Thursday, June 14, 2012

Mazdabrook Commons HOA v. Khan

Folks--This is a major ruling that establishes free speech rights for owners in New Jersey under their state constitution.  CAI fought on behalf of the association and lost. And the court explicitly rejected the argument made by the HOA that Khan waived his constitutional rights by the act of voluntarily purchasing a unit.  Anybody who wants a copy of this opinion can get it from my law wiki at this address:


Anonymous said...

I'd look a little closer at that decision. Frankly, the NJ Supreme Court's wording suggested that they would have no problems suppressing any such right - just not in this case because the restrictive covenants failed to specifically put the homeowner on notice for purposes of waiver.

In fact the Supreme Court's decision is a little disturbing in that it indicated what might be used to suppress free speech moving forward for anyone in a "planned community".

Evan McKenzie said...

I looked at it very closely. I don’t see how you can read these two paragraphs and come away thinking that “the court did not suggest that the rights could not be waived,” because as I read it, that is exactly what they suggested.
“We also question whether a clearer sign policy could permit a valid waiver for other reasons. Can fundamental constitutional rights be properly waived by including waiver language in the midst of a more than fifty-page, single-spaced document? Although we do not hold that the [*45] far greater protections required in the criminal arena apply to complex, commercial transactions, see, e.g., Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966) (outlining procedure for valid waiver of right against self-incrimination); Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581 (same for waiver of right to counsel); State v. Crisafi, 128 N.J. 499, 510-12 (1992) (same), it is unclear that the approach in this case can result in a knowing and intelligent waiver of fundamental constitutional rights.
“We also note that tens if not hundreds of thousands of New Jersey residents live in developed communities like Mazdabrook. The proliferation of residential communities with standard agreements that restrict free speech would violate the fundamental free speech values espoused in our Constitution -- the "highest source of public policy" in New Jersey. See Twin Rivers, supra, 192 N.J. at 371 (internal quotation omitted). For that reason, we cannot accept that a complete waiver of free speech rights in one's home could be possible in this context. Instead, as discussed earlier, the exercise of those rights can be subject to [*46] reasonable time, place, and manner restrictions.”