through common-law and statutory adjudication. But because decisions in these contexts have always been subject to legislative scrutiny, the process has remained fluid. By contrast, constitutional adjudication is essentially negative; courts generally define courses of action that other branches of government may not pursue in response to changing conditions. Thus, as judicial activism increases, governmental flexibility decreases.

Constraints produced by noninterpretive review of state constitutions further limit the adaptability of legislatures whose authority already is circumscribed by federal constitutional decisions. Admittedly, because many state constitutions can be amended relatively easily, in this regard the effect of state constitutional activism is sometimes less severe than its federal counterpart. Nonetheless, noninterpretive state constitutional review remains an important constraint on governmental flexibility.

B. Uncertainty

A second cost of noninterpretive state review is the uncertainty such review causes. When judges

Discussion Notes

1. Professor Maltz continues his article by enumerating the justifications for independent state judicial "activism" and providing refutation for each. His ideas are further developed in "Lockstep Analysis and the Concept of Federalism, "Annals of the American Academy of Political and Social Science 496 (March 1988): 98, and "False ProphetJustice Brennan and the Theory of State Constitutional Law," Hastings Constitu

regularly practice noninterpretive review, no statute can be relied upon until it has run the gauntlet of judicial review. Under the federal constitution, certainty can be obtained by taking the arduous path to the Supreme Court. State constitutional review increases uncertainty by adding a second layer of judicial review a statute must survive in order to be safe from attack.

C. Duplication

The most important problem with noninterpretive state court review is that it generally duplicates functions exercised by other actors in the lawmaking process. Presumably, the fundamental fairness of a particular statute will be examined by both a legislature in determining whether to pass the statute and the governor in determining whether to veto the statute. A federal judicial evaluation of the constitutionality of a statute under federal law clearly will focus on the statute's fairness. Noninterpretive state court review considers the same arguments once again. Such a duplication of effort necessarily increases the costs generated by the legal system.

tional Law Quarterly 15 (Spring 1988): 429. 2. See also Paul S. Hudnut, "State Constitutions and Individual Rights: The Case for Judicial Restraint," Denver University Law Review 63 (No. 1 1985): 85.

3. Is it really useful to discuss concepts like "judicial activism" and "judicial restraint" outside the context of actual facts applied to a constitutional text?

Under the due process and equal protection clauses of the Fourteenth Amendment, of course, there is a requirement of "state action" to trigger the protections. See generally, Robert J. Glennon and John E. Nowak, “A Functional Analysis of the Fourteenth Amendment 'State Action' Requirement," Supreme Court Review, 1976 (1977): 221; Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978); Paul Brest, "State Action and Liberal Theory: A Case Note on Flagg Brothers v. Brooks," University of Pennsylvania Law Review 130 (June 1982): 1296.

Would the requirement of state action, however, necessarily be present in state constitutional due process and equal protection cases, or under any other state constitutional provisions?

Sharrock v. Dell Buick-Cadillac, Inc. 45 N.Y.2d 152, 379 N.E. 2d 1169 (1978)

Opinion of the Court COOKE, Judge.

Challenged here as violative of the due process clauses of the State Constitution (N.Y.Const. art. I, sec. 6) and the Fourteenth Amendment of the Federal Constitution is the statutory authorization afforded a garageman to foreclose his possessory statutory lien for repair and storage charges (Lien Law, sec. 184), by means of a public sale of the vehicle in his possession. We hold the sections 200, 201, 201 and 204 of the Lien Law, insofar as they empower a garageman to conduct an ex parte sale of a bailed automobile, fail to comport with traditional notions of procedural due process embodied in the State Constitution, as they deprive the owner of the vehicle of a significant property interest without providing any opportunity to be heard.

On October 12, 1975, plaintiff's husband took her 1970 Cadillac to Dell Buick-Cadillac, Inc. (Dell), for installation of a replacement engine he had purchased elsewhere. The husband signed a work authorization wherein it was agreed that Dell was to remove the defective engine and install its replacement for the sum of $225. The affidavits of plaintiff and her husband recite that the work authorization form contained no provisions with respect to storage charges which were subsequently unilaterally imposed by Dell. Approximately one week later, plaintiff's husband offered to pay the $225 to Dell, but was advised by its service manager to withhold payment until the engine was installed.

Unfortunately, the replacement engine proved to be defective and had to be removed. Delivery of a replacement engine was then arranged. When the new replacement engine arrived, Dell informed plaintiff's husband that it would not be installed until Dell was paid the $225 due for the installation of the original defective engine. Although he agreed to pay this sum, plaintiff's husband did not have that amount of money with him at the time and soon thereafter was hospitalized, rendering him incapable of continuing his business dealings with Dell.

On January 14, 1976 plaintiff received a "Notice of Lien and Sale" by certified mail, informing her that pursuant to section 184 of the Lien Law Dell had imposed a possessory lien against the Cadillac in the amount of $304.95. That notice further advised that if plaintiff did not tender this sum within 30 days, the automobile would be sold at public auction on March 15, 1976 (see Lien law, sec. 200). Plaintiff was subsequently informed by one of the auctioneers listed on the notice of sale that, her belief to the contrary notwithstanding, included in the lien was the sum of $79.95, representing storage charges. However, the auctioneer did agree to contact Dell in order to ascer

tain whether they would "take off" the storage charge from the amount due.

Several days later, the auctioneer informed plaintiff that Dell refused to waive its storage charge and that the amount now due had been increased to $545. He also advised her that since the book value of the care appreciably greater than $545, it would be to plaintiff's advantage to pay the charges since Dell "had her over a barrel" because her husband had taken the car there for repair. On the day of the auction, March 15, 1976, Dell again modified its claim and informed plaintiff that the amount due had been reduced to $502. Later that day, plaintiff's 1970 Cadillac, having an established resale value of between $1,200 and $1,400, was sold to Dell for the sum of $502.

Plaintiff then commenced the instant action for declaratory and injunctive relief, as well as damages, claiming that the sale provisions of the Lien Law are violative of her due process rights as they authorize public sale of her automobile without affording the opportunity for a hearing.

The threshold question in any judicial inquiry into conduct claimed to be violative of the due process clause of the Fourteenth Amendment is whether the State has in some fashion involved itself in what, in another setting, would otherwise be deemed private activity (see U.S.Code, tit, 42, sec. 1983; Jones v. Mayer Co., 392 U.S. 409, 422-424, 88 S.Ct. 2186, 20 L.Ed.2d 1189). That much is made plain by the express terms of the amendment which specifies that "nor shall any State deprive any person of life, liberty, or property without due process of law" (emphasis added). Purely private conduct, however egregious or unreasonable, does not rise to the level of constitutional significance absent a significant nexus between the State and the actors or the conduct (see Civil Rights Cases 109 U.S. 3, 11, 3 S.Ct. 18, 27 L.Ed. 835). This nexus has been denominated "State action" and is an essential requisite to any action grounded on violation of equal protection of the laws or a deprivation of due process of law. Further, it is settled that where the impetus for the allegedly unconstitutional conduct is private, the State must have "significantly involved itself" in order for that action to fall within the ambit of the Fourteenth Amendment (Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830).

Despite its outward simplicity as a concept, State action is in fact an elusive principle, one which cannot be easily discerned by resort to ritualistic incantations or precise formalisms (see Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45). Instead, a number of factors must be considered in determining whether a State is significantly involved in statutorily authorized private conduct.

These factors include: the source of authority for the private action; whether the State is so entwined with the regulation of the private conduct as to constitute State activity; whether there is meaningful State participation in the activity; and whether there has been a delegation of what has traditionally been a State function to a private person (Melara v. Kennedy, 9 Cir., 541 F.2d 802, 805). As the test is not simply State involvement, but rather significant State involvement, satisfaction of one of these criteria may not necessarily be determinative to a finding of State action.

We need not address plaintiff's contention that the actions taken by Dell are attributable to the State of New York for purposes of the due process clause of the Fourteenth Amendment. Recently, in Flagg Bros. v. Brooks (436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185), the Supreme Court rejected the argument that a private sale of property subject to a warehouseman's possessory lien pursuant to section 7-210 of the Uniform Commercial Code constitutes State action. The similarities between section 7-210 and the statutes at issue here might preclude any contrary finding by this

court.

In contrast to the due process clause of the Fourteenth Amendment, which is phrased in terms of State deprivation of life, liberty or property, section 6 of article I of the New York Constitution guarantees that "[n]o person shall be deprived of life, liberty or property without due process of law." Conspicuously absent from the State Constitution is any language requiring State action before an individual may find refuge in its protections. That is not to say, of course, that the due process clause of the State Constitution eliminates the necessity of any State involvement in the objected to activity (see Stuart v. Palmer, 74 N.Y. 183, 188). Rather, the absence of any express State action language simply provides a basis to apply a more flexible State involvement requirement than is currently being imposed by the Supreme Court with respect to the Federal provision.

The historical differences between the Federal and State due process clauses make clear that they were adopted to combat entirely different evils (see Schwartz, The Bill of Rights: A Documentary History, pp. 161, 165, 387, 855-856). Prior to the Civil War, the Federal Constitution had as its major concern governmental structures and relationships. Indeed, prior to the enactment of the Fourteenth Amendment, the Bill of Rights delimited only the power of the National Government, imposing few restrictions on State authority and offering virtually no protections of individual liberties (see Barron v. Mayor & City Council of Baltimore, 7 Pet. [32 U.S.]

243, 8 L.Ed. 672). The Fourteenth Amendment was a water-shed—an attempt to extend the catalogue a series of national privileges and immunities, thereby furnishing minimum standards designed to guarantee the individual protection against the potential abuses of a monolithic government, whether that government be national, State or local (see Kurland, The Privileges or Immunities Clause: "Its Hour Come Round at Last"?, 1972 Wash.U.L.Q. 405; Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 501). In contrast, State Constitutions in general, and the New York Constitution in particular, have long safeguarded any threat to individual liberties, irrespective of from what quarter that peril arose. Thus, as early as 1843, Justice Bronson, in speaking of the due process clause of our State Constitution, noted: "The meaning of the section

Discussion Notes

1. See also Svendsen v. Smith's Moving and Trucking Co., 54 N.Y. 2d 865, 429 N.E. 2d 411 (1981), cert. denied 102 S.Ct. 1292 (1982) (declaring the nonjudicial sale provisions of Section 7-210

Alderwood Associates v. Washington Environmental Council 96 Wash. 2d 230, 635 P.2d 108 (1981)

UTTER, Justice.

Alderwood Associates obtained a temporary restraining order from the Superior Court for Snohomish County, enjoining the Washington Environmental Council and others (defendants) from soliciting signatures or demonstrating in the Alderwood Mall Shopping Center. The Court of Appeals, upon defendants' request, granted a stay of the order and certified the issue to us. We reverse and hold that defendants' activities were protected by the Washington Constitution.

Petitioners (defendants) are the "Don't Waste Washington Committee" which sponsored Initiative 383, entitled "The Radioactive Waste Storage and Transportation Act of 1980." To qualify the initiative for the November ballot, petitioners were required to obtain 123,700 signatures of registered voters no later than July 4, 1980. When this action was filed on July 1, 1980, the committee had obtained approximately 120,000.

Respondent, Alderwood Associates, owns and operates Alderwood Mall in Lynnwood, Washington. That mall is a regional shopping center with more than 1,000,000 square feet of store area on 110 acres of land. It contains parking for more than 6,000 auto

then seems to be, that no member of the state shall be disfranchised, or deprive of any of his rights and privileges, unless the matter be adjudged against him upon trial and according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him" (Taylor v. Porter, 4 Hill 140, 146; see, also, Wynehamer v. People, 13 N.Y. 378, 394 [1856]).

Examination of the indices of State participation in nonjudicial foreclosure pursuant to the provisions of the Lien Law at issue here compels the conclusion that New York has so entwined itself into the debtorcreditor relationship as to constitute sufficient and meaningful State participation which triggers the protections afforded by our Constitution.

of the Uniform Commercial Code unconstitutional under Sharrock).

2. See also King v. South Jersey Nat'l Bank, 66 N.J. 161, 191-98, 330 A.2d 1, 17-21 (1974) (Pashman, J., dissenting).

mobiles and impact statements on file project 22,000 automobiles entering the mall on an average day in 1978, increasing to 39,600 by 1985.

Permission was sought on June 27, 1980, for petitioners to solicit signatures in the mall. Permission had already been granted by other mall proprietors in the Puget Sound area. But, unlike those proprietors, respondents denied the request.

Believing the denial to be unconstitutional, petitioners proceeded to solicit signatures in the Alderwood Mall in the same manner as permitted by other mall owners. A card table was set up, until respondents requested its removal. They then asked passersby, in a nonobstructive manner, if they wished to sign the initiative petition. More than 100 signatures were obtained each hour and no one alleges that petitioners annoyed or harassed the patrons of the mall or in any way interfered with business activities.

Speech and Initiative Rights

Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), held that the First Amendment to the United States Constitution does not confer the untrammeled right to speak, picket, or petition in a privately owned shopping center. Accord, Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). As consistently recognized, the First Amendment only protects speech from state imposed restraints. Hudgens, supra; Lloyd, supra. In Hudgens, the United States Supreme Court concluded that re

straints imposed by privately operated shopping malls are not actions by the government, and consequently the shopping center in that case was not required to permit labor picketing.

The only dispute is whether Washington law permits signature solicitation at privately owned shopping centers. As already noted, the first amendment to the United States Constitution does not require shopping malls to tolerate the signature practice. See Hudgens, supra; Lloyd, supra. It provides:

Congress shall make no law . . . abridging the freedom of speech...or the right of the people...to petition the government for a redress of grievances.

It specifically limits only governmental interference. Hudgens, supra; Lloyd, supra.

In contrast, Const. art. 1, sec. 5 is not by its express terms limited to governmental actions. In this regard, it is like amendment 7 of the Washington Constitution. Section 5 provides:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.

We have never had to determine whether section 5 and amendment 7 require the same "state action" as the Fourteenth Amendment. In Sutherland, a case substantially similar to this one, the Court of Appeals did perform a "state action” analysis, but without determining whether the state constitution required it. Such a determination was then unnecessary in light of those facts and existing federal law.

The California constitutional speech guaranty, article 1, section 2, is substantially similar to section 5. In fact, section 5 was modeled after it. Beardsley, Notes on the Sources of the Washington Constitution, 1889-1939, reprinted in Constitution of the State of Washington, Appendix, pp. IV, VI (1939). The California Supreme Court has determined that the California provision does not require "state action," as defined by the United States Supreme Court. Robins v. Pruneyard, supra. Laguna Pub. Co. v. Golden West Pub. Corp., 110 Cal.App.3d 43, 167 Cal.Rptr. 687 (1980).

New Jersey also has a constitutional provision like ours. See N.J.Const. art. 1, para. 6.5 The New Jersey Supreme Court has held, like the court in California, that its provision does not require "state action." Schmid, 423 A.2d at 628, 639. It applies to all private entities which have put their property to a public use. Schmid, 423 A.2d at 628. In Schmid, the court held that a private university could not evict a

"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press." N.J. Const. art. 1, para. 6.

person for distributing political literature upon its campus.

Both Schmid and Robins, in applying their state constitutions, rejected the "state action" requirement of the Fourteenth Amendment. They could do that because of the linguistic differences between the state and federal provisions and because the "state action" requirement of the Fourteenth Amendment is the product of several factors not relevant to the state provisions. See Project Report, supra at 290. The "state action" analysis under the Fourteenth Amendment is essentially a judicial balancing of competing interests. Glennon & Newak, A Functional Analysis of the Fourteenth Amendment "State Action" Requirement, 1976 Sup.Ct.Rev. 221, 222, 232-36; Schmid, 423 A.2d at 634 (Parshman, J., concurring and dissenting in part). Compare Logan Valley, supra, with Lloyd supra. As acknowledged by Justice Marshall's dissent in Lloyd, 407 U.S. at 580, 92 S.Ct. at 2234:

We must remember that it is a balance that we are striking-a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighed, the balance can only be struck in favor of speech.

But not noted by Justice Marshall, and hidden within the balancing, are two factors not restraining state courts when applying state law. Project Report, supra at 290.

The first is that when the United States Supreme Court interprets the Fourteenth Amendment, it establishes a rule for the entire country. Project Report, supra at 290. The court must thus establish a rule which accounts for all the variations from state to state and region to region. The rule must operate acceptably in all areas of the nation and hence it invariably represents the lowest common denominator. Project Report, supra at 290.

The second factor, which is related to the first and actually results from it, is that the Supreme Court must take a conservative theoretical approach to applying the Fourteenth Amendment. Project Report, supra at 290. Federalism prevents the court from adopting a rule which prevents states from experimenting.

Like those in New Jersey and California, our speech and initiative provisions do not expressly mention "state action." And we too are not limited by the factors confronting the United States Supreme Court when it applies the Fourteenth Amendment. This permits us to evaluate in each case the actual harm to the speech and property interests. Therefore, given these differences, we choose to follow the approach of Schmid and Robins which recognizes that