Sanders v. City of Seattle

• Decision Date: 26 April 2007
• Docket Number: No. 78579-I.,78579-I.
• Citation: 156 P.3d 874,160 Wn.2d 198
• Court: Washington Supreme Court
• Parties: Beth SANDERS, an individual; William Daugaard, an individual; and Patricia Daugaard, an individual, Appellants, v. The CITY OF SEATTLE, a municipality; Rouse-Seattle, LLC, a limited liability company; and Westlake Center Associates Limited Partnership, a Washington partnership, Respondents.

156 P.3d 874

160 Wn.2d 198

Beth SANDERS, an individual; William Daugaard, an individual; and Patricia Daugaard, an individual, Appellants, v. The CITY OF SEATTLE, a municipality; Rouse-Seattle, LLC, a limited liability company; and Westlake Center Associates Limited Partnership, a Washington partnership, Respondents.

No. 78579-I.

Supreme Court of Washington, En Banc.

Argued June 13, 2006.

Decided April 26, 2007.

Randy Perry Baker, Law Office of Randy Baker, Seattle, WA, for Appellants.

David John Burman, Rebecca S. Engrav, Perkins Coie LLP, Carlton W.M. Seu, Seattle City Attorneys Office, Seattle, WA, for Respondents.

MADSEN, J.

¶ 1 Defendants Westlake Center Associates Limited Partnership and Rouse-Seattle LLC (Rouse) and the City of Seattle (City), entered into a contract providing a public easement to the City for access to the Monorail Station located in downtown Seattle. Beth Sanders and William and Patricia Daugaard (collectively Plaintiffs) filed a complaint for injunctive and declaratory relief against the defendants for actions taken by Westlake Center security personnel restricting their right to speech on February 15, 2003 inside the Westlake Center on property subject to the City's easement. Several issues are presented in this review including: whether the property subject to the City's easement is a public forum; whether the conduct of security personnel infringed on the Plaintiffs' free speech rights under the Washington Constitution; and whether Plaintiffs may bring a facial challenge to the easement contract. We conclude that the property subject to the City's easement located in the interior of Westlake Center is not a public forum, that Rouse's oral policy in effect on February 15, which required persons using the interior public easement to hold stick-mounted signs down, is a reasonable regulation on speech, and that a facial challenge to the easement contract is not available under the circumstances presented. Accordingly, we affirm the trial court.

FACTS

¶ 2 On February 15, 2003, a demonstration against the U.S. war in Iraq was planned for the Seattle Center. Prior to the demonstration, large numbers of people entered Westlake Center in order to ride the monorail to the Seattle Center. Among those entering Westlake Center were Plaintiffs, Beth Sanders and William and Patricia Daugaard. The Daugaards shared a sign, mounted on a stick, stating "No War Around the World, No War in Iraq, Not in Our Name." Sanders held a sign, also mounted on a stick, reading "No Iraq War." The lines for the monorail were long and the Daugaards decided to find other transportation to the Seattle Center. As they descended on the escalators they were asked repeatedly to lower their signs by the Westlake security guards. They declined to do so and proceeded out of the Westlake Center. Ms. Sanders, holding her sign high for all to read, decided to wait in the line. She was asked repeatedly by Westlake security to lower the sign, but she declined. She was then advised that she was banned from the Westlake Center. Eventually, she lowered the sign, resting the stick on the ground. She then boarded the monorail. No formal action was taken barring Sanders from the Westlake Center.

¶ 3 Defendant Rouse owns and operates Westlake Center, a privately owned urban shopping mall in downtown Seattle. The City of Seattle contracts with the Seattle Monorail Services, which is a private company, to operate the monorail, a limited form of public transportation connecting the downtown area with the Seattle Center. The City of Seattle owns the monorail station, attached to the exterior of the third floor level of the Westlake Center. Westlake Center owns a boarding platform that connects the station to the shopping center.

¶ 4 Annually, visitors at the Westlake Center exceed 8 million people; approximately 2.4 million people access the monorail through the Westlake Center. There are three access points for the monorail station: (1) an enclosed staircase attached to the exterior of Westlake Center, (2) an elevator attached to the exterior of Westlake Center, and (3) internal escalators ascending three floors and a hallway that exits through a set of glass doors that open onto the monorail station platform. All three of these options for reaching the monorail station were available on February 15, 2003.

¶ 5 Rouse, as owner of Westlake Center, executed an agreement with the City of Seattle, granting the City an easement to the boarding platform and to the three routes accessing the platform as described above. There are no signs or barriers marking the boundaries of the areas subject to the easement. The particulars of the easement are contained in the Monorail Operating and Easement Agreement (Agreement). Clerk's Papers (CP) at 138 (Ex. C). In part the Agreement provides:

(b) Associates, as Grantor, hereby grants to the City, as Grantee, for the benefit of the Monorail Station, an easement in the Monorail Station Platform and those portions of the Improvements shown on Exhibit D as the Interior Accessway and Exterior Accessway (as the same may be actually constructed pursuant to this Agreement and the contract) (collectively "Accessways") for the purpose of pedestrian access between the Improvements and Monorail Station, in accordance with the purpose for which said Accessways are designed and subject to the provisions of Section 9 below.

¶ 6 Section 9 provides:

(a) Unless required by law, no person shall be permitted to do any of the following in or about any part of the Easement Areas without the consent of both of the parties:

(i)(A) With respect to the Accessways, parade, rally, patrol, picket, demonstrate or engage in any conduct that might tend to interfere with or impede the use of the Accessways or Monorail Station Platform by persons entitled to use the same, create a disturbance, attract attention or harass, disparage or be detrimental to the interests of any of the retail or business establishments within the Improvements; and (B) with respect to the Monorail Station Platform, parade, rally, patrol, picket, demonstrate or engage in any conduct that would tend to obstruct, hinder or impede the egress or ingress to the Monorail System or Accessway.

Id. at 142-44 (emphasis added).

¶ 7 In anticipation of the February 15 protest, Westlake Center security personnel instituted an oral policy that would allow protestors with mounted signs to enter the interior of the Westlake Center, using the easement to access the monorail. However, security personnel were instructed to contact any person within the Center holding a sign aloft, swinging a mounted sign, or otherwise using a mounted sign in any way that appeared to threaten the safety of others in the Center. CP at 116 (Decl. of Frank Kampsen). The oral policy in effect that day differs from the written policy of the Westlake Center, Westlake Center Free Speech and Public Safety Policy. CP at 135 (Ex. B). That policy provides for public expression on the public plaza surrounding the Westlake Center, limited only by the caveat that "[a]ffixing signs to Westlake Center and other acts of vandalism are not permitted." Id. at 136. Public expression inside the Westlake Center is also permitted under the policy, but the policy "prohibits signs that are affixed to poles or sticks and any other sign that poses a safety threat." Id. Finally, the policy provides for public expression on the monorail platform as follows:

1. Westlake Center operates the elevated platform that serves as the boarding area for the Seattle Center Monorail. The Center is responsible for the safety of individuals on that platform. Anyone who refuses to follow the instructions of Westlake Center employees will be required to leave the platform.

2. Monorail riders may carry signs that are prohibited within Westlake Center, but such signs must be held in a manner that minimizes the danger they pose. For example, signs on yardsticks must be carried low to the ground and close to the body of the person holding the sign. Similarly, no sign may be held in a manner that obstructs public passageways, that blocks views of exits, or that otherwise threatens the safety of individuals riding the Monorail.

3. Monorail riders who wish to carry signs that are prohibited within Westlake Center must travel to and from the elevated monorail platform by using the elevator or the staircase that directly connects the elevated platform to the ground.

CP at 137 (emphasis added).

¶ 8 During the day of February 15, Westlake security personnel observed several incidents inside Westlake Center. CP at 118 (Decl. of Frank Kampsen). "I personally witnessed several occasions on which patrons of Westlake Center were nearly injured by mounted signs. These `near misses' involved mounted signs that people left lying on the floor as well as mounted signs that people wielded carelessly as they walked through the mall, rode the escalators, and stood in line for the Monorail." Id. at 118.

¶ 9 Plaintiffs filed the current action in King County superior court on June 13, 2003 alleging violations of their rights to freedom of expression, to petition, to due process, to freedom of assembly, and to equal treatment under the Washington Constitution, article 1, sections 3, 4, 5, and 12 by Defendants Rouse and the City of Seattle. On December 16, 2004, the trial court granted summary judgment to all Defendants and denied Plaintiffs' cross-motion for summary judgment. The trial court held that the easement portion of Westlake Mall is properly characterized as a nonpublic forum. As such, the restriction on mounted signs imposed by the oral Westlake Mall policy followed on February 15, 2003 was reasonable in light of the purpose of the forum and all the surrounding circumstances. Alternatively, the court ruled that even if the easement area inside the Westlake Center was a traditional public forum, the restriction constituted a valid time,...