Daily Development for Monday, August 9, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONSTITUTIONAL LAW; FREE SPEECH; APARTMENT COMPLEXES: Even in California, owner of large apartment complex has no duty to afford tenant's organization free speech rights on its premises.

Golden Gateway Center v. Golden Gateway Tenants Association, 1999 WL 529528, (Cal.App. 1 Dist. 7/26/99)

Defendants owned and operated a retail and residential complex in downtown San Francisco with four high rise towers and 1254 apartments. It prohibited soliciting and leafleting of any kind on the premises, even by tenants. Its written regulations, incorporated into every lease, included this prohibition. In the early 1980's, a group of tenants formed a Tenant's Association. Periodically, over time, the association would slip leaflets with information about the Association or its interests under the doors of apartment residents, whether or not they were members.

This activity was tolerated by the management of the complex for more than a decade, when an increase in leafleting led to an exchange of letters that raised the issue that the leafleting violated the policies of the complex, but did not result in a termination of the activity. In 1996, however, management again raised the issue, in response to a leafleting activity that grew to eight distributions in four months. The Association responded basically that it had a constitutional right to continue its activity, and soon thereafter brought a declaratory relief action to vindicate that right. The trial court found for the Association on the grounds that the earlier exchange of letters in the early 1990's had formed a contract guaranteeing distribution rights to the Association. It did not reach the constitutional issue.

The appeals court, in an unpublished portion of its opinion, reversed the trial court on the contract issue, and thus squarely faced on appeal the constitutional argument for the first time. It held that there was no right under the federal or state constitutions for apartment tenants or others to deliver literature to other apartment tenants. The appeals court, of course, necessarily was called upon to distinguish the important Pruneyard decision, in which a California court held that, as a matter of state constitutional law, a regional mall owner had an obligation to permit speech activities on its premises, because the regional mall had superseded the "town center" as the locus of regular activities for Americans. As the Pruneyard court and other California decisions articulated the issue: '[T]he 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.'

The court here held Pruneyard inapplicable. It emphasized the fact that, although retail services ere provided in the complex, they were for apartment tenants only. The apartment complex was completely closed to the outside world. In other words, unlike shopping centers, it had not extended an "invitation" to the general public, but instead maintained a strictly private character. The court also distinguished New Jersey authority, Inganamort v. Merker 148 N.J.Super. 506, 372 A.2d 1168 (1977), which had held that the right to distribute literature to other tenants is an "incident" of the tenant's rights. The instant court distinguished Inganamort on the grounds, well, that it was a New Jersey case.

Probably the strongest argument raised by the plaintiffs was the notion that the provision of comprehensive residential and retail services for such a large number of people made the complex a "substitute" for a traditional public fora, and that it was vital for preservation of meaningful free speech that such private "quasi town squares" be open to free speech activities. In a word, the court said "no." In fact, it said very little more than this, and certainly does not indicate why the court reaches this conclusion so comfortably.

The opinion does not address the issue of whether the association can distribute literature to its own residents, but, since this is invited speech, it is not a free speech issue per se. Presumably the association can continue to do that.

Note: Ironically, another California panel was simultaneously deciding another Pruneyardtype case even while this case was in the works. In Trader Joes' Company v. Progressive Campaigns, No. A08723 (Cal.Ct. App. 1st Dist. Div. 2 July 8, 1999), the DIRT DD for July 9, 1999, a California court held that a grocery store was not a public forum with duties to provide free speech activities. The grocery store, however, was considerably smaller and less enclosed than the buildings in this case.) More importantly, the Trader Joe's case suggested the issues might be different if the speech involved was focussed directly upon issues involving the premises owner. If the Trader Joe's court had applied that standard to the instant case, it would have found a much more compelling case for recognition of speech rights, as the tenant's association clearly was interested in communicating with residents about issues concerning the very building in which the speech right was asserted.

Comment 1: In Guttenberg Taxpayers and Rent Payers Association v. Galaxy Towers Condominium Association, 688 A.2d 156 (N.J.Super.Ch. 1996), a New Jersey court ruled that a condominium complex with 1026 apartment units, and parking and retail facilities, had an obligation to permit distribution of political literature by non residents if it permitted distribution by its own tenant's association. The rhetoric of Guttenberg would support a general free speech distribution right, subject to time, place and manner restrictions, similar to California and New Jersey regional mall cases, but the ultimate opinion is limited to requiring equality of information flow.

Comment 2: During the heady days of the development of the residential implied warranty of habitability, a number of scholars and few cases raised the issue that the organization of tenant's unions constituted exercise of free speech that landlords were required to honor and therefore could not "retaliate" by evicting or otherwise sanctioning tenants who engaged in speech activities promoting such unions. Most cases that have decided the issue, however, have determined that apartment managers were not engaged in "state action" and thus no free speech rights were implicated. The most useful discussion likely is in Schoshinski, American Law of Landlord and Tenant, (Lawyer's CoOp 1980) 720727, which is supplemented through 1994. But a few cases have emphasized that where there is special government involvement in the development of the housing complex, even though privately owned, "state action" might be found. In Lavoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972 (New Hampshire law) for example, the court found that the local zoning benefits that essentially gave a mobile home park operator a monopoly could result in characterization of the landlord's antispeech activities as "state action." And in McQueen v. Drucker, 438 F.2d 781 (1st Cir. 1971) (Mass. law), the court held that public benefits in the form of mortgage subsidies to a private landlord might trigger "state action" in the landlord's response to speech activities. Cf. Walton v. Darby Town Houses, Inc., 395 F.Supp. 553 (E.D. Pa. 1975) and other cases cited by Schoshinski at n. 32.

Although these twenty five year old cases might be dismissed as arising in another era, it should be noted that the New Jersey decision in The Green Party of New Jersey v. Hartz Mountain Industries, Inc., 1999 WL 562149 (N.J.Super.A.D. 8/3/99), decided just last week, suggested that where a shopping center developer receives significant public benefits in development, its obligation to accommodate free speech claims may be greater. It should also be noted that the Golden Gateway Center almost certainly was an urban renewal project, and the court does not take that fact into account. Perhaps it was not argued. Comment 3: Note that the fundamental issue in this case, in any event, is state constitutional law. It is unlikely that the U.S. Supreme Court will find a U.S. Constitutional free speech right in apartment complexes when it did not do so in earlier decisions involving shopping centers. This leaves the issue to state court interpretations of their own constitutions.

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