Nothing Gets 'Em Riled Like HOAs

Writing about homeowner associations in the Tribune is guaranteed fun, as libertarian philosophy clashes with libertarian philosophy. Apparently, government has no business getting involved with private contractual arrangements, unless we don't like the results, in which case government needs to get involved. It's the original darkling plain, and you know what Matthew Arnold said about armies that fight on darkling plains. As Margo Channing says, fasten your seatbelts, it's going to be a bumpy night.

I love the phrase "dissident homeowners." Only in America (and not just New Jersey, either).

Supremes vs. Sopranos: New Jersey Rules for the HOA
East Valley Tribune, Aug. 5, 2007

It’s homeowner association time again, the Tribune op-ed column version of a Disneyland E-ride; I await your angry emails. The reason is that while we don't know what happened to Tony Soprano, the New Jersey Supreme Court did decide the Twin Rivers case.

Twin Rivers is a master-planned community in East Windsor, N.J., with about 10,000 residents. The HOA maintained roads and street lights and managed landscape maintenance, leaf collection, snow removal, and common facilities open only to residents and guests. The HOA also distributed a community newsletter, and limited signs to only one in a window and one outside, if within 3 feet of the residence.

Dissident homeowners sued the HOA to allow unlimited signs on private property and on common areas subject to reasonable restrictions. They also sued for "equal access" to the community newsletter, and for an injunction stopping the HOA president from using the paper "as his own personal political trumpet."

The dissidents lost at trial, but in 2006, an appellate court reversed, holding that the HOA, by taking over many traditionally municipal functions, exercised enough power over residents to become subject to the state constitution’s free expression and assembly and equal protection protections. Committee for a Better Twin Rivers v. Twin Rivers Homeowner's Ass'n, 383 N.J. Super. 22, 890 A.2d 947 (App. Div. 2006). Everybody then appealed, and on July 25, the state Supreme Court reversed, holding that HOAs could impose "reasonable" restrictions on sign-posting and access to the community newsletter without violating the state constitution. Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Asso'n, 2007 WL 2127686 (N.J. July 26, 2007); slip opinion is here.

The opinion reviewed both federal and state constitutional law. The U.S. Supreme Court, in the 1980 Pruneyard case, held that the First Amendment didn’t give people free speech rights in a privately-owned shopping center. Malls, like HOAs, perform what used to be municipal functions and exercise significant control, but there’s no First Amendment right to picket, leaflet, request petition signatures, or give speeches in a privately-owned shopping center.

However, the New Jersey state constitution’s free speech and assembly protections are greater than those in the U.S. Constitution. (Arizona courts haven’t gone beyond the federal constitution, and here mall owners can limit speech and petition-gathering; that’s the Mecham Recall Committee case. The case citation, and a 2004 summary of state-by-state decisions, is available here.) In prior cases, the New Jersey court had allowed leafleting on a private college campus and a regional mall. But in applying those precedents, the court found crucial differences due to the primarily residential nature of Twin Rivers, the HOA’s limited areas of operation (the local municipality provided schools, courts, fire, and police services), the limited public use of the subdivision, and the nature of the restrictions on the homeowners’ speech and the alternatives available. In short, while the HOA had to be reasonable, the court said the state constitution did not require unfettered speech or assembly and did not override the contractual agreements of the owners to abide by the deed restrictions.

The opinion noted that constitutional rights are not absolute -- and people may waive those rights by contract, or by just waiving them (by answering the officer’s questions after the Miranda warning).

We Americans have an odd attitude toward constitutional rights. Like our self-estimation of our driving skills, we love rights when they’re ours, but not so much when they’re somebody else’s. Nobody should have the right to tell me whether I can put a sign in front of my house -- that’s communism! But if a criminal conviction is reversed because the defendant’s rights were violated -- that’s liberal courts running amok!

At one point during the Twin Rivers litigation, the number of dissidents dwindled to three; these communities can be self-selecting, and the problem with being a minority in a voting situation is that the majority tends to win. This feels great when your side wins, but when it doesn’t, lots of dissidents start looking to the federal or state constitutions for reasons why the majority shouldn’t rule.

Why is it that government needs to protect people against the consequences of their decisions after purchasing a house with a HOA, but if fate strikes you with a severe illness, you’re on your own? That’s not my value system -- or according to the Twin Rivers court, not the federal or state constitution either.