It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.
It is an issue we have reported on before (here), but yesterday the New Jersey Supreme Court ruled that homeowners’ associations may not entirely ban homeowners from displaying political signs. In Mazdabrook Commons Homeowners' Association v. Khan, the New Jersey Supreme Court held that homeowners' associations are allowed to impose reasonable content-neutral rules (e.g., regulating the size, number, and location) of signs, but cannot ban them outright and cannot, even under the guise of reasonable content-neutral rules, “distinguish among different types of political signs.” This decision is obviously important to community associations, but also has a broader impact because it reiterates the New Jersey Supreme Court’s belief that individual rights identified in the New Jersey Constitution are protected, not against abridgment by the government, but also by certain conduct from private entities.
Jude Wefing, sitting by assignment from the Appellate Division, was the lone dissenter. She criticized the majority for both reaching the constitutional issue in the first place, and for its decision on that issue. In connection with the former, Judge Wefing noted that the dispute between the parties centered primarily on fines related to the homeowners’ growing of a “rose vine” over the homeowners’ association’s objections about the size and placement of the “vine.” (In a footnote, Judge Wefing noted that she referred to the offending plant as a “rose vine” only because the majority did so, even though “[a] rose is a shrub, not a vine,” and thus “the plant in question must have been a climbing rose.”) As a result, the record regarding the issue with the political signs was too sparse, in Judge Wefing’s opinion, to justify reaching the broader constitutional issue.
When it came to the substantive issue, Judge Wefing parted with her colleagues on a more fundamental level:
My colleagues rightly note our nation’s and our state’s commitment to a free and vigorous debate of public questions. I have no quarrel with that commitment; I embrace it. In my judgment, however, individuals are equally entitled to seek shelter from political debate and division. If a group of individuals wish to live in a common-interest community that precludes the posting of signs, political or otherwise, and have agreed freely to do so, and there is no showing of overreaching or coercion, I would adopt the principles enunciated in [the] dissent in the Appellate Division, that these mutually-agreed upon covenants ran with the land, were reasonable, and were enforceable.
Based on these principles, Judge Wefing concluded: “Some may question the choice to avoid political controversy; I simply recognize the right to make that choice.”
When can a homeonwers association restrict the political speech of its unit owners? This is a question that has continued to baffle New Jersey courts ever since the Supreme Court's landmark Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Ass'n decision in 2007. In Dublirer v. 2000 Linwood Avenue Owners, Inc. et al, decided August 17, 2011, the Appellate Division took another crack at it, when it evaluated a co-op's restrictions on solicitation, which as applied prevented plaintiff from distributing written materials to other shareholders in the 483 unit building.
The Dublirer court first reaffirmed Twin Rivers to the extent no state action is required for a cause of action under the New Jersey State Constitution. The court then applied the three Schmid factors: "(1) the nature, purposes, and primary use of such private property, generally its 'normal' use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property." Under the first factor, like in Twin Rivers, the Dublirer court had no trouble concluding that the co-op was primarily residential and private. Similarly, under the second factor, the Dublirer court also found the public was not invited to use the property.
Because the effect of the solicitation restriction was to inhibit political speech, and specifically speech critical of the co-op's board or speech designed to permit the plaintiff to run against an incumbent board member, the court considered it "political-like speech" and thus concluded it must examine "the fairness of the restrictions imposed by the Association." The Appellate Division first noted that the Association violated its own restrictions several times per year, insofar as the Association distributed written materials under shareholders' doors to save postage. The court also noted that the Association permitted certain charitable organizations to also violate the solicitation restrictions.
The court considered the time, place, and manner of the restrictions. It examined available alternative means of communication and found them lacking; the Association rules prohibited written materials on one's own door or window, distribution of written material anywhere on the premises, contributions to the board's newsletters, and delivery of political-like speech related to board elections by going door-to-door. The plaintiff was left with only the ability to circulate his writings at a semi-annual meeting, posting them on a bulletin board, or using the mail. With respect to speaking, the only apparent permissible outlets were inside a unit after an unsolicited invitation, a common area during an unsolicited conversation, or at the annual meeting. Viewing these restrictions in light of the Board's "exceptions" noted above, the Appellate Division concluded they were too restrictive, reversed summary judgment which had been granted to the Association, and entered judgment in favor of the plaintiff.