11 Cal.3d 331, 30190, Diamond v. Bland

Docket Nº:30190
Citation:11 Cal.3d 331, 113 Cal.Rptr. 468, 521 P.2d 460
Opinion Judge:[11] Burke
Party Name:Diamond v. Bland
Attorney:[7] Roger Jon Diamond, in pro. per., for Plaintiffs and Appellants. [8] A. L. Wirin, Fred Okrand, John D. O'Loughlin, Jill Jakes and Daniel H. Lowenstein as Amici Curiae on behalf of Plaintiffs and Appellants. [9] Ralph H. Prince, City Attorney, Lawrence M. Cohen, Lederer, Fox & Grove, Allen B. G...
Case Date:April 25, 1974
Court:Supreme Court of California

Page 331

11 Cal.3d 331

113 Cal.Rptr. 468, 521 P.2d 460

Roger Jon DIAMOND et al., Plaintiffs and Appellants,


Frank BLAND, as Sheriff, etc., et al., Defendants and Respondents.

L.A. 30190.

Supreme Court of California

April 25, 1974.

In Bank

As Modified on Denial of Rehearing May 29, 1974.

Page 332

Roger Jon Diamond, in pro. per., for plaintiffs and appellants.

A. L. Wirin, Fred Okrand, Los Angeles, John D. O'Loughlin, Santa Monica, Jill Jakes, Los Angeles, and Daniel H. Lowenstein, Modesto, as amici curiae on behalf of plaintiffs and appellants.

Ralph H. Prince, City Atty., San Bernardino, Lawrence M. Cohen, Lederer, Fox & Grove, Chicago, Ill., Allen B. Gresham, Lonergan, Jordan & Gresham, Lonergan, Jordan, Gresham & Varner, San Bernardino, for defendants and respondents.

BURKE, Justice.

In 1970 this court decided the case of Diamond v. Bland, 3 Cal.3d 653, 91 Cal.Rptr. 501, in which we held that plaintiff was entitled to solicit signatures on an initiative petition and to distribute leaflets regarding the proposal at defendant's shopping center. Two years later, the United States Supreme Court determined in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, that the owners of a shopping center in Oregon had the right to prohibit the distribution of political handbills unrelated to the operation of the shopping center. We conclude that Lloyd is indistinguishable from the instant case and, accordingly, that we must reappraise our Diamond decision in the light of the principles established in Lloyd.

Plaintiffs are a nonprofit California corporation, its attorney, and a volunteer worker for the corporation. Prior to our decision in Diamond, two representatives of the corporation attempted to solicit signatures on an anti-pollution initiative petition and to distribute leaflets regarding the initiative at Inland Center hereinafter Center), a shopping center in San

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Bernardino owned by defendant Homart. 1 Defendant refused permission, and plaintiff sought injunctive and declaratory relief, alleging that it had a constitutional right to carry out its activities at the Center. The trial court refused to issue an injunction but this court reversed the judgment. Thereafter, the trial court, in response to our decision, issued a permanent injunction restraining defendant from interfering with plaintiff's right to circulate initiative petitions and to engage in other peaceful and orderly First Amendment activities at the Center.

On June 22, 1972, the United States Supreme Court rendered its decision in Lloyd. Thereafter, defendant made a motion before the trial court to dissolve the injunction previously issued on the ground that under the holding in Lloyd plaintiff had no constitutional right to carry out its activities on defendant's property. The trial court dissolved the injunction, and this appeal followed. 2

The facts are set forth in our Diamond opinion. Briefly, the Center consists of a large parking lot and a covered shopping complex or mall which contains three major department stores and seventy-two single businesses. The mall area is open to the public through unlocked doors, and contains such features as benches and wide, common aisleways. Prospective customers are encouraged to visit the mall and an average of 25,000 persons do so every day, coming from as far away as 75 miles. Inland Center is the largest shopping center in the county.

Defendant prohibited all activity at the Center aside from business promotions and displays, and this policy applied without variance to all types of charitable, religious, social and political groups seeking to use the Center's property for solicitation or discussion. There was no disturbance or disruption of the normal commercial functions of the Center as a result of plaintiff's attempt to collect signatures and distribute leaflets.

Our prior holding in this case was based primarily upon our interpretation of the rationale of two cases of the United States Supreme Court, namely, Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265,

Page 334

and Amalgamated Food Employees v. Logan Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603. In Marsh, the Court held that a member of a religious organization was constitutionally entitled to distribute religious literature on the streets of a company-owned town. In Logan it was decided that a shopping center could not prohibit union picketing of a business located within the center. We also relied on prior California cases applying the principles set forth in Marsh, Logan, and other cases of the United States Supreme Court. (See Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union, 61 Cal.2d 766, 40 Cal.Rptr. 233; In re Hoffman, 67 Cal.2d 845, 64 Cal.Rptr. 97; In re Lane, 71 Cal.2d 872, 79 Cal.Rptr. 729.)

In Lloyd Corp. v. Tanner, Supra, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, the United States Supreme Court declined to extend the rationale of Marsh and Logan to require the owner of a shopping center in Oregon to permit the respondents to distribute, on the premises of the shopping center, handbills regarding the draft and the Vietnam war. The Court distinguished Logan on the basis that, unlike the situation in that case, the handbilling had no relation to any purpose for which the shopping center was being used, 3 and that respondents had adequate alternative avenues to disseminate their views by distributing the material on the public streets and sidewalks, including those surrounding the shopping center. In Logan, by contrast, the pickets would have been deprived of all reasonable opportunity to convey their message because the store which was being picketed was located in the center of a large private enclave. Marsh was distinguished on the basis that there the owner of the company town was substituting for and performing the customary functions of government; moreover, there existed no public streets on which First Amendment activities could be carried out.

In balancing the interests of the respondents in exercising their First Amendment rights against the property rights of the owners of the shopping center, the Court in Lloyd concluded that the latter must prevail. The Court stated that, in view of the availability to respondents of other public forums for the distribution and dissemination of their ideas, 'It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances

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where adequate alternative avenues of communication exist.' (407 U.S. at p. 567, 92 S.Ct. at p. 2228.) 4

Lloyd's rationale is controlling here. In this case, as in Lloyd, plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside. 5 Unlike the situation in Marsh and Logan, no reason appears why such alternative means of communication would be ineffective, and plaintiffs concede that, unlike Logan, their initiative petition bears no particular relation to the shopping center, its individual stores or patrons. Under these circumstances, we must conclude that defendants' private property interests outweigh plaintiffs' own interests in exercising First Amendment rights in the manner sought herein.

The judgment of the trial court dissolving the injunction previously issued in this case is affirmed.

WRIGHT, C.J., and McCOMB and CLARK, JJ., concur.

MOSK, Justice (dissenting).

I dissent.

On December 16, 1970, this court rendered its decision in Diamond v. Bland (1970), 3 Cal.3d 653, 91 Cal.Rptr. 501. The opinion commanded six votes, with one justice filing a three-line cursory dissent. Subsequently the United States Supreme Court on four occasions denied respondents' petitions for certiorari and rehearing (Homart Development Co. v. Diamond, 402 U.S. 988,

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91 S.Ct. 1661, 29 L.Ed.2d 153; 404 U.S. 874, 92 S.Ct. 27, 30 L.Ed.2d 120; 405 U.S. 981, 92 S.Ct. 1189, 31 L.Ed.2d 257; 409 U.S. 897, 93 S.Ct. 91, 34 L.Ed.2d 154).

Nothing has occurred relevant to the problem since the high court repeatedly refused to intervene in this proceeding other than its rendition of a 5--4 opinion in a case originating in Oregon and bearing superficial similarity to the instant matter (Lloyd Corp. v. Tanner (1972), 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131.) Leaning on that fragile reed, the majority now abjectly surrender the previous considered position of this court, overlook the unmistakable independent nonfederal grounds upon which our earlier opinion could have been based, ignore basic guarantees of our state Constitution, and deal a blow to fundamental principles of federalism as old as our republic.


Convenient as it may be to reduce diverse federal and state premises to a single body of 'constitutional law,' there are at least two reasons why this simplistic process is inappropriate. First, it contradicts the heirarchical logic of constitutional doctrine. Second, the provisions and historical bases of the federal and California Constitutions are not the same.

The first point is well analyzed in an article by Professor Hans A. Linde in 49 Oregon Law Review (1970) 125, at page 133: 'The federal source of all 'due process' and 'equal protection' attacks on state regulation is the fourteenth amendment's command that 'No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its...

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