SOUTHCENTER JOINT VENTURE, ET AL, Respondents, v. NATIONAL DEMOCRATIC POLICY COMMITTEE, ET AL., Appellants.
No. 55952-0
En Banc.
October 19, 1989.
The trial court is affirmed in its finding the tenant assistance provisions invalid. The trial court is reversed to the extent it awarded damages proximately resulting from the enforcement of the ordinance. The matter is remanded for determination of an attorney fee for defending on appeal the contempt order.
CALLOW, C.J., and UTTER, DOLLIVER, DORE, PEARSON, ANDERSEN, DURHAM, and SMITH, JJ., concur.
Ferguson & Burdell, by Henry C. Jameson and Alan Bornstein, for respondents.
Peter J. Eglick and Robert R. Meinig on behalf of the American Civil Liberties Union, amici curiae for appellants.
James B. Stoetzer and Michael B. King on behalf of Northgate Shopping Center and Merchants Association and Tacoma Mall Merchants Association, amici curiae for respondents.
ANDERSEN, J.-
FACTS OF CASE
This case presents the question of whether a political organization has a right under the free speech provision of the Constitution of the State of Washington to solicit contributions and sell literature in a privately owned shopping mall. We conclude that it does not.
Southcenter Joint Venture (Southcenter) owns the Southcenter Shopping Center, an enclosed shopping mall
On June 20, 1986, an organization named the National Democratic Policy Committee (NDPC) submitted an application requesting the use of a public service center. The NDPC is a political organization apparently devoted to advancing the political views of one Lyndon LaRouche. Despite its name, the NDPC is not affiliated with the Democratic Party.
In its application, the NDPC stated that it wished to use a public service center for the purposes of distributing literature, signing up members, and soliciting contributions. Southcenter denied the application due to its regulation against soliciting funds. This prompted an attorney representing the NDPC to inform Southcenter that he considered the NDPC‘s right to solicit funds at the mall to have been established when it prevailed in an earlier civil action brought against it by the previous mall owner. The attorney also told Southcenter that he would advise his clients to be present in the mall “at such times and places as they deem appropriate“.
In the afternoon of July 17, 1986, four individuals who were members of, or affiliated with, the NDPC appeared unannounced at the mall and undertook to solicit contributions and sell literature. The mall‘s assistant manager asked them to leave, but they refused. Later that afternoon, they left the mall of their own accord.
Southcenter subsequently brought an action in the Superior Court against the NDPC and the four individuals who
The Superior Court granted Southcenter‘s motion and entered judgment permanently enjoining the NDPC from soliciting contributions or selling literature on the mall premises without Southcenter‘s consent. The NDPC then sought further review. The Court of Appeals certified the case to this court for determination and we accepted certification.1
This case presents us with three issues.
ISSUES
ISSUE ONE. Does the doctrine of collateral estoppel apply so as to prevent relitigation of issues raised in a prior action brought by the previous mall owner against the NDPC?
ISSUE TWO. Under the free speech provision of the Constitution of the State of Washington, does a political organization have the constitutional right to solicit contributions and sell literature at a privately owned shopping mall?
ISSUE THREE. Did the trial court err by dismissing the NDPC‘s counterclaim for defamation?
ISSUE ONE.
CONCLUSION. The doctrine of collateral estoppel does not apply in this action because Southcenter is not in privity with a party to the prior litigation.
The NDPC first contends that the doctrine of collateral estoppel applies here. Its contention is based on the fact that issues similar to those raised in this case were litigated in an action brought by the previous mall owner against the NDPC in 1984. In the earlier case, the NDPC prevailed in the Superior Court and the then mall owner did not appeal.
The following elements are required for application of the doctrine of collateral estoppel:
(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.
Shoemaker v. Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987) (quoting Malland v. Department of Retirement Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985)).
Southcenter asserts that the doctrine of collateral estoppel does not apply here because, among other things, collateral estoppel element 3 is absent in that Southcenter was not a party to or in privity with a party to the prior adjudication. We agree. It is true that Southcenter did acquire the mall from a party to the prior action. It is also true that a successor in interest to a party to an action that determines interests in property is subject to the preclusive effects of that action.2 That rule, however, is not applicable where the previous action involved a “personal” right, as opposed to a “property” right.3
Thus, since the previous action involved a personal right, Southcenter is not in privity with a party to the prior adjudication and collateral estoppel does not apply to prevent relitigation of issues raised in the previous action. This conclusion is bolstered by our rule that the relitigation of an important issue of law should not be foreclosed by collateral estoppel.5
ISSUE TWO.
CONCLUSION. The free speech provision of the Constitution of the State of Washington (
It is the NDPC‘s next contention that it has a free speech right to solicit contributions and sell literature at the mall. It is, of course, true that the oral and written dissemination of one‘s views is protected by the
In the case of Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), however, the United States Supreme Court held that the
the
First andFourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.
Lloyd, 407 U.S. at 567. The Court in Lloyd also firmly rejected the argument that the mall had lost its private character because it was open to the public and served the same purpose as a business district.8 The United States Supreme Court thereby repudiated the position it had taken in the earlier case of Amalgamated Food Employees Union Local 590 v. Logan Vly. Plaza, Inc., 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968).9
A state may, of course, “adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980).10 The NDPC urges us to so construe the free
To adopt the position urged by the NDPC would require us to act contrary to the fundamental nature of our own state constitution. Under the American system of government, sovereignty resides in the people.13 It is the people who ordain a constitution.14 A constitution, in turn, is “that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” 1 T. Cooley, Constitutional Limitations 4 (8th ed. 1927).15 The whole significance of a constitutional government is that its
[t]he constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they intrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon.
T. Cooley, General Principles of Constitutional Law 23 (3d ed. 1898). It follows that the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.17
Consistent with the foregoing principles, it is, always has been, and remains basic constitutional doctrine that both the federal and state bills of rights, of which the right of free speech is a part, were adopted to protect individuals against actions of the state.18 As one respected legal authority succinctly explains:
The guaranties found in the state and federal constitutions which are intended for the protection of the individual in his person, his liberty, and his property have not been the result of any theorizing as to what ought to be secured to the individual by way of enjoyment; they have been the result of experience, and they relate to the supposed respects in which it has been found necessary to limit the powers of government in order that the largest practicable measure of individual freedom and
opportunity may be secured. Nearly all of them may be traced more or less directly to struggles on the part of the people against the unjust exercise of powers of government in England and in this country.
(Italics ours.) E. McClain, Constitutional Law in the United States § 205, at 292-93 (2d ed. 1910). We deem it very significant that this was accepted constitutional doctrine at the time of the Washington Constitutional Convention in 1889.19 Moreover, 22 of the 75 delegates to that constitutional convention were practicing lawyers who were undoubtedly familiar with basic constitutional doctrine of the time.20
The notion that the free speech provision of the state constitution creates a right that can be wielded by one private individual against another constitutes nothing short of a radical departure from this well understood and accepted constitutional doctrine.21 The NDPC, nonetheless, argues that if one reads the text of this provision in the manner that they urge us to do, it demonstrates that such a departure was in fact intended by the framers of the state constitution. We do not agree. The free speech clause of our state constitution provides:
Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
It is a 2-foot leap across a 10-foot ditch, however, to seize upon the absence of a reference to the State as the actor limited by the state free speech provision and conclude therefrom that the framers of our state constitution intended to create a bold new right that conflicts with the fundamental premise on which the entire constitution is based. To do so would not be to “interpret” our constitution, but to deny its very nature.
The much more likely and reasonable explanation for the absence of the words in question is that the framers viewed them as redundant and in the interest of simplicity simply deleted them. The framers may well also have wished to avoid limiting the prohibitions of the constitutional free speech provision to just the legislative branch of government. In this connection, language comparable to the “Congress shall make no law” statement contained in the federal constitution could reasonably have been perceived as not being sufficiently broad to also include actions of the executive branch. The fundamental nature of our constitution being as it is, either of these two explanations has greater plausibility than the radical view urged upon us by the NDPC.
Furthermore, and much more importantly, the question of whether the state free speech provision requires “state action” also directly implicates the separation of powers doctrine.24 In our recent decision in Washington State Motorcycle Dealers Ass‘n v. State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988), we emphasized that this doctrine is a cardinal and fundamental principle of the entire American constitutional system. As we there observed,
... the division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government.
Motorcycle Dealers, at 674-75 (quoting 16 Am. Jur. 2d Constitutional Law § 296, at 808 (1979)). And as we also firmly cautioned:
“American courts are constantly wary not to trench upon the prerogatives of other departments of government or to arrogate to themselves any undue powers, lest they disturb the balance of power; ...”
Motorcycle Dealers, at 675 (quoting 16 Am. Jur. 2d § 309, at 829-30).
The NDPC maintains that we should adopt a “balancing test” under which we would weigh the free speech interests of the NDPC against the private property interests of the
It is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of constitutional rights by some in diminution of those of others. ... Statutes would become largely obsolete if courts in every instance of the assertion of conflicting constitutional rights should presume to carve out in the immutable form of constitutional adjudication the precise configuration needed to reconcile the conflict.
(Italics ours.) Cologne v. Westfarms Assocs., 192 Conn. 48, 65, 469 A.2d 1201 (1984).25 Furthermore, were we to so usurp the power and authority of the Legislature in this fashion, we would also be encroaching upon the power and authority of the executive branch by bypassing not only the Governor‘s prerogative to propose legislation, but also the Governor‘s constitutional power to veto legislative enactments. We decline to do this.
It is significant that the position we adopt herein commands the support of the overwhelming majority of courts that have addressed this issue. The highest courts of Connecticut, Michigan, New York, North Carolina, Pennsylvania and Wisconsin have all recently concluded in cases involving similar facts that the free speech provisions of their respective state constitutions do not protect against
Our decision on the “state action” issue in this case is also consistent with the decision of this court in Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981). In Alderwood, the Washington Environmental Council asserted that it had the right to solicit signatures for an initiative at a shopping mall. A 4-member plurality of this court, i.e., less than a majority of the court, maintained that there was no “state action” requirement under the free speech and initiative provisions of the state constitution.28 That plurality then followed what it termed a “balancing approach” for determining when these guaranties prevail over the rights of a private property owner and concluded that the balance tipped in favor of the initiative supporters in that case.29
The remaining four members of the court in Alderwood dissented.32 The dissent agreed with the objection of the concurrence to the plurality‘s free speech analysis, though it disagreed with the analysis of the concurrence concerning the initiative provision of the state constitution.33
Thus, in Alderwood, a 5-member majority of this court rejected the argument now posited by the NDPC that the free speech provision of our state constitution does not require “state action“. As a consequence, the holding in Alderwood was simply that people have a right under the initiative provision of the Constitution of the State of Washington to solicit signatures for an initiative in a manner that does not violate or unreasonably restrict the rights
We also note that we are indeed familiar with the recent writings of some legal commentators which present an array of theoretical arguments as to why they think that constitutional guaranties of individual liberties should not be limited to protecting against actions of the state.36 We are also mindful, however, as we recently and unanimously declared, that
[r]ecourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.
State v. Gunwall, 106 Wn.2d 54, 63, 720 P.2d 808 (1986).37 Thus, this court is not at liberty to disregard the fundamental nature of our constitution in order to advance theories that may be perceived by some to constitute desirable
Furthermore, as we perceive it, compelling policy reasons exist in support of a “state action” requirement. As Professor Tribe expresses it,
by exempting private action from the reach of the Constitution‘s prohibitions, it stops the Constitution short of preempting individual liberty-of denying to individuals the freedom to make certain choices, ... Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution‘s demands.
L. Tribe, American Constitutional Law § 18-2, at 1691 (2d ed. 1988).39
Accordingly, we hold that the free speech provision of our state constitution protects an individual only against actions of the State; it does not protect against actions of other private individuals. The NDPC thus has no right under
The NDPC proceeds, however, to make the additional argument that our state constitution‘s free speech provision applies to shopping malls under the “public function” doctrine.
The state cannot free itself from the limitations of the Constitution in the operation of its governmental functions merely by delegating certain functions to otherwise private individuals. If private actors assume the role of the state by engaging in these governmental functions then they subject themselves to the same limitations on their freedom of action as would be imposed upon the state itself.
2 R. Rotunda, J. Nowak & J. Young, Constitutional Law § 16.2, at 163 (1986). A “public function” is one that is “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974).41
The “public function” doctrine was applied by the United States Supreme Court in the well-known case of Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946). Marsh involved the question of whether the management of a privately owned company town could prohibit a Jehovah‘s Witness from distributing religious literature in the town. The Court held that it could not, reasoning that the private entity which owned the town was subject to the strictures of the First Amendment because it was performing a “public function“.42
In the more recent case of Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), however, the United States Supreme Court expressly declined to extend the “public function” doctrine to a privately owned shopping mall. It had been argued in Lloyd that since a shopping center has sidewalks, streets, and parking areas
The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, [326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946)], involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.
(Footnote omitted. Italics ours.) Lloyd, 407 U.S. at 569.
Based on Lloyd, therefore, it is obvious in the case before us that the “public function” doctrine is inapposite under the Constitution of the United States. Nor do we perceive any persuasive reason why this doctrine should apply any differently under our state constitution. It simply cannot reasonably be said that a shopping mall performs the functions traditionally and exclusively reserved to the state. A shopping mall is not a town and malls do not provide all essential public services such as water, sewers, roads and sanitation; nor do they accept responsibility for such functions as education or public safety.44 Rather, shopping malls are concerned with just one aspect of their patrons’ lives-shopping.45 The mere fact that shopping malls, like any large department store, have rest rooms for the convenience of their patrons, and security personnel to prevent
shoplifting, cannot by any stretch of the imagination translate into “the full spectrum of municipal powers“.46
We further agree with the United States Supreme Court in Lloyd that “property [does not] lose its private character merely because the public is generally invited to use it for designated purposes“, and that “[t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.” Lloyd, 407 U.S. at 569. Moreover, if public invitation and size were the relevant criteria, it could well be asked how shopping centers could be legally distinguished from places such as sport stadiums, convention halls, theaters, county and state fairs, large office and apartment buildings, supermarkets, department stores or churches.47
We thus hold, in addition to our earlier conclusion that the state constitution‘s free speech provision does not protect individuals from actions of other private individuals, that the “public function” doctrine is inapplicable here.
ISSUE THREE.
CONCLUSION. The mall manager‘s statement that an NDPC member wore a “swastika-type symbol” is privileged because it was made in the course of a judicial proceeding and pertained to the relief sought. The trial court correctly granted summary judgment in favor of Southcenter on the NDPC‘s counterclaim for defamation.
The NDPC argues that the Superior Court erred in granting summary judgment against it on its defamation counterclaim. The NDPC alleges it was defamed by a statement contained in an affidavit submitted by the mall manager that he observed an NDPC member wearing a
In McNeal v. Allen, 95 Wn.2d 265, 621 P.2d 1285 (1980), this court set forth the applicable rule:
Allegedly libelous statements, spoken or written by a party or counsel in the course of a judicial proceeding, are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.
McNeal, at 267. The statement at issue in this case was made in the course of a judicial proceeding; it was contained in an affidavit filed in support of Southcenter‘s motion for a preliminary injunction. The statement also pertained to the relief sought. Southcenter maintained that the NDPC‘s use of the mall was in violation of its rules and unduly interfered with the business environment within the mall. Southcenter, therefore, sought to enjoin the NDPC from using its premises. The statement that one of the NDPC people was wearing a “swastika-type symbol” is pertinent to that claim for relief. Thus, the statement was privileged and the trial court correctly granted summary judgment in favor of Southcenter on the NDPC‘s defamation counterclaim.
We affirm the Superior Court‘s order granting Southcenter‘s motion for summary judgment.
CALLOW, C.J., and BRACHTENBACH, DOLLIVER, DURHAM, and SMITH, JJ., concur.
UTTER, J. (concurring in the result)—I agree with the majority that, given the facts of this case,
In applying the interpretive criteria we developed in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986),48 I find a different basis for our common result. There simply is no compelling reason why we should append a state action requirement to section 5 when the plain language and drafting history of the provision suggest otherwise. Worse, the majority fails to address arguments that the state action doctrine is generally inappropriate at the state level. It also does not articulate what form of state action test it means to apply to situations such as the case presented; in so doing, it ignores the possibility of state action in today‘s case and leaves trial courts, which must frequently apply our rules, without guidance. The majority also fails to discuss the fact that for 8 years the courts of our state—including the court below—have successfully used the balancing test developed in Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981). The rulings of these courts indicate that Alderwood functions as a more coherent limiting principle than the ill-defined state action doctrine. Such a balancing approach is mandated by Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 83–87, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980), in cases where a state seeks to enforce a state constitutional speech right. The majority leaves undisturbed the result in Alderwood which recognizes the State‘s duty to enforce an individual‘s right to petition on certain private property. See Alderwood, 96 Wn.2d at 251–53 (Dolliver, J., concurring). Thus, this court must use a balancing approach when analyzing that manifestation of the right to speech; we do not give an adequate rationale why balancing should not be used in the speech issue presented today. Further, in abandoning the Alderwood test, the majority also leaves without a principled underpinning the possibility of enforcing speech rights against other types of private infringements—
I
Analysis of this case following the nonexclusive criteria developed in State v. Gunwall, supra, shows that the state action doctrine is incongruent with much of the state constitution in general and with section 5 in particular. The first two Gunwall criteria involve the text of the state constitutional provision. These two criteria encourage analysis of the language of the provision itself as well as textual contrasts with its federal parallel. Gunwall, 106 Wn.2d at 61.
The majority does undertake a brief analysis of section 5‘s language. As the majority must acknowledge, the text makes no reference to governmental actions. The provision states simply: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The unambiguous nature of these words stands as a major obstacle to any attempt to read a state action requirement into them. If constitutional provisions are textually clear, this court will give the words their plain meaning. See Anderson v. Chapman, 86 Wn.2d 189, 191, 543 P.2d 229 (1975). Such a plain meaning here could not include a state action requirement—the language simply is not present in section 5.
Moreover, as the majority also acknowledges, the committee that drafted the speech provision specifically deleted state action language from its finished product. The first version of section 5 read: ”That no law shall be passed restraining the free expression of opinion or restricting the right to speak, write or print freely on any subject.” (Italics mine.) Tacoma Daily Ledger, July 13, 1889, at 4, col. 3; see also Utter, The Right To Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment, 8 U. Puget Sound L. Rev. 157, 172 (1985)
The most logical and direct conclusion one can draw from this history is that the committee members considered the impact of the state action language and decided against it. One must assume that they were aware of United States Supreme Court cases on state action, notably the seminal Civil Rights Cases, 109 U.S. 3, 27 L. Ed. 835, 3 S. Ct. 18 (1883), decided just a few years before the convention. Likewise, the committee members must have been familiar with Justice Harlan‘s dissent in that case: he argued that the Fourteenth Amendment would allow Congress to regulate private behavior that discriminated against nonwhites.50 Civil Rights Cases, supra at 27 (Harlan, J., dissenting). This example, as well as the state actionless Thirteenth Amendment,51 demonstrated to the Washington
The deliberateness of omitting the state action language becomes even more apparent when one compares the language of section 5 with other provisions in Washington‘s Declaration of Rights. Many of these other provisions contain an express state action requirement. For example,
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
(Italics mine.) See also
The preamble to the state constitution, when read in conjunction with the Declaration of Rights, provides further evidence that state action was not intended. The preamble states:
We, the people of the State of Washington, grateful to the Supreme Ruler of the Universe for our liberties, do ordain this constitution.
The language of the preamble demonstrates that the framers were not positivists: they did not see the constitution itself as the source of the rights contained within it. Rather, the “liberties” came from a higher source. The
According to contemporary evidence, the reference to God or Supreme Ruler was a great point of controversy at the convention. See Portland Morning Oregonian, July 30, 1889; Tacoma Daily Ledger, July 30, 1889, at 4. When first presented by the committee, the preamble read: “We, the people of the state of Washington, to preserve our rights, do ordain this constitution.” Debate ensued and the delegates introduced various alternative versions of the preamble. The convention eventually compromised and adopted the reference to the “Supreme Ruler.” Portland Morning Oregonian, July 30, 1889.
Both versions of the preamble quoted above imply that the rights inhere in the citizenry rather than emanate from the State. This point, then, was not controversial. Consequently, listing the rights in the constitution could only have been meant to protect them. This protective function is further implied by the title of “Declaration” rather than “Bill” of rights: the document does not confer rights, it declares those that naturally exist. See Wiggins, Francis Henry and the Declaration of Rights, Washington State Bar News 54 (May 1989).
The natural law tone of the constitution is strengthened by
The majority concludes, however, that the omission of “state action” language in section 5 served another purpose. It posits a “much more likely and reasonable explanation.” First, the majority surmises that the framers thought the state action language redundant. Second, it hypothesizes that the framers sought to protect freedom of speech from assaults by all branches of government rather than simply the Legislature, as might be implied by the First Amendment‘s reference to “Congress shall make no law“. Majority, at 424. Given the fact that the majority cites no authority for either prong of this “explanation,” one must accept it for what it is: mere conjecture.
First, from a purely linguistic point of view, removing from section 5 language referring specifically to acts of state has great effect. Quite simply, it changes the facial meaning of the provision to state it in the absolute rather than in terms of state action. As mentioned previously, in light of contemporary United States Supreme Court precedent, we must assume that the framers knew what they were doing.
Although the majority cites no authority for its second “explanation,” a “Congress-only” interpretation of the First Amendment might be inferred in State v. Haffer, 94 Wash. 136, 162 P. 45 (1916). In that case, this court referred to the First Amendment as applying to acts of Congress only. Haffer, at 143. On closer inspection, however, the reference to Congress appears to relate to the federal government as a whole. We stated: “[I]t is a settled rule of construction that the limitations [the federal constitution] imposes upon the power of government are in all cases to be understood as limitations upon the government of the Union only, except where the states are expressly mentioned.” Haffer, at 143, quoting T. Cooley, Constitutional Limitations 46 (7th ed. 1903). Thus, the case simply stands for the then-correct proposition that the First
Moreover, free speech jurisprudence in state courts contemporaneous with Washington‘s constitutional convention focused primarily on a municipality‘s ability to employ the police power to regulate public gatherings. See, e.g., Anderson v. Wellington, 40 Kan. 173, 19 P. 719 (1888) (peaceful parades lawful without permit); Commonwealth v. Davis, 140 Mass. 485, 4 N.E. 577 (1886) (likened city‘s interest in public forum to that of private property owner, therefore able to regulate at will), aff‘d, 162 Mass. 510, 39 N.E. 113 (1895), aff‘d, 167 U.S. 43 (1897); In re Frazee, 63 Mich. 396, 30 N.W. 72 (1886) (upholding right to parade peaceably with or without permit); see generally Anderson, The Formative Period of First Amendment Theory, 1870–1915, 24 Am. J. Legal Hist. 56 (1980).53 At the municipal level, the legislative and executive functions are often blurred. Consequently, a “Legislature-only” approach to state free speech jurisprudence was not clearly established in the 1880‘s. As a result, there is no basis for reading the majority‘s second “explanation” into the plain language of section 5.
Further, the second “explanation” also leans toward being overly positivist. In light of the language of the preamble, the conscious omission of state action language in many sections and its inclusion in others, and the call to look to “fundamental principles” to secure individual rights, it is more likely that the framers had broader visions in mind.
II
Aside from the specific language of section 5, reasons inherent to the structure of our state constitution argue
One cannot overlook the fact that the state action doctrine was developed around the text of and policies behind the fourteenth amendment to the federal constitution—not the constitution of any individual state. The Fourteenth Amendment is drafted around a scheme specifically aimed at the actions of states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(Italics mine.) As mentioned above, the United States Supreme Court formally developed the state action requirement for cases involving federal legislation based on the Fourteenth Amendment in the Civil Rights Cases, supra.
The marked contrast between the state and federal texts is, once again, one of the more obvious reasons why “state action” should not be required when interpreting a state
In our scheme of federal government, an individual state, because it remains a sovereign, retains plenary power. This power is limited only by the state‘s own constitution, the federal constitution, and federal laws and treaties. See
Within this constitutional scheme, the state action doctrine, based on the Fourteenth Amendment‘s language,
The use of the state action doctrine at the state level, however, amounts to an importation of a foreign concept fashioned to suit the needs of federalism. The individual state does not face the problem of enforcing its will over other sovereigns. The state ultimately has total power over the municipalities within its boundaries. See, e.g., Hunter v. Pittsburgh, 207 U.S. 161, 52 L. Ed. 151, 28 S. Ct. 40 (1907). The state has use of the police power and may—within state and federal constitutional limits—regulate private behavior as it wishes. In fact, the tone of United States Supreme Court opinions during the genesis of the Fourteenth Amendment state action doctrine assumes that the states will safeguard individual liberties by regulating private activity where the federal government cannot. See, e.g., Civil Rights Cases, supra at 13 (implying that only where a state fails to protect persons of their equal rights will Congress have the authority to remedy the situation); United States v. Cruikshank, supra at 555 (“That duty [of protecting all citizens in the enjoyment of equal rights] was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see
Nonetheless, the majority cites early treatises on constitutional law to support its claim that the state constitution functions only to create and limit the powers of the state government. The Washington Declaration of Rights, the majority argues, guarantees the rights therein from governmental infringement only. Inherent in the concept of a constitution, apparently, the Declaration of Rights can do no more. Earlier expositions of this view have acknowledged that the state has the power to regulate private activity, but that this power is vested in the Legislature, not the courts. See Alderwood Assocs. v. Washington Envtl. Coun., supra at 247–53 (Dolliver, J., concurring); see also Dolliver, The Washington Constitution and “State Action“: The View of the Framers, 22 Willamette L. Rev. 445 (1986) (hereinafter Dolliver). One could call this the “inherent state action” approach.
It is true that the framers sought to protect their rights from government infringement. An air of general distrust of government pervaded the state constitutional convention. See, e.g., Journal of the Washington State Constitutional Convention, 1889, at vi (B. Rosenow ed. 1962) (hereinafter Journal). Despite theories expressed in legal treatises, however, the historical record does not imply that the framers intended to stop at this point. They were in a reform state of mind. In 1889, a wave of populism lapped against the shores of Olympia as the constitution was drafted. A number of “special interest” movements gave the convention, and its product, a legislative flavor: women‘s suffrage, prohibition of alcohol, and careful regulation of banks and other corporations. Many delegates to the convention feared infringement of their rights from corporate as well as governmental quarters. See Journal, at
The majority contends that the Alderwood plurality‘s balancing approach—a tool for applying section 5 to private infringement—violates the separation of powers principle.58 It claims that this court would violate the principle by “weighing competing constitutional interests asserted between private parties“. Majority, at 426. I find this statement incomprehensible. A common function of the judicial system is to weigh competing interests. That disputes may be of constitutional magnitude further emphasizes the importance of the courts’ roles in resolving them. Put simply, courts in general and this court in particular often must engage in weighing competing constitutional inter-
Moreover, democratic pressures on state courts further legitimize those courts’ roles in enforcing state constitutional provisions against private action. The voting public always retains the power to express its voice at the ballot box. Judges with whom the public does not agree can be voted out of office when their terms expire. See
Ultimately, however, the majority‘s “inherent state action” approach does not address the federalist assumptions behind the original development of state action in Fourteenth Amendment jurisprudence: that states would protect rights against private actors. Further, the approach ignores the relevance of section 5‘s plain language in light of these assumptions. Although it offers “explanations,” the majority‘s position is that it was mere coincidence that the framers specifically dropped state action language from
III
The majority neither discusses nor acknowledges that many states have abandoned the state action doctrine at the state level in a number of contexts. In Sharrock v. Dell Buick-Cadillac, Inc., 45 N.Y.2d 152, 379 N.E.2d 1169, 408 N.Y.S.2d 39 (1978), the New York Court of Appeals developed a flexible “state involvement” test when applying the state constitution‘s due process clause to a dispute over a nonjudicial foreclosure sale. The court noted that the plain language of the provision did not refer to state action: “‘[n]o person shall be deprived of life, liberty or property without due process of law.‘” In contrast to the federal Fourteenth Amendment, the court found that the state constitution had “long safeguarded any threat to individual liberties, irrespective of from what quarter that peril arose.” 45 N.Y.2d at 160. See also Svendsen v. Smith‘s Moving & Trucking Co., 54 N.Y.2d 865, 429 N.E.2d 411, 444 N.Y.S.2d 904 (1981) (holding nonjudicial sale provision of
In the criminal search and seizure area, the California Supreme Court has held that intrusive conduct of private security personnel that violated the state constitution was unlawful even though the State was not involved in the search. People v. Zelinski, 24 Cal. 3d 357, 594 P.2d 1000, 155 Cal. Rptr. 575 (1979). The court overruled precedent limiting the exclusionary rule to state intrusions. But see State v. Ludvik, 40 Wn. App. 257, 262, 698 P.2d 1064 (1985) (constitution protects “only against governmental
Other courts have considered the need for a state action requirement in applying state constitutions to acts of discrimination by private employers. See, e.g., Gay Law Students Ass‘n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458, 469, 595 P.2d 592, 156 Cal. Rptr. 14 (1979) (applying state equal protection provision to private employer); Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 79–80, 389 A.2d 465 (1978) (same); but see Schreiner v. McKenzie Tank Lines, Inc., 432 So. 2d 567, 569 (Fla. 1983) (restricting application of state constitution‘s inalienable rights and deprivation clauses to state action).
In the free speech context, a number of states have applied their constitutions to mend private infringements, although many states have not been willing to do so in cases involving shopping malls. See Spayd v. Ringing Rock Lodge 665, Bhd. of R.R. Trainmen, 270 Pa. 67, 113 A. 70 (1921) (private union could not expel member for signing petition unfavorable to union interests); Zelenka v. Benevolent & Protective Order of Elks, 129 N.J. Super. 379, 324 A.2d 35 (1974) (applying state constitution‘s speech provision to Elks Lodge policy), cert. denied, 66 N.J. 317 (1974); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980) (applying same provision to actions of a private university), appeal dismissed, 455 U.S. 100 (1982);61 Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979) (applying state constitution to speech activity in privately owned shopping center), aff‘d, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980); Batchelder v. Allied Stores Int‘l, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (no
Many jurisdictions have declined to apply their constitutional speech guaranties to disputes involving shopping malls. Most of these courts—often basing their decisions upon constitutional language different from our own—have required some form of state action before enforcing the provision. See SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 488 N.E.2d 1211, 498 N.Y.S.2d 99 (1985) (court looked at debates at the state constitutional convention and concluded that framers intended a state action requirement; reiterated that Bill of Rights is meant to protect individuals from State, not other private individuals); Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984) (court found “no historical basis” for a lack of a state action requirement); Jacobs v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (1987) (construed state action requirement through “plain language” and historical analysis); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 204, 378 N.W.2d 337 (1985) (“constitutionally guaranteed individual rights are drawn to restrict governmental conduct and to provide protection from governmental infringement and excesses . . .“), reh‘g denied, 424 Mich. 1204 (1986); Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986) (constitution concerns the functions and limitations of government, not private individuals; language of this State‘s provision quite different from Washington‘s); see also State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981) (denying speakers access to shopping mall because such speech represented an “abuse” of the right; no state action analysis).
IV
Although the majority decries a balancing approach and advocates a state action requirement, it essentially stops right there. It does not discuss what type of state action test it would adopt in cases such as this. Further, the majority does not tell us why there is not state action in today‘s case—it simply assumes so. Depending on the formulation of the requirement, there well could be. Because of these unresolved issues, we are left hanging on some of the inherent contradictions of the federal state action doctrine. State constitutional adjudication should leave behind clearer results than this.
In its attempt to overcome the state action doctrine‘s initial rigidity, the United States Supreme Court developed a number of exceptions to pure governmental action within the doctrine. One of these exceptions, the public function doctrine,62 does receive some attention by the majority. See majority, at 430–33. Another line of Supreme Court precedent, however, is ignored altogether.
In Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836, 3 A.L.R.2d 441 (1948), the Supreme Court held that judicial enforcement of racially restrictive covenants—
By the logic of Shelley, it is possible to find state action in today‘s case.63 A court in this state has enforced the wishes of a private property owner to exclude a group seeking to exercise its state constitutional right to speak freely. That enforcement is being affirmed today. One could construe the present situation as one no longer being a strictly private dispute. As the Supreme Court stated in Shelley:
The judicial action in each case [presented] bears the clear and unmistakable imprimatur of the State. . . . [J]udicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state‘s common-law policy. . . . State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. . . .
Courts and commentators who have entertained this particular state action issue have divided over its applicability. In Sunnyside v. Lopez, 50 Wn. App. 786, 751 P.2d 313 (1988), review denied, 110 Wn.2d 1034 (1988), two judges on the
Division One of the Court of Appeals reached the opposite result in Sutherland. The court there held that a shopping center‘s use of deputized security personnel to prohibit individuals from collecting petition signatures was a “necessary prelude to establishing an action for criminal trespass.” Sutherland, 3 Wn. App. at 836. The court found this to suffice for the purposes of the state action doctrine. Professor Tribe takes a similar view, arguing that state enforcement of trespass laws to remove unwanted speakers from a “self contained area” in which people “live and work” would “violate the first and fourteenth amendments as clearly as if a government official had chosen to exclude the individual from a municipality on the same forbidden basis.” L. Tribe, American Constitutional Law 999 (2d ed. 1988) (referring to Marsh v. Alabama, supra).64
Thus, while the applicability of state action to a case like the one at hand is apparently a matter of controversy, the majority does not shed any light on the subject. It would have us affix a state action requirement to section 5—when the plain language of that provision suggests otherwise—
V
This court can dispute the clarity of the historical record surrounding the drafting and passage of section 5. Ultimately, however, we must determine what is presently most appropriate for the jurisprudence of this State. The federal state action doctrine is fraught with contradictions. The Supreme Court itself has admitted that it has “never attempted the ‘impossible task’ of formulating an infallible test” to apply the doctrine. Reitman v. Mulkey, 387 U.S. 369, 378, 18 L. Ed. 2d 830, 87 S. Ct. 1627 (1967). In spite of this, today‘s majority would turn its back on a workable solution to the state action quandary: the Alderwood balancing test, used successfully in this state for 8 years.
As property becomes the functional equivalent of a downtown area or other public forum, reasonable speech activities become less of an intrusion on the owner‘s autonomy interests. When property is open to the public, the owner has a reduced expectation of privacy and, as a corollary, any speech activity is less threatening to the property‘s value.
(Citations omitted.) Alderwood, 96 Wn.2d at 244. The second factor in the test concerns the nature of the speech activity. Because speech is a preferred activity, it is given a greater weight in the balance. Alderwood, at 244. The last factor deals with reasonable possibilities for regulating the speech involved. As we stated:
No one has an absolute right to free speech. The time, manner, and place of the exercise of that right may be regulated.
Some speech activity may be so unreasonable as to violate the property owner‘s First Amendment and property rights. . . . In such a situation, the speech will not be protected.
(Footnote and citations omitted.) Alderwood, at 245.
Trial courts in Washington, including the court below, have been applying the Alderwood test to speech disputes since we announced that decision in 1981. The result has not been a revolution, greatly expanding the right to speech. Rather, the Alderwood test has provided a clear and coherent limiting principle to the right declared in section 5.
The recent Court of Appeals opinion in Sunnyside v. Lopez, supra, provides an example of the Alderwood test in use. In that case, owners of a clinic offering abortions sought to prohibit antiabortion leafleters from its grounds. The court focused primarily on the first of the Alderwood factors. It concluded that the size and nature of the property involved tipped the weight of the interests in
The trial judge below also considered the balance set forth by Alderwood. He stated: “When the interests of the parties are balanced in view of the plaintiffs’ conceded right to regulate the time, place, and manner of speech upon its premises, the balance tips in favor of plaintiffs.” Clerk‘s Papers, at 196.
The factors in the Alderwood test, although specifically developed in light of the language of section 5, are based in part on the United States Supreme Court‘s own precedent involving competing constitutional interests. See Pruneyard Shopping Ctr. v. Robins, supra; Cox v. Louisiana, 379 U.S. 536, 554–55 (1965); Marsh v. Alabama, 326 U.S. 501, 509 (1946). Much of the Supreme Court‘s balancing approach has involved the “state action” inquiry.67 Thus, the contexts in which the balancing of interests occurred differ in kind from today‘s case. Nonetheless, the core inquiry is distinctly similar. In the end, however, Alderwood escapes the inherent contradictions which have entered into Supreme Court doctrine in this area over time.
In Marsh, the Court considered the nature of the Gulf Corporation‘s property rights over its company town of Chickasaw. The Court stated: “Ownership does not always mean absolute dominion. The 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.”
The private nature of the property involved in the balance received attention in Rowan v. United States Post Office Dep‘t, 397 U.S. 728, 25 L. Ed. 2d 736, 90 S. Ct. 1484 (1970). There, the Court considered the right of a homeowner, under the authority of federal statute, to exclude unwanted mailings from his home in light of the First Amendment. The unanimous Court stated: “Weighing the highly important right to communicate . . . against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer‘s right to communicate must stop at the mailbox of an unreceptive addressee.” Rowan, 397 U.S. at 736–37.
The Court used a similar balancing approach in Amalgamated Food Employees Union Local 590 v. Logan Vly. Plaza, Inc., 391 U.S. 308, 316–19, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968) (considering the characteristics of the property), and Lloyd Corp. v. Tanner, 407 U.S. 551, 564, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972) (considering the relationship of the speech activity to the property), cases directly considering the ability to exercise one‘s First Amendment rights in a privately owned shopping mall. For purposes of reconciling federal rights in shopping mall speech disputes, however, the Supreme Court abandoned the balancing approach in Hudgens v. NLRB, 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976).
Nonetheless, Hudgens did not completely remove the balancing approach from the picture. The Court simply changed the focus of the balance: instead of balancing the constitutional right to speech itself, it concentrated on that
The Court followed a similar approach in Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980). There, the speech right was secured under the state constitution rather than by federal statute. Under an analysis determining whether the government enforcement of speech rights amounted to a taking of the private property, the Court considered “such factors as the character of the governmental action [in that case, enforcement of speech rights], its economic impact, and its interference with reasonable investment-backed expectations.” Pruneyard, 447 U.S. at 83. The Court engaged in an even more explicit balancing test when it considered whether the shopping center‘s own First Amendment rights—the right to prevent the expression of contrary opinions on one‘s property—were violated by California‘s enforcement of its state constitution. Pruneyard, at 87.
These latter two cases show that when a government takes “action“—either through federal statute or state constitution—to enforce speech rights, the Supreme Court will continue to analyze the underlying conflicts with a balancing approach, considering many of the factors utilized in the Alderwood test. Distinguishing these cases from the present one, however, is not as simple as it might seem. In terms of defining state action, the distinction between the state enforcing speech rights through the state constitution and enforcing property rights through trespass laws is, to say the least, not clear. The Supreme Court has not made clear why balancing should be abandoned in the latter case
This court, however, need not adopt such contradictions. Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems. See Alderwood, at 238. As part of our obligation to interpret our State‘s constitution, we have the opportunity to develop a jurisprudence more appropriate to our own constitutional language. By adhering to Alderwood, we essentially would engage in analysis similar to what the Supreme Court has done in the past and continues to do in selected cases. The only difference is that Alderwood presents a more complete and evenly applied inquiry into the actual rights in conflict.69
Using the criteria set forth in Alderwood, I would find the NDPC speech rights did not extend to allowing it to solicit memberships and contributions on shopping mall property. The nature of this speech activity competed
PEARSON, J. (concurring in the result)—In a case analogous to the case at bench, a majority of this court recently held, “[t]he issuance of the permanent injunction by the trial court constitutes State action.” Bering v. Share, 106 Wn.2d 212, 221, 721 P.2d 918 (1986). I am persuaded that should be the law of this case as well. Nevertheless, the majority today not only fails to apply the holding in Bering v. Share, supra, but altogether fails even to acknowledge its existence.
I would hold the granting of the permanent injunction constituted state action sufficient to invoke the protections afforded by
DORE, J., concurs with PEARSON, J.
Notes
In the Civil Rights Cases, supra, the Supreme Court held this plain language was “not a mere prohibition of State laws . . . but an absolute declaration . . .” Thus, no state action was required. 109 U.S. at 20.[Section 1.] Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
[Section 2.] Congress shall have power to enforce this article by appropriate legislation.
Bering is firmly founded on the principles of time, place, and manner regulation. This area of jurisprudence, even when analyzing the constitutional validity of statutes, inherently involves balancing competing constitutional interests. See Cox v. Louisiana, 379 U.S. 536, 554–55, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965). Surely the majority does not mean to imply that courts which have resolved such cases have done so unconstitutionally. Yet, this conclusion arises unescapably from the majority‘s reasoning. Accordingly, the majority would have us overrule, among others: Bering v. Share, supra; State v. Lotze, 92 Wn.2d 52, 593 P.2d 811 (1979) (regulating speech as expressed through privately owned billboard), appeal dismissed, 444 U.S. 921 (1979); Ackerley Communications, Inc. v. Seattle, 92 Wn.2d 905, 602 P.2d 1177 (1979) (regulating commercial billboards), cert. denied, 449 U.S. 804 (1980); Shively v. Garage Employees Local Union 44, 6 Wn.2d 560, 569, 108 P.2d 354 (1940) (“we are concerned with balancing appellants’ right to carry on lawful businesses, free from unreasonable interference, and respondents’ right to freedom of speech“).
“If any decision by a state court represents state action, then ultimately all private actions must comply with the Constitution. Anyone whose rights are violated can file suit in state court. If the court dismisses the case because the state law does not forbid the violation, there is state action sustaining the infringement of the right.” Chemerinsky, Rethinking State Action, 80 Nw. U.L. Rev. 503, 525 (1985).