Bellemead Development Corp. v. Schneider

• Decision Date: 06 October 1983
• Docket Number: AFL-CIO
• Citation: 193 N.J.Super. 85,472 A.2d 170
• Parties: BELLEMEAD DEVELOPMENT CORPORATION; Bellemead Management Co., Inc., Plaintiffs, v. Deborah SCHNEIDER, Individually and as an Organizer of Local 59, Professional Office Workers of New Jersey, ILGWU/; Local 59, Professional Office Workers of New Jersey, ILGWU/; and John Doe and Jane Doe, said names being fictitious, their true names being unknown to Plaintiffs, such persons being officers, agents, representatives, members and/or employees of the above-named organization, and others in active concert or participation with it, Defendants.
• Court: New Jersey Superior Court

Page 85

193 N.J.Super. 85

472 A.2d 170

BELLEMEAD DEVELOPMENT CORPORATION; Bellemead Management Co., Inc., Plaintiffs, v. Deborah SCHNEIDER, Individually and as an Organizer of Local 59, Professional Office Workers of New Jersey ILGWU/AFL-CIO; Local 59, Professional Office Workers of New Jersey, ILGWU/AFL-CIO; and John Doe and Jane Doe, said names being fictitious, their true names being unknown to Plaintiffs, such persons being officers, agents representatives, members and/or employees of the above-named organization, and others in active concert or participation with it, Defendants.

Superior Court of New Jersey, Chancery Division Bergen County.

Oct. 6, 1983.

Barry Asen and Joel Finger, New York City, members of the New York Bar for plaintiffs (Roberts & Finger, New York City, attorneys; Walder, Sondak, Berkeley & Brogan, Roseland, attorneys, of counsel)

Bennett D. Zurofsky, Newark, for defendants (Reitman, Parsonnet, Maisel & Duggan, Newark, attorneys).

LESTER, J.S.C.

This case of first impression presents the issue of whether and to what extent the owner of a private office building may exclude union members from distributing solicitation leaflets in front of the buildings on private sidewalks. Our Supreme Court has addressed similar issues concerning a private university,

State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), and a private gambling casino, Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1982), but has never addressed the issue in relation to a group of private buildings in an office park as herein presented.

I FACTS

Plaintiffs own, directly or indirectly, five lots with the buildings located thereon within the Meadowlands Corporate Center in Lyndhurst. The Meadowlands Corporate Center (the center) is a development consisting of at least six office buildings, several warehouses, a motel, an automobile dealer, and an athletic club. While plaintiffs own, directly or indirectly, a large portion of the property in the center, this litigation involves only five office buildings.

Two of the five buildings are in one area and the other three are located some distance away but within the center. The buildings within each of the two groups are adjacent to one another and some share parking lots. Space within the five buildings is rented to approximately forty corporate tenants whose use is limited by lease almost exclusively to executive, general, and administrative offices as well as corporate headquarters. One of the buildings houses a restaurant, cocktail lounge and supporting facilities and another recently has rented space to a take-out delicatessen which will prepare and sell sandwiches at lunchtime. (The latter will have no tables for customers). Other than the two food vendors, no other tenant engages in retail activities on the subject premises. The various pieces of real estate on which the buildings are situated are privately owned. The privately owned land includes adjacent parking lots, grassy areas, and most sidewalks. The area containing the five buildings fronts on public streets. Some public sidewalks are adjacent to the public streets. The parties have stipulated that more employees come to the Meadowlands Corporate Center by car than by bus. Plaintiff conceeds that Posted at the entrances of the driveways leading into the property and parking lots of each of the five buildings is a sign which states, "Solicitation, distribution of literature or trespassing by nonemployees on these premises is prohibited." On the door of each building is a sign which states,

defendants may distribute leaflets on the public streets and sidewalks.

No soliciting, distributing of any literature or vending of any products is permitted in this building. All violations will be prosecuted!! Bellemead Management Co., Inc.

The corporate secretary and house counsel of plaintiffs testified that plaintiffs do not invite the public to come onto the property. Only tenants, tenants' employees, and invitees, as well as plaintiffs' employees and contractors are so permitted. He further testified that plaintiffs have a policy against advertising on the properties.

Defendants are attempting to unionize nonmanagerial office workers employed by plaintiffs' tenants. On eight days during November 1982 through February 1983, defendant Schneider and other representatives of defendant Local 59 entered on the five properties, without plaintiffs' permission, stood near the doorway of the buildings, and distributed leaflets to persons entering and exiting the buildings. Plaintiffs responded on all but three of those days by informing defendants that they were on private property, and that they would have to leave. The police were called several times and on one occasion plaintiffs filed a criminal trespass complaint in Lyndhurst Municipal Court which was later dismissed for lack of prosecution. Despite written demand by plaintiffs' counsel to defendant to cease trespassing, defendants have continued to come onto the property without plaintiffs' permission.

Plaintiffs commenced this suit by order to show cause seeking a preliminary injunction on the return date enjoining defendants from trespassing upon the subject property. The complaint alleges continuing unlawful trespass and nuisance. Defendants answered, claiming as defenses, inter alia, that their activities

are protected by the New Jersey Constitution's provisions protecting free speech and the right to organize, as well as by the Anti-Injunction Act, N.J.S.A. 2A:15-51. Finally, defendants counterclaimed for an injunction preventing plaintiffs from interfering, in any way, with defendants' rights to distribute [472 A.2d 174] leaflets on plaintiffs' property. On the return date of the order to show cause, counsel and the court agreed to forego the hearing on the preliminary injunction application and to set a short date for a trial on all issues. The trial is completed.

II DISCUSSION

A. Constitutional Questions

This case requires the court to resolve a classic constitutional dispute and maintain what the Supreme Court has labeled "the ... constitutional equipoise between expressional rights and property rights." State v. Schmid, supra, 84 N.J. at 561, 423 A.2d 615. Under the United States Constitution defendants would be barred from distributing leaflets on plaintiffs' private property. ¹ See Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). Nevertheless, in accordance with Prune Yard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), our Supreme Court has interpreted the New Jersey Constitution more broadly than the Federal Constitution by allowing the exercise of expressional rights on private property in certain circumstances. State v. Schmid, supra, 84 N.J. at 553-564, 423 A.2d 615.

In Schmid the court established a sliding scale standard to strike the necessary balance between private-property interests and expressional rights. The court stated "that the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property." Id. at 562, 423 A.2d 615. A (1) the nature, purpose, and primary use of such private property, generally its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. [Id. at 563, 423 A.2d 615]

three-part test was established for application of the sliding scale. The Court is to look to:

The Court in Schmid held that defendant could distribute and sell political materials on the campus of Princeton University without the latter's permission. Utilizing the three-part test, the Court found that since one of Princeton's primary purposes was to encourage open expression and thought, defendant's activities were consistent with the normal use of the property, and evidenced the fact that Princeton did invite public use of its resources in order to fulfill its educational goal. Finally, the Court found that defendants' expressional activities were neither discordant nor incompatible with Princeton's use of its property.

The second major case in New Jersey dealing with the private property--expressional rights conflict is Uston v. Resorts International Hotel, Inc., supra, in which defendant Resorts sought to exclude plaintiff, a renowned card counter, from the casino. Rejecting defendant's argument that it could exclude anyone for any reason, the Court cited Schmid as recognizing "that when property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably." Id. at 173, 445 A.2d 370. Furthermore, "[p]roperty owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use." Ibid.

The facts of the instant case contrast those of Schmid and Uston, where the property owners either encouraged public dialogue on their premises or invited the public to enter onto the property to transact commercial business. Plaintiffs here discourage public use of their property and seek to limit, to the fullest extent possible, public access. Plaintiff's policy in this regard is quite clear, only tenants, their employees, and invitees The instant case also differs from cases reported in other states. The reported cases outside of New Jersey involve either shopping malls, see Cologne v. Westfarms Associates, 37 Conn.Super. 90, 442 A.2d 471 (1982); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981); Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981), or university campuses, Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), both of...