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New Jersey Coalition Against War v. J.M.B. Realty Corp.

New Jersey Superior Court, Appellate Division


Decided: June 24, 1993.

NEW JERSEY COALITION AGAINST WAR IN THE MIDDLE EAST, SYLVIA ACKELSBERG, AND DAVID CLINE, PLAINTIFFS-APPELLANTS, CROSS-RESPONDENTS,
v.
J.M.B. REALTY CORPORATION, D/B/A RIVERSIDE SQUARE, AND PRUTAUB JOINT VENTURE, D/B/A THE MALL AT SHORT HILLS, DEFENDANTS-RESPONDENTS-CROSS-APPELLANTS, AND CHERRY HILL CENTER, INC., D/B/A CHERRY HILL MALL; KRAVCO, INC., D/B/A HAMILTON MALL; EQUITY PROPERTIES & DEVELOPMENT COMPANY, D/B/A MONMOUTH MALL; KRAVCO, INC., D/B/A QUAKERBRIDGE MALL; ROCKAWAY CENTER ASSOCIATES, D/B/A ROCKAWAY TOWNSQUARE; WOODBRIDGE CENTER, INC., D/B/A WOODBRIDGE CENTER; LIVINGSTON MALL VENTURE, D/B/A LIVINGSTON MALL; HARTZ MOUNTAIN INDUSTRIES, INC., D/B/A THE MALL AT MILL CREEK, DEFENDANTS-RESPONDENTS

On appeal from Superior Court, Chancery Division, Bergen County whose decision is reported at N.J. Super. (Ch. Div. 1991).

Petrella, D'Annunzio and Keefe.

Per Curiam

[266 NJSuper Page 161]

Plaintiffs appeal from an order of the Chancery Division upholding the rights of defendants, owners of private property in the form of various shopping malls located throughout the state, to prohibit or restrict leafletting on their properties under the criteria set forth in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982).

Plaintiffs argue that they should have been allowed to distribute leaflets at the defendants' privately owned shopping malls under the three-part test in Schmid, and that privately owned shopping malls have an obligation to accommodate plaintiffs' exercise of free speech rights under common law.

Our review of the record in light of the arguments presented satisfies us that the findings and Conclusions of the Chancery Judge are amply supported by the record. See Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484, 323 A.2d 495 (1974). The qualitative weight of the factors involved in application of the Schmid test balances here in favor of the mall owners, particularly in light of the Chancery Judge's findings, adequately supported by the record, of the essentially commercial nature of the shopping malls. Cf. State v. Guice, 262 N.J. Super. 607, 621 A.2d 553 (Law Div.1993).

We reject plaintiffs' alternative grounds for relief based on a claim that New Jersey's common law requires (or should be

[266 NJSuper Page 162]

construed or modified to require) that the mall owners allow plaintiffs to engage in expressional activity on defendants' properties. Such a modification of the common law is not supported by precedent.

In light of our determination, we need not address the cross-appeal of the defendants JMB Income Properties, Ltd.-XI*fn1 and Prutaub Joint Venture in which they assert that a finding in favor of plaintiffs would constitute a taking of defendants' properties and a denial of their right of free speech. We also find it unnecessary to address plaintiffs' challenge to various regulations adopted by certain of the malls restricting the scope, nature and extent of access.

We affirm substantially for the reasons expressed by Judge Ciolino in his written decision of July 25, 1991 reported at 266 N.J. Super. 195, 628 A.2d 1094 (Ch.Div.1991).


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