Petition for Writ of Certiorari — H-CHH Associates v. Citizens for Representative Government
Supreme Court brief1988
Ask Donna
What actually matters in this document.
Text
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.