Batchelder v. Allied Stores Intern., Inc.

• Decision Date: 28 January 1983
• Citation: 445 N.E.2d 590,388 Mass. 83
• Parties: , 38 A.L.R.4th 1206 Donald P. BATCHELDER v. ALLIED STORES INTERNATIONAL, INC. et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 590

445 N.E.2d 590

388 Mass. 83, 38 A.L.R.4th 1206

Donald P. BATCHELDER v. ALLIED STORES INTERNATIONAL, INC. et al. ¹

Supreme Judicial Court of Massachusetts,

Essex.

Argued May 5, 1982.

Decided Jan. 28, 1983.

Roderick MacLeish, Jr., and Robert A. Sherman, Boston (John Reinstein, Boston with them), for plaintiff.

John A. Christopher, IV, Peabody, for defendants.

Anthony P. Sager and Stephen M. Limon, Asst. Attys. Gen., for Atty. Gen. and another, amici curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

We are concerned with the right of a person to solicit signatures in the mall area of a large, private shopping center in support of a candidate's nomination to public office. The defendants (North Shore) denied that right to the plaintiff, Donald P. Batchelder. Batchelder then commenced this action asserting that he had a right under arts. 9 and 16 of the Declaration of Rights of the Constitution of the Commonwealth, and under G.L. c. 12, § 11I, to solicit signatures in support of ballot access in the mall, or common area, of the North Shore Shopping Center.

A Superior Court judge rejected Batchelder's claim and ordered entry of judgment for North Shore. We granted Batchelder's request for direct appellate review and now conclude that (1) Batchelder had a right under art. 9 to solicit nominating signatures in a reasonable and unobtrusive manner, (2) we need not consider any rights under G.L. c. 12, § 11I, and (3), although the action is moot, the judgment should be vacated and a new judgment entered declaring Batchelder's rights pursuant to art. 9. ² We conclude that any person seeking signatures in connection with access to the ballot, and distributing material associated therewith, has a right under art. 9 of the Declaration of Rights to do so, in a reasonable and unobtrusive manner, in the common areas of a large shopping mall, subject to reasonable regulations adopted by the mall owner.

On Saturday, March 22, 1980, Batchelder, a resident of North Reading, entered the North Shore Shopping Center in Peabody for the sole purpose of obtaining signatures, and distributing related printed material, in support of his nomination as a candidate of the Citizens' party in the Sixth Congressional District and in support of the nomination of the Citizens' party's candidate for President. In 1980 the Sixth Congressional District consisted of the cities and towns in Essex County with the exception of the city of Lawrence and four towns. See G.L. c. 57, § 1, as appearing in St.1971, c. 1074, § 1. Batchelder needed 3,700 valid signatures by May 6, 1980, to be placed on the ballot. In the mall Batchelder solicited signatures and passed out circulars in an orderly and quiet manner. He had obtained about fifteen signatures, during the first half hour of his endeavors, when a North Shore security guard advised him that soliciting signatures and distributing political circulars were not allowed at the shopping center. Batchelder objected but left the premises. Batchelder did succeed in obtaining the required signatures, his name appeared on the ballot, and he received about 3,300 votes in the election. ³

The North Shore Shopping Center is a large retail shopping center, with an enclosed mall. It has ninety-five retail stores, ranging from large department stores to small specialty stores. There are also a motion picture theater, an exercise facility, a beauty salon, a bowling alley, and a chapel affiliated with the Roman Catholic Church. It is located on approximately eighty-four acres at the junction of Routes 128 and 114 in Peabody, a city in the Sixth Congressional District. The shopping center is the largest shopping mall in Massachusetts. There was evidence that, at the time of the trial, it was the fifteenth largest shopping center in the country. On an average, between 175,000 and 200,000 people visit the shopping center each week. Gross sales in 1980 at the shopping center exceeded $108,000,000. North Shore schedules special events almost every week of the year; some are charitable and civic, and some are simply entertainment. ⁴ Many events have a direct commercial benefit for the tenants of the shopping center by attracting people to the shopping center, others benefit North Shore and its tenants by creating goodwill. The shopping center is entirely privately owned. It receives no government subsidy. None of its property has been formally dedicated to the public. North Shore has consistently applied a nondiscriminatory policy concerning political campaigning. No solicitation of signatures is permitted. Candidates already on the ballot may appear at the shopping center and shake hands with voters.

The shopping center is the most favorable site in the Sixth Congressional District for obtaining signatures of voters in that district. Door-to-door solicitation, particularly for a member of a minority party, is far less effective. The downtown areas of municipalities are also less attractive places to obtain signatures. In spite of the relatively attractive qualities of the shopping center, there are other places in the district where sufficient signatures can be obtained, as Batchelder himself demonstrated.

We start with the question whether we should dismiss the appeal because the action is moot. The 1980 election is well behind us, and Batchelder did obtain the necessary valid signatures. The issues Batchelder raises are, however, likely to arise again, and appellate review will probably not be possible in any subsequent action before that case also becomes moot. See First Nat'l Bank v. Haufler, 377 Mass. 209, 211, 385 N.E.2d 970 (1979). Where the issue is one of substantial public interest and has been fully briefed and argued, immediate resolution of the issue is desirable. Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 533, 437 N.E.2d 164 (1982).

Considerations under the Constitution of the United States appear to be substantially neutral on the issue before us. A person has no First Amendment right to distribute handbills in a privately owned shopping center. See Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), repudiating Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972). We will assume that the fact that Batchelder was seeking signatures in support of access to the ballot, and not merely "leafletting," does not enhance his position under the Federal Constitution. Batchelder does not so argue. On the other hand, the Supreme Court of the United States has made it clear that a State may "adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution" and "in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision." PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2041, 64 L.Ed.2d 741 (1980).

In the PruneYard case, the Supreme Court held that the Federal Constitution does not prohibit a State from creating a right under its State Constitution to distribute pamphlets and to seek signatures on petitions in a private shopping center substantially similar to the North Shore Shopping Center. The Court rejected PruneYard's claim that the State's attempt to authorize intrusions into its private property constituted a taking of its property without due process of law. PruneYard made no showing that the solicitation activity unreasonably impaired the value or use of its property as a shopping center. Furthermore, the California court recognized that PruneYard could restrict expressive activity by adopting time, place, and manner regulations that would minimize any interference with its commercial functions. Thus the Supreme Court concluded that PruneYard had not shown that orderly solicitation in the common areas of the shopping center was a violation of the taking clause of the Fifth Amendment or of the Fourteenth Amendment guarantee against the deprivation of property without due process of law. PruneYard Shopping Center v. Robins, supra at 83-85, 100 S.Ct. at 2041-42. The Supreme Court also rejected PruneYard's claim that it had a First Amendment right not to be forced by the State to use its property as a forum for the speech of others. Id. at 87-88, 100 S.Ct. at 2044. The Court concluded that members of the public passing out pamphlets or seeking signatures are not likely to be identified with the owners and that the owners could disavow any connection with the message by posting signs in the appropriate area. Id. at 87, 100 S.Ct. at 2044.

Free from any demonstrated restraint or mandate under the Constitution of the United States, we address Batchelder's arguments based on the Declaration of Rights of the Constitution of the Commonwealth. ⁵ He relies both on the freedom of speech provisions of art. 16 of the Declaration of Rights, as amended by art. 77 of the Amendments to the Massachusetts Constitution ("The right of free speech shall not be abridged"), and on art. 9 concerning the freedom and equality of elections. ⁶ We need not consider Batchelder's arguments under art. 16, in view of our interpretation of art. 9. Unlike the prohibition of the First Amendment to the Federal Constitution ("Congress shall make no law ...") and the limitation of the Fourteenth Amendment ("nor shall any State deprive any person ..."), art. 9 is not by its terms directed only against governmental action. There is, thus, no "State action" requirement expressed in art. 9, and we see no reason to imply such a requirement, and thereby to force a parallelism with the Federal Constitution. ⁷ Courts in several...