Alderwood Associates v. Washington Environmental Council: State Action and the Washington State Constitution

• Publication year: 1982

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 5, No.2SPRING 1982

Alderwood Associates v. Washington Environmental Council: State Action and The Washington State Constitution

Suzanne Lee Elliott Jane Elizabeth Pearson

In Alderwood Associates v. Washington Environmental Council,(fn1) the Washington Supreme Court reversed a temporary restraining order forbidding the defendant's solicitation or demonstration on plaintiff's privately owned shopping mall. Although there was no majority opinion because the court split four-one-four, the result of the several opinions is that the Washington constitution now bars private as well as state action(fn2) that interferes with the gathering of initiative signatures on certain private property. However, four justices also concluded that the free speech section(fn3) of the Washington constitution restricts private as well as state action. The Alderwood result is desirable, but could have been reached without an abandonment of the state action requirement. Such an abandonment, although subscribed to by less than a majority, strays from principled constitutional analysis and inhibits further reasoned development of the state constitution.

Defendant, the Washington Environmental Council, sponsored Initiative 383, entitled The Radioactive Waste Storage and Transportation Act of 1980.(fn4) In order to have the initiative placed on the November 1980 ballot, the defendant needed 123,700 registered voters' signatures.(fn5) To further its signature drive, the council sought permission to solicit on the Alderwood Mall. The Alderwood Associates, owner and operator of the mall,(fn6) denied the council's request to solicit signatures on the premises. Nevertheless, the council entered the mall and solicited passersby in a "nonobstructive manner."(fn7) The Alderwood Associates obtained a temporary order restraining the petitioners from entering the mall.(fn8)

In deciding that the Washington constitution protected the exercise of free speech and the exercise of the initiative process on a privately owned shopping center, Justice Utter, joined by Justices Rosellini, Williams and Dore, acknowledged that, in contrast to the state constitution, the first amendment to the federal Constitution does not protect individuals seeking to exercise their right to free speech on privately owned shopping centers. Rather, federal first amendment rights are limited by the concept of state action.(fn9) However, the four justices reasoned that the United States Supreme Court's recent decision, PruneYard Shopping Center v. Robins(fn10) left state courts free to interpret the state constitution independently of and more expansively than the federal constitution as long as such an interpretation would not deprive state citizens of federally guaranteed rights.

With this foundation laid, the Utter opinion examined article 1, section 5 of the Washington constitution and found three reasons why the state constitution did not require state action. First, the justices reasoned that a literal interpretation of the provision would not require limiting its protections to governmental action.(fn11) Second, they found that the free speech provisions of the California(fn12) and New Jersey(fn13) constitutions were similar to article 1, section 5 of the Washington constitution. Thus, article 1, section 5 could be interpreted as Robins v. PruneYard(fn14) and State v. Schmid(fn15) had interpreted the free speech provisions of the California and New Jersey constitutions.(fn16) Finally, the Utter opinion stated that the state action doctrine, under the United States Constitution, involves balancing the right to free speech and the right to control private property. At the federal level this balancing process is restrained by a "conservative theoretical approach" not present at the state court level.(fn17)

Although concluding that article 1, section 5 restricts private as well as state interference with expression, the Utter opinion nonetheless places limitations on the exercise of speech and initiative rights on private property.(fn18) The justices used a balancing test to define the limits of the article 1, section 5 rights of the signature gatherers and the property rights of the Alderwood Associates.(fn19) On the free speech side of the balance, the factors included the extent to which the property is the functional equivalent of a public forum,(fn20) the nature of the speech activity,(fn21) the possibility of reasonable regulation by the time, place, and manner of speech,(fn22) and the involvement of other constitutional rights.(fn23) On the other side, the justices balanced the due process rights of the property owner and the possibility that the exercise of speech on the property amounted to a taking of property without compensation.(fn24) Under the Alder-wood facts, the four justices concluded that the balance favored the exercise of free speech and initiative rights and that such activities did not infringe on the rights of the property owners.

Justice Dolliver concurred in the result but not in the rationale of the Utter opinion. He found no state precedent for using article 1, section 5 "as a sword by individuals against individuals." Rather, the provision was designed "as a shield against the actions of the state."(fn25) Acknowledging that in the past the Washington Supreme Court had construed similar federal and state constitutional provisions differently, he stated that article 1, section 5 had not been subject to independent scrutiny concerning state action.(fn26) He perceived the Utter opinion's rationale as an unwarranted expansion of the state constitution, more properly achieved through legislation than judicial interpretation.(fn27)

Nevertheless, Justice Dolliver found the presence of the signature gatherers on the mall permissible under the initiative provision of the Washington constitution.(fn28) This provision gives Washington State citizens the right to initiate legislative action through a petition process.(fn29) Relying on the police power of the state, Justice Dolliver reasoned that the state could reasonably promote the availability of the initiative process to all citizens by allowing signature gatherers to enter the private property.(fn30) He distinguished the initiative process from other forms of petitioning, noting that under article 2, section 1(a), the petitioners are "part of the apparatus of government-the legislative branch."(fn31)

The remaining four justices dissented, in an opinion Justice Stafford authored, disagreeing with both the Dolliver and Utter opinions. Acknowledging that the police power would allow the state legislature to subordinate the Associates' property rights to the council's speech rights, the dissenting justices found no such legislative intent in the initiative clause itself.(fn32) Furthermore, the justices stated that the abrogation of the state action requirement removed reasonable limitations on the exercise of free speech and inappropriately deviated from the reasoned principles of federal constitutional law.(fn33)

As Justice Utter recognized,(fn34) state courts may interpret their constitutions without regard to the Supreme Court's interpretation of the federal Constitution, providing that the states do not deny their citizens liberties that the federal Constitution guarantees.(fn35) Despite this freedom of construction, state courts have often relied upon federal precedent for interpretation of state constitutional provisions with federal counterparts.(fn36) The public function analysis is a method of establishing state action that states have borrowed from federal case law and used to interpret their own constitutions, thereby incorporating the analysis into their own body of precedent.

Under the public function doctrine, private parties performing "inherently governmental"(fn37) activities must adhere to constitutional restrictions otherwise applicable only to the government.(fn38) The Supreme Court began its development of the public function doctrine in Marsh v. Alabama.(fn39) In Marsh, the deputy sheriff of a company town(fn40) arrested a Jehovah's Witness for trespassing(fn41) when she refused to stop distributing religious literature on the town's sidewalks.(fn42) The Court reasoned that "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."(fn43) Then, the Court balanced the constitutional rights of property owners against the preferred rights of freedom of press and religion,(fn44) and reversed appellant's conviction.(fn45)Stressing that the privately owned town functioned indistin-guishably from a public municipality,(fn46) the Court held that citizens of a privately owned town are no less entitled to the freedoms of press and religion than are citizens of a public municipality.(fn47)

In Food Employees Local 590 v. Logan Valley Plaza, Inc.(fn48) the Court extended the public function analysis to a privately owned shopping center. Logan Valley upheld union picketing of a nonunion market located within a shopping center complex.(fn49)The Court conceded that the power to exclude was a right traditionally associated with private property ownership,(fn50) but held that because the shopping center was the functional equivalent of the business district in Marsh,(fn51) "the State may not...