Batchelder v. Allied Stores International, Inc.

Lynch, J.,

dissenting (with whom Hennessey, C.J., and O’Connor, J., join). In deciding that the plaintiff has a right under art. 9 of the Declaration of Rights to solicit signatures on the defendants’ property, this court has concluded that no “State action” requirement limits the application of this article to the facts of this case. I respectfully dissent.

*94Consideration of the general purposes of our State Constitution persuades me that art. 9 does not apply to private conduct of the type to which the plaintiff objects. This court has said that “[t]he function of a written constitution adopted by the people is to establish ... an objective standard of conduct by which all departments of the government, executive, legislative and judicial alike, shall be bound.” Opinion of the Justices, 324 Mass. 746, 748 (1949). “It is the final statement of the rights, privileges and obligations of the citizens and the ultimate grant of the powers and the conclusive definition of the limitations of the departments of State and of public officers. In its grant of powers, the bounds set for their exercise, the duties enforced and the guarantees established are found the constitutional liberty of the individual and the foundation for the regulated order and general welfare of the community. To its provisions the conduct of all government affairs must conform.” Opinion of the Justices, 233 Mass. 603, 611 (1920). Accord Loring v. Young, 239 Mass. 349, 376-377 (1921). See also Tax Comm’r Putnam, 227 Mass. 522, 523 (1917). Consistent with the thrust of these passages are statements more specifically concerned with the Declaration of Rights. Thus: “The purpose of the Declaration of Rights was to announce great and fundamental principles, to govern the action of those who make and those who administer the law ...” Foster v. Morse, 132 Mass. 345, 355 (1882). In an earlier case it was said that “ [t]he manifest object of the Declaration of Rights was, to give the most explicit an abiding sanction to some of the general principles, supposed to be essential to the maintenance of free government, for the general guidance and regulation, as well of the legislature as of the people.” Commonwealth v. Kneeland, 20 Pick. 206, 219 (1838).

As these passages illustrate, the fundamental role of our State Constitution is to define and to regulate the relationship between the government and the people. The liberty of the people is safeguarded by grants of power to, and limitations on, the various branches of government. The *95Constitution and the Declaration of Rights serve as ultimate arbiters of conflicts between the people and those who represent government in all its manifestations. Regulation of the relationship between individual citizens or groups of citizens is not, generally speaking, a concern of the Constitution but of the Legislature acting pursuant to its police power and other constitutional powers. When the equal right to elect and be elected to public office guaranteed by art. 9 is read in light of these principles, it is clear that the article is concerned with governmental abridgements and not with interferences generally.

My review of the State cases relied upon by the majority also convinces me that it would be unwise to depart from a requirement of governmental conduct in this instance. These courts, reaching the same result as the majority here, adopt a balancing test and proceed to analyze a variety of factors in order to determine the extent of the protected activity in a particular case. See State v. Schmid, 84 N.J. 535, 563 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100(1982); Commonwealth v. Tate, 495 Pa. 158, 173-174 (1981); Alderwood Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 244-246 (1981). I find no support for such an open-ended approach.

I am aware of the important role which privately held shopping centers play in the commercial life of many communities today. See generally, Note, Private Abridgement of Speech and the State Constitutions, 90 Yale L.J. 165, 168-169 (1980). Understandably, many individuals and groups hoping to promote a political, social, or religious cause view shopping centers such as the North Shore Shopping Center as highly desirable forums for the communication of their views. Nonetheless, history and logic persuade me that our State Constitution should be read as incorporating a threshold requirement of State action before the courts may act to protect asserted rights under the Declaration of Rights. Furthermore, I see no reason to find in art. 9 a guarantee of greater rights than those protected under the Federal Constitution. Hudgens v. NLRB, 424 U.S 507 *96(1976). Lloyd Corp. v. Tanner, 407 U.S. 551 (1972). The plaintiff in this case was free to gather signatures and to distribute campaign literature in the public areas of all the towns and cities in the Sixth Congressional District, and his right to do so was protected under both the Federal and State Constitutions. It should be kept in mind that it was by the exercise of this right that the plaintiff obtained a place on the ballot. I would hold, however, that he had no further right, under the State Constitution, to carry his efforts into the North Shore Shopping Center.

Article 9 expresses “ [t]he Commonwealth^] . . . substantial, compelling interest in assuring the fairness of elections and the appearance of fairness in the electoral process.” Anderson v, Boston, 376 Mass. 178, 193 (1978). The plaintiff’s argument that art. 9 entitles him to carry out campaign activities at North Shore because it is “perhaps the largest center for the congregation of voters in the Sixth District” has potentially broad ramifications. It suggests that art. 9 is violated every time the owner of private property which attracts large concentrations of people bars political campaigning on the property. Article 9 does not reach this far. It is a guarantee that no branch of the government will do anything inconsistent with “[f]airness and the appearance of fairness” in the electoral process. Id. at 195. It does not ensure that all candidates receive the same level of public exposure. No governmental agency erected any barrier to the plaintiff’s campaign. I would find this fact conclusive on the art. 9 issue.

Even if no State action requirement is found to limit the application of art. 9, it does not appear to me that the plaintiff’s cause is aided by this article. The plaintiff’s experts testified that the alternatives to solicitation of signatures at the North Shore Shopping Center were door-to-door and downtown area campaigning and that these methods were inefficient and not very effective. Thus, the plaintiff has at best established that his solicitation of signatures on North Shore’s property may be desirable but not necessary for the effective exercise of his ballot access rights. I believe that *97such a showing is an insufficient basis for affording him art. 9 rights on the defendants’ property. Furthermore, the record demonstrates, and the trial judge found, that North Shore’s policy was to permit political candidates already on the ballot to enter and walk around the mall area but prohibited all candidates from soliciting signatures and distributing literature. It is hard for me to understand how such a policy, uniformly applied, could violate art. 9, which guarantees that elections be free and that the inhabitants of the Commonwealth “have an equal right to elect officers, and to be elected, for public employments.”

In sum, my principal objection to the majority position is its adoption of a balancing of interests concept in place of a State action requirement. It has been pointed out that once a State Constitution is freed from some form of State action limitation, its protections would theoretically apply to a wide range of private disputes. Note, Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1425 (1982). Alderwood Assocs., supra at 250-251 (Dolliver, J., concurring) (“[n]ow there is no limit to the range of wrongs which this court may right”).

There is no reason to so expand the role of this court. I would affirm the judgment of the Superior Court.