Jacobs v. Major
| Decision Date | 23 June 1987 |
| Docket Number | No. 85-0341,85-0341 |
| Citation | 139 Wis.2d 492,407 N.W.2d 832 |
| Parties | 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-Cross-Respondents-Petitioners, v. Robert W. MAJOR and Nu Parable, an unincorporated association, Defendants- Respondents and Cross-Appellants. |
| Court | Wisconsin Supreme Court |
Trayton L. Lathrop, Madison, argued, for plaintiffs-appellants-cross-respondents-petitioners; Michael J. Lawton, David E. Rohrer, Jill W. Dean 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.
The principal issue in this case is whether Article I, sec. 3 of the Wisconsin Constitution 1 requires the plaintiffs, owners of private property (the East Towne and West Towne Malls), to permit non-consensual use of their facilities by others for freedom of speech purposes.
The plaintiffs raise the further issue of whether they were denied procedural due process by the holding of the court of appeals that they were not entitled to their claims for damages and injunctive relief in full.
The plaintiffs received a temporary injunction from the Dane county circuit court, the Honorable William D. Byrne, on June 1, 1984, enjoining the defendants and all others "acting ... in concert with them" from entering either East Towne or West Towne except as bona fide shoppers. Due to an alleged subsequent violation of the injunction, a contempt proceeding was instituted. A contempt hearing was held but the trial court declined to entertain the merits of the motion and instructed the plaintiffs to institute a separate action. After subsequent alleged violations of the injunction, the trial court held the contemnors in contempt for their activities and fined them $250, or in the alternative, if not paid in 20 days, seven days in the Dane county jail.
The trial on plaintiffs' complaint took place in January of 1985. As a result, the trial court entered judgment permanently enjoining defendants "from performing in any way upon plaintiffs' property, and denying plaintiffs' request for nominal and compensatory damages." Plaintiffs appealed from all of the judgment which "expressly or impliedly denies or fails to grant all of the relief requested...." Defendants cross-appealed alleging infringement of their right of free expression under Wisconsin Constitution Article I, sec. 3.
The court of appeals affirmed and held that 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 Shopping Center and the West Towne Shopping Center. Robert Major, a defendant, was a graduate student at the University of Wisconsin at the time of trial. Defendant, Nu Parable, is an unincorporated dance troupe organized by Major and others to publicly perform a choreographed depiction of the results of nuclear warfare as a political statement.
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. Plaintiffs' rental income from the mall is generated largely through the combination of a base rent and a percentage of tenants' sales.
Interior corridors, owned by plaintiffs, 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 designed to attract shoppers in the interior corridors. These activities are subject to the approval of plaintiffs' mall managers. Since the opening of the malls in the early 1970's, plaintiffs have maintained a strict policy prohibiting 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 ten to twelve 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 minutes. The troupe followed its performances with leafletting.
Nu Parable's first public dances took place at a United States Post Office, at a public park in Madison and in the State Capitol rotunda. In March, 1984, Major approached East Towne Assistant Manager Earl VanderWielen regarding a performance in the mall. VanderWielen 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, plaintiffs brought this action and obtained a temporary restraining order barring defendants 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, the plaintiffs' complaint was amended to include West Towne and another restraining order was issued covering those premises.
Defendants filed an answer to the complaint and a counterclaim. The counterclaim alleged that plaintiffs' ban on "political, religious and artistic expression" in their malls violated defendants' rights under Article I, sec. 3 of the Wisconsin Constitution.
Major, Samuel Day, Jr. and others entered East Towne mall on May 19, 1984, and distributed leaflets providing in part:
A similar leaflet was distributed on May 26 at West Towne. In each instance, participants leafletted without plaintiffs' consent and refused to leave when requested to do so.
As stated earlier, plaintiffs received a temporary injunction on June 1, 1984, enjoining defendants 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 plaintiffs to institute a separate action against Day. Day's alleged violation of the temporary injunction was claimed to be in concert with the other defendants, and, therefore, he should not have been dismissed before the contempt hearing, but his actions should have been considered with the alleged contemptuous actions of the other defendants. The court of appeals denied plaintiffs' 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 handed out leaflets to mall patrons. The newspapers, radio and television covered the event. According to the record, 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 activities on August 9th and fined them with two days to pay or, in the alternative, seven days in the Dane County jail. Day and others continued to periodically distribute leaflets 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.
The trial on plaintiffs' complaint took place in early January of 1985. On January 23, the court entered judgment permanently enjoining defendants "from performing in any way upon plaintiffs' property," and denying plaintiffs' request for "nominal and compensatory damages." Plaintiffs appealed from all of the judgment which "expressly or impliedly denies or fails to grant all of the relief requested." Defendants cross-appealed alleging infringement of their rights of free expression under Wisconsin Constitution Art. I, sec. 3.
The issue to be resolved has already been decided by the United States Supreme Court as to the application of the United States Constitution. The United States Supreme Court discussed and interpreted Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972) in PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2041, 64 L.Ed.2d 741 (1980), wherein it stated:
"Lloyd held that when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the...
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