Fiesta Mall Venture v. Mecham Recall Committee, 2

• Decision Date: 31 October 1988
• Docket Number: No. 2,CA-CV,2
• Citation: 767 P.2d 719,159 Ariz. 371
• Parties: FIESTA MALL VENTURE, an Arizona joint venture; Westday Associates, an Arizona Partnership; DVM Co., an Arizona joint venture; Noble "Park Central" Associates, a Texas joint venture; Los Arcos Investments Limited Partnership, an Arizona limited partnership, Plaintiffs/Appellees, v. MECHAM RECALL COMMITTEE, an Arizona non-profit corporation, Defendant/Appellant. 88-0195.
• Court: Arizona Court of Appeals

Page 719

767 P.2d 719

159 Ariz. 371

FIESTA MALL VENTURE, an Arizona joint venture; Westday Associates, an Arizona Partnership; DVM Co., an Arizona joint venture; Noble "Park Central" Associates, a Texas joint venture; Los Arcos Investments Limited Partnership, an Arizona limited partnership, Plaintiffs/Appellees, v. MECHAM RECALL COMMITTEE, an Arizona non-profit corporation, Defendant/Appellant.

No. 2 CA-CV 88-0195.

Court of Appeals of Arizona Division 2, Department B.

Oct. 31, 1988.

As Corrected Nov. 4, 1988.

As Corrected Jan. 26, 1989.

Review Denied Feb. 7, 1989. ^*

[159 Ariz. 372] Murphy & Posner by Michael L. Murphy, K. Bellamy Brown, Terry L. Rakow and Roger R. Foote, Phoenix, for plaintiffs/appellees.

Alice L. Bendheim and Gary Peter Klahr, Phoenix, for defendant/appellant.

OPINION

FERNANDEZ, Judge.

In late July and early August of 1987, members of appellant Mecham Recall Committee went to several large shopping malls in the Phoenix area in an attempt to obtain signatures on petitions to recall former Governor Evan Mecham. The owners of five of the malls filed suit on August 14 to enjoin the committee from soliciting signatures on their property. A temporary restraining order was issued on August 14 which prohibited appellant from entering the malls "to solicit signatures, present petitions or conduct expressive political activities or related activities, or otherwise trespass thereon." On August 27, the trial court issued a preliminary injunction, and this appeal followed. We affirm.

The five malls involved in this case are Fiesta Mall in Mesa, Los Arcos Mall in Scottsdale, and Metrocenter, Paradise Valley Mall and Park Central in Phoenix. Fiesta Mall has 144 tenants, Los Arcos Mall has 65 tenants, Metrocenter has 210 tenants, Paradise Valley Mall has 120 tenants and Park Central has 75 tenants. The memorandum of points and authorities filed in support of appellees' motion for preliminary injunction asserted that each of the malls has a policy of prohibiting activities other than shopping or those which promote shopping. In addition to seeking an injunction, the complaint also sought damages for trespass, nuisance and interference with prospective economic relations. The case was decided, however, strictly as a matter of appellant's constitutional right to solicit signatures in a privately owned shopping center.

MOOTNESS

Initially, we must address the question of mootness. The purpose of appellant's mall activities was to obtain sufficient signatures for the Secretary of State to order a recall election to be held. Although that order was issued on February 1, 1988, Evan Mecham was removed from the office of governor on April 4, 1988, after he was convicted by the Arizona Senate in an impeachment trial, and the recall election was then cancelled. See Green v. Osborne, 157 Ariz. 363, 758 P.2d 138 (1988). Hence, regardless of our ruling, appellant will not be soliciting signatures for petitions to recall Evan Mecham.

Generally, courts refrain from determining issues which are moot. Mesa Mail Publishing Co. v. Board of Supervisors, 26 Ariz. 521, 227 P. 572 (1924). When, however, a case presents issues of great public importance or ones we are likely to face again, we will resolve the issues. Fraternal Order of Police Lodge 2 v. Phoenix Employee Relations Board, 133 Ariz. 126, 650 P.2d 428 (1982); Camerena v. Department of Public Welfare, 106 Ariz. 30, 470 P.2d 111 (1970). Because the issue here meets both criteria, we will address it.

FREE SPEECH RIGHTS

Appellant concedes that the issue of its right under the First Amendment to solicit signatures in a privately owned shopping center has been settled adversely to its position. In Hudgens v. N.L.R.B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the Supreme Court made it clear that its decision in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), held that the First Amendment does not require the owner of a private shopping center to permit persons to distribute political handbills in the center.

Therefore, if appellant has any constitutional right to conduct political activities in appellees' malls, that right must be found in the Arizona Constitution. Article II, § 6 of the Constitution provides, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." Article II, § 5 provides, "The right of petition, and of the people peaceably to assemble for the common good, shall never be abridged."

Appellant contends that the words of those sections "differ dramatically" from the words of the First Amendment with the result that appellant may assert its free speech rights on private property. Appellant also contends that we should follow the rationale of the California Supreme Court in Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 592 P.2d 341, 153 Cal.Rptr. 854 (1979), aff'd, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

In that case, the California court held that signature soliciting for a petition to the government at a privately owned shopping mall is an activity protected by the California Constitution. The court's analysis focused on the question of whether the United States Supreme Court in Lloyd Corp. v. Tanner, supra, recognized the existence of federally protected property rights so as to preclude a ruling that the California Constitution created broader speech rights as to private property than the United States Constitution. In its 4-3 decision, the court in Robins concluded that Lloyd had not created any property rights which were immune from regulation under the California Constitution and that Californians could solicit signatures and distribute handbills in shopping centers pursuant to reasonable regulation by the shopping centers as to time, place and manner. The court quoted from the dissent in an earlier decision, which it then overruled. " 'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.' " 23 Cal.3d at 910, 592 P.2d at 347, 153 Cal.Rptr. at 860, quoting Diamond v. Bland, 11 Cal.3d 331, 345, 521 P.2d 460, 470, 113 Cal.Rptr. 468, 478, cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974) (Mosk, J., dissenting). In affirming the California Supreme Court's decision, the United States Supreme Court held that requiring a privately owned shopping center to permit individuals to exercise their free speech rights on the center's property does not violate either the shopping center owner's property rights under the Fifth and Fourteenth Amendments or the owner's free speech rights under the First and Fourteenth Amendments.

The California Supreme Court did not address the issue of state action under the California Constitution in Robins but instead focused on the regulation of property rights. Appellant contends that because article II, §§ 5 and 6 of our constitution do not specifically require state action and because California's constitutional language is nearly identical to that of article II, § 6 with the additional provision that, "A law may not restrain or abridge liberty of speech or press," Cal. Const. art. I, § 2, no state action is required for Arizona's free speech provisions to apply. Appellant thus concludes that the Declaration of Rights in Arizona's Constitution contains broader rights of free speech, of assembly and to petition the government than the rights enumerated in the First Amendment.

In support of its argument, appellant observes that the Arizona Supreme Court has held that the due process clause of the Arizona Constitution, art. II, § 8, provides greater rights to our citizens than its equivalent in the United States Constitution, the Fourth Amendment. In State v. Ault, 150 Ariz. 459, 466, 724 P.2d 545, 552 (1986), the court refused to apply the inevitable discovery doctrine to justify a search of a defendant's home under the language of the Arizona search and seizure section "regardless of the position the United States Supreme Court would take on th[e] issue." We note that, of course, state action was present in that case and that § 8, unlike § 6, expressly requires state action. The fact, therefore, that our supreme court has held that an Arizona citizen's protection against unreasonable searches and seizures is more extensive than his or her rights under the Fourth Amendment is of no assistance in determining the extent of a citizen's free speech rights under article II, § 6. Other states have also addressed this issue. Although their resolutions of the issue are, of course, not decisive on the interpretation of our own constitution, their analysis and conclusions are enlightening. Of the ten states which have determined the issue, two have held that shopping center owners may be required to permit political activity on their premises, seven have held that they may not, and one has held that a private university may be required to permit it.

In State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), the New Jersey Supreme Court reversed a trespass conviction entered against a person who was distributing and selling political materials on the campus of Princeton University, a private institution. The court held that individuals' freedoms of speech and assembly were protected against "unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property." 84 N.J. at 560, 423 A.2d at 628. The court used a balancing test between expressional and property rights and held that the property owner could establish reasonable time, place and manner restrictions upon the exercise of expressional rights.

The Supreme Court of Washington addressed the issue in Alderwood Associates v. Washington Environmental Council, 96...