Brown v. Davis

• Decision Date: 15 November 1984
• Citation: 495 A.2d 900,203 N.J.Super. 41
• Parties: Lucille F. BROWN, et al., Plaintiffs, v. Roger J. DAVIS and Harold Davis t/a Davis Enterprises, the Township of Cherry Hill, * a Municipal Corporation of the State of New Jersey, Cherry Hill Women's Center, Defendants.
• Court: New Jersey Superior Court

Page 41

203 N.J.Super. 41

495 A.2d 900

Lucille F. BROWN, et al., Plaintiffs, v. Roger J. DAVIS and Harold Davis t/a Davis Enterprises, the Township of Cherry Hill, ^* a Municipal Corporation of the State of New Jersey, Cherry Hill Women's Center, Defendants.

Superior Court of New Jersey, Chancery Division Camden County.

Decided Nov. 15, 1984.

Daniel F. Steinmetz, Jr. Pennsauken, for plaintiffs.

William F. Hyland, Jr. Haddonfield, for defendants Roger J. Davis and Harold Davis (Brandt, Haughey, Penberthy, Lewis & Hyland, Haddonfield, attorneys).

Sheppard A. Guryan, Roseland, for defendant Cherry Hill Women's Center (Lasser, Hochman, Marcus, Guryan & Kuskin, Roseland, attorneys).

LOWENGRUB, J.S.C.

At issue is whether private citizens may enter upon the common areas of a multi-business office complex to espouse an anti-abortion thesis directed to prospective patients of one of the tenants without the consent of the landlord-owner.

Defendant, Davis Enterprises (Davis), owns a parcel of land consisting of approximately two acres fronting on New Jersey State Highway 38 at its intersection with Coles Avenue, Cherry Hill, New Jersey, upon which are erected three single story buildings, each occupied by either three or four separate lessees. The buildings are separated by common areas used for parking and vehicular ingress and egress to and from the roadways. Parking spaces are provided between the buildings and at either end of the center. Of the total ground area 26% is used for the buildings, 48% is blacktopped for parking and roads (20% for parking and 28% for roads) and 26% is utilized for plaintings and walks. A free standing sign, visible to traffic on Route 38, identifies the premises as "Avenues of Commerce." Smaller signs, uniform in shape, identifying each office, are located on the front of the buildings above the entrance to each of the leased premises.

Defendant Cherry Hill Women's Center, Inc. (Women's Center), one of the tenants occupying office space in the Avenues of Commerce, is a private medical facility that performs various gynecological services, including abortions. Prospective patients normally visit by appointment, however, no appointment is necessary for a pregnancy test. The other tenants are business enterprises who maintain offices offering services rather than retail sales to the general public. The separate leases permit use of the premises for general offices, storage space, warehouse facilities, wholesale sales and product display. ¹ From the evidence adduced at the trial, advertising of the Women's Center consists of listings in the yellow pages of the New Jersey Bell telephone book circulated in the City of Camden, Township of Cherry Hill, Pennsauken Township and vicinity. The Women's Center also places advertisements in newspapers of general circulation in Camden, Burlington and Gloucester counties; college newspapers for colleges located in Burlington County and Camden City; a magazine of general content and circulation; a radio station and a television station, each broadcasting from Philadelphia, Pa.

Plaintiffs presently engage in expressional activity consisting of walking along a right-of-way, owned by the State of New Jersey, parallel to Highway 38, where they carry signs and placards with messages espousing an anti-abortion or right-to-life theme. This right-of-way is approximately 45 to 100 feet from the front entrance to the Women's Center. In addition, plaintiffs call or shout to prospective patients of the Women's Center in an attempt to dissuade them from having an abortion. Defendants do not question plaintiffs' right to engage in such activity on the public right-of-way. However, plaintiffs seek to enter upon the sidewalks and parking areas of the Avenues of Commerce to picket and place literature on cars parked there. Plaintiffs also seek to confront, on a one-on-one basis, prospective users of the Center by meeting them as they exist their vehicles and walking with them to the front door of the Women's Center in order to persuade them not to have an abortion.

On May 26, 1984 Lucille Brown, one of the plaintiffs, entered a parking area of the Avenues of Commerce to place political literature supporting a candidate who favored an anti-abortion policy on a parked automobile. After refusing a request to leave she was arrested and charged with violating N.J.S.A. 2C:18-3 et seq., criminal trespass.

Plaintiffs brought this action to enjoin prosecution in the Cherry Hill Municipal Court against Mrs. Brown; to permit plaintiffs to enter the parking and walk areas of the Avenues of Commerce to vocally express their anti-abortion views and distribute literature without retribution by the defendants; and to enjoin defendants from removing literature which plaintiffs place on motor vehicles parked at the Avenues of Commerce. At trial, plaintiffs' counsel also suggested that the court permit a limited number of demonstrators to enter specific places rather than permitting unlimited access by plaintiffs to the Avenues of Commerce. Plaintiffs allege that the first amendment to the United States Constitution and article I, paragraph 6 of the New Jersey Constitution entitles them to the relief sought. The relevant portions are:

"Congress shall make no law ... abridging the freedom of speech..." U.S. Const. Amend. I, and

"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for that right... No law shall be passed to restrain or abridge the liberty of speech or of the press...." [ N.J.Const. Art. I, par. 6.]

The constitutional issues presented in this case require the balancing of expressional rights vis a vis property rights. Under the first amendment to the U.S. Constitution, private individuals do not have an unqualified right to engage in speech and assembly on private property. 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). However, individuals are entitled to exercise first amendment rights on private property if the property is sufficiently devoted to public use. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). "The more an owner for his advantage opens up his property to use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id. at 506, 66 S.Ct. at 278, 90 L.Ed. at 268. In this case the owner has not sufficiently dedicated the property to public use so as to entitle individuals to access for first amendment activity.

The New Jersey State Constitution has been interpreted more broadly than the Federal Constitution to permit the exercise of expressional rights on private property in certain circumstances. State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), app. dism. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982). In State v. Schmid, where the defendant sought to distribute political literature on the campus of Princeton University, the court formulated a three prong test to ascertain "... the parameters of the rights of speech and assembly upon privately owned property and the extent to which such property reasonably can be restricted to accomodate" those rights. Id. 84 N.J. at 563, 423 A.2d 615. The elements to be considered are "(1) the nature, pruposes, 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.

The protection of the rights of a private property owner is concomitant to the owner's obligation to honor the rights of others to speak and assemble on his property. In weighing the reasonableness of the owner's restrictions to access to private property, effect must be given to whether "there exist convenient and feasible alternative means to individuals to engage in substantially the same expressional activity." Schmid at 563, 423 A.2d 615.

In applying the Schmid test to this case, the credible evidence relevant to the first prong clearly shows that space is neither provided for nor available to pedestrians to congregate in and about the premises. The premises...