Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co.
| Decision Date | 08 January 1985 |
| Citation | 485 A.2d 1,335 Pa.Super. 493 |
| Parties | WESTERN PENNSYLVANIA SOCIALIST WORKERS 1982 CAMPAIGN, Francis Farley, Mark Zola and Linda Nordquist, Appellants v. CONNECTICUT GENERAL LIFE INSURANCE CO. |
| Court | Pennsylvania Superior Court |
Jon S. Pushinsky, Pittsburgh, for appellants.
Eric A. Schaffer, Pittsburgh, for appellee.
Before WIEAND, TAMILIA and POPOVICH, JJ.
Do the members of a politically oriented group have a constitutional right to use a privately owned shopping center to disseminate information and collect signatures on a nominating petition despite a general policy by the owner which precludes use of the premises for any and all political activity? The trial court held that there was no such right and refused injunctive relief. We affirm.
The material facts are not in dispute. In the spring of 1982, the "Western Pennsylvania Socialist Workers 1982 Campaign," a political committee, undertook a massive petitioning drive to obtain 23,407 signatures necessary to place the Socialist Workers Party's gubernatorial candidate, Mark Zola, on the November, 1982 ballot. Linda Nordquist, a registered Socialist Workers Party voter, Francis Farley, chairperson of the campaign committee, and Mark Zola, the candidate, who are appellants herein sought to disseminate information and collect signatures at the South Hills Village shopping center.
South Hills Village is an enclosed mall owned by Connecticut General Life Insurance Company in the South Hills area of Allegheny County. Appellants chose South Hills Village because of the large number of persons who go there to shop and to take advantage of public service or entertainment programs periodically provided at the mall. The mall has seven public entrances and houses 126 retail businesses, with exterior parking facilities for approximately 5,000 vehicles. The owner of the mall has a long-standing, nondiscriminatory policy which bans all forms of politically oriented activity on its property, without regard to the nature of the activity or party affiliation of the would-be users.
Appellants sought, and were denied, permission to collect signatures and disseminate information in the mall. Aware of the owner's policy, appellants elected not to expose themselves to arrest for ignoring it. Instead, they filed a complaint in equity on May 11, 1982 seeking an order which would enjoin the owner from enforcing its ban and allow appellants access to South Hills Village for their political activities. After a hearing before the Honorable Nicholas Papadakos, now a justice of the Pennsylvania Supreme Court, an adjudication and decree nisi were entered denying the requested relief. Exceptions were denied by a court en banc, and a final decree was entered on October 21, 1982. This appeal followed.
Before we can proceed to a determination of the merits, it is first necessary to discuss the issue of mootness, inasmuch as the relief sought in the trial court--an order enforcing the alleged right to solicit signatures for the 1982 gubernatorial campaign--can no longer be granted. We agree with appellant that although the issue is technically moot at this point in time, the case is properly subject to appellate review. As the Pennsylvania Supreme Court has recognized, Commonwealth v. Joint Bargaining Committee, 484 Pa. 175, 179, 398 A.2d 1001, 1003 (1979). See: Scherrer v. Lamb, 319 Pa.Super. 290, 466 A.2d 163 (1983); Commonwealth v. Buehl, 316 Pa.Super. 215, 462 A.2d 1316 (1983). The issues involved in the instant case are such that they are likely to reoccur and equally as likely to evade review. Therefore, we address the merits of appellants' contentions.
The free speech provision of the First Amendment of the United States Constitution, applicable to the states by way of the Fourteenth Amendment, does not prevent a privately owned and operated shopping center from enforcing nondiscriminatory and nonarbitrary bans on certain forms of activity on its premises. The right of free speech secured by the federal Bill of Rights is held against the government and cannot be unreasonably infringed. In the absence of "state action," however, the acts of purely private actors, such as privately owned shopping centers, do not violate the federal constitution; such enterprises are free to enforce policies banning certain forms of speech activities under federal doctrine. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); 1 Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).
Recognizing these dispositive Supreme Court decisions, appellants have not argued that they have a federally protected right to exercise free speech at South Hills Village. Instead, they argue that the owner's policy violates rights conferred by the Declaration of Rights contained in the Pennsylvania Constitution, Pa. Const. Art. 1. Specifically, appellants contend that appellee's policy violates their right to alter, reform or abolish their government under Article 1, section 2; their rights of petition and assembly under Article 1, section 20; and their right to speak freely under Article 1, section 7. Their principal argument is premised upon the free speech provisions of section 7. Our discussion will also focus upon that provision because the parties have placed very little emphasis on the separate roles of sections 2 and 20, and because our interpretation of section 7 is controlling also of any interpretation of sections 2 and 20.
A state court, in interpreting the provisions of its state constitution, is free to read such provisions more expansively than correlative federal provisions and as conferring greater rights than those established under federal doctrine. Mesquite v. Alladin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1077, 71 L.Ed.2d 152, 162 (1982). Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457, 466-467 (1983); Commonwealth v. Beauford, 327 Pa.Super. 199, 475 A.2d 783, 788 (1984); Commonwealth v. Corley, 316 Pa.Super. 327, 335 & n. 12, 462 A.2d 1374, 1378 & n. 12 (1983). See: Kroger Co. v. O'Hara Township, 481 Pa. 101, 392 A.2d 266 (1978); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975); Commonwealth v. Ferguson, 327 Pa.Super. 305, 475 A.2d 810 (1984); Note, The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982). Thus, the Supreme Court of the United States held that although there was no federal basis for a right of access to a private shopping center for politically oriented activities, the state courts of California were free to interpret the state constitution's free speech provisions as guaranteeing such access. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), affirming 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979). See: Note, 95 Harv.L.Rev., supra at 1401-1408; Note, Granting Access to Private Shopping Center Property for Free Speech Purposes, 64 Marq.L.Rev. 507 (1981).
The applicability of state constitutional guarantees to shopping centers has been addressed by the courts of sister states. The results have not been uniform. Several jurisdictions have concluded, consistently with the United States Supreme Court, that state constitutional guarantees of free speech and petition do not confer upon individuals the right to exercise such rights at or upon privately owned shopping centers against the wishes of the owner. See: Cologne v. Westfarms Associates, 192 Conn. 48, 469 A.2d 1201 (1984) (3-2 decision); Woodland v. Michigan Citizens Lobby, 128 Mich.App. 649, 341 N.W.2d 174 (1983) (2-1 decision); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981) (unanimous decision). Cf. Lenrich Associates v. Heyda, 264 Or. 122, 504 P.2d 112 (1972). An almost equal number of jurisdictions has held that state constitutional provisions do guarantee some form of access to privately owned shopping centers. See: Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (4-3 decision); Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981) (); Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979) (4-3 decision); Shad Alliance v. Smith Haven Mall, 118 Misc.2d 841, 462 N.Y.S.2d 344 (1983) (trial court decision). We hold, after careful review of the content and history of Article I of the Pennsylvania Constitution, that privately owned shopping centers may constitutionally ban political activity.
Article I, section 7 of the Pennsylvania Constitution provides, in pertinent part, as follows:
The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.
This provision limits the power of the state to restrict an individual's freedom of expression. However, it is not a self-executing, affirmative declaration that individuals may exercise the right of free speech wherever they choose and in derogation of the rights of private property owners. Cf. Pendrell v. Chatham College, 386 F.Supp. 341, 344 (W.D.Pa.1974). If, as appellants contend, the requirement of state action is less stringent when interpreting the provisions of the Pennsylvania Constitution, as opposed to the Federal Constitution, it is nevertheless clear that the provisions of Article I, section 7 do not reach the acts of purely...
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