Glovsky v. Roche Bros. Supermarkets, Inc.

• Decision Date: 10 October 2014
• Docket Number: SJC–11434.
• Citation: 17 N.E.3d 1026,469 Mass. 752
• Parties: Steven M. GLOVSKY v. ROCHE BROS. SUPERMARKETS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 752

17 N.E.3d 1026

Steven M. GLOVSKY

v.ROCHE BROS. SUPERMARKETS, INC.

SJC–11434.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted Feb. 3, 2014.

Decided Oct. 10, 2014.

Steven M. Glovsky, pro se.

Mark W. Batten, Boston, for the defendant.

John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation & others, amici curiae, submitted a brief.

Adam J. Kessel, Frank L. Gerratana, & Sarah R. Wunsch, Boston, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

DUFFLY

, J.

Steven M. Glovsky sought to solicit signatures for his nomination to public office outside the entrance to a supermarket owned by the defendant, Roche Bros. Supermarkets, Inc. (Roche Bros.), but was informed that Roche Bros. prohibited this activity on its property. Glovsky filed suit in the Superior Court claiming that Roche Bros. had violated his right to equal ballot access under art. 9 of the Massachusetts Declaration of Rights. He requested relief under the Massachusetts Civil Rights Act, G.L. c. 12, § 11I (act)

, for a violation of his rights “by threats, intimidation or coercion.”² Roche Bros.' motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), 365 Mass. 754 (1974), was allowed. Glovsky appealed, and we granted his application for direct appellate review. We conclude that Glovsky adequately has alleged a right under art. 9 to solicit nominating signatures outside Roche Bros.' supermarket, but that Roche Bros. did not violate this right “by threats, intimidation or coercion.”³

Background. The complaint sets forth the following allegations. In early 2012, Glovsky undertook a bid for election to the second district seat on the Governor's Council. To place his name on the September 6, 2012, State primary ballot, Glovsky needed to submit, by May 29, 2012, nomination papers containing at

least 1,000 certified names. On February 7, 2012, Glovsky obtained nomination papers from the office of the Secretary of the Commonwealth and began collecting signatures.

On the afternoon of March 14, 2012, Glovsky traveled to a location in Westwood, near the geographic center of the Governor's Council second district, intending to solicit signatures on Roche Bros.' property there. Roche Bros.' Westwood property consists of 4.99 acres and contains a 47,568 square foot supermarket building. As alleged in the complaint, Roche Bros.' Web site describes its Westwood supermarket as “the first to incorporate a ‘department’ concept of merchandising, adding a bakery, florist, and a restaurant to make shopping more enjoyable.” The store is the only supermarket in Westwood, which, as of July, 2009, reported a population of 14,330. Roche Bros. also leases space inside the building to a banking institution, which operates a “full service banking” branch there. The bank has its own separate business logo displayed on the building's marquee, and maintains a twenty-four hour deposit slot in the building's exterior wall

Upon arriving at the Westwood property, Glovsky notified Roche Bros. personnel that he intended to solicit nominating signatures from voters on the sidewalk immediately outside the entrance to the store. Jim Visconti, the store manager, informed Glovsky that Roche Bros. had adopted a policy that “no longer” permitted signature solicitation anywhere on its Westwood property. Glovsky's complaint alleges that he felt “intimidated” by this delivery of Roche Bros.' policy and “threatened by the inherent consequences he understood could result if he acted against such a clearly stated prohibition.” As a result, Glovsky left the property despite believing that he had a right under art. 9 to solicit signatures there.

Discussion. a. Standard of review. “We review the allowance of a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor.” Harrington v. Costello, 467 Mass. 720, 724, 7 N.E.3d 449 (2014)

. To survive a motion to dismiss, these allegations must “plausibly suggest” an entitlement to relief, raising the right to relief “above the speculative level.” Id., quoting Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879 (2008).

b. Article 9

. Glovsky argues that he has a protected right under art. 9 to solicit signatures in support of his nomination to public office on the property of the Roche Bros. supermarket in Westwood. Article 9 provides that “[a]ll elections ought to be

free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.” This provision protects the “fundamental right” of equal access to the ballot, a “basic right,” Opinion of the Justices, 413 Mass. 1201, 1210, 595 N.E.2d 292 (1992)

, that is “of fundamental importance in our form of government because through the ballot the people can control their government.” Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83, 91, 93, 445 N.E.2d 590 (1983) (Batchelder

I ). See Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, 462 Mass. 538, 560, 969 N.E.2d 1095 (2012) (art. 9 protects “fundamental” and “intertwine [d]” rights of candidates to participate equally in electoral process and of voters to cast their ballots as they see fit). This right of ballot access encompasses an individual's right to solicit signatures in support of a candidate's nomination to public office. See Batchelder I, supra at 84, 92, 445 N.E.2d 590. Significantly, art. 9 does not require State action. See Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, supra at 558, 969 N.E.2d 1095 ; Batchelder I, supra at 88, 445 N.E.2d 590.

In Batchelder I, supra at 84, 445 N.E.2d 590

, we held that art. 9 protects the right to solicit nominating signatures in the common areas of a private shopping mall or shopping center, despite the property owner's objection. The present case requires us to consider whether art. 9 extends the right to solicit nominating signatures to private property like that of Roche Bros.' Westwood supermarket, which is not alleged to be a shopping mall or shopping center. As in Batchelder I, supra at 91, 445 N.E.2d 590, “[w]e are concerned with ballot access and not with any claim of a right to exercise free speech apart from the question of ballot access.” As we noted in that case, “[t]he difference between free speech and art. 9

rights to free elections and to be a candidate equally with others is not purely theoretical.” Id. at 92, 445 N.E.2d 590.⁴

In determining that the plaintiff in Batchelder I had a right to solicit nominating signatures in a shopping mall's common areas, we balanced his need to solicit signatures on the property in order to effectuate his right to equal ballot access against the burden that such conduct would impose on the mall owner's property

interests. See id. at 91–93, 445 N.E.2d 590

. First, we emphasized that the art. 9 right to solicit signatures, unlike the broader right to free speech protected by art. 16, requires personal contact with voters and cannot be effectuated through other means of communication. Id. at 91–92, 445 N.E.2d 590. Because of the growing importance of shopping malls in retail merchandising, they had begun to function “much as the ‘downtown’ area of a municipality did in earlier years,” and the shopping center at issue represented the “most favorable” area in the district for seeking signatures. Id. at 92–93, 445 N.E.2d 590. Accordingly, prohibiting the plaintiff's access would have “substantially impaired” his art. 9 right. Id. at 93, 445 N.E.2d 590.

Second, the plaintiff sought only to engage in “unobtrusive and reasonable solicitations in the common areas of the mall,” not in the stores themselves, so that his activity would not unduly burden the mall owner's property interests; indeed, those common areas “ha[d] been dedicated to the public as a practical matter” based on the mall owner's use of the property to host frequent civic, charitable, and other events in order to attract customers and generate good will. See id. at 92, 93 n. 12, 445 N.E.2d 590

. Nor had the mall owner shown that requiring it to permit access by those soliciting nominating signatures would infringe its own constitutional property or speech rights, either by adversely affecting its economic interests or by forcing it to associate with the plaintiff's views. Id. at 93, 445 N.E.2d 590. The mall owner adequately could protect its interests by adopting reasonable time, place, and manner restrictions to minimize the burden that signature solicitation placed on it. Id. at 84, 93, 445 N.E.2d 590.⁵

Roche Bros. seeks to limit the exercise of the art. 9

right to the common areas of a large shopping mall, thereby creating a bright-line distinction between such common areas and the area immediately outside the entrance to a supermarket. Pointing to our observations in Batchelder I, supra at 92, 445 N.E.2d 590

, that shopping malls had begun to “function in many parts of this State much as the ‘downtown’ area of a municipality did in earlier years” and that the common areas of the mall in question “ha[d] been dedicated to the public as a practical matter,” Roche Bros. argues that art. 9 protects solicitation of nominating signatures only on private property that serves as the functional equivalent of a traditional public forum. Citing cases from California and other jurisdictions, Roche Bros. contends that the private property located at the entrance to a freestanding retail establishment, such as the supermarket here, does not meet this test because the owner of such property has invited the public only to pass through the area in entering or exiting the store, not to congregate there.⁶

Roche Bros. misreads our opinion in Batchelder I. Functional equivalence to a traditional public forum is...