State v. Brown

• Citation: 212 N.J.Super. 61,513 A.2d 974
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lucille F. BROWN, Defendant-Appellant.
• Decision Date: 04 August 1986
• Court: New Jersey Superior Court – Appellate Division

Page 61

212 N.J.Super. 61

513 A.2d 974

STATE of New Jersey, Plaintiff-Respondent, v. Lucille F. BROWN, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted June 4, 1986.

Decided Aug. 4, 1986.

Daniel F. Steinmetz, Jr., Pennsauken, atty., for defendant-appellant.

Samuel Asbell, Camden County Pros., attorney, for plaintiff-respondent (Barbara A. Forte, Asst. Pros., of counsel and on the letter brief).

Before Judges FRITZ, GAYNOR and BAIME.

The opinion of the court was delivered by

FRITZ, P.J.A.D.

Defendant and other antiabortion demonstrators picketed the Cherry Hill Women's Center (Center), a private health-care facility offering abortions, located in an office complex owned by Davis Enterprises. The salient facts, concerning which there seems to be no dispute, appear in Brown v. Davis, 203 N.J.Super. 41, 495 A.2d 900 (Ch.Div. 1984), a civil action in which Brown and her colleagues sought to enjoin her prosecution for trespass and instead received a judgment declaring that they "are not entitled to enter defendants' private property against ... [the] wishes [of the owner and Cherry Hill Women's Center] to engage in the described expressional activity." Id. at 49, 495 A.2d 900. Brown was convicted of criminal trespass in the municipal court, the conviction was iterated in the Law Division and now she appeals to us.

At the outset we observe that while in Brown v. Davis, supra, plaintiff asserted her purported rights under both the United States Constitution and the New Jersey Constitution, id. at 45, 495 A.2d 900, before us she relies only on the New Jersey Constitution. The only issue presented here is framed thusly:

Where one or more tenants in a commercial office complex on private property, including a tenant performing abortions therein, agressively [sic] advertise for business, anti-abortion advocates have a right under the New Jersey Constitution to limited, controlled access to the property for the purposes of speaking to persons contemplating an abortion and giving them literature.

The omission here of a First Amendment argument is of no particular moment for two reasons, both of which appear in Brown v. Davis. First, as Judge Lowengrub there points out, id. at 46, 495 A.2d 900, New Jersey has taken a more expansive view of freedom of speech under Article I, paragraphs 6 and 18 of the State Constitution, as is its prerogative. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). Second, the conclusion of Judge Lowengrub that "the owner has not sufficiently dedicated the property to public use so as to entitle individuals to access for first amendment [to the United States Constitution] activity," 203 N.J.Super. at 46, 495 A.2d 900, is eminently sound in accordance with the federal law cited by him in that opinion. We believe that the same result is achieved under the State Constitution and we affirm.

The bellwether case of State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), app. dism. sub nom. Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) leads the way. This matter involved the distribution of political literature on the campus of Princeton University by a member of the United States Labor Party. Writing for the court, Justice Handler recognized, as we do here and as Judge Lowengrub did in Brown v. Davis, the necessity for a most difficult balancing of the constitutionally guaranteed right of expression and the inherent rights associated with the private ownership of property. He noted that "private property does not 'lose its private character merely because the public is generally invited to use it for designated purposes' [citation omitted]." 84 N.J. at 561, 423 A.2d 615. As a result the court adopted a "sliding scale," finding guidance in the United States Supreme Court cases recognizing that "the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property." 84 N.J. at 562, 423 A. 2d 615. This consideration inspired the promulgation of a "test to be applied to ascertain the parameters of the rights of speech and assembly upon privately owned property and the extent to which such property reasonably can be restricted to accommodate these rights." 84 N.J. at 563, 423 A.2d 615. The guidelines appear in a tripartite standard:

(1) the nature, purposes, and primary use of such private property, generally, its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property. [Ibid.]

See State v. Shack, 58 N.J. 297, 277 A.2d 369 (1971); cf. Uston v. Resorts International Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1982).

This court, although eschewing reliance on Schmid because the property in question was held not to be devoted to any public use, recently opined that the combination of five of the office buildings of the Meadowlands Corporate Center--a development consisting of at least six office buildings, several warehouses, a motel, an automobile dealer, and an athletic club--were protected against "unwanted expressional activity." Bellemead Development Corp. v. Schneider, 196 N.J.Super. 571, 575, 483 A.2d 830 (App.Div.1984), aff'g 193 N.J.Super. 85, 472 A.2d 170 (Ch.Div.1983), certif. den. 101 N.J. 210, 501 A.2d 894 (1985). As may be said in the matter before us here, we said there, "The general public is not invited to use the property, nor does it." Id. at 576, 483 A.2d 830. We enjoined distribution of leaflets to office workers by a union organizer at building entrances adjacent to employee parking lots.

The sliding scale test of Schmid was applied by Judge Selikoff in Planned Parenthood of Monmouth v. Cannizzaro, 204 N.J.Super. 531, 499 A.2d 535 (Ch.Div.1985). That case resembled ours but with some substantial differences. There plaintiff was the sole occupant and owner of the premises in question and received public grant funds. Judge Selikoff granted injunctive relief against antiabortion picketing.

Other jurisdictions have expressed a reluctance, to say the least, to favor antiabortion expression over recognized interests in private property. See, for example, Ingram v. Problem Pregnancy of Worcester, Inc., 396 Mass. 720, 488 N.E.2d 408 (Mass.Sup.Ct.1986), Kugler v. Ryan, 682 S.W.2d 47 (Mo.App.1984), Hoffart v. State, 686 S.W.2d 259 (Tex.App.1985), State v. Horn, 126 Wisc.2d 447, 377 N.W.2d 176 (Ct.App.1985); but cf. Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, 457 N.Y.S.2d 27 (1982).

In the matter before us the Law Division judge was satisfied to adopt the "profound and very convincing" opinion of Judge Lowengrub in Brown v. Davis, supra. It seems obvious that the trial judge intended as well to adopt the findings of fact which appear therein for he made no findings of his own. We are satisfied that the facts found by Judge Lowengrub and thus adopted here might reasonably have been reached on the record in the matter before us and so we will not disturb them. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 323 A.2d 495 (1974). It is clear to us from these that the premises in question are not devoted to a public use. The tenants and their invitees are there by specific invitation. Akin to that said in Bellemead Development Corp., supra, "Although the office buildings are used by many employees, each is there by a specific invitation. The general public is not invited to use the property nor does it." 196 N.J.Super. at 576, 483 A.2d 830. As noted above, borrowing from Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 92 S.Ct. 2219, 2229, 33 L.Ed.2d 131 (1972), our Supreme Court has reinforced the proposition that property does not lose its private character merely because the public is generally invited to use it for a designated purpose. And so here. This private owner has not "sufficiently devoted [his premises] to public uses" that they are subject to expressional obligations. State v. Schmid, supra, 84 N.J. at 549, 423 A.2d 615. Judge Lowengrub concluded and we agree, "In this case the owner has not sufficiently dedicated the property to public use so as to entitle individuals to access for first amendment activity." Brown v. Davis, supra, 203 N.J.Super. at 46, 495 A.2d 900.

Accordingly, as we observed in Bellemead Development Corp., the accommodation test of State v....