Green Party v. HARTZ MOUNT. INDUS.
| Citation | 324 N.J. Super. 192,735 A.2d 9 |
| Parties | The GREEN PARTY OF NEW JERSEY, and James Mohn, Plaintiffs-Respondents, v. HARTZ MOUNTAIN INDUSTRIES, INC. d/b/a The Mall at Mill Creek, Defendant-Appellant. |
| Decision Date | 03 August 1999 |
| Court | Superior Court of New Jersey |
Curtis L. Michael, Secaucus, for defendant-appellant (Horowitz Rubino & Patton, attorneys).
Frank Askin, Newark, for plaintiffs-respondents for the American Civil Liberties Union of N.J. (Rutgers Law School Constitutional Litigation Clinic).
Before Judges PETRELLA, CUFF and COLLESTER. The opinion of the court was delivered by PETRELLA, P.J.A.D
Defendant Hartz Mountain Industries, Inc., doing business as The Mall at Mill Creek (Hartz or the Mall), appeals the grant of judgment in favor of the Green Party of New Jersey (Green Party) and James Mohn (collectively, plaintiffs) in litigation challenging the constitutionality of Hartz's regulations regarding persons or groups who wish to distribute leaflets at the Mall. The regulations at issue limited the frequency of any one person's permission to leaflet at the Mall, and required each such person to provide evidence of $1,000,000 in insurance coverage and sign a license agreement containing a "hold harmless" provision.
This case stems from our Supreme Court's 4-3 decision in New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 332, 372, 650 A.2d 757 (1994), cert. denied, 516 U.S. 812, 116 S.Ct. 62, 133 L.Ed. 2d 25 (1995) (Coalition), in which the late Chief Justice Wilentz, speaking for the majority, held that certain regional and community shopping centers, as defined therein (the Mall was a defendant in that case), must permit leafletting on societal issues on their premises, subject to reasonable conditions set by such community shopping centers.
Hartz contends on appeal that the Chancery Division Judge erred in holding the regulations unconstitutional because (a) the Mall is not a traditional or quasi-public forum; (b) the California cases relied upon by the judge are inapposite because they treat shopping malls as public fora; (c) regulations such as Hartz's should be subject only to "a reasonable business judgment standard"; and (d) under either a reasonable business judgment standard or a narrowly drawn standard, Hartz's regulations should be upheld. Hartz further contends that the judge erred in adjudicating the matter at all because the case was and is moot.
The following facts were developed in the proceedings in the Chancery Division. Mohn is a resident of Guttenburg who had been involved with the New Jersey Draft Nader for President Committee (Nader Committee) in 1996, and thereafter with the Green Party in New Jersey. He also was active in membership and voter registration drives and leafletting for other organizations including the New Jersey Peace Action, Witness for Peace, the Arab-American Anti-Discrimination Committee, and the Rainbow Coalition. Mohn characterized these entities as small, poorly financed groups that would distribute informational materials in public places, including shopping malls, when an issue of concern to the organization developed. Mohn anticipated seeking access to the Mall to distribute political literature with some regularity and claimed that the groups with which he was involved would be unable to afford the insurance premiums associated with the Mall's requirement that such groups obtain $1,000,000 in insurance coverage.
The Mall is in Secaucus adjacent to Route 3 on some twenty-seven acres near Interchange 16E of the New Jersey Turnpike. Mohn considered soliciting petition signatures at the Mall important because it was a gathering place for large numbers of people, an enclosed area which was preferable when the weather was bad, and near his home. He and his wife went there about three times a week as part of the Mall's "Merry Milers" to walk for exercise at 8:30 a.m.
The Mall has approximately 325,000 square feet of "gross leasable area," but only about 35,000 square feet of common area open to the public. According to Hartz's Assistant Vice President of Retail Leasing, Hartz licensed up to ten kiosks or pushcarts to various vendors for use in the common area and required such lessors to submit a certificate of insurance for $1,000,000 in coverage. Hartz placed the kiosks to provide for a reasonable thoroughfare for the Mall's customers, and to comply with applicable building codes that required, among other things, a ten-foot egress corridor and a twenty-foot clearance around certain structures. The Mall's single-floor layout is roughly a straight line passageway between anchor stores (a supermarket and a discount department store) on either end and lined by stores on either side, with enlarged common areas at each end and midpoint. After allowing for the clearance required by the building code, there is limited space for kiosks, carts or tables in a narrow band of common area at the center of the passageway, and in the three enlarged areas. Those spaces also hold movable planters, movable benches, directory structures, seasonal displays, an information desk and some permanent rides for children.
On September 27, 1996, Mohn wrote on behalf of the Nader Committee, to Marilyn Mangan, Hartz's Marketing Director, requesting space to set up an information table at the Mall. In accordance with Hartz's standard practice, Mangan forwarded Mohn a copy of its license agreement and regulations. Mohn signed the license agreement and faxed it back to Hartz, listing October 26 or 27 as the dates requested. Maranda Ashkar, Hartz's Retail Marketing Coordinator, who was responsible for reviewing and approving license agreements for nonprofit organizations desiring to use space at the Mall, wrote Mohn on October 14, 1996, informing him that the Mall would hold the October 27 date open, pending receipt by October 21, of the insurance certificate, cleanup deposit, and the original license agreement.
Hartz's regulations as sent to Mohn were contained in a two-page document captioned "Regulations of the Mall at Mill Creek for Non-Profit Informational Activities," and provided, in pertinent part:
* * * *
9. Permittee must provide a valid Certificate of Insurance, including general liability insurance in the combined single limit of $1,000,000. The certificate must contain an endorsement in the form contained in the License Agreement.
10. Permittee must sign the enclosed License Agreement.
Other regulations not at issue in this appeal require that (a) the organization provide its own table, covered to the floor on all sides; (b) have professionally printed signs; and, (c) submit a $100 cleanup deposit which "will be refunded if no unusual cleanup is required upon completion of Permittee's activities." The regulations incorporated many of the rules applicable to commercial temporary vendors at the Mall.
The license agreement referenced in the regulations required the Permittee to agree to abide by the regulations, and further provided:
Licensee shall protect, indemnify, save and keep harmless Licensor against any and all claims, loss, cost, damage or expense of any kind or nature, whatsoever, arising out of or from (i) any accident or occurrence in, on or at the Premises, and (ii) any act or omission of Licensee, its employees, servants, agents or invitees. In the event the Mall or Hartz shall, without fault on its part, be made a party to any litigation commenced by or against Licensee, Licensee shall protect and hold the Mall and Hartz harmless and shall pay all costs, expenses and reasonable attorneys' fees incurred or paid by the Mall or Hartz in connection with such litigation.
The license agreement also required an insurance endorsement naming
On October 14, 1996, Mohn obtained for the Nader Committee a quotation of $665 ($500 in premium plus $165 in fees and taxes) from the Retcho Agency for $1,000,000 in liability insurance for the day's activities at the Mall. Kerry Jeffers of the Retcho Agency assertedly told Mohn this quotation would cover leafletting and petitioning only at the Mall, and there would be additional charges for coverage for such activities at other malls.
Mohn and the Nader Committee then filed suit on October 21, 1996 and sought and obtained temporary relief in the Chancery Division in an October 25, 1996 order to show cause, which allowed them to leaflet at the Mall on October 27 without providing an insurance certificate. Hartz stipulated that it had no information about any claims having been filed as a result of the leafletting activities at the Mall on October 27. Mohn further certified that when he leafletted at the Mall in 1996 for the Nader Committee, the activity was conducted without incident.
In March 1997, Mohn was in the process of establishing the Green Party which had been organized in New Jersey on January 25, 1997, at a meeting of about forty people at the Rutgers Labor Education Center in New Brunswick. At that meeting, the invitees, who had been members of the Nader Committee, declared...
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