Petition for Writ of Certiorari — H-CHH Associates v. Citizens for Representative Government

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87-12 76 TED

No.

IN THE

SUPREME COURT semana

OF THE UNITED STATE

OCTOBER TERM, 1987

{

| JAN 26 Jog8

H-CHH ASSOCIATES, doing business as PLAZA

PASADENA, and HAHN PROPERTY MANAGEMENT

CORPORATION,

Petitioners,

vs.

CITIZENS FOR REPRESENTATIVE GOVERNMENT,

doing business as PASADENA CITIZENS FOR

REPRESENTATIVE GOVERNMENT, DALE L.

GRONEMEIER, CHRISTOPHER A. SUTTON, and

OZRO ANDERSON,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

SECOND DISTRICT, DIVISION ONE

THOMAS J. LEANSE

Counsel of Record

JERALYN B. KELLER

CHERYL A. INGRAM

PEPPER, HAMILTON & SCHEETZ

444 South Flower Street, 19th Floor

Los Angeles, California 90017

(213) 688-5600

Counsel for Petitioners

H-CHH ASSOCIATES doing business as

PLAZA PASADENA and HAHN

PROPERTY MANAGEMENT CORPORATION

Publishing and Graphic Electronic Services, Inc. (PAGES) / (213) 474-7355

|e

QUESTION PRESENTED

In Robins v. PruneYard Shopping Center, 23 Cal.3d

899, 153 Cal.Rptr. 854, 592 P.2d 341 (1979), aff'd sub

nom. PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), the California Supreme Court ruled that

individuals could exercise certain rights protected by

the California Constitution at privately owned shopp-

ing centers subject to rules reasonably adopted to

assure that the constitutionally permitted activities do

not interfere with normal business operations. In this

case of first impression, the California Court of Appeal

imposed the same “least restrictive means” standard of

review applied to regulations enacted by governmental

entities to the time, place and manner rules adopted by

Petitioners in regulating activity on its private

property.

The question presented is:

“Whether application of the ‘least restrictive means’

standard to time, place and manner rules promulgated

in good faith by the management of a privately-owned

shopping center results in a taking without just

compensation in violation of the private property

owners’ rights under the Fifth and Fourteenth

Amendments?”

LIST OF PARTIES AND RULE 28.1 LIST

Petitioners H-CHH Associates, doing business as

Plaza Pasadena, and Hahn Property Management

Corporation were plaintiffs, cross-defendants, respond-

ents, and cross-appellants below. Petitioner H-CHH

Associates is a California limited partnership with

Ernest W. Hahn, Inc. and Pasadena Mall, Inc. as

general partners, and Ernest W. Hahn, Inc. as a limited

partner. Petitioner Hahn Property Management Cor-

poration is a wholly owned subsidiary of Ernest W.

Hahn, Inc.

Respondents Citizens for Representative Govern-

ment, Dale L. Gronemeier, Christopher A. Sutton and

Ozro Anderson were defendants, cross-complainants,

appellants and cross-respondents below.

Ernest W. Hahn, Inc., Patti K. Maude, City of

Pasadena, Pasadena Redevelopment Agency and

Pasadena Community Development Commission were

also named as cross-defendants below.

TABLE OF CONTENTS

Page

FRR. MPMMEIEEEE EEE? « seccecsccccnccecccesevocsescescccscnes i

LIST OF PARTIES AND RULE 28.1 LIST ..... ii

TE EERIE IED cdccceseccccsocccrsescsccsccccees Vv

a scesnvnenenoniaavensccscen 1

IT oi scssiienesinlacnntseannenesencsonsaeastcssencssccee 2

CONSTITUTIONAL PROVISIONS

ERE 3

STATEMENT OF THE CASE .................cccceceseees +

REASONS FOR GRANTING THE WRIT ...... 12

A. There Is No Constitutional Basis For

Imposing A Least Restrictive Means

Test To Evaluate Time, Place and

Manner Rules and Policies Of A

Privately Owned And Managed

IIE EIEN, | srcnnseescsenstsnnsanstbncscccoccosconnees 13

B. To Impose The Least Restrictive

Means Test When Scrutinizing The

Time, Place And Manner Rules Of A

Privately Owned And Managed

Shopping Center Constitutes A Taking

Without Due Process And Just

ER Sr RE 20

CONCLUSION ....... Sit ciicsaehisceldaisidhindbipibniiiciaknainniintden 26

APPENDIX A

Opinion and Judgment of Court of

SITTIN | ci siacisisaqnbabbanubebindetmesensantinqnieenacenneerennnen Al

—

APPENDIX B

Order Denying Rehearing by Court of

SE Mites acecinintadieenittiesiincthdiiniditisinnninbinaneiies Bl

APPENDIX C

Order Denying Petition for Review by

California Supreme Court .............cccccsceeeeees Cl

APPENDIX D

Temporary Restraining Order by Trial

TAvUUIITE cihiihihivstbniciapnaseiiedipndeiaeaanitiabiainanabdemiatatiintoon D1

APPENDIX E

Preliminary Injunction by Trial Court ..... El

TABLE OF AUTHORITIES

Cases

Adderly v. Florida,

SRS TI. FO CAGED) cectncctsseniinscnvcsrcsscscsccrccssccess 25

Alderwood Associates v. Washington

Environmental Council,

96 Wash. 2d 230, 635 P.2d 108 (1981) .... 16

Alternatives for California Women Inc. v.

County of Contra Costa,

145 Cal.App.3d 936, 193 Cal.Rptr. 384

CED: cccecisisilintctstintiibinaincnntinstnsenanugconsinsasconccacssce 14

Armstrong v. United States,

BG. SEG. A Gy setetecsenecccccscccsccenstsascssscasees 22

Burton v. Wilmington Parking Authority, ;

DO BE Fe COGS tctincncessncccsensmnenescesencaronness 8

Diamond v. Bland,

11 Cal. 3d 331, 521 P.2d 460, 113

CTE: GR GE cittettcsereesteristeresconcesennece 7, 8

H-CHH Associates v. Citizens for

Representative Government,

193 Cal.App.3d 1193, 238 Cal.Rptr.

BAL (IDBA) . scorcsecisnnnssssnccadnscncesacosccseocsccecsss passim

Hazelwood School District v. Kuhlmeier,

US , 88 Daily Journal D.A.R.

564 (January 13, 1988) ...........ssseeees 13, 14, 19

Heffron v. International Society for Krishna

Consciousness, Inc.,

SEE Wale Ne CUTIE D btcstnctsincsnnnmnainncianiannnnenians 17

In re Hoffman,

67 Cal.2d 845, 434 P.2d 353, 62

Se IED cennneccntecsctsinboocness a 8

Hudgens v. N.L.R.B.,

a 15

International Society for Krishna

Consciousness, Inc. v. New Jersey

Sports and Exposition Authority,

691 F.2d 155 (3d Cir. 1982) ......... 18, 19, 25

Kaiser Aetna v. United States,

ea 2 RC 22

Lehman v. City of Shaker Heights,

eee 19, 23

Lloyd Corp. v. Tanner,

BE Se ae a ee 25

Loretto v. Teleprompter Manhattan CATV

Corp.,

SSS US. SED CUSED cececencttsessenes 12, 22, 23

Marsh v. Alabama,

ok SR ern 15

National Labor Relations Board v. Babcock

& Wilcox Co.

EE de 16

Nollan v. California Coastal Commission,

U.S , 107 S.Ct. 3141 (1987) ...... 12, 24

Pennsylvania Coal Co. v. Mahon,

EE AEE Se 12

Perry Education Association v. Perry Local

Educators’ Association,

eS kee 11, 12, 18

PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) .ncccceccccereeceserecennenees passim

Robins v. PruneYard Shopping Center,

23 Cal. 3d 899, 592 P.2d 341, 153

Cal.Rptr. 854 (1979) aff'd, 447 US. 74

(1980) ....ccccccsserssrcersereesensersessssssrsnssnssnsensers passim

Shad Alliance v. Smith Haven Mall

66 N.Y.2d 496, 488 N.E.2d 1211, 498

N.Y.S.2d 99 (1985) ...ccccccsscsrrccrscerssessssresesresees 15

Spiritual Psychic Science Church v. City of

Azusa,

39 Cal.3d 501, 703 P.2d 1119, 217

Cal. Rptr. 225 (1985) ........ccsscsserssserserersenensenees 8

United States v. O’Brien,

i ccansctsssnnnneccee <

United States Postal Service v. Council of

Greenburgh Civic Association,

453 U.S. 114 (1981) ....c....cccccccccoscrccesericeessrees 18

Western Pennsylvania Socialist Workers 1982

Campaign v. Connecticut General Life

Insurance Company,

$12 Pa. 23, 515 A.2d 1331 (1986) .............. 25

Constitutions

California Constitution

Article 1, Section 2 ..........cccccccccccccsccccerercessssses 3

Article 1, Section 3 ................0ccccccccseesssersssess 4

United States Constitution

Pram VY ccccccencscesccscecccccccccnseseeces 3, 12, 26

Amendment XIV, Article 1 ............. 3, 12, 26

—viii—

Miscellaneous

Brennan, State Constitutions and the

Protection of Individual Rights, 90

Harv. L. Rev. 489 (1977) .....c.ccccccccceeees 16, 17

Williams, In the Supreme Court’s Shadow:

Legitimacy of State Rejection of

Supreme Court Reasoning and Result, 35

relics Oe BE CRUD ctcmceccececnscenscessnencessecs 17

In the

Supreme Court

of the United States

OCTOBER TERM, 1987

H-CHH ASSOCIATES, doing business as PLAZA

PASADENA, and HAHN PROPERTY MANAGEMENT

CORPORATION,

Petitioners,

CITIZENS FOR REPRESENTATIVE GOVERNMENT,

doing business as PASADENA CITIZENS FOR

REPRESENTATIVE GOVERNMENT, DALE L.

GRONEMEIER, CHRISTOPHER A. SUTTON, and

: OZRO ANDERSON,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

SECOND DISTRICT, DIVISION ONE

Petitioners H-CHH Associates and Hahn Property

Management Corporation respectfully pray that a writ

of certiorari issue to review the judgment and opinion

of the California Court of Appeal, Second District,

Division One, entered in the above-entitled proceeding

on July 28, 1987.

OPINIONS BELOW

The opinion of the California Court of Appeal,

Second District, Division One is reported at 193

Cal.App.3d 1193, 238 Cal.Rptr. 841, and is reprinted

in the appendix hereto, pp. A1-A46, infra. The order of

the California Court of Appeal denying the petition for

rehearing has not been reported and is reprinted in the

appendix hereto, p.Bl, infra. The order of the

California Supreme Court denying review after

judgment by the Court of Appeal has not been

reported, and is reprinted in the appendix hereto,

p. Cl, infra.

The temporary restraining order and the preliminary

injunction entered by the Superior Court of California

for the County of Los Angeles (Hon. Jack T. Ryburn

and Hon. Warren H. Deering presiding, respectively)

are reprinted in the appendix hereto, pp. D1-D6 and

pp. E1-E4, infra.

JURISDICTION

Petitioners commenced this action in the Superior

Court of California, for the County of Los Angeles,

seeking injunctive and declaratory relief. Respondents

filed a cross-complaint seeking injunctive relief and

damages. On December 23, 1985, Judge Ryburn issued

Petitioners’ requested temporary restraining order. On

January 10, 1986, Judge Deering issued a preliminary

injunction which was substantially the same as the

earlier temporary restraining order.

Respondents appealed from the entry of injunctive

relief and Petitioners cross-appealed. On appeal,

Petitioners argued that property rights guaranteed by

the Fifth and Fourteenth Amendments to the United

States Constitution supported the lower court’s

enforcement of the time, place and manner rules

adopted by Petitioners in response to Robins y.

PruneYard Shopping Center, 23 Cal.3d 899, 592 P.2d

341, 153 Cal.Rptr. 854 (1979).

On July 28, 1987, the California Court of Appeal

reversed the trial court’s entry of the preliminary

injunction and affirmed the entry of the temporary

restraining order. On August 27, 1987, the Court of

Appeal summarily denied Petitioners’ request for

rehearing. On October 29, 1987, the California Su-

preme Court denied Petitioners’ Petition for Review.

The jurisdiction of this Court to review the judgment

of the California Court of Appeal is invoked under 28

U.S.C.§ 1257(3).

CONSTITUTIONAL PROVISIONS

INVOLVED

United States Constitution, Amendment V, which

provides:

No person shall ... be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

United States Constitution, Amendment XIV, which

provides:

No State shall ... deprive any person of life,

liberty, or property, without due process of

law;

California Constitution, Article One, Section Two,

which provides:

Every person may freely speak, write and

publish his or her sentiments on all subjects,

being responsible for the abuse of his right. A

law may not restrain or abridge liberty of

speech or press.

California Constitution, Article One, Section Three,

which provides:

The people have the right to instruct their

representatives, petition government for re-

dress of grievances, and assemble freely to

consult for the common good.

STATEMENT OF THE CASE

Petitioners H-CHH Associates and Hahn Property

Management Corporation (collectively referred to as

the “Shopping Center”) own and manage a shopping

center in Pasadena, California known as “Plaza

Pasadena.” The Shopping Center, surrounded by

public sidewalks, contains approximately 600,000

square feet of retail space, and accommodates

approximately 125 commercial tenants. The two-story

structure is constructed in airspace, purchased by

Petitioner H-CHH Associates over an underground

parking garage owned by the City of Pasadena and

leased to the Shopping Center and other businesses.

The Shopping Center is located in downtown

Pasadena, immediately adjacent to the Pasadena Civic

Auditorium and is one block from City Hall.

On December 19, 1985, respondent Dale L. Grone-

meier, a member and representative of Respondent

Citizens for Representative Government (“CRG”)

contacted -Patti K. Maude, the manager of the

Shopping Center. He stated that CRG wanted to use

the Shopping Center to distribute leaflets and solicit

petition signatures. Maude supplied him with a

registration form and a copy of the Shopping Center’s

“Rules of Political Petitioning on Shopping Center

Property” (See H-CHH Associates v. Citizens for

Representative Government, 193 Cal.App.3d 1193, 1226,

238 Cal.Rptr. 841, 862 (1987)) and explained that the

Shopping Center did not allow political activity during

the holiday season. Despite this policy, Gronemeier

informed Maude that CRG intended to solicit

signatures at the Shopping Center on Monday,

December 23, 1985.

Like those of many other California shopping

centers, the Shopping Center’s “Rules for Political

Petitioning on Shopping Center Property” were

drafted with the admonitions of Robins v. PruneYard

Shopping Center, 23 Cal.3d 899, 592 P.2d 341, 153

Cal.Rptr. 854 (1979) in mind. The rules apply to alt

persons engaging in political activity within the

Shopping Center and make no distinction based on the

content or subject matter of the proposed communica-

tion. The rules and policies adopted by the Shopping

Center merely regulate the time, place, and manner of

the activity, so as to minimize disruption of business

within the Shopping Center. The written rules set out

general guidelines applicable to all properties managed

by Petitioner Hahn Property Management Company in

California. The policies of the Shopping Center are

more specifically tailored to the individual shopping

center and are based on the professional judgment and

experience of the Shopping Center’s manager in

reducing customer inconvenience.

On December 23, 1985, anticipating that the pro-

posed activity would disrupt the holiday shoppers, the

Shopping Center filed a verified complaint for

injunctive and declaratory relief to prevent CRG’s

threatened and unauthorized activity. The Shopping

Center sought and obtained a temporary restraining

order requiring respondents to comply fully with the

Shopping Center’s rules and regulations regarding

political activity. CRG filed a cross-complaint to

enjoin the Shopping Center from enforcing its rules

and for damages but were not granted any temporary

relief.

Thereafter, CRG applied to the Shopping Center for

permission to collect signatures on political petitions

on January 2, 1986. Permission was granted on the

condition that CRG comply with the Shopping

Center’s rules and regulations.

On January 10, 1986, Judge Deering issued a

preliminary injunction which required compliance with

most of the rules enforced by the temporary restraining

order.!

CRG appealed from the entry of the temporary

restraining order and the preliminary injunction,

arguing that the restraining order and injunction, to

the extent they enforced the Shopping Center’s_rules

and _ policies, impermissibly restricted CRG’s

California constitutional rights. The Shopping Center

cross-appealed, arguing that those portions of its rules

which were not enforced were reasonable and

necessary to protect its Fifth Amendment property

! The trial court granted Respondents the right to “approach”

patrons of the shopping center and also allowed Respondents the

right to solicit money from the patrons of .the shopping center.

Neither activity had been permitted by the Plaza Pasadena rules or

the temporary restraining order.

rights and that those rules and policies which were

enforced were reasonably designed to protect its

property rights and the property rights of its tenants.

The California Court of Appeal ruled that the trial

court erred “to a significant extent” in issuing the

preliminary injunction. H-CHH Associates, 193

Cal.App.3d at 1206, 238 Cal.Rptr. at 848. After

tracing the evolution of California’s free speech

doctrine from Diamond v. Bland, 3 Cal.3d 653, 477 P.2d

733, 91 Cal.Rptr. 501 (1970) (Diamond I) to Robins v.

PruneYard Shopping Center, 23 Cal.3d 899, 592 P.2d

341, 153 Cal.Rptr. 854 (1979), the Court of Appeal

emphasized that:

[plroperty rights must be “redefined in

response to a swelling demand that ownership

be responsible and responsive to the needs of

the social whole. Property rights cannot be

used as a shibboleth to cloak conduct which

adversely affects the health, the safety, the

morals or the welfare of others.”

H-CHH Associates, 193 Cal.App.3d at 1206, 238

Cal.Rptr. at 849 (citing Robins, 23 Cal.3d at 906-07,

153 Cal.Rptr. at 852).

The Court of Appeal then stated that restrictions on

speech, though justified by the existence of

“countervailing substantial or compelling interests,”

must be “narrowly drawn”. H-CHH Associates, 193

Cal.App.3d at 1207, 238 Cal.Rptr. at 850. The Court of

Appeal further noted that, in this case, the shopping

center owner’s only “rights of substance” are “freedom

from disruption of normal business operations and

freedom from _ interference with customer

convenience”. H-CHH Associates, 193 Cal.App.3d at

1208, 238 Cal.Rptr. at 850.

To preserve these rights, the court applied a strict

reasonableness standard, citing Spiritual Psychic Sci-

ence Church vy. City of Azusa, 39 Cal.3d 501, 516, 703

P.2d 1119, 1127-28, 217 Cal.Rptr. 225, 233 (1985),

which employed the “least restrictive means” analysis

articulated in United States v. O’Brien, 391 U.S. 367

(1968). By adopting this standard, the Court of Appeal

tacitly rejected PruneYard’s ruling that a shopping

center owner may “restrict expressive activity by

adopting time, place and manner regulations that will

minimize any interference with its commercial

functions.” PruneYard, 447 U.S. at 83 (emphasis

added).

The Court of Appeal applied what it called “the

traditional analysis of time, place and manner

regulations” in this case because it viewed the Shopping

Center as a “joint participant” in a public enterprise,

Burton v. Wilmington Parking Authority, 365 U.S. 715,

725 (1961), rather than a privately owned “‘quasi-

public” forum like those in In re Hoffman, 67 Cal.2d

845, 434 P.2d 353, 62 Cal.Rptr. 97 (1967), Diamond I,

supra, 11 Cal.3d 331, and Robins, supra, 23 Cal.3d 899.2

H-CHH Associates, 193 Cal.App.3d at 1208, 238

Cal.Rptr. at 851. The Court of Appeal decided that the

Shopping Center was more akin to public property

than private property because the Shopping Center is

2 The premises in Hoffman was a privately owned railway

station and the premises in Diamond I, supra and Robins, supra

were privately owned shopping centers. In each of those cases the

courts were dealing with prohibition of permissible activity rather

than regulation of permissible activity.

constructed over a publicly owned garage on publicly

owned land despite the trial court’s factual determina-

tion that the Shopping Center is indeed private

property. H-CHH Associates, 193 Cal.App.3d at 1209,

238 Cal.Rptr. at 851.

The Court of Appeal then applied the “least

restrictive means” standard to the challenged rules and

policies.

For example, the Court determined that the standard

which the Shopping Center management used to

determine whether or not a group would be allowed to

utilize the Shopping Center was unconstitutionally

broad, conferring excessive discretion in the Shopping

Center management. The rule permitted the Shopping

Center management to reject any activity which, in

their opinion, would “adversely affect the shopping

center environment, atmosphere or image.” H-CHH

Associates, 193 Cal.App.3d at 1211, 238 Cal.Rptr. at

852.

The Court of Appeal viewed many of the Shopping

Center’s rules and policies as general and subjective

and articulated “objective” standards for screening

applications. H-CHH Associates, 193 Cal.App.3d at

1212, 238 Cal.Rptr. at 853.

The Court also found the Shopping Center’s policy

of designating the Shopping Center’s largest courtyard

area, Garfield Court, as the site for political activity

unconstitutional under either of two interpretations of

the policy. First, if the rule was construed to mean that

only Garfield Court would be designated, regardless of

3 See H-CHH Associates, 193 Cal_App.3d at 1228, 238 Cal.Rptr.

at 865.

a a

alternatives within the Shopping Center’s common

area, then the policy was defective because ‘“{a]

regulating authority may not adopt rules which

preclude the exercise of free expression in an

appropriate place, even on the ground another place is

available.” H-CHH Associates, 193 Cal.App.3d at 1213,

238 Cal.Rptr. at 853. If the policy was read to express a

mere preference for Garfield Court, it was also

constitutionally defective because it conferred

“unbounded discretion” on the Shopping Center

management to select an alternative site if Garfield

Court is unavailable. Id.

The Court further stated that a constitutional rule

could take into account the effects of special activities

and displays in the Plaza, such as those at the Shopping

Center in December, 1985: a large Christmas tree, a

place for Santa Claus to sit, an automobile raffle, a

gingerbread house display and auction, booths for

giftwrapping, mailing and gift certificates, a toy

collection facility, and various storybook displays.

The Court reached similar conclusions regarding the

remaining rules it found to be unconstitutional.

Typically, the Court’s criticisms and proffered

substitutions focused on any aspect of the Shopping

Center’s rules which permitted the Shopping Center

management and marketing staff to exercise their

professional judgment in assessing the impact of the

desired activity on the commercial functions of the

Shopping Center.*

* For example: Rule 10 prohibits use of musical or sound

equipment in a manner which “in the reasonable belief of the

central management office, may be disturbing or offensive.” a

a. a

Because it determined that a majority of the

Shopping Center’s policies were unconstitutional, the

Court of Appeal ruled that the trial court’s entry of the

preliminary injunction was erroneous. H-CHH Associ-

ates, 193 Cal.App.3d at 1219, 238 Cal.Rptr. at 858. In

view of increased pedestrian traffic and special

activities and displays at the Shopping Center during

the holiday period, the Court of Appeal affirmed the

entry of the temporary restraining order, but cautioned

that the holiday ban on speech activity should be

expressed in a written rule which specified the effective

dates. ef

Dissenting Justice Hanson took issue with the

standard of review applied by the majority. He first

observed that in federal cases, ‘‘ [t]he existence of a

right of access to public property and the standard by

which limitations upon such a right must be evaluated

differ depending on the character of the property at

issue.’ ”” H-CHH Associates., 193 Cal.App.3d at 1223-

1224, 238 Cal.Rptr. at 861 (citing Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 44 (1983)).

He concluded that the standard of review applied by

the majority was inappropriate, since the restrictions at

issue governed use of private, not public land, and were

CHH Associates, 193 Cal.App.3d at 1217, 238 Cal.Rptr. at 856.

The Court found that this rule vested unconstitutional discretion

in the Shopping Center management.

Rule 13, which permits Plaza Pasadena management to decide

whether “the measure of the proposed political petitioning activity

creates a risk of injury or damage to personal property, and ...

[whether] such a risk warrants special insurance protection,” was

also found to be unconstitutionally arbitrary. H-CHH Associates,

193 Cal_App.3d at 1218-1219, 238 Cal.Rptr. at 857.

—

not an “ordinance or statute but ‘rules’ obviously

prepared, in good faith with PruneYard in mind, by

property owners who operate a mall for commercial

purposes.” H-CHH Associates., 193 Cal.App.3d at 1225,

238 Cal.Rptr. at 861.

REASONS FOR GRANTING THE WRIT

By applying the same standard of review to time,

place and manner restrictions utilized by private

property owners to regulate speech on private property

as is applied to governmental restrictions controlling

speech activity on public property, the California Court

of Appeal wholly discounted the federally guaranteed

property rights of the Shopping Center. Whatever

virtues of simplicity or convenience favor the

application of the single standard to all situations,

private or public, the application of a single standard so

significantly dilutes the Fifth and Fourteenth Amend-

ment protections of private property as to render them

meaningless. Review by this Court is necessary to

remedy this injustice and to prevent further erosion of

the protection of the Fifth Amendment, for “({w]hen

this seemingly absolute protection is found to be

qualified . . . , the natural tendency of human nature is

to extend the qualification more and more until at last

private property disappears.” See Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393, 415 (1922) (Holmes, J.).

Also, this Court’s rulings in such cases as Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982), Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37 (1983), and Nollan v.

California Coastal Commission, 107 S.Ct. 3141 (1987),

cast serious doubt on the continuing validity of

—13—

PruneYard. Thus, both the doctrine and its appliction

require review by this Court.

A. There Is No Constitutional Basis For Imposing

A Least Restrictive Means Test To Evaluate

Time Place And Manner Rules And Policies

Of A Privately Owned And Managed Shopping

Center.

In PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980), this Court ruled that the California Supreme

Court’s ruling in Robins v. PruneYard Shopping Center

did not violate federally guaranteed property rights,

because the shopping center was free to “restrict

expressive activity by adopting time, place, and manner

regulations that will minimize any interference with its

commercial functions.” PruneYard, 447 U.S. at 83.

Thus, the owner’s private property rights were not

infringed by the California Supreme Court’s grant of

access rights to members of the public at the expense of

the private property owner because the private

property owner could regulate the access.

However, the Shopping Center loses its ability to

protect its economic interests when it loses the ability

to minimize the impact of political activities upon its

particular business. Application of the same strict

“least restrictive means” standard of review to the

Shopping Center’s rules as is applied to governmental

restrictions is, therefore, inappropriate, and, insofar as

it violates this court’s ruling in PruneYard, unconstitu-

tional.?

+ This is supported by the Court's recent decision in Hazelwood

_— =

Plaza Pasadena is not unique. Many similar

shopping centers and malls, owned and operated by

private entities for commercial, not altruistic, purposes,

must delineate standards by which to “minimize any

interference with ... commercial functions.” See

PruneYard, 447 U.S. at 83. Application of the “least

restrictive means” test to policies adopted by shopping

center owners to regulate political activity within the

centers instead minimizes the ability of the private

property owner to exercise any control over what

political activity will be conducted on his property and

to reduce its impact.

This level of stringent review is normally used in

analyzing statutes and ordinances relating to First

Amendment activities enacted by governmental enti-

ties, see, e.g, Alternatives for California Women, Inc. v.

County of Contra Costa, 145 Cal.App.3d 436, 193

Cal.Rptr. 384 (1983) (county ordinance prohibited

door-to-door solicitation between 7 p.m. and 8 a.m.). In

such situations, application of the “least restrictive

means” standard of review to time, place and manner

regulations is appropriate for at least two reasons.

School District v. Cathy Kuhimeier, US , 88 Daily Journal

DA.R. 564 (January 13, 1988)) where the Court expressly rejected

a suggestion that the school officials’ control of the student

newspaper be limited by written regulations or objective standards.

Hazelwood US , 88 Daily Journal DA.R. 564 n. 6. The

Court, in explaining the standard to be applied to the student

newspaper, stated that unless facilities are opened “for the

indiscriminate use by the general public” then reasonable

restrictions on First Amendment rights are permitted. The Court

specifically overruled the Eighth Circuit's holding that regulations

were limited to those ‘necessary to avoid materia! and substantial

inference.’ "

TT

—

First, given the breadth of governmental authority

and the strength which the government is able to bring

to bear against the individual, unless speech restric-

tions are narrowly tailored to meet a significant

government interest, a very real possibility for

complete censorship exists. See Hudgens v. NLRB, 424

U.S. 507, 541-42 (1976) (Marshall, J., dissenting). In

contrast to the pervasive influence of governmental

free speech restriction, even a complete prohibition of

political speech activity in a shopping center would not

effectively foreclose all lively discourse.®

Secondly, the “‘least restrictive means” standard may

be appropriately applied in the context of regulations

promulgated by government because it is not necessary

to preserve the constitutional rights of the governmen-

tal entity. Government is entitled to make use of the

police power for the common good, but there are no

governmental rights which must be recognized and

preserved in striking a balance between the public’s

free speech rights and the government’s interest in the

exercise of that power. Thus, requiring the government

to make an affirmative showing that its interest is

substantial and cannot be achieved by alternative, less

drastic means merely resolves conflicts between

individual speech rights and a scheme which ultimately

® Even if all political activity were excluded from the Plaza

Pasadena premises, that ban would not prevent discourse in other

truly public areas. This contrasts sharply with the company town

situation discussed in Marsh v. Alabama, 326 U.S. 501 (1946),

which differs both “structurally and functionally” from a

shopping center. See Shad Alliance v. Smith Haven Mall, 66 N.Y 2d

496, 506 n. 7, 488 N.E.2d 1211, 1217 n. 7, 498 N.Y.S. 2d 99, 105

n. 7 (1985).

exists for and inures to the public good. See Alderwood

Assocs. v. Washington Envioronmental Council, 96 Wash.

2d 230, 635 P.2d 108, 120 (1981) (“{T]he police power

of the state is an attribute of its sovereignty, an

essential element of the power to govern. The power

exists without declaration, and the only limitation upon

it is that it must reasonably tend to promote some

interest of the state, and not violate any constitutional

mandate.””)

An accommodation between the rights of individu-

als, on one hand, and private property rights of other

individuals on the other hand necessarily gives rise to

different concerns.’ No longer is it the goal to

minimize the government’s ability to restrict debate

and to maximize exercise of free speech rights. Instead,

federal protection of property rights requires that an

accommodation between speech and property rights be

reached which preserves the rights of each individual,

particularly where there has been no showing that the

property owner has engaged in content-based discrimi-

nation. Application of a least restrictive means test in

this context elevates the speech rights of one individual

over the property rights of another by requiring the

property owner to make a significant showing in

support of his efforts to protect those rights. Although

a state is free to elevate certain rights above others

under the state constitution, see generally Brennan,

State Constitutions and the Protection of Individual

7 This is similar to the ‘{a]ccommodation between employees’

§7 rights and employers’ property rights,” which “must be

obtained with as little destruction of one as is consistent with the

maintenance of the other.”’ National Labor Relations Board v.

Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

_; =

Rights, 90 Harv. L. Rev. 489 (1977); Williams, In the

Supreme Court’s Shadow: Legitimacy of State Rejection

of Supreme Court Reasoning and Result, 35 S.C.L. Rev.

353 (1984), a state may not do so by compromising

federally protected rights. See H-CHH Associates, 193

Cal.App.3d 1222, 238 Cal.Rptr. at 860 (Hanson, J.,

dissenting) (‘So long as a state respects the federal

constitutional minimum, it may define the maximum

scope of constitutional rights.””)

The particular nature of the facility at issue here,

although given relatively minor consideration below,

and indeed, by the Robins and PruneYard courts, must

be a factor in developing a formula for balancing

speech and property rights which compromises neither.

See Heffron v. International Society for Krishna

Consciousness, Inc., 452 U.S. 640, 650-51 (1981)

(‘{clonsideration of a forum’s special attributes is

relevant to the constitutionality of a regulation since

the significance of the governmental interest must be

assessed in light of the characteristic nature and

function of the particular forum involved.”).®

Even cases dealing with publicly owned property

recognize that the “dedicated use” must be considered

in evaluating the appropriateness of a particular

restriction. Government may impose the least restric-

8 No one would realistically contend that CRG or any one has

the right to go into either the Broadway Department store or the

J.C. Penney store at the Shopping Center and approach people

with a petition or solicit money from them. The expectation is

equally applicable to the other tenants of the Shopping Center.

Why then should the manager of- the Mall be restricted like the

Mayor of the City or the Police Chief in limiting the activities of

people who want to use the facilities without paying rent?

pe |

tions on places like streets and parks.? Other property

which the state has opened for speech activity is subject

to somewhat greater regulation by using reasonable

time, place and manner restrictions. Perry Education

Association, 460 U.S. at 46.

Where public property has not by tradition or

designation been a forum for public communication, a

governmental entity may regulate by use of reasonable

time, place and manner rules. The State may

reserve the forum for its intended purposes,

communicative or otherwise, as long as the

regulation on speech is reasonable and not an

effort to suppress expression merely because

public officials oppose the speaker’s view.

... “ [T]he State, no less than a private owner

of property, has power to preserve the

property under its control for the use to which

it is lawfully dedicated.”

Perry Education Association, 460 U.S. at 46 (emphasis

added) (citing United States Postal Service v. Council of

Greenburgh Civic Association, 453 U.S. 114, 129-130

(1981)). In International Society for Krishna Conscious-

ness, Inc. v. New Jersey Sports & Exposition Authority,

9 Streets and parks have traditionally been used for public

debate, and “{i]n these quintessential public forums, the

government may not prohibit all communicative activity” unless it

can “show that its regulation is necessary to serve a compelling

state interest and that it is narrowly drawn to achieve that end.

... The State may also enforce regulations of the time, place, and

manner of expression which are content-neutral, are narrowly

tailored to serve a significant government interest, and leave open

ample alternative channels of communication.” Perry Education

Association, 460 US. at 45.

—,

691 F.2d 155 (3d Cir. 1982), the Third Circuit

discussed the “critical” distinction between public

forums and publicly owned facilities which are so

dedicated to particular uses that they are not

designated as public forums:

First Amendment activity in a public forum

may be restricted only by reasonable time,

place or manner regulations that serve a

significant governmental interest and leave

open ample alternative channels for commu-

nication. ... Governmental restrictions on a

non-public forum are not evaluated by this

standard. ...

International Society for Krishna Consciousness, 691

F.2d at 160 (citations omitted); see also Lehman y. City

of Shaker Heights, 418 U.S. 298, 312 (1974) (“...

there are some places which are so clearly committed

to other purposes that their use as public forums for

communication is anomalous.”’)

Thus, publicly owned facilities which have been

dedicated to a particular use do not become public

forums simply because they are used for the

communication of ideas. Otherwise, “display cases in

public hospitals, libraries, office buildings, military

compounds, and other public facilities, immediateiy

would become Hyde Parks open to every would-be

pamphleteer and politician. This the Constitution does

not require.” Perry Education Association, 460 U:S. at

49 n. 9. See also Hazelwood School District, US

88 Daily Journal D.A.R. 564 (January 13, 1988).

Like a hospital, library, or office building, Plaza

Pasadena is dedicated to a particular use. As a

commercial enterprise, it is intended to produce a

ines

profit for its owners while providing a service —

convenient shopping — to its patrons. Also, Plaza

Pasadena is contractually obligated to its tenants to

maximize the profitability of the facility, and, to fulfill

this obligation, must create an atmosphere which

allows easy, convenient and pleasant shopping for

consumers.

Plaza Pasadena is privately owned rather than

publicly owned. Rules governing conduct on private

property dedicated to a particular use (in this case,

commercial), should be judged by a less stringent

standard than governmentally enacted statutes and

ordinances — not a more stringent standard.

B. To Impose The Least Restrictive Means Test

When Scrutinizing The Time, Place And

Manner Rules Of A Privately Owned And

Managed Shopping Center Constitutes A

Taking Without Due Process And Just

Compensation.

Decisions allowing access to privately owned

shopping centers for political speech impose significant

administrative and economic burdens on owners of

facilities like the Shopping Center.!° To the extent the

10 First, the application and registration procedure, as set out by

the Court of Appeal below, requires the Shopping Center

management to consider numerous factors in determining whether

the particular application poses any particular problems which

must be accommodated, whether that particular application poses

any danger of conflict or confrontation with another group which

is scheduled at the mall, and whether the signs or visual aids to be

employed are unsuitable for use in the shopping center. Even after

Court of Appeal’s ruling requires that the Shopping

Center accommodate more than one group at any

particular time, that burden is multiplied.

Courts ruling on these issues have continually

discounted the simple fact that owners of centers such

as the Shopping Center are engaged in business. That

this business creates a facility which the public may use

to shop with ease and convenience does transform it

into a public forum for speech purposes. Resources of

the Shopping Center which are diverted to accommo-

dating political activities on the premises necessarily

interfere with the Shopping Center’s commercial

effectiveness.

Thus, although PruneYard held that the California

Supreme Court’s decision in Robins did not effect a

taking without just compensation in violation of the

Fifth and Fourteenth Amendments, that is precisely

what has occurred in subsequent applications of

Robins. It is well established that: =

a permanent physical occupation is a govern-

ment action of such a unique character that it

is a taking without regard to other factors that

a court might ordinarily examine.

the group has gained access to the mall, management has a

continuing obligation to monitor the activity of the group to

determine that the type or size of the activity has not obstructed

the flow of pedestrian traffic or resulted in congestion, to assure

that any musical instrument or sound reproduction device is not

impinging on the hearing and peace of the general public, to

foreclose abuse of the facility by the group once access has been

gained and to be certain that shopping center patrons are not being

harassed or accosted.

—

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 432 (1982). PruneYard allows the State of

California to require privately owned shopping centers

to accept and accommodate tierwee activity on a

permanent and ongoing basis.!! Application of the

least restrictive means standard increases the already

substantial economic burden imposed upon the

Shopping Center. Rules such as those recommended by

the California Court of Appeal permit a physical

intrusion — either intermittent or continuous — which

is more permanent than temporary, and imposes a

significant burden on resources which might profitably

be directed toward the Shopping Center’s primary

concern — its commercial and financial well being.

PruneYard and its progeny require an owner of private

property, who earns a living by providing a convenient,

practical shopping resource to the public, to provide

and maintain a safe, effective forum for public

discourse as well. Imposition of this duty “forces [the

Shopping Center] alone to bear public burdens”, a

service for which it should be compensated. See

PruneYard, 447 U.S. at 82-83 (citing Armstrong vy.

United States, 364 U.S. 40, 49 (1960)).

Recent decisions of this Court suggest that the

PruneYard doctrine should be reevaluated. In Loretto,

this Court ruled that the relatively minor physical

11 “T]he ‘right to exclude,’ so universally held to be a

fundamental element of the property right, falls within ... [the]

category of interests that the Government cannot take without

compensation. ... And even if the Government physically

invades only an easement in property, it must nonetheless pay just

compensation.” Kaiser Aetna v. United States, 444 U.S. 164, 179-80

(1979) (footnote omitted).

a, ,

intrusion effected by the permanent installation of

cable television equipment on the exterior of a

privately owned building was a taking for which the

government must give just compensation. See Loretto,

458 U.S. at 441. In so holding, the Court reaffirmed

that where governmental action results in “permanent

physical occupation of property, ... [the] cases

uniformly have found a taking to the extent of the

occupation, without regard to whether the action

achieves an important public benefit or has only

minimal economic impact on the owner.” See Loretto,

458 US. at 434-35. PruneYard was distinguished on the

basis that the physical invasion there was not

permanent. See Loretto, 458 U.S. at 434.

The physical invasion suffered by the Shopping

Center as a result of the PruneYard decision imposed

an economic burden as serious as that in Loretto.'* The

economic impact alone is sufficient to constitute a

taking, but is not determinative.

The crucial, and frequently dispositive distinction

drawn between the physical invasion permitted by

PruneYard and the physical intrusion in cases where

this Court has found takings is that the PruneYard

invasion has been categorized as temporary rather than

permanent. Indeed, the intrusion by any particular

group is temporary. But to characterize the require-

ment that a shopping center make its facilities available

12 As stated previously, the Shopping Center’s management

must spend a significant amount of time reviewing each

application and actively monitoring speech activity in the

Shopping Center. Additionally, political speech activity in the

Shopping Center has a certain, but perhaps unquantifiable negative

effect on sales at Plaza Pasadena. See Lehman 418 US. at 304.

Ba ‘ i

a

to individuals and political groups on a “‘least

restrictive means” basis as temporary rather than

permanent misperceives the nature of the imposition.

In fact, granting access to the Shopping Center’s

facility subject only to the least restrictive means of

regulation gives individuals and groups who want to

engage in political activity on the Shopping Center’s

property an easement for that purpose, similar to the

easement which this Court found was a taking in

Nollan vy. California Coastal Commission, __U.S_—_.,

107 S.Ct. 3141 (1987). In Nollan, the California Coastal

Commission conditioned the granting of a building

permit on acceptance of a public easement across the

Nollan’s beach-front property. This Court stated that a

“‘permanent physical occupation” has occurred “where

individuals are given a permanent and continuous right

to pass to and fro, so that the real property may

continuously be traversed, even though no particular

individual is permitted to station himself permanently

upon the premises.” See Nollan, U.S , 107 S.Ct.

at 3145.

Despite the inconsistency between WNollan and

PruneYard, Justice Scalia distinguished PruneYard,

Stating that the access in PruneYard was not

permanent, and the owner had already opened his

property to the public. Nollan, __U.S__.,, 107 S.Ct.

3145, n.1. This distinction over-simplifies the true

nature of the PruneYard-sanctioned intrusions on

private property as well as the nature of the invitation

which is extended by the shopping center to the public.

An invitation to the public to stroll, window shop, and

purchase goods is not tantamount to a general

invitation to use the shopping center for all purposes.

a

See Lloyd Corp. v. Tanner, 407 U.S. 551, 564 (1972). A

limited invitation to members of the public should not

convert a privately-owned commercial enterprise into a

public forum. As to public property, this Court has

stated that “(t]he State, no less than a private owner of

property, has power to preserve the property under its

control for the use to which it is lawfully dedicated.”

International Society for Krishna Consciousness, Inc.,

691 F.2d at 159 (citing Adderly v. Florida, 385 US. 39,

48 (1966)).

Consideration of both the purpose to which the

Shopping Center has been dedicated and the burdens

imposed by PruneYard in this context mandates a

reconsideration of PruneYard and its characterization

of shopping centers as public forums. Clearly, a

privately owned and managed shopping center like the

Shopping Center has been dedicated to a particular

purpose, which should be respected no less than the

purpose of a hospital, library, or sports arena. It may

be true that the modern shopping center is replacing

shopping districts in many areas.'? To equate a

13 “Both statistics and common experience show that business

districts, particularly in small and medium sized towns, have

suffered a marked decline. At the same time, shopping malls,

replete with creature comforts, have boomed. These malls have

begun to serve as social as well as commercial outlets for the

communities they serve. ... Members of the community have an

opportunity by chance or design to mix, meet and converse.

However, these social benefits are ancillary to the commercial

purpose of shopping malls and do not involve organized campaign

on particular issues by political or special interest groups. Law and

sociology are not coextensive.” Western Pennsylvania Socialist

Workers 1982 Campaign v. Connecticut General Life Insurance

Company, 512 Pa. 23, 33, 515 A.2d 1331, 1336 (1986) (emphasis

added).

= a

privately owned business venture with a city park for

speech purposes, however, ignores the principles

articulated in this Court’s previous decisions based on a

false distinction. Perpetuation of this false distinction

will inevitably lead to strained and illogical results;

indeed, it already has. Application of the “least

restrictive means” standard to regulations adopted in a

good faith effort to comply with Robins so effectively

derogates the Shopping Center’s prerogatives of

ownership that a taking without just compensation in

violation of the Fifth and Fourteenth Amendments is

effected.

Absent reconsideration and guidance from this

Court, commercial ventures such as the Shopping

Center face the prospect of ongoing litigation on these

issues, and the ultimate result that shopping centers

will cease operation as commercial entities and

become, instead, multipurpose exhibition halls operated

by the state.

CONCLUSION

For these reasons, this petition for certiorari should

be granted. The “least restrictive means” standard for

evaluating rules does not comport with this Court’s

holding in PruneYard and must be clarified. Addition-

ally, PruneYard, when considered along with this

=

* eo nih ates aul a lla

Court’s subsequent decisions, is an anamoly, and,

as applied, effectuates an unconstitutional taking

without justification.

Respectfully submitted,

THOMAS J. LEANSE

Counsel of Record

JERALYN B. KELLER

CHERYL A. INGRAM

PEPPER, HAMILTON & SCHEETZ

444 South Flower Street, 19th Floor

Los Angeles, California 90017

(213) 688-5600

Counsel for Petitioners

Dated: January 26, 1988

re

APPENDIX A

Opinion and Judgment of Court of Appeal

_

APPENDIX A

CERTIFIED FOR PUBLICATION

IN THE

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

H-CHH ASSOCIATES, 2d Civ. No. B019051

a California Limited

Partnership, dba PLAZA

PASADENA, and HAHN

PROPERTY MANAGE-

MENT CORPORATION,

a California Corporation,

(Superior Ct. No.

C580408)

COURT OF -PPEAL SECCAO 2ST.

FILED

Juu 28 1927

RCSEAT W. VALSOM _ _ Clemk,

Plaintiffs,

Respondents and

Cross-Appellants,

Deputy adem

v.

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, an

Unincorporated Assoc-

iation, dba PASADENA

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, DALE

L. GRONEMEIER,

i

4

cass <

lll i i i i i a a a a oe a a a a a

CHRISTOPHER A.

SUTTON, and

OZRO ANDERSON,

Defendants,

Appellants and

Cross-Respondents. )

)

APPEAL from orders of the Superior Court of Los

Angeles County. Jack T. Ryburn and Warren H.

Deering, Judges. Reversed in part and affirmed in part.

Gronemeier, Barker & MHuerta and Dale L.

Gronemeier, Nicholas George Rodriguez, Brenda J.

Penny, Christopher A. Sutton and Elbie J. Hickambot-

tom, for Defendants, Appellants and Cross-Respon-

dents.

Ball, Hunt, Hart, Brown and Baerwitz and Thomas

J. Leanse and Charles M. Gale, for Plaintiffs,

Respondents and Cross-Appellants.

Allen B. Grodsky, Robert B. Broadbelt, Antonette B.

Codero, Gary Williams and Paul Hoffman, for Amicus

Curiae American Civil Liberties Union of Southern

California.

INTRODUCTION

Defendants Citizens for Representative Government

and individual members thereof appeal from orders

granting a temporary restraining order and a

preliminary injunction to plaintiffs H-CHH Associates

and Hahn Property Management Corporation.

Plaintiffs cross-appeal from that portion of the order

which invalidates their rules and regulations proscrib-

. a whee t he gy

a

ing the solicitation of funds from or approaching

plaintiffs’ patrons.

STATEMENT OF FACTS

Plaintiffs own and operate privately an extensive

shopping center in downtown Pasadena known as

Plaza Pasadena. The two-story building complex

contains approximately 600,000 square feet of rental

space and caters to 125 commercial tenants. This area

surrounds a central courtyard running the length of

the mall interior. The area denominated ‘Garfield

Court” is approximately 100 feet wide; the remainder

of the courtyard is approximately 40 feet in width. The

Plaza occupies several square blocks along the city’s

major thoroughfare and has replaced, for the most

part, one of the city’s major shopping districts. It is

immediately adjacent to the Pasadena auditorium and

convention center and within one block of City Hall.

The city’s redevelopment agency financed three

underground parking garages extensively used by the

Plaza and for which the Piaza pays rental fees. There is

little access to the Plaza from public streets and the

vast majority of Plaza patrons gain entrance through

the city-owned parking garages. The land upon which

the Plaza stands is city-owned, acquired through the

exercise of its powers of condemnation.

On December 19, 1985, defendant Dale L. Grone-

meier (Gronemeier), a member and representative of

Citizens for Representative Government, approached

Patricia K. Maude (Maude), the manager of Plaza

Pasadena, expressing a desire to circulate leaflets and

gather petition signatures on Plaza property. Maude

supplied Gronemeier with a registration form devel-

oped by plaintiffs and a set of plaintiffs’ written

— owe

“Rules of Political Petitioning on Shopping Center

Property.” She also advised him that Plaza Pasadena

would not permit the solicitation of signatures during

the Christmas season. Gronemeier nevertheless

informed Maude that Citizens for Representative

Government would appear to solicit signatures on

Monday evening, December 23, 1985.

The preamble to plaintiffs’ written rules defines

“political petitioning” as “any conduct by which an

individual obtains signatures for any petition directed

to any governmental or political body. These rules shall

not be deemed or construed to permit any activity

other than political petitioning, and the owners of the

center reserve the right to prohibit any activity other

than that described in these Rules and sanctioned by

law.”

Rule 1 of plaintiff’s written rules provides in

pertinent part: “Prior to engaging in political

petitioning, a petitioner must notify the center

management office and provide it with the name,

address, signature of a responsible adult who, by said

signature, expressly accepts full liability for damage,

costs or expenses resulting from the proposed activity.

Said liability shall include, but is not limited to,

maintenance costs for cleaning up litter and expenses

resulting from damage to persons or property or both.”

Rule 2 states: “If leaflets or other material are to be

handed out ... , the petitioner must post a $50.00

security deposit to cover the cost of cleaning up litter

which results from such activity. The deposit, less any

expense incurred... , shall be refunded approximate-

ly two weeks after said activity has ended.”

-Rule 3 requires that “All petitioners engaged in

political petitioning shall use only that portion of the

pany

center property expressly designated for that purpose

by the center management office.” Rule 4 leaves the

number of petitioners who may engage in political

petitioning at a given time solely within the discretion

of the management office. “This determination shall

be based on the following factors: (1) the area available

for such activities; (2) the number of petitioners who

wish to engage in such activities at one particular time;

(3) the potential for conflict between petitioners or

between petitioners and members of the public; and

(4) the safety of the public and center property.”

Similarly, Rule 5 leaves the time during which political

petitioning may take place solely within the discretion

of the management office. and states that determina-

tion is to be based on the four factors enumerated in

Rule 4.

Rule 6 provides: “Only that furniture... approved

by the center management office shall be used on the

center property for political petitioning. Said furniture

shall be located as prescribed by the center manage-

ment office.” Rule 7 states: “Posters, slaeards tale and

displays as well as their location and method of display

shall be subject to the approval of the center

management office. In no event shall such materials be

affixed to any portion of the center property.” Rule 9

prohibits the use of lights, loudspeakers or other

electrical or mechanical equipment, while Rule 10

prohibits the use or operation of any musical

instrument or sound reproduction device “in such a

manner as to cause any sound or noise which, in the

reasonable belief of the center management office, may

be disturbing or offensive.”

Rule 8 prohibits petitioners from making an “express

or implied representation to any person within the

—_ a

center or om center property that the owner or the

manager of the center sponsors or supports any view,

belief, or request contained in any petition, statement

or literature being disseminated or exhibited on center

property.” Rule 11 prohibits the solicitation of

“contributions or donations from anyone on center

property,” as well as “the sale of any items or services

on said property.” Rule 12 requires that petitioners

“not impede or interfere with the business of any

center tenants, employees or personnel, nor shall they

approach, detain, or in any way impede or interfere

with the smooth flow and free passage of center

patrons, customers or personnel through the access

ways of the center.”

Rule 13 provides: “If in the good faith judgment of

the center management office the measure of the

proposed political petitioning activity creates a risk of

injury or damage to person or property, and that such a

risk warrants special insurance protection, then the

petitioner planning to engage in such activity must

purchase and carry the necessary insurance coverage.

Said insurance policy shall name as additional insureds

Hahn Property Management Corporation, the center

owner and the center Merchants’ Association and

petitioner shall provide the center manager prior to

commencement of political petitioning with a valid

certificate of insurance evidencing the same.” Finally,

Rule 14 promulgates standards of general decorum.

In addition to the written rules, plaintiffs have

adopted the following unwritten rules which govern

political activity on Plaza Pasadena property. A party

seeking the use of Plaza property for political activity

must fill out the written registration form; thereafter,

he or she will receive notification within 72 hours of

ce | an

acceptance or rejection of the application. Apart from

verifying that the activity involved is political rather

than commercial, the management office is to have no

concern with the subject matter of the activity.

Generally, political activities are to be assigned to the

Garfield Court area. No political activities will be

authorized the day after Thanksgiving or during the

latter part of December. The availability of the forum

for the days requested must be confirmed; each

applicant will be limited to two days unless no other

request has been made for the third day and day-to-day

thereafter. Political activities are to be manned by a

maximum of two persons, and the Plaza will provide

authorized display furniture only: a card table with

table cloth and two chairs. The only articulated

standard for denying an application is a determination

that it will “adversely affect the shopping center

environment, atmosphere, or image.”

After consulting with Susan Roberts, director of

marketing for Plaza Pasadena, Maude made a decision

in the first week of December to prohibit political

activity during the Christmas season. At that time, the

Plaza accomodated a large Christmas tree, a Santa

Claus display, an automobile raffle, a gingerbread

house display and auction, booths for gift wrapping,

mailing and gift certificates, a toy collection facility

and various story book displays. In addition, Plaza

traffic increased significantly at that time of the year,

as evidenced by the increase in use of the parking

structure during December 1984 from 214,051 automo-

biles to 344,500. Statistically, pedestrian traffic appears

to increase approximately 70 percent during this

period, with each visitor staying longer. However,

direct observation at 6:00 p.m. on Friday, December

a ae

20, 1985, found traffic in the Plaza to be extremely

light.

PROCEDURAL BACKGROUND

On December 23, 1985, plaintiffs sought injunctive

and declaratory relief which would require that

defendants comply in full with the Plaza’s rules and

regulations, written and unwritten, regarding political

activity. They applied ex parte for a temporary

restraining order, prior to a hearing on the propriety of

a preliminary injunction, on the ground defendants had

stated the intention of distributing leaflets and seeking

signatures for political petitions in total disregard of

the applicable rules and regulations. Defendants cross-

complained, seeking to enjoin plaintiffs from enforcing

those rules. The trial court immediately issued

plaintiffs a temporary restraining order on the terms

requested and set the matter of a preliminary

injunction for hearing on January 10, 1986.

Thereafter, Citizens for Responsible Government

applied to the Plaza Pasadena management for

permission to collect signatures on political petitions

on January 2, 1986; permission was granted only on

condition defendants comply with all rules and

regulations. After taking evidence, the court granted

plaintiffs a preliminary injunction, finding all rules and

regulations to be reasonable and valid as written, with

the following exceptions: The definition of “political

petitioning” must be expanded to include the distribu-

tion of written materials and the solicitation of funds;

Rule 7 must be limited in application to approval of the

size, number and location of posters, placards and

displays; Rule 11 may not be applied to prevent the

solicitation of contributions to support defendants’

po +

political advocacies; and Rule 12 may not be utilized to

prohibit the “approach” of Plaza patrons within a

reasonable radius of the area designated for petition-

ing. The court also found plaintiffs’ registration form

and the requirements therein to be reasonable.

Defendants and “their agents, servants, and all

persons acting in concert with any or all” of them were

restrained from “engaging in any political activity on

the premises of Plaza Pasadena ... until said

defendants have caused to be submitted to plaintiff an

application or registration and have received approval

by plaintiff for such activity”; and from “violating or

failing to comply with the rules and regulations

adopted by plaintiffs” with the exceptions delineated

above. The instant appeals followed.

CONTENTIONS

On Appeal

I

Defendants contend the trial court erred in granting

a preliminary injunction, in that plaintiffs’ rules and

regulations fall outside the spectrum of reasonable

time, place and manner restrictions and, hence,

impermissibly restrict defendants’ exercise of their

First Amendment rights.

II

Defendants further contend the trial court erred in

issuing a temporary restraining order, in that the

invocation of the plaintiffs’ rules and regulations

—A10—

impermissibly restricted defendants’ exercise of their

First Amendment rights.

On Cross-Appeal

III

Plaintiffs assert the trial court erred in invalidating

Rules 11 and 12 insofar as they proscribe the

solicitation of political funds or political petitioners’

approach of Plaza patrons.

DISCUSSION

On Appeal

I

Defendants contend the trial court erred in granting

a preliminary injunction, in that plaintiffs’ rules and

regulations fall outside the spectrum of reasonable

time, place and manner restrictions and, hence,

impermissibly restrict defendants’ exercise of their

First Amendment rights. We agree to a significant

extent.

Section 2 of Article I of the California Constitution

guarantees to the citizens of this state the rights of free

speech and a free press. Our Supreme Court first

addressed the applicability of these rights, if any, to

privately owned shopping centers in Diamond v. Bland

(1970) 3 Cal.3d 653 (Diamond I). In Diamond I, the

court considered the nature and character of a

privately-owned shopping center — a place which the

public is openly and expressly invited to use at its

pleasure — and concluded citizens had the right to

ee Se eee ee ak ©

—All—

exercise rights of free speech and petitioning in that

forum, notwithstanding its privately- owned character.

The court emphasized the minimal impact on a

shopping center owner’s private property rights from

permitting a small, orderly group to utilize that

property as a forum. (At p. 665.)

Two years later, In Lloyd Corp. v. Tanner (1972) 407

U.S. 551, the United States Supreme Court held the

invitation to public use of a shopping center was not a

sufficient dedication of privately owned property to

public use to entitle citizens to utilize it as a forum for

the exercise of First Amendment rights. (At p. 570.)

Accordingly, a privately-owned center could prohibit

the distribution of printed material unless that material

communicated information relating to the center’s

business — provided there existed adequate alternate

means of communication. (Ibid.) Prompted by the

decision in Lloyd Corp., our Supreme Court reconsid-

ered the issue in Diamond vy. Bland (1974) 11 Cal.3d 331

(Diamond IT) and concluded Lloyd Corp. required that

Diamond I be overruled.

The matter next came before our Supreme Court in

Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d

899. The court notes the express provision in the

California Constitution guaranteeing “the right to...

petition government for redress of grievances” (art. I,

§ 3), and explicates the importance of that right as “an

essential attribute of governing.” (23 Cal.3d at p. 907.)

Robins continues, “the tate’s) power to regulate

property is not static; rather it is capable of expansion

to meet new conditions of modern life. Property rights

must be “redefined in response to a swelling demand

that ownership be responsible and responsive to the

needs of the social whole. Property rights cannot be

—Al12—

used as a shibboleth to cloak conduct which adversely

affects the health, the safety, the morals, or the welfare

of others.”’ (At pp. 906- 907, quoting from

Agricultural Labor Relations Bd. v. Superior Court (1976)

16 Cal.3d 392, 404.)

Robins analyzes in detail the burgeoning importance

of the shopping center in society and in community

development, concluding: “To protect free speech and

petitioning is a goal that surely matches the protecting

of health and safety, the environment, aesthetics,

property values and other societal goals that have been

held to justify reasonable restrictions on private

property rights.” (23 Cal.3d at p. 908.) The court then

turns its attention to the scope of protection which the

California Constitution affords the rights of free

speech and press, finding that section 2 of article I

provides ‘more definitive and inclusive’ guarantees

than does the First Amendment to the Federal

Constitution. (Ibid., quoting from Wilson v. Superior

Court (1975) 13 Cal.3d 652, 658.) Given the scope of

that protection, the court holds, “the public interest in

peaceful speech outweighs the desire of property

owners for control over their property.” (Robins, supra,

at p. 909; see also Schwartz- Torrance Investment Corp. v.

Bakery & Confectionery Workers’ Union (1964) 61

Cal.2d 766, 768.)

In conclusion, Robins emphasizes: “By no means do

we imply that those who wish to disseminate ideas have

free rein. We noted above Chief Justice Traynor’

endorsement lin In re Hoffman (1967) 67 Cal.2d 845)

of time, place, and manner rules. ( ... at pp. 852-

853.) Further, as Justice Mosk stated in Diamond II, ‘It

bears repeated emphasis that we do not have under

consideration the property or privacy rights of an

FAB Bete Se Pil, OND leis.

—Al3—

individual homeowner or the proprietor of a modest

retail establishment. ... A handfull of additional

orderly persons soliciting signatures and distributing

handbills in rraeerty therewith, under reasonable

regulations adopted by Lthe property owner! to assure

that these activities do not interfere with normal

business operations (see Diamond LL at p. 665) would

not markedly dilute ... property rights.’ (11 Cal.3d at

‘p. 345 (dis. opn. of Mosk, J.).)” (Robins, supra, at pp.

910-911.)

The exercise of rights of free expression may be

restricted when it conflicts with the promotion of

countervailing substantial or compelling interests.

(First National Bank of Boston vy. Bellotti (1978) 435

U.S. 765, 786.) However, even those restrictions

justified in the protection of these interests must be

narrowly drawn to that end. (Ibid.; Alternatives for

California Women, Inc. v. County of Contra Costa (1983)

145 Cal.App.3d 436, 449.) To be reasonable, such

regulations must be neither vague nor subjectively

over- or underinclusive. (Shad v. Mount Ephraim (1981)

452 U.S. 61, 68-71; Morris v. Municipal Court (1982) 32

Cal.3d 553, 565.)

In essence, Robins v. Pruneyard Shopping Center,

supra, 23 Cal.3d 899, in affirming a shopping center

owner’s right to impose reasonable time, place and

manner restrictions on petitioning activity recognized

in the owner important rights of substance; those rights

are identified as freedom from disruption of normal

business operations and freedom from interference

with customer convenience. However, despite

plaintiffs’ characterization to the contrary, Robins did

not establish a new standard of reasonableness to be

applied to private property. Robins relied heavily on

\

—Al4—

Diamond I, supra, 3 Cal.3d 653 and In re Hoffman,

supra, 67 Cal.2d 845, each of which addressed the use

of privately owned property as a “quasi-public” forum.

Hoffman is particularly instructive on the issue of

what type of restriction is reasonable. The court first

specifies that protected activity which is free from

interference; that which does not interfere with the

conduct of business or the use of the property, does not

impede the movement of customers or business tenants,

does not block access to facilities or businesses, is not

noisy and creates no disturbance and does not entail

the harassment of uninterested patrons. (Jd., at p. 851.)

Moreover, Hoffman notes: “It is immateria! that

another forum, equally effective, may have been

available. ... Absent the presence of some conflict-

ing interest that could be protected in no other way,

petitioners have the right to choose their own forum.”

(Ibid., fn. 7.)

To be certain protected activity falls within the above

category, “lcjongestion can be avoided by controls on

activities during peak hours. |Citations! Reasonable

and objective limitations can be placed on the number

of persons who can be present... at the same time,

and the persons present can be required sg to place

themselves as to limit disruption. Citation In area

normally subject to congestion, ... silted

activities can be prohibited. Citations] Persons can be

excluded entirely from areas where their presence

would threaten personal danger or block the flow of

.. traffic, such as doorways and loading areas.

[Citations!” (Id., at pp. 852-853.) It is clear that

Hoffman requires time, place and manner regulations

to be narrowly focused in the traditional manner; so,

too, does Robins.

NADA Tete he Ee A Red accel Les Ba gee Wie reins Sani gtad kes Ee sate kel het ndihe obresetnaictbent

“ a PWS RS ie Atl tle

—A15—

Neither can the rights sanctioned in Robins be

equated with commercial speech rights. It is not the

medium chosen, but the content of the message which

distinguishes commercial speech from other expres-

sion; hence, regulation to the extent permitted for

commercial speech is not appropriate simply because a

commercial medium has been selected for the

communication of noncommercial ideas. (City of Indio

v. Arroyo (1983) 143 Cal.App.3d 151, 158.) In sum, like

any other time, place and manner regulations, those of

a shopping center are constitutionally reasonable only

if they are narrowly drawn and limited to the end of

promoting specifically identified substantial interests.

The appropriateness of applying the traditional

analysis of time, place and manner regulations to the

instant matter is reinforced by the distinction between

the Plaza and the privately-owned “quasi-public”

forums identified in Hoffman, Diamond I and Robins.

In each of those cases, the facility and the land upon

which it stood were wholly owned by private

enterprises which acquired their “quasi-public” status

solely from the manner in which the facilities were

used. In contrast, the Plaza does not own the land upon

which it stands or the three underground parking

garages which accomodate its customers. The city

exercised its powers of eminent domain to permit the

development of the Plaza and financed construction of

the parking facilities through its redevelopment

agency; the Plaza pays rental fees for the use of the

parking facilities.

The integrated nature of the publicly-owned land

and parking structures and the privately-owned Plaza

has been commented upon previously. (See Graydon v.

Pasadena Redevelopment Agency (1980) 104

—Al6—

Cal.App.3d 631, 634-635.) When a public entity so far

insinuates itself into a position of interdependence with

the private enterprise, the public entity becomes a joint

participant in challenged activity. (Burton v. Wilming-

ton Pkg. Auth. (1961) 365 U.S. 715, 725.) In these

circumstances, it is clear the constitutionality of

plaintiffs’ regulations must be by “a balancing

of interest and a determination thatthe partyJ has used

the ‘least restrictive means’ to regulate the conduct in

question.” (Spiritual Psychic Science Church v. City of

Azusa (1985) 39 Cal.3d 501, 517.)

Defendants challenge nearly every aspect of

plaintiffs’ regulatory scheme for political petitioning,

beginning with the preamble to the written rules. They

maintain that the definition of political petitioning as

“any conduct by which an individual obtains signatures

for any petition directed to any governmental or

political body” discriminates against other expressive

activity based on content. The trial court ruled the

preamble must be read to include within its definition

the solicitation of political contributions, but

defendants argue petitioners still are barred from

explaining their views to Plaza patrons, distributing

explanatory literature or making visual presentations

in support of their views. This interpretation of the

definition is unduly narrow. By logical inference, any

or all of the activities purportedly barred play a central

role in obtaining political petition signatures. The

reason for the petition and its supporting rationale

provide the only sound basis for inducing a citizen to

sign it. Logic dictates that the definiticn be given this

expansive interpretation; so interpreted, it is free from

constitutional defect.

aft Pa

Defendants also attack the application process,

which is embodied in Rule 1 of the written rules, the

registration form itself and an unwritten rule. This

regulatory complex requires that an individual or

organization wishing to utilize plaintiffs’ property for

political petitioning submit a written application. The

following information must be provided: the name and

address of the individual or group seeking to engage in

expressive activity; the name and “identification”

number of the person “‘in charge”; the “nature” of the

political petition for which signatures are sought; the

date and time applicants wish to engage in petitioning

activity; whether written literature will be distributed;

the number of persons who will participate and a

telephone number for contact. In addition, the

applicant must provide the name, address and

telephone number of a “responsible person” who will

expressly assume full liability for any “damage, costs

or expenses.” The sole criteria for determining whether

an application will be denied is whether the planned

activity will “adversely affect the shopping center

environment, atmosphere or image.”

In promoting their legitimate ends, plaintiffs have a

clear and substantial interest in distinguishing between

political and nonpolitical activity; hence, they may

inquire in general terms about the “nature” of the

petition at issue, i.e., is it directed to city hall, a

department of city or county or state government, is it

a proposed ballot measure? Similarly, given plaintiffs’ —

substantial interest in avoiding the disruption of

normal business and interference with patrons, they

have the right within reasonable limits to plan the date,

time, location and size of the petitioning activity and

this requires communication. Communication, in turn,

requires some means of contacting the individual or

—A18&—

organization seeking to engage in expressive activity; a

telephone number provides a reasonable means of

communication.

More specific identification, such as an address and

“<dentification” number, provides a reasonably limited

means of determining the identity and location of the

applicant in the event the Plaza finds it necessary to

pursue a liability claim. Defendants rely on Rosen y.

Port of Portland (9th Cir. 1981) 641 F.2d 1243, which

states: ‘The requirement that those desiring to exercise

free speech rights identify themselves and supply the

names, addresses, and telephone numbers of sponsor-

ing or responsible persons... has a ‘chilling effect’ on

free speech.” (At p. 1250; see also Talley v. California

(1960) 362 U.S. 60, 64.) Hence, any such requirement

must not exceed the least drastic means which will

achieve plaintiffs’ legitimate purpose. (Shelton v. Tucker

(1960) 364 U.S. 479, 488.)

In the instant matter, plaintiffs’ substantial interests

diverge from those of a purely public entity. The

detailed information required in the registratiot. form

provides the least drastic means of assuring plaintiffs

some protection from unduly burdensome nonincident-

al costs which may flow from petitioning activity; they

need not assume the same degree of risk which a public

entity may be asked to bear. However, the “guarantee”

of liability by a “responsible person” required by Rule

1 exceeds the “least restrictive means” standard.

Clearly, if mere identification may have a “chilling

effect” on free speech, the effect of a demand that a

designated “responsible person” expressly assume “all

liability” will be most profound. So long as plaintiffs

possess the other information requested, they know all

Pee ee ee

Satu eer

—A19—

that is necessary to identify the party “responsible”

and pursue any legal remedies.

Most importantly, the standard set forth in the

unwritten rule governing whether an application will

be accepted or rejected is fatally flawed. It confers

broad, unbridled discretion on Plaza management,

permitting rejection on a determination the planned

activity will “adversely affect the shopping center

environment, atmosphere or image.” Any procedure

regulating expressive activity which confers such

unbounded discretion permits a decision to be based

impermissibly on the content of expression. (Dillon v.

Municipal Court (1971) 4 Cal.3d 860, 869-870.) To be

valid, the regulation of expression must provide

definite, objective written guidelines for the exercise of

discretion. (Ibid.; accord, Dulaney v. Municipal Court

(1974) 11 Cal.3d 77, 86; Carreras v. City of Anaheim

(9th Cir. 1985) 768 F.2d 1039, 1049.) Since plaintiffs

provide no definite, objective guidelines whatever as to

how discretion is to be exercised in making the general,

subjective determination an expressive activity will

“adversely affect” the Plaza “environment, atmo-

sphere or image,” the standard necessarily is constitu-

tionally defective.

In sum, much of plaintiffs’ application procedure,

encompassing the registration form, the unwritten

rules mandating written application and conferring

unbridled discretion to deny an application on the basis

of general, subjective criteria only and Rule 1 requiring

a designated “responsible person’s” acceptance of “all

liability,” is overbroad and therefore constitutionally

invalid. (Morris v. Municipal Court, supra, 32 Cal.3d at

p. 565.)

—A20—

While there is a plethora of authority identifying the

type of regulation which fails to pass constitutional

muster, we note the dearth of authority which provides

any form of guidance as to the type of regulation which

is valid. To the end of foreshortening the prospects of

increased litigation on this issue, we will undertake to

fill the void. -

In replacement of the overbroad and subjective

standard for accepting or rejecting applications for

expressive activity, we suggest the type of objective

written standard which would withstand constitutional

scrutiny. In our view, the following criteria meet that

test: (1) Whether the planned activity is to be presented

in a noisy, disorderly or inflammatory manner as

opposed to a neat, orderly and courteous manner;

(2) whether the planned manner of presentation

threatens to (a) interfere with the conduct of business

or the customary uses of the property, either by its

form, its size, its location or its timing (e.g., coinciding

with peak business hours or days); (b) impede the

movement of customers or tenants; or (c) block access

to facilities and businesses; (3) whether the planned

manner of presentation is confrontational to a degree

that it is probable it will create a disturbance; and

(4) whether the planned size or location of the activity

threaten personal safety, in that it may block the flow

of traffic or create a hazardous degree of congestion.

Employing these criteria in concert with other

standards we suggest post, avoids the vice of that

unbridled discretion which lends itself to regulation on

the basis of content.

Defendants next attack Rule 2, which requires a $50

cleaning deposit if leaflets are to be distributed; the

deposit is refundable to the extent costs are not

tl ano a

i iisciih sie ts: Ship eae ste

—A21—

incurred. A registration fee or deposit may be required

where the permitting authority will likely incur

additional cost from the exercise of expressive rights as

long as it bears a reasonable relationship to the costs

likely to be incurred. (Cox v. New Hampshire (1941) 312

U.S. 569, 577.) In the instant matter, the amount of the

deposit, $50, is little more than de minimus and does

not appear excessive in light of the costs likely to be

incurred in cleaning litter from a facility of this size.

Hence, it is a reasonable regulation.

Rule 3 mandates that persons engaging in petitioning

activity use only that portion of plaintiffs’ property

which management expressly designates for that

purpose. An unwritten rule generally places such

activity in Garfield Court, the larger courtyard area on

the first floor of the Plaza. Defendants argue that Rule

3 is invalid, in that it contains no requirement that an

area be designated; they misperceive the problem.

Facially, Rule 3 suffers from no defect, but it must be

read in connection with the unwritten rule assigning

petitioners to Garfield Court. That rule can be

interpreted either as carrying the fair implication that

no other area will be designated, notwithstanding

suitability or availability, or simply as indicating a

preference for Garfield Court.

If the former interpretation is to apply, the rules,

read together, are unreasonably restrictive for

plaintiffs made no showing whatsoever that there is no

location in their extensive common area, other than

Garfield Court, which could accomodate expressive

activity. A regulating authority may not adopt rules

which preclude the exercise of free expression in an

appropriate place, even on the ground another place is

available. (California Newspaper Publishers Assn. Inc. v.

—A22—

City of Burbank (1975) 51 Cal.App.3d 50, 54; see also

Dillon v. Municipal Court, supra, 4 Cal.3d 860, 869-870.)

Under this interpretation, the rules do just that and

therefore fail to pass constitutional muster.

If the latter interpretation governs, Rule 3 remains

defective. It confers on Plaza management unbounded

discretion to choose the site of petitioning activity

should Garfield Court be unavailable. Absent definite,

objective written criteria for determining an alternative

location or for refusing to provide any location, Rule 3

therefore is invalid. (Ibid.)

Again, the formulation of objective criteria would

cure the defects in Rule 3 and its companion unwritten

rule. First, it would be reasonable for plaintiffs to

determine and to specify that problems of littering

justify limiting any applicant who intends to distribute

literature to the Garfield Court area. Second, plaintiffs

possess information from which they can determine the

maximum number of petitioning activities of a certain

size which can be accomodated in Garfield Court at

one time on a normal business day and during both

peak and non-peak business hours. Once those

maximums are specified, the foundation exists for

objective determinations: (1) Whether the applicant

intends to distribute literature and, if so, (2) whether

there remains sufficient space in Garfield Court on the

requested day and during the requested hours to

accomodate this activity; (3) if there is no remaining

available space, whether the applicant is willing to

make adjustments in the day, hours or size of the

presentation which will permit accomodation of the

activity or to forego the distribution of literature.

This last inquiry is critical, for it is clear other areas

of the courtyard can accommodate expressive activity

Pb te NK AS Ia ae iia Rich cs CT iy lek aN

—A23—

which is small and avoids obstructing or interfering

with the public or Plaza business operations. For

instance, an applicant may be willing to limit

petitioning to one or two persons equipped only with a

clipboard holding the petition and pen to facilitate

obtaining signatures who will agree to circulate politely

and unobtrusively in areas outside of Garfield Court.

Again, plaintiffs possess the means for objectively

determining the maximum amount of such petitioning

traffic other courtyard areas reasonably can accommo-

date under normal business conditions.

Having established criteria for normal business

conditions, plaintiffs also possess the information

necessary to objectively determine the effect of special

events, such as sales or special commercial displays.

Such determinations should focus on the size and

nature of the special event, i.e., whether a sale involves

one or more anchor stores or is mall-wide.

Rules 4 and 5 leave the number of petitioners who

may engage in expressive activity at a given time and

the time during which the activity may take place

solely within the discretion of the Plaza management.

The rules set forth guidelines governing the determina-

tion: “(1) the area available ... (2) the number of

petitioners who wish to engage in such activities at one

particular time; (3) the potential for conflict between

petitioners or between petitioners and members of the

public; and (4) the safety of the public and center

property.” In addition, an unwritten rule limits the

number of petitioners engaging in any one expressive

activity to a maximum of two.

The “area available,” “‘potential for conflict,” and

“safety of the public and ... property” all involve

general, subjective determinations. The latter two

—A24—

categories fall squarely within those criteria long

recognized as vague, uncertain or overbroad. (See, e.g.,

City of Indio v. Arroyo, supra, 143 Cal.App.3d at

pp. 160-161; City of Imperial Beach v. Escott (1981)

115 Cal.App.3d 134, 138-139; Carreras v. City of

Anaheim, supra, 768 F.2d at p. 1049.) The former

category is equally vague and subjective absent some

guidance as to how “available area” is to be

determined. As noted ante, objective criteria can be

established readily for making such an assessment.

The “number of petitioners who wish to engage in

such activities” does provide a measurable standard

relevant to the decision to be made. However, it is

meaningless standing alone. Without definite, objective

guidelines to which it may be related, the standard

provides no means for determining the issues under

consideration in Rules 4 and 5. Moreover, the

unwritten rule limits petitioners to a maximum of two

persons. Again, given the size of the facility at issue in

the instant matter and the lack of justification

provided, that restriction is unreasonably narrow and

impermissibly infringes on the right to select a

reasonable manner of engaging in expressive activity.

(See Dillon v. Municipal Court, supra, 4 Cal.3d at

pp. 869-870; cf. California Newspaper Publishers Assn,

Inc. v. City of Burbank, supra, 51 Cal.App.3d at p. 54.)

However, written criteria such as those outlined ante

would provide the necessary objective guidance.

Finally, while the “potential for conflict” and

concern with “safety” are too vague and overbroad, it

is possible to craft objective criteria which meet those

concerns: (1) whether the planned manner of presenta-

tion of the expressive activity is so confrontational in

nature, e.g., through the use of “fighting words” or

—A25—

group chanting, it is likely to embroil other groups or

the general public in open conflict; (2) whether groups

with competing views or incompatible political philoso-

phies, i.e., the Ku Klux Klan and the NAACP or the

Jewish Defense League; pro-life and pro-choice groups,

have requested the use of the same general area on the

same date and during the same hours; and (3) whether

the planned activity, by its size and/or timing,

threatens to block the flow of traffic or create a

hazardous degree of congestion.

Plaintiffs argue the constitutionality of these rules

and others which provide broad discretion without the

safeguard of objective standards must be considered in

light of the constitutional purpose served in circum-

scribing the exercise of discretion by requiring the use

of objective standards. They point to the acknowledged

principle that discretion must be circumscribed because

unbounded discretion permits a decision to be based on

the content of expression (Dillon, supra, 4 Cal.3d at

pp. 869-870) and the unwritten rule that Plaza

management is not to concern itself with the content of

expression. They argue, since they have guarded

against the vice of unbounded discretion the rules are

valid. This argument overlooks the nature of the

subjective determinations presently to be made: First,

will the expressive activity be permitted or does it

“adversely affect the ... environment, atmosphere or

image?” Second, based on the area available, the

“potential for conflict” and “safety,” where will the

activity take place? Third, based on those same factors,

how many persons will be permitted to take part?

Notwithstanding plaintiffs’ unwritten rule, all of those

determinations readily may focus on the content of

expression. Absent objective guidance, how else is

management to perceive an “adverse affect” or a

—A26—

“potential for conflict?” The unwritten rule cannot

adequately substitute for the use of definite, objective

guidelines.

Rule 6 requires that petitioners use only furniture

approved by management and locate that furniture

only “as prescribed by ... management. ...” An

unwritten rule states the Plaza will provide a table with

table cloth and two chairs — no other furniture. This

provision operates in a fashion similar to Rule 3 and its

companion unwritten rule. Accordingly, to avoid

running afoul of the same constitutional defect, it must

be interpreted as prohibiting all other furniture;

otherwise, it again confers on Plaza management

unbounded discretion. While the Plaza’s legitimate

concerns amply justify exercising control over the type

and appearance of furniture to be used by providing

only certain items and guarding against undue

congestion or interference with plaza business by so

limiting quantity, Rule 6 and its unwritten companion

must be integrated in one written rule. Applicants are

entitled to clear, written advance notice as to precisely

what will be approved.

Rule 7 makes any posters, placards or displays

subject to management approval and leaves their

location and method of display within management’s

sole discretion. There are no definite, objective

guidelines provided. The trial court modified Rule 7 to

limit management approval to such considerations as

number and size, rather than content, but the

modification will not suffice to save the rule. The

number and size of posters or displays, as well as their

method of display and location, all entail decisions

which are likely to be influenced by content in the

mr,

absence of specific guidance. Like others of plaintiffs’

rules, Rule 7 must fall as unconstitutionally overbroad.

Again, however, we stress the possibility of crafting

the objective criteria necessary. Plaintiffs may wish to

consider the general scheme of signs and displays

permitted for special commercial exhibits and establish

sizes and quantities which will be approved. Any

proposed exceptions could be governed by considering

whether the number and/or size of signs, posters or

placards will interfere with and/or directly compete

with business displays or logos. Further, plaintiffs

could regulate style, as opposed to content, requiring

that it be compatible with the general aesthetics of the

mall, i.c., neat in appearance. The use of “fighting

words,” obscenities, grisly or gruesome displays or

highly inflammatory slogans likely to provoke a

disturbance, of course, could be prohibited. Examples

of the latter would be pictures of aborted fetuses, gross

racial caricatures or slogans such as “kill the pigs

now.”

Defendants characterize Rule 8 as a prior restraint

on free expression. The rule prohibits petitioners from

making an “express or implied representation to any

person within the center or on center property that the

owner or the manager of the center sponsors or

supports any view, belief, or request contained in any

petition, statement or literature being disseminated or

exhibited on center property.”

Since a shopping center is a business establishment

open to the public for use at its pleasure, the views of

those engaging in expressive activity are not likely to be

identified by the public with those of the owner.

(Pruneyard Shopping Center v. Robins, (1980) 447 U.S.

74, 87.) Moreover, the owner may protect him or

—A28—

herself by expressly disavowing those views, i.e., by

posting a sign. (Ibid.) Defendant’s view of Rule 8 is

that it puts the burden on them, imposing a prior

restraint on their expression, when there are less

restrictive means of protecting plaintiffs’ interests.

Insofar as Rule 8 restrains speech, it restrains only that

which is unprotected in the first instance —

expressions which could be considered fraudulant

representations or defamatory to plaintiffs. In

actuality, the rule imposes no more of an unconstitu-

tional restraint than does a statute which prohibits the

exhibition of an obscene film; defendants simply are

put on notice that they are not privileged to

misrepresent plaintiffs’ sponsorship or advocacy of

their views — nothing more. So interpreted, Rule 8

suffers from no constitutional defect.

Rule 9 prohibits the use of lights, loudspeakers or

other electrical or mechanical equipment, while Rule

10.prohibits the use or operation of any musical

instrument or sound reproduction device “in such

manner as to cause any sound or noise which, in the

reasonable belief of the center management office, may

be disturbing or offensive.” In substance, Rule 10

leaves the determination of whether any musical

instrument or sound device may be used in expressive

activity solely within the discretion of management.

That discretion is unbounded and unguided by any

objective standard. Whether a sound is “disturbing” or

“offensive” necessarily involves the same kind of

subjectivity as do “esthetics,” “well-being” and

“safety.” (See City of Indio v. Arroyo, supra, 143

Cal.App.3d at pp. 160-161.) Hence, Rule 10 is

unconstitutionally overbroad.

—A29—

Here, too, plaintiffs can fill the void with reasonably

objective criteria, i.c.: (1) Whether the sound device

will create noise of sufficient volume to impinge on the

hearing and peace of the general public, as opposed to

those persons within a few feet of petitioners;

(2) whether the device will be used in a highly

confrontational manner likely to create a disturbance,

e.g., to play discredited anthems or slogans akin to

“fighting words”; and (3) whether the planned use of

the device is highly inflammatory. (See examples set

forth ante, in discussing Rule 7.)

Rule 9 prohibits the use of lights, loudspeakers or

other mechanical or electrical equipment. A prohibi-

tion against lights or loudspeakers is entirely justifiable

in the protection of the Plaza environment and its

peaceful use and enjoyment. Moreover, the Plaza

certainly is not obliged to furnish petitioning parties

with electrical power. The balance of the apparently

sweeping restriction against all electrical or mechani-

cal equipment must be read with Rule 10, which

permits approval of the use of musical instruments or

sound devices. Given the operation of Rule 10, the

broad restrictions of Rule 9 do not run afoul of the

principle that the selection of an appropriate manner

of engaging in expressive activity may not be precluded

by plaintiffs’ rules. (Dillon v. Municipal Court, supra, 4

Cal.3d at pp. 869-870; cf. California Newspaper

Publishers Assn, Inc. v. City of Burbank, supra, 51

Cal.App.3d at p. 54.) It follows that Rule 9, as

interpreted here, is constitutionally valid.

Rule 11 prohibits the solicitation of “contributions

or donations from anyone on center property,” as well

as “the sale of any items or services on said property.”

The trial court found this rule to be constitutionally

=.

defective insofar as it prohibited the solicitation of

contributions or donations and exempted defendants

from compliance to that extent. On appeal, defendants

do not challenge the balance of the rule, but plaintiffs

do challenge the trial court’s limitation on cross-

appeal. Accordingly, we defer consideration of that

issue to the consideration of the cross-appeal, post.

Rule 12 requires that petitioners “not impede or

interfere with the business of any center tenants,

employees or personnel, nor shall they approach,

detain, or in any way impede or interfere with the

smooth flow and free passage of center patrons,

customers or personnel through the access ways of the

center.” Defendants characterize the “impede or

interfere” language as overbroad and vague. However,

such language has been upheld as sufficiently narrowly

drawn “to avoid arbitrary and unnecessary curtailment

of freedom of speech.” (Kash Enterprises, Inc. y. City of

Los Angeles (1977) 19 Cal.3d 294, 303.) Hence,

defendants’ challenge must fail.

The trial court found Rule 12 to be infirm insofar as

it prohibits the “approach” of patrons and, again,

exempted defendants from compliance to that extent.

Plaintiffs also challenge the court’s ruling in this

regard. Hence, the validity of that exemption will be

considered together with the ruling on Rule 11 in

addressing the cross-appeal.

Defendants challenge Rule 13 as impermissibly

imposing a penalty for the exercise of rights of free

expression. Rule 13 confers upon Plaza management

discretion to determine whether “the measure of the

proposed political petitioning activity creates a risk of

injury or damage to person or property,and... sucha

risk warrants special insurance protection,” which the

—A31—

applicant must then provide. “Risk of injury” is yet

another general and subjective standard vulnerable to

arbitrary or content-related determination. It is closely

akin in value as a standard to “danger to public”; in a

word, it is fatally defective. (Hague v. CI.O. (1939) 307

U.S. 496, 516.) Neither is there any indication as to

how management is to determine the risk “warrants

special insurance protection.” In its totality, Rule 13 is

unconstitutionally overbroad.

Once again, it is possible for plaintiffs to craft the

necessary objective criteria, i.e.: (1) Whether there is a

prior history of injury to persons or property when this

group engages in expressive activity; (2) whether there

is a prior history of in jury to persons or property when

similar groups engage in expressive activity; (3) the

historical scope of the risk and whether it exceeds the

minimal or inconsequential; (4) whether the risk can be

lessened or eliminated by adjusting the time, date, place

or planned manner of expression; and (5) if so, whether

the applicant is willing to make such adjustments.

Plaintiffs sought a preliminary injunction requiring

defendants to submit to their application process and to

comply with all rules and regulations. With very few

exceptions, the trial court granted that relief. Since a

significant part of plaintiffs’ application process and by

far the majority of the written and unwritten rules are

constitutionally defective,! it is clear plaintiffs were not

' Contrary to the dissent’s characterization, our “heightened

scrutiny and detailed rule-by-rule analysis,” while based in part on

federal constitutional standards, is limited to those principles

implicit in Robins’ firm reliance on In re Hoffman, supra, 67

Cal2d 845. Moreover, as we noted ante, at pages 16 and 17, the

instant matter differs substantially from Robins in the significant

public interdependence with the private enterprise.

dl

—A32—

entitled to that relief. It follows that the trial court

erred in granting a preliminary injunction. (People v.

Pacific Land Research Co. (1977) 20 Cal.3d 10, 21.)

II

Defendants further contend the trial court erred in

issuing a temporary restraining order, in that the

invocation of the plaintiffs’ rules and regulations

impermissibly restricted defendants’ exercise of their

First Amendment rights. We cannot agree.

All parties agree the issues pertaining to the

temporary restraining order are now moot. Defendants

nevertheless urge this court to reach them. Notwith-

standing that they have become moot, the courts may

make an exception and consider issues raised on appeal

with respect to ex parte restraining orders. As noted in

United Farm Workers of America v. Superior Court

(1975) 14 Cal.3d 902, 906, these orders can and do have

a critical impact on the exercise of fundamental rights.

“Yet because of their limited duration, orders of this

nature elude appellate review.” Hence, when a case

poses an issue of broad public interest, likely to recur,

an appellate court may exercise its “inherent discre-

tion”’ to resolve the issue. (bid.)

The only issue raised with respect to the instant

matter which might fall within the United Farm

Workers exception is the Christmas holiday proscrip-

tion against all petitioning activity. Given the

likelihood this issue will arise again, yet elude review,

we consider the case at bar appropriate for the exercise

of this court’s discretion to resolve the propriety of the

holiday ban.

—A33—

As In re Hoffman, supra, 67 Cal.2d at p. 853 notes:

“In areas normally subject to congestion,

[protected] activities can be prohibited. [Citations.]”

The evidence unequivocally establishes that the

courtyard areas of the Plaza, particularly Garfield

Court, are subject to a high degree of congestion

during the Christmas holiday period. In addition to all

regular features, the Plaza then accommodates a large

Christmas tree, a Santa Claus display, a gingerbread

house display and auction, an automobile raffle, booths

for gift wrapping, mailing and gift certificates, a toy

collection facility and various story book displays.

Moreover, quite apart from the high degree of

congestion created by the mere existence of these

activities, pedestrian traffic increases substantially.

While defendants did present evidence of light

pedestrian traffic at 6:00 p.m. on December 23, the

foregoing evidence nevertheless justified the trial court

issuing the temporary restraining order to the extent it

enforced the Christmas holiday ban on petitioning

activity. Plaintiffs had the right and responsibility to

keep the courtyard area open and available for

movement. (Cf. Cox v. Louisiana (1965) 379 U.S. 536,

554.) We note, however, that the ban at issue never was

reduced to writing. Inasmuch as applicants are entitled

to clear, written notice of such proscriptions, any

future ban should be set forth in writing, setting forth

the dates during which it is in effect.

On Cross-Appeal a

ITI

Plaintiffs assert the trial court erred in invalidating

Rules 11 and 12 insofar as they proscribe the

FT

=

solicitation of political funds or political petitioners’

approach of Plaza patrons. We agree in part.

Plaintiffs rely on Intern. Soc. for Krishna v. New

Jersey Sports, etc. (3d Cir. 1982) 691 F.2d 155, 159 and

Heffron v. Int. Soc. for Krishna Consc. (1981) 452 U.S.

640 for the proposition that the solicitation of funds is

not pure speech; hence, they argue, it is entirely

permissible to prohibit the solicitation of political

contributions on Plaza property. While the solicitation

of political or other funds to be used to support the

promulgation of views is indeed not “pure speech,” it is

activity protected by the First Amendment. (Intern.

Soc. for Krishna, supra, 691 F.2d at p. 159; Carreras y.

City of Anaheim, supra, 768 F.2d at p. 1045.)

Nevertheless, where the locale is not a public forum,

solicitation need not be permitted. (Intern. Soc. for

Krishna, supra, 691 F.2d at pp. 159-160.) Neither must

solicitation be permitted when it is basically incompati-

ble with the normal character and function of the

facility. (Id., at pp. 161-162.) In the instant matter, the

solicitation of political funds is entirely incompatible

with the normal character and function of the Plaza.

The Plaza exists as a center of commerce; its function

is to facilitate the ease of commerce and to promote the

business of its merchant tenants. Any activity seeking

to solicit political contributions necessarily interferes

with that function by competing with the merchant

tenants for the funds of Plaza patrons. Since

solicitation does interfere with the basic function of the

Plaza, plaintiffs are entirely within their rights in

prohibiting such activity. (Ibid.) It follows that the trial

court erred in invalidating Rule 11 insofar as it

proscribes the solicitation of political funds.

—A35—

Plaintiffs also maintain defendants lack standing to

challenge the solicitation prohibition, in that they did

not seek to solicit funds. This viewpoint overlooks the

nature of the instant action. In addition to injunctive

relief, plaintiffs sought a declaration that its rules and

regulations were constitutionally valid and enforceable.

This conferred upon the trial court all necessary

jurisdiction to decide the issue.

With respect to Rule 12, plaintiffs rely on Kash

Enterprises, Inc. v. City of Los Angeles, supra, 19 Cal.3d

at pages 303-304, which upheld language prohibiting

acts which “impede or obstruct or unreasonably

interfere” with others. That language does, indeed,

mirror part of Rule 12 with which the trial court had

no quarrel. The prohibition against “approaching”

mall patrons stands in a different posture, however. As

the trial court noted, “approaching” covers a far

broader range of activity than physically impeding or

obstructing persons and need not interfere with their

passage or conduct of business in any manner. As a

consequence, the proscription is overbroad, encompass-

ing lawful, as well as unlawful, activity. (Smith v. Silvey

(1983) 149 Cal.App.3d 400, 406-407; see also In re

Berry (1968) 68 Cal.2d 137, 155.) It follows that it is

constitutionally impermissible.

In sum, while Rule 11 is entirely valid, Rule 12

imposes an unconstitutional restraint on defendants’

exercise of free expression. Accordingly, the trial court

did err in partially invalidating Rule 11 but was correct

in invalidating Rule 12’s proscription against ap-

proaching Plaza patrons.

The order granting a preliminary injunction is .

reversed; the order granting a temporary restraining

order is affirmed. Defendants to have costs on appeal.

—A36—

CERTIFIED FOR PUBLICATION.

SPENCER, PJ.

I concur: :

LUCAS, J.

aay:

HANSON (Thaxton), J. CONCURRING AND

DISSENTING

I concur with the majority opinion in respect to the

temporary restraining order pertaining to plaintiff

Plaza’s rules and regulations specifically concerning

the holiday ban.

I also concur with the majority opinion’s treatment

of the issues relating to plaintiff Plaza’s cross-appeal in

respect to rules 11 and 12 of Plaza’s “Rules for

Political Petitioning on Shopping Center Property”

(appendix A) which were attached to its complaint.

However, I respectfully disagree with the majority

Opinion’s general treatment of the remaining para-

graphs contained in Plaza’s rules and the application

procedure. This disagreement stems from what I

perceive to be the applicable standard of review,

language in Robins v. Pruneyard Shopping Center (1979)

23 Cal.3d 899, and the belief that generally we should

decide each issue on the narrowest possible grounds on

a case by case basis.

The standard of review with regard to the trial

court’s grant of a preliminary injunction is weli-

established. The decision to grant a preliminary

injunction “rests in the sound discretion of the trial

court....” A trial court will be found to have abused

its discretion only when it has “exceeded the bounds of

reason or contravened the uncontradicted evidence.”

(Continental Baking Co. v. Katz (1968) 68 Cal.2d 512,

527; see also City of Torrance v. Transitional Living

Centers for Los Angeles, Inc. (1982) 30 Cal.3d 516, 519.)

The burden rests with the party challenging the

injunction to make a clear showing of an abuse of

discretion. (IT Corp. v. County of Imperial (1983) 35

Cal.3d 63, 69.)

:

.

:

—A38—

With regard to the First Amendment rights involved

in this appeal, however, the majority fails to apply the

proper standard of review. The problem arises partly

from the unusual nature of the constitutional right

established in Robins v. Pruneyard Shopping Center,

supra, 23 Cal.3d 899 (Opn. by Newman, J., with Bird,

CJ., Tobriner and Mosk, JJ., conc. Separate dis. opn.

by Richardson, J., with Clark and Manual, JJ., conc.)

Pruneyard holds that the California Constitution

guarantees First Amendment rights exceeding those

guaranteed by the United States Constitution. The

United States Supreme Court, in Pruneyard Shopping

Center v. Robins (1980) 447 U.S. 74, affirmed the

California Supreme Court’s holding, expressly declin-

! It should also be noted that the facts in the instant case diverge

somewhat from those in Pruneyard. First, in Pruneyard, the

shopping center management informed the petitioners that they

would have to leave the premises entirely because they did not

have permission to solicit, suggesting that they continue their

activities on the public sidewalk at the center’s perimeter. In the

case at bench, there was no blanket prohibition of First

Amendment expressive activity; instead, the management permit-

ted this activity, subject to time, place, and manner regulations.

Second, the Pruneyard opinion, by citing statistics concerning the

growth of suburban communities and the economic and social

importance of suburban shopping centers, implied that barring

First Amendment expression in such shopping centers would leave

the public without an alternative forum in which to engage in — or

to hear — First Amendment expression. Here, by contrast, we note

that the shopping center lies at the very center of the downtown

shopping, business, and government activity of a large city, which

is itself a regional commercial, governmental, and cultural center.

The area contains innumerable and well-traveled streets, parks,

and other traditional public forums available for First Amendment

expression in a way that the suburban shopping center in

Pruneyard evidently did not.

—A39—

ing to “limit the authority of the State to exercise its

police power or its sovereign right to adopt in its own

Constitution individual liberties more expansive than

those conferred by the Federal Constitution.” (Id., at

81.) So long as a state respects the federal constitution-

al minimum, it may define the maximum scope of

constitutional rights. To echo the phrase of California

Supreme Court Justice Stanley Mosk, so long as it rests

its foundation on the federal floor, California may

construct its own constitutional ceiling. (Mosk, Beyond

the Constitution (Aug. 1987) 7 Cal.Law. 100.)

Since these enlarged First Amendment rights are

creatures of state constitutional law, we must look to

state law for the appropriate standard of reviewing

private regulations of these state-created rights. The

California Supreme Court in Pruneyard, however, has

not expressly specified the standard for reviewing these

regulations, except to say that they must be

“reasonable.” To clarify what this “reasonable”

standard of review means vis-a-vis private regulation

of public access to private property, it is helpful to

recall the method by which federal courts analyze

government limitations on public access to various

sorts of public property.

Federal First Amendment cases link the standard of

review to the type of property used by those seeking to

exercise their rights of expression. “The existence of a

right of access to public property and the standard by

which limitations upon such a right must be evaluated

differ depending on the character of the property at

issue.” (Perry Education Assn. v. Perry Local Educators’

Assn. (1983) 460 U.S. 37, 44.) The federal standard of

review changes according to the position a particular

type of public property occupies along a “spectrum” of

———7~

a

various places in which First Amendment activity

occurs. (Id., at 45.) There are three such categories.

First, in traditional, “quintessential public forums,”

such as streets and parks, the government may not

prohibit all communicative activity. To. enforce a

content-based prohibition, the State must show it is

necessary to serve a compelling state interest and is

narrowly drawn to achieve that end. The State may

enforce time, place, and manner of expression

regulations which are content-neutral, narrowly tai-

lored to serve a significant government interest, and

leave ample alternative channels of communication

open. (Id., at 45.) The standards governing a second

category, a designated public forum — public property

which the State has opened to the public for expressive

activity — are identical to those governing a traditional

public forum, as long as the State retains the facility’s

open, public character. (Id., at 45-46.)

A different standard, however, governs a third

category: public property “not by tradition or

designation a forum for public communication.” (/d.,

at 46.) “In addition to time, place, and manner

regulations, the State may reserve the forum for its

intended purposes, communicative or otherwise, as

long as the regulation on speech is reasonable and not

an effort to suppress expression merely because public

officials oppose the speaker’s view.” (/d., at 46.)

Perry leads to the conclusion that the further a

particular parcel of property lies from a “traditional

public forum,” the lower the standard of review. For

two reasons, a Pruneyard-type forum falls into none of

the three Perry categories. First, it is privately owned.

Second, the limitations on the public’s access to the

property originates not from any governmental or

ime fist —

other public entity, but from the private owner. Thus,

while “ [f]ederal principles are relevant” in determin-

ing the standard of review to be accorded property in

this fourth category, so long as federal rights are

protected, federal standards of review are not

conclusive. (Robins v. Pruneyard Shopping Center, supra,

23 Cal.3d 899, 909.) The standard of review for this

“broader zone” of First Amendment expression,

guaranteed by the California Constitution (Blatty v.

New York Times Co. (1986) 42 Cal.3d 1033, 1041) is

lower than the federal standards of review, and a

matter for articulation by the California courts.

Pruneyard states that the Cli.ornia Constitution

“protect[s] speech and petitioning, reasonably

exercised, in shopping centers even when the centers

are privately owned.” (Robins v. Pruneyard Shopping

Center, supra, 23 Cal.3d 899, 910; emphasis added.) The

opinion noted that property owners, like the govern-

ment, may regulate expressive activity as to time, place,

and manner, “under reasonable regulations adopted by

[the property owner] to assure that these activities do

not interfere with normal business operations.” (Id., at

909-911; emphasis added.)

We are not dealing here with an ordinance or a

statute but “rules” obviously prepared, in good faith,

with Pruneyard in mind, by property owners who

operate a mall for commercial purposes.

The superior court in its “Statement of Decision”

(appendix B) also specifically noted that it considered

Pruneyard. Moreover, its rulings as to each paragraph

in the “rules” as applied only to the litigants herein was

an effort to reach a reasonable accommodation of the

rights of all parties. The trial court necessarily could

not make a ruling that would be dispositive of proposed

ciate

—A42—

activities of persons and organizations not before the

court.

After reviewing the record, Plaza’s “Rules”

(appendix A), and the “Statement of Decision”

(appendix B) underpinning the preliminary injunction,

except for Plaza’s “Rules” 11 and 12, I cannot say that

the superior court “exceeded the bounds of reason or

contravened the uncontradicted evidence.”

The majority’s heightened scrutiny and detailed,

rule-by-rule analysis is based on federal constitutional

principles. The type of forum involved in the case at

bench, and the California Pruneyard “reasonableness”

and the Katz “abuse of discretion” standards of

review, in my opinion, make the majority’s detailed

analysis unnecessary. The majority opinion attempts to

clarify the legal requirements applicable to regulations

of First Amendment access to a Pruneyard-type forum.

The purpose of the majority’s treatment is directed at

“foreshortening the prospects of increased litigation”

but in effect amounts to a rewriting of Plaza’s rules.

While this purpose may be laudable, in my view, it has

the flavor of another incremental unwarranted

whittling away of private property rights and the

management of said private property. Moreover,

because of a myriad of unforeseen circumstances such

a detailed treatment for prospective purposes may

increase the likelihood of future litigation, rather than

reduce it. In my view it is preferable to follow the

traditional procedure of deciding the issues raised in

the case before us on the narrowest possible ground,

and to decide any future litigation involving a

Pruneyard-type forum on a case by case basis.

I would affirm the order granting a temporary

restraining order. I would also affirm the superior

ov

court’s order granting a preliminary injunction, except

to that portion of the order pertaining to paragraphs 11

and 12 of plaintiff Plaza’s “Rules for Political

Petitioning on Shopping Center Property,” which I

would reverse. I would order each of the parties to bear

their own costs.

HANSON (Thaxton), J.

—s

RULES FOR POLITICAL PETITIONING ON

SHOPPING CENTER PROPERTY

“The rules are promulagated by the management of

The Plaza Pasadena shopping center (center) for the

purpose of reasonably regulating as to time, place and

manner the activities of all individuals, groups and

organizations (hereinafter referred to as petitioners)

engaged in “political petitioning” on said center’s

property. “Political petitioning” is defined as any

conduct by which an individual obtains signatures for

any petition directed to any governmental or political

body. These Rules shall not be deemed or construed to

permit any activity other than political petitioning, and

the owners of the center reserve the right to prohibit

any activity other than that specifically described in

these Rules and sanctioned by law.

“1. Prior to engaging in political petitioning, a

petitioner must notify the center management office

and provide it with the name, address and signature of

a responsible adult who, by said signature, expressly

accepts full liability for damage, costs or expenses

resulting from the proposed activity. Said liability shall

include, but is not limited to, maintenance costs for

cleaning up litter and expenses resulting from ne

to persons or property or both.

“2. If leaflets or other material are to be handed out

on the center property, the petitioner must post a

$50.00 security deposit to cover the cost of cleaning up

litter which results from such activity. The deposit, less

any expense incurred by center for cleaning up litter,

shall be refunded approximately two weeks after said

activity has ended.

APPENDIX “A”

—A45—

“3. All petitioners engaged in political petitioning

shall use only that portion of the center property

expressly designated for that purpose by the center

management office.

“4. The number of petitioners who may engage in

political petitioning on the center property at a

particular time shall be determined by the center

management office. This determination shall be based

on the following factors: (1) The area available for such

activities; (2) the number of petitioners who wish to

engage in such activity at one particular time; (3) the

potential for conflict between petitioners or between

petitioners and members of the public; and (4) the

safety of the public and center property.

“5. The time during which political petitioning by a

particular petitioner may take place shall be deter-

mined by the center management office. This

determination shall be based on the factors specified in

Rule 4.

“6. Only that furniture (i.e. table, chairs and benches)

approved by the center management office shall be

used on the center property for political petitioning.

Said furniture shall be located as prescribed by the

-center management office.

“7. Posters, plaquards [sic] and displays as well as

their location and method of display shall be subject to

the approval of the center management office. In no

event shall such materials be affixed to any portion of

the center property.

“8. Petitioners shall make no express or implied

representation to any person within the center or on

center property that the owner or the manager of the

center sponsors or supports any view, belief, or request

—A46—

contained in any petition, statement or literature being

disseminated or exhibited on center property.

“9. No lights, loudspeakers or other electrical or

mechanical equipment, device or appliance shall be

used for any purpose by petitioners at the center.

“10. No petitioner shall use, operate or permit to be

played any musical instrument or other device for the

production or reproduction of sound in such a manner

as to cause any sound or noise which, in the reasonable

belief of the center management office, may be

disturbing or offensive.

“11. Petitioners shall not solicit contributions or

donations from anyone on center property nor shall

they engage in the sale of any items or any services on

said property.

“12. Petitioners shall not impede or interfere with the

business of any center tenants, employees or personnel,

or shall they approach, detain or in any way impede or

interfere with the smooth flow and free passage of

center patrons, customers or personnel through the

access ways of the center.

“13. If in the good faith judgment of the center

management office the nature of the proposed political

petitioning activity creates a risk of injury or damage

to person or property, and that such a risk warrants

special insurance protection, then the petitioner

planning to engage in such activity must purchase and

carry the necessary insurance coverage. Said insurance

policy shall name as additional insureds Hahn Property

Management Corporation, the center owner and the

center Merchants’ Association and petitioner shall

provide the center manager prior to commencement of

political petitioning with a valid certificate of

insurance evidencing the same.

—

“14. Any petitioners engaging in political petitioning

shall conduct themselves with proper decorum and

must refrain from any loud or raucous activity which

will annoy or offend the public or any tenants at the

center. Any petitioner engaging in political petitioning

who defaces or otherwise abuses center property or

persons on center property shall be subject to

immediate removal and legal action.

—_—

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

H-CHH ASSOCIATES,

a California limited

Partnership, doing

business as PLAZA

PASADENA, and HAHN

PROPERTY MANAGE-

MENT CORPORATION,

a California Corporation,

CASE NO. C 580 408

STATEMENT OF

DECISION

Original Filed

JAN 13 1938

Plaintiffs,

vs.

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, an

unincorporated assoc-

iation, dba PASADENA

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, DALE

L. GRONEMEIER,

JOHN HINRICHS,

OZRO ANDERSON,

CHRIS SUTTON,

JANE POE, JOHN

eee eee eee

a

ROE, AND DOES I

through 1,000, inclusive,

Defendants,

REPRESENTATIVE

GOVERNMENT, an

unincorporated assoc-

iation; DALE L.

GRONEMEIER,

Cross-Complainants)

)

)

)

)

)

CITIZENS FOR )

)

)

)

)

)

vs.

)

)

)

HAHN PROPERTY )

MANAGEMENT )

CORPORATION; a )

California corporation; )

H-CHH Associates, )

a California limited )

partnership dba )

THE PLAZA )

PASADENA; )

ERNEST W. HAHN )

CO., INC. a )

California corporation; )

PATTI K. MAUDE; )

DOES 1001 - 1100 )

inclusive, )

)

)

)

Cross-de fendants.

—_

I. Motion by Plaintiff for Preliminary Injunction.

A. In granting or denying any relief on this Motion,

the Court shall at this preliminary injunction stage rule

only on the rights of the named parties and not on the

rights generally of the public or of groups not expressly

made parties herein.

Additionally, as to defendant/cross-complainant

Citizens for Representative Government, the claim for

relief relating to the period from Thanksgiving through

Christmas, 1985 is now moot and the Court shall not

rule upon this issue. If this case has not gone to trial in

November, 1986 and defendants/cross-complainants

propose to engage in political activity during the

Thanksgiving-Christmas period at plaintiffs’ premises,

they may apply to the Court for appropriate relief.

B. The Court has reviewed and considered the

“Rules for Political Petitioning on Shopping Center

Property”, (Exh. A, Complaint) as they apply to the

proposed activity of defendant/cross-complainant

Citizens for Representative Government and _ its

officers, members and agents Dale L. Gronemeier,

Ozro Anderson and Chris Sutton.

As so applied, the Court makes the following rulings

as to each of the provisions of said “Rules” as applied

to the defendants/cross-complainants only.

Opening paragrap: (unnumbered): The

definition of “political petitioning” is unrea-

sonable to the extent it does not include

distribution of written materials or solicita-

tion of funds.

Paragraph 1: This provision is reasonable.

Defendants/cross-complainants do not claim

they are minors.

—A51—

Paragraph 2 This provision is reasonable.

Paragraph 3: This provision is reasonable.

Paragraph 4: This provision is reasonable on

its face. Whether it would be unreasonably

applied would depend on the circumstances

of the particular case. Defendants/cross-

complainants have not shown that it would be

unreasonably applied on any application filed

by them for future activity.

Paragraph 5: This provision is reasonable on

its face and the Court makes the same ruling

as in paragraph 4 above.

Paragraph 6: This provision is reasonable.

Paragraph 7: This provision is reasonable as

to the size, number, and location of posters,

plaquards, and displays. It is unreasonable as

to approval of the content thereof to the

extent the content falls within the definition

of “political petitioning”.

Paragraph 8: This provision is reasonable.

Paragraph 9: This provision is reasonable.

Paragraph 10: This provision is reasonable.

Paragraph 11: This provision is unreasonable

to the extent it prevents defendants/cross-

complainants from soliciting contributions to

support the political causes they advocate.

Otherwise, the provision is reasonable.

Paragraph 12 This provision is unreasonable

to the extent it does not permit the

“approach” of patrons by defendants/cross-

complainants within a reasonably described

radius of the location where the table is

—A52—

situated. Otherwise, the provision is reason-

able.

Paragraph 13: This provision is reasonable on

its face so long as the requirement of issuance

is based upon articulat facts and not mere

conjecture or speculation.

Paragraph 14: This provision is reasonable on

its face. The term “loud and raucous activity”

is not impermissibly vague.

C. Ruling as to “Registration Form.”

The Court has reviewed this form. (Exh. A, Cross-

complaint.) On its face, the Court finds it is reasonable.

Requiring the names of persons making the application

and the names of persons in charge of the activity is

reasonable. Requiring the submission of a copy of the

petition is a reasonable means of determining that the

proposed activity involves “‘political petitioning” rather

than other activity, e.g., commercial promotion or

solicitation.

D. The Court grants plaintiffs’ Motion for Prelimi-

nary Injunction restraining and enjoining defendant

Citizens for Representative Government, an unincor-

porated association, its officers, members, employees

and agents and the individual defendants Dale L.

Gronemeier, Ozro Anderson and Chris Sutton, their

agents, servants, and all persons acting in concert with

any or all of the foregoing defendants from:

1. engaging in any political activity on the

premises of Plaza Pasadena, Pasadena, California,

including but not limited to parking areas physically

connected therewith until said defendants have caused

to be submitted to plaintiff an application or

—A53—

registration and have received approval by plaintiff for

such activity;

2. violating or failing to comply with the rules and

regulations adopted by plaintiffs except that such rules

and regulations may not:

(a) regulate the political content of any sign,

poster or display except as to the size of the

sign, poster or display.

(b) prohibit solicitation of political contribu-

tions at the location designated for the

political activity, provided, however, plaintiff

may prescribe a reasonable radius surround-

ing the table beyond which defendants may

not approach persons for contributions.

(c) prohibit defendants from approaching

persons within a reasonable radius of the

table where the political activity is permitted

so long as defendants do not physically

impede such person.

E. The preliminary injunction is conditioned upon

plaintiff filing a $10,000 bond.

F. The Court reserves jurisdiction to modify or

dissolve the preliminary injunction for good cause

shown.

II. COMMENT OF THE COURT

A. The Court disagrees with the position of

defendants/cross-complainants to the extent that they

contend their right of political expression on the

premises of a private shopping mall is subject to no less

restraint than that on a public sidewalk or public

premises. The Court is guided principally by the

criteria in Robins v. Pruneyard Shopping Center 23

Cal.3d 899, 910, 911 which requires a shopping mall,

se

—A54—

such as here, to permit “a handful of additional

orderly persons soliciting signatures and distributing

handbills in connection therewith, under reasonable

regulations adapted ... to assure that these activities

do not interfere with normal business operations...”

B. In its rulings above, the Court has attempted to

reach a reasonable accommodation of the rights of all

parties. At the same time, the Court recognizes that it

cannot make a ruling that would be dispositive of

proposed activities of persons and organizations not

before the Court. Accordingly, the rulings herein apply

only to the parties before the Court.

IV. The restraining order issued herein’ on

December 23, 1985 is continued in effect until

January 17, 1986, 4:00 p.m. to allow plaintiffs to

submit preliminary injunction.

Dated: January 13, 1988

RAR“ 2,° 4 -

tes oe Cs... oo

WARREN H. DEERING

Judge of the Superior Court

APPENDIX B

Order Denying Rehearing by Court of Appeal

=

OFFICE OF THE CLERK

COURT OF APPEAL

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

ROBERT N. WILSON, CLERK

DIVISION: 1 DATE: 06/26/87

Ball, Hunt, Hart, Brown & Baerwitz

Tom J. Leanse

120 Linden Avenue

P.O. Box 1287

Long Beach, CA. 90801

RE: H-CHH Associates Et Al.

vs.

Citizens For Representative Government

2 Civil BO19051

Los Angeles NO. C580408

THE COURT:

Petition for rehearing denied.

APPENDIX C

Order Denying Petition for Review by

California Supreme Court

poe. poe

ORDER DENYING REVIEW

SUPREM= -

AFTER JUDGMENT FILED

BY THE COURT OF APPEAL

OCT 2 91537

u 3 P. a

Second District, Division One, wm ee

No. B019051, S002307

OaeuTyY >

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

IN BANK

H-CHH ASSOCIATES ET AL.,

Respondents, 2

v.

CITIZENS FOR

REPRESENTATIVE GOVERNMENT ET AL.,

Appellants

Respondents’ petition for review DENIED.

The request for an order directing depublication of

the opinion in the above-entitled cause is DENIED.

LUCAS

MALCOLM LUCAS

Chief Justice

APPENDIX D

Temporary Restraining Order by Trial Court

~~ on

BALL, HUNT, HART, BROWN AND

BAERWITZ

211 East Ocean Boulevard

Post Office Box 1287

Long Beach, California 90801

(213) 435-5631

Attorneys for Plaintiffs

ORIGINAL FILES

DEC2 3 ta

COUNTY CLERK

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

unincorporated assoc-

iation, dba PASADENA

H-CHH ASSOCIATES, ) CASE NO

a California limited )

partnership, doing ) PROPOSED

business as PLAZA ) TEMPORARY

PASADENA, and HAHN ) RESTRAINING

PROPERTY MANAGE- ) ORDER AND

MENT CORPORATION, ) ORDER TO

a California Corporation, ) SHOW CAUSE

) RE PRELIMINARY

Plaintiffs, ) INJUNCTION

)

VS. )

)

CITIZENS FOR ) DATE: January 10, 1986

REPRESENTATIVE ) TIME: 9:00 a.m.

GOVERNMENT, an ) DEPT: 86

)

)

|

eS)

7

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, DALE

L. GRONEMEIER,

JOHN HINRICHS,

OZRO ANDERSON,

CHRIS SUTTON,

JANE POE, JOHN

ROE, AND DOES I

through 1,000, inclusive,

Defendants,

Ne eee ee eee eee ee”

a

On reading the verified complaint f plaintiffs and

the declarations and memorandum of points and

authorities submitted therewith, and it appearing to the

satisfaction of the court that this is a proper case for

issuance of a temporary restraining order and/or an

order to show cause, and that unless the temporary

restraining order issues, plaintiffs will suffer great

and/or irreparable injury before the matter can be

heard upon notice,

IT IS HEREBY ORDERED that the above-

mentioned defendants and each of them shall appear

before this court in Department 86 on the 10th day of

January, 1986, at 9:00 a.m., then and there to show

cause, if any, why they, and their officers, agents,

representatives, employees, and all persons acting in

concert with them, should not be enjoined and

restrained from entering, occupying, or using any

portion of the Plaza Pasadena for the purpose of

carrying on any activities connected with, on behalf of,

or related to Citizens for Representative Government,

or students petitioning the government to provide aid

ss

to the Contras, or any other political cause, until and

unless each individual, organization, or entity, shall

have applied to and been authorized by the manager of

Plaza Pasadena to conduct such activities and such

activities are conducted in accordance with the Rules

for Political Petitioning attached hereto as Exhibit

“eer

From performing any of the following acts on any

portion of Plaza Pasadena on behalf of, or related to,

Citizens for Representative Government or students

petitioning the government to provide aid to the

Contras or any other politically related group:

(a) Distributing any pamphlets, literature, flyers,

bumper strips, or other paraphernalia;

(bo) Soliciting signatures of any persons, except

from a location designated by plaintiffs and only on the

days and during the hours that the mall is open to the

public as specifically approved by the manager of Plaza

Pasadena;

(c) Soliciting money from any persons;

(d) Using any form or furniture, equipment,

displays, posters, or plaques, unless prior approval

therefor has been obtained from the manager of Plaza

Pasadena;

(e) Approaching, grabbing, holding, or in any

other way impeding any other persons moving through

the Plaza Pasadena;

(f) Yelling, using foul or abusive language, or in

any other way causing a disturbance while on the

premises;

(g) Preventing or hindering business from being

conducted in the Plaza Pasadena; and

=

(h) In any other way, impeding, disturbing, or

interfering with the commercial activity of Plaza

Pasadena, its owners, tenants, patrons, or other

occupants.

IT IS FURTHER ORDERED that time is shortened

for purposes of service of the Ex Parte Application,

this Order, the Memorandum of Points and Authorities

and the Summons and Complaint in this matter

pursuant to Code of Civil Procedure Section 1005 so

that service of the Ex Parte Application, this Order, the

Memorandum of Points and Authorities, and the

Summons and Complaint by way of personal service no

later than December ——, 1985 at 5:00 p.m. is adjudged

to be sufficient notice of the proceedings mentioned

therein.

IT IS FURTHER ORDERED that pending such a

hearing on the Order to Show Cause, said defendants,

their officers, agents, representatives, and employees,

and all persons acting in concert with them, are

enjoined and restrained from entering, occupying, or

using any portion of Plaza Pasadena for the purpose of

carrying on any activities connected ‘vith, on behalf, or

related to Citizens for Representative Government,

students petitioning the government to provide aid to

the Contras, or any other political cause until and

unless each individual, organization, or entity shall

have applied to and been authorized and approved by

the manager of Plaza Pasadena to conduct such

activities and such activities are conducted in

accordance with the Rules for Political Petitioning

attached hereto as Exhibit “A”; and

From performing any of the following acts on any

portion of Plaza Pasadena cn behalf of, or related to,

—— Citizens for Representative Government or students

_—

petitioning the government to provide aid to the

Contras or any other politically related group:

(a) Distributing any pamphlets, literature, flyers,

bumper strips, or other paraphernalia;

(b) Soliciting signatures of any persons, except

from a location designated by plaintiffs and only on the

days and during the hours that the mall is open to the

public as specifically approved by the Manager of

Plaza Pasadena;

(c) Soliciting money from any persons;

(d) Using any form or furniture, equipment,

displays, posters, or plaques, unless prior approval

therefor has been obtained from the manager of Plaza

Pasadena;

(e) Approaching, grabbing, holding, or in any

other way impeding any other persons moving through

the Plaza Pasadena;

(f) Yelling, using foul or abusive language, or in

any other way causing a disturbance while on the

premises;

(g) Preventing or hindering business from being

conducted in the Plaza Pasadena; and

(h) In any other way, impeding, disturbing, or

interfering with the commercial activity of Plaza

Pasadena, its owners, tenants, patrons, or other

occupants.

— ,”

Dated this __. day of December, 1985.

VACK PF pressor:

COMMISSIONER/JUDGE OF THE

SUPERIOR COURT

APPENDIX E

Preliminary Injunction by Trial Court

“y

—

BALL, HUNT, HART, BROWN, AND

BAERWITZ

211 EAST OCEAN BOULEVARD

P.O. BOX 1287

LONG BEACH, CALIFORNIA 90801 ie _

(213) 435-5631 CRISINAL FILED |

Attorneys for Plaintiffs JAN? ? 1988

and Cross-Defendants COUNTY CLE

SUPERIOR COURT OF THE STATE OF

CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

H-CHH ASSOCIATES, CASE NO.

a California limited C 580 408

partnership, doing

business as PLAZA PRELIMINARY

PASADENA, and HAHN INJUNCTION

PROPERTY MANAGE-

MENT CORPORATION,

a California Corporation,

Plaintiffs,

vs.

CITIZENS FOR DATE: January 10, 1986

REPRESENTATIVE TIME: 9:00 A.M.

GOVERNMENT, an DEPT: 86

unincorporated assoc-

ee ee ee a a a a ae ae, 4 ee e_ e e

iation, dba PASADENA

|

es

7

CITIZENS FOR

REPRESENTATIVE

GOVERNMENT, DALE

L. GRONEMEIER,

JOHN HINRICHS,

OZRO ANDERSON,

CHRIS SUTTON,

JANE POE, JOHN

ROE, AND DOES I

through 1,000, inclusive,

Defendants,

AND RELATED

CROSS-ACTION

ee a a a ee

The application of Plaintiff for preliminary

injunction made herewith came on regularly for

hearing before the court on January 10, 1986, pursuant

to an order to show cause issued by the court on

December 23, 1985. Plaintiffs appeared by counsel,

Ball, Hunt, Hart, Brown and Baerwitz, and Thomas J.

Leanse; Defendants appeared by counsel, Gronemeier,

Barker & Huerta, by Dale L. Gronemeier and

Christopher Sutton.

Upon proof made to the satisfaction of the court,

and good cause appearing therefore, as reflected in the

court’s statement of decision dated January 13, 1986,

IT IS ORDERED that during the pendency of this

action, Defendant Citizens For Representative Gov-

ernment, an unincorporated association, its officers,

=

members, employees, and agents, and the individual

defendants, Dale L. Gronemeier, Ozro Anderson, and

Chris Sutton, their agents, servants, and all persons

acting in concert with any or all of the foregoing

defendants shall and hereby are enjoined and

restrained from:

1. Engaging in any political activity on the premises

of Plaza Pasadena, Pasadena, California, including but

not limited to parking areas physically connected

therewith until said defendants have caused to be

submitted to plaintiff an application or registration

form and have received approval by plaintiff for such

activity;

2. Violating, or failing to comply with the rules and

regulations adopted by plaintiffs, except that such rules

and regulations may not:

(a) Regulate the political content of any sign,

poster, or display, except as to the size of the sign,

poster, or display;

(b) Prohibit solicitation of political contributions

at the location designated for the political activity,

provided, however, plaintiff may prescribe a reasonable

radius surrounding the table beyond which defendants

may not approach persons for contributions.

(c) Prohibit defendants from approaching persons

within a reasonable radius of the table where the

political activity is permitted, so long as defendants do

not physically impede such persons.

IT IS FURTHER ORDERED that, before the

foregoing order shall take effect, plaintiff herein shall

file a written undertaking in the sum of $10,000.00, as

required by Section 529 of Code of Civil Procedure, for

the purpose of indemnifying defendants for such

nails

damages as they may sustain by reason of this

preliminary injunction if the court finally decides that

plaintiff is not entitled thereto;

IT IS FURTHER ORDERED that the preliminary

injunction as set forth above, shall issue upon plaintiff’s

filing a written undertaking of the sum specified above.

The court reserves jurisdiction to modify or dissolve

the preliminary injunction for good cause shown.

Dated this 17 day of January, 1986.

rpc Ochi

WARREN H. DEERING

Judge of the Superior Court

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of the

County of Los Angeles, over the age of eighteen (18) years and

not a party to the within action or proceeding; that my business

address is 10835 Santa Monica Boulevard, Los Angeles,

California 90025; that on January 26, 1988, I served the within

Petition for Writ of Certiorari in re: ““H-CHH Associates et al.

vs. Citizens for Representative Government et al.,” by

depositing true copies thereof, enclosed in a sealed envelope

with postage thereon fully prepaid, in the United States mail at

Los Angeles, California, addressed as follows:

Clerk, United States Dale L. Gronemeier

Supreme Court Gronemeier, Barker & Huerta

One First Street, NE. 199 South Los Robles

Washington, D.C. 20543 Suite 810

(Original + 40 Copies) Pasadena, CA 91101

(3 Copies)

Allen B. Grodsky

ACLU Foundation of

Southern California

633 South Shatto Place

Los Angeles, CA 90005

(1 Copy)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on January 26, 1988, at Los Angeles,

California.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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