City of Sunnyside v. Lopez

• Decision Date: 17 March 1988
• Docket Number: No. 7802-7-III,7802-7-III
• Citation: 50 Wn.App. 786,751 P.2d 313
• Parties: CITY OF SUNNYSIDE, Respondent, v. Mary F. LOPEZ, Petitioner.
• Court: Washington Court of Appeals

Page 786

50 Wn.App. 786

751 P.2d 313

CITY OF SUNNYSIDE, Respondent, v. Mary F. LOPEZ, Petitioner.

No. 7802-7-III.

Court of Appeals of Washington Division 3, Panel Four.

March 17, 1988.

Review Denied June 2, 1988.

Roger Garrison, Sunnyside, for petitioner.

Daniel Heid, Office of City Atty., Sunnyside, for respondent.

McINTURFF, Chief Judge.

We accepted discretionary review of a superior court judgment which affirmed Mary Lopez' district court conviction for criminal trespass. ¹ In her appeal, Ms. Lopez contends she had a free speech right to enter the premises of the Sunnyside Professional Center and distribute anti-abortion literature. We disagree. The center is not sufficiently open to the general public to lose its character as private property and entitle individuals to access for free speech activity. Thus, we affirm Ms. Lopez' conviction.

Ms. Lopez was one of several anti-abortionists cited in August and September 1985 for criminal trespass on the premises of the center, which is located on 1 1/2 acres of land and has approximately 110 parking spaces and 11 tenants. The tenants include a lab, a pharmacy, and several medical doctors. One of the doctors, Dwight Williamson, performs abortions.

The block on which the center is situated has a public sidewalk next to the street, and the center's parking lot abuts this public sidewalk. The interior side of the lot is adjacent to the center's three buildings which are connected by walkways. The walkways form a "T" within the space between the buildings. A breezeway or covered sidewalk runs along the outside perimeter of the center. The following diagram is based on the testimony and the illustrative exhibits which are part of the record:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The center's owner had posted seven "no trespassing" signs on the premises, one each at the four corners of the center and at the three entrances to the connecting walkways. The words "no trespassing" were in large type, and the following language appeared in smaller type:

NOTICE

The parking and sidewalk areas of the Sunnyside Professional Center are not public ways, and ARE RESERVED FOR THE EXCLUSIVE USE OF the Sunnyside Professional Center, its owners and tenants, and for the

MEMBERS OF THE PUBLIC transacting business with them.

THE USE OF SUCH AREAS FOR ANY OTHER PURPOSE MUST BE BY THE PERMISSION OF THE CENTER, ITS OWNER AND TENANTS, subject to such rules and regulations as may be imposed upon such use, and

PERMISSION TO USE SAID AREAS MAY BE REVOKED AT ANY TIME.

FAILURE TO COMPLY WITH THE ABOVE RULES AND REGULATIONS AND FAILURE TO SEEK PERMISSION TO COME UPON THE PREMISES, MAY EXPOSE PERSONS TO THE LAWS OF CRIMINAL TRESPASS IN THE STATE OF WASHINGTON.

Please direct your inquiries to:

DR. PETER J. SWOFFORD

803 E. Lincoln Avenue

Sunnyside, Washington

Phone: 837-3933

For the rules and regluations regarding permissible use.

On August 27, 1985, Ms. Lopez was on the public sidewalk next to the center's parking lot. Upon observing a man and a woman walking on the breezeway toward Dr. Williamson's office, she proceeded across the center's parking lot, and met the couple on the breezeway outside the doctor's office. According to Ms. Lopez:

I joined them there and asked them if they would accept some of my literature.

* * *

I explained that we were there ... to offer women who were seeking abortions help with their pregnancy, whatever was driving them to destroy their baby. We were there to help them, whether it was financial, medical, housing, food ...

And they stopped for a minute, and then the woman went on inside, and her husband ... stayed out there, and he accepted my literature, and he was talking to me. I asked him if he would ... go into Dr. Williamson's office and ask his wife to come out and visit with me for a few minutes, and he said he would, and at this time, we were right at the corner of the pharmacy.

At this point, one of Dr. Williamson's employees came out of his office and told Ms. Lopez to leave the property. The employee took a Polaroid picture of Ms. Lopez when she remained to wait for the husband. The police arrived and, on the basis of the photograph, cited Ms. Lopez for trespassing.

At the close of the City's case, Ms. Lopez unsuccessfully moved to dismiss on the basis that she was arrested for a misdemeanor not committed in the arresting officer's presence, contrary to RCW 10.31.100. ² At the close of all the evidence, the district court concluded the center was "the functional equivalent of a community business block, or tantamount to public property." But it also concluded Ms. Lopez' activities on August 27, 1985, were beyond the reasonable exercise of free speech and, therefore, convicted her of trespass.

On review of Ms. Lopez' conviction, pursuant to RALJ 9.1, the superior court held the district court had not committed any error of law which would affect the outcome of the case, although it criticized that part of the court's analysis which concluded the center was the functional equivalent of a community business block. The superior court also agreed with the district court that the alleged violation of RCW 10.31.100 did not constitute grounds for dismissal of the trespass charge.

First, is the Sunnyside Professional Center sufficiently open to the public in general to entitle individuals to access for free speech activity? ³ The first amendment ⁴ to the United States Constitution protects free speech only from government imposed restraints. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). Nevertheless, state law may confer a right on individuals to speak or petition on private property if the exercise of the right does not unreasonably interfere with the constitutional rights of the owner. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (applying California law). The Washington court has held in a plurality opinion that article 1, section 5 of the Washington Constitution, ⁵ ] which is substantially similar to the California constitutional speech guaranty, does not require state action. Alderwood Assocs. v. Washington Envtl. Coun., 96 Wash.2d 230, 243, 635 P.2d 108 (1981).

Ms. Lopez relies on Washington's constitution in asserting she had a free speech right to enter the center and distribute anti-abortion information. In determining whether her speech activity is protected, the court balances several factors:

The first is the use and nature of the private property. As property becomes the functional equivalent of a downtown area or other public forum, reasonable speech activities become less of an intrusion on the owner's autonomy interests. When property is open to the public, the owner has a reduced expectation of privacy and, as a corollary, any speech activity is less threatening to the property's value.

(Citations omitted.) Alderwood, at 244, 635 P.2d 108.

The second factor for the court to consider is the nature of the speech activity. "The exercise of free speech is given great weight in the balance, because it is a preferred right." Alderwood, at 244, 635 P.2d 108.

The third factor is whether the potential exists for reasonable regulation of the speech. Some speech activity may be so unreasonable that it violates the property owner's First Amendment right not to participate in the dissemination of an idealogical message or amounts to an uncompensated taking of private property. Alderwood, at 245, 635 P.2d 108.

In Alderwood, the court found that the free speech rights of citizens seeking signatures on petitions for an initiative outweighed the property rights of the owners of a large shopping mall. The court observed that the shopping centers of today are the new public forums; forums which were traditionally provided by the town center or community business block. To exclude the speech activity of the petitioners there would greatly reduce their ability to exchange ideas and gather the requisite number of initiative signatures. Alderwood, at 246, 635 P.2d 108.

The City distinguishes Alderwood on the basis of size. Alderwood Mall covers 110 acres, contains more than 6,000 parking spaces, and impact statements on file projected 22,000 cars entering the mall on an average day in 1978. Alderwood, at 232, 635 P.2d 108. Sunnyside Professional Center is situated on 1 1/2 acres and has approximately 110 parking spaces. The City relies on language in Robins v. Pruneyard Shopping Ctr., 23 Cal.3d 899, 910-11, 153 Cal.Rptr. 854, 860, 592 P.2d 341, 347-48 (1979), aff'd, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), which also concerned a shopping mall, that if the case had involved the proprietor of a modest retail establishment, a different result might have been reached.

Several jurisdictions have decided that the private property rights of medical center tenants and owners override the right of a citizen to express anti-abortion sentiments. Some of these decisions are based on First Amendment grounds alone, or on state constitutional free speech provisions which have been interpreted to require state action. See, e.g., Ingram v. Problem Pregnancy of Worcester, Inc., 396 Mass. 720, 488 N.E.2d 408 (1986); Kugler v. Ryan, 682 S.W.2d 47 (Mo.Ct.App.1984); Hoffart v. State, 686 S.W.2d 259 (Tex.Ct.App.1985), cert. denied, --- U.S. ----, 107 S.Ct. 95, 93 L.Ed.2d 46, reh'g denied, --- U.S. ----, 107 S.Ct. 478, 93 L.Ed.2d 423 (1986); State v. Horn, 139 Wis.2d 473, 407 N.W.2d 854 (1987). These latter jurisdictions are distinguishable from ours which imposes no state action requirement.

However, the courts of New Jersey, which interpret its constitutional free speech provision in the same manner as Washington, also rule in favor of the property interests in these situations. State v. Brown, 212 N.J.Super. 61, 513 A.2d 974, cert. denied, 107 N.J. 53, 526 A.2d 140 (1986); Planned Parenthood of Monmouth County, Inc. v. Cannizzaro, 204...