Mazdabrook Commons Homewoners Ass’n v. Khan, 210 N.J. 482 (2012). “The question in this appeal is whether a homeowners’ association can prohibit residents from posting political signs in the windows of their own homes.” That was how Chief Justice Rabner began his opinion for the 5-1 majority in this case. The majority answered that question “no.” Judge Wefing was the lone dissenter.
Defendant, a resident of a planned townhouse community managed by the plaintiff association, was a candidate for Parsippany Town Council. He posted two signs in support of his candidacy inside his unit. One of those signs was inside his window and the other was inside the door. The association notified him that the signs violated the association”s rules, which permitted only “For Sale” signs and no others. Defendant removed the signs, but when another dispute involving a “rose vine” on defendant’s property arose, and the association sued defendant, he counterclaimed and asserted that the sign ban violated his free speech rights under the New Jersey and United States Constitutions. The trial court found for the association, but the Appellate Division, in a split decision, reversed. The association appealed as of right on the issues raised by the dissenting Appellate Division judge.
In State v. Schmid, 84 N.J. 535 (1980), the Court outlined a three-factor test for determining the scope of free speech rights on private property. Those factors were (1) the nature, purposes, and primary use of the private property, (2) the extent and nature of any invitation to the public to use that property, and (3) the purpose of the expressive activity on the private property in relation to both the private and public use of that property. Later cases, including Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 192 N.J. 344 (2007), which also involved rules imposed by a homeowners’ association, applied and embroidered on the Schmid test.
In this case, the issues presented revolved around the third Schmid prong, as to which the Appellate Division majority and the dissent disagreed. Chief Justice Rabner began by noting that the speech restricted here– political speech, in the form of campaign signs for Khan himself– lies “at the core” of the constitutional protection of free speech. Moreover, unlike in the previous cases, which involved the speech of visitors to a university campus and a shopping mall, Khan’s speech here was in his own home, his private property within the development, not on the property of others. The majority distinguished Twin Rivers, where “the Court upheld minor restrictions that permitted homeowners to place signs in their windows and in flower beds adjacent to their homes.” Here, the association barred any sign, anywhere, except “For Sale” signs.
Chief Justice Rabner then rejected a waiver argument: that Khan had waived his constitutional right to free speech because “he bought his unit with ful knowledge of the sign restrictions listed in the offering and governing documents.” The majority could not “accept that a complete waiver of free speech rights in one’s home could be possible” in the context of a property governed by a homeowner’s association, a type of property in which tens or even hundreds of thousands of New Jersey citizens live. The “exercise of those rights can be subject to reasonable time, place and manner restrictions” imposed by the association, as the Court had made clear in the prior cases, including Twin Rivers. But the provision at issue here could not stand.
In her dissent, Judge Wefing stated that people “are entitled to seek shelter from political debate and division. If a group of individuals wish to live in a common-interest community that precludes the posting of signs, political or otherwise, and have agreed freely to do so, and there is no showing of overreaching or coercion,” that agreement should stand and the association’s policy should have been upheld. She also observed that the vast majority of the record below related not to the sign issue but to the dispute over the “rose vine” (in a footnote, Judge Wefing showed that her knowledge extends to gardening as well as to the law, noting that “[a] rose is a shrub, not a vine,” and inferring “that the plant in question must have been a climbing rose”). As a result, in her view, the record was not adequate to decide the constitutional issues. The majority, of course, disagreed, finding the record “concise” but “direct,” and sufficent, on the free speech issue.
It is inconceivable that a homeowner can be prevented from putting up a sign for his or her own political campaign within the confines of the homeowner’s residence. A community association has broad rights to tell residents what they can and cannot do at a residential development, but the ban here went much too far.