meyer cites Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), as setting out the proper methodology for constitutional interpretation and notes the absence of that case from the court's discussion in Whiffen II. Fred Meyer asserts that, when the correct methodology is followed, it becomes clear that Whiffen II was decided incorrectly.

As a preliminary matter, we note that, when construing provisions of the Oregon Constitution, it long has been the practice of this court "to ascertain and give effect to the intent of the framers [of the provision at issue] and of the people who adopted it." Jones v. Hoss, 132 Or 175, 178, 285 P 205 (1930); see also Oregonian Publishing Co. v. O'Leary, 303 Or 297, 304, 736 P2d 173 (1987) (demonstrating that framers' intent, rather than isolated evidence of historical practices, governs constitutional interpretation). To ascertain that intent, this court has stated:

"There are three levels on which [the] constitutional provision [at issue] must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation."

Priest, 314 Or at 415-16.

Priest, which involved interpretation of an original constitutional provision, was decided almost a year before this court's decision in Whiffen II. Fred Meyer correctly notes that, although Priest represented this court's first clear statement of a methodology for ascertaining the intent of the framers and the people, the court long had followed a similar approach when interpreting other original provisions of the Oregon Constitution. See, e.g., State v. Kessler, 289 Or 359, 614 P2d 94 (1980) (analyzing wording, historical background, and relevant cases pertaining to right to bear arms set out in Article I, section 27). Further, before this court's decision in Whiffen II, this court had applied a Priest-like analysis in cases involving constitutional provisions and amendments that, like the initiative and referendum provisions of Article IV, section 1, were adopted by legislative referral. See, e.g., State v. Gortmaker, 295 Or 505, 668 P2d 354 (1983) (examining wording and history surrounding grand jury provisions adopted by legislative referral as Article VII (Amended), section 5).

Fred Meyer also is correct that, in Whiffen II, this court made no attempt to ascertain the intent of the people when they adopted the initiative and referendum provisions of Article IV, section 1. Neither did the court adhere to its usual methodology of examining the text, history, and case law surrounding an original constitutional provision, or one adopted by legislative referral, when it analyzed Article IV, section 1. The court instead concluded in summary fashion that Article IV, section 1, required that initiative petitioners be allowed to solicit signatures in the common areas of privately owned shopping centers, even when the owner objects. Whiffen II, 315 Or at 511. In its limited analysis, the court also relied to a significant degree on the United States Supreme Court's decisions in Marsh and Pruneyard Shopping Center, both of which were decided under the First Amendment to the United States Constitution.

In short, Fred Meyer's criticism of the Whiffen II decision -- specifically, the failure of that decision to follow this court's established methodology for ascertaining the intended meaning of a constitutional provision -- is well taken. We therefore will reexamine the issue presented, viz., whether Article IV, section 1, confers the right to solicit signatures for initiative petitions on private property over the owner's objection.

Before doing so, however, we take this opportunity to clarify the interpretive methodology that is applicable here. As noted, before Whiffen II was decided, this court had set out in Priest a methodology for interpreting original constitutional provisions, which it generally also had followed in the past when construing constitutional provisions adopted by legislative referral. However, shortly after deciding Whiffen II, two other decisions of this court set out a slightly different methodology for interpreting constitutional provisions and amendments adopted by initiative petition. First, in Roseburg School Dist. v. City of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993), the court stated:

"In interpreting a constitutional provision adopted through the initiative process, our task is to discern the intent of the voters. The best evidence of the voters' intent is the text of the provision itself. * * * The context of the language of the ballot measure may also be considered; however, if the intent is clear based on the text and context of the constitutional provision, the court does not look further. * * *"

(Citations and footnote omitted.) A year later, in Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106 (1994), the court reiterated the above-quoted methodology from Roseburg School Dist. and added that, "[i]f the intent of the voters is not clear from the text and context of the initiated constitutional provision, the court turns to the history of the provision." Ecumenical Ministries, 318 Or at 559 (footnote omitted). The court also noted that caution must be used before ending the analysis at the first level, viz., without considering the history of the constitutional provision at issue. Id. at 559 n 7; see also Coultas v. City of Sutherlin, 318 Or 584, 590, 871 P2d 465 (1994) ("It is an unusual case in which the text and context of a[n initiated] constitutional provision reflect the intent of the voters so clearly that no alternative reading of the provision is possible.").

Here, Fred Meyer argues that we should follow the methodology set out in Priest to determine whether Article IV, section 1, confers a right to solicit signatures for initiative petitions on private property over the owner's objection. However, because the initiative and referendum provisions of Article IV, section 1, were adopted pursuant to legislative referral, rather than as part of the original Oregon Constitution, we conclude that we should apply the methodology set out for initiated constitutional provisions and amendments in Roseburg School Dist. and, more specifically, in Ecumenical Ministries. We make that distinction because of the inherent difference between original constitutional provisions and those later adopted or amended by legislative referral or initiative petition. As to the former, the drafters of the constitution crafted those provisions and submitted them to the people for approval without the benefit of an existing constitutional framework. In contrast, provisions or amendments created through either legislative referral or initiative petition are adopted by the people against the backdrop of an existing constitutional framework. It follows that, with respect to the latter provisions, it is the people's understanding and intended meaning of the provision in question -- as to which the text and context are the most important clue -- that are critical to our analysis. (12) We therefore proceed to analyze the relevant parts of Article IV, section 1, under the methodology set out in Roseburg School Dist. and Ecumenical Ministries. See generally OEA v. Roberts, 301 Or 228, 231, 721 P2d 833 (1986) (applying methodology similar to Ecumenical Ministries to part of Article IV, section 1, amended by legislative referral in 1968). (13)

As always, we begin with the text of the constitutional provision at issue. Article IV, section 1, provides, in part:

"(1) The legislative power of the state, except for the initiative and referendum powers reserved to the people, is vested in a Legislative Assembly, consisting of a Senate and a House of Representatives.

"(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.

"(b) An initiative law may be proposed only by a petition signed by a number of qualified voters equal to six percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

"(c) An initiative amendment to the Constitution may be proposed only by a petition signed by a number of qualified voters equal to eight percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition.

"(d) An initiative petition shall include the full text of the proposed law or amendment to the Constitution. A proposed law or amendment to the Constitution shall embrace one subject only and matters properly connected therewith.

"(e) An initiative petition shall be filed not less than four months before the election at which the proposed law or amendment to the Constitution is to be voted upon.

"(3)(a) The people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly that does not become effective earlier than 90 days after the end of the session at which the Act is passed.

"(b) A referendum on an Act or part thereof may be ordered by a petition signed by a number of qualified voters equal to four percent of the total number of votes cast for all candidates for Governor at the election at which a Governor was elected for a term of four years next preceding the filing of the petition. A referendum petition shall be filed not more than 90 days after the end of the session at which the Act is passed.

"(c) A referendum on an Act may be ordered by the Legislative Assembly by law. * * *

"(4)(a) Petitions or orders for the initiative or referendum shall be filed with the Secretary of State. The Legislative Assembly shall provide by law for the manner in which the Secretary of State shall determine whether a petition contains the required number of signatures of qualified voters. * * *

"(b) Initiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith."

Some significant points can be drawn from the foregoing text. First, Article IV, section 1, specifically defines the "initiative power" as the power to propose laws and constitutional amendments and to enact or reject them, and the "referendum power" as the power to approve or reject any bill passed by the legislature that meets certain criteria. Or Const, Art IV,