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the "state action" analysis of the Fourteenth Amendment is required by the language of the federal, but not the state, constitution. We have held in other contexts that where our constitutional provision is linguistically different from its parallel in the federal constitutions, we are not bound to treat the state and federal constitutions as coextensive.

of Rights in our constitution is designed not just to protect the individual from government but that it may also be used by one individual against the other. It is constitution-making by the judiciary of the most egregious sort.

DOLLIVER, Justice (concurring).

In concur with the result of the majority but not its reasoning. While I agree that defendants should have been allowed to gather signatures at Alderwood Mall, I believe it is both unnecessary and imprudent to arrive at this result by the constitutional analysis adopted by the majority.

In holding Const. art. 1, sec. 5 may be used by one individual to enforce action against another, the majority has made an unprecedented change in the application of this state's constitution. It interprets the constitution in a way which has never been done since that document was adopted in 1889. It does so without the slightest historical warrant: No case is cited, there is reference to no authority. The majority simply says, "We choose to follow [this] approach." That two other jurisdictions have chosen to adopt the approach and that some commentators have written on the subject, while interesting, is less than persuasive as to the Washington Constitution....

While this court has in the past declared the substance of the Washington Constitution may differ from that of similar provisions of the United States Constitution (see cases cited by majority opinion), this is the first time the court has held the Declaration

Discussion Notes

1. What is the relationship between free speech and assembly rights, and the right of initiative, in Alderwood Associates?

David M. Skover,

"The Washington Constitutional
'State Action' Doctrine:

A Fundamental Right to State Action"

University of Puget Sound Law Review

8 (Winter 1985): 240-47.

1985 David M. Skover. Reprinted by permission.

Recently, however, rumblings of judicial discomfort with federal "state action" parallelism in the

Const. art. 1 is designated as a Declaration of Rights (see Meany & Condon, Washington's First Constitution, 9 Wash.Hist.Q. 145 (1918), reprinted in E. Meany & J. Condon, Washington's First Constitution, 1878, and Proceedings of the Convention 19 (1924)), not the rights of one person against another, but of the people against their government. This subject has been considered in two articles in the Washington Law Review. In Countryman, Why a State Bill of Rights?, 45 Wash.L.Rev. 454, 473 (1970), the query is raised as to whether we might not need a new state bill of rights directed toward those " "private governments' against whose excesses we are also in need of [protection]." It is not contended that these additional guaranties of the rights of private individuals against other private entities presently exist in article 1 of our present state constitution, only that a new bill of rights might be appropriate. See Morris, New Horizons For a State Bill of Rights, 45 Wash.L.Rev. 474 (1970).

It is true, as the majority states, that Const. art. 1, sec. 5 does not expressly mention "state action." It is equally true that until today this court had not even hinted article 1, section 5 was concerned with other than the protection of individual rights against state action.

2. Consider the court's description of the United States Supreme Court's state action doctrine in light of the other federalism concerns we have studied.

Washington Bill of Rights have attained a seismographically significant level. In major deviation from synonymity with the federal “state action” doctrine, a plurality of four Washington Supreme Court justices endorsing the opinion of the Court in Alderwood Associates v. Washington Environmental Council read the free speech and initiative guarantees in article I, section 5 and amendment 7 of the Washington Constitution "as not requiring the same 'state action' as the Fourteenth Amendment." Observing that neither article I, section 5 nor amendment 7 is by express terms limited to governmental actions, the plurality argued that the provisions should not be so interpreted. The inference of a federal "state action" prerequisite to justiciability of an article I, section 5 or amendment 7 claim may deny constitutional safe

guards against private conduct interfering with important free speech interests and initiative processes, without fulfilling equally compelling countervailing purposes. The "state action" doctrine of the fourteenth amendment of the United States Constitution responds to institutional concerns of the federal judiciary that are irrelevant to state constitutional law declaration.

Alderwood Associates presents striking evidence of a gain in judicial sensitivity to the relevant factors for state constitutional adjudication. The plurality's movement to the methodology of balancing competing private claims of constitutional right was propelled by a commendable insight that the traditional "state action" inquiry could not be justified as a threshold barrier to the justiciability of a cause of action against a nominally private party under article I, section 5 and amendment 7 of the Washington Constitution. Given the immateriality of the federal constitutional objectives purportedly advanced by the fourteenth amendment's "state action" doctrine in the context of state constitutional law declaration, the plurality aimed to unseat the "state action" doctrine as the determinant of justiciable claims of rights of free speech exercise raised under article I.

Unfortunately, a close reading of the opinion of the court in Alderwood Associates may leave the reader wondering whether the plurality's aim squarely hit the mark. Noting that "[s]ection 5 and amendment 7 could be interpreted as not requiring any 'state action," " the Alderwood Associates court refused to take this stance:

Although we read section 5 and amendment 7 as not requiring the same “state action" as the Fourteenth Amendment, that does not mean those provisions are applicable to all speech and initiative activities. If there were no limitations to their application, every private conflict involving speech and property rights would become a constitutional dispute. . . . Such an approach would deny private autonomy and property rights in the same way as the "state action” requirement of the Fourteenth Amendment denies free speech. . . . Instead, being sensitive to the competing speech and property rights, we conclude that section 5 and amendment 7 are applicable when, after balancing all the interests, the balance favors the speech and initiative activity.49

49Id. at 243 n.8, 635 P.2d at 116 n.8.

The article I provisions that have spawned the Washington "state action" doctrine do not refer expressly to state governmental machinery as the subject of their prohibitions. The guarantees of due process rights,52 the right of petition and assemblage,53 the right of free speech and press,54 the right of personal privacy and sanctity of the home,55 and the right of religious conscience56 focus clearly only upon the beneficiaries of civil liberty protections, leaving totally ambiguous the identity of the agents constitutionally charged with liability for infringement.57 Therefore, it is as reasonable to construe the language of these prohibitions on their face as directed generally to both public and private actors as it is to presume that these provisions apply exclusively to governmental behavior.

The total absence in these provisions of any language that facially restricts their application to public actors stands in austere contradistinction to the text of other article I provisions that manifestly address state officials and entities.58 Article I, section 12 is the first provision within the Washington Bill of Rights that is patently directed to state governmental machinery. Entitled "Special Privileges and Immunities Prohibited," section 12 states: "No law shall be

52 WASH.CONST.art. I, sec. 3 provides: “Personal Rights. No person shall be deprived of life, liberty, or property, without due process of law."

53 WASH.CONST.art. I, sec. 4 provides: "Rights of Petition and Assemblage. The right of petition and of the people peaceably to assemble for the common good shall never be abridged."

54 WASH.CONST. art. I, sec. 5 provides: "Freedom of Speech. Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right."

35 WASH.CONST.art. I, sec. 7 provides: “Invasion of Private Affairs or Home Prohibited. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

56 WASH. CONST. art. I, sec. 11 provides in pertinent part: "Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief, and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion.

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57This ambiguity is largely a function of the grammatical structure of the art. I guarantees. The consistent use of passive verb tenses in the command of the provisions obviates any explicit identification of the subjects of their dictates. For example, prototypical phrases include: "No person shall be deprived," WASH.CONST.art. I, sec. 3, and “shall be guaranteed to every individual," id. sec. 11.

While there are occasional references in WASH.CONST. art. I to "authority of law," see, e.g., id. sec. 3 (no deprivation of life, liberty, or property "without due process of law”); id. sec. 7 (no invasion of private affairs or home "without authority of law"), whatever emphasis is placed upon such qualifiers for support of a "state action" restriction in the prohibitions is totally misdirected. When the nature of the constitutional constraint is the extension of protection under the "law of the land," there is no necessary determination made as to the targets of the command.

passed granting to any citizen, class of citizens, or corporation other than municipal, privileges and immunities which upon the same terms shall not equally belong to all citizens, or corporations." Similarly, article I, section 23 undeniably refers to the Washington Legislature in providing: "No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed." Finally, article I, section 31 speaks expressly to the general state government in mandating: "No standing army shall be kept up by this state in time of peace." A reasonable explanation

Discussion Notes

1. Is the evaluation of the language of the text as provided by Mr. Skover, a useful approach to the state action issue?

Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Insurance Company 512 Pa. 23, 515 A.2d 1331 (1986)

HUTCHINSON, Justice.

Appellants are a political committee, its chairman, gubernatorial candidate and a campaign worker. They appeal by allowance a Superior Court order, 335 Pa.Super. 493, 485 A.2d 1, affirming Allegheny County Common Pleas. Common Pleas had dismissed their suit for a mandatory injunction directing appellee, owner of a shopping mall, to cease interfering with appellants' political activities on appellee's premises. Appellants claim that they have the right, under the Pennsylvania Constitution's guarantees of free speech and petition, to collect signatures on the gubernatorial candidate's nominating

'Appellant claims rights under Article I, Sections 2, 7 and 20 of the Pennsylvania Constitution. Art. I, sec. 2 states:

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.

In relevant part, art. I, sec. 7 provides:

...The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty....

Art. I, sec. 20 states:

for this variance in form is that the article I provisions that do not address state government in such specific fashions were intentionally drawn in general terms in order to apply to both public and private actors. Without presuming want of skill or negligence in the drafting of the Bill of Rights, the proponent of the Washington "state action” doctrine must otherwise account for these textual distinctions and, in light of them, defend the adoption of a comprehensive "state action" requirement for the entirety of article I as an inevitable judicial enterprise.

2. See Note, "Private Abridgement of Speech and the State Constitutions," Yale Law Journal 90 (November 1980): 165.

petition in privately-owned shopping malls and that appellee cannot deny them access to its mall for that purpose.1

We believe that the Pennsylvania Constitution does not guarantee access to private property for the exercise of such rights where, as here, the owner uniformly and effectively prohibits all political activities and similarly precludes the use of its property as a forum for discussion of matters of public controversy. See Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981). We would therefore affirm Superior Court.

In the spring of 1982, appellants began a drive to collect signatures on nominating papers in an effort to place a candidate on that November's gubernatorial ballot. They sought permission to solicit signatures and educate the public about their cause in a shopping mall known as South Hills Village. South Hills Village is a large enclosed shopping mall in suburban Pittsburgh. The mall contains approximately one million square feet of enclosed space, hosts some 126 stores and is circumscribed by a 5000-vehicle parking lot. It was opened in 1964; appellee has owned it since 1982. The mall has a uniform policy of

The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Appellants' claim no rights under the United States Constitution. They concede that the First Amendment to the United States Constitution only protects the right of free speech against governmental restraint, not against the actions of private property owners whose property is being used for a private purpose. This concession is required by the authoritative holdings of the United States Supreme Court interpreting the First Amendment. Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972).

forbidding all political solicitation and appellants' request was denied. Rather than risk criminal prosecution by soliciting signatures in the face of this policy, appellants filed a complaint in equity in the Court of Common Pleas of Allegheny County. They sought to enjoin appellee from enforcing its no political solicitation policy on the ground that it violated their speech and petition rights under the Pennsylvania Constitution. Pa. Const., art. I, sections 2, 7, 20.

The primary purposes of a constitution are to establish a government, define or limit its powers and divide those powers among its parts. U.S. Const. amend. X; J. Nowak, R. Rotunda, and J. Young, Constitutional Law, 121 (2d Ed. 1983). See generally 16 Am.Jur.2d, Constitutional Law, sec. 6 (1979). The United States Constitution established a government of limited and enumerated powers. Consequently, the national government possesses only those powers delegated to it. J. Nowak, supra, at 121. See generally 16 Am.Jur.2d at sec. 278. State constitutions, on the other hand, typically establish governments of general powers, which possess all powers not denied by the state constitution. J. Nowak, supra, at 121. See generally 16 Am.Jur.2d at sec. 16. Our state constitution functions this way and restrains these general powers by a Declaration of Rights. R. Woodside, supra, at 3, 113; Commonwealth v. Wormser, 260 Pa. 44, 46, 103 A. 500, 501 (1918) (the legislature may enact all laws not forbidden by the state constitution).

The Pennsylvania Constitution of 1776, our first post-colonial constitution, illustrates Pennsylvania's basic constitutional scheme. It contains two parts: one which establishes a government and one which limits its powers. The first part, titled Declaration of Rights of Inhabitants of the Commonwealth or State of Pennsylvania, contains most the language found in our present Article I. The second, titled Plan or Frame of Government for the Commonwealth or State of Pennsylvania, establishes a governmental system. This simple two-part format in itself evinces the draftsmen's intent to establish a government and to limit its powers, R. Woodside, supra, at 114, in consonance with their known adherences to the theories of Locke, Montesquieu and other natural law philosophers. J. Selsam, The Pennsylvania Constitution of 1776, 176 (1936). Additionally, sec. 46 of the Frame of Government acknowledges the limitations on governmental power by stating:

The Declaration of Rights is hereby declared to be a part of the constitution of this commonwealth, and ought never to be violated on any pretense whatever.

Pa. Const. of 1776, Frame of Government, sec. 46. See T. White, Commentaries on the Constitution of Pennsylvania, 171 (1901).

By 1790, the government established by the Constitution of 1776 proved unworkable and the legislature authorized a new constitutional convention. T. White, supra, at xxiv-xxv. The resolution authorizing this convention included in the five topics to be addressed a call for alterations and amendments to the Declaration of Rights. The fifth topic read:

V. That that part of the constitution of this commonwealth called "A declaration of the rights of the inhabitants of the Commonwealth or State of Pennsylvania," requires alterations and amendments, in such manner as that the rights of the people, reserved and excepted out of the general powers of government, may be more accurately defined and secured [.]

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T. White, supra, at xxv (emphasis supplied).

Nevertheless, the Declaration of Rights was not substantively changed by the convention, although Section 46 of the 1776 Constitution's Frame of Government was rephrased and moved into the Declaration of Rights without material change as Article IX, Section 26. It now reads as it did then:

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

Pa. Const. of 1790, art. IX, sec. 26 (emphasis supplied) (renumbered without change at art. I, sec. 25).

Subsequent conventions and amendments have left this frame of government, T. White, supra, at xxv, and the Declaration of Rights materially unchanged today. R. Woodside, supra, at 114.

Considering the foregoing history, we conclude that the Declaration of Rights is a limitation on the power of state government. Accord R. Woodside, supra, at 113. The Pennsylvania Constitution did not create these rights. The Declaration of Rights assumes their existence as inherent in man's nature. It prohibits the government from interfering with them and leaves adjustment of the inevitable conflicts among them to private interactions, so long as that interaction is peaceable and nonviolent. This Court has consistently held this view, that the Pennsylvania Constitution's Declaration of Rights is a limit on our state government's general power. O'Neill v. White, 343 Pa. 96, 22 A.2d 25 (1941). Commonwealth ex rel. Smillie v. McElwee, 327 Pa. 148, 193 A. 628 (1937); Commonwealth ex rel. McCormick v. Reeder, 171 Pa.

505, 33 A. 67 (1895). It has also followed this premise in holding that particular sections of the Declaration of Rights represent specific limits on governmental power. Thus, in William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961), the Court held that Article I, Section 7 prevents Commonwealth agencies from imposing prior restraints on the communication of thoughts and opinions of individuals. Therein we stated:

Although the provision in Article I, sec. 7, of the Pennsylvania Constitution, as above quoted, has never heretofore been interpreted by this court in present context, it is clear enough that what it was designed to do was to prohibit the imposition of prior restraints upon the communication of thoughts and opinions, leaving the utterer liable only for an abuse of the privilege. History supports this view.

Id. at 88, 173 A.2d at 62.

We are not suggesting that the rights enumerated in the Declaration of Rights exist only against the state. These rights are specifically reserved to the people; each inhabitant of the Commonwealth, including appellants, appellee and other users of the mall, shares in them and enjoys them. The framers of our constitution considered them basic rights of human beings; we have called them "the Hallmarks of Western Civilization." Andress v. Zoning Board of Adjustment, 410 Pa. 77, 86, 188 A.2d 709, 713 (1963). They are not created by the constitution, but preserved by it. Spayd v. Ringing Rock Lodge, 270 Pa. 67, 113 A. 70 (1921).

We believe, however, the adjustment of these rights among private parties is not necessarily a matter of constitutional dimensions. If it were, significant governmental intrusion into private individuals' affairs and relations would be likely to routinely occur. This intrusion itself would deprive individuals of important rights of freedom. Free people regulate their private affairs through individual adjustment. We should be wary of insulating that development against legislative, judicial or private change by enshrining a particular position in the text of the constitution. Social and economic developments require a flexible legal framework which can adapt to them. Our common law provides such a framework.

The drafters of the constitution assumed the existence of a body of civil law, common and statutory, which governs violations of rights and breaches of duties between individuals. Constitutions, long-lasting and difficult to change, primarily govern relationships between an individual and the state. The civil law,

which must permit flexible and continuing development as society changes, primarily governs relationships between individuals.

The social and economic development with which we are concerned here is the ongoing substitution of enclosed shopping malls for individual retail stores clustered in downtown shopping areas. These stores were themselves substitutes for the open sheds of the colonial market which was generally located on public ground. Despite these developments in the past two hundred years, common law has not yet given an individual the general right to enter upon the private property of another. Kopka v. Bell Telephone Co. of Pa., 371 Pa. 444, 91 A.2d 232 (1952); Hobbs v. Geiss, 13 S & R 417 (1826). Moreover, even if invited for one purpose, the invitee has no recognized right to engage in another activity against the landowner's wishes. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970). Here, the public at large, including appellants, were invited to South Hills Village for commercial purposes: shopping, dining and entertainment. Political solicitation was uniformly forbidden.

Appellants' argument that shopping malls have usurped the function of "Main Street, U.S.A." and town business districts is not lost on us. Both statistics and common experience show that business districts, particularly in small and medium sized towns, have suffered a marked decline. At the same time, shopping malls, replete with creature comforts, have boomed. These malls have begun to serve as social as well as commercial outlets for the communities they serve. Young people often come to a mall to socialize with their peers. Older people come to enjoy the park-like atmosphere offered in many malls or to view displays erected in the corridors. Members of the community have an opportunity by chance or design to mix, meet and converse. However, these social benefits are ancillary to the commercial purpose of shopping malls and do not involve organized campaigns on particular issues by political or special interest groups. Law and sociology are not coextensive. Though shopping malls may fulfill some of the societal functions of the traditional main street or town market place, we do not believe that this makes them their legal equivalent. Nor does it yet require them to provide a political forum for persons or groups with views on public issues, so long as the owner does not grant unfair advantage to particular interests or groups by making his premises arbitrarily available to those he favors while excluding all others. See Commonwealth v. Tate, supra.

Appellants argue that our decision in Commonwealth v. Tate, supra, controls this case. We agree that it controls. However, it does not help these appellants. In our view, it demonstrates a limiting rationale

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