In a National First, New Jersey Court Says Homeowner Associations Must Respect Residents' Free Speech Rights

Affiliate: ACLU of New Jersey
February 7, 2006 12:00 am

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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.

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