Waremart, Inc. v. Progressive Campaigns, Inc.

Sanders, J.

(dissenting) — The majority looks for a shopping mall hut cannot find one. I look to the state constitution, which mandates, “[t]he people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls” and “[t]he first power reserved by the people is the initiative.” Const, art. II, § 1(a) (amend. 72).15

While the majority inveighs against “ ‘judicial activism in areas of legislative concern,’ ” Majority at 638 (quoting In re Personal Restraint of Mayner, 107 Wn.2d 512, 519, 730 P.2d 1321 (1986)), our concern is the state constitution, not the legislature. Rather, I posit, the restraint this court must observe is that expressed by the constitutional text and the fundamental principles which it animates, not a subjective “balancing” of irrelevant factors. Cf. Const, art. I, § 29 (“The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.”); art. I, § 32 (“A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.”). The words of the constitution must be afforded their common and ordinary meaning as popularly understood upon ratification. State ex rel. O’Connell v. Slavin, 75 Wn.2d 554, 557, 452 P.2d 943 (1969); Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Euget Sound L. Rev. 491, 509 (1984). It is not the role of the court to engraft exceptions in the constitutional provisions where none are expressed, no matter how desirable or expedient such exceptions might seem. State ex rel. O’Connell v. Port of Seattle, 65 Wn.2d 801, 806, 399 P.2d 623 (1965).

The ultimate question to be answered in this proceeding is therefore the same as that addressed in Alderwood As*653sociates v. Washington Environmental Council, 96 Wn.2d 230, 635 P.2d 108 (1981): Does the Washington Constitution article II, section 1 (amend. 72), privilege private citizens to collect initiative-petition signatures on private property? As five members of this court unmistakably answered the aforementioned question affirmatively in Alderwood, we must now decide whether we are going to overrule Alderwood or, if not, whether our constitution provides a principled basis to confine initiative signature-gatherers merely to shopping malls.

As to the first question — whether we should overrule Alderwood and, by so doing, hold that constitution article II, section 1 (amend. 72) does not grant a right to private persons to enter private property to gather initiative signatures — Waremart devotes a majority of its brief and argument. Waremart’s is a constitutionally principled argument — as is Progressive’s response. However notwithstanding the cobbled majority in Alderwood, and the subsequent rejection of Alderwood’s free speech rationale in South-center Joint Venture v. National Democratic Policy Committee, 113 Wn.2d 413, 780 P.2d 1282 (1989), the majority refuses to substantively reconsider the right to solicit initiative signatures on private property because “[t]o overturn Alderwood would substantially diminish the ability of Washington’s citizens to participate in the initiative process in a meaningful way.” Majority at 635. So be it.

Therefore the first proposition — that the Washington Constitution guarantees a right to collect initiative signatures on private property — is proved, given there are not five votes to undo it.

The next question is therefore whether the Washington Constitution limits the exercise of that right to shopping malls. The majority says yes. However, the majority’s is a curious result since there were no privately owned shopping malls in the state of Washington when this constitutional amendment was ratified in 1912, and there is neither word nor phrase in the constitutional text which suggests any limitation of that kind. Indeed, if it is our *654view that constitution article II, section 1 (amend. 72), grants a right to trespass on private property to obtain initiative signatures so as not to “substantially diminish the ability of Washington’s citizens to participate in the initiative process in a meaningful way,” Majority at 635, then it would seem equally “meaningful” for the signature-gatherer to ply his trade wherever potential signatores are present. As the majority tells us, Waremart attracts approximately 30,000 customers weekly and there exists an ample and rational incentive for Progressive to be present as well.

Although it might be argued such activities could be reasonably subject to time, place, and manner limitations, that is not the question before us nor is it the question the majority decides. Although Progressive has indicated a willingness to abide by reasonable conditions of that nature, it is the position of Waremart, and of the majority of this court, that no initiative signature solicitation need be permitted on this property at any time, in any manner, under any conditions, as a matter of constitutional principle. Apparently the majority divines this principle— which distinguishes shopping mall islands from the sea that surrounds them — not from the constitutional text but from that portion of the plurality opinion in Alderwood which we subsequently rejected in Southcenter.

In Alderwood an environmental group asserted it had the right to solicit signatures for an initiative at a regional shopping center. A four member plurality — i.e., less than a majority of the court — found both article I, section 5, and article II, section 1 (amend. 7), of the state constitution protected the right of initiative petitioners to gather signatures upon the private property of the Alderwood shopping mall.16 Alderwood Assocs., 96 Wn.2d at 239. Because the plurality concluded article I, section 5, and article II, section 1 (amend. 7), did not require “state ac*655tion,” it engaged in a novel “balancing” approach to determine when these constitutional guaranties apply to private conduct. Alderwood Assocs., 96 Wn.2d at 244. The plurality concluded, “Since the balance favors the speech and initiative activity, section 5 and amendment 7 are applicable.” Id. at 246.

Justice Dolliver concurred in the result of the majority but sharply criticized its reasoning, nevertheless agreeing “that the activity involved in this case was a reasonable restriction on the use of the Alderwood Mall by plaintiff and was not of such a nature as to constitute an uncompensated ‘taking’ of private property.” Id. at 251 (Dolliver, J., concurring) (citing PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980)). But Justice Dolliver refused to adopt the balancing approach followed by the plurality. “Rather than emasculate the state action requirement from the Declaration of Rights, however, I would hold that the activity engaged in here by the defendants is authorized by Const, art. 2, § 1(a) (amendment 7), RCW 29.79, and the cases decided by this court.” Alderwood Assocs., 96 Wn.2d at 251 (citing State ex rel. Evich v. Superior Court, 188 Wash. 19, 61 P.2d 143 (1936); State ex rel. Case v. Superior Court, 81 Wash. 623, 143 P. 461 (1914)).

Unlike the Alderwood plurality, Justice Dolliver did not purport to balance the rights of initiative petitioners against those of private property owners. Rather, Justice Dolliver unequivocally stated, “Implicit in the initiative process is the need to gather signatures in a manner which does not violate or unreasonably restrict the rights of private property owners.” Alderwood Assocs., 96 Wn.2d at 253.17 Thus, the majority here inaccurately concludes the five justice majority in Alderwood agreed article II, section 1 (amend. 7), protects petitioners who gather signatures *656only “at large shopping malls, such as the Alderwood Mall, which have become ‘the functional equivalent of a downtown area or other public forum.’ ” Majority at 631 (citing Alderwood Assocs., 96 Wn.2d at 244).

Unlike the majority here, we accurately restated Alder-wood’s holding in Southcenter, 113 Wn.2d at 428-29 (Dolliver, J., concurring) (citing Alderwood Assocs., 96 Wn.2d at 253):

[TJhe holding in Alderwood was simply that people have a right under the initiative provision of the Constitution of the State of Washington to solicit signatures for an initiative in a manner that does not violate or unreasonably restrict the rights of private property owners. We expressly do not here disturb that holding.

(Footnote omitted.) Notably, the Southcenter majority did not limit Alderwood’s holding to petitioning activity “at large shopping malls,” nor did it characterize the rights reserved by the people under article II, section 1 (amend. 72), as subject to some sort of balancing test.18 Thus, the application of a balancing test to limit the reach of article II, section 1, to large shopping malls is utterly without support in our precedent, an invention of the majority sewn from whole cloth.

Even if this fabricated balancing test found support in our precedent, the logic relied upon by the majority to balance the rights of private property owners against petitioners is inapplicable and has long been rejected. Relying exclusively on Alderwood, the majority purportedly applies three factors to determine whether petitioner’s conduct here is protected: (1) the nature and use of the property, *657(2) the scope of the invitation extended to the public by the property owner, and (3) the impact of the decision upon the initiative process. Majority at 636. Clearly determinative, however, is the majority’s assessment that “ ‘Waremart stores bear none of the characteristics of a town center,’ ” “are not the equivalent of a ‘town square,’ ‘community business block,’ or other public forum,” and do not “have the earmarks of a town square, downtown area, or other public forum.” Majority at 637-38.

The search for a “town square” or “business block” began not in our state constitutional jurisprudence but in Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S. Ct. 1601, 20 L. Ed. 2d 603 (1968). The issue there was whether state trespass laws could be applied to union members picketing a large, nonunion supermarket located in a shopping center. Citing Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946), the Supreme Court stated in Logan Valley.

We see no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership.

Logan Valley, 391 U.S. at 319. The Supreme Court thus concluded this functional equivalency called for the same result obtained in Marsh — the picketers were entitled “to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” Id. at 319-20.

However the “functional equivalent” language of Logan Valley was short lived, as the Supreme Court made clear in Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S. Ct. 2219, 33 L. Ed. 2d 131 (1972). There the Court held that in focusing on whether Lloyd Center was “the functional equivalent of a public business district,” the lower courts had missed the mark.

The courts below considered the critical inquiry to be *658whether Lloyd Center was “the functional equivalent of a public business district.” This phrase was first used in Logan Valley, but its genesis was in Marsh. . . . The Court [in Marsh] simply held that where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town’s sidewalks and streets.

Lloyd Corp., 407 U.S. at 561-62 (footnote omitted). In Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029, 47 L. Ed. 2d 196 (1976), the Supreme Court held a shopping center could ban the picketing of one of its stores. The Court explained that its decision in Lloyd effectively overruled the rationale of Logan Valley, which suggested a large self-contained shopping center is the functional equivalent of a municipality. Id. at 518-21.

In Southcenter, like the United States Supreme Court, we explicitly rejected the “functional equivalent” or “public function” rationale where we explained:

Based on Lloyd, therefore, it is obvious in the case before us that the “public function” doctrine is inapposite under the Constitution of the United States. Nor do we perceive any persuasive reason why this doctrine should apply any differently under our state constitution. It simply cannot reasonably be said that a shopping mall performs the functions traditionally and exclusively reserved to the state.

Southcenter, 113 Wn.2d at 432. Further, this rationale was developed — and eventually rejected — in the context of determining the scope of First Amendment rights. Because the instant case involves the initiative provision of the Washington Constitution, First Amendment jurisprudence is wholly inapplicable. See Alderwood Assocs., 96 Wn.2d at 253 (Dolliver, J., concurring) (article II, section 1 (amend. 7), is not a right against government in the sense of article I, § 5, but is instead a declaration that the people are part of the legislative process).

CONCLUSION

The majority creatively reconstructs our precedent to *659manufacture its own preferred balance between the rights of private property owners and the rights of initiative petitioners. However, “this court is not at liberty to disregard the fundamental nature of our constitution, in order to advance theories that may be perceived by some to constitute desirable social policy.” Southcenter, 113 Wn.2d at 429-30 (citation omitted). Because the majority ignores the plain language of article II, section 1 (amend. 72), and fabricates a balancing test based on long rejected logic, not constitutional principle, I dissent.

The current version of constitution article II, section 1 is amendment 72, approved in 1981. The 1912-1981 version of article II, section 1 was amendment 7.

The majority here states “a four member plurality held that both article I, section 5 . . . and article II, section 1(a) . . . protected the right of initiative petitioners . . . .” Majority at 628-29. The majority’s characterization of the plurality’s decision as a holding indicates the apparent weight given to this decision.

In fact, the Alderwood dissent acknowledged Justice Dolliver’s opinion granted initiative petitioners virtually unimpeded access to private property. “I disagree with the use, by the concurrence, of Const, art. 2, § 1(a) (amendment 7) to establish a new constitutional right which authorizes persons gathering signatures on initiative petitions to go onto private property and which leaves *656owners of private property powerless to exclude them.” Alderwood, 96 Wn.2d at 253 (Stafford, J., dissenting).

The majority attaches great significance to Justice Utter’s observation that the Southcenter majority left “undisturbed the result in Alderwood which recognizes the State’s duty to enforce an individual’s right to petition on certain private property.” Southcenter, 113 Wn.2d at 435 (Utter, J., concurring in result). Regardless of whatever weight is given to this passing observation, it is clear Justice Utter did not attempt to restate the holding of Alderwood and further did not limit its holding to simply “large shopping malls.” See Majority at 632.