Homart Development Co. v. Fein

• Decision Date: 20 July 1972
• Docket Number: No. 1390-A,1390-A
• Citation: 293 A.2d 493,110 R.I. 372
• Parties: HOMART DEVELOPMENT COMPANY v. Daniel FEIN et al. ppeal.
• Court: Rhode Island Supreme Court

Page 493

293 A.2d 493

110 R.I. 372

HOMART DEVELOPMENT COMPANY v. Daniel FEIN et al.

No. 1390-Appeal.

Supreme Court of Rhode Island.

July 20, 1972.

Gunning, LaFazia, Gnys & Selya, Guy J. Wells, Providence, for plaintiff.

Abedon, Michaelson, Stanzler & Biener, Milton Stanzler, Providence, for defendants.

OPINION

POWERS, Justice. ¹

The plaintiff corporation is the owner and operator of eight large shopping centers which are located in various parts of the country. One of these, familiarly known as Midland Mall, is located in the city of Warwick in the state.

Midland Mall, hereinafter referred to as the Mall, consists of 45 acres which are so terraced as to provide parking facilities for 3,250 cars on an upper and lower level. Entrances to and exits from the Mall are located on Route 2 and Route 113. There is a small key shop located near the main building on the upper level of the parking lot and a large garage-type building on the lower level devoted to the sale of tires, batteries and automobile accessories. The main building, situated on both levels, is a totally covered air-conditioned shopping complex which houses a diversification of 73 stores, shops, eating places and the like. Also part of the main building are the Barnsider Restaurant and the Midland Cinema. All of these business establishments are leased by plaintiff to individual tenants who conduct their own businesses. Each such business establishment has an unobstructed frontage on the covered common aisleways while several have an additional entrance from the parking lot. This principal structure is surrounded by a broad sidewalk which abuts the parking lot on both levels.

The stores and shops are open daily from 9:30 in the morning to 9:30 in the evening Monday through Saturday, and a few are open on Sunday. The Barnsider Restaurant is open until 1:30 in the morning and the Midland Cinema is also open evenings after the stores and shops are closed. The parking lots are never closed. Taken together, these various concessions attract an average total of 18,000 persons daily.

Within the main building, there are, in addition to the leased commercial establishments, some scattered benches as well as washrooms for the comfort and convenience of the Mall's patrons.

In the summer of 1970, defendants, Daniel Fein, John Powers and Joseph Traugott, were endeavoring to have their names placed on the ballot for the November general election as candidates of defendant Rhode Island Socialist Workers Party, for the offices of United States Senator, Governor and Lt. Governor, respectively. Consonant with these endeavors, Fein and Powers went to the Mall on July 27 and 30 where they took up separate stations at entrances and exits to the main building for the purposes of obtaining signatures on their nomination papers and to acquaint the people they solicited with the aims of their political party.

On July 27, they were told by plaintiff's security guard that it was plaintiff's policy not to permit solicitation of any kind. In response to this, they asked to speak with plaintiff's manager and, the latter not being available, they were taken to talk with plaintiff's promotion director at the Mall. The official explained that it was plaintiff's undeviating national policy never to knowingly permit solicitations of any nature. The defendants, Fein and Powers, left as requested but, consulting an attorney, were advised that their activities fell within the protection of the first amendment to the United States Constitution. So all three candidates returned on July 30 to continue their efforts to obtain signatures and solicit support for the Rhode Island Socialist Workers Party. While thus engaged on that day, they learned that plaintiff was initiating legal action and, having been there some four hours, decided to leave.

The plaintiff, in point of fact, filed a complaint in Kent County Superior Court on said July 30. It sought to have defendants temporarily and permanently enjoined from conducting their political activities on the Mall and prayed that, pending hearing on the complaint, defendants be temporarily restrained and enjoined.

A restraining order was entered and the case assigned to August 4 for hearing on the preliminary injunction.

The hearing began on said August 4 and continued through August 5 and into August 6. Both sides introduced oral and documentary evidence which, in the view taken thereof by the trial justice, resulted in establishing certain ultimate facts.

No useful purpose would be served by detailing the evidence adduced by the parties. We have heretofore set forth a description of the Mall together with a general statement of the manner in which it is operated. It suffices to note that this description of the Mall and the manner in which it is operated, as well as other findings of fact made by the trial justice were placed in the record through competent evidence. Consequently, defendants make no contention that the trial justice's findings of fact are clearly erroneous. Rather, they argue, in effect, that taking the facts to be as the trial justice found them, his decision is contrary to the applicable law. Leaving their argument in this regard for consideration hereafter, we note here that the trial justice granted plaintiff's prayer for a preliminary injunction and from the judgment accordingly entered, defendants appealed to this court, electing to treat the hearing on the prayer for a preliminary injunction as a hearing on the merits as authorized by G.L.1956 § 9-24-7 (1969 Reenactment).

Before turning to a consideration of the arguments made by defendants in support of their appeal and the cases on which they rely, it will be helpful to examine the trial justice's decision. He found that plaintiff, consistent with its national policy, had a local policy which it enforced without discrimination of not permitting either its tenants nor visitors to the Mall to carry on solicitations of any kind. This policy, he further found, was based on and motivated by plaintiff's determination to provide the shopping public with a place where actual shopping or window shopping or browsing, which, hopefully would lead to business for its tenants, could be pursued in leisurely fashion, free from the distractions common to public shopping districts.

Continuing, he found that the evidence established that exhibitions and promotions which plaintiff permitted from time to time to be conducted on its premises not occupied by tenants were projects which would be mutually beneficial to the promoters and plaintiff. Moreover, all such promotions that had been allowed were carried on pursuant to a written contract by the terms of which the promoter was required to pay a consideration, unless expressly waived by plaintiff.

Based on the testimony of defendants Traugott and Fein, the trial justice found that there were numerous public business districts, parks, beaches, as well as other but unrestricted privately owned shopping centers where defendants were free to carry on their endeavors unhindered. He also accepted their testimony that, although they would be peacefully conducted, defendants would continue their activities at the Mall unless enjoined.

With these factual determinations in mind, the trial justice turned to a consideration of defendants' contention that the activities sought to be enjoined were a valid exercise of first amendment rights to free speech and assembly. He reviewed the several cases on the authority of which defendants rested their position and rejected each of them as being significantly distinguishable on their facts.

So doing, he made the point that the first amendment, although sometimes occupying a preferred position by reason of the facts in a given case, must, in other instances, yield to other constitutional guarantees when, in the circumstances of the case, the latter, to be meaningful, must be given priority. In this connection, he cited the case of the people's right to know as guaranteed by the first amendment coming in conflict with the right of an accused to a fair and impartial trial as guaranteed by article VI of amendments to the Constitution of the United States.

From this, as well as his reference to other instances where the first amendment comes in conflict with other constitutional guarantees, the trial justice concluded that the cases relied on by defendants clearly demonstrated that, in any given case, it was the duty of the court to balance conflicting constitutional guarantees and resolve such conflict by reaching a decision that would be consistent with the constitutional rights of all the parties.

Stated otherwise, he viewed the cases relied on by defendants as standing for the proposition that just as the constitution guarantees equality of standing thereunder to all whom it is designed to serve, so too equality of solemnity inures in each of its protective guarantees. Thus, it is not the purpose to be served by any particular guarantee which, on occasions, gives that provision preferred standing. It is rather, by reason of the facts of the case, that preferred position results.

Taking as his premise that devoting private property to a profitable commercial use falls within the protection of the fifth amendment, assuming such use is not contrary to a due process regulation, the trial justice proceeded to strike a balance between plaintiff's non-discriminating policy of refusing to consent to the use of the Mall for first amendment protected activities, and defendants' right to free speech and assembly guaranteed by the first amendment. So doing, he found on the one hand that plaintiff's policy was part and parcel of its profit oriented promotion, namely, the attracting of shoppers by providing a place where their interests could be pursued comfortably, leisurely and, nominally, free from unrelated distractions.

On the other hand, he found that defendants were seeking to...