Daily Development for
Thursday, October 30, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONSTITUTIONAL LAW; FREE SPEECH: Condominium association that had actively endorsed certain political candidates by distributing campaign flyers, effectively dedicated otherwise private property to political and thus public use, and therefore could not deny access to its privately owned property to citizens group that wished to distribute the same type of literature.

Guttenberg Taxpayers and Rent Payers Association v. Galaxy Towers Condominium Association, 688 A.2d 156 (N.J.Super.Ch. 1996).

This case is the trial court decision on remand from an earlier appellate court opinion setting the stage by finding that there were matters of great public importance involved in this case and that the case therefore was not moot notwithstanding the fact that the election which gave rise to the dispute had already occurred. Guttenberg Taxpayers and Rent Payers Association v. Galaxy Towers Condominium Association, 686 A.2d 344 (N.J. Super. App. Div. 1995). Although this decision was rendered in January of 1996, it is just finding its way into the Atlantic Reporter. There was no appeal.

Despite the fact that the appellate court stated that important public interests are at stake, the trial court here indicates that its determination is very much fact specific, and thus may be limiting the precedential impact of the case. Nevertheless, it is likely to be a significant precedent in New Jersey and other jurisdictions in cases with somewhat similar facts.

The court based its determination on the free speech guarantees of the New Jersey Constitution, so don't expect this case to find its way to the U.S. Supreme Court.

The court found as a matter of fact that the condominium development in question is a "mini city"with 1076 apartment units - with direct access from private parking garages to the private mall leading to the apartments. The mall includes many stores and services, including polling booths for all federal, state and municipal elections. As the appellate court pointed out, it might be possible for residents to live their lives within the confines of the condominium structure and rarely venture out into the nearby streets and public areas except to drive away.

The court also that the condominium association prohibited solicitation of any kind, including political solicitation, but that it did permit distribution of Association approved leaflets on specific political issues and even organized telephone squads to get residents to the polls and distributed absentee ballots. In short, the Association, in the eyes of the court, treated its residence as a sort of "captive political audience." This converted the otherwise private property into public property for purposes of political solicitation.

"The residents of Galaxy have come to expect as a matter of course, that during election time there will be a flurry of election materials placed under their doors, and available in the common areas . . . the activities engaged in by the Association are similar in nature to what would be expected from a political organization, from its endorsement of candidates to its get-out-the-vote drives . . . This court finds that there consistently has been at election time, significant deeication of this property from private to political and thus public use."

The court ultimately found that the plaintiffs, in light of the nature of the building and the political activities of the Association, had no alternative means to deliver their political message effectively other than by door to door communication with the residents of Galaxy." The court appears to adopt an "equal access" policy. Anything the Association permits its own political operatives to do, the Association must also permit to other groups interested in delivering a political message.

Comment 1: One assumes that Galaxy, in response to this opinion, suspended its political activities. One person's political speech can be another's obnoxious harangue, and it is likely that the residents of the Galaxy Condominium residents preferred not to give "any and all" political message bearers access to their front doors.

Comment 2: The court also discusses the signficance of the electorate within the Galaxy Towers Condominium as a voting group within the local municipality. Galaxy residents constituted more than 24% of the voteres in the town of Guttenberg. How relevant was this to the result? From the standpoint of a party desiring to deliver a political message, isn't the opportunity to reach just one more voter crucial? Wouldn't the free speech arguments be the same if the Galaxy residents were not a dominant political force? If so, why did the court make so much of the facts concerning the voting power of the residents?

Without this detail, of course, the potential impact of the opinion is much broader. Consider, for instance, religious oriented convalescent and nursing homes - a common tactical objective of the "stealth campaigns" of the Religious Right, which conducts extensive "get out the vote" and political information efforts in such places. Clearly the audience here is "captive." But if the ownership of the institution permits political solicitation by one group, has it become an "open political forum" which any and all political groups can use in same way? Unless the court's rule applies only when an individual location contains a significant voter bloc, such nursing homes are open territory in New Jersey.

Comment 3: In rendering this opinion, the court has started down a slippery slope that, to the editor, has no logical limits. Whenever an association communicates with its residents, it potential runs afoul of the court's "equal access" rule. It is true that the court also appears to differentiate between political speech and other forms of speech. Under the opinion, for instance, the Association likely could distribute a newsletter with cooking tips for roast beef without having to permit access to a religious organization opposed to human consumption of cows. But, notwithstanding the narrow focus of the opinion, can't an argument be made that religious speech is also entitled to a high level of protection? For that matter, isn't one person's recipe distribution another person's "political speech?"

Comment 4: Even though the court has embarked on a slippery slope, the argument remains that this is where it ought to be. If our courts do not step in to insure that the political process works fairly and openly, who will perform that function? Certainly most would agree that we cannot rely upon our elected representatives to make the playing field level for their opponents. Every day's news programs bring evidence of that fact.

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