Friday, February 10, 2006

Homeowners Association Held to Constitutional Actor For Free Speech Purposes

The New Jersey Appellate Division has held that a common interest community homeowner's association is a constitutional actor and as a result is subject to the free speech provisions of the NJ constitution.  The court's opinion is available here.  From the ACLU of New Jersey's press release:

Newark - The Rutgers Constitutional Litigation Clinic and the American Civil Liberties Union of New Jersey praise an opinion handed down by the Superior Court Appellate Division today that provides new rights under the State Constitution for the more than one million New Jerseyans who reside in private communities governed by homeowners associations.

"For the first time anywhere in the United States, an appellate court has ruled that such private communities are 'constitutional actors' and must therefore respect their members' freedom of speech," explained Rutgers Law Professor Frank Askin, lead counsel in the case. "The court recognized that just like shopping malls are the new public square, these associations have become and act, for all practical purposes, like municipal entities unto themselves," he added.

At issue in the case, which involved the 10,000-resident community of Twin Rivers in East Windsor, were the right to post political signs on members lawns, equal access to the community newspaper run by the Board of Trustees, and equitable access to the community room for meetings for dissidents. The complaint raises claims under the free speech protections of the New Jersey Constitution.

The Unanimous Opinion of the three-judge appellate panel relied heavily upon earlier decisions of the New Jersey Supreme Court holding that privately owned and operated shopping malls were public forums under the State Constitution, and had to allow non-profit advocacy groups to gather petitions and distribute educational material on mall property.

Building on those cases, the Court held that private residential communities could no more deny free speech to its residents to discuss public issues than municipal governments. The Court wrote:

The manner and extent to which functions undertaken by community associations have supplanted the role that only towns or villages once played in our polity mirrors the manner and extent to which regional shopping centers have become the functional equivalents of downtown business districts . . .

It follows that fundamental rights exercises, including free speech, must be protected as fully as they always have been, even where modern societal developments have created new relationships or changed old ones. Expressive exercises, especially those bearing upon real and legitimate community issues, should not be silenced or subject to undue limitation because of changes in residential relationships, such as where lifestyle issues are governed or administered by community associations in addition to being regulated by governmental entities.

The case had initially been dismissed by the Superior Court in Trenton. The Appellate Division, in overturning that decision, has now remanded the case back to the lower court to apply the new constitutional standard to the issues involved in Twin Rivers. The appeals court did uphold the dismissal of the Plaintiffs' complaint against the weighted voting system employed by the Twin Rivers Homeowner Association to elect its Board of trustees.

The case was handled by the Rutgers Law School Constitutional Litigation Clinic on behalf of the American Civil Liberties Union of New Jersey under the supervision of Rutgers Law Professor Frank Askin, who was assisted by dozens of Rutgers' law students during the 5-year course of the litigation. The case was originally filed in December 2000. The complaint raised claims solely under the New Jersey Constitution and state statutes. Under the United States Constitution, such communities are currently considered solely private property and their residents have no constitutional rights.

Professor Askin described the case as a national landmark, and said that homeowners groups across the country have anxiously awaited the outcome, and would now try to convince other states' courts to emulate New Jersey.

Ben Barros

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I live in an association where the editor of the association newsleatter is told that she has no control of what is published. The vice president of the association made a statement at a board meeting, that he has rejected a submitted opinion letter, because he did not think it was, in his opinion factuall. comments?

Posted by: J. GALLAGHER | Jul 5, 2006 6:13:34 AM

I live in Lower Township North Cape May NJ. A neighbor down the street has
a boat and parks it in his driveway six months during the late fall/winter.
The mooring trailer hitch sticks out 2 feet to the community sidewalk. A
nosey neighbor says this homeowner can get in trouble for parking it and
childred run around on the streets could run into the boat and hurt themselves
when I told him the boat is parked in his driveway he becomes mad and says
its a eyesore and shouldn't be parked there.
Is this homeowner breaking any laws in Cape May County NJ
Guido's Pal

Posted by: i have a question about homeowners who park boats in driveways | Nov 2, 2008 8:40:13 AM

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