Citizens for Ethical Government, Inc. v. Gwinnett Place Associates, L.P.

• Decision Date: 08 June 1990
• Docket Number: No. S90A0383,S90A0383
• Parties: CITIZENS FOR ETHICAL GOVERNMENT, INC. v. GWINNETT PLACE ASSOCIATES, L.P., d/b/a Gwinnett Place Mall.
• Court: Georgia Supreme Court

Page 8

392 S.E.2d 8

260 Ga. 245

CITIZENS FOR ETHICAL GOVERNMENT, INC. v. GWINNETT PLACE ASSOCIATES, L.P., d/b/a Gwinnett Place Mall.

No. S90A0383.

Supreme Court of Georgia.

June 8, 1990.

Michael C. Clark, Clark & McLaughlin, Lawrenceville, for Citizens for Ethical Government, Inc.

William J. Berg, Kitchens, Kelley, Gaynes, Huprich, and Shmerling, William J. Berg, David P. Kitchens, Mark A. Kelley, Atlanta, for Gwinnett Place Associates, L.P.

Julie Edelson, Mark J. Levick, Altman, Kritzer and Levick, P.C., Atlanta, Edward J. Sack, New York City, amici curiae.

CLARKE, Chief Justice.

The controversy underlying this action arose when Citizens for Ethical Government, Inc. ("Citizens") sought to solicit signatures for the recall of an elected official in Gwinnett Place Mall. The general manager of the mall informed Citizens that mall policy prohibited political activity and solicitation in the mall. Citizens then filed this action seeking to enjoin enforcement of the policy. The trial court denied the injunction, holding that neither the United States nor the Georgia Constitution requires the owners of a privately owned and operated shopping center to permit the distribution of petitions unrelated to the operations of the center. We affirm.

1. Appellee contends that this appeal should be dismissed as moot. Appellee points out that the recall campaign has been completed. Citizens cannot reap any benefit from this court's decision on the merits of the case. Citizens, on the other hand, agree that the particular controversy is moot, but argue that the merits should be addressed because the alleged error is capable of repetition and likely to evade review indefinitely.

We have held that the merits of a moot case may be reviewed when the error is capable of repetition and yet evades review. Chastain v. Baker, 255 Ga. 432, 339 S.E.2d 241 (1986). The alleged error in this case is the refusal to enjoin a policy of prohibiting political solicitation in the mall. Appellants base their claim of right to petition in the mall on the Georgia Constitution's guarantees of the right to petition and right to recall elected officials, and on the Recall Act of 1989. See Georgia Constitution of 1983, Article I, Sec. 1, Para. 9; Article II, Sec. 2, Para. 4; and OCGA § 21-4-1 et seq. Due to the statutory time limits imposed on the petitioners in a recall effort, any claim based on the right to collect signatures for a recall of an elected official would almost certainly be moot by the time it was appealed to this court. We conclude, therefore, that this case falls within the limited class of cases that we may review even though they are moot.

2. Citizens argue that shopping malls are the "new town centers," serving the functions of the public square. They assert that shopping malls, although they are privately owned and operated, have become a public forum dedicated to the public use. They also assert that in drafting the Recall Act of 1989, the legislature intended for petitions for recall to be circulated in any place except where alcoholic beverages are served. OCGA § 21-4-8(a). They urge this court to construe the Georgia Constitution to guarantee public access to shopping malls to petition for a recall election.

This court recognizes that shopping malls represent a fertile potential source of signatures for petitioners in a recall election effort. Petitioners' convenience, however, does not create a constitutional right of access to private property for political activity. In Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), the United States Supreme Court held that, under the federal constitution, the owner of a privately owned and operated shopping center may prohibit the distribution of handbills or petitions unrelated to the operations of the center. Most states that have considered the issue have determined that their state constitutions do not require privately owned shopping centers to permit political activities on their premises. See, e.g., Fiesta Mall Venture v. Mecham Recall Committee, 159 Ariz. 371, 767 P.2d 719 (1989); Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986); Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984).

The property at issue here is a privately owned and operated shopping mall that is generally open to the public for shopping, dining and entertainment. Since the mall's opening, its owners have enforced a policy prohibiting all solicitation and political activity in the mall. The policy has been applied uniformly to all persons and organizations without regard to the content or format. We hold that nothing in the Georgia Constitution or the Recall Act of 1989, either separately or together,...