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April 2, 2004 | C-IHC's Common Sense Newsletter

Professor Frank Askin, Rutgers Constitutional Law Expert, on Community Associations and the NJ Constitution

This article by Professor Askin is a shortened version of one appearing in the April 2005 issue of the New Jersey Lawyer Magazine.

More than one million New Jerseyans now live under the rule of private governments, and the figure increases about 10 per cent a year. The communities in which they reside can range from small residential condominiums with a relatively few units to vast mini-cities of upward of 10,000 inhabitants. A case scheduled for argument in the New Jersey Appellate Division on April 19 tests whether any of the rules and regulations of those communities can be subjected to the constraints of the New Jersey Constitution.

The case involves the Twin Rivers Homeowners Association (TRHA) in East Windsor. Twin Rivers is a sprawling planned unit development (PUD) bisected by State Highway 33 in Mercer County. It is home to some 10,000 residents living in 3,000 dwelling units. Some of the residents are actually under the jurisdiction of two governing boards, since there are mini-condominiums within the larger Homeowners Association with its 3.5 million dollar a year operating budget.

Like most community association boards, the TRHA performs many governing functions, ranging from architectural controls to fixing the annual levy for maintenance fees and imposing fines for violations of the myriad rules and regulations which the board adopts and enforces.

The sign at Exit 8 of the New Jersey Turnpike directs motorists to Cranbury and Twin Rivers, although Twin Rivers has no official status with the New Jersey League of Municipalities. To the unknowing, Twin Rivers looks like any other municipality. Located within its borders are a small shopping center, two public K-5 schools, a county library, a firehouse and a house of worship. The case of The Committee for a Better Twin Rivers v. the Twin Rivers Homeowners Association involves what the plaintiffs call “rules of democratic governance.” Among the rules being challenged as violative of the New Jersey Constitution are (1) prohibitions on the posting of political signs on residents’ lawns and in common areas; (2) a charge of $165 to hold a meeting in the association Community Room paid for and maintained by members’ fees; (3) the alleged use of the monthly community newspaper by the association president to promote his own views and denounce his political opponents; and (4) a weighted voting system for the Board which assigns votes according to the value of members’ property.

The Mercer County Chancery Division granted summary judgment to the defendants on virtually all of the overriding constitutional issues, while finding for plaintiffs on some subsidiary causes. The trial court ruled that the homeowners association was a private entity, and not a “constitutional actor” as asserted by plaintiffs, in addition to which, Twin Rivers residents waived any rights they might otherwise have had to challenge association rules and regulations by buying property they knew (or should have known) was subject to all sorts of deed restrictions.

Thus, the appeal is focused on two issues; (1) are entities like Twin Rivers the types of “constitutional actors” our Supreme Court has held exercise such dominion over persons invited on to their property that they must accommodate certain constitutional rights - especially freedom of speech - and (2) if so, under what circumstances may such rights be waived. The notion that certain otherwise private entities, by performing public functions, assume some constitutional obligations is not new to American jurisprudence. Almost 60 years ago, the United States Supreme Court decided the famous “company town” case, Marsh v. Alabama, holding that a Jehovah’s Witness had a right to proselytize her views on the streets of Chickasaw, Alabama, and could not be charged with trespass, even though those streets were wholly owned by the steel company.

This constitutional populism reached its zenith in 1968 when the Supreme Court ruled that privately owned and operated suburban shopping malls were similarly subject to the Marsh rule. The replacement of the Earl Warren Court by the Nixon Court brought a renewed reliance on state-action doctrine and a new deference to private property. In 1976, the new Supreme Court majority formerly overruled its earlier shopping mall decision and left Marsh v. Alabama in constitutional limbo.

Free speech advocates were thus forced to turn to state courts and state constitutions to argue for constitutional constraints on private property which functioned as part of the public arena. And, in 1995, the New Jersey Supreme Court ruled that the more private property is devoted to public use, the more it must accommodate the rights which inhere in members of the public who use that property. Consequently, the Court required large shopping centers to allow petitioning and leafleting by nonprofit advocacy groups.

Following the Supreme Court’s shopping mall decision, the New Jersey Appellate Division became the first court in the country to rule that residential condominiums could be subjected to the free-speech provisions of the State Constitution. In a case involving the high-rise Galaxy Towers in Guttenberg, it was held that the condominium association had to allow outsiders to disseminate their view on local elections within the building in “essentially the same manner” as the association did. The case established only a right of reply, and left the association free to designate itself as a politics-free zone.

While the shopping mall cases and Galaxy Towers both involved access to private property by strangers, the Twin Rivers plaintiffs are members of the association who reside on the property and challenge the rules and regulations by which they are governed.

While the defendants claim that the Constitution as interpreted in the shopping mall cases and Galaxy Towers only provides rights for strangers to the property, it is hard to fathom what principle would preclude the actual members of an association from similarly invoking constitutional protection.

 



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