So holds today’s opinion in Mazdabrook Commons Homeowners’ Ass’n v. Khan (N.J. June 13, 2012), interpreting the New Jersey Constitution. The New Jersey Supreme Court is one of the few state courts that has interpreted its state constitution as restricting at least some private property owners, such as privately owned shopping malls and private universities. In today’s case, the court applied this to homeowners’ associations vis-a-vis their members, and held that the associations may not entirely ban homeowners from displaying political signs, though they may impose reasonable content-neutral rules on the size and number of those signs. (The court specifically stressed that, “[w]e do not suggest ... that the Association could properly distinguish among different types of political signs.”)
Judge Wefing dissented, reasoning:
Mazdabrook Commons ... is comprised of approximately two hundred townhouses, and it is entirely residential in nature....
My colleagues rightly note our nation’s and our state’s commitment to a free and vigorous debate of public questions. I have no quarrel with that commitment; I embrace it. In my judgment, however, individuals are equally entitled to seek shelter from political debate and division. If a group of individuals wish to live in a common-interest community that precludes the posting of signs, political or otherwise, and have agreed freely to do so, and there is no showing of overreaching or coercion, I would adopt the principles enunciated in Judge Miniman’s dissent in the Appellate Division, that these mutually-agreed upon covenants ran with the land, were reasonable, and were enforceable. As Judge Miniman noted:
Here, the prohibition on signs is contained in the recorded Declaration of Covenants and Restrictions, By–Laws, and Rules and Regulations ... The restriction on signs and the right to sue to enforce it are included in the bundle of rights, restrictions, encumbrances, and easements contained in the deed to defendant’s unit.... Thus, defendant and all other unit owners expressly agreed that they would not violate the prohibition on signs and each owner was empowered to enforce that restriction.
Some may question the choice to avoid political controversy; I simply recognize the right to make that choice.