Metropolitan News-Enterprise


Wednesday, June 6, 2001


Page 1


Justices Urged to Lift Ban on Tenants Leafletting in Complex


By KENNETH OFGANG, Staff Writer/Appellate Courts


A residential landlord’s rule prohibiting tenants from circulating a newsletter or other unsolicited materials within the complex violates the state Constitution’s free speech clause, a tenants association lawyer told the state Supreme Court yesterday.

The residents of Golden Gateway  Center, a 1,254-unit apartment complex in San Francisco, have a right to communicate with each other in writing on matters of “common interest,” Robert DeVries told the justices.

Citing the court’s 1979 Robins v. Pruneyard Shopping Center decision on free speech rights in a large shopping center which served as the “functional equivalent” of a traditional town center, DeVries said his clients’ case was even stronger.

Golden Gateway Center is “not the functional equivalent of where people live, it is where people live,” he said, emphasizing the word “is.”

But Golden Gateway attorney Glenn Zwang urged the justices to affirm the First District Court of Appeal’s Div. Three. That panel said Pruneyard could not be applied to the complex because it wasn’t open to the public.

Golden Gateway tenants, Zwang said, pay high rents in order to live in a “secure, litter-free, peaceful environment” that would be damaged if tenants could freely roam the halls distributing literature.

DeVries scoffed at the argument, saying the landlord had freely allowed tenants to distribute a newsletter and other communications on complex-related matters until the association began using those channels to criticize management.

The First District ruling overturned San Francisco Superior Court Judge John Dearman’s injunction barring the landlord from interfering with the distribution of such  materials by the Golden Gateway Tenants Asso­ciation.

Dearman, without reaching the constitutional issue, had ruled that there was a binding contract between the association and the landlord which gave the association the right to leaflet at will, but the First District panel  found that there was no such contract.

Several justices suggested yesterday that the case might be amenable to resolution on contractual grounds. But it wasn’t clear which purported contract would be controlling—the asserted agreement, in the form of a letter, relied on by the tenants association or the form lease giving the landlord the right to establish rules restricting tenant conduct.

Zwang provoked a lively discussion with the justices by asserting that “200 years of constitutional history” impel the court to rule that some form of state action must be present before the court can find a constitutional violation.

Pruneyard, he said, should not be read as having done away with the state-action requirement, which has been consistently reaffirmed by the U.S. Supreme Court in interpreting the First Amendment and other provisions of the Bill of Rights.

Instead, Zwang argued, it should be viewed as finding an equivalency of state action under peculiar facts, as in the U.S. high court case of Marsh v. Alabama, dealing with a “company town” in which the streets and sidewalks were privately owned.

That argument drew a skeptical response from Justice Joyce L. Kennard, who cited the first sentence of Art. I, Sec. 2 of the California Constitution:

“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.”

That provision, Kennard said, contains no implication of state action. And even if the court could read a state-action requirement into the sentence, Justice pro tem Joan Dempsey Klein interjected, “why should we want to do that to the state of California?”

Klein, presiding justice of Div. Three of this district’s Court of Appeal, sat on the case in place of Justice Stanley Mosk, recused for undisclosed reasons.