Cologne v. Westfarms Associates

CourtSupreme Court of Connecticut
Writing for the CourtSHEA; The plaintiffs wish to have us balance the importance of the rights of free speech and petition which they seek to exercise against the interest of the defendants in controlling and operating their private property. The trial court, Spada, J.,
Citation469 A.2d 1201,192 Conn. 48
PartiesChristine A. COLOGNE et al. v. WESTFARMS ASSOCIATES et al.
Decision Date17 January 1984

Martin Margulies, Bridgeport, with whom were Shelley Geballe, Stoney Creek, and Martha Stone, Hartford, for appellants-appellees (plaintiffs).

Robert M. Dombroff, Hartford, with whom were Melvin S. Katz, Hartford, and on the brief, Samuel J. Henderson, Hartford, and Joseph Aviv, Bloomfield Hills, Mich., of the Michigan bar, for appellees-appellants (named defendant et al.).

Victor J. Dowling, Simsbury, for appellees-appellants (defendant Richard W. Sheehan et al.).

Joseph F. Keefe, Torrington, appeared as co-counsel, for appellee-appellant (defendant Joseph P. Vetrano).

SHEA, Associate Justice.

The principal question presented by this appeal is whether a court of this state may direct that the rights of free speech and petition in our state constitution may be exercised upon private property consisting of a large regional shopping center, contrary to the wishes of its owners. We conclude that it may not and vacate the judgment which contained such a decree.

The plaintiffs are the Connecticut National Organization for Women (hereinafter NOW) and one of its members, Christine A. Cologne, who are interested in promoting the rights of women through education and governmental action. The defendants are a partnership, Westfarms Associates (hereinafter Westfarms), which owns a large retail shopping center located partly in West Hartford and partly in Farmington, known as the Westfarms Mall (hereinafter Mall), the individual partners and the person 1 who operates the Mall in behalf of his employer, the Taubman Company, which has contracted to manage the property for the owners.

The Mall consists of four connected buildings which house under one roof approximately 120 retail businesses occupying 407,200 square feet of space and several major department stores containing about 500,000 square feet. All of these establishments are connected by common passageways. At each end of the building complex there is a courtyard area with seating accommodations designed to allow patrons of the Mall to relax while shopping. A similar "grand court" of 14,000 square feet is located approximately in the center. The passageways and courtyard areas are situated within this building and are protected from the weather. Westfarms permits and sponsors various activities to be conducted in the grand court, such as health clinics, volunteer tax assistance facilities, informational programs, exhibitions, fashion shows and concerts.

The Mall is served by several major traffic arteries, including interstate highway I-84, and it provides a parking area sufficient for 5000 cars. Several bus lines regularly provide public transportation to the Mall from surrounding communities. Approximately 5000 people patronize the Mall each day from Monday to Friday and on weekends approximately 10,000 do so. Those numbers double during the Christmas holiday shopping season. There are also 2000 people working at the Mall throughout the year, and an additional 1000 during the Christmas shopping season. There are no public streets or sidewalks within the building complex, adjacent thereto or within the parking areas.

About May 25, 1981, the plaintiffs sought permission from the company which operates the Mall to solicit persons visiting the shopping center to sign petitions in support of the equal rights amendment (ERA) to the federal constitution. The request was denied and the plaintiffs were advised that to allow such activities was contrary to the written policy of the defendants. The plaintiffs thereafter commenced a suit seeking injunctive relief for the purpose of enabling them to obtain signatures in support of ERA on the Mall premises.

On January 4, 1982, judgment was rendered, Bieluch, J., for the plaintiffs requiring the defendants to provide a location in the grand court of the Mall where the plaintiffs could conduct their petitioning activities in support of ERA under specified conditions until that amendment was ratified or until July 1, 1982, the deadline established for such ratification. Cologne v. Westfarms Associates, 37 Conn.Sup. 90, 114-17, 442 A.2d 471 (1982) (Cologne I ).

Soon after this injunction had expired in accordance with its terms, the plaintiffs brought the present action, the defendants having refused a further request to continue any solicitation activities at the Mall. In their complaint the plaintiffs sought to enjoin the defendants from preventing them from soliciting signatures on petitions and from distributing informational literature upon the common areas of Westfarms Mall without any limitation as to subject matter. On March 2, 1983, the trial court, Spada, J., rendered a judgment enjoining the defendants during the period of January 1 through September 30 of each year from "prohibiting the plaintiffs' solicitation by voice, signs and descriptive materials of signatures on petitions in support of legislation pertaining to: (1) Aid to Families of Dependent Children; (2) Pay Equity Between the Sexes; (3) Sex Discrimination in Insurance Contracts; (4) Enforcement of Child Support Orders; and (5) Renewal of the Commission on Human Rights and Opportunities, at a single location in the Grand Court of the Mall to be designated by the defendants." This order was made subject to numerous conditions 2 regulating the time, place and manner in which the plaintiffs should conduct their activities, including a restriction confining the use of signs, descriptive materials and petitions, to the five issues specified. Both the plaintiffs and the defendants have appealed from this judgment.

The plaintiffs did not actually gain access to the Mall for the purpose of conducting their activities until April 23, 1983. 3 From that date until November 1, 1983, the plaintiffs have conducted their activities in the grand court of the Mall in accordance with the conditions set forth in the judgment, except for a period of two weeks. They have observed both the content restriction and the time limitation imposed by the injunction order which are the basis for their appeal from that judgment.

While the plaintiffs' initial appeal was pending, the defendants sought a dissolution of the injunction granting access to the plaintiffs. The defendants' claim there focused on an incident occurring on Sunday morning, May 22, 1983, involving an attempt by members of the Ku Klux Klan to make an appearance at the Mall after their demand for access had been denied by the defendants. 4 On that day, the defendants, with the assistance of members of the police forces of West Hartford and Farmington, barred them from entering the Mall. After their departure, however, a number of anti-Klan demonstrators, who had been attracted by the report of the intended appearance of the Klan, engaged in a heated demonstration outside the Mall building. Police from several area towns and the state police were needed to bring the situation under control. This demonstration resulted in the closing of some of the stores in the Mall for a portion or for the remainder of that day. It is clear that none of the groups or individuals involved in the disturbance was concerned in any manner with the plaintiffs, who were not at the Mall premises at the time.

The circumstances of this disturbance were relied upon by the defendants in their motion to dissolve the injunction granting access to the plaintiffs. After an evidentiary hearing, the court, Ripley, J., concluded that to allow access to the interior of the Mall building by many organizations seeking to exercise the same privileges afforded to the plaintiffs by the injunction would create a highly dangerous situation which the police would be unable to control. Accordingly, the injunction was modified by limiting the location where the plaintiffs could conduct the activities permitted under the first judgment to the exterior of the building under a portico at one of the entrances. The plaintiffs and the defendants have amended the appeal and cross-appeal from the first judgment to include their claims of error relating to the order modifying the injunction. The plaintiffs claim that the court had no power to modify the injunction while an appeal was pending and that the circumstances of the disturbance, which were wholly unrelated to their activities, did not warrant any modification of its terms. The defendants claim that the court should have dissolved the injunction rather than modify it.

The issues presented by this appeal have an intricate background. In Lloyd Corporation v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), the Supreme Court of the United States rejected the contention that a privately owned retail shopping center was the functional equivalent of the business district of a municipality upon which expressive activity protected by the first amendment to the federal constitution might be conducted as freely as upon a village green. The court found inapplicable the rationale that where a private enterprise performs the role of a municipality it comes under the same strictures which bind governmental agencies. See Marsh v. Alabama, 326 U.S. 501, 507-508, 66 S.Ct. 276, 279-280, 90 L.Ed. 265 (1946). The court distinguished Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 318, 88 S.Ct. 1601, 1608, 20 L.Ed.2d 603 (1968), where picketing by a union against one of the stores in a shopping center had been permitted, on the ground that such expressive activity was related only to the dispute between the employer and the workers involved. This distinction was later seen to constitute discrimination in the regulation of free expression on the basis of its content and Logan Valley Plaza was overruled. Hudgens v. National Labor Relations Board, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); see ...

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