Waremart v. Progressive Campaigns, Inc.

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There are two legal cases named Waremart v. Progressive Campaigns, one filed in California and one filed in the state of Washington. Both cases were filed in 1998 by Waremart, a regional chain of sixty grocery stores in five northwestern states, against Progressive Campaigns, Inc. (PCI), a petition signature-gathering company based in California. Both state court systems reached similar conclusions--in both cases, upholding the private property rights of Waremart over the petitioner access rights of petition circulators.

Waremart was founded in 1967 in Boise, Idaho. The company is now known as "WinCo Foods".[1] All five of the states that Waremart/Winco owns stores in are I&R states--Washington, Oregon, Idaho, California and Nevada.

Since Discovery Petition Management joined the California case, for purposes of disambiguation, that case is sometimes referred to as Waremart v. Discovery Petition Management. This article focuses on the case in the state of Washington.

In 1998, Waremart asked the Superior Court of Clark County, Washington, for injunctive relief against PCI. They asked the court to enjoin petitioners working for PCI from entering their private property and asking patrons to sign initiative petitions. The Superior Court of Clark County granted Waremart this injunctive relief on June 22, 1998. PCI immediately appealed the decision to the Supreme Court of the State of Washington. That judicial body, on December 16, 1999, upheld the lower court's ruling in favor of Waremart.[2]

Physical layout of Waremart Stores

The trial court considered the physical layout of the three Waremart stores located in Washington at the time of the trial, and determined that each store "is basically surrounded by an extensive parking area with only a narrow sidewalk bordering the store. There is no plaza or communal area where the public can congregate either inside or on the exterior." The trial court also found that Waremart stores do not engage in mass advertising, and do not provide activities for the public, such as mall walkers or similar public services.

In 1996 and 1997, according to the plaintiff, Waremart, petitioners working for PCI entered Waremart's property and solicited signatures. The store managers received complaints, and the Waremart managers asked the petitioners to leave. The petitioners declined to do so. Waremart then contacted PCI directly. When PCI indicated that it would not comply with the request that its petitioners stop working at Waremart stores, Waremart filed its request for an injunction.

Based on this testimony at the trial, the lower court determined that Waremart stores "are not the functional equivalent...[of a] public forum".

Factors to balance

The court's decision says that a balancing test must be considered in determining whether petitioners can collect signatures on private property, and that there is no one-size-fits-all answer. The issues that courts must consider, the decision says, are:

  • The nature and use of the private property
  • The nature of the speech activity
  • The potential for reasonable regulation of the speech
  • Whether barring the activity would significantly undermine free speech or the effectiveness of the initiative process.

In its decision, the Supreme Court of the State of Washington made clear that the fundamental reason underlying the way in which they ruled was their belief that a store with the physical layout of Waremart that did not historically serve as a public gathering place of any kind was fundamentally different from other kinds of larger, commercial private property mall developments that had come to serve as the functional equivalent of a public forum or gathering place.

Additionally, the court noted that barring petitioners from working at Waremart did not significantly hinder the initiative process in the state because of the existence of many commercial malls in the state that would be still be acceptable for petitioning because they did serve as the functional equivalent of a town center or public gathering place.

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