Glovsky v. Roche Bros. Supermarkets, Inc. , 469 Mass. 752 ( 2014 )

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SJC-11434
STEVEN M. GLOVSKY vs. ROCHE BROS. SUPERMARKETS, INC.
Norfolk. February 3, 2014. - October 10, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Massachusetts Civil Rights Act. Elections, Ballot.
Constitutional Law, Elections. Civil Rights, Coercion.
Practice, Civil, Election case, Civil rights, Motion to
dismiss.
Civil action commenced in the Superior Court Department on
April 2, 2012.
A motion to dismiss was heard by Renée P. Dupuis, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Steven M. Glovsky, pro se.
Mark W. Batten for the defendant.
John Pagliaro & Martin J. Newhouse, for New England Legal
Foundation & others, amici curiae, submitted a brief.
Adam J. Kessel, Frank L. Gerratana, & Sarah R. Wunsch, for
American Civil Liberties Union of Massachusetts, amicus curiae,
submitted a brief.
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
DUFFLY, J. Steven M. Glovsky sought to solicit signatures
for his nomination to public office outside the entrance to a
supermarket owned by the defendant, Roche Bros. Supermarkets,
Inc. (Roche Bros.), but was informed that Roche Bros. prohibited
this activity on its property. Glovsky filed suit in the
Superior Court claiming that Roche Bros. had violated his right
to equal ballot access under art. 9 of the Massachusetts
Declaration of Rights. He requested relief under the
Massachusetts Civil Rights Act, G. L. c. 12, § 11I (act), for a
violation of his rights "by threats, intimidation or coercion."2
Roche Bros.' motion to dismiss pursuant to Mass. R. Civ.
P. 12 (b) (6), 365 Mass. 754 (1974), was allowed. Glovsky
appealed, and we granted his application for direct appellate
2
General Laws c. 12, § 11I, provides that
"[a]ny person whose exercise or enjoyment of rights secured
by the constitution or laws of the United States, or of rights
secured by the constitution or laws of the commonwealth, has
been interfered with, or attempted to be interfered with, as
described in section 11H, may institute and prosecute in his own
name and on his own behalf a civil action for injunctive and
other appropriate equitable relief . . . ."
General Laws c. 12, § 11H, applies
"[w]henever any person or persons, whether or not acting
under color of law, interfere by threats, intimidation or
coercion, or attempt to interfere by threats, intimidation or
coercion, with the exercise or enjoyment by any other person or
persons of rights secured by the constitution or laws of the
United States, or of rights secured by the constitution or laws
of the commonwealth . . . ."
3
review. We conclude that Glovsky adequately has alleged a right
under art. 9 to solicit nominating signatures outside Roche
Bros.' supermarket, but that Roche Bros. did not violate this
right "by threats, intimidation or coercion."3
Background. The complaint sets forth the following
allegations. In early 2012, Glovsky undertook a bid for
election to the second district seat on the Governor's Council.
To place his name on the September 6, 2012, State primary
ballot, Glovsky needed to submit, by May 29, 2012, nomination
papers containing at least 1,000 certified names. On February
7, 2012, Glovsky obtained nomination papers from the office of
the Secretary of the Commonwealth and began collecting
signatures.
On the afternoon of March 14, 2012, Glovsky traveled to a
location in Westwood, near the geographic center of the
Governor's Council second district, intending to solicit
signatures on Roche Bros.' property there. Roche Bros.'
Westwood property consists of 4.99 acres and contains a 47,568
square foot supermarket building. As alleged in the complaint,
3
We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts in support of the
plaintiff, and the amicus brief submitted by New England Legal
Foundation; Associated Industries of Massachusetts; the Greater
Boston Real Estate Board; the Massachusetts Food Association,
NAIOP Massachusetts; the Real Estate Bar Association for
Massachusetts, Inc.; and the Abstract Club in support of the
defendants.
4
Roche Bros.' Web site describes its Westwood supermarket as "the
first to incorporate a 'department' concept of merchandising,
adding a bakery, florist, and a restaurant to make shopping more
enjoyable." The store is the only supermarket in Westwood,
which, as of July, 2009, reported a population of 14,330. Roche
Bros. also leases space inside the building to a banking
institution, which operates a "full service banking" branch
there. The bank has its own separate business logo displayed on
the building's marquee, and maintains a twenty-four hour deposit
slot in the building's exterior wall
Upon arriving at the Westwood property, Glovsky notified
Roche Bros. personnel that he intended to solicit nominating
signatures from voters on the sidewalk immediately outside the
entrance to the store. Jim Visconti, the store manager,
informed Glovsky that Roche Bros. had adopted a policy that "no
longer" permitted signature solicitation anywhere on its
Westwood property. Glovsky's complaint alleges that he felt
"intimidated" by this delivery of Roche Bros.' policy and
"threatened by the inherent consequences he understood could
result if he acted against such a clearly stated prohibition."
As a result, Glovsky left the property despite believing that he
had a right under art. 9 to solicit signatures there.
Discussion. a. Standard of review. "We review the
allowance of a motion to dismiss de novo, accepting the
5
allegations in the complaint as true and drawing all reasonable
inferences in the plaintiff's favor." Harrington v. Costello,
467 Mass. 720, 724 (2014). To survive a motion to dismiss,
these allegations must "plausibly suggest" an entitlement to
relief, raising the right to relief "above the speculative
level." Id., quoting Iannacchino v. Ford Motor Co., 451 Mass.
623, 636 (2008).
b. Article 9. Glovsky argues that he has a protected
right under art. 9 to solicit signatures in support of his
nomination to public office on the property of the Roche Bros.
supermarket in Westwood. Article 9 provides that "[a]ll
elections ought to be free; and all the inhabitants of this
commonwealth, having such qualifications as they shall establish
by their frame of government, have an equal right to elect
officers, and to be elected, for public employments." This
provision protects the "fundamental right" of equal access to
the ballot, a "basic right," Opinion of the Justices, 413 Mass.
1201, 1210 (1992), that is "of fundamental importance in our
form of government because through the ballot the people can
control their government." Batchelder v. Allied Stores Int'l,
Inc., 388 Mass. 83, 91, 93 (1983) (Batchelder I). See
Libertarian Ass'n of Mass. v. Secretary of the Commonwealth, 462
Mass. 538, 560 (2012) (art. 9 protects "fundamental" and
"intertwine[d]" rights of candidates to participate equally in
6
electoral process and of voters to cast their ballots as they
see fit). This right of ballot access encompasses an
individual's right to solicit signatures in support of a
candidate's nomination to public office. See Batchelder I,
supra at 84, 92. Significantly, art. 9 does not require State
action. See Libertarian Ass'n of Mass. v. Secretary of the
Commonwealth, supra at 558; Batchelder I, supra at 88.
In Batchelder I, supra at 84, we held that art. 9 protects
the right to solicit nominating signatures in the common areas
of a private shopping mall or shopping center, despite the
property owner's objection. The present case requires us to
consider whether art. 9 extends the right to solicit nominating
signatures to private property like that of Roche Bros.'
Westwood supermarket, which is not alleged to be a shopping mall
or shopping center. As in Batchelder I, supra at 91, "[w]e are
concerned with ballot access and not with any claim of a right
to exercise free speech apart from the question of ballot
access." As we noted in that case, "[t]he difference between
free speech and art. 9 rights to free elections and to be a
candidate equally with others is not purely theoretical." Id.
at 92.4
4
In addition to practical differences between the exercise
of these rights, art. 16 of the Massachusetts Declaration of
Rights, which protects free speech, may contain a State action
requirement. See Roman v. Trustees of Tufts College, 461 Mass.
7In determining that the plaintiff in Batchelder I had a
right to solicit nominating signatures in a shopping mall's
common areas, we balanced his need to solicit signatures on the
property in order to effectuate his right to equal ballot access
against the burden that such conduct would impose on the mall
owner's property interests. See id. at 91-93. First, we
emphasized that the art. 9 right to solicit signatures, unlike
the broader right to free speech protected by art. 16, requires
personal contact with voters and cannot be effectuated through
other means of communication. Id. at 91-92. Because of the
growing importance of shopping malls in retail merchandising,
they had begun to function "much as the 'downtown' area of a
municipality did in earlier years," and the shopping center at
issue represented the "most favorable" area in the district for
seeking signatures. Id. at 92-93. Accordingly, prohibiting the
plaintiff's access would have "substantially impaired" his art.
9 right. Id. at 93.
Second, the plaintiff sought only to engage in "unobtrusive
and reasonable solicitations in the common areas of the mall,"
not in the stores themselves, so that his activity would not
unduly burden the mall owner's property interests; indeed, those
common areas "ha[d] been dedicated to the public as a practical
707, 713 (2012) (leaving open whether art. 16 extends to private
property).
8
matter" based on the mall owner's use of the property to host
frequent civic, charitable, and other events in order to attract
customers and generate goodwill. See id. at 92, 93 n.12. Nor
had the mall owner shown that requiring it to permit access by
those soliciting nominating signatures would infringe its own
constitutional property or speech rights, either by adversely
affecting its economic interests or by forcing it to associate
with the plaintiff's views. Id. at 93. The mall owner
adequately could protect its interests by adopting reasonable
time, place, and manner restrictions to minimize the burden that
signature solicitation placed on it. Id. at 84, 93.5
5
We have not had occasion since Batchelder v. Allied Stores
Int'l, Inc., 388 Mass. 83 (1983) (Batchelder I), to address the
scope of the ballot access right in art. 9 of the Massachusetts
Declaration of Rights. Our subsequent discussion of Batchelder
I in cases dealing with free speech rights under art. 16,
however, provides guidance as to the factors that might be
considered when weighing any limitations on the art. 9 right.
As these cases suggest, the balance of interests between an
individual soliciting nominating signatures and the owner of
private property would come out differently if the property
owner has not opened the premises to the public for the owner's
own commercial benefit. See Commonwealth v. Hood, 389 Mass.
581, 585-586 (1983) (Batchelder I distinguished where case
involved art. 16 rights, and private technology laboratory did
not open its property for its commercial benefit, although it
did permit public to pass through property's outdoor area).
Likewise, the balance would come out differently if the property
is devoted to activities involving a small or narrow group of
clientele or a special expectation of privacy. See Ingram v.
Problem Pregnancy of Worcester, Inc., 396 Mass. 720, 722-723
(1986) (Batchelder I distinguished where case involved art. 16
rights, and private property at issue consisted of interior
corridors of office linebuilding that housed reproductive health
care clinic). See also Batchelder I, supra at 89 n.8
9
Roche Bros. seeks to limit the exercise of the art. 9 right
to the common areas of a large shopping mall, thereby creating a
bright-line distinction between such common areas and the area
immediately outside the entrance to a supermarket. Pointing to
our observations in Batchelder I, supra at 92, that shopping
malls had begun to "function in many parts of this State much as
the 'downtown' area of a municipality did in earlier years" and
that the common areas of the mall in question "ha[d] been
dedicated to the public as a practical matter," Roche Bros.
argues that art. 9 protects solicitation of nominating
signatures only on private property that serves as the
functional equivalent of a traditional public forum. Citing
cases from California and other jurisdictions, Roche Bros.
contends that the private property located at the entrance to a
free-standing retail establishment, such as the supermarket
here, does not meet this test because the owner of such property
has invited the public only to pass through the area in entering
(distinguishing parking lot of private hospital). Cf. PruneYard
Shopping Ctr. v. Robins, 447 U.S. 74, 78 (1980), quoting Robins
v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910 (1979)
(distinguishing "modest retail establishment"). Here, by
contrast, the property at issue is a large, private supermarket
to which members of the general public are invited and which
offers numerous amenities to attract a significant number of
people with diverse needs and interests. Cf. Marsh v. Alabama,
326 U.S. 501, 506 (1946) ("The 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").
10
or exiting the store, not to congregate there.6
Roche Bros. misreads our opinion in Batchelder I.
Functional equivalence to a traditional public forum is not the
test for determining whether art. 9 protects signature
solicitation on private property. For example, in Commonwealth
v. Hood, 389 Mass. 581, 585-587 (1983), we distinguished
Batchelder I based on the different right at stake and the
different property in question, and only separately and for
purposes of addressing a claimed right under the First Amendment
to the United States Constitution did we discuss whether the
property served "a public function" or had been "dedicated to
certain types of public use" (citation omitted). Id. at 587.
Rather, the extent to which private property serves the role of
a traditional public forum or effectively has been dedicated to
the public is relevant in the context of art. 9 only as a factor
in balancing the interests of the individual soliciting
signatures against those of the property owner.7
6
See, e.g., Ralphs Grocery Co. v. United Food & Commercial
Workers Union Local 8, 55 Cal. 4th 1083, 1092-1093 (2012), cert.
denied, 133 S. Ct. 2799 (2013); Van v. Target Corp., 155 Cal.
App. 4th 1375, 1388-1389 (2007); Albertson's, Inc. v. Young, 107
Cal. App. 4th 106, 120-122 (2003); Costco Cos. v. Gallant, 96
Cal. App. 4th 740, 755 (2002); Trader Joe's Co. v. Progressive
Campaigns, Inc., 73 Cal. App. 4th 425, 433-434 (1999); Waremart,
Inc. v. Progressive Campaigns, Inc., 139 Wash. 2d 623, 636-637
(1999).
7
Indeed, private property's function as a traditional
public forum serves as the test for State action in this
11
In many rural and suburban communities, the local
supermarket may serve as one of the few places in which an
individual soliciting signatures would be able to approach
members of the public in large numbers. We disagree with Roche
Bros.' contention that, for purposes of a claim to ballot access
under art. 9, the privately owned area immediately outside the
entrance to such a supermarket differs as a matter of kind from
the common areas of a shopping mall or shopping center so as to
warrant dismissal of Glovsky's claim pursuant to Mass. R. Civ.
P. 12 (b) (6).8 Applying the balancing test employed in
Batchelder I to the facts as asserted in Glovksy's complaint, we
conclude that Glovsky adequately has alleged a right under
art. 9 to solicit nominating signatures on the private property
outside the entrance to Roche Bros.' Westwood supermarket.
context. See, e.g., Central Hardware Co. v. National Labor
Relations Bd., 407 U.S. 539, 547 (1972) (for conduct of private
property owner to qualify as State action, "the privately owned
property must assume to some significant degree the functional
attributes of public property devoted to public use").
Accordingly, the strict functional equivalency test urged by
Roche Bros. effectively would impose the type of State action
requirement that Batchelder I, supra at 88, expressly rejected.
Instead, art. 9 demands a more pragmatic and flexible view of
the extent to which private property serves the public in the
manner of a traditional public forum such that excluding
signature solicitors from that property would undermine the
right to equal ballot access. See Batchelder I, supra at 88-89,
92-93.
8
As Roche Bros. concedes, none of the out-of-State cases on
which it relies were decided in the context of a motion to
dismiss.
12
Glovsky has alleged a substantial interest in soliciting
signatures in this area for his nomination to public office. He
"cannot reasonably obtain" such signatures other than by
"personal contact with voters," Batchelder I, supra at 92, and
"[f]rom the standpoint of a signature gatherer . . . there could
hardly be a more ideal or efficient spot to conduct one's
business than the single entrance and exit of a [supermarket or
giant] grocery store." Waremart, Inc. v. Progressive Campaigns,
Inc., 139 Wash. 2d 623, 649 (1999) (Madsen, J., concurring). In
general, supermarkets offer a variety of groceries, household
items, and other merchandise that in many communities would be
dispersed among several shops along a public way. See, e.g.,
Colgate-Palmolive Co. v. Elm Farm Foods Co., 337 Mass. 221, 223
(1958) (supermarkets commonly sell "meats, groceries,
vegetables, toilet articles, household wares, and other
merchandise"). In addition to such items, the Westwood property
includes a bakery, a florist, and a restaurant. It also
accommodates a "full service banking" branch. Because the
property allegedly contains the only supermarket in Westwood, as
well as these other amenities, it reasonably can be inferred
that the property draws a significant portion of the town's
voters. In some communities, an individual might solicit
signatures from members of the public as they traverse the
public way connecting the various shops that offer such
13
amenities; to deprive Glovsky of similar access to the public
where the assorted products have been consolidated under a
single roof could "substantially impair[]" the fundamental
rights protected by art. 9. See Batchelder I, supra at 93.
Moreover, the allegations in the complaint support the
reasonable inference that allowing individuals to solicit
nominating signatures in the area outside the Westwood
supermarket building would not unduly burden Roche Bros.'
property interests. Roche Bros. invites the public at large to
shop at its property and offers numerous amenities to attract a
significant number of people with diverse needs and interests.
Furthermore, as the only supermarket in Westwood and especially
given the other features it offers, it is likely that the
property does draw large numbers of people on a daily basis.9
Like the plaintiff in Batchelder I, supra at 92, Glovsky seeks
only the right to engage in "unobtrusive and reasonable
solicitations" outside the store entrance. Nothing in the
9
Contrary to the dissent's assertion, see post at , we
do not suggest that the art. 9 right to solicit nominating
signatures extends to small-scale general stores just because
they offer a variety of goods. See note 4, supra. Such small-
scale stores attract fewer customers than does a supermarket of
the type at issue here, thereby both diminishing an individual's
need to solicit signatures there and increasing the relative
burden that such solicitation places on the property owner.
Furthermore, many of these small-scale stores abut public
walkways, so that individuals soliciting signatures would have
access to the store's customers without entering the private
property.
14
undeveloped record before us suggests that the proposed,
presumably brief, interactions with shoppers as they enter or
leave the supermarket would interfere with Roche Bros.' use of
its property.10
Roche Bros. argues that, as compared to the common areas of
a shopping mall, requiring it to permit signature solicitation
outside its entrance would impose an undue burden because the
close proximity to its free-standing establishment would create
greater risks both that Roche Bros. will be seen as indorsing
the potential political candidate in question and that its
patrons will be unable to avoid the solicitations as they enter
or leave the supermarket. Without further evidentiary support,
however, these hypothetical risks do not outweigh the interest
of an individual seeking nominating signatures in accessing the
property. It cannot be assumed at this stage of the proceeding
that Roche Bros. would be identified with the views expressed by
a person soliciting nominating signatures merely because the
person does so on premises owned by Roche Bros. but open to the
general public. See Batchelder I, supra at 93. See also
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980)
(PruneYard). For example, Roche Bros. could post signs in the
10
The statement attributed to Roche Bros.' store manager
that Roche Bros. "no longer" permits signature solicitation on
the Westwood property implies that Roche Bros. previously did
permit such solicitation.
15
area disavowing any association with potential political
candidates. See PruneYard, supra. Additionally, Roche Bros.
could prevent those soliciting signatures from harassing its
patrons and impairing its commercial interests by prescribing
reasonable restrictions on the location, time, and manner in
which the nominating signatures may be sought. See Batchelder
I, supra at 84, 93. See also PruneYard, supra at 83.11
We are not persuaded by the California cases on which Roche
Bros. relies for the proposition that a State constitutional
right to engage in expressive activity in the common areas of a
shopping mall should not extend to the area outside a
supermarket.12 See note 6, supra. California decisional law
recognizes an expansive right to engage in free speech on
11
The dissent concludes that Roche Bros.' concerns about
indorsement and interference outweigh Glovsky's admittedly
strong interest in soliciting signatures because such
solicitation "may" negatively impact Roche Bros. See post
at . At this stage of the proceeding, our obligation under
Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), is to
"accept[] the allegations in the complaint as true and draw[]
all reasonable inferences in the plaintiff's favor." Harrington
v. Costello, 467 Mass. 720, 724 (2014).
12
Although our decision in Batchelder I favorably cited
California precedent, California case law at the time apparently
extended its State constitutional free expression right to the
area outside a supermarket. See Robins v. Pruneyard Shopping
Ctr., 23 Cal. 3d 899, 908-909 (1979), citing In re Lane, 71 Cal.
2d 872, 878 (1969). See also National Labor Relations Bd. v.
Calkins, 187 F.3d 1080, 1090-1092 (9th Cir. 1999), cert. denied,
529 U.S. 1098 (2000); Press v. Lucky Stores, Inc., 34 Cal. 3d
311, 316, 318 (1983); Bank of Stockton v. Church of Soldiers of
the Cross of Christ of the State of Cal., 44 Cal. App. 4th 1623,
1630-1631 (1996).
16
certain private property that is broader than the limited art. 9
right to solicit nominating signatures that we have recognized
thus far. See Fashion Valley Mall, LLC v. National Labor
Relations Bd., 42 Cal. 4th 850, 869-870 (2007), citing Cal.
Const., art. I, § 2. Although the California Supreme Court has
identified the State's constitutional provision addressing the
right to petition the government as an additional ground for
protecting the solicitation of petition signatures on certain
private property, see Robins v. Pruneyard Shopping Ctr., 23 Cal.
3d 899, 910 (1979), aff'd, PruneYard, supra, citing Cal. Const.,
art. I, §§ 2, 3, the California courts have not interpreted this
provision as extending the right to solicit signatures beyond
the protection afforded by California's free speech clause. See
Albertson's, Inc. v. Young, 107 Cal. App. 4th 106, 122 (2003)
("To establish a right to solicit signatures at the entrance to
a specific store, it must be shown that the particular location
is impressed with the character of a traditional public forum
for purposes of free speech"); Westside Sane/Freeze v. Ernest W.
Hahn, Inc., 224 Cal. App. 3d 546, 554 (1990) (California's free
speech clause provides "primary source" for right to solicit
signatures identified in Robins v. Pruneyard Shopping Ctr.,
supra). Accordingly, recognition by the California courts of an
individual's right to solicit signatures on private property
would open the property to a host of "other forms of expressive
17
activity" and thereby impose a greater burden on the property
owner than we so far have recognized under the Massachusetts
Declaration of Rights. See Albertson's, Inc. v. Young, supra at
128-129.
Furthermore, in concluding that the balance of interests
weighs in favor of the supermarket owner, the California cases
rely on the fact that such an owner has invited the public only
to pass through the area outside the store's entrance, not to
congregate there. See Ralphs Grocery Co. v. United Food &
Commercial Workers Union Local 8, 55 Cal. 4th 1083, 1092-1093
(2012), cert. denied, 133 S. Ct. 2799 (2013); Albertson's, Inc.
v. Young, 107 Cal. App. 4th at 120-122; Trader Joe's Co. v.
Progressive Campaigns, Inc., 73 Cal. App. 4th 425, 433-434
(1999). For purposes of art. 9, however, this consideration
carries little weight in balancing the interests presented. In
Batchelder I, supra at 92, when comparing shopping malls to the
"downtown" area of a municipality, we focused on the malls as an
attraction for retail shopping, not on whether people congregate
in particular parts of the malls. In terms of access to the
public, it matters little to a signature gatherer whether people
congregate in an area or merely pass through. Likewise,
although signature solicitation might intrude less on a property
owner's interests if the owner already permits people to
congregate on the property to engage in political and expressive
18
activities, see id. at 93 n.12, that does not imply that such
solicitation necessarily would burden the interests of any other
property owner. As discussed, nothing in the record suggests
that unobtrusive signature solicitation, subject to such
reasonable restrictions as Roche Bros. may prescribe, would
impair Roche Bros.' commercial interests.
We conclude that Glovsky plausibly has alleged a right
under art. 9 to solicit nominating signatures on the private
property outside Roche Bros.' Westwood supermarket. We now turn
to whether Glovsky may seek relief under the Massachusetts Civil
Rights Act for Roche Bros.' alleged violation of this right.
c. Massachusetts Civil Rights Act. "Not every violation
of law is a violation of the [Massachusetts Civil Rights Act]."
Brunelle v. Lynn Pub. Sch., 433 Mass. 179, 182 (2001), quoting
Longval v. Commissioner of Correction, 404 Mass. 325, 333
(1989). To establish a claim under the act, "a plaintiff must
prove that (1) the exercise or enjoyment of some constitutional
or statutory right; (2) has been interfered with, or attempted
to be interfered with; and (3) such interference was by threats,
intimidation, or coercion." Currier v. National Bd. of Med.
Examiners, 462 Mass. 1, 12 (2012). See G. L. c. 12, § 11I;
G. L. c. 12, § 11H. The Legislature "explicitly limited the
[act's] remedy to situations where the derogation of secured
rights occurs by threats, intimidation or coercion" in order to
19
prevent it from establishing a "vast constitutional tort."13
Currier v. National Bd. of Med. Examiners, supra, quoting Buster
v. George W. Moore, Inc., 438 Mass. 635, 645, 646 (2003). See
Bally v. Northeastern Univ., 403 Mass. 713, 718 (1989).
For purposes of the act, we define "threats, intimidation
or coercion" as follows: a "threat" consists of "the
intentional exertion of pressure to make another fearful or
apprehensive of injury or harm"; "intimidation" involves
"putting in fear for the purpose of compelling or deterring
conduct"; and "coercion" is "the application to another of such
force, either physical or moral, as to constrain him to do
against his will something he would not otherwise have done."
Haufler v. Zotos, 446 Mass. 489, 505 (2006), quoting Planned
Parenthood League of Mass., Inc. v. Blake, 417 Mass. 467, 474,
cert. denied, 513 U.S. 868 (1994), and Buster v. George W.
Moore, Inc., 438 Mass. at 646. We employ a reasonable person
standard in determining whether a defendant's conduct
constitutes such threats, intimidation, or coercion. Haufler v.
Zotos, supra. A claim under the act is properly dismissed where
the allegations in the plaintiff's complaint fail to satisfy
this standard. See, e.g., Brum v. Dartmouth, 428 Mass. 684, 708
13
Because she concluded that Glovsky had no right under
art. 9 to solicit nominating signatures on Roche Bros.'
property, the judge did not address whether Roche Bros. violated
this right "by threats, intimidation or coercion."
Nevertheless, both parties have briefed this issue on appeal.
20
(1999).
Glovsky argues that Roche Bros. interfered with his art. 9
right "by threats, intimidation or coercion" when Visconti,
Roche Bros.' store manager, informed him that Roche Bros. had
adopted a policy against signature solicitation, causing Glovsky
to feel "intimidated" and "threatened" such that he vacated the
premises. Glovsky relies on Batchelder v. Allied Stores Corp.,
393 Mass. 819, 823 (1985) (Batchelder II), where we held that a
mall security officer's order that the plaintiff stop soliciting
signatures involved sufficient intimidation or coercion to
support a claim under the act.
Batchelder II, supra at 823, however, turned on the threat
of immediate arrest or forcible ejection implicit within an
"order[]" from a "uniformed security officer." See Longval v.
Commissioner of Correction, 404 Mass. at 333; Bally v.
Northeastern Univ., 403 Mass. at 719. See also Brunelle v. Lynn
Pub. Sch., 433 Mass. at 184, quoting Reproductive Rights Network
v. President of Univ. of Mass., 45 Mass. App. Ct. 495, 508
(1998) (distinguishing Batchelder II based on security officer's
"heavy-handed use of police power"). Glovsky does not allege
that Visconti threatened physically to remove him from the
premises or to have him arrested, contrast Sarvis v. Boston Safe
Deposit & Trust Co., 47 Mass. App. Ct. 86, 92 (1999), and as a
private citizen without any apparent police power, Visconti's
21
statement that Roche Bros. prohibits signature solicitation on
its property does not bear the same coercive force as a similar
statement from a security officer. See Kennie v. Natural
Resource Dep't of Dennis, 451 Mass. 754, 763-765 (2008);
Brunelle v. Lynn Pub. Sch., supra.14
Glovsky contends that Visconti's statement carried an
implicit threat of arrest pursuant to G. L. c. 266, § 120, which
provides: "Whoever, without right enters or remains in or upon
the . . . improved or enclosed land . . . of another . . . after
having been forbidden so to do by the person who has lawful
control of said premises . . . may be arrested by a sheriff,
deputy sheriff, constable or police officer." Without further
indication, however, that Visconti would seek Glovsky's arrest,
or cause him to suffer other serious adverse consequences, his
mere declaration of Roche Bros.' policy against signature
solicitation does not rise to the level of threats,
intimidation, or coercion. See Kennie v. Natural Resource Dep't
of Dennis, 451 Mass. at 765, quoting Ayasli v. Armstrong, 56
Mass. App. Ct. 740, 761 (2002) (Rapoza, J., dissenting) (limited
"verbal 'posturing' and '[h]uffing and puffing'" do not
14
We need not here decide whether to revisit the conclusion
in Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985),
that the mere notification from a security officer of the
property owners' good faith policy against signature
solicitation qualifies as intimidating or coercive under the
Massachusetts Civil Rights Act.
22
constitute threats, intimidation, or coercion where such
statements are both delivered by private party and unaccompanied
by further actions); Planned Parenthood League of Mass., Inc. v.
Blake, 417 Mass. at 476 n.9 (lecturing, counseling, and
picketing against abortion do not interfere with that right
through threats, intimidation, or coercion); Rodriques v.
Furtado, 410 Mass. 878, 881, 889 (1991) (hospital agent's
explanation to doctor of hospital's policies, leading doctor to
violate plaintiff's rights in accordance with those policies,
did not establish hospital's interference with plaintiff's
rights by threats, intimidation, or coercion). See also Chao v.
Ballista, 772 F. Supp. 2d 337, 360 (D. Mass. 2011) (knowledge of
defendant's troublesome policy does not constitute "indirect
threat" amounting to threats, intimidation, or coercion); Walsh
v. Lakeville, 431 F. Supp. 2d 134, 150 (D. Mass. 2006)
("[m]erely recommending" interference with right "doesn't evince
the requisite threats, intimidation or coercion"). That Glovsky
subjectively may have felt "threatened" or "intimidated" does
not suffice. See Meuser v. Federal Express Corp., 564 F.3d 507,
520 (1st Cir. 2009); Planned Parenthood League of Mass., Inc. v.
Blake, supra at 474-475, quoting Commonwealth v. DeVincent, 358
Mass. 592, 595 (1971). Accordingly, Glovsky's civil rights
claim properly was dismissed.15
15
This conclusion ordinarily would not preclude Glovsky
23
Conclusion. That portion of the judgment dismissing
Glovsky's request for declaratory relief under art. 9 is vacated
and set aside. The remainder of the judgment is affirmed. The
matter is remanded to the Superior Court for entry of a judgment
dismissing the request for declaratory relief as moot.
So ordered.
from seeking declaratory relief under art. 9. See Batchelder I,
supra at 84 n.2. See also Longval v. Commissioner of
Correction, 404 Mass. 325, 332-333 (1989). However, as the
deadline for collecting nominating signatures and the election
for which Glovsky sought ballot access have both passed, the
case is now moot, and we therefore do not remand for further
proceedings. See Commonwealth v. Hanson H., 464 Mass. 807, 817
(2013); Tsongas v. Secretary of the Commonwealth, 362 Mass. 708,
720-721 (1972).
CORDY, J. (dissenting). The court in this case
significantly expands the scope of the right afforded by art. 9
of the Massachusetts Declaration of Rights at the expense of the
rights of countless commercial property owners across the
Commonwealth. In so doing, its reasoning departs not only from
the cautious analysis employed in Batchelder v. Allied Stores
Int'l, Inc., 388 Mass. 83 (1983) (Batchelder I), but also from
the overwhelming national consensus on the proper balancing of
rights where a limited right to solicit signatures on private
property is recognized. By failing to recognize the enormous
differences between large shopping complexes that duplicate
traditional downtown functions and free-standing stores selling
multiple products, the court completely undoes the intended
balance between the rights of property owners and the rights of
those whom they invite to use their property, and creates
serious consequences for property owners who miscalculate their
obligations despite their best intentions. For these reasons, I
respectfully dissent.
Roche Bros. Supermarkets, Inc. (Roche Bros.), advocates for
a functional equivalence test that is supported by Batchelder I
and by the decisional law of other jurisdictions that have
grappled with this issue. This test would provide clearer
guidance to property owners and individuals and would achieve an
2
appropriate balancing of interests.1 Under the functional
equivalence test, where private property intentionally fills
"the societal role of a town center" such that it is the
functional equivalent of a traditional downtown district,
private property rights must yield to an individual's exercise
of his or her art. 9 right, subject to reasonable time, place,
and manner restrictions. See Albertson's Inc. v. Young, 107
Cal. App. 4th 106, 115 (2003), citing Robins v. Pruneyard
Shopping Ctr., 23 Cal. 3d 899 (1979), aff'd, PruneYard Shopping
Ctr. v. Robins, 447 U.S. 74 (1980). The primary consideration
in this test is the intended use, design, and character of the
property and its common areas in relation to the life of the
community, reflected largely in the nature of the invitation
extended to the public. Where a property owner invites the
public for nearly limitless use, and thereby replicates the
environment and function of a downtown district in facilitating
mixed commercial and social endeavors, the balance of rights
tips in favor of the individual seeking to exercise rights
1
That some jurisdictions employ this functional equivalence
test to determine whether the conduct of a private property
owner constitutes State action for the purposes of a
constitutional rights analysis is not problematic. See ante
at . Where we are concerned with private property owners who
lure the public from downtown areas by providing a full and
nearly identical spectrum of services and resources without
providing the individual rights typically afforded in public
spaces, the analytical framework employed to determine when a
private actor is behaving like a State actor is particularly
fitting.
3
guaranteed in such public forums. See Marsh v. Alabama, 326
U.S. 501, 506 (1946) ("The 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 inverse is
that where a property owner invites the public for a more
limited use, reflected in a utilitarian design facilitating only
the specific commercial purpose of the invitation, the balance
tips in favor of the owner, as the limited invitation results in
the retention of some of the property's private nature. See
Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) ("property [does
not] lose its private character merely because the public is
generally invited to use it for designated purposes").
The functional equivalence test finds support in Batchelder
I and in the analyses employed by other courts on this issue.
Batchelder I involved the then largest shopping mall in
Massachusetts, which included ninety-five separate retail
stores, a movie theater, a bowling alley, an exercise facility,
a beauty salon, a religious facility, and common areas that, as
a practical matter, were dedicated to the public. See
Batchelder I, 388 Mass. at 85, 86 & n.4, 92-93 & n.12. The
court concluded that where the mall offered such a breadth of
potential uses of the property to the public, it functioned as
the equivalent of a downtown area, intentionally recreating the
4
traditional downtown district. Consequently, the mall owners
could not deny visitors the right to solicit signatures that
they would otherwise enjoy in equivalent public spaces. See id.
at 92-93.
The United States Supreme Court and the California
appellate courts, on whose decisions this court relied in
Batchelder I, 388 Mass. at 87-88, 90-91, have similarly affirmed
a limited right to engage in signature solicitation or speech-
related rights on private property that holds itself out to the
public for nearly unlimited use consistent with the function of
a downtown district.2 See PruneYard, 447 U.S. at 78-79, aff'g
2
The court rejects Roche Bros.' reliance on California
decisional law as a guidepost for the legal analysis here
because the right to solicit signatures there is based in the
right to free speech, which confers along with it a host of
other rights. See ante at . The court notes that because
the art. 9 right is less intrusive in its exercise and less
broad in scope, it should extend to more areas than the free
speech right. See ante at . I am not convinced that the
balancing must be conducted any differently, or that the result
cannot be instructive, where the factual scenarios and the
ultimate "speech" sought are so similar to those of the case at
hand. There is no reason why the basis of the right should
preclude our comparison where the ultimate right sought, the
right to solicit signatures, is the same. Further, Batchelder
v. Allied Stores Int'l, Inc., 388 Mass. 83, 87-88, 90-91 (1983)
(Batchelder I), and cases cited, clearly relied on California
and United States Supreme Court precedent in articulating the
analytical framework for the art. 9 right. Despite emphasizing
the unique need for personal contact in soliciting signatures
and the narrow scope of the right as compared to free speech
rights more generally, see Batchelder I, supra at 91-92, the
Batchelder I court indicated no substantive difference based on
the origin of the right meriting a different analytical
framework. Accordingly, I consider the decisional law of
5
Robins, 23 Cal. 3d at 910-911 (State constitutional free speech
right can be extended to large shopping center); Marsh, 326 U.S.
at 502-503, 509 (business district of town wholly owned by
private corporation, which contained residences, streets,
sewers, and business block with shopping center, was so broadly
open for public use that private property owners' right to limit
use must yield to right to distribute religious literature that
would be otherwise available on public property); Ralphs Grocery
Co. v. United Food & Commercial Workers Union Local 8, 55 Cal.
4th 1083, 1104 (2012), cert. denied, 133 S. Ct. 2799 (2013);
Albertson's Inc., 107 Cal. App. 4th at 110, 118-119, and cases
cited. See also Hudgens v. National Labor Relations Bd., 424
U.S. 507, 518 (1976) (free speech right under First Amendment to
United States Constitution does not extend to private property),
overruling Amalgamated Food Employees Union Local 590 v. Logan
Valley Plaza, Inc., 391 U.S. 308, 318 (1968) (large shopping
center containing roads and sidewalks was functional equivalent
of downtown business district and therefore certain First
Amendment rights could not be infringed there).
Other States that use a multifactorial balancing test akin
to the court's interpretation of Batchelder I also place
significant emphasis on the nature of the invitation extended to
California and other States that have similarly rooted their
right to solicit signatures in their State constitutional free
speech provisions to be more persuasive than not.
6
the public. See, e.g., Bock v. Westminster Mall Co., 819 P.2d
55, 61, 62 (Colo. 1991) (assessing whether common areas of mall
"effectively function as a public place" or "equivalent of a
downtown business district"); New Jersey Coalition Against War
in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 333,
362 (1994), cert. denied sub nom. Short Hills Assocs. v. New
Jersey Coalition Against War in the Middle East, 516 U.S. 812(1995), citing State v. Schmid, 84 N.J. 535, 563 (1980)
(assessing "normal use of the property, the extent and nature of
the public's invitation to use it, and the purpose of the
expressional activity in relation to both its private and public
use"); Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wash.
2d 623, 629, 631, 636 (1999) (assessing whether store is
functional equivalent of downtown area and considering, among
several factors, scope of invitation to public and intent of
property owner, as well as nature and use of property and of
right sought to be exercised). The functional equivalence test
therefore has support both in our own precedent and that of
other jurisdictions.
Applying this test, it is clear that there is a meaningful
difference between large shopping malls, which consistently have
been deemed places where a solicitation right may not be
infringed, and free-standing supermarkets, which consistently
have been deemed places where such rights are not protected.
7
A large shopping mall like the one at issue in Batchelder I
can span over eighty acres, typically serving hundreds of
thousands of visitors a week, and containing a wide variety of
retail and department stores, commercial establishments, and
many other services and amenities. See Batchelder I, 388 Mass.
at 85. See also Bock, 819 P.2d at 62; J.M.B. Realty Corp., 138
N.J. at 338, 339. Connecting these establishments within the
mall are common areas that contain seating, plazas, amenities,
and spaces where visitors can gather. See Van v. Target Corp.,
155 Cal. App. 4th 1375, 1388-1389 (2007); J.M.B. Realty Corp.,
supra at 339. The common areas "produc[e] a congenial
environment that encourages passing shoppers to stop and linger,
[and] to leisurely congregate for purposes of relaxation and
conversation." Ralphs Grocery Co., 55 Cal. 4th at 1092; Bock,
supra (visitors "engage, no doubt, in conversations on all
subjects" in common areas of mall). In these common areas, the
mall provides regular programming and events, some "charitable
and civic" and meant to connect the community, others "simply
entertainment," Batchelder I, supra at 86 & n.4, that draw
visitors who may or may not plan to shop. See J.M.B. Realty
Corp., supra at 334, 358. See also Waremart, 139 Wash. 2d at
636-637 (malls often have walking groups, choir meetings, and
other activities).
Although its primary purpose, as with any commercial
8
endeavor, is to make a profit, the mall promotes itself as a
place where all members of the community can engage in any
number of activities, thereby blurring the line between
commercial, civic, and expressive endeavors.3 The resulting
invitation to the public to use the mall is all-inclusive: to
shop, to be entertained, to attend to personal or health needs,
to congregate, to learn, to connect with others, and to do all
the activities one could do in a downtown area. See Robins, 23
Cal. 3d at 910-911; J.M.B. Realty Corp., supra at 333-334, 359.
In so opening the property to a nearly limitless range of
uses, the mall situates itself as the functional equivalent of
and substitute for the downtown district, where historically
communities have gathered for such mixed purposes.4 See Ralphs
3
As the Supreme Court of New Jersey observed, "The hope is
that once there they will spend. The certainty is that if they
are not there they will not." New Jersey Coalition Against War
in the Middle East v. J.M.B. Realty Corp., 138 N.J. 326, 358
(1994), cert. denied sub nom. Short Hills Assoc. v. New Jersey
Coalition Against War in the Middle East, 516 U.S. 812 (1995).
4
A mall need not be enclosed to serve this purpose, and
indeed, current commercial developments employ an outdoor
shopping concept that even more closely resembles the historic
Main Street. As but two examples, the recently developed The
Street in Chestnut Hill and Legacy Place in Dedham are both
designed with the clear intention of replicating Main Street.
The Street blurs the line between commercial and noncommercial
purposes by offering a wide range of high-end retail stores
intermixed with restaurants, a medical center, a movie theater,
a bank, an optician, hair salons, a large supermarket, a fitness
facility, and common areas for rest and relaxation. It
encourages visitors to bring their pets and hosts a variety of
concerts, yoga classes, and other activities with no purchase
9
Grocery Co., 55 Cal. 4th at 1091, quoting Robins, 23 Cal. 3d at
907, 910; J.M.B. Realty Corp., 138 N.J. at 333-334, 357, 359.
As a result, because the mall intentionally replaces Main
Street, it is appropriate for community members to enjoy at
least some of the expressive rights that they otherwise would be
able to exercise on the traditional Main Street.
Indeed, "every state that has found certain of its
constitutional free-speech-related provisions effective
regardless of 'state action' has ruled that shopping center
owners cannot prohibit that free speech" (emphasis in original).
J.M.B. Realty Corp., 138 N.J. at 352, 360. See, e.g.,
Batchelder I, 388 Mass. at 92-93; Robins, 23 Cal. 3d at 905-906;
Bock, 819 P.2d at 62 ("Mall functions as the equivalent of a
downtown business district" because contains wide variety of
commercial and retail establishments, permits range of
activities in common areas, and facilitates public gathering and
discussion by opening common areas for varied use); Alderwood
Assocs. v. Washington Envtl. Council, 96 Wash. 2d 230, 246
(1981) (large regional shopping center "performs a traditional
public function by providing the functional equivalent of a town
center or community business block").
In stark contrast, a free-standing supermarket like Roche
required. Similarly, Legacy Place offers extensive retail,
food, and entertainment options, and a wide variety of
children's workshops and free concerts.
10
Bros., no matter how large, does not replicate a downtown area
on these measures. A supermarket occupies significantly less
acreage, here just under five acres, and may contain a handful
of ancillary businesses, such as the full-service bank that
leases a small portion of the space inside the Roche Bros. store
here. Although the complaint does not allege additional facts,5
the store may have a few chairs inside and a few benches along
the sidewalk near a single entrance and exit. But there is no
allegation that the entryway where the plaintiff sought to
solicit signatures serves any more than the limited purpose of
facilitating the entrance and exit of shoppers. Cf. Ralphs
Grocery Co., 55 Cal. 4th at 1092 ("areas immediately adjacent to
the entrances of individual stores typically lack seating and
are not designed to promote relaxation and socializing," but
rather "serve utilitarian purposes of facilitating customers'
entrance to and exit from the stores and also, from the store's
perspective, advertising the goods and services available
within"). This limited purpose is meaningfully different from
the vast invitation of the open spaces intentionally provided in
large shopping malls. Absent common areas, advertised
5
There is no indication on the record before us of how many
visitors the supermarket receives each week, what its gross
annual or weekly sales are, whether the supermarket offers any
programming or social events, or whether there are any common
areas in the store.
11
programming, or a host of unrelated amenities designed to
encourage visitors to pursue varied needs, the invitation Roche
Bros. extends to the public for use of its property is a far
more limited one than that of a large mall: to purchase the
goods and services Roche Bros. offers.6 See Costco Cos. v.
Gallant, 96 Cal. App. 4th 740, 755 (2002). All of the areas and
features of the store are designed toward this purpose. There
is no general invitation to gather or to come to the store for
some other purpose; there is only the invitation to shop and to
utilize the ancillary services provided in furtherance of this
invitation. See Albertson's Inc., 107 Cal. App. 4th at 120-121.
See also Lloyd Corp., 407 U.S. at 569.
I am very troubled by the court's suggestion that the
variety of the items sold by Roche Bros. is particularly
relevant to the analysis. See ante at . This is a matter of
convenience and not of constitutional importance. The court
6
Even if Roche Bros. were to provide other amenities not
specifically identified in the complaint, they most likely would
be in furtherance of its explicit commercial purpose of inviting
the public to shop there. A pharmacy, a movie rental facility,
photograph printing services, a United States mail box, lottery
ticket sales, small children's rides outside the entrance,
public payphones, or any number of other, small-scale services
are all amenities of convenience, ancillary to the primary
purpose of shopping for groceries and other household items.
They render it more likely that a customer will choose to shop
for groceries at this store instead of another option; they do
not signal to the public that they should come to the store to
engage in noncommercial activities. See Fred Meyer Stores, Inc.
v. Garrett, 191 Or. App. 582, 585-586 (2004).
12
allows itself to be distracted by the plaintiff's argument that
because the supermarket offers products that in a bygone era
would require visits to numerous stores, the supermarket must be
considered a wholesale replica of a downtown shopping district.
This argument shifts the inquiry from the design and purposeful
use of the property to the inventory of the particular store,
which may change with the seasons, global product availability,
business priorities, consumer demand, or any number of variables
irrelevant to the constitutional analysis we are conducting
here. It diminishes the weight of other more important
considerations by focusing on an individual store owner's
business acumen in determining that a customer might like to buy
aspirin and tissues along with orange juice. Were inventory
determinative, every general store in the Commonwealth that is
not accessible by a public walkway, from the shoeshine-cum-
sundries shops nestled within the corporate towers of downtown
Boston to the pharmacies and big-box stores which now dot our
urban and suburban environment, might be found to have
surrendered their property rights to those of individual
citizens, with no further inquiry into whether these stores
truly function as the equivalent to downtown districts.7
7
Although the court assures us that its holding does not
extend to "small-scale general stores," see ante at , it
provides no further guidance as to where exactly it would draw
the line.
13
It cannot be that a single store, designed to invite
customers for a limited commercial purpose, falls into the same
class as a large shopping mall simply because it carries a
varied inventory.8 This convenience factor does not import the
social and gathering functions that result from the intentional
design and use of a property's common areas to facilitate
community congregation, nor does it transform the invitation
from a specific commercial one (fulfil all of your daily
shopping needs here) to an all-inclusive one (do whatever you
would like here). See Trader Joe's Co. v. Progressive
Campaigns, Inc., 73 Cal. App. 4th 425, 433 (1999).
Rather, supermarkets that lack common spaces designed to
facilitate congregation and encourage visitors with varied
agendas fail to replicate the historic downtown district. For
this reason, other States have explicitly rejected the analogy
of a single store or supermarket, even where situated among a
few other stores, to a downtown district or to a large shopping
mall, and accordingly they have declined to extend certain
individual liberties to such private property. See Ralphs
8
There is a key distinction between the inventory of a
single store and the over-all collection assembled within a
large shopping mall. A large mall intentionally brings together
numerous tenants to cater to a range of different types of
customers. In so doing, it creates common spaces between these
stores that then serve as points of congregation and replicate a
downtown area.
14
Grocery Co., 55 Cal. 4th at 1093, 1104 (entryway to supermarket
not public forum because not "designed and furnished in a way
that induces shoppers to congregate," but rather "to walk to or
from a parking area"); Van, 155 Cal. App. 4th at 1388-1389
(entrances to Target, Wal-Mart, and Home Depot stores not
"functional equivalent of a traditional public forum" because
"designed to encourage shopping as opposed to meeting friends,
congregating or lingering," and did not contain "courtyards,
plazas or other places designated to encourage patrons to spend
time together or be entertained"); Albertson's Inc., 107 Cal.
App. 4th at 120-121 (supermarket not "functional equivalent of
traditional public forum" because "does not invite the public to
meet friends, to eat, to rest, to congregate, or to be
entertained at its premises," and its entrance is not "place
where people choose to come and meet and talk"); Costco Cos., 96
Cal. App. 4th at 755 (Costco stores not "miniature downtowns"
because customers go to stores "to purchase . . . goods and
services offered by Costco," not "with the expectation they will
meet friends, be entertained, dine or congregate"); People v.
DiGuida, 152 Ill. 2d 104, 126-127 (1992) (free-standing grocery
store does not "present[ ] itself as a forum for free
expression" because does not give "impression that its property
was public in nature and open to expressive activities"); J.M.B.
Realty Corp., 138 N.J. at 373 ("No highway strip mall . . . no
15
single huge suburban store, no stand-alone use, and no small to
medium shopping center sufficiently satisfies the standard . . .
to warrant the constitutional extension of free speech to those
premises"); Fred Meyer Stores, Inc. v. Garrett, 191 Or. App.
582, 585-586 (2004) (no right to solicit petition signatures at
supermarket marketing itself as one-stop shop and offering
mailboxes, automated teller machines, public telephones, and
seating areas because invitation to public not sufficiently
broad); Waremart, 139 Wash. 2d at 636-637 (no right to petition
or solicit signatures at retail grocery store that invites
public for limited commercial purposes and not "for any
noncommercial purpose," because store does not "promote any
public services on their locations," does not have "areas for
citizens to congregate[,] . . . wait or converse," and "bear[s]
none of the characteristics of a town center" [citations
omitted]). See also Lloyd Corp., 407 U.S. at 569 ("Few would
argue that a free-standing store, with abutting parking space
for customers, assumes significant public attributes merely
because the public is invited to shop there"). This court,
however, has chosen to ignore this consensus and the predictable
reasoning underlying it.
Even under the Batchelder I balancing test as the court
interprets it, which entails more interest-based rather than
size, scope, and functional considerations, the balance to be
16
struck for a supermarket like Roche Bros. should not lean in
favor of art. 9 rights. I need not discuss the individual
interests of using a local grocery store as a place for the
solicitation of signatures -- that much is clear from the
court's opinion, and I do not dispute the importance of this
interest. But the court undervalues Roche Bros.' claims of
perceived indorsement and interference with its commercial
enterprise and its own constitutional property and speech
rights, such that the court miscalculates the interests at
stake.
Where a retail business stands alone in its physical space,
unaccompanied by other stores, there is a real risk that it will
be seen as indorsing a candidate for whom signatures are being
solicited outside its entrance. In addition, where there is
only one entrance, and the supposed "common area" of the
property consists of the walkway to that entrance, other
customers will be unable to avoid the solicitations as they
enter and leave the store.9 As the California Supreme Court has
observed, "[s]oliciting signatures . . . pose[s] a significantly
greater risk of interfering with normal business operations when
those activities are conducted in close proximity to the
entrances and exits of individual stores rather than in the less
9
This is indeed what makes the location so appealing to
those seeking signatures.
17
heavily trafficked and more congenial common areas."10 Ralphs
Grocery Co., 55 Cal. 4th at 1092. Cf. J.M.B. Realty Corp., 138
N.J. at 374 (where property stands alone, "exercise of free
speech will generate greater interference with their normal
use"). The right to solicit signatures cannot truly be
exercised "unobtrusive[ly]" when it is done so directly in front
of the only ingress and egress of a free-standing store. See
Batchelder I, 388 Mass. at 92. Although the art. 9 right, as
has been noted, is narrower than the right to free speech, a
single, free-standing store may nonetheless suffer an impact or
interference from its exercise, particularly if it serves to
stifle the property owner's exercise of its own property or
speech rights.
The solutions the court proposes for overcoming perceived
indorsement and commercial interference do not cure these
concerns. See ante at . There are numerous reasons why
10
In contrast, perceived indorsement concerns are minimal
if not nonexistent at large shopping malls with hundreds of
tenants. Where many malls carry a name that is localized (e.g.,
Northshore Mall, Natick Mall) or catchy (e.g., Assembly Row,
Legacy Place), only the most informed visitor would know the
identity of the mall's owner. Further, because large malls
contain "numerous separate business establishments" and numerous
entrances, it is unlikely that permitting the solicitation of
signatures would impair the value or use of the property as a
mall or interfere with normal business operations. See
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 83 (1980);
Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910-911
(1979).
18
posting disclaimers would be impracticable or undesirable for
property owners, and time, place, and manner restrictions can go
only so far in countering perceived indorsement and interference
while still being minimal and reasonable limitations on the
solicitation right. Cf. PruneYard, 447 U.S. at 96 (Powell, J.,
concurring in part and in the judgment) ("Even large
establishments may be able to [demonstrate] . . . substantial
annoyance to customers" of exercise of free speech right "that
could be eliminated only by elaborate, expensive, and possibly
unenforceable time, place, and manner restrictions"). These
important considerations as to the burden on the owner of
property occupied by a stand-alone store have led courts in
other States employing nearly identical balancing tests to find
the balance tipped decidedly in favor of the owner's rights.
The consequences of today's decision are significant.
Aside from swinging the pendulum too far in favor of the
exercise of individual rights at the expense of those of
property owners, the court's decision offers an unworkable test
in several respects. No retail store except the smallest, most
highly specialized one can safely determine that it falls
outside the scope of the art. 9 right. All other property
owners must interpret the sweeping strokes and muddied reasoning
of the court's decision to parse whether they are obligated to
respect an individual's exercise of the art. 9 right in any
19
common or outdoor areas, even when that exercise interferes with
their own constitutional rights or with the livelihood of their
commercial enterprise, and even when, under an appropriate
analysis, their rights as property owners would rightfully trump
those of their visitors. To preserve their independence from
perceived indorsement and to ensure a safe and easy shopping
experience for other customers, property owners will need to
craft careful time, place, and manner restrictions that minimize
interference. See Batchelder I, 388 Mass. at 92-93.
In addition, in determining whether they must permit
solicitation activity and the extent to which they may restrict
such activity, property owners will be inclined to err on the
side of caution where the court creates today the likelihood
that, if the business makes the incorrect calculation, it will
owe compensatory money damages under the Massachusetts Civil
Rights Act (act) to the aggrieved individual. See G. L. c. 12,
§ 11I. It is worth repeating that we have consistently avoided
reading the act as creating a "vast constitutional tort" by
recognizing actionable conduct in only very limited
circumstances. Bally v. Northeastern Univ., 403 Mass. 713, 718
(1989), quoting Bell v. Mazza, 394 Mass. 176, 182 (1985). See
Freeman v. Planning Bd. of W. Boylston, 419 Mass. 548, 564, 565-
566, cert. denied, 516 U.S. 931 (1995). But the court's
20
decision opens the door for a host of claims under the act where
they are unwarranted.
In vastly expanding the realm of private properties on
which the art. 9 right may be exercised, and in interpreting the
requirements for a successful claim under the Massachusetts
Civil Rights Act in this way, the court creates a burdensome and
unnavigable standard for property owners. This holding goes too
far in eroding the rights of property owners to use their
property for commercial endeavors without undue interference.
Because I believe that the exercise of the art. 9 right on
private property should be limited to properties that serve as
the functional equivalent of a traditional downtown area, and
that the Roche Bros. supermarket at issue here does not so
serve, I would affirm the grant of Roche Bros.' motion to
dismiss on all grounds.