specially concurring.
Although I find the reasoning of those courts which have extended similar state constitutional provisions to protect certain free speech rights in private malls to be persuasive, see Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 592 P.2d 341, 153 Cal.Rptr. 854 (1979), aff'd, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Alderwood Associates v. Washington Environmental Council, 96 Wash.2d 230, 635 P.2d 108 (1981); Batchelder v. Allied Stores International, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), cert. dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982), our supreme court has indicated that Colo. Const. art. II, § 10, applies only to governmental activity. In re Canon 35, 132 Colo. 591, 296 P.2d 465 (1956). It would therefore be inappropriate for this court to extend the scope of that constitutional provision to private property.
Since the exact issue of the extension of Colo. Const. art. II, § 10, to malls has not been determined by our supreme court, I do not consider that issue to have been dispositively decided. However, I view the existing precedent addressing the meaning of that constitutional provision as constraining this court from reaching any other conclusion. In re Canon 35, supra; People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo.1985); see also People v. Berger, 185 Colo. 85, 521 P.2d 1244 (1974).
In Robins v. Pruneyard Shopping Center, supra, the court ruled unanimously that a state constitutional provision which requires mall owners to permit individuals to gather signatures on mall property did not violate the mall owners’ rights under the United States Constitution. In that ruling, the court pointed out that private property such as a mall is regulated in many diverse ways by local, state, and federal governments and that the impact of requiring mall owners to provide space for gathering petition signatures is not an unconstitutional taking of property. I agree with that analysis.
The United States Supreme Court has held, that under some circumstances, state action can be found on the basis of the entanglement, or symbiotic relationship, between the government and a private actor. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); See Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); see generally 2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law: Substance & Procedure § 16.1, et seq. (1986).
In Burton v. Wilmington Parking Authority, supra, the court scrutinized the degree of governmental involvement in the private garage to determine if there was sufficient governmental or state action so that the prohibition of 42 U.S.C. § 1983 (1982) could be invoked. In my view the same approach can be used for shopping malls.
Some malls may have been created and run with minimal government involvement whereas in others governmental action and involvement has been extreme. Moreover, the extent of government involvement needed to constitute state action under the Colorado Constitution may be less than that required under the federal constitution. See In re Canon 35, supra.
If such analysis were employed, it would prevent mall owners from receiving substantial governmental assistance while at the same time claiming their “private property” rights prohibit citizens’ rights of free speech.