Thursday, July 26, 2007

Link to Twin Rivers syllabus
(rewritten for clarity--EM) Here is a snippet from the summary, taken from the Court's website, of how the Court analyzed the facts under the Schmid decision, having to do with state constitutional rights on private property. As Tom Skiba notes in his comment, there is a recognition of owners' expressive liberties, and a recognition of the regulatory power of the association, but a ruling that in this case the expressive rights were not violated. I agree on the existence of the liberties and the power to reasonably regulate, but I believe the Court reached the wrong conclusion in applying the test.

Under the first Schmid factor, the nature, purposes, and primary use of Twin Rivers’ property is for private purposes and does not favor a finding that the Association’s rules and regulations violates the Committee’s
constitutional rights. Under the second factor, the limited nature of the public’s invitation to use the property does not favor a finding that the Association’s rules and regulations violated the Committee’s constitutional rights. Under the third Schmid factor, the Court finds that the Committee’s expressional activities are not unreasonably restricted.
The relationship between the Association and the homeowners is a contractual one, formalized in reasonable covenants that appear in all deeds. The mutual benefit and reciprocal nature of the rules and regulations and their enforcement is essential to the fundamental nature of the communal living arrangement that the residents enjoy.
Thus, this factor does not weigh in favor of finding that the Association’s rules and regulations violated the Committee’s constitutional rights. (Pp. 26-30)
4. Neither singularly nor in combination is the Schmid/Coalition test satisfied in favor of concluding that a constitutional right was infringed in this case. In balancing the Committee’s expressional rights against the Association’s private property interest, the Association’s policies do not violate the free speech and right of assembly clauses of the New Jersey Constitution. (Pp. 31-32)

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