Q. Can a current board member advertise his re-election, or go around knocking on each door and telling owners who to vote for? Is this legal?
—Wondering If This Is Appropriate
A. “Yes and yes,” says Jonathan H. Katz, a partner in the Community Associations Practice Group of law firm Hill Wallack in Princeton. “Any candidate for election to an association’s governing board has the ability to campaign for their election (or re-election) as they see fit so long as their campaign activities do not run afoul of the association’s governing documents and rules and regulations. This, of course, assumes that the association’s governing documents and rules and regulations are reasonable and do not in and of themselves run afoul of the candidate’s constitutional rights. Luckily, the New Jersey Supreme Court has addressed some of these first amendment/free speech issues in the Dublirer and Mazdabrook cases.
“In Dublirer v. 2000 Linwood Avenue Owners, Inc., 220 N.J. 71 (2014), the Supreme Court found that Mr. Dublirer’s free speech rights were violated by his co-op, which denied his requests to hand deliver his campaign materials to other building residents. The Court rejected a ‘House Rule’ that barred soliciting and distributing any written campaign materials because it found that Mr. Dublirer’s free speech rights outweighed the private property rights of the co-op. That being said, the Court did hold that the co-op could establish reasonable ‘time, place, and manner’ restrictions on a resident’s political speech.
“Prior to Dublirer, in Mazdabrook Commons Homeowners’ Association v. Khan, 210 N.J. 482 (2012), the Supreme Court considered whether the association could prohibit residents from posting political signs in the windows of their own homes. The Court determined that this restriction was unconstitutional, even when contained in the association’s governing documents, because the sign policy violated Mr. Khan’s right to free speech under the State Constitution. Again, however, the Court reaffirmed an association’s right to enact reasonable ‘time, place, and manner’ restrictions on signs, such as limiting the number or location of any signs.
“So put simply, an association cannot totally restrict a candidate’s ability to campaign for their election to the board because to do so would be a violation of the candidate’s free speech rights. However, as noted above, associations can enact reasonable ‘time, place, and manner’ restrictions on a resident’s political speech.”