Waremart v. Progressive Campaigns, Inc.

• Decision Date: 16 December 1999
• Docket Number: No. 67029-3.,67029-3.
• Citation: 989 P.2d 524,139 Wash.2d 623
• Court: Washington Supreme Court
• Parties: WAREMART, INC., an Idaho corporation, Respondent, v. PROGRESSIVE CAMPAIGNS, INC., a California corporation; John Does I through 50, and Jane Does 1 through 50, Appellants.

989 P.2d 524

139 Wash.2d 623

WAREMART, INC., an Idaho corporation, Respondent, v. PROGRESSIVE CAMPAIGNS, INC., a California corporation; John Does I through 50, and Jane Does , Appellants.

No. 67029-3.

Supreme Court of Washington, En Banc.

Argued June 10, 1999.

Decided December 16, 1999.

Preston, Gates & Ellis, Paul J. Lawrence, Marc C. Levy, Seattle, Christina M. Hutchins, Portland, OR, for Appellants.

Charles Hinkle, Portland, OR, for Respondent.

ALEXANDER, J.

Waremart, Inc. (Waremart) brought an action in Clark County Superior Court for declaratory and injunctive relief against Progressive Campaigns, Inc. (Progressive), a corporation which manages initiative petition signature gathering campaigns. Waremart sought to enjoin Progressive and its employees from gathering signatures for initiative petitions on its property, asserting that Progressive had no legally protected right to enter its property for the purpose of soliciting signatures for initiative petitions. The Clark County Superior Court agreed with Waremart and permanently enjoined Progressive, and persons acting in concert with it, from entering Waremart's premises for the above described purposes. We granted Progressive's petition for direct review and now affirm the superior court in all respects.

I

Progressive, the appellant, is a profit-making California corporation engaged in "political work" primarily consisting of: (1) gathering signatures for the purpose of "qualifying initiatives for the ballot"; and (2) "field campaign work." Report of Proceedings (RP) at 19. As a part of its business, Progressive hires "petitioners," and pays them for every valid signature that they gather in support of the initiative campaign in which Progressive is engaged. RP at 21. Waremart, the respondent, is an Idaho corporation which owns and operates three retail grocery stores in Washington. Two of these stores are called "Cub Foods" and are located in the Vancouver, Washington area. One of the Vancouver area stores is located in the Vancouver Plaza and the other is in the community of Hazel Dell. The third store is located in Kennewick. The record indicates that the "Hazel Dell and Kennewick stores are located in single free-standing buildings, and the Vancouver Plaza store is located in a strip mall." Resp. Br. of Resp't at 41.

Each of Waremart's stores attracts approximately 30,000 customers per week and carries essentially the same product base of grocery items and other goods commonly sold in large retail grocery outlets.¹ Waremart focuses, however, on "sell[ing] groceries" at what it claims is "the cheapest price, or the lowest prices that [it] can in the market area." RP at 133-34.

All of Waremart's stores have essentially the same physical layout. The trial court made findings in that regard that

[e]ach store is basically surrounded by an extensive parking area with only a narrow sidewalk bordering the store. There is no plaza or communal area for the public to congregate either inside or on the exterior. Immediately adjacent to the sidewalk is a traffic lane which[,] due to the high volume of vehicles, requires numerous warning signs to warn pedestrians.

Clerk's Papers (CP) at 133. It also found that "Waremart has chosen not to utilize mass advertising. [Waremart's] Washington stores do not promote any public services on their locations nor do they open up areas within their stores to such activities as mall walkers or choir groups." CP at 133-34.

In 1996 and 1997, petitioners hired by Progressive entered the properties upon which the Waremart's stores are located and solicited some of Waremart's customers to sign initiative petitions. The management at all three stores subsequently received complaints from some customers regarding being approached by Progressive's employees. Waremart informed Progressive that its policy was "to prohibit all initiative petitioning on its premises, and ... requested them to tell the persons whom it ha[d] recruited not to engage in petitioning activity at [its] stores." CP at 4. Progressive refused to comply with this request. Waremart then brought suit against Progressive in Clark County Superior Court, seeking a declaratory judgment that it had the

legal right to deny entry to the premises of its Cub Foods and Waremart stores in Washington to persons who seek entry to those premises for purposes of soliciting signatures on petitions to place issues or measures on election ballots, and that it has the legal right to direct such persons to leave its premises.

CP at 10. In addition, Waremart sought an order "[e]njoining [Progressive] and all persons in active concert and participation with them from entering the premises of plaintiff's Cub Foods and Waremart stores in Washington for the purpose of soliciting plaintiff's customers and prospective customers to sign initiative petitions." CP at 11.

After a hearing, the trial court held that:

1. [Waremart's] Washington stores are not `the functional equivalent of a downtown area or other public forum,' and they do not perform `a traditional public function by providing the functional equivalent of a town square or community business block'....

2. [Waremart] is not required to allow [Progressive's] petitioners to solicit signatures inside its three Washington stores or on the sidewalks and parking lots adjacent to its three Washington stores.

3. [Waremart] has a clear legal and equitable right to preserve, maintain, and use its property at its three Washington stores for its own retail sales operations. As a private owner and lessee of the property at those three locations, [Waremart] has power to preserve the property under its control for the use to which it is lawfully dedicated, and is under no obligation to permit [Progressive] to engage in petitioning activity on its property.

4. By their conduct in entering the premises of [Waremart's] Washington stores for the purpose of soliciting [Waremart's] customers to sign initiative petitions, persons recruited and paid by [Progressive] have caused and threaten to continue to cause an immediate invasion of [Waremart's] right to preserve, maintain, and use the property at its three Washington stores for its own retail sales operations.

CP at 134-35. The trial court permanently enjoined Progressive, and all persons in active concert with it, "from entering the premises of plaintiff's Washington stores for the purpose of soliciting plaintiff's customers and prospective customers to sign initiative petitions." CP at 139. Progressive sought direct review from this court, contending that the initiative provision of the state constitution provides them with the right to engage in the aforementioned activities on Waremart's property. We granted its petition.

II

A party seeking injunctive relief must establish: (1) that the movant has a clear legal or equitable right; (2) that the movant has a well-grounded fear of immediate invasion of that right; and (3) that the acts complained of are either resulting in or will result in actual and substantial injury to the movant. King v. Riveland, 125 Wash.2d 500, 515, 886 P.2d 160 (1994). The trial court, as previously noted, found that Waremart had satisfied the aforementioned criteria, and, therefore, granted its request for a permanent injunction against Progressive. In reviewing this decision, we are mindful of the principle that the "granting or withholding of an injunction is addressed to the sound discretion of the trial court to be exercised according to the circumstances of each case." Washington Fed'n of State Employees, Council 28 v. State, 99 Wash.2d 878, 887, 665 P.2d 1337 (1983). Furthermore, the "trial court's decision exercising that discretion will be upheld unless it is based upon untenable grounds, or is manifestly unreasonable, or is arbitrary." King, 125 Wash.2d at 515,886 P.2d 160; see also Brown v. Voss, 105 Wash.2d 366, 372, 715 P.2d 514 (1986) (stating that it is a fundamental principle that a "trial Court is vested with a broad discretionary power to shape and fashion injunctive relief to fit the particular facts, circumstances, and equities of the case before it. Appellate courts give great weight to the trial court's exercise of that discretion."). Accordingly, we must accord the trial court great deference and review its decision only for an abuse of discretion.

III

There are two cases that have emanated from this court, Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282 (1989) and Alderwood Assocs. v. Washington Envtl. Council, 96 Wash.2d 230, 635 P.2d 108 (1981), which have a particular bearing upon our decision in this case. In Alderwood, the issue before us was whether "Washington law[²] permits signature solicitation [for an initiative] at privately owned shopping centers."Alderwood., 96 Wash.2d at 240, 635 P.2d 108. There, a four member plurality held that both article I, section 5 (the free speech provision)³ and article II, section 1(a) (amend. 7) (the initiative provision) of the state constitution both protected the right of initiative petitioners to gather signatures upon the private property of the Alderwood shopping mall in Snohomish County, "a regional shopping center with more than 1,000,000 square feet of store area on 110 acres of land." Alderwood, 96 Wash.2d at 232, 635 P.2d 108.

In concluding that article I, section 5 and article II, section 1(a) (amend. 7) each provided initiative petitioners with a right to gather signatures at the Alderwood shopping mall, the plurality noted that "[d]etermining when the Washington speech and initiative guaranties will apply to private conduct must evolve with each decision, for an all inclusive definition is not practicable. The approach, however, involves balancing several factors." Alderwood, 96 Wash.2d at 244, 635 P.2d 108. These factors, according to the four justices are: (1) the nature and use of the property; (2) the nature of the speech...