November 22, 2006 | State of New Jersey Department Of The Public Advocate
Public Advocate Fights for Free Speech
TRENTON, N.J. - Public Advocate Ronald K. Chen announced today his Department is entering a lawsuit now before the New Jersey Supreme Court that will significantly affect the free speech of residents of private housing communities throughout New Jersey.
The Public Advocate will file a brief Monday in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Association. The Supreme Court, in an earlier order, granted the Public Advocate’s request to enter the case as amicus curiae.
“We are entering this case to lend our voice to the defense of one of our most sacred American rights, the right to freedom of speech,” Chen said. “Our amicus brief will support the state constitutional rights of residents.”
The case will be argued before the Supreme Court. The oral arguments before the court have yet to be scheduled.
The private community is governed by the Twin Rivers Homeowners Association, which collects maintenance fees, negotiates for services like trash collection, and controls recreation areas. The lawsuit was originally brought by a group of residents of Twin Rivers in East Windsor, New Jersey, who formed a group called the Committee for a Better Twin Rivers. The citizen group first challenged the board in 1999 concerning restrictions on their placement of political signs on their property.
A year later, the group asked for financial documents and voting lists from the Homeowners Association and was swiftly rebuffed. The residents sued the Homeowners Association in December of 2000.
The residents sought court orders to allow them to post political signs on their property and on association property, as well as orders allowing them fuller use of the Association’s community room and equal access to the pages of “Twin Rivers Today,” the Association’s official newspaper to express their views about the management of the community. They also sought the right to tape record Association board meetings and access to a list of eligible voters in Association elections.
The trial court held that the state Constitution’s free speech protections did not apply to the private community.
In February 2006, the Appellate Division reversed on that point, and ruled that East Windsor’s Twin Rivers, and other similar New Jersey developments run by homeowners’ associations, are subject to constitutional restraints when they attempt to restrict the free expression and association of their residents. The matter was later submitted to the state Supreme Court where it is still pending.
Chen said the Twin Rivers case will determine whether the state Constitution’s guarantees of free expression constrain the authority of those associations to control the free expression of residents, just as the constitution limits the ability of a municipal government to enact laws that restrict free speech.
Chen noted that more than a million New Jersey residents and 40 percent of the state’s private homes are governed by some form of private homeowners’ association. In many ways, these associations can be seen as the de facto “governments” for the private communities in which they operate.
“Citizens should not lose their rights to express their views because they buy property in a private community,” Chen said. “In addition, governing organizations of private communities should not have more power than local municipal or state governments to silence the speech of residents.”
The case requires the state Supreme Court to reconcile the expressive rights of residents of a private community with the private property interests of all the community’s residents. The Court must determine whether a homeowners’ association for a large private community can be considered the analogue of a municipal government; and if so, whether its actions are subject to state constitutional standards rather than traditional, private standards of “business judgment.”