Thursday, June 14, 2012

N.J. Supreme Court: Homeowners group can't order resident to remove political signs | NJ.com

N.J. Supreme Court: Homeowners group can't order resident to remove political signs | NJ.com: PARSIPPANY —Wasim Khan, a frequent Democratic candidate in Republican Morris County, hasn’t won any elections, but Wednesday he scored a big victory in the state Supreme Court.

The court ruled 5-1 that the homeowners’ association at his Parsippany townhouse complex violated his free-speech rights when it ordered him to remove campaign signs from his window and door during his run for township council in 2005.

"It’s a great victory for free speech," Khan said. "I’m so proud of our Supreme Court and our state. It’s incredible."

5 comments:

Anonymous said...

Wonder if CAI filed amicus briefs opposing democracy in this litigation?

Compare the outcome to the NJ Supreme Court Twin Rivers decision 5 years ago.

Evan McKenzie said...

This is huge. It is a rematch of the Twin River case in some ways, but this time the home owner won and the association lost, which is what should have happened in Twin Rivers.
Here are the attorneys, and note that CAI did come in as amicus curiae...but so did Frank Askin of Rutgers University Law School.
Jeffrey S. Mandel argued the cause for appellant (PinilisHalpern, attorneys).

Dana L. Wefer argued the cause for respondent (Donovan Hatem, attorneys).

Stephen M. Eisdorfer argued the cause for amicus curiae Community Associations Institute-New Jersey Chapter [*10] (Hill Wallack, attorneys; Michael S. Karpoff, on the brief).

Frank Askin argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Ronald Chen, Rutgers Constitutional Litigation Clinic, attorney; Mr. Askin and Mr. Chen, on the brief).

Evan McKenzie said...

The association argued that the owner had waived his state constitutional rights by purchasing. Here's what the New Jersey Supreme Court said about that:
"Under the circumstances of this case, we do not find a valid waiver. "[A] waiver of constitutional rights in any context must, at the very least, be clear." Fuentes v. Shevin, 407 U.S. 67, 95, 92 S. Ct. 1983, 2002, 32 L. Ed. 2d 556, 579 (1972); see also Callen, supra, 92 N.J. at 137. But Khan was not asked to waive his free speech rights; he was asked -- by different rules in three documents -- to waive the right to post signs before getting Board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.

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."

Admiral James T. Kirk said...

Khaaan!

Communisty Associations Institute said...

> Can fundamental constitutional rights be properly waived
> by including waiver language in the midst of a more than
> fifty-page, single-spaced document?
>
> it is unclear that the approach in this case can result
> in a knowing and intelligent waiver of fundamental
> constitutional rights.


"Mazdabrook Commons HOA v Khan" is clearly an example of activist judges interfering with the fine-print adhesion-"contracts" that

makes citizens relatively powerless. The private logic of contract law structures the relationship as individual consumer vs. big corporation with government as the enforcer of the contract, instead of citizens vs. powerful private organizations, with government as policy maker holding jurisdiction over the relationship.

Rulings like this are another reason to vote for Comrade Romney. Comrade Romney will appoint judges who will ensure that the rights of the collective entities known as corporations, including HOA corporations -- which have the rights of persons under the law -- trump the rights of individuals.

On that glorious day when Romney-appointed justices of the United States Supreme Court require homeowners to honor the contracts they agreed to, HOA corporate boards-of-directors will have near absolute powers over individual American homeowners. And then association attorneys and property managers that control the HOA corporate boards-of-directors will be able to make unlimited profits, leading to Job Creation ™.

Until this egregious ruling is overturned, we can only console ourselves by knowing that although Mr. Khan prevailed in court, he will still be required to help his neighbors pay the HOA corporation's attorney fees through his HOA dues. As the saying goes, suing your HOA is like suing yourself.