(dissenting) — I dissent. I question the applicability and weight given Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981),10 on which the majority relies.
In Alderwood, the court addressed the propriety of a temporary restraining order enjoining solicitation of signatures in a shopping center. There was no direct state involvement in the form of criminal arrests and prosecutions. In this case, Sunnyside became directly involved in the controversy by arresting and prosecuting Ms. Lopez for criminal trespass. This involvement constitutes "state action". See Sutherland v. Southcenter Shopping Ctr., Inc., 3 Wn. App. 833, 836, 478 P.2d 792 (1970), which held that shopping centers' "use of deputized security personnel and the request to petitioners to leave the premises as a necessary prelude to establishing an action for criminal trespass" invoked the Fourteenth Amendment's "state action" requirement.
It is generally recognized that the Supreme Court's focus, in the line of cases beginning with Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946), on the nature of the property involved is an alternate way of establishing state action. See 1 C. Antieau, Modern Constitutional Law § 8:6 (Supp. 1987); L. Tribe, American Constitutional Law § 18-5, at 1708-11 (2d ed. 1988). The Alderwood decision appears to have adopted this approach by declining to find a "state action" requirement in Const, art. 1, § 5, while failing to address the question in any context other than the nature of the property. See Note, Free Speech, Initiative and Property Rights in Conflict — Four Alternatives to the State Action Requirement in Washington, 58 Wash. L. Rev. 587 (1983).
The arrest of Ms. Lopez is a direct demonstration of "state action", and discussion of any alternative method is *799unnecessary. There was no such direct "state action" in Alderwood, and the Alderwood test thus applies only to those situations in which "state action" is not present. In adopting a 3-part balancing test, Alderwood tried to avoid making a constitutional issue out of "every private conflict involving speech and property rights ..." Alderwood, at 243. Clearly, Alderwood was concerned with private conflicts. This is not such a case.
In addressing this dissent, the majority is concerned with the apparent paradox that, by causing the arrest of a trespasser, the property owner invokes the trespasser's free speech rights and thus makes the trespasser immune from prosecution for trespassing. If the "trespasser" is arrested solely for the content of her speech, as appears to be the case here,11 such a result is entirely consistent with the First Amendment and Const, art. 1, § 5.
The majority is further rejecting the reasoning presented herein because private property owners would be precluded from enforcing their rights to exclude others, and would convert private property into a public forum. Alderwood itself does precisely that, subject to the 3-part balancing test.
Here, the arrest of Ms. Lopez transformed the private dispute into a public one. As a result, the limiting factors as adopted by Alderwood are unnecessary. Rather, the inquiry involves balancing the rights of the property owner against Ms. Lopez' right to free speech. See Sutherland, at 843-44; Freeman v. Retail Clerks, Local 1207, 58 Wn.2d 426, 432-33, 363 P.2d 803 (1961) (Hill, J., concurring); State v. Schmid, 84 N.J. 535, 423 A.2d 615, 635-36 (1980) (Pashman, J., concurring in part, dissenting in part).
The majority holds because the medical center is not the "functional equivalent" of a downtown area, Ms. Lopez has *800no free speech rights.12 While it may be agreed that the center is not the "functional equivalent" of a downtown area or even of a large shopping center, one must recognize that it is more "public" than, for example, a private residence. Thus, while the center may not be open to the extent that a large shopping center would be, it should be subject to at least a diminished right of free speech by Ms. Lopez.
At the time of her arrest, Ms. Lopez appears to have been engaged in "pure" speech. See Sutherland, at 836; Cox v. Louisiana, 379 U.S. 559, 13 L. Ed. 2d 487, 85 S. Ct. 476 (1965). She was not impeding access to the center's tenants, nor was she harassing or verbally abusing potential patients. Her activities were not found to have financial impact on the center.13 Her interest in free speech clearly outweighs the center's interest in protecting its property.
Review denied by Supreme Court June 2, 1988.
Both the concurrence and the dissent (a total of five justices) objected to the plurality's analysis of state constitutional free speech protections, and, until today, no Washington decision has applied its constitutional rationale.
It is noteworthy that even those who had not ventured into the breezeway area were arrested. This would indicate the reason for the arrest bore little relationship to protecting property and that Ms. Lopez was arrested because the property owners objected to what she was saying.
The majority concludes simply that the center is private property. In a footnote, the decision refers to the right to exclude others as an essential element of property ownership. In Alderwood, the property was undeniably private. The issue was whether the use to which the property was being put created an increased level of constitutional protection for freedom of speech.
As the majority notes, this is not a situation, as in Bering v. Share, 106 Wn.2d 212, 721 P.2d 918 (1986), cert. dismissed, _ U.S. _, 93 L. Ed. 2d 990, 107 S. Ct. 940 (1987), in which the issue was the validity of restrictions on use of a public sidewalk. Here, the issue is application of criminal trespass laws that undeniably restrict freedom of speech. The potential validity or invalidity of reasonable restrictions on Ms. Lopez' activities is not addressed here.