In a National First, New Jersey Court Says Homeowner Associations Must Respect Residents' Free Speech Rights
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ACLU of New Jersey and Rutgers Constitutional Litigation Clinic Laud Landmark
Ruling
NEWARK, NJ -- The Rutgers
Constitutional Litigation Clinic and the American Civil Liberties Union of New
Jersey today praised an appeals court opinion that provides new rights under the
state Constitution for the more than one million residents of private
communities governed by homeowners associations in the state.
"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," said Rutgers Law Professor Frank Askin, lead
counsel in the case. "The court recognized that just as shopping malls are the
new public square, these associations have become and act, for all practical
purposes, like municipal entities unto themselves."
At issue in the
case, which involved the 10,000-resident community of Twin Rivers in East
Windsor, were the rights to post political signs on members lawns, to equal
access to the community newspaper run by the Board of Trustees, and to equitable
access to the community room for meetings for dissidents. The complaint raised
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 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,” the court said. “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, filed in December 2000, was
handled by the Rutgers Law School Constitutional Litigation Clinic on behalf of
the ACLU of New Jersey under the supervision of Rutgers Law Professor Frank
Askin, who was assisted by dozens of Rutgers' law students during the five-year
course of the litigation. 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.