Guttenberg Taxpayers & Rentpayers Ass'n v. Galaxy Towers Condominium Ass'n

Citations: 296 N.J. Super. 101; 686 A.2d 344; 1995 N.J. Super. LEXIS 629

Court: New Jersey Superior Court Appellate Division; June 13, 1995; New Jersey; State Appellate Court

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On April 4, 1994, the plaintiffs filed a complaint in the Chancery Division seeking an order to prevent the defendants from stopping the distribution of political pamphlets on defendants’ property ahead of a school board election scheduled for April 19, 1994. A hearing on the matter was held on April 15, 1994, resulting in the Chancery judge denying the plaintiffs’ request for a preliminary injunction and dismissing the case for lack of a valid cause of action. An order reflecting this decision was entered on April 26, 1994, and the plaintiffs filed a notice of appeal on June 7, 1994.

The defendants include the Galaxy Towers Condominium Association, a nonprofit managing a private residential property with 1,075 condominium units, and Bernard Furman, the association's president. The plaintiff group consists of the Guttenberg Taxpayers and Rentpayers Association, represented by trustee Thomas G. Rizzi and candidate Bill Seoullos. Galaxy Towers has various communal facilities and a public shopping center, Galaxy Mall, which is part of the complex but is accessible to the public. 

The condominium association enforces strict regulations against canvassing and solicitation, which apply to both residents and outsiders. According to the association's vice-president, Sanford Simon, no political materials have ever been permitted to be distributed within Galaxy Towers. Additionally, residents of Galaxy Towers represent about 30% of Guttenberg's registered voters, with a significant portion of District Six's voters residing there. The association has previously endorsed candidates via newsletters but has denied requests from Rizzi to distribute political literature within the property in both April and December 1993. Following the formation of a candidate slate for the upcoming election, the taxpayers’ association sought new permission for material distribution, which had also been denied.

Prior to the hearing on the order to show cause, the condominium association circulated a flyer endorsing candidates for the school board election. The Chancery judge denied the plaintiffs' request for a preliminary injunction based on the tripartite test from State v. Schmid. The judge determined that the property’s primary use was residential, with no evidence of a public invitation for use, and concluded that the plaintiffs lacked a 'right of reply' since the association's distribution was essentially by the unit owners. He noted that the plaintiffs had a 'reasonable alternative' to communicate their views via mail to other unit owners.

Although the school board election has passed, the issues presented are not moot due to their public significance and the potential for recurrence, as established in Oxfeld v. New Jersey State Board of Education and Cain v. New Jersey State Parole Board. The plaintiffs argue for their right to respond to the association's electioneering, citing public interest in exposing citizens to diverse political viewpoints. They seek a reversal of the trial court's decision to allow them access to the property for responding to election-related materials, framing their request within the common law principle that protects public activities from undue restrictions by private property owners, referencing State v. Kolcz. In that case, the court found that a retirement community could not prevent political solicitation that represented a significant portion of the municipal electorate, equating the community's governance to that of a municipality.

The court emphasizes that ruling against the plaintiffs would effectively create a political "isolation booth." The plaintiffs argue that Galaxy Towers functions like a "company-owned town," referencing precedents such as *Marsh v. Alabama* and *State v. Shack*, which establish that ownership does not grant the right to deny access to governmental services. The court highlights the importance of a factual record for satisfactory review of the issues. It cites the *Schmid* test from New Jersey case law, which outlines criteria for evaluating speech and assembly rights on private property, including the property's normal use, public invitation, and the compatibility of expressive activities with that use. The *New Jersey Coalition Against War v. J.M.B. Realty Corp.* case is referenced to clarify that the first two factors are interrelated and primarily factual, focusing on the actual conduct of the property owners regarding public access and invitation. The third factor assesses how compatible the speech activities are with the property's uses. The court concludes that the balancing of property rights and free speech rights necessitates a thorough factual examination, particularly regarding the condominium association's practices related to political activities. As a result, the court reverses the dismissal of the plaintiffs' complaint and remands for a plenary hearing, indicating that it does not retain jurisdiction. The defendants' attorney noted that distribution occurs via door-to-door delivery.