ACLU-NJ Legal Director Ed Barocas on Twin Rivers Ruling

By Ed Barocas ACLU-NJ Legal Director

I bought a condo in Montclair five years ago and in no time my eyes were opened to the kind of power-plays, in-fighting, and venom that can spew over homeowners' association politics.

My impassioned neighbors on various sides of the issues tried to engage me, knowing that I was the legal director of the ACLU-NJ, and pleading for help. "I gave at the office" was my standard reply, and I meant it. The ACLU-NJ, along with the Rutgers Constitutional Litigation Clinic (run by the esteemed Professor Frank Askin), already represented homeowners in a legal battle being watched around the country.

The case, Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association, was before the New Jersey Supreme Court, and its decision would ultimately determine the rights of more than one million New Jerseyans who, like me, live under the rule of homeowners' associations. Twin Rivers involved a host of democratic rights -- everything from whether homeowners have appeal rights when fined for offenses such as choosing a different door paint color to whether homeowners are allowed to post political signs on their property.

Twin Rivers closely relates to an issue we litigated with the Constitutional Litigation Clinic thirteen years ago, concerning free speech rights in shopping malls. In that case, the winning argument was that shopping malls had essentially replaced the town square as a place for community members to gather, and therefore free speech activities must be protected. In Twin Rivers, we similarly argued that for an eighth of the state's population, homeowner's associations have replaced government in establishing community policies and standards (some of these developments are so large that they have their own schools).

On Thursday, July 26, 2007, the long-awaited Twin Rivers decision came down with a unanimous decision against our clients, holding that the Twin Rivers Homeowners Association's restrictions were reasonable and that, unlike shopping malls, homeowners associations do not invite in the public-at-large. Thus, the Court wrote that, while shopping malls act as public squares, homeowner associations do not act as municipalities. It viewed the situation ultimately as a private contractual agreement whereby certain rights can be waived.

Yet, upon reading the decision, our initial disappointment quickly morphed into encouragement. While the ruling was portrayed in the press as a win for the homeowners associations, in actuality, it is a victory for all homeowners who treasure free speech and expression.

We all thought that the questions "is this like the shopping malls" and "is the association a quasi-municipality" were the crux of the case, but we were wrong. Here's why . . .

First, keep in mind that the Court applied the NJ constitutional analysis as it did in the other "quasi-public" contexts like the historic shopping mall cases. The Court ultimately held in Twin Rivers that unreasonable restrictions by homeowners associations on free speech on one's private property would violate the state's heightened constitutional free speech protection.

Because the NJ Constitution (unlike the U.S. Constitution) has an affirmative free speech right, the homeowners associations cannot unreasonably restrict that right when conducted on a person's own private property. The Court held that the particular restriction at issue here (one sign permitted per every window within a residence) was not unreasonable, but the Court wrote that: "At a minimum, any restrictions on the exercise of those rights must be reasonable as to time, place, and manner. Our holding does not suggest...that residents of a homeowner association may never successfully seek constitutional redress against a governing association that unreasonably infringes their free speech rights."

So, while the Court sided with the homeowners association based on the rights it granted to homeowners to display signs, the Court established that association restrictions will be subject to the constitutional standard that our Twin Rivers clients sought . . . that they not be denied a reasonable opportunity to express themselves. We now know that associations do not have carte blanch -- if they pass unreasonable restrictions, those restrictions will be shot down.

Yes, homeowners associations can limit certain free speech activities, especially when dealing with common areas (we lost on the issue of equal access to the association newsletter and other aspects related to communal areas), but the right of free speech in our homes can't simply be contracted away.

Of course, once a court sets down a standard, there will always be groups down the road (either homeowner board members or dissident residents) who will test the waters to find out just what is "reasonable" and what is an "unreasonable" restriction on our right to free speech . . . Having seen the way things happen in a homeowners association once one side or another digs their heels in, I am sure there will be no shortage of residents - in my own condo and elsewhere - who will be begging for me and the ACLU-NJ to get involved in Round 2.

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