Alderwood Associates v. Washington Environmental Council

• Citation: 635 P.2d 108,96 Wn.2d 230
• Decision Date: 15 October 1981
• Docket Number: No. 47247-5,47247-5
• Parties: ALDERWOOD ASSOCIATES, and Ohio general partnership, and The Edward J. Debartolo Corporation, a foreign corporation, d/b/a The Alderwood Mall, Respondent, v. WASHINGTON ENVIRONMENTAL COUNCIL, et al., Peter Jenkins, an individual, and John Does 1 through 100, inclusive, Petitioners.
• Court: United States State Supreme Court of Washington

Page 230

96 Wn.2d 230

635 P.2d 108

ALDERWOOD ASSOCIATES, and Ohio general partnership, and The Edward J. Debartolo Corporation, a foreign corporation, d/b/a The Alderwood Mall, Respondent, v. WASHINGTON ENVIRONMENTAL COUNCIL, et al., Peter Jenkins, an individual, and John Does 1 through 100 inclusive, Petitioners.

No. 47247-5.

Supreme Court of Washington, En Banc.

Oct. 15, 1981.

[635 P.2d 110] Michael W. Gendler, Seattle, for petitioners.

Lucas, Glase & Chicoine,

Craig V. Wentz, Bellevue, for respondent

American Civil Liberties Union, Rita L. Bender, Seattle, for amicus curiae.

UTTER, Justice.

Alderwood Associates obtained a temporary restraining order from the Superior Court for Snohomish County, enjoining the Washington Environmental Council and others (defendants) from soliciting signatures or demonstrating in the Alderwood Mall Shopping Center. The Court of Appeals, upon defendants' request, granted a stay of the order and certified the issue to us. We reverse and hold that defendants' activities were protected by the Washington Constitution.

Petitioners (defendants) are the "Don't Waste Washington Committee" which sponsored Initiative 383, entitled "The Radioactive Waste Storage and Transportation Act of 1980." To qualify the initiative for the November ballot, petitioners were required to obtain 123,700 signatures of registered voters no later than July 4, 1980. When this action was filed on July 1, 1980, the committee had obtained approximately 120,000.

Respondent, Alderwood Associates, owns and operates Alderwood Mall in Lynnwood, Washington. That mall is a regional shopping center with more than 1,000,000 square feet of store area on 110 acres of land. It contains parking for more than 6,000 automobiles and impact statements on file project 22,000 automobiles entering the mall on an average day in 1978, increasing to 39,600 by 1985.

Permission was sought on June 27, 1980, for petitioners to solicit signatures in the mall. Permission had already been granted by other mall proprietors in the Puget Sound area. But, unlike those proprietors, respondents denied the request.

Believing the denial to be unconstitutional, petitioners proceeded to solicit signatures in the Alderwood Mall in the same manner as permitted by other mall owners. A card table was set up, until respondents requested its removal.

They then asked passersby, in a nonobstructive manner, if they wished to sign the initiative petition. More than 100 signatures were obtained each hour and no one alleges that petitioners annoyed or harassed the patrons of the mall or in any way interfered with business activities.

MOOTNESS

Although the controversy between the parties is no longer extant and the case is moot, this court will review an otherwise moot case if certain factors are present. In re Patterson, 90 Wash.2d 144, 579 P.2d 1335 (1978); Sorenson v. Bellingham, 80 Wash.2d 547, 496 P.2d 512 (1972). A moot case will be reviewed if its issue is a matter of continuing and substantial interest, it presents a question of a public nature which is likely to recur, and it is desirable to provide an authoritative determination for the future guidance of public officers. Patterson, supra; Sorenson, supra.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), ¹ the United States Supreme Court held that state courts may construe state law to authorize individuals to speak and petition in shopping malls. Since we have not yet expressly determined the contours of any relevant state law, the question presented by this case is one which is likely to recur and, given its importance, an authoritative determination is needed. The controversy thus fits within our previous guidelines and should be decided, even though moot.

SCOPE OF REVIEW

Whether to grant a temporary injunction lies within the sound discretion of the court, to be exercised according to the circumstances of each case. Isthmian S.S. Co. v. National Marine Engineers' Beneficial Ass'n, 41 Wash.2d 106, 247 P.2d 549 (1952); Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P.2d 397 (1936). In exercising that discretion and in granting a temporary injunction, the court must issue findings of fact and conclusions of law and set forth in the order the reasons for its issuance. CR 52(a)(2)(A) and CR 65(d). In this case, the temporary restraining order and order to show cause contain neither. This indicates the trial court was issuing the temporary restraining order as a matter of law.

The primary issue is thus one of law as to whether petitioners' actions were constitutionally protected. As such, we will review the temporary restraining order to determine if there was "a clear legal right to it." Isthmian, 41 Wash.2d at 117, 247 P.2d 549; Port of Seattle v. International Longshoremen's & Warehousemen's Union, 52 Wash.2d 317, 324 P.2d 1099 (1958); State ex rel. Hays v. Wilson, 17 Wash.2d 670, 137 P.2d 105 (1943). If there is any set of facts which would legally justify petitioners' activities, the trial court must be reversed.

SPEECH AND INITIATIVE RIGHTS.

Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), held that the First Amendment to the United States Constitution does not confer the untrammeled right to speak, picket, or petition in a privately owned shopping center. ² Accord, Lloyd Corp. v. Tanner 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). As consistently recognized, the First Amendment only protects speech from state imposed restraints. Hudgens, supra; Lloyd, supra. ³ In Hudgens, the United States Supreme Court concluded that restraints imposed by privately operated shopping malls are not actions by the government, and consequently the shopping center in that case was not required to permit labor picketing.

Individuals, however, are entitled to speak or petition in privately owned centers if state law confers such a right and if its exercise does not unreasonably interfere with the constitutional rights of the owner. Pruneyard, supra. In Pruneyard, the United States Supreme Court held that state courts may construe state law to authorize individuals to speak and petition in shopping malls, regardless of the mall owner's wishes. The Pruneyard Shopping Center, because of the California constitution, was thus required to permit the circulation of a petition addressed to the federal government.

In Pruneyard, the court held that the California law, as applied in that case, did not violate due process or constitute a taking of private property without just compensation. If either of those rights had been violated, the speech activity would not have been protected. While acknowledging that the right to exclude others is an essential property right, the court noted that not every injury to property is unconstitutional and pursuant to the police power, states may impose reasonable restrictions on any property's use. Pruneyard, 100 S.Ct. at 2040-41. In determining that Pruneyard had suffered no constitutional injury, the court considered such factors as the character of the speech activity and its economic impact on the mall owners' "reasonable investment backed expectations." Pruneyard, at 2041-42. It reasoned that Pruneyard's right to exclude was not "so essential to the use or economic value of (the) property" as to transform the speech activity into a "taking" of property. Pruneyard, at 2042. The large size and public character of Pruneyard Shopping Center, ⁴ together with the power granted it by the state to impose reasonable restrictions on the time, place, and manner of expression, indicated that the speech activity of that case did not substantially diminish the value of the property or significantly interfere with "reasonable investment backed expectations." Pruneyard, at 2042. Similarly, permitting the speech activity in Pruneyard did not violate due process because the California speech provision was rationally related to the goal of enhancing speech and thus was neither arbitrary nor capricious. The court stressed, however, that had the case involved the proprietor of a modest retail establishment or an individual homeowner, a different result might have been reached.

We must therefore determine whether our state law, which is similar to that of California, confers a speech right greater than that of the first amendment to the United States Constitution and, if so, did it protect petitioners' actions.

I

The United States Supreme Court has consistently held that state courts may interpret state law to be more protective of individual rights than the federal constitution. See, e. g., Pruneyard, 100 S.Ct. at 2040; Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The fourteenth amendment to the United States Constitution, which applies the federal constitution to the states, only establishes the minimum degree of protection that a state may not abridge. Pruneyard, supra; Oregon v. Hass, supra ; Project Report, Toward an Activist Role for State Bills of Rights, 8 Harv.C.R.-C.L.L.Rev. 271, 284 (1973); Note, Robins v. Pruneyard Shopping Center: Federalism and State Protection of Free Speech, 10 Golden Gate U.L.Rev. 805, 817 (1980). As acknowledged by the Alaska Supreme Court:

While we must enforce the minimum constitutional standards imposed upon us by the United States Supreme Court's interpretation of the Fourteenth Amendment, we are free, and we are under a duty, to develop additional constitutional rights and privileges under our Alaska Constitution if we find such fundamental rights and privileges to be within the intention and spirit of our local constitutional language ...

Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970). Accord, People v. Longwill, 14 Cal.3d 943, 951, 538 P.2d 753, 123 Cal.Rptr. 297 (1975).

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