LOS ANGELES -- Shopping centers in states that require public access for political petitioning and other activities received a significant legal boost in December from a California appellate court.
The court denied a request for depublication of the July 1997 UNITE vs. The Taubman Co. decision, in which mall restrictions governing the "time, place and manner" of public access at six Los Angeles-area malls were judged to be acceptable. Depublication of the decision would have prevented it from being cited as a precedent for subsequent court rulings, said Thomas J. Leanse, a partner with Katten Muchin & Zavis, the Los Angeles law firm that represented Del Amo Fashion Center, Westside Pavilion and Glendale Galleria in the dispute.
UNITE vs. Taubman stemmed from a 1996 incident in which the Union of Needletrades, Industrial & Textile Employees, AFL-CIO (UNITE) attempted to demonstrate at six malls without adhering to the centers' application processes. UNITE, which had targeted the Guess? Inc. clothing manufacturer, picketed Guess? retailers at Century City Shopping Center, Beverly Center and Westside Pavilion in Los Angeles; Fashion Square, Sherman Oaks; Glendale Galleria, Glendale; and Del Amo Fashion Center, Torrance.
Citing their time, place and manner restrictions, all of the malls except Beverly Center denied UNITE access. The union did follow the application process for Beverly Center and was accepted, but the center refused to permit the union to picket directly in front of the Guess? store, citing fire codes.
The union requested and was granted a temporary restraining order that effectively prevented the malls from imposing their restrictions.
"We had to suffer the indignity of UNITE employees going right in front of the Guess? store and picketing where they saw fit," said Bob Cleary, vice president and in-house attorney for The Taubman Co., which owns and manages Beverly Center.
"That can't happen when you're a landlord with 150 to 200 tenants. If we don't aggressively protect our property, [tenants] will argue that we're not doing what we're obligated to do under the leases. Their ability to enjoy the property under the lease is compromised."
When the order expired, the union filed suit, charging that the restrictions imposed on groups seeking to demonstrate at the malls were unconstitutional under California's Constitution. The restrictions included naming the participants, restricting the areas in the mall in which the group could demonstrate, and pre-approval of signage and literature.
Without time, place and manner restrictions, antagonistic or opposing groups could conceivably picket at the same time or place, which could also disrupt business, Mr. Cleary argued.
The Taubman Co. was "neutral" in UNITE's dispute with Guess?, Mr. Cleary added. "We're not getting to the 'whys' and the 'wherefores' behind their cause. We're really looking at the issues quite narrowly in respect to our property rights," he said.
In July 1997, however, the trial court ruled in favor of the centers, leading to UNITE's unsuccessful attempt for depublication in appellate court.
The appellate court decision "clearly suggested [time, place and manner] rules were defensible from the landlord perspective," Mr. Leanse said.
The 38-page decision specifically approved the shopping centers' application processes, allowing owners to exercise discretion over the identities of the applicants, the areas where they could gather, and signage and leaflets to be displayed.
Nor is it the first such decision. California's requirements for access were decided in the 1980 Robins vs. Pruneyard Shopping Center case, in which the California and U.S. Supreme Courts ruled that the state could require public access to a shopping center for political petitioning under reasonable rules without violating the center owner's constitutional rights. Lawyers argued successfully that California's Constitution provided broader free speech rights than the federal Constitution.
In the years since the Pruneyard decision, the highest courts in numerous states have considered public access cases. Though no state has fully followed the Pruneyard decision, Washington, Massachusetts, Oregon and New Jersey have required limited access. Colorado required access when it found public involvement in the development of a center. Eleven states have rejected the Pruneyard analysis, according to ICSC general counsel Edward J. Sack.
The court in the Pruneyard decision clearly allowed shopping centers to adopt reasonable regulations of "time, place and manner" to minimize interference with the center's commercial functions. Those regulations were upheld in the UNITE case.
"This is a decision which has significant impact in California, and around the country in those jurisdictions where access is required subject to time, place and manner rules," said Mr. Leanse.
Though the UNITE decision can be seen as an important victory for shopping centers, still trickier battles lie ahead, Mr. Leanse said. Of particular attention are issues involving labor groups, which have challenged the same provisions of the UNITE case with the National Labor Relations Board rather than in state courts.
One case now before the Labor Board involves the National Association of Broadcast Engineering Technicians (NABET), which was forbidden to picket The Disney Store at a California mall. The pickets were protesting against their employer, the American Broadcasting Company, which is owned by the Disney Store's parent, The Walt Disney Co. Arguing that the Hudgens case exempted it from time, place and manner requirements, the union pursued a charge of unfair labor practices against the mall.
Mr. Leanse said this case -- and two other similar cases currently being heard -- raise "cutting-edge" issues that could have repercussions throughout the industry.
"The open question from the industry perspective is whether we have to have different rules for labor than we otherwise have for free speech under state constitutions," he said.
"If a union had a labor dispute with the owner of a shopping center and was trying to organize employees, it would have certain rights to be there," he explained. "Here ... it's not traditional labor in the sense that it's not an attempt to organize employees. It's an attempt to sensitize the community.
"My client's position is that sensitizing the community is the same as what they're entitled to do under the free speech laws," Mr. Leanse said. "They shouldn't have special protection under the labor laws."