For Association Rules, A Key Court Endorsement

By Benny L. Kass
Saturday, August 4, 2007

The New Jersey Supreme Court recently dealt a serious blow to dissident community association homeowners there, ruling that protections for free speech and freedom of assembly don't apply to a private community association.

The issue has been hotly debated throughout the country. The New Jersey court affirmed the general understanding that for the First Amendment to be applied, a government -- whether federal, state or local -- must be the body attempting to curtail constitutional protections. And private associations don't qualify.

The Twin Rivers Homeowners Association is a private corporation that covers about one square mile in New Jersey. The association maintains its private residential roads, provides street lighting and snow removal, and collects trash for its 10,000 residents. An elected board of directors makes and enforces the rules.

Each homeowner pays a yearly assessment, pursuant to an annual budget adopted by the board.

Unhappy with some of the rules the board enacted, a group of homeowners formed the Committee for a Better Twin Rivers and challenged the association on several issues:

· A limit on the number of signs homeowners could post on their property -- one per lawn and one per window -- and a rule prohibiting signs on utility poles.

· A rental fee to use the association's community room.

· Access to the association's monthly newspaper. The committee sought a permanent injunction against the board president that would prevent him from using the newspaper "as his own personal political trumpet."

The committee filed suit, claiming that the rules violated members' First Amendment rights.

The trial court dismissed the lawsuit on the grounds that Twin Rivers was not a "quasi-municipality" and thus was not subject to the New Jersey Constitution's free speech and association clauses. The committee appealed to the next-level court, which reversed the decision, holding that the association was in fact subject to the state constitutional standards.

The association then appealed to the New Jersey Supreme Court. AARP and the American Civil Liberties Union filed friend-of-the-court briefs in support of the committee, and the Community Associations Institute filed a brief in support of the homeowners association.

On July 26, the state Supreme Court unanimously reversed the appellate decision, reinstating the opinion of the trial court. In short, that court held that on balance, "the Association's policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution."

The 14th Amendment to the U.S. Constitution applies First Amendment protections to the 50 states. But states, including New Jersey, often have their own, stronger protections. Indeed, the court said that the New Jersey Constitution is "broader than practically all others in the nation" in this regard.

But, with limited exceptions, these protections are aimed at governments. According to the court, "Federal case law has evolved to require that there must be 'state action' to enforce constitutional rights against private entities." The court noted, however, that under some circumstances, these constitutional protections can also be enforced against nongovernmental entities.

For example, in a case involving Princeton University, the court rejected the argument that Princeton was not subject to these constitutional protections. The university prohibited people not affiliated with the school from soliciting and distributing political literature on campus. A non-student was arrested and convicted of trespassing while distributing political materials. The New Jersey high court ruled that because Princeton had invited the public to use its facilities, the non-student was entitled to these basic protections.

In the Twin Rivers case, however, the court concluded that the association was simply a private entity and that its property is used for private purposes. Unlike Princeton, "the association has not invited the public to use its property."

The court found that the "plaintiff's expressional activities are not unreasonably restricted." Furthermore, the relationship between the homeowners and the association is a contractual one; in other words, homeowners who buy into the association are bound by the rules and regulations.

The court further pointed out that the plaintiffs have other means of expression beyond the association's newspaper: "Plaintiffs can walk through the neighborhood, ring the doorbells of their neighbors, and advance their views. . . . Plaintiffs can distribute their own newsletters to residents, and have done so. As members of the Association, plaintiffs can vote, run for office, and participate through the elective process in decision-making of the Association. Thus, plaintiffs may seek to garner a majority to change the rules and regulations to reduce or eliminate the restrictions they now challenge."

As indicated earlier, the New Jersey Constitution is perhaps one of the most far-reaching in the application of First Amendment rights. The court said, "Our review of the case law in other jurisdictions reveals that only a handful of states recognize a constitutional right to engage in free speech, assembly or electoral activity on privately owned property held open to the public, such as a shopping mall or a college campus."

Dissenting homeowners should not be discouraged by this opinion, nor should community association leaders get too enthusiastic. There is a balance between free speech and assembly and private-property rights, and at least in New Jersey, should an association cross the line, it would still feel the full impact of its members' First Amendment rights.

In other states, homeowners should heed the suggestion of the court: If you do not like what is happening in your community, get involved, run for office and mount a strong political campaign. Should you win, you will be part of the decision-making process for change.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site,http://www.kmklawyers.com.