Southcenter Joint Venture v. National Democratic Policy Committee

780 P.2d 1282, 113 Wash. 2d 413, 1989 Wash. LEXIS 120

• Court: Washington Supreme Court
• Decided: October 19, 1989
• Docket: 55952-0
• Status: Published

Opinions

Andersen, J.—

Facts of Case

This case presents the question of whether a political organization has a right under the free speech provision of the Constitution of the State of Washington to solicit contributions and sell literature in a privately owned shopping mall. We conclude that it does not.

Southcenter Joint Venture (Southcenter) owns the Southcenter Shopping Center, an enclosed shopping mall comprised of numerous retail stores. The Southcenter Shopping Center will be referred to herein simply as the "mall". Southcenter acquired the mall from its previous owner in December of 1985. At all times pertinent herein, it maintained a policy of allowing charitable, civic and political groups to use designated "public service centers" within the mall. Southcenter promulgated regulations governing the use of these areas by such outside groups. These regulations required that groups wishing to use the public service centers first submit an application to do so. One of the regulations prohibited solicitation of funds in the mall.

On June 20, 1986, an organization named the National Democratic Policy Committee (NDPC) submitted an application requesting the use of a public service center. The NDPC is a political organization apparently devoted to advancing the political views of one Lyndon LaRouche. Despite its name, the NDPC is not affiliated with the Democratic Party.

In its application, the NDPC stated that it wished to use a public service center for the purposes of distributing literature, signing up members, and soliciting contributions. Southcenter denied the application due to its regulation against soliciting funds. This prompted an attorney representing the NDPC to inform Southcenter that he considered the NDPC's right to solicit funds at the mall to have been established when it prevailed in an earlier civil action brought against it by the previous mall owner. The attorney also told Southcenter that he would advise his clients to be present in the mall "at such times and places as they deem appropriate".

In the afternoon of July 17, 1986, four individuals who were members of, or affiliated with, the NDPC appeared unannounced at the mall and undertook to solicit contributions and sell literature. The mail's assistant manager asked them to leave, but they refused. Later that afternoon, they left the mall of their own accord.

Southcenter subsequently brought an action in the Superior Court against the NDPC and the four individuals who had appeared at the mall. For convenience, the NDPC and these four individuals are hereinafter collectively referred to as the "NDPC". By its action, Southcenter sought a judgment declaring that the NDPC had no right either to solicit funds at the mall or violate Southcenter's other rules concerning the use of its premises. Southcenter then sought issuance of a preliminary injunction and the Superior Court granted it. The NDPC answered Southcenter's complaint and counterclaimed, alleging defamation for a statement contained in the mall manager's affidavit supporting the injunction, stating that "one of the individuals sitting at the NDPC card table wore a swastika-type symbol on his arm." Southcenter moved for summary judgment in its favor, and the NDPC also moved for partial summary judgment.

The Superior Court granted Southcenter's motion and entered judgment permanently enjoining the NDPC from soliciting contributions or selling literature on the mall premises without Southcenter's consent. The NDPC then sought further review. The Court of Appeals certified the case to this court for determination and we accepted certification.¹

This case presents us with three issues..

Issues

Issue One. Does the doctrine of collateral estoppel apply so as to prevent relitigation of issues raised in a prior action brought by the previous mall owner against the NDPC?

Issue Two. Under the free speech provision of the Constitution of the State of Washington, does a political organization have the constitutional right to solicit contributions and sell literature at a privately owned shopping mall?

Issue Three. Did the trial court err by dismissing the NDPC's counterclaim for defamation?

Decision

Issue One.

Conclusion. The doctrine of collateral estoppel does not apply in this action because Southcenter is not in privity with a party to the prior litigation.

The NDPC first contends that the doctrine of collateral estoppel applies here. Its contention is based on the fact that issues similar to those raised in this case were litigated in an action brought by the previous mall owner against the NDPC in 1984. In the earlier case, the NDPC prevailed in the Superior Court and the then mall owner did not appeal.

The following elements are required for application of the doctrine of collateral estoppel:

(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.

Shoemaker v. Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987) (quoting Malland v. Department of Retirement Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985)).

Southcenter asserts that the doctrine of collateral estoppel does not apply here because, among other things, collateral estoppel element 3 is absent in that Southcenter was not a party to or in privity with a party to the prior adjudication. We agree. It is true that Southcenter did acquire the mall from a party to the prior action. It is also true that a successor in interest to a party to an action that determines interests in property is subject to the preclusive effects of that action.² That rule, however, is not applicable where the previous action involved a "personal" right, as opposed to a "property" right.³

In the prior action, the parties disputed whether the NDPC had a free speech right to solicit contributions and sell literature at the mall. We conclude that a constitutional right of free speech in a case of this sort is more appropriately classified as a "personal" right than a "property" right. This is because such a right is not unique to the particular shopping mall involved, nor does it affect the title thereto.⁴

Thus, since the previous action involved a personal right, Southcenter is not in privity with a party to the prior adjudication and collateral estoppel does not apply to prevent relitigation of issues raised in the previous action. This conclusion is bolstered by our rule that the relitigation of an important issue of law should not be foreclosed by collateral estoppel.⁵

Issue Two.

Conclusion. The free speech provision of the Constitution of the State of Washington (Const, art. 1, § 5) affords protection to the individual against actions of the State. It does not protect an individual against the actions of other private individuals. The free speech provision of . our state constitution thus does not afford the NDPC a constitutional right to solicit contributions and sell literature at the mall.

It is the NDPC's next contention that it has a free speech right to solicit contributions and sell literature at the mall. It is, of course, true that the oral and written dissemination of one's views is protected by the first amendment to the United States Constitution.⁶ Such protection is not lost when written materials are sold or contributions are solicited in the course thereof.⁷ Thus, according to the NDPC's arguments, its activities at the mall constitute protected speech.

In the case of Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), however, the United States Supreme Court held that the first amendment to the United States Constitution did not protect the distribution of political handbills in a privately owned shopping mall. In so holding, it stressed that

the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.

Lloyd, 407 U.S. at 567. The Court in Lloyd also firmly rejected the argument that the mall had lost its private character because it was open to the public and served the same purpose as a business district.⁸ The United States Supreme Court thereby repudiated the position it had taken in the earlier case of Amalgamated Food Employees Union Local 590 v. Logan Vly. Plaza, Inc., 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968).⁹

A state may, of course, "adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 64 L. Ed. 2d 741, 100 S. Ct. 2035 (1980).¹⁰ The NDPC urges us to so construe the free speech provision of the Constitution of the State of Washington (Const, art. 1, § 5) and conclude that it affords the NDPC the right to solicit contributions and sell literature at the mall. Indeed, we have previously construed this state's constitutional free speech provision to afford greater protection of individual liberties than its federal counterpart.¹¹ The NDPC, however, is not just asking us to cast a more expansive interpretation of the state constitutional provision; in reality, it is asking us to declare that our state constitution grants an entirely new kind of free speech right—one that can be used not only as a shield by private individuals against actions of the state but also as a sword against other private individuals.¹² This we cannot do.

To adopt the position urged by the NDPC would require us to act contrary to the fundamental nature of our own state constitution. Under the American system of government, sovereignty resides in the people.¹³ It is the people who ordain a constitution.¹⁴ A constitution, in turn, is "that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised." 1 T. Cooley, Constitutional Limitations 4 (8th ed. 1927).¹⁵ The whole significance of a constitutional government is that its

fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights, and shield them against the assumption of arbitrary power.

(Italics ours.) 1 T. Cooley, at 5.¹⁶ It is also axiomatic that

[t]he constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they intrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon.

T. Cooley, General Principles of Constitutional Law 23 (3d ed. 1898). It follows that the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other.¹⁷

Consistent with the foregoing principles, it is, always has been, and remains basic constitutional doctrine that both the federal and state bills of rights, of which the right of free speech is a part, were adopted to protect individuals against actions of the state.18 As one respected legal authority succinctly explains:

The guaranties found in the state and federal constitutions which are intended for the protection of the individual in his person, his liberty, and his property have not been the result of any theorizing as to what ought to be secured to the individual by way of enjoyment; they have been the result of experience, and they relate to the supposed respects in which it has been found necessary to limit the powers of government in order that the largest practicable measure of individual freedom and opportunity may be secured. Nearly all of them may be traced more or less directly to struggles on the part of the people against the unjust exercise of powers of government in England and in this country.

(Italics ours.) E. McClain, Constitutional Law in the United States § 205, at 292-93 (2d. ed. 1910). We deem it very significant that this was accepted constitutional doctrine at the time of the Washington Constitutional Convention in 1889.¹⁹ Moreover, 22 of the 75 delegates to that constitutional convention were practicing lawyers who were undoubtedly familiar with basic constitutional doctrine of the time.²⁰

The notion that the free speech provision of the state constitution creates a right that can be wielded by one private individual against another constitutes nothing short of a radical departure from this well understood and accepted constitutional doctrine.²¹ The NDPC, nonetheless, argues that if one reads the text of this provision in the manner that they urge us to do, it demonstrates that such a departure was in fact intended by the framers of the state constitution. We do not agree. The free speech clause of our state constitution provides:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.

Const, art. 1, § 5. Thus, it is true that the state free speech provision contains no express reference to "state action". This contrasts somewhat with its federal counterpart, which states that: "Congress shall make no law . . . abridging the freedom of speech, ..." (Italics ours.) U.S. Const, amend. 1. There are contemporaneous newspaper articles indicating that early drafts of the state free speech provision considered by members of the Preamble and Bill of Rights Committee of the state constitutional convention contained reference to "state action" comparable to that contained in the federal constitution.²²

It is a 2-foot leap across a 10-foot ditch, however, to seize upon the absence of a reference to the State as the actor limited by the state free speech provision and conclude therefrom that the framers of our state constitution intended to create a bold new right that conflicts with the fundamental premise on which the entire constitution is based. To do so would not be to "interpret" our constitution, but to deny its very nature.

The much more likely and reasonable explanation for the absence of the words in question is that the framers viewed them as redundant and in the interest of simplicity simply deleted them. The framers may well also have wished to avoid limiting the prohibitions of the constitutional free speech provision to just the legislative branch of government. In this connection, language comparable to the "Congress shall make no law" statement contained in the federal constitution could reasonably have been perceived as not being sufficiently broad to also include actions of the executive branch. The fundamental nature of our constitution being as it is, either of these two explanations has greater plausibility than the radical view urged upon us by the NDPC.

We conclude, therefore, that although an express reference to "state action" is absent from the free speech provision of our state constitution, a "state action" limitation is implicit therein.²³

Furthermore, and much more importantly, the question of whether the state free speech provision requires "state action" also directly implicates the, separation of powers doctrine.²⁴ In our recent decision in Washington State Motorcycle Dealers Ass'n v. State, 111 Wn.2d 667, 674, 763 P.2d 442 (1988), we emphasized that this doctrine is a cardinal and fundamental principle of the entire American constitutional system. As we there observed,

"... the division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people, and preventing the exercise of autocratic power, and that it is a matter of fundamental necessity, and is essential to the maintenance of a republican form of government. "

Motorcycle Dealers, at 674-75 (quoting 16 Am. Jur. 2d Constitutional Law § 296, at 808 (1979)). And as we also firmly cautioned:

"American courts are constantly wary not to trench upon the prerogatives of other departments of government or to arrogate to themselves any undue powers, lest they disturb the balance of power; ..."

Motorcycle Dealers, at 675 (quoting 16 Am. Jur. 2d § 309, at 829-30).

The NDPC maintains that we should adopt a "balancing test" under which we would weigh the free speech interests of the NDPC against the private property interests of the mall owner. Were we to assume the role of weighing competing constitutional interests asserted between private parties, as the NDPC urges, we would be violating the separation of powers principles just enunciated by arrogating to the judicial branch of government powers that properly reside with the legislative branch of government. As the Supreme Court of Connecticut aptly observed in the face of a like invitation in a similar case:

It is not the role of this court to strike precise balances among the fluctuating interests of competing private groups which then become rigidified in the granite of constitutional adjudication. That function has traditionally been performed by the legislature, which has far greater competence and flexibility to deal with the myriad complications which may arise from the exercise of constitutional rights by some in diminution of those of others. . . . Statutes would become largely obsolete if courts in every instance of the assertion of conflicting constitutional rights should presume to carve out in the immutable form of constitutional adjudication the precise configuration needed to reconcile the conflict.

(Italics ours.) Cologne v. Westfarms Assocs., 192 Conn. 48, 65, 469 A.2d 1201 (1984).²⁵ Furthermore, were we to so usurp the power and authority of the Legislature in this fashion, we would also be encroaching upon the power and authority of the executive branch by bypassing not only the Governor's prerogative to propose legislation, but also the Governor's constitutional power to veto legislative enactments. We decline to do this.

It is significant that the position we adopt herein commands the support of the overwhelming majority of courts that have addressed this issue. The highest courts of Connecticut, Michigan, New York, North Carolina, Pennsylvania and Wisconsin have all recently concluded in cases involving similar facts that the free speech provisions of their respective state constitutions do not protect against infringement by private individuals.²⁶ It appears that only the California and New Jersey courts have gone so far as to discover such a right in their state constitutions.²⁷

Our decision on the "state action" issue in this case is also consistent with the decision of this court in Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 635 P.2d 108 (1981). In Alderwood, the Washington Environmental Council asserted that it had the right to solicit signatures for an initiative at a shopping mall. A 4-member plurality of this court, i.e., less than a majority of the court, maintained that there was no "state action" requirement under the free speech and initiative provisions of the state constitution.²⁸ That plurality then followed what it termed a "balancing approach" for determining when these guaranties prevail over the rights of a private property owner and concluded that the balance tipped in favor of the initiative supporters in that case.²⁹

Although a fifth member of the court, Justice Dolliver, concurred "with the result", he sharply rejected the plurality's reasoning, branding its free speech analysis "constitution-making by the judiciary of the most egregious sort." Alderwood, at 248 (Dolliver, J., concurring). The concurrence nonetheless reasoned that the activity of soliciting signatures for an initiative was authorized by the initiative provision of the state constitution (Const, art. 2, § 1(a) (amend. 72)) and the initiative and referendum statute (RCW 29.79).³⁰ As the concurring opinion pointed out, unlike the free speech provision, the initiative provision is not part of our state constitution's Declaration of Rights and does not establish a right against the government but declares that the people are part of the legislative process.³¹

The remaining four members of the court in Alderwood dissented.³² The dissent agreed with the objection of the concurrence to the plurality's free speech analysis, though it disagreed with the analysis of the concurrence concerning the initiative provision of the state constitution.³³

Thus, in Alderwood, a 5-member majority of this court rejected the argument now posited by the NDPC that the free speech provision of our state constitution does not require "state action". As a consequence, the holding in Alderwood was simply that people have a right under the initiative provision of the Constitution of the State of Washington to solicit signatures for an initiative in a manner that does not violate or unreasonably restrict the rights of private property owners.³⁴ We expressly do not here disturb that holding.³⁵

We also note that we are indeed familiar with the recent writings of some legal commentators which present an array of theoretical arguments as to why they think that constitutional guaranties of individual liberties should not be limited to protecting against actions of the state.³⁶ We are also mindful, however, as we recently and unanimously declared, that

[r]ecourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned.

State v. Gunwall, 106 Wn.2d 54, 63, 720 P.2d 808 (1986).³⁷ Thus, this court is not at liberty to disregard the fundamental nature of our constitution in order to advance theories that may be perceived by some to constitute desirable social policy.³⁸ Significantly, as the United States Supreme Court has recently and clearly declared, " [wjhether [the "state action" requirement] is good or bad policy, it is a fundamental fact of our political order” (Italics ours.) Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982).

Furthermore, as we perceive it, compelling policy reasons exist in support of a "state action" requirement. As Professor Tribe expresses it,

by exempting private action from the reach of the Constitution's prohibitions, it stops the Constitution short of preempting individual liberty—of denying to individuals the freedom to make certain choices, . . . Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution's demands.

L. Tribe, American Constitutional Law § 18-2, at 1691 (2d ed. 1988).³⁹

Accordingly, we hold that the free speech provision of our state constitution protects an individual only against actions of the State; it does not protect against actions of other private individuals. The NDPC thus has no right under Const, art. 1, § 5 to solicit contributions and sell literature at the mall.

The NDPC proceeds, however, to make the additional argument that our state constitution's free speech provision applies to shopping malls under the "public function" doctrine.

The "public function" doctrine is a means of satisfying the "state action" requirement.⁴⁰ It provides:

The state cannot free itself from the limitations of the Constitution in the operation of its governmental functions merely by delegating certain functions to otherwise private individuals. If private actors assume the role of the state by engaging in these governmental functions then they subject themselves to the same limitations on their freedom of action as would be imposed upon the state itself.

2 R. Rotunda, J. Nowak & J. Young, Constitutional Law § 16.2, at 163 (1986). A "public function" is one that is "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974).⁴¹

The "public function" doctrine was applied by the United States Supreme Court in the well-known case of Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946). Marsh involved the question of whether the management of a privately owned company town could prohibit a Jehovah's Witness from distributing religious literature in the town. The Court held that it could not, reasoning that the private entity which owned the town was subject to the strictures of the First Amendment because it was performing a "public function".⁴²

In the more recent case of Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), however, the United States Supreme Court expressly declined to extend the "public function" doctrine to a privately owned shopping mall. It had been argued in Lloyd that since a shopping center has sidewalks, streets, and parking areas which are functionally similar to those provided by municipalities, the public should have the same right of free speech there as in the streets of a city or town.⁴³ The United States Supreme Court rejected this contention, declaring:

The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, [326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946)], involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.

(Footnote omitted. Italics ours.) Lloyd, 407 U.S. at 569.

Based on Lloyd, therefore, it is obvious in the case before us that the "public function" doctrine is inapposite under the Constitution of the United States. Nor do we perceive any persuasive reason why this doctrine should apply any differently under our state constitution. It simply cannot reasonably be said that a shopping mall performs the functions traditionally and exclusively reserved to the state. A shopping mall is not a town and malls do not provide all essential public services such as water, sewers, roads and sanitation; nor do they accept responsibility for such functions as education or public safety.⁴⁴ Rather, shopping malls are concerned with just one aspect of their patrons' lives—shopping.⁴⁵ The mere fact that shopping malls, like any large department store, have rest rooms for the convenience of their patrons, and security personnel to prevent shoplifting, cannot by any stretch of the imagination translate into "the full spectrum of municipal powers".⁴⁶

We further agree with the United States Supreme Court in Lloyd that "property [does not] lose its private character merely because the public is generally invited to use it for designated purposes", and that ”[t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center." Lloyd, 407 U.S. at 569. Moreover, if public invitation and size were the relevant criteria, it could well be asked how shopping centers could be legally distinguished from places such as sport stadiums, convention halls, theaters, county and state fairs, large office and apartment buildings, supermarkets, department stores or churches.⁴⁷

We thus hold, in addition to our earlier conclusion that the state constitution's free speech provision does not protect individuals from actions of other private individuals, that the "public function" doctrine is inapplicable here.

Issue Three.

Conclusion. The mall manager's statement that an NDPC member wore a "swastika-type symbol" is privileged because it was made in the course of a judicial proceeding and pertained to the relief sought. The trial court correctly granted summary judgment in favor of Southcenter on the NDPC's counterclaim for defamation.

The NDPC argues that the Superior Court erred in granting summary judgment against it on its defamation counterclaim. The NDPC alleges it was defamed by a statement contained in an affidavit submitted by the mall manager that he observed an NDPC member wearing a "swastika-type symbol". Southcenter maintains this statement is privileged as relevant to court proceedings.

In McNeal v. Allen, 95 Wn.2d 265, 621 P.2d 1285 (1980), this court set forth the applicable rule:

Allegedly libelous statements, spoken or written by a party or counsel in the course of a judicial proceeding, are absolutely privileged if they are pertinent or material to the redress or relief sought, whether or not the statements are legally sufficient to obtain that relief.

McNeal, at 267. The statement at issue in this case was made in the course of a judicial proceeding; it was contained in an affidavit filed in support of Southcenter's motion for a preliminary injunction. The statement also pertained to the relief sought. Southcenter maintained that the NDPC's use of the mall was in violation of its rules and unduly interfered with the business environment within the mall. Southcenter, therefore, sought to enjoin the NDPC from using its premises. The statement that one of the NDPC people was wearing a "swastika-type symbol" is pertinent to that claim for relief. Thus, the statement was privileged and the trial court correctly granted summary judgment in favor of Southcenter on the NDPC's defamation counterclaim.

We affirm the Superior Court's order granting Southcenter's motion for summary judgment.

Callow, C.J., and Brachtenbach, Dolliver, Durham, and Smith, JJ., concur.

1 RCW 2.06.030(d).

2 Restatement (Second) of Judgments § 43(l)(b) (1982). See also McKown v. Driver, 54 Wn.2d 46, 54, 337 P.2d 1068 (1959); Watkins v. Siler Logging Co., 9 Wn.2d 703, 721, 116 P.2d 315 (1941).

3 Restatement (Second) of Judgments § 43, comment a.

4 See Watkins, at 722.

5 Kennedy v. Seattle, 94 Wn.2d 376, 379, 617 P.2d 713 (1980).

6 U.S. Const, amend. 1; Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981).

7 Heffron, 452 U.S. at 647; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Coun., Inc., 425 U.S. 748, 761, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976).

8 Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972).

9 See also Hudgens v. NLRB, 424 U.S. 507, 518-20, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976) (following Lloyd).

10 See also State v. Gunwall, 106 Wn.2d 54, 59, 720 P.2d 808 (1986) (quoting same).

11 See O’Day v. King Cy., 109 Wn.2d 796, 802, 749 P.2d 142 (1988); Bering v. Share, 106 Wn.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987); State v. Coe, 101 Wn.2d 364, 679 P.2d 353 (1984).

12 See Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 250, 635 P.2d 108 (1981) (Dolliver, J., concurring).

13 1 T. Cooley, Constitutional Limitations 81 (8th ed. 1927); H. Black, American Constitutional Law 23 (4th ed. 1927).

14 U.S. Const, preamble; Wash. Const, preamble; 1 T. Cooley, at 81; 1 J. Story, Commentaries on the Constitution of the United States 243 (5th ed. 1891).

15 A more comprehensive definition of a constitution is that:

[t]he constitution of a state is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the division of the sovereign powers, directing to what persons each of those powers is to be confided and the manner in which it is to he exercised.

H. Black, at 1-2. See also 1 T. Cooley, at 4.

16 See also H. Black, at 2; 16 Am. Jur. 2d Constitutional Law §§ 6, 7 (1964).

17 See Dolliver, The Washington Constitution and "State Action": The View of the Framers, 22 Willamette L. Rev. 445, 448 (1986). We recognize, of course, that state constitutions can and do contain provisions that concern the rights of the people vis-a-vis each other. See Const, art. 1, § 16 (eminent domain). Nonetheless, it is equally clear to us that such provisions are exceptions to the rule only, not the rule itself.

18 jE.g., H. Rottschaefer, American Constitutional Law § 305, at 724 (1939); H. Black, at 10; E. McClain, Constitutional Law in the United States § 205, at 293 (2d ed. 1910).

19 See T. Cooley, Constitutional Law 22, 200 (1st ed. 1880); J. Jameson, Constitutional Conventions 92 (4th ed. 1887); J. Pomeroy, Constitutional Law § 230 (10th rev. ed. 1888); 1 J. Hare, American Constitutional Law 507-08 (1889).

20 B. Rosenow, Journal of the Washington State Constitutional Convention, 1889, at 465-90 (1962). See also A. Mires, Remarks on the Constitution of the State of Washington, 22 Wash. Hist. Q. 276, 280, 284-85 (1931); J. Kinnear, Notes on the Constitutional Convention, 4 Wash. Hist. Q. 276, 279 (1913).

21 See United States v. Guest, 383 U.S. 745, 771, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966) (Harlan, J., concurring in part, dissenting in part) ("the Bill of Rights, designed to protect personal liberties, was directed at rights against governmental authority,.not other individuals").

22 See Utter, The Right To Speak, Write, and Publish Freely: State Constitutional Protection Against Private Abridgment, 8 U. Puget Sound L. Rev. 157, 172-77 (1984-1985).

23 Cf. MacLean v. First Northwest Indus. of Am.., Inc., 96 Wn.2d 338, 347, 635 P.2d 683 (1981) ("state action" required for state equal rights amendment); Borg-Warner Acceptance Corp. v. Scott, 86 Wn.2d 276, 278, 543 P.2d 638 (1975) ("state action" required under state due process provision); State v. Ludvik, 40 Wn. App. 257, 262, 698 P.2d 1064 (1985) ("state action" required for state search and seizure provision).

²⁴

L. Tribe, American Constitutional Law § 18-2, at 1691 (2d ed. 1988).

25 See also Alderwood Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230, 250-51, 635 P.2d 108 (1981) (DoIIiver, J., concurring).

26 Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337 (1985), reh'g denied, 424 Mich. 1204 (1986); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 488 N.E.2d 1211, 498 N.Y.S.2d 99 (1985); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981); Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986); Jacobs v. Major, 139 Wis. 2d 492, 407 N.W.2d 832 (1987). See also Fiesta Mall Venture v. Mecham Recall Comm., 159 Ariz. 371, 767 P.2d 719 (Ct. App. 1988), review denied (Feb. 7, 1989); Annot., Validity, Under State Constitutions, of Private Shopping Center's Prohibition or Regulation of Political, Social, or Religious Expression or Activity, 38 A.L.R.4th 1219 (1985).

27 Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 592 P.2d 341, 153 Cal. Rptr. 854 (1979), aff'd, 447 U.S. 74 (1980); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed, 455 U.S. 100 (1982). See also Batchelder v. Allied Stores Int'l, Inc., 388 Mass. 83, 445 N.E.2d 590 (1983) (right to solicit signatures at mall under elections provision of state constitution); Lloyd Corp. v. Whiffen, 307 Or. 674, 773 P.2d 1294 (1989) (injunction against soliciting signatures for initiative at shopping mall lifted on nonconstitutional grounds).

28 Alderwood, at 243.

29 Alderwood, at 243-46.

30 'Alderwood, at 251 (Dolliver, J., concurring).

31 See Alderwood, at 253 (Dolliver, J., concurring).

32 Alderwood, at 253 (Stafford, J., dissenting).

³³

34 See Alderwood, at 253 (Dolliver, J., concurring). No reason has been suggested why the holding in Alderwood would not apply to referendums of the people as well as to initiatives. See Const, art. 2, § 1; RCW 29.79 (both referring to initiatives and referendums).

35 The Court of Appeals decision in Sutherland v. Southcenter Shopping Ctr., Inc., 3 Wn. App. 833, 478 P.2d 792 (1970), review denied, 79 Wn.2d 1005 (1971), also addressed the question of whether initiative supporters had a constitutional right to solicit signatures at a shopping mall. The Court of Appeals there concluded that the initiative supporters did have such a right. Its decision was based on various grounds, including the free speech provision of the Washington Constitution. Sutherland, at 835. To the extent that the decision in Sutherland is inconsistent with our decision herein, it is necessarily hereby overruled.

36 See, e.g., Chemerinsky, Rethinking State Action, 80 Nw. U.L. Rev. 503 (1985); Skover, The Washington Constitutional"State Action" Doctrine: A Fundamental Right to State Action, 8 U. Puget Sound L. Rev. 221 (1984-1986).

37 In State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986), we set forth several nonexclusive neutral criteria to assist us in determining when recourse to our state constitution is appropriate. Although it has not been necessary in this opinion to explicitly enumerate the Gunwall criteria, as such, we have carefully considered same and our analysis herein reflects consideration of the relevant Gunwall criteria.

38 See Deukmejian & Thompson, All Sail and No Anchor—Judicial Review Under the California Constitution, 6 Hastings Const. L.Q. 975 (1979); Berger, *The Supreme Court as a Legislature": A Dissent, 64 Cornell L. Rev. 988 (1978-1979).

39 See also Stephanus v. Anderson, 26 Wn. App. 326, 340-41, 613 P.2d 533, review denied, 94 Wn.2d 1014 (1980); Marshall, Diluting Constitutional Rights: Rethinking "Rethinking State Action", 80 Nw. U.L. Rev. 558 (1985).

40 See Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946); 2 R. Rotunda, J. Nowak & J. Young, Constitutional Law § 16.2, at 163 (1986).

41 See also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 157-58, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978).

42 See Marsh, 326 U.S. at 506-08.

43 Lloyd Corp. v. Tanner, 407 U.S. 551, 569, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972).

44 Western Pa. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 36, 515 A.2d 1331 (1986).

45 Jacobs v. Major, 139 Wis. 2d 492, 523, 407 N.W.2d 832 (1987).

46 Lloyd, 407 U.S. at 569.

47 See Cologne v. Westfarms Assocs., 192 Conn. 48, 64, 469 A.2d 1201 (1984); Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 225, 378 N.W.2d 337 (1985), reh’g denied, 424 Mich. 1204 (1986).