Free Speech and Assembly on Common Elements?

A New Jersey Supreme Court case denied owners’ claims that an association’s actions violated rights protected by the New Jersey State Constitution.  The case is Committee for a Better Twin Rivers, et al. v. Twin Rivers Homeowners’ Association.  The case was decided July 26, 2007.

How did the New Jersey Supreme Court rule on the owners’ claims that the New Jersey Constitution applied to private property?

The Court determined the association’s private property interests outweighed the owners’ rights to express themselves.  The New Jersey Constitution applies to public property, not private property in a homeowners association.  Therefore the association did not violate the owners’ rights.  The decision overturned the prior New Jersey Appellate Court ruling on the same issues.

What constitutional rights did the owners allege were violated?

The two rights under the New Jersey Constitution that owners claim were violated were:

  • the right to freedom of speech (signs were desired to be placed on common element property and articles of these owners were not published in the association’s newsletter)
  • the right to meet (assemble)

Key to these allegations were the owners’ claim that the association was the equivalent of the “state” and that its actions should be measured against the much higher standard imposed on the state, as opposed to the lower standards imposed on private persons.

What kind of community is Twin Rivers?

Twin Rivers has 2,700 homes, with about 10,000 residents.  The community includes single family housing and apartments.  Common elements are governed by the Twin Rivers Homeowner Association.

The Community allowed residents to post one or two signs (one in a window) and another in the garden area.  The Community also allowed owners to use a clubhouse/meeting room provided that the owner paid a $165.00 fee and a deposit, as well as provide the Board with an insurance certificate.  The Board reserved the right to deny a rental for any reason.  Finally, the Community published a newsletter, titled Twin Rivers Today, in which the President’s articles were more prominently placed than letters from owners (located on the tenth page of the newsletter, if published).

History of the Alleged Violated Constitutional Rights in the Twin Rivers Community

Past New Jersey court rulings allowed freedom of speech and the freedom to meet (or assemble) on public property, not private property.  Before this case, Courts had not extended these rights to private property, unless the public was invited.  In the Twin Rivers case, the New Jersey Appellate Court took the approach that common elements are similar to public property (town squares, plazas, etc.).  The New Jersey Appellate Court allowed the rights sought on common elements to owners and the public.

What did the case hold?

Utilizing a three-pronged test to balance individuals’ expressional rights versus private property interests, the Court determined the Community’s private property interests outweighed the owners’ individual rights of expression, and therefore did not violate the owners’ State Constitutional rights.  The test includes the following three “prongs”:

  1. The nature, purposes, and primary use of such private property – its “normal” use
    The Court found that the primary purpose of common elements was private use.  Unlike state actors, the association was not responsible for any of the following: governing the community (in a local governmental sense vs. a private governmental context) running the local court system or provide schools, police, first-aid, or fire services.
  2. The extent and nature of the public’s invitation to use that property
    The Court also noted that the public had not been invited to use common elements.  Although roads were open to the public, they were intended for the owners and their guests.
  3. The purpose of the expressional activity undertaken upon such property in relation to both the private and public use of the property
    The Court found that the owners’ activities and rights of expression were not unreasonably restricted.  Owners were permitted some expressional rights, but the reciprocal/contractual nature of the Community was essential to the fundamental nature of living in the Community.

The Court noted that the owners were protected by other state statutes, including the business judgment rule and the state’s common interest act.  The Court also listed several alternative actions the owners could take, including going door-to-door to solicit owner support, creating an alternative community newsletter, rallying owners to amend the governing documents, or running for the Association’s Board of Directors.

Is the case ruling final?

Yes.  The issue was decided by the New Jersey Supreme Court, which is the final arbiter on New Jersey law.  Because the owners’ claims did not concern any federal law, including the U.S. Constitution, the owners had no right to appeal to the U.S. Supreme Court.

Was the ruling based on the U.S. Constitution?

No.  The ruling in the Twin Rivers case is based solely on New Jersey’s constitution.

While the ruling was not based on the U.S. Constitution or the Colorado Constitution, the clauses are similar.  The U.S. Constitution provides as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press, or the right of the people to assemble peacefully, and to petition the government for a redress of grievances.

The Colorado Constitution provides as follows:

Freedom of speech and the press.  No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.

What is the effect on Colorado owner associations?

Because the ruling was based on New Jersey law, there is no direct correlation to Colorado.  The decision is not binding on Colorado courts but may have some persuasive authority in Colorado.

What are the rights of owners and residents in Colorado?

Rights of owners and residents in Colorado common interest communities are addressed in Colorado State Statutes and in the governing documents for a community.  The primary statute addressing owner rights is the Colorado Common Interest Ownership Act, including amendments made to that Act, and the Colorado Revised Nonprofit Corporation Act.  The rights of owners and residents are also spelled out in the governing documents for Colorado common interest communities (sometimes better than in some documents than others).

In Colorado, it is anticipated that the same ruling would be made, that:

  • the right to freedom of speech does not allow owners to put signs on common elements or publish articles in the Association’s newsletter
  • the right of assembly in a common element clubhouse can be subject to a reasonable fee ($165.00)
  • a deposit and requested reservation could be denied

For More Information

If you are interested in or desire more information about the Twin Rivers case, and free speech or free assembly in common interest communities, contact an attorney at Orten Cavanagh Holmes & Hunt.

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