Woodland v. Michigan Citizens Lobby

341 N.W.2d 174, 128 Mich. App. 649

• Court: Michigan Court of Appeals
• Decided: September 13, 1983
• Docket: Docket 64388
• Status: Published

Opinions

D. E. Holbrook, Jr., P.J.

Defendant appeals by right from an order and final judgment of permanent injunction restraining defendant and its officers and agents from soliciting shoppers, gathering signatures, distributing literature, making speeches, or engaging in any other expressive activity upon any of the property owned by plaintiff, including the common areas, courtyards, and corridors of Woodland Mall, a retail shopping center located in Kent County.

Plaintiff is the owner and operator of Woodland Mall. The shopping center is enclosed and surrounded by a parking area. The whole of this property is owned by plaintiff. The mall contains three large department stores as well as numerous small stores leased to tenants. Common areas of the mall are maintained by plaintiff to maximize their attractive, restful, and nondisruptive atmosphere. The tenants of Woodland Mall may not solicit business or distribute handbills or any other advertising in the common areas. Additionally, plaintiff has maintained a strict policy prohibiting any activity in Woodland Mall not directly related to the enhancement of commercial retail sales in the shopping center.

On April 1, 1982, plaintiff informed defendant lobby of the above-stated policy; however, defendant’s director notified plaintiff’s mall manager that on April 3, 1982, from 12:00 to 6:00, five lobby members would enter the mall, place tables and signs in the center of the mall, and solicit shoppers to sign petitions to initiate state legislation. Members of defendant lobby did, in fact, enter Woodland Mall on April 3, 1982. They were met at the entrance by a security guard who informed them that they were not permitted in the shopping center for purposes of solicitation. Nevertheless, they set up tables and signs in the center of the mall and began to solicit customers for signatures. Once again they were informed they were on private property and were asked to leave by plaintiff’s mall manager. They refused to so do. Signatures were solicited until 6:00 p.m., when plans were announced to return on April 9th and 10th for the same purpose. On April 6, 1982, plaintiff filed its complaint and the trial court entered an ex parte restraining order against defendant lobby. Following extensive argument, the trial court, on April 15, 1982, issued a preliminary injunction which was made permanent on April 27, 1982.

The issue before us is whether defendant lobby has a right under the Michigan Constitution to trespass on plaintiff’s private property for political reasons where the public is invited on plaintiff’s property for a limited purpose and defendant’s activity does not comport with the public nature of plaintiff’s property. We hold defendant does not have such rights and affirm the trial court.

A recent decision by this Court, Commodities Export Co v Detroit, 116 Mich App 57; 321 NW2d 842 (1982), is controlling here. Plaintiff, Commodities Export, was a store selling duty-free goods near the entrance to the Ambassador Bridge to Canada. Defendant Ammex also sold duty-free goods in a store in a "plaza” at the foot of the Ambassador Bridge, leased from the bridge’s private owner. This "plaza” contained only Ammex’s store and a parking lot. Employees of Commodities Export distributed handbills advertising Commodities’ prices to customers of Ammex in the parking lot leased by Ammex. Commodities’ employees refused to leave when asked and were eventually arrested for trespass.

Thereafter Commodities sought an injunction against Ammex to prevent them from interfering with said distribution. The trial court denied the injunction. Plaintiff argued on appeal that, even if the Ambassador Bridge and the area leased to Ammex were private property, nonetheless, its employees were entitled to distribute handbills pursuant to their right of freedom of speech, guaranteed by the First Amendment to the United States Constitution and the Michigan Constitution. This Court disagreed and upheld the trial court. We believe the Commodities Court clearly established that the Michigan Constitution does not sanction acts of trespass for expressive purposes. In reliance on Lloyd Corp, Ltd v Tanner, 407 US 551; 92 S Ct 2219; 33 L Ed 2d 131 (1972), and Hudgens v NLRB, 424 US 507; 96 S Ct 1029; 47 L Ed 2d 196 (1976), cases supporting the exclusion of leafleteers from private property, the Court stated:

"We conclude that the Lloyd and Hudgens cases control this case. The rights surrounding private property ownership, where the public is invited on the property for a limited purpose, cannot be extinguished when the activity does not comport with the public nature of the property.” 116 Mich App 67.

We find there is no open-ended invitation to the public to use Woodland Mall for any and all purposes. The public is invited to Woodland Mall for the limited purpose of shopping for retail goods and services. Defendant and its agents did not come to the mall for such purpose, but, rather, against plaintiffs wishes, came to appropriate and utilize plaintiffs private property as a forum to express political views and solicit shoppers in furtherance of such political views. This activity is wholly inconsistent with the scope of invitation extended the public and with plaintiffs use of its private property, thus unwarrantedly diminishing plaintiffs property rights and injuring its business. We find Woodland has made a substantial commitment, both in terms of financial investment and legal obligations, to construct and maintain common areas which are attractive, restful, and non-disruptive to shoppers. Defendant’s activity would irreparably harm this planned peaceful atmosphere.

Defendant seems to suggest that the test for determining whether political access to private property should be granted is based on the size of the property in question and the vitality of nearby business districts. We believe the appropriate test to be whether the access sought is reasonably related to the limited purpose and scope of the owner’s invitation to the public to enter his private property. Clearly, in the instant case, the political access sought by the defendant is entirely unrelated to Woodland’s limited invitation to the general public to shop in its private property.

Therefore, we hold defendant’s conduct to constitute a continuing trespass upon private property contrary to MCL 750.552; MSA 28.820(1). We find defendant’s conduct would irreparably harm the business of plaintiff and its tenants, infringing on their constitutionally protected property and contract rights.

Affirmed.

T. M. Green, J., concurred.