GOLDEN GATEWAY’S IMPACT ON THE TENANT
UNION’S RIGHT TO DISTRIBUTE LITERATURE
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In July of 1999 the First District Court of Appeal filed their decision in the matter of Golden Gateway Center v. Golden Gateway Tenants Association, file # A082319. The court opined that the landlord, Golden Gateway Center, had the right to prohibit, in their large complex of buildings, the distribution of literature by the Golden Gateway Tenants Ass’n. Naturally, it became a news story. The writer has seen articles which give the impression that the case was decided under the United States Constitution’s protection of the right to free speech, and pieces advocating that landlords
promptly impose house rules prohibiting leafleting. The author of one item went so far as to say that the decision was “of exceptional importance to apartment owners” – not California landlords, but the universe of landlords – while placing the case in the “First U.S. District Court of Appeal,” which does not exist. That writer went on: “It is advisable that apartment owners reevaluate their house rules and include a ban on unauthorized solicitations or leafleting within their complexes.” See Apartment Management, “Court Case, Tenant Leafleting,” September, 1999, page 46.
We thought long and hard about this, and initially decided not to deal with it at all, for reasons that will become clear below. In our opinion Golden Gateway is not of exceptional importance to apartment owners, although it may provoke other litigation that will be. In view of commentary as described in the previous paragraph, we changed our minds and decided to offer our own analysis.
This article is primarily for California landlords. Golden Gateway was based, not on the U.S. Constitution, but on the California Constitution. As the appellate court stated:
The Association does not claim its activities are protected by the First Amendment to the United States Constitution. It acknowledges that, in this context, Federal constitutional protection is not as broad as that provided by the California Constitution.
For this reason, the decision cannot have national impact. Other states may consider it as persuasive, but that is all. Nevertheless, landlords and attorneys in other states may find the case and this article of interest as a starting point for analysis of their own state laws.
WHAT THE CASE WAS ABOUT
The Golden Gateway Center is a secure apartment complex in San Francisco. The Building Standards, supplied to each tenant and incorporated into their rental agreements, prohibited solicitation and distribution of literature on the premises. The management’s security program included doormen and 24-hour security patrols. Entry was denied to the general public, and only tenants and their guests were admitted. The Golden Gateway Tenant’s Association had been distributing leaflets and a newsletter in the complex for years
under an agreement with management. Management expressed concern when these distributions became frequent and voluminous, and asked the Association to limit their activities. The Association and management did not reach agreement, and further distribution of literature was prohibited. Because the members of the Association were tenants they had access to the interior of the buildings and continued their leafleting campaign.
In response, Golden Gateway Center sued for an injunction. The Association defended on the contractual ground that the leases and Building Standards had been modified to permit distribution of literature, and that their activities were protected by the free speech guarantees of the California Constitution. The Superior Court denied the injunction and granted the Association declaratory relief, basing its decision solely on the contractual defense, not constitutional grounds, upon which the Superior Court apparently made
no findings. In the words of the Court of Appeal,
After trial, however, the court ruled the parties’ April 1994 correspondence created a binding lease amendment by which Golden Gateway agreed to permit the Association to distribute its newsletter six times annually. On that sole basis [emphasis supplied], it granted declaratory judgment in favor of the Association. Golden Gateway timely appealed.
THE EFFECT OF THE DECISION
The effect of Golden Gateway on California landlords is hard to assess. It is true that the Court reversed the decision made in Superior Court and directed that an injunction against leafleting issue. But before a decision can be of “exceptional importance” it must have general applicability. In the opinion of this writer Golden Gateway does not, for two reasons.
Judicial decisions are not like statutes. Except in rare circumstances, courts of appeal are not courts of original jurisdiction. Their power is limited to a review of the application of legal principles by the lower courts. In order to have value as precedent, a pronouncement by a reviewing court must relate to a rule of law necessary to the review of the lower court’s decision. Obiter dictum, or dictum for short, is a statement by the court that does not relate to a rule of law necessary to decide the case. Such a
statement, though interesting or even profound, need not be recognized as binding by other courts. The quoted portion of Golden Gateway, if it says what the Court intended it to say, is clear. The Superior Court’s decision had nothing to do with the Constitution. That being so, the portion of the Court of Appeal’s decision dealing with the constitutional question – which is the only portion of the decision certified for publication, by the way – was not necessary to reach a decision. This is not to say that the Court’s reasoning is not compelling, it is. Nor is this to say that there were not good practical reasons
to cast the decision in the way it was cast, there undoubtedly were. It must be conceded, however, that the case is a good deal weaker than it would have been had the Court been dealing with a decision from below which included a ruling on the constitutional issue.
The importance of a judicial decision also depends on its factual setting. Any legal dispute depends for its resolution on the set of facts out of which it arises. Where the factual setting is fairly common, then the decision has wide application. Where the factual setting is less common, the decision is less widely applicable. This is why a detailed description of the facts of a case always precedes the statement of decision. The extent to which the management of Golden Gateway Center held the complex open to the public
was central to the Court’s reasoning. The Court dwelt upon Golden Gateway Center’s security policy, the restriction of public access to the buildings, and how it was enforced. The court had the following to say about that,
Here, Golden Gateway Center is decidedly private property. It is a security facility with doormen and 24-hour security patrols. The residential buildings do not offer retail, restaurants or entertainment facilities. Access is limited to Golden Gateway’s residential tenants and their invitees. For reasons of security, privacy and cleanliness, building management has consistently denied public access, even to its commercial tenants, to disseminate advertising or other materials. This emphasis on security and privacy is made clear to each potential
resident through the Building Standards incorporated into each lease. In contrast to the invitation to the general public extended by a forum like a large shopping mall, Golden Gateway has thus maintained the private nature of its residential buildings. Far from inviting the general public, it takes clear steps to admit only a discrete group of individuals. In this context, … [the] extension of constitutional free speech rights to the quasi-public forum of a large shopping center is inapplicable.
Few would argue that the Golden Gateway Center is typical of apartment complexes in California. The most that can be said about Golden Gateway is that it holds that a tenant’s union may be prevented from distributing written materials in a patrolled and attended security building from which all but tenants and their guests are consistently and effectively excluded.
THE PROBLEMS OF IMPLEMENTATION
It probably would not be a good idea for all landlords to clamp down on their tenants with heavy handed restrictive regulations. To be in a posture similar to that of Golden Gateway Center, the landlord would have to do the following:
1. Develop a uniform security policy excluding everybody but invitees of the tenants.
2. Strongly and uniformly enforce the policy. In other words, even the tenant Mrs. Jones’s daughter could not sell her Girl Scout Cookies once a year.
3. Reconfigure the complex to block free access and guard, or at least gate, such access points as remain.
Few landlords would wish to set up a fortress regime to prevent a few tenants from distributing leaflets. Golden Gateway Center did not do so. They were cooperating with the Tenants Association and made them an exception to the solicitation rule. The Golden Gateway Center was designed with security in mind, not tenant union newsletters. Any landlord who wishes to fortify his complex to snuff out a tenant’s newsletter is putting the cart before the horse.
Because of the way in which the Golden Gateway decision was reached, and its unique factual setting, it is more an invitation to further litigation than clear statement of the law. The courts are zealous in the protection of the right to self-expression because it is considered a fundamental right. Anything that restricts this right will be scrutinized with suspicion. The issue now to be resolved is whether a landlord owning the typical California apartment complex can prohibit a tenant union from distributing materials.
This will require further litigation, as the courts try to decide at what point in its configuration and its policies the complex becomes public enough to trigger California’s free speech protections. They are quite likely to find that it does not have to be all that public. Any landlord who undertakes the prohibition of leafleting at this point risks being a test case.
Golden Gateway Center v. Golden Gateway Tenants Association, in the opinion of the writer, settles nothing. Any landlord who wishes to take the advice of some who have advocated strong action should do so advisedly. Serious consultation with legal counsel about the risks, costs, benefits, and uncertainties is indispensable.