I recently came across a post by a Massachusetts law firm , MEEB, that basically summarized my arguments and positions on unconstitutional HOA governments. In particular, alleged waivers of constitutional rights and the prohibition against private contractual government HOAs from restricting political public speech. That applies to both in the public domain and within the HOA community domain.
In its 2012 post, “Court Decisions May Make it Harder to Restrict Free Speech Rights,” decisions in 3 court cases (VT and MA) are reviewed. In essence, these decisions challenge “an assumption long held and widely recognized by courts in many jurisdictions that the freedom of speech guaranteed in the U.S. Constitutions does not apply in condominium communities.” The reason offered, as I’ve mentioned many times, “citizens, a community association is not a governmental entity, so its rules are not subject to the same strict constitutional tests.
In contrast to Twin Rivers, in Mazdabrook “the court noted [political speech] ‘lies at the core’ of our constitutional free speech protections. Political signs advancing a resident’s candidacy are not by their nature incompatible with a private development. They do not conflict with the purpose of the development.” And the court concluded “that the sign policy in question violates the free speech clause of the State Constitution.”
In regard to the alleged waiver of fundamental rights (my emphasis),
The New Jersey court expressed serious concerns about whether and how condominium owners can voluntarily waive their constitutional rights. Such waivers, the court said, “must be knowing, intelligent, and voluntary…. [and] at the very least, [they] must be clear. Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”
Mazdabrook’s rules did not specifically require Khan to waive his free speech rights, the court noted. Rather, “he was asked…to waive the right to post signs before getting board approval, without any idea about what standards would govern the approval process. That cannot constitute a knowing, intelligent, voluntary waiver of constitutional rights.”
In the Preu (MA) decision, the court addressed state actions by the HOA,
The court found that a law suit filed to enforce a community association’s rights under the state condominium statute constituted a “state action” that could subject association regulations to a constitutional test.
The constitutional test would require strict scrutiny, which requires a necessary and compelling reason to restrict fundamental rights. Lesser loss of rights, say under state laws, would be subject to a lessor test, but more than the broader “a government’s general interest” that can easily be extended beyond justifiable logic.
In addition to the above rulings, California’s SB 1265 that states the HOA is a quasi-government faces a test in the legislature tomorrow. Let’s hope it passes. The sponsor, Senator Wieckowski, also managed to have SB 407 passed last year that broader prohibits restrictions on free speech regarding meeting rooms, assemblies, use of common areas, etc.
“It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.” (New Civ. Code 4515(a).
Now members can even make use of the ‘house organ,’ the monthly online or hardcopy communication provided to the membership for equal access to the membership for campaigning or publicizing opposing views.