Does I-517 interfere with private property rights?

July 22, 2013

One of the most contentious debates about I-517 (Concerning initiative and referendum measures) is whether its provisions would run roughshod over businesses' private property rights.

There is at least one prominent attorney that believes it does. Former Attorney General Rob McKenna is concerned I-517 doesn't comply with constitutional property right protections for businesses:

I-517 as written threatens property owners by guaranteeing signature gatherers unprecedented access to their buildings and grounds. The initiative and referendum processes are crucial to voter control over their state government -- but private property rights are essential to individual liberty.

Along with McKenna, former State Auditor Brian Sonntag has expressed similar concerns:

My issue is not expanding opportunities for initiative supporters. Rather, complaints over time from shoppers as well as store management regarding aggressive signature gathering on private property. These concerns are real and need to be considered. People have described harassment tactics that border on assault.

It is important to note that there is no First Amendment right in Washington for signature gathering on private property. In a 1989 decision the State Supreme Court upheld a prior ruling finding:

The notion that the free speech provision of the state constitution creates a right that can be wielded by one private individual against another constitutes nothing short of a radical departure from this well understood and accepted constitutional doctrine . . . the holding in Alderwood was simply that people have a right under the initiative provision of the Constitution of the State of Washington to solicit signatures for an initiative in a manner that does not violate or unreasonably restrict the rights of private property owners. We expressly do not here disturb that holding.

So how does I-517 impact this? 

According to Section 2 of I-517 (in-part):

Signature gathering and petition signing for an officially filed and processed initiative or referendum shall be a legally protected activity on public sidewalks and walkways and all sidewalks and walkways that carry pedestrian traffic, including those in front of the entrances and exits of any store, and inside or outside public buildings such as public sports stadiums, convention/exhibition centers, and public fairs.

I-517 does not define what a "store" is.

Section 2 of I-517 continues:

Law enforcement must vigorously protect the rights of the people who want to sign initiative and referendum petitions, and the people who collect voter signatures on initiative and referendum petitions, to ensure they are not inhibited or restricted in any way.

The million dollar question: What exactly does "not inhibited or restricted in any way” entail?

By adding that phrase specifically to statute without also stating the intent is not to change current case law, it can be interpreted as an attempt to change the court's prior finding that there are to be reasonable time, place and manner restrictions that businesses can impose on signature gathering on private property. Generally when interpreting the effect of a law (initiative) courts give deference to the plain meaning of the text of a statute, especially when combined with a requirement for liberal construction as found in Section 6 of I-517:

The provisions of this act are to be liberally construed to effectuate the intent, policies, and purposes of this act.

According to this Attorney General's Opinion (AGO) the requirement to allow signature gathering on private property is currently a gray area: “Large regional shopping mall” – yes; all commercial stores – no. It looks like I-517 would apply access to all stores regardless of size changing current case law. This combined with the new language ensuring signature gatherers are "not inhibited or restricted in any way” gets to the heart of the business concern about I-517.

As noted by the AGO, the Legislature (and thus the people) are free via statute to try to change prior court rulings though doing so may run into constitutional problems.

The Yes on I-517 campaign argues the ballot measure wouldn't change anything for private businesses:

I-517 supports democracy, promotes respectful speech, and stops bullying. I-517 would deter initiative opponents from doing this [harassment]. The courts have already ruled that signature collection, including on sidewalks and walkways, is subject to reasonable time, place, and manner restrictions and I-517 doesn't change that. It simply discourages bullying. I-517 doesn't say that initiative bullies have to stand 25 feet away; it simply says if they maintain a presence within 25 feet of the signature gathering process, they need to be civil and respectful.

The No on I-517 campaign counters:

Initiative 517 takes away the right of customers to enter and exit a retail store without the interference of a petition signature gatherer. The store owner will no longer have the right to control this activity and provide a safe and enjoyable experience for customers on their private property within a 25ft. buffer of the signature gatherer. Further, public sports stadiums including high school stadiums, convention centers and other facilities that host public events are also stripped of their rights to provide a safe and orderly environment within this 25ft. buffer zone protecting signature gatherers. Property owners and people attempting to shop and attend public events should not be stripped or their rights to say NO to a signature gatherer and voters should say NO to I-517.

Based on these strong and conflicting opinions, litigation to resolve this debate is all but certain if voters approve I-517.

Perhaps anticipating such litigation, Section 7 of I-517 reads:

This act shall be self-executing. If any part or parts of this act are found to be in conflict with federal law, the United States Constitution, or the Washington state Constitution, the act shall be implemented to the maximum extent that federal law, the United States Constitution, and the Washington state Constitution permit. Any provision held invalid shall be severable from the remaining portions of this act.

Additional Information
Heavy hitters line up against I-517
I-517: Are new harassment protections needed for signature gatherers?
I-517: Should all initiatives with adequate signatures go before voters?

Comments

Wrong problem?

The real problem is the signature gatherers are paid by the number of signatures they acquire, so of course they may be aggressive, just like rude salespeople! Why not require them to be paid hourly? Might help...?

Property rights and DUI

If the supreme court believes the right to gather names to some how marginalize property rights then it is a conflict of interests.
When it is ok to take my 1st amendment rights and make me wear a stupid helmet to ride my Harley, or a seat belt just to collect revenue. There is no serve and protect any longer, it is manage by exception and bill me for my silly mistakes or my right t o be stupid and take my rights. Government must understand there is a limit to how much everyday people will tolerate with tyranny, just like we have today in all law and governing. Law makers don't have to follow laws or constitution.
Dui at .05 is also a joke , the legal definition of impaired is .10, witch was tested in all lower states and found the same conclusion. The officials including Pres. Clinton took it on themselves t o change it for their own bad choices of guilt and now we all have a record for drinking a glass of wine at dinner.
Deaths due to alcohol even the exaggerated numbers that are not more that 90 or so deaths by legal adults in the State and in a given year,abd more that a billon cars have been on the highways. But thousands of DUI's written and most are made up to consider the person guilty no matter what. This is all a violation of rights everyday.
Our country today is not why I served and sometimes I am very ashamed what politics has done to my country so many gave the ultimate cost for the constitution and freedom