NATIONAL – From NJ Supreme Court Twin Rivers to Dublirer: HOAs are Separate but Unequal Governments

PVTGOV.WORDPRESS.COM:  From NJ Supreme Court Twin Rivers to Dublirer: HOAs are Separate but Unequal Governments
By George K. Staropoli
December 15, 2014

In a parallel that can be made with Plessy v. Ferguson (163 U.S. 537,1896) and its enlightened reversal in Brown v. Bd of Education (347 U.S. 483,1954), the NJ Supreme Court’s opinion in Dublirer v. 2000 Linwood Avenue Owners (2014) accomplished the same necessary correction of its earlier opinion in CBTW v. Twin Rivers (929 A.2d 1060, 2007) with respect to HOA constitutionality.

In Plessy, the “separate but equal” doctrine was developed to uphold segregationist laws. In Brown, it was successfully argued that “separate but equal” did not apply to the education of black children and integrated schools were necessary.

(I have read the court filings and briefs in the following cases thanks to the people at the Rutgers Constitutional Litigation Clinic, Frank Askin, Director).

In Twin Rivers, addressing the one issue of many dealing with the equivalent of separate but equal free speech for HOA members, the Court found that alternate means of member free speech was available – that is, the alternate methods were separate but equal – and upheld the constitutionality of the HOA’s restrictions.  The HOA was not open to the public and was entirely a private entity and not a municipality (factual statement).

The trial court favored the HOA, while the appellate court favored the members. “In a published opinion, the Appellate Division reversed the trial court, holding that the Association was subject to state constitutional standards with respect to its internal rules and regulations.”  Read more:

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