Jacobs v. Major, 85-0341

CourtCourt of Appeals of Wisconsin
Citation132 Wis.2d 82,390 N.W.2d 86
Docket NumberNo. 85-0341,85-0341
PartiesRichard E. JACOBS, David H. Jacobs, R.F. Coffin, the Northwestern Mutual Life Insurance Company, J & C Associates, Co-Partners, using the name of Madison Joint Venture, Plaintiffs-Appellants and Cross-Respondents, v. Robert W. MAJOR and Nu Parable, an unincorporated association, Defendants- Respondents and Cross-Appellants.
Decision Date15 May 1986

Page 86

390 N.W.2d 86
132 Wis.2d 82
Richard E. JACOBS, David H. Jacobs, R.F. Coffin, the
Northwestern Mutual Life Insurance Company, J & C
Associates, Co-Partners, using the name of Madison Joint
Venture, Plaintiffs-Appellants and Cross-Respondents,
Robert W. MAJOR and Nu Parable, an unincorporated
association, Defendants- Respondents and Cross-Appellants.
No. 85-0341.
Court of Appeals of Wisconsin.
Argued Dec. 17, 1985.
Opinion Released May 15, 1986.
Opinion Filed May 15, 1986.
Review Granted.

Page 87

[132 Wis.2d 90] Trayton L. Lathrop, Madison, argued, for plaintiffs-appellants and cross-respondents; Michael J. Lawton, Jill W. Dean, and David E. Rohrer and Isaksen, Lathrop, Esch, Hart & Clark Madison, on brief.

Jeff Scott Olson, Madison, argued, for defendants-respondents and cross-appellants; Julian & Olson, S.C., Madison, on brief.

Before GARTZKE, P.J., DYKMAN, J., and BRUCE F. BEILFUSS, Reserve Judge.

BRUCE F. BEILFUSS, Reserve Judge.

Richard E. Jacobs, David H. Jacobs, R.F. Coffin, the Northwestern Mutual Life Insurance Company, J & C Associates, doing business as Madison Joint Venture, a partnership owning and operating two regional shopping malls, appeal from a judgment permanently enjoining Robert Major and Nu Parable, an unincorporated, anti-nuclear dance troupe, from performing on partnership properties. Major and Nu Parable cross-appeal. The issues on appeal are: whether the case implicates a constitutional question; whether the recognition of a right of free speech on private property

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under Wisconsin's constitution would deny appellants their rights under the first, fifth and fourteenth amendments to the United States Constitution; whether the trial court erred by limiting injunctive relief to the prohibition of only certain expressive activities; and whether the trial court abused its discretion in declining to hold Samuel Day, Jr. in contempt for violating a pretrial temporary injunction. The issue on cross-appeal is whether the Wisconsin Constitution secures the right to free speech against private infringements.

[132 Wis.2d 91] We conclude that this case presents unavoidable constitutional issues. All members of this court agree that free expression is one of society's most crucial civil liberties. We differ primarily on the issue of whether Wisconsin's constitution secures the right to free expression against both private infringements and state action. The majority concludes that it does. However, because free speech rights are not absolute, appellants' property and free speech interests under the federal constitution are adequately protected by balancing them against respondents' competing expressional interest. Therefore, our recognition of an expansive guarantee of free expression under the Wisconsin Constitution does not result in a violation of appellants' first, fifth and fourteenth amendment rights. Nonetheless, the record demonstrates that respondents' dance activities have, on balance, interfered with the use of and diminished the value of appellants' property. Therefore, those activities were properly enjoined. Finally, we conclude that the court did not abuse its discretion by limiting the injunctive relief to a prohibition of those dance activities or by refusing to hold Samuel Day in contempt. Therefore, we affirm.


Appellants are the owners of two large shopping malls in Madison, known as the East Towne Shopping Center and the West Towne Shopping Center. Respondent Robert Major was a graduate student at the University of Wisconsin at the time of trial. Respondent Nu Parable is an unincorporated dance troupe organized by Major and others to publicly perform, as a political[132 Wis.2d 92] statement, a choreographed depiction of the results of nuclear warfare.

East Towne and West Towne malls are large, enclosed shopping centers containing 95 and 66 tenant stores respectively. Each of the malls also adjoins and is attached to a number of independent, "anchor" department stores. Appellants' rental income from the mall is generated largely through the combination of a base rent and a percentage of each tenant's sales.

Interior corridors, owned by appellants, connect the leased stores and the independent department stores. These corridors are climate controlled and contain numerous fountains, plantings of tropical foliage and carpeted seating areas. The costs of mall maintenance and private security service are borne by the tenants.

The tenants of each mall have formed merchants' associations which, among other things, schedule activities for the interior corridors designed to attract shoppers. These activities are subject to the approval of appellants' mall managers. Since the opening of the malls in the early 1970's, appellants have maintained a strict policy prohibiting political or religious activities, leafletting, handbilling or soliciting of shoppers on the premises.

Major formed Nu Parable in early 1984 as a low budget performance group using only dance and costume to symbolically convey its message about nuclear war. The costume was a red shirt bearing a black and yellow fallout shelter symbol. The dance involved 10 to 12 dancers, lasted about five minutes and concluded with a "die-in" in which bystanders were invited to join the dancers in lying motionless on the floor for several [132 Wis.2d 93] minutes. The troupe followed its performances with leafletting.

From the beginning, Major envisioned performances at shopping malls. However, Nu Parable's first public dances took place at a U.S. post office, at a public park in Madison, and in the State Capitol rotunda.

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In late March, 1984, Major approached East Towne assistant manager Earl Vander Wielen regarding a performance in the mall. Vander Wielen told Major the performance involved potentially controversial issues and refused to approve it.

On April 12, 1984, Major hand delivered a form letter to as many store managers within the mall as he could find. The letter explained the Nu Parable dance, expressed the intent to perform it within the mall on Saturday, April 21, 1984, and solicited the support and cooperation of the merchants. Mall management asked Major to stop distributing the letters, but he refused to do so.

On April 18, 1984, appellants brought this action and obtained a temporary restraining order barring respondents from entering East Towne Mall except as shoppers. About one week later, Major and another Nu Parable member distributed a similar letter to West Towne merchants, expressing the intent to dance there on Saturday, May 5. On May 1, 1984, appellants' complaint was amended to include West Towne and another restraining order was issued covering that premises.

Respondents answered and counterclaimed on May 10, 1984. The counterclaim alleged that appellants' ban on "political, religious and artistic expression" in their malls violated respondents' rights under art. 1, sec. 3 of the Wisconsin Constitution. That section [132 Wis.2d 94] provides in pertinent part: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press." In contrast, the first amendment provides in part that "Congress shall make no law ... abridging the freedom of speech, or of the press...." U.S. Const. amend. 1.

Major, Samuel Day, Jr. and others entered East Towne Mall on May 19, 1984, and distributed leaflets providing in part:

Nu Parable wants to dance for you at East Towne Mall but has been legally restrained from doing so by the Ohio corporation which owns the shopping center ...

[M]ake your views known to the shopkeepers here. Ask them to tell mall manager David Van Dusen that they support free speech at East Towne Mall.

A similar leaflet was distributed on May 26 at West Towne. In each instance, participants leafletted without appellants' consent and refused to leave when requested to do so.

Appellants received a temporary injunction on June 1, 1984, enjoining respondents and all others "acting ... in concert with them" from entering either East Towne or West Towne except as bona fide shoppers. On June 6 and 20, Day and others distributed "Friends of Nu Parable" leaflets at West Towne and East Towne, respectively. Contempt proceedings were instituted against Day on June 21.

A contempt hearing was held on June 29, 1984. The trial court declined to entertain the merits of the motion and instructed appellants to institute a separate[132 Wis.2d 95] action against Day. We denied appellants' petition for supervisory relief, and a separate injunction action was subsequently commenced against Day and others. Day continued leafletting at both West Towne and East Towne Malls.

On August 9, 1984, Major, William Mutranowski and three others entered East Towne Mall in costume. Mall security personnel asked them not to perform, but the troupe danced and leafletted mall patrons. The press, radio and television covered the event. Several stores within the mall suffered identifiable reductions in sales that day.

On August 21, 1984, the trial court held Major, Mutranowski and the other dancers in contempt for their August 9 activities, and committed them to the Dane County Jail for seven days. Day and others continued to periodically leaflet at both malls as the "Family of Nu Parable," as "Disarmament Now" and as "Friends of The Bill of Rights." There were no further dances in the malls.

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The trial on appellants' complaint took place in early January of 1985. On January 23, the court entered judgment permanently enjoining respondents "from performing in any way upon plaintiffs' property" and denying appellants' request for "nominal and compensatory damages." Appellants appealed from all of the judgment which "expressly or impliedly denies or fails to grant all of the relief requested...." 1 Respondents cross-appealed,...

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7 cases
  • Jacobs v. Major, 85-0341
    • United States
    • United States State Supreme Court of Wisconsin
    • June 23, 1987
    ...the trial court recognized an established threat and granting injunctive relief to that threat was reasonable. Jacobs v. Major, 132 Wis.2d 82, 390 N.W.2d 86 (Ct.App.1986). The facts are that the plaintiffs are the owners of two large shopping malls in Madison known as the East Towne Shoppin......
  • Barnhill v. Board of Regents of University of Wisconsin System, UW-E
    • United States
    • Court of Appeals of Wisconsin
    • October 10, 1989
    ...malls was pending in Dane county circuit court. The facts and history of that litigation are recited in Jacobs v. Major, 132 Wis.2d 82, 91-95, 390 N.W.2d 86, 88-90 (Ct.App.1986), aff'd, 139 Wis.2d 492, 496-501, 407 N.W.2d 832, 833- 35 (1987). One of the defendants was Nu Parable, an unincor......
  • Town of Clearfield v. Cushman, 87-0420
    • United States
    • United States State Supreme Court of Wisconsin
    • June 7, 1989
    ..." Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 648, 211 N.W.2d 471 (1973) (citation omitted); See also Jacobs v. Major, 132 Wis.2d 82, 103, 390 N.W.2d 86 (Ct.App.1986) ("A statute attacked as unconstitutional must affect the litigant in some way") modified on other grounds 139 Wis.2d 492, 4......
  • State v. Panno, 88-1419
    • United States
    • Court of Appeals of Wisconsin
    • August 16, 1989
    ...follow Arcara II because Wisconsin's free speech provision, Wis. Const. art. I, sec. 3, parallels New York's. Jacobs v. Major, 132 Wis.2d 82, 101, 390 N.W.2d 86, 92 (Ct.App.1986), modified and aff'd in part, rev'd in part on other grounds, 139 Wis.2d 492, 407 N.W.2d 832 (1987). In Jacobs, t......
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