Could CA be Considered a Government?

Are homeowner’s associations private corporations, “government agents,” or “state actors?” This question was put before the New Jersey Supreme Court yesterday morning. The case involves the Twin Rivers Homeowner’s Association and the ability of community residents to put up elections signs on their property. I first heard about this case yesterday morning on WYPR. During NPR’s Morning Edition newsmagazine, reporter Nancy Solomon described basis of the case .

The Newark Star Ledger provides a detailed written account of the story:

The legal dispute began in 2000 when a group of homeowners sued in state court, claiming they were being deprived of free speech and assembly. They said the association's rules allowed political signs only in obscure and isolated locations not easy to see; people who were not part of the association's board or committees were not given the same access to the community room and had to pay; and access to the community newsletter was not equal.

Initially, a trial court judge rejected their claims and agreed with the Twin Rivers Homeowners Association. The Mercer County judge ruled the dissident residents had agreed to the conditions when they purchased their properties.

However, in February 2006, a unanimous appeals court overturned the decision, ruling the state Constitution should apply. That decision -- the first of its kind in the country -- set the stage for the current showdown.

Summarizing the Plaintiff position:

Lawyers for the residents argue that just as shopping malls have become the new town squares, these complexes essentially act as towns. And just as municipalities must respect residents' constitutional rights, so should these associations. Otherwise, people become disenfranchised, said the ACLU's Barocas.

And the homeowner’s association position:

Lawyers for the association said unlike malls and private universities, developments like Twin Rivers are private -- even if they provide some services a town might -- since members of the public aren't invited to the grounds on a regular basis.

The dispute here is among private residents with the private board, and doesn't involve the public, said Goodman.

And in summation:

The Supreme Court's ruling is expected to reverberate around the country, helping to shape the way associations function and to determine what rights they grant in the future, experts say.

And just to make things interesting, there is a local resident activist group involved:

The state Supreme Court is scheduled to hear arguments in a case in which the Committee For A Better Twin Rivers -- a handful of residents, including Bar-Akiva's husband -- has challenged the power of the Twin Rivers Homeowners' Association, saying certain constitutional rights trump certain association rules.

Committee for a Better Twin Rivers – Co Fo Be Tw Ri?

Anyway, their information can be found at this ACLU website.

So how could this affect Howard County and Columbia? If this case sets precedent, the way that CA and the Village Associations (and other condo and townhouse associations) set their rules will be dramatically changed. State actors (like municipalities and county governments) must demonstrate that restricting rights is in the best interest of preserving social order. The bar is much lower for private corporations (like homeowner’s associations).