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Massachusetts Politician Wins Right to Seek Voter Signatures Outside Supermarket

Jo-Ann Marzullo October 16, 2014

The right to get on the ballot overwhelms private property rights of the sole supermarket in the Town of Westwood as ruled by the Massachusetts Supreme Judicial Court in the case Glovsky v. Roche Bros. Supermarkets, Inc., 2014 WL 5041009 SJJC – 11434.  This case was not decided as to free speech rights and limitations.

The focus was that “[f]rom the standpoint of the 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” quoting Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wash. 2d 623, 649 (1999).

Although many questions were raised by this decision, The Court did rule that the store could post signs “disavowing any association with potential political candidates” and “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."

The Court in footnote 4 left open whether free speech actions require state action and therefore apply the functional equivalence test, which Justice J. Cordy explained in his dissent as "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” citing Albertson’s Inc. v. Young, 107 Cal. App. 4th 106, 115 (2003).

The actions of the store manager in stating the supermarket’s policy that did not permit signature solicitation anywhere on the nearly five acres supermarket parcel was found not to be interference with a constitutional right by threats, intimidation or coercion.  The actions of the store manager were compared to a threat of immediate arrest or forcible ejection implicit with an order from a uniformed security officer in Batchelder v. Allied Stores Corp., 393 Mass. 819, 823 (1985).

So if someone wishes to collect signatures to get on the ballot on private property not the “ideal or efficient spot” or wants to assert first amendment rights, better to have the store manager (and not a uniformed security guard) calmly state the company policy.  If customers complain about harassment of the signature seekers, have the store manager calmly state those facts and ask them not to disturb customers.  Doing so will reduce the risk of damages if later a court rules the requested action was a protected right.

As the deadline for collecting signatures to be on the ballot for the 2012 election has passed, the case was declared moot and was not remanded for further proceedings.  The unanswered questions raised by the dissent will have to await subsequent cases.

For those reading this outside of Massachusetts, the case was determined based on the Massachusetts’ constitution’s right to get on the ballot and therefore may not be a precedent to follow in other states.

If you have further questions regarding this, please contact Jo-Ann Marzullo.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2014 Posternak Blankstein & Lund LLP.  All rights reserved.

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