# Petition for Writ of Certiorari — Short Hills Associates v. New Jersey Coalition Against War in the Middle East

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 812

## Text

Suprénté Oourt, U.S.
FILED

\\) 942925 mar 239%

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

SHORT HILLS ASSOCIATES, f.k.a.
Prutaub Joint Venture, Petitioner,

v.

NEw JERSEY COALITION AGAINST WAR IN THE
MIDDLE EAST, SYLVIA ACKELSBERG, and
DAVID CLINE, et al., Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey

PETITION FOR A WRIT OF CERTIORARI

JOSEPH AVIV
Counsel of Record
BRUCE L. SEGAL
Of Counsel: MIRO Miro & WEINER
RICHARD A. EPSTEIN a professional corporation
1111 East 60th Street Suite 100
Chicago, Illinois 60637 500 North Woodward Avenue
P.O. Box 908
Bloomfield Hills, Michigan
48303-0908
Telephone: (810) 258-1207

Counsel for Petitioner
May 1995

BOWNE OF DETROIT
610 W. CONGRESS - DETROIT, MICHIGAN 48226 - (313) 964-1330

—

i
QUESTIONS PRESENTED

1. Does a state court order that requires a shopping center
owner to furnish a valuable portion of the owner’s private property
to political and social action groups to espouse causes opposed by
the owner constitute a forced subsidization of another’s speech in
violation of the First Amendment?

2. Does a state court order that grants an easement to
political and social action groups to occupy a valuable portion of a
privately-owned shopping center for the purpose of espousing
their causes, without either using the state’s power of eminent
domain or paying for the easement, violate the Takings Clause of
the Fifth Amendment?

ii
LIST OF PARTIES

The other parties in the caption, listed as automatic respon-
dents, are:

J.M.B. Realty Corporation

Cherry Hill Center, Inc.

Kravco, Inc.

Equity Properties & Development Co.
Rockaway Center Associates
Woodbridge Center, Inc.

Livingston Mall Venture

Hartz Mountain Industries, Inc.

All parties to the proceeding in the Supreme Court of New Jersey
appear in the caption of the case.

iii

TABLE OF CONTENTS

Page

Coe ey ORIN? vis civ bole b% wks vaWoencec i
Ne cc eewowdcnn ii
pe Re PM hey 0 1 gg) SRR eee ae Cs ee iv
a a l
IE RC ERS ne longer 2
CONSTITUTIONAL PROVISIONS INVOLVED .... 2
Pe ee GM gg ic cca cu's caacdvcces 2
Oe. gE RE RR ag ee eam 2
1. How the Federal Questions Were Raised...... 3

2. How the Federal Questions Were Passed Upon
and the Judgments Below................... 3
i IE Wietie Gub-s 50% s cscs cc tecsescces 5
eee 6
REASONS FOR GRANTING THE PETITION ...... 10

I. THE STATE SUPREME COURT FORCES
THE OWNER OF THE MALL AT SHORT
HILLS TO SUBSIDIZE THE POLITICAL
SPEECH OF THE COALITION _IN
VIOLATION OF THE FIRST AMENDMENT .. 11

Il. THE STATE SUPREME COURT TAKES THE
PRIVATE PROPERTY OF THE MALL AT
SHORT HILLS FOR THE USE OF THE COALI-
TION WITHOUT JUST COMPENSATION IN
VIOLATION OF THE FIFTH AMENDMENT .. 20

IE a 6 i Ako EN hinena dS aed aas's cone doce 25

APPENDIX (separate volume)

iv

TABLE OF AUTHORITIES

Cases Page
Abood v. Detroit Bd. of Educ., 431 U.S. 209

CEPT ER 55.8 o0ven cb ete pure eeiT se ees orsees 20
Chicago Teachers Union, Local No. | v.

Hudson, 475 U.S. 292 (1986) ..........006. 14, 15
Collin v. Smith, 578 F.2d 1197 (7th Cir.),

cert. denied, 439 U.S. 916 (1978) ........... 18
Cologne v. Westfarms Assocs., 192 Conn. 48,

SGD ABE TH GIF) ca esha 0US bes ohne’ 18, 19

Cologne v. Westfarms Assocs., No. 274171,
slip op. (Conn. Super. Ct. Aug. 13, 1983),
modifying No. 274171, slip op. (Conn.
Super. Ct. Feb. 28, 1983), rev'd, 192

Conn. 48, 469 A.2d 1201 (1984)............ 19
Dolan v. City of Tigard, 114 S.Ct.'2309

CN ex oo as aha ase cnes secs 22
Ellis v. Brotherhood of Ry., Airline &

Steamship Clerks, 466 U.S. 435 (1984) ...... 16

Heffron v. International Soc’y for Krishna
Consciousness, Inc., 452 U.S. 640

CE i ine ee GAL rin Reedai eo eve 17
Kaiser Aetna v. United States, 444 U.S. 164

bees) Pee eee ey Pe ere y eee Fane eae 24
Lehnert v. Ferris Faculty Ass’n,

Pe a ie ss cake kes o> Xe 11, 16
Lloyd Corp. v. Tanner, 407 U.S. 551

RUSE acecies ba tinea emis Kale brane on 12
Loretto v. Teleprompter Manhattan CATV

Came, Bae Thee Gi GOURD sc cccccadsesvess 24
Lucas v. South Carolina Coastal Council,

ee he Be RA eee 24

New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp.,
138 N.J. 326, 650 A.2d 757 (1994) ......... 1, 4, 8, 9, 10,
14, 20, 22, 23

|

New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp.,
134 N.J. 564, 636 A.2d 522 (1993) ......... |

New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp.,
266 N.J. Super. 159, 628 A.2d 1075
PM Ap DAR Re ee re eee eee 1,4

New Jersey Coalition Against War in the
Middle East v. J.M.B. Realty Corp.,
266 N.J. Super. 195, 628 A.2d 1094

oe | ey ee eee eee 1, 3,4
Nollan v. California Coastal Comm'n,
Pots Bo 3) SUE ae 24, 25
Pacific Gas & Elect. Co. v. Public Utils.
Comm'n of Cal., 475 U.S. 1 (1986) ......... 15, 17
PruneYard Shopping Center v. Robins,
ET Sie RE osc ch agee ad pene ene cans 10, 11, 12, 13,
14, 15, 20, 21,
22, 23, 24
Roberts v. United States Jaycees, 468 U.S.
ee CEE Since Se he Conk ka coer est oa es 15
Wooley v. Maynard, 430 U.S. 705 (1977) ...... 16

Constitutional Provisions

OE gO ee Ee ee reer yee 20
CLs Ce ey Baa ik ie ee 2, RASH,

18, 20
Oe rece ccceeckuee eaen 2, tp ae oe
Re a I 2B E e © Rive cecascavecuwess as
Statutes

ULE 6 0 oS 2

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

SHORT HILLS ASSOCIATES, f.k.a.
Prutaub Joint Venture, Petitioner,

Vv.

New JERSEY COALITION AGAINST WAR IN THE
MIDDLE EAST, SYLVIA ACKELSBERG, and
DAVID CLINE, et al., Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of New Jersey

PETITION FOR A WRIT OF CERTIORARI

The petitioner, Short Hills Associates,’ respectfully petitions
for a writ of certiorari to review the judgment of the Supreme
Court of New Jersey in this case.

OPINIONS BELOW

The opinion of the Supreme Court of New Jersey (4-3
decision), together with the dissenting opinion of Justice
Garibaldi, is reported at 138 N.J. 326, 650 A.2d 757. (The slip
opinion is reproduced at App. la-80a.)? The per curiam opinion
of the Superior Court of New Jersey, Appellate Division, is
reported at 266 N.J. Super. 159, 628 A.2d 1075. (Slip op., App.
83a-86a.) The opinion of the Superior Court of New Jersey,
Chancery Division, Bergen County, is reported at 266 N.J. Super.
195, 628 A.2d 1094. (Slip op., App. 87a-114a.)

'Short Hills Associates, a New Jersey partnership, is a continuation of the
partnership formerly named Prutaub Joint Venture.

*The grant of the petition and of the cross-petition for certification to the
state supreme court is reported at 134 N.J. 564, 636 A.2d 522. (App. 81a, 82a.)

ia Nea.

2

JURISDICTION

The judgment of the Supreme Court of New Jersey was
entered on December 20, 1994. (App. 115a-116a.) The supreme
court denied the petitioner’s timely motion for reconsideration by
an order dated February 23, 1995, and filed February 24, 1995.
(App. 117a.)

The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED
U.S. Const. amend. I:

“Congress shall make no law... abridging the freedom of
speech....

U.S. Const. amend. V:

“...nor shall private property be taken for public use,
without just compensation.”

U.S. Const. amend. XIV, § 1:

“.. nor shall any State deprive any person of life, liberty, or
property, without due process of law... .”

STATEMENT OF THE CASE
A. Proceedings Below

On November 5, 1990, the respondents (as plaintiffs), New
Jersey Coalition Against War in the Middle East and individual
members of the coalition (collectively, the “Coalition”), filed a
complaint for injunctive relief in the Superior Court of New
Jersey, Chancery Division, Bergen County, against the owner of
each of 10 shopping centers, including the petitioner, seeking
temporary restraints to enjoin the owners “from preventing or
interfering with the plaintiffs and their associates from distributing

———————————EE———

3

pamphlets/flyers at each” of the 10 shopping centers on Novem-
ber 10, 1990. (Compl. 15, 9 1.) The trial court denied the
Coalition’s two applications for a temporary restraining order
(and its motion for a preliminary injunction) following hearings,
and the appellate division and the state supreme court each twice
denied leave to appeal the interlocutory rulings. (See Pls.’ App.
(App. Div.) 81-83.)

1. How the Federal Questions Were Raised

The petitioner filed a counterclaim and an amended counter-
claim against the Coalition, seeking declaratory and injunctive
relief on Federal grounds. In particular, the pleadings claimed
that the Coalition’s political activities on the petitioner’s private
property, if commanded by the courts of the state, would abridge
the petitioner’s freedoms of speech and belief and of association
under the First and Fourteenth Amendments to the Constitution
of the United States and would deprive the petitioner of its
property without due process of law and without just compensa-
tion guaranteed by the Fifth and Fourteenth Amendments to the
Constitution. (App. 121la-127a, 133a-139a.)

2. How the Federal Questions Were Passed
Upon and the Judgments Below

After an 11-day trial, the court entered judgment against the
Coalition on its complaint and against the petitioner on its
counterclaim. New Jersey Coalition Against War in the Middle
East v. J.M.B. Realty Corp., 266 N.J. Super. 195, 204, 628 A.2d
1094, 1099 (Ch. Div. 1991). (App. 96a-97a.) An Order for
Judgment followed on August 14, 1991. (App. 115a-116a.) The
trial court found that the malls are retail establishments “de-
signed to help customers focus upon the stores and the products
contained in each of them,” “[t]hey are designed and managed to
induce impulse shopping,” and the tenants pay for the mainte-
nance of the common areas but are restricted from using these
areas “except in the event of a mall sponsored promotion or
event.” New Jersey Coalition, 266 N.J. Super. at 200, 202, 628
A.2d at 1097, 1098. Addressing the relationship of the Coalition’s

4

proposed use for political leafleting to the owners’ actual use of
their property, the court found:

There has been no testimony or proofs offered that any
of the defendant malls permit free and unfettered access
and/or activities to their mall premises whether it be in the
interior common areas, on the sidewalks surrounding the
mall buildings or in the parking lots which are adjacent to the
mall premises. The credible testimony offered by the defend-
ants indicates that activities which are perceived by mall
management to be controversial in nature or confrontational
are not permitted. Effectively, every effort is made to avoid
two-sided issues. Specifically outside activities of either a
religious or a political nature are avoided. ...

... As a result of judgments made by the owners and
operators of each of the malls and policies which they have
established, each has embarked upon a program as to how to
best manage their property and conduct their business. The
plaintiffs have not met their burden of proving that their
activities are not discordant with both the public and private
uses to which these shopping malls are dedicated.

Id. at 203-04, 628 A.2d at 1099.’

The appellate division affirmed the trial court’s Order for
Judgment. New Jersey Coalition Against War in the Middle East
v. J.M.B. Realty Corp., 266 N.J. Super. 159, 628 A.2d 1075
(App. Div. 1993) (per curiam). (App. 83a-86a.) The Supreme
Court of New Jersey, in turn, by a four to three majority,
reversed, declaring that the Coalition has a state constitutional
right to leaflet at all regional shopping centers in New Jersey,
including the petitioner’s, and that that right is not inconsistent
with Federal constitutional guarantees. New Jersey Coalition
Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J.
326, 650 A.2d 757 (1994) (4-3 decision). (App. la-80a.) On
December 30, 1994, the petitioner filed in the supreme court a
motion for reconsideration. By an order filed on February 24,

*The opinion did not discuss the petitioner's counterclaim.

5

1995, the supreme court denied the motion for reconsideration.
(App. 117a.)

B. The Respondents

The Coalition is a loose affiliation of activist groups that have
engaged in an extensive array of partisan activity.’ It is comprised
of several dozen organizations with over 25,000 members, and it
engages in political activities, including “holding public meetings
and similar activities directed to generating discussion and activ-
ity.” (App. 141a, J 1.) The Coalition’s actions in this case stem
from its efforts to “educat[e] the public about the growing costs
of hostilities in the Persian Gulf” (Compl. 2, 1), but not
through traditional, grass-roots door-to-door leafleting. Instead,
by this lawsuit, it seeks to concentrate its efforts on leafleting,
engaging passersby, and soliciting contributions at privately-
owned shopping malls, including The Mall at Short Hills, without
the property owners’ consent.

In addition to organizations specifically formed in opposition
to the war in the Persian Gulf, the Coalition includes various
other groups, such as the Baptist Peace Fellowship, the Mon-
mouth County Coalition for the Homeless, and the New Jersey
Council of Churches. (App. 142a, | 6.) These various groups
within the Coalition have conducted public hearings in Jersey
City, teach-ins and public forums at churches and universities,
gatherings at congressional offices, a rally at McGuire Air Force
Base, vigils at local hospitals, and two all-day marches in Wash-
ington, D.C., as well as other activities described in the various
press releases admitted into evidence. (Prutaub, JMB’s App.
(App. Div.) 32-49.) Indeed, even though the Coalition was
denied access to the defendant-shopping malls, it boasts that it
handed out over 85,000 leaflets elsewhere during the two weeks
preceding the November 28, 1990, hearing on its application for
temporary restraints. (App. 142a, ¥ 8.)

‘One month after this suit was commenced, the Coalition filed articles of
incorporation. (See Tr. (6/3/91) 62.) The Coalition carries no liability insur-
ance of any kind. (Tr. (6/3/91) 65.)

6

C. The Mall at Short Hills

The petitioner owns The Mall at Short Hills, a high-fashion
shopping center located in the suburban community of Short
Hills, New Jersey.* The mall caters to an affluent clientele with
some 120 specialty stores and boutiques, such as Gucci and
Barney’s New York, leased to individual tenants, as well as Saks
Fifth Avenue and two other department stores. (See Tr.
(6/24/91) 11.) The common areas of passage between the stores
were constructed and are maintained to provide a neutral, non-
competitive, nondisruptive ambience that draws the customers’
attention into the various stores. The tenants pay for the security,
insurance, cleaning, electricity, heating, air conditioning, and
upkeep of these common areas. (App. 143a, J] 13.)

Each of the tenants has a lease requiring the payment of a
percentage of its sales to the owner (Tr. (6/17/91) 19-20), and,
not surprisingly, the primary purpose of The Mall at Short Hills is
to maximize the sales of its tenants. (Tr. (6/7/91) 70, 79.) The
owner’s goal is that the patrons freely flow through the common
areas and into the stores. As one of the architectural planners of
the mall testified, virtually every design element from floor to
ceiling is intended to subordinate the common areas and to
enhance the storefronts and the merchandise within, even the
color scheme, which is monochromatic:

It’s subdued, very calm, very serene atmosphere which is
very important in getting the customer to concentrate on the
experience and merchandise displayed in the stores so that
the mall itself does not become a distraction by virtue of its
business with the colors and textures and things happening
inconsistent with our primary purpose.

(Tr. (6/7/91) 85-86.)

‘The Mall at Short Hills is private property. No public property was
dedicated for private use in the development of the mall. (Tr. (6/17/91)
35-36.) The mall receives no tax subsidies or abatements. (Tr. (6/17/91) 36.)
There are no residential structures at The Mall at Short Hills, no professional
offices, such as those of doctors, lawyers, or accountants, no post offices, no
places of religious worship, and no public buildings. (Tr. (6/17/91) 37-39.)

7

Great expense and effort is taken to break down the demar-
cation between the storefronts and the common areas so that
customers will be drawn into the stores instead of the common
areas (where the Coalition wants to proselytize). Most important
in this regard is the preservation of clear sight lines to the stores.
Structural columns are located behind storefronts instead of in
the mall, architecturally sophisticated railings are constructed of
transparent glass, and tenants are required to construct their
storefronts at specified angles and in conformity with strict
appearance guidelines to attract customers. (Tr. (6/7/91) 81,
84, 87-88.)

Perhaps most indicative of the financial investment in the
common areas and the value these areas give to the property is
the owner’s treatment of kiosks. While some malls place kiosks
(small island spaces) in their common areas for tenant rental,
either year round or during peak seasons, the owner of The Mall
at Short Hills deliberately designed the common areas to be free
from distraction and, therefore, elected to not allow kiosks, which,
in the owner’s business judgment, denigrate the mall’s aesthetic
atmosphere and obscure sight lines to the stores. (Tr. (6/17/91)
28-30.) The owner made this decision despite the fact that kiosks
in the center of the mall alone could have generated up to
$500,000 in annual rental. (Tr. (6/17/91) 29.)

To further the purpose of maintaining a nondisruptive envi-
ronment in the common areas, none of the tenants is permitted to
solicit business or to distribute leaflets or advertising matter in the
common areas, and no politicking is allowed. (Tr. (6/17/91)
23, 25, Tr. (6/24/91) 7-8.) In addition, as stipulated by the
Coalition, the mall uniformly, without discrimination, applies a
trespass policy that prohibits “soliciting, speech making, distribut-
ing handbills or other literature, seeking signatures on petitions, or
taking surveys.” (App. 143a, §] 17, 144a, | 20.) The Mall at Short
Hills does not even permit the Boy Scouts or Girl Scouts, the Red
Cross, or the Salvation Army to appear on its premises (see
App. 144a, | 19), and it allows no art shows, lectures, flower
shows, or the like. (See Tr. (6/24/91) 11.)

8

The majority of the Supreme Court of New Jersey made
findings or took judicial notice of supposed facts that do not apply
to The Mall at Short Hills and, in some cases, are contrary to the
express Stipulation of Facts of the petitioner and the Coalition.
For example, while the majority states that “[t]he centers,
moreover, have apparently not excluded the partisan political
speech often found in voter registration drives, most of which
were sponsored by party organizations or candidates, and espe-
cially found in the conduct of the candidates (and presumably
their aides) as they walk through the mall,” New Jersey Coali-
tion, 138 N.J. at 360, 650 A.2d at 774, the Coalition stipulated
that, in fact: “The Mall at Short Hills does not allow its common
areas to be used for political functions,” and it “has never allowed
partisan political activities on its private property.” (App. 144a,
"| 18, 23.) No voter registration drive or candidate walk-through
has ever been permitted at The Mall at Short Hills.

While the majority mentions a variety of public service
activities that occur at various shopping centers, including provid-
ing access to community groups, permitting leafleting, and spon-
soring other events that included political speech or issues of civic
importance, New Jersey Coalition, 138 N.J. at 340-42, 650 A.2d
at 764-65, none of these activities has ever taken place at The
Mall at Short Hills. Indeed, the Coalition conceded that The
Mall at Short Hills “appears not to sponsor any public service
activities.” (Pls.’ Br. (App. Div.) 32.) In fact, the mall sponsored
only three types of events in 1990 and 1991 - concert perform-
ances, Santa Claus at Christmas, and Peter Rabbit at Easter, New
Jersey Coalition, 138 N.J. at 385-86 app. B, 650 A.2d at 787
app. B, each of which was designed to draw targeted customers
into the mall. (Tr. (6/24/91) 12-14.)§

The petitioner’s plan of operation for its mall is the result
of business judgment backed by substantial investment. (Tr.
(6/7/91) 69-88, Tr. (6/17/91) 3-6, 12-13, 15-18, 19, 21, 25.)

® As the manager of The Mall at Short Hills testified, the music perform-
ances were scheduled to build up traffic during the time that two of the mall’s
anchor tenants, Bonwit Teller and B. Altman, closed, and the concert series has
not been repeated since. (Tr. (6/24/91) 12-13.)

9

Secondary buying by shoppers, which are impulsive purchases
from stores other than the initial one that brought the shopper to
the mall (frequently one of the department stores), is the single
most important factor in the overall success of the mall. (Tr.
(6/17/91) 15-16.) The likelihood and frequency of secondary
purchases is greatly enhanced by the construction and mainte-
nance of the common areas of the mall in a comfortable, noncon-
frontational, nondisruptive state. (Tr. (6/17/91) 15-16.)

The injection of political activity into this environment would
have a powerful effect on shopping behavior. At the very least, it
would distract shoppers during their travel through the interior
common areas from store to store. Worse yet, especially with
controversial groups and issues, it would divert shoppers from the
tenants’ retail stores. (Tr. (6/17/91) 6-8, 11, 30-31, 97-98.)
Gallup market research introduced into evidence shows that from
one-third to two-fifths of New Jersey mall patrons would alter
their shopping behavior (i.e., go out of their way or shop less) or
avoid the mall altogether to shun leafleting or solicitation by
political or religious groups. (App. 154a-157a.)7

Significantly, in addition to opposing the Coalition’s presence
in the mall because its activity is inconsistent with the mall’s
investment-backed purpose and the mall’s invitation to the public,
the petitioner wishes to exclude the Coalition because it objects to
the Coalition’s political program. The majority of the state su-
preme court entirely ignored this crucial fact, stipulated by the
parties: the owner of the mall disagrees with the Coalition’s
message. (App. 143a, {| 15.)

The majority ultimately justified its decision on its judicial
notice of the “fact” that shopping centers have “displaced the
downtown business districts” of New Jersey. See New Jersey
Coalition, 138 N.J. at 346-47, 650 A.2d at 767-68. Nevertheless,
the Coalition’s own planning expert explicitly testified that

7 See testimony of Scott S. Ahlstrand, Senior Project Manager and
Professional Analyst for The Gallup Organization, Inc., and the tabular results
and the report of Selection Research, Inc. (the parent company of Gallup),
admitted into evidence as Exhibits D6 and D7. (Tr. (6/6/91) 23, 51-52, 76, 87-
90, 96, 100-03, 105-07, 109-11.)

10

shopping malls have not “replaced” the downtown areas. (Tr.
(6/5/91) 49.) In fact, the Coalition’s political expert testified
that the municipalities, with their shopping areas, supermarkets,
and movie theaters, provide better opportunities for leafleting
than they did in the 1970’s. (Tr. (6/3/91) 157.)® Indeed, the
record shows that the towns surrounding certain of the malls,
including The Mall at Short Hills, have remained vital, have new
and larger businesses and business districts, and have generated
an ever-increasing retail sales volume. (See Tr. (6/3/91) 77-78,
152-53, 155-56, Tr. (6/5/91) 54-55.)

REASONS FOR GRANTING THE PETITION

This is a case about the collectivization of private property in
the supposed service of preserving free speech. The Supreme
Court of New Jersey in the present case, New Jersey Coalition
Against War in the Middle East v. J.M.B. Realty Corp., 138 N.J.
326, 371, 650 A.2d 757, 780 (1994) (4-3 decision), believes that
private property owners who, “for their profit,” develop successful
shopping centers “must be held to have relinquished” their right
to not subsidize others’ speech. Accordingly, relying on
PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the
state court commands the owner of The Mall at Short Hills to
underwrite the speech of the Coalition and allow it to spread its
message - a message with which the owner disagrees - on the
owner’s private property. But in the 15-year interim since
PruneYard, a case which did not address the issue of subsidiza-
tion, it has become clear that freedom of speech - the shopping
center owners’ as much as the protesters’ - necessarily includes
the freedom to not contribute to political ventures as well as to
contribute to them. And even if shopping center owners can be
pressed into service against their will, they must be compensated

8 The Coalition’s political expert further testified that, even though he had
conducted many successful political campaigns during his career, he never
distributed leaflets at an enclosed shopping mall (Tr. (6/3/91) 144-45), and he
admitted that “there are other effective ways to distribute literature.” (Tr.
(6/3/91) 142.) Even door-to-door leafleting, according to the expert, while not
good for a “crisis situation,” is “very, very effective in the long run.” (Tr.
(6/3/91) 116-17.)

1i

in full for the expenses and the lost revenues associated with the
taking of their property; they may not be told that ticy alone must
bear the costs generated by others.

I. THE STATE SUPREME COURT FORCES THE
OWNER OF THE MALL AT SHORT HILLS TO
SUBSIDIZE THE POLITICAL SPEECH OF
THE COALITION IN VIOLATION OF THE
FIRST AMENDMENT

The principle of “freedom of speech” is inconsistent with the
proposition that a person should be required to subsidize the
speech of another. The issue in this case, then, is whether a state
court, interpreting its state constitution, may balance the speech
rights of one person against those of another and compel one
person to subsidize another’s political speech. Although the
Supreme Court of New Jersey said that it relied on this Court’s
ruling in PruneYard to justify just such an imposition, PruneYard
did not address the issue of whether the state may compel one
private citizen to subsidize the political activities of another
private citizen.? Such a compulsion, this Court has repeatedly
said, is flatly prohibited by the First Amendment. Lehnert v.
Ferris Faculty Ass'n, 500 U.S. 507 (1991).

The forms that subsidies can take are protean. One may
camouflage the subsidy by exacting it in kind instead of in cash.
Just that is done in the present case when the Coalition demands
the right to use, for its own selfish purposes, the owner’s property
free of charge. It surely would be constitutionally indefensible for

*This issue was not briefed by the parties in PruneYard presumably
because of the limited record that came to this Court (the trial court had
granted summary judgment), and only Justices White and Powell, concurring in
part and in the judgment, expressed concern about the issue. Justice Powell
commented that, “[e]ven if a person’s own speech is not affected by a right of
access to his property, a requirement that he lend support to the expression of a
third party’s views may burden impermissibly the freedoms of association and
belief protected by the First and Fourteenth Amendments.” PruneYard, 447
U.S. at 98 n.2 (Powell, J., concurring). As he explained, this may amount to “an
unacceptable ‘compelled subsidization.’ Jd. (quoting Abood v. Detroit Bd. of
Educ., 431 U.S. 209, 237 (1977)).

12

the state to extract from the owner a cash contribution to the
Coalition. It is no better if the state simply forces the owner,
without any choice at all, to provide the Coalition with a forum, a
soapbox.

Unlike in the PruneYard case (with just seven findings of
fact made by the trial court on summary judgment), the record in
this case was developed during 11 days of trial testimony and by
stipulations of fact showing that the relief sought by the Coalition
amounts to a forced subsidization of its political cause. The record
shows that the petitioner’s wholly-enclosed shopping center'® was
carefully designed and built at great additional expense to create
an elegant environment - neutral and apolitical in all respects."

It is precisely this private space that the Coalition wants to
appropriate as a forum for its causes: not because its activity is in
any way “ ‘related in its purpose to the use to which the shopping
center property [is] being put,’ ” Lloyd Corp. v. Tanner, 407 U.S.
551, 563 (1972) (quoting Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 320 n.9
(1968) ), and not because it has no “adequate alternative avenues
of communication.” Jd. at 567.'? Rather, the Coalition wants this
particular private space as its forum precisely because the
petitioner’s expense and effort have made it attractive, comforta-
ble, safe, heated in the winter, and air-conditioned in the summer.
(And that environment - so carefully planned - is the reason why
the tenants pay an industry-high rental.)

The mall’s tenants alone pay for the maintenance and up-
keep of the mall, including the costs of security, insurance,

'° The PruneYard Shopping Center is an open-air shopping center.

'! While some mall owners, exercising their business judgment, do turn a
part of their property into a forum by granting access to political, charitable, and
not-for-profit groups, the petitioner allows no such activities to interfere with its
investment in creating a retail environment free from distraction and with its
decision to not lend a forum in support of any third party’s political, religious,
social, or philanthropic views.

2a fter all, the Coalition managed to hand out over 85,000 leaflets in places
other than shopping centers during the two weeks preceding its application for
temporary restraints. (App. 142a, 98.)

13

cleaning, electricity, heating, air conditioning, and upkeep. Yet
the tenants themselves are expressly prohibited from distributing
handbills or advertising material in the common areas. The
Coalition certainly could not insist that the tenants make a
contribution to its political campaign; it is hardly better for the
state to impose that obligation on the tenants - in effect, an
additional common area maintenance charge.

The magnitude of the imposition on the petitioner and the
tenants is borne out by the expert testimony of Scott S. Ahlstrand,
professional analyst for The Gallup Organization. His research
reflects that, of those adult New Jersey residents who go to
shopping malls at least once a month:

¢ Thirty-three percent would either go out of their way, or
try to avoid a group if not inconvenient, if they were
confronted with a group soliciting contributions or distrib-
uting information in a shopping mall.

¢ Forty-one percent agree or strongly agree that they would
shop less at those malls where political or religious action
groups were present.

¢ Forty-one percent agree or strongly agree that they would
look for other places to shop if political or religious action
groups were at the malls where they shopped.

¢ Twenty-three percent would shop less at those mails where
anti-war action groups were distributing information and
speaking.

(App. 154a-157a.)'?

The enormity of the imposition is made yet more evident by
a critical fact in this case: “The owners of The Mall at Short Hills
disagree with the plaintiffs’ political message.” (App. 143a, 9]15.)
This undisputed fact, missing in PruneYard, shows that, although
the petitioner opposes the political program of the Coalition, the

' This research does not even address the powerful effect that extreme
groups would have on the shopping behavior of parents who bring their children
to the mall’s safe and controlled environment for back-to-school or holiday

shopping.

14

petitioner has been forced by the Supreme Court of New Jersey
to subsidize it nonetheless. It hardly matters that the customers of
the mall may (imperfectly) realize that the statements made by
the Coalition do not represent the views of the petitioner. See
PruneYard, 447 U.S. at 87 (the activists’ views “will not likely be
identified with those of the owner.”).'* Certainly, the members of
the Coalition may not stick their hands into the pockets of the
petitioner for cash with a promise that the money will not be
spent for purposes that the petitioner opposes.

Chief Justice Wilentz meets this point with the shocking
conclusion that the petitioner has relinquished its right of free
speech:

[Private property owners who have so transformed the life
of society for their profit (and in the process, so diminished
its free speech) must be held to have relinquished a part of
their right of free speech. They have relinquished that part
which they would now use to defeat the real and substantial
need of society for free speech at their centers; they should
not be permitted to claim a theoretically-important right of
silence from the multitudes they have invited.

New Jersey Coalition, 138 N.J. at 371, 650 A.2d at 780.15

The insights of James Madison and Thomas Jefferson, as
relevant today as when they were penned, serve as an articulate
response to the Chief Justice’s cavalier dismissal of the
petitioner’s constitutional right as a punishment for its economic
foresight and success:

“James Madison, the First Amendment’s author, wrote in
defense of religious liberty: “Who does not see .. . [t] hat the

In fact, there is no reason to suppose that listeners will not mistake the
sponsorship of the objectionable views. The Coalition itself mistakenly asserted
that Riverside Square Shopping Center sponsored the display of yellow ribbons
in one or two tenant-stores during the Iraq war. (Pli.’s Br.(App. Div.)
11 & n.22.)

15Where next? If the home-shopping networks “supplant” shopping centers,
will the network owners be required to carry political messages free of charge?

15

same authority which can force a citizen to contribute three
pence only of his property for the support of any one
establishment, may force him to conform to any other
establishment in all cases whatsoever?’ 2 The Writings of
James Madison 186 (G. Hunt ed. 1901). Thomas Jefferson
agreed that ‘to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves,
is sinful and tyrannical.’ I. Brant, James Madison: The
Nationalist 354 (1948).”

Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292,
305 n. 15 (1986) (quoting Abood v. Detroit Bd. of Educ.,
431 U.S. 209, 234-35 n.31 (1977)).

In this Court’s decision in PruneYard, the full case for the
owner’s freedom of speech was not explored, and the Court was
content to say that, so long as the public at large did not identify
the owner with the message that was delivered, no First Amend-
ment claim could be raised. PruneYard, 447 U.S. at 87.16 But
subsequent decisions of this Court have made it clear that the
guarantee of freedom of speech embraces more than the ability to
disclaim sponsorship of a political message. The right carries with
it the right not to speak, the right to decline to foster particular
political causes, the right “to exclude individuals with ideologies
or philosophies different from those of [the owner].” Roberts v.
United States Jaycees, 468 U.S. 609, 627 (1984). Dissociation in

16 Nonetheless, Justice Powell, concurring in part in PruneYard, saw a
potential problem in the forced association of an owner with “speakers who wish
to use his premises as a platform for views that he finds morally repugnant,”
listing as examples, “[a] minority-owned business confronted with distributors
from the American Nazi Party or the Ku Klux Klan, a church-operated
enterprise asked to host demonstrations in favor of abortion, or a union
compelled to supply a forum to right-to-work advocates.” PruneYard, 100 U.S.
at 99 (Powell, J., concurring). The infringement of First Amendment rights in
PruneYard was only potential because, in that case, there was no allegation that
the property owner “disagree[d] with the messages at issue.” Jd. at 98 n.2. See
also Pacific Gas & Elect. Co. v. Public Utils. Comm'n of Cal., 475 U.S. 1,
12 (1986) (“[T ]he owner did not even allege that he objected to the content of
the pamphlets . . . .”). Justice Powell’s concern is brought to the forefront in the
present case because it is stipulated that the owner here does disagree with the
Coalition’s political message. (App. 143a, 915.)

16

the eyes of the public at large is not sufficient to protect the
interests in freedom of speech held by the persons whose wealth
has been commandeered into a cause with which they do not
agree. Rather, they have the right to resist the forced subsidy
altogether. As the Court had said in Wooley v. Maynard,
430 U.S. 705, 714 (1977): “A system which secures the right to
proselytize religious, political, and ideological causes must also
guarantee the concomitant right to decline to foster such con-
cepts.” And the person who cannot be required to bear the
expression “Live Free or Die” on his license plate surely cannot
be required to turn over his property, even in part, to political
groups with which he stands in opposition.

This principle is clearly enunciated in the recent decision in
Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). In that
case, the question was the purposes to which a union could use
the dues collected from its nonmembers. The basic structure of
collective bargaining operates on the assumption that the union
bargains for all workers in the unit, so, in order to protect against
“free riding,” the union may charge all workers, even nonmem-
bers, for collective bargaining activities. In Lehnert, however, the
forced contribution was spent not for collective bargaining, but for
matters of general political or social concern. The issue at that
point was whether a person may be compelled to support views
that he opposes, even if supported by the majority of the union
members. The Court said no: “[T]he State constitutionally may
not compel its employees to subsidize legislative lobbying or other
political union activities outside the limited context of contract
ratification or implementation.” Jd. at 522. See also Ellis v.
Brotherhood of Ry., Airline & Steamship Clerks, 466 U.S. 435,
447 (1984) (“Employees could be required to become ‘members’
of the union, but those who objected could not be burdened with
any part of the union’s expenditures in support of political or
ideologica! causes.”) If bargaining unit workers are allowed to
resist subsidizing the causes sponsored by their union leadership,
whom they elect, then it is all the more necessary that property
owners and their tenants be allowed to resist the speech demands
of uninvited groups over which they have no electoral influence.

17

This rejection of a compelled subsidy is not confined to the
labor union cases. In Pacific Gas & Electric Co. v. Public Utilities
Commission of California, 475 U.S. 1 (1986), the Court vacated
a state regulatory order that forced a public utility to carry clearly
marked messages of its political opponents in its billing envelopes
even though the utility did not incur any additional out-of-pocket
costs to comply with the regulation. The Court rejected the
speech subsidy, which, as in the present case, was not in cash, but
in kind. Then-Justice Rehnquist dissented in the Pacific Gas &
Electric case based on his “belie[f] that the right of access [in
Pacific Gas & Electric was] constitutionally indistinguishable
from the right of access approved in PruneYard.” Id. at 26
(Rehnquist, J., dissenting). And so it is. If the First Amendment
forbids forcing individuals to promote the message of others when
there is no direct cost to them, then, a fortiori, the First Amend-
ment must also forbid forcing persons to subsidize the speech of
others when it comes at a clear economic cost.

The state supreme court assumes that reasonable regulations
imposed by the property owner will negate the subsidy. This
assumption, however, naively ignores the court’s corollary asser-
tion that, in regulating political speech, the malls may only
impose restrictions concerning the time, place, and manner of the
speech without consideration of the content of the message.
While such a limitation is consistent with the obligation imposed
on a governmental actor, see Heffron v. International Soc’y for
Krishna Consciousness, Inc., 452 U.S. 640, 647-48 (1981), the
petitioner is not a governmental actor.

There is a categorical distinction between the obligation of
the state in its use and management of its public property and the
obligation of a shopping center owner in the use and management
of its private facilities. The prohibition against viewpoint
discrimination applies only to avoid governmental endorsement.
In the private setting, the First Amendment allows a private
citizen to support one candidate without incurring the obligation
to allow equal access to the candidate’s rival, just as the owner
may make a campaign contribution to that candidate without
being obliged to support his or her opponent. In light of the

18

owner’s right to select and promote those viewpoints with which it
agrees, it should be clear that the ability (and the obligation) to
impose content-neutral regulations does not protect the peti-
tioner’s First Amendment rights.

Treating the petitioner as a governmental actor exacts other
costs, as well. When the state is involved, the mere threat of
violence is not enough to deny free speech rights, for the state has
the ability and the obligation, despite the financial burden, to
protect the unpopular speaker from violence. See, e.g., Collin v.
Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916
(1978) (invalidating Skokie, Illinois, ordinances that had placed
restrictions on the Nazis’ planned controversial march with swas-
tikas in a Jewish neighborhood). Will the same rule apply to a
shopping center, which does not have a municipally-paid and
trained police force? Will the petitioner have to permit, along with
the pro and anti-war, abortion, and tax factions, to name a few,
members of the American Nazi Party and the Ku Klux Klan to
appear in “uniform?” Will opposing groups also have a right to be
present at the same time to attempt to counter each other’s effort
with the “relevant audience?”

The often-cited experience reported in Cologne v. Westfarms
Associates, 192 Conn. 48, 469 A.2d 1201 (1984), is illustrative of
the problems that arise when private citizens are forced to create
and regulate a forum for political speech. In that case, the Ku
Klux Klan sought to take advantage of a prior decision of the
superior court that had granted the National Organization for
Women access for expressive purposes to the Westfarms Mall
located in West Hartford, Connecticut. Anti-Klan groups arrived
at the mall to protest and demonstrate against the mall’s granting
access to the Klan, resulting in injury to persons, considerable
financial damage and disruption to businesses, and a major
disturbance that was not quelled until the West Hartford and
New Britain SWAT teams, in full riot gear together with police
dogs, arrived on the scene and sealed off several of the mall’s
entrances. Not surprisingly, the demonstration had a devastating
effect on the mall’s tenants, as sales declined by 35 percent.

a7 Rid: Bayt

19

(Prutaub, JMB’s App. (App. Div.) 161-67.) As the superior
court later explained in modifying its prior injunctive order:

Several persons were injured, there was considerable finan-
cial loss and disruption to business tenants of the défendants,
not only during the demonstration but during the entire day
as demonstrated by comparative income figures offered
through witnesses for the defendants. Additionally, custom-
ers of G. Fox & Co. were treated to the spectacle of police in
full riot gear together with at least one police dog removing
one of the demonstrators across the sales floor. The main
entrance doors to the G. Fox sales premises were locked
during the period of the confrontation which was in excess of
an hour thus eliminating a major exit route to persons inside
the premises should the need arise. Police witnesses ex-
pressed the opinion that had this confrontation occurred
inside the mall the results would be uncontrollable and
disastrous in terms of potential physical injury to police,
customers and tenants and their employees as well as dam-
age to property.

Cologne v. Westfarms Assocs., No. 274171, slip op. (Conn. Super.
Ct. Aug. 13, 1983) at 3-4, modifying No. 274171, slip op. (Conn.
Super. Ct. Feb. 28, 1983), rev’d, 192 Conn. 48, 469 A.2d 1201
(1984). The Supreme Court of Connecticut subsequently re-
versed the original judgment that had granted entry to NOW.
Cologne, 192 Conn. 48, 469 A.2d 1201.

When dealing with a private person and not a governmental
entity, time, place, and manner regulations do not offer a solution
to compelled subsidization. The assertion that regulations will
resolve the problem deliberately ignores the very facts which
make the described incident pertinent. In the Cologne case, the
disturbance was not caused by the group seeking access (the Ku
Klux Klan), it was caused by political demonstrators who op-
posed the presence of the Ku Klux Klan and believed they had a
“constitutional right” to demonstrate their opposition at the same
place and time and to the same audience as the Ku Klux Klan. In
other words, no amount of regulation could have forestalled the
problem caused by the injection of this politically inflammatory

20

issue into the otherwise neutral environment of the mall. Rather,
it took SWAT teams from two counties to restore order.

The mall owner and its tenants, not the government, pay for
the resulting costs, not only from the stores being overrun and
closed, but from the undeniably negative publicity that forces the
mall’s association with the group, and with the event itself. Under
the Constitution, the government, not select private citizens,
should bear these subsidization costs.

In the end, it all comes down to the same principle: a state
may not require a person “to contribute to the support of an
ideological cause he may oppose.” Abood v. Detroit Bd. of Educ.,
431 U.S. 209, 235 (1977). Yet, if access is mandated by the state
court, the petitioner and the tenants, who pay for the mall areas so
attractive to the Coalition (and who are themselves not permitted
to solicit patronage there), will be forced to subsidize the Coali-
tion’s political activities. And forcing the petitioner to supply a
forum - indeed, a safe, secure, insured, heated, and air-condi-
tioned forum - for causes it finds objectionable is a forced
subsidization in violation of the First Amendment.

II. THE STATE SUPREME COURT TAKES THE
PRIVATE PROPERTY OF THE MALL AT
SHORT HILLS FOR THE USE OF THE
COALITION WITHOUT JUST COMPENSA-
TION IN VIOLATION OF THE FIFTH
AMENDMENT

The Supreme Court of New Jersey “believe[s]” that the
state right of freedom of speech “is fundamentally more impor-
tant than” private property rights, New Jersey Coalition, 138 N.J.
at 371, 650 A.2d at 780, and, therefore, the court ignores any
“negative effect on [the mall owners’] enterprises” as “an una-
voidable consequence of their own activities.” Jd. at 372,
650 A.2d at 780. The Takings Clause, U.S. Const. amend. V,
along with the Supremacy Clause, U.S. Const. art. VI, cl. 2,
however, does not allow such a preemptory dismissal of property
rights. Nor does PruneYard grant a license to lump every
“regional shopping center” into a single basket, subject to the

21

state court’s command, without any consideration of the value
and use of the particular property.

It is true that not every governmental injury to property is an
unconstitutional “taking.” Rather, that determination requires an
inquiry into “the character of the governmental action, its eco-
nomic impact, and its interference with reasonable investment-
backed expectations.” PruneYard, 447 U.S. at 83 (quoting Kaiser
Aetna v. United States, 444 U.S. 164, 175 (1979)). Unlike in
PruneYard, the evidence in this case “demonstrate[s] that the
‘right to exclude’ ” political activity “is so essential to the use or
economic value of [the shopping center] that the state-authorized
limitation of it amount(s] to a ‘taking.’” Jd. at 84. One cannot
visit The Mall at Short Hills and not come away with the
inexorable conclusion that nowhere in this mall may a political
action group engage in canvassing activities without interfering
with the unique architectural design and the purposeful environ-
ment created there.

That which may be of little moment to the unpracticed eye
of an outsider is critical to preserving the elegant atmosphere of
an upscale fashion center such as The Mall at Short Hills. The
owner's goal is to encourage the circulation of shoppers through
the common areas and into the stores; the systematic effort is to
create an environment in which the common areas are subdued so
that the customers have a direct and unimpeded visual engage-
ment with as many separate storefronts as possible.

Every detail in the planning, design, and construction of the
mall was a carefully considered economic decision backed by
private investment. Design, tenant mix, and demographics are all
combined to make The Mall at Short Hills a magnet for high-end
retailers and their customers. Everything is conceived and organ-
ized in minute detail to be part of an harmonious whole: what
type of tenant will be placed in which location (e.g., Gucci in the
center court area), the design and composition of the flooring
(cushioned marble), the use of lighting (skylights and spot-
lights), the types and locations of accessways between levels, the
form and function of the architecture (e.g., no structural columns,
glass railings), the selection and placement of internal landmarks.

22

Architectural presentation such as columns and colors, which
may appear to be of little importance to the untrained observer, is
critical for setting the mood that induces commercial activity.
Every stage in the development is done with the view of the
maximization of sales and the return on the owner’s investment.

In Dolan v. City of Tigard, 114 S.Ct. 2309 (1994), Chief
Justice Rehnquist distinguished PruneYard on the basis that “the
shopping center ‘may restrict expressive activity by adopting time,
place, and manner regulations that will minimize any interference
with its commercial functions.’ ” Jd. at 2321 (quoting PruneYard,
447 U.S. at 83). But the “right” to regulate the time, place, and
manner of political leafleters, as if the owner were a governmental
entity regulating a public forum, is illusory. As a private property
owner, the petitioner previously had the absolute right to exclude
those who exceeded the scope of its invitation to shop. Would the
taking in Dolan have been any less a taking had the city allowed
Mrs. Dolan to limit the use of the proposed pathway to one day
each weekend, between the hours of 1:00 and 5:00 o’clock in the
afternoon?'’ The only true distinction between Dolan and New
Jersey Coalition is that the City of Tigard sought to control an
undeveloped and previously-unused piece of land at the back of
the owner’s property line, while in the present case, the New
Jersey court imposes state control over the core (and most
valuable) portion of the petitioner’s property.

It must also be recognized that the time, place, and manner
of political canvassing is actually set by the state supreme court,
not by the petitioner. The manner is specifically dictated by the
court - leafleting, voice contact with passersby, and a sign,
New Jersey Coalition, 138 N.J. at 378, 650 A.2d at 783 - and the
time and place of exercising free speech are controlled by what is
“necessary to convey the message,” id. at 378, 650 A.2d at 783,

In addition, put to the choice between the surrender of an inessential
portion of her land and the required toleration of leafleters inside her plumbing
store, albeit subject to her “reasonable” time, place, and manner regulations, is
there really any question that Mrs. Dolan would have preferred the former to the
latter: why then should the Fifth Amendment protect only the interest that she
values less?

icaaaaeaemiaiaiieaiai iin mali

23

rather than by what will protect the petitioner and the tenants. By
definition, the petitioner cannot adopt regulations to protect itself
and the tenants from the most prevalent harm - the interception
of passersby in the corridors while they travel from store to store
and the diversion of their attention.'* The shoppers’ undivided
time and focus are the very essence of the petitioner’s substantial
investment-backed expectation. The economic impact of this
intrusion is reflected in the Gallup research introduced by the
petitioner: 33 percent of the patrons would avoid the group, as
well as the stores in the area of the group, and 41 percent would
shop less at a mall with such activity.

The “right” to regulate actually imposes on the petitioner a
quasi-governmental duty, with none of the governmental protec-
tions that would be present if the state actually took over the
property. For example, on public property, the state has the
obligation to provide police protection for the unwanted speaker
and the audience. Now the petitioner must bear the cost of
providing security. And what about the increased risk of injury, to
speaker or shopper, either by accident or by instigation? On state-
owned property, there is governmental immunity; on private
property, the petitioner must buy liability insurance.'® These are
“public burdens which, in all fairness and justice, should be
borne by the public as a whole,’” not by the petitioner and the

“Implicit in the New Jersey court’s rationale is the argument that, so long
as an invitation has been extended to so many, the costs to the mall of admitting
still other persons are too small to bother with. But that argument has it
precisely backwards. It is exactly because so many people are present at the mall
that the owner is so insistent on controlling the activities in the mall and
guarding the right to exclude politicking. When unwelcome groups enter the
mall, the evidence is that they will reduce the number of visitors to the mall,
shorten the visitors’ length of stay, and substantially cut their level of purchases,
as the Gallup survey so clearly shows. The more people who are present at the
mall, the more critical it is to curtail inconsistent activities in the mall, and the
more important to restrict access.

*Although the Supreme Court of New Jersey acknowledges the concern
“not just for business, but for the safety and security of people at the premises,”
it dismisses these concerns as hardly “novel,” having been dealt with success-
fully by this country, its cities, and its downtown business districts. New Jersey
Coalition, 138 N.J. at 376, 650 A.2d at 782. What the court ignores, however, is
that those places are public property, and the cost of safety, security, and losses
is borne by all of the people, not a select few.

24

tenants. PruneYard, 447 U.S. at 83 (quoting Armstrong v. United
States, 364 U.S. 40, 49 (1960)).

Likewise, it is of no consequence that the intrusions may be
intermittent instead of constant.” The New Jersey court has
dedicated a permanent easement through The Mall at Short
Hills. While a particular leafleter will not occupy The Mall at
Short Hills continuously, just as no member of the public in
Nollan v. California Coastal Commission, 483 U.S. 825 (1987),
was going to occupy the beachfront continuously, under the New
Jersey court decision, “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.”
Nollan, 483 U.S. at 832. Squatting and repeated entry are both
deliberate trespasses, notwithstanding the differences in location,
frequency, and duration. It makes no sense as a matter of
constitutional law to erect a categorical distinction between differ-
ent kinds of trespasses, in a manner that is wholly inconsistent
with the traditional understandings of the common law. See Lucas
v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992). The
‘right to exclude,’ so universally held to be a fundamental
element of the property right,” plainly includes protection from
government-imposed easements. Kaiser Aetna v. United States,
444 US. 164, 179-80 (1979).

Stitched together, a ready procession of discrete, temporary
occupations is little different, and more costly, than the perma-
nent physical occupation proscribed in both Nollan and Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). In
fact, an easement in the common areas of The Mall at Short Hills
imposes far greater costs on the owner than a pathway at the rear
of its lot or the outright confiscation of a small area on the mall’s
roof for the placement of an antenna (as in Loretto). Indeed, the
devaluation of the areas of the petitioner’s private property by the

*Both Nollan v. California Coastal Commission, 483 U.S. 825, 832 n.1
(1987), and Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419,
434 (1982), distinguished PruneYard on the basis that the PruneYard invasion
was temporary, while Nollan and Loretto each involved a permanent occupation.

al

25

New Jersey court is revealed by the rental that the petitioner has
already eschewed from disparate uses. For example, the petitioner
does not accept sums up to $500,000 per year for the erection of
individual kiosks in the center of the mall because the decline in
aesthetic appearance and the obstruction of visual sight lines will
cost that amount and more in sales that could be derived from the
leased stores.

In sum, the Supreme Court of New Jersey may believe that
the collectivization of private property to preserve free speech is a
good idea, but that does not mean that the owner of The Mall at
Short Hills alone can be compelled to contribute to this realiza-
tion. Rather, New Jersey is free to advance its wish of turning a
portion of the common areas of the mall into city streets for the
use of political and societal speakers by using its power of eminent
domain for this “public purpose.” But, as the Court said in
Nollan, 483 U.S. at 842, “if [the state] wants an easement across
the [mall] property, it must pay for it.”

CONCLUSION
The petition for a writ of certiorari should be granted.

JOSEPH AVIV
Counsel of Record
BRUCE L. SEGAL
Of Counsel: MIRO Miro & WEINER
RICHARD A, EPSTEIN a professional corporation
1111 East 60th Street Suite 100
Chicago, Illinois 60637 500 North Woodward Avenue
P.O. Box 908
Bloomfield Hills, Michigan
48303-0908
Telephone: (810) 258-1207

May 1995 Counsel for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1806%3A1. Public record. Not legal advice.