# Petition for Writ of Certiorari — H-CHH Associates v. Citizens for Representative Government > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1292%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 485 U.S. 971 ## 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1292%3A1. Public record. Not legal advice.