The full Twin Rivers decision
Here is some language directly from the opinion, confirming that citizens of New Jersey can assert free speech claims against HOAs, even without meeting the "state action" requirement:
As
noted, our constitution’s free speech provision is “broader than
practically all others in the nation.” Green Party, supra, 164
N.J. at 145. Consequently, we have not followed the approach of
other jurisdictions to require some state action before the free
speech and assembly clauses under our constitution may be
invoked. Even in the absence of state action, we must determine
whether the acts of a homeowners’ association violated its
members’ free speech and association rights in the setting of
this private housing association...Our holding does not suggest,
however, that residents of a homeowners’ association may never
successfully seek constitutional redress against a governing
association that unreasonably infringes their free speech
rights.
The opinion goes on to state, among other things, that restrictive covenants that violate an important public policy are void, and that constitutional rights are an important public policy. So I see why Frank Askin calls this a mixed outcome.
3 comments:
Hi Evan:
Of course the real issue is that if this case couldn't be won in NJ, where as the court noted "Our constitution's free speech provision is ""broader than practically all others in the nation"", can a similar argument be made successfully anywhere else. In fact, in the Court's review of precedent in other states they noted that the decision that communities are not government would have been the last step in the deliberation as few courts have historically gone as far as NJ on this issue in terms of private entities.
Thus, from my perspective the most important point is that the court held, explicitly and implictly, that associations are not governments, but are private entities, with their authority and relationships with homeowners grounded in the contractual relationships.
One interesting revelation from all my reading on this case and others is that the average American has no conception that the Constitution (be it Federal or State) is a contract between the government and the governed and as the court noted "the fundamental nature of a constitution is to govern the relationship between the people and their government, not to control the rights of the people vis-a-vis each other."
Best, Tom
An Open Letter To The New Jersey Supreme Court
To the Supreme Court of New Jersey,
My name is Robert Metcalf. I am not a resident of New Jersey. Yesterday I was deeply disappointed with your reversal in the Twin Rivers case. Throughout the history of the United States there have been watershed moments, during which the parties involved, be they ordinary citizens or high government officials, are faced with a decision where the long term ramifications far outweigh the matter at hand. I believe that the Twin Rivers case was one of those moments.
In my view, the narrow focus of your reasoning missed the point. What is happening in America today with regard to the increasing "privatization" of almost everything is unconscionable. High courts are sometimes afflicted with myopia in defending the status quo, such as the "Dred Scott" decision. At the same time they can occasionally be enlightened with imagination and decisiveness that cuts through a flawed precedent and sets a new standard such as in "Brown vs. Board of Education".
The "corpratization" of America is a trend that is undercutting the very fabric from which the United States is woven. The fact that bodies, like yourself, are effectively letting corporations cancel our basic rights as citizens is leading us down a path that in the end will relegate the freedoms, for which such a high price has been paid, to the status of historical oddities that have no bearing on our day-to-day existence, whatsoever.
60,000,000 million Americans live in deed restricted communities. That is 20 % of the country's population. To continue to subject them to the ideas that "Constructive Notice" represents fair disclosure or that the "Business Judgment Rule" should have weight in their domestic lives simply hastens the demise of what we were all taught in grade school:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
As Common Interest Developments continue to spread along with their more onerous relative, the "New Town", let me ask all of you a question. Where do we, the citizens of The United States Of America, go to exercise our unalienable rights? Where does a citizen of a place like Reston Virginia go to feel the protections of The Bill Of Rights, when most of his or her entire life is spent within the confines of a private corporation?
Yesterday, you had the chance to behave as true patriots. You had a chance to set a precedent that would reverse the trend that it is alright, even desirable to strip the citizens of their basic constitutional rights in the name of business efficacy and contract law. Instead, you decided that precedent had more weight than the true, overriding considerations concerning basic constitutional rights and public policy which the current environment cries out for.
"Twin Rivers" was no more about signs on somebody's lawn than "Dred Scott" was about Dred Scott or "Brown vs. The Board Of Education" was about an individual going to school. As the dynamics of life in America continue to change, so must the laws that we live by and the interpretation of the same. I hope that in the future, should the opportunity present itself again, all of you will take a broader look at exactly what "creatures of the law" like homeowners associations really mean, and what effect they have on what we call "The American Way Of Life".
Sincerely,
Robert Metcalf
Chadds Ford, Pennsylvania
While the NJ Supreme Court decision provides a finality for the issues in the Twin Rivers case, it also calls attention of the need to address the constitutional and other issues legislatively. Organizations can't afford the time and expense of the litigation in each and every state to define the degree to which constitutional rights are preserved. The NJ SC ruling also confirmed that the relationship between the association and its members is a contractual one as defined in the restrictive covenants (CC&Rs) and other governing documents, even though the association provides many functions similar to those provided by a municipality.
Imagine our country without the Constitution to define the rights of citizens. Yet that is precisely what we have in owners associations without a Statement of Rights defined in state law. I have assembled a Statement of Rights as an integration of the many statements or bills of rights posted on the internet. The Statement of Rights defines 25 rights and includes discussion and references for most of the individual statements. For reference the Declaration of Rights in the Michigan Constitution includes 26 rights.
The challenge for individual owners is to work together to draft a Statement of Rights that will have broad support across the country, and then leverage the broad support with the individual state legislatures. Please add your comments. Thanks.
Don Nordeen
Governance of Property Owners Associations
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