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Albertsons not a public forum

Picture this: A traditional shopping center looking pretty much like Truckee’s Albertsons/Long’s and Safeway/Rite-Aid centers.

Six individuals set up a table on the sidewalk outside the grocery store (in this case Albertsons in Nevada City), soliciting signatures on initiative petitions to place measures on an election ballot. They could just as easily have been selling Girl Scout cookies.

Does Albertsons have the right to deny signature gathering on its sidewalk?



Premier jurists

This case was tried in Nevada County before Judge Kathleen Butz, one of the best Superior Court judges in California. Some day she will be on the Court of Appeal. Mark my words.



Judge Butz ruled in Albertsons favor.

The decision was promptly appealed – a claimed violation of the signature gatherers’ constitutional rights to free speech.

Chief Justice Scotland of the Third District Court of Appeals in Sacramento, one of the best in the business, wrote the opinion, and Justice Sims, formerly a Superior Court judge in Placer County, penned the concurring opinion. Concurring opinions, you recall, are where a judge agrees with the majority ruling but for different reasons

Pruneyard

The leading California case defining when individuals have a constitutional right to register voters or solicit and gather signatures on petitions is a case involving Pruneyard Shopping Center.

In Pruneyard, high schools students were soliciting signatures for a cause dear to them. They had set up a table in the central courtyard of the 65-shop center.

The California Supreme Court found that the Pruneyard Shopping Center had opened its property to the public, and in essence had become a suburban shopping mall particularly suitable for expressive activity.

The Supreme Court ruled Pruneyard could not prohibit free speech and petitioning activity unless it interfered with business, but could adopt reasonable “time, place and manner” rules.

Most importantly, the Supreme Court ruled that the Pruneyard Center had become “the functional equivalent of the traditional town center,” which historically is a public forum where persons can exercise the right to free speech.

Trader Joe’s

You faithful readers of the Law Review (Hello Mom) will recall our discussion of the Trader Joe’s case.

Trader Joe’s was a single structure, single-use store with no central plaza or courtyard for public gathering. The Court of Appeal determined it was not the equivalent of a traditional town center. Trader Joe’s could keep signature gatherers off its sidewalk.

The question please…

The Nevada City Albertsons, our case du jour, is similar in size to our local shopping centers with a couple of anchor stores and a handful of smaller retail businesses.

Is Albertsons in the Nevada City center closer to a stand-alone Trader Joe’s or the 65-shop Pruneyard Shopping Center?

“Miniature downtown”

Judge Butz determined that Albertsons is not a “miniature downtown” gathering place for the public, but is a convenience store designed to get shoppers in and out quickly.

It is not the functional equivalent of a traditional public forum, like downtown Nevada City. Albertsons may deny access to petition gatherers and set up content-neutral time, place and manner restrictions regarding use of its private property, according to the law.

Court of Appeal

The Court of Appeals agreed: “Therefore, courts must be very careful proclaiming private property to be a place for expressive activity… Such private property could be used by individuals or groups to set up tables or carry signs voicing their views on a variety of matters on which persons strongly disagree, like advocates for or against a war in Iraq, for or against abortion, for or against restrictions on the ownership of firearms, etcetera…”

The Court noted the result might be different if union officials were distributing labor handbills, because the “expressive activity would be related to the business use of the property.” Fortunately, the Court of Appeal clarified that Albertsons could allow some content-neutral activities on its property [E.g., Girl Scout cookie sales] without becoming a traditional public forum.

Concurring opinion

Justice Sims, also one of the best, agreed with Chief Justice Scotland, that the petition gatherers did not produce evidence to show that Albertson’s “had replaced the public downtowns of Nevada City and Grass Valley as a pubic forum.”

He pleaded his case that “the need to encourage free speech and the initiative process in general, has never been greater.” Justice Sims argued that the current political system is “unduly influenced by money… average citizens therefore simply give up and stop voting… the initiative process remains the last avenue by which ordinary citizens can effect political change.”

The concurring opinion leaves open the possibility that a shopping center with a couple of anchor stores and a dozen retail businesses could be the equivalent of a public gathering place, a public forum, at which signature gatherers have a free speech right to access.

I am not sure the majority opinion disagrees.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission.

He may be reached at porter@portersimon.com or at the firm’s web site http://www.portersimon.com.


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