Published on: November 18, 2011
“You can’t always get what you want” applies to court decisions, as it does to most things in life. It is also true that you don’t always get what you expect.
That was the case in a recent Massachusetts Appeals Court decision holding that a community association’s rules must respect an owner’s constitutional right to freedom of speech.
To understand why this decision (Board of Managers of Old Colony Village Condominium vs. Steven Preu) was both unexpected and distressing, you have to remember that the First Amendment says, “Congress shall make no law” abridging the freedom of speech. The courts have consistently interpreted this to mean that governmental entities – federal, state, and local — must respect the free speech rights of citizens. Courts that have considered the issue have also generally agreed that community associations are not governmental entities, and so are not required to provide constitutional protections to residents.
The New Jersey Supreme Court made that point clearly and emphatically in a 2007 decision (Committee for a Better Twin Rivers v. Twin Rivers Homeowners Association), ruling that “the nature, purpose, and primary use of Twin Rivers’ property is for private purposes and does not favor a finding that the association’s rules and regulations violated plaintiffs’ constitutional rights.”
A State Action
Unlike the New Jersey court, the Massachusetts Appeals Court did not consider whether the community association was a governmental entity; it focused instead on whether the trial court’s enforcement of the board’s rights under G.L. c. 183A, itself constituted state action triggering constitutional protections. And the Appeals court concluded that the trial court’s enforcement action (and, therefore, indirectly the board’s action in filing suit to enforce the association’s rights under the Massachusetts condominium statute) did, in fact, constitute state action sufficient to trigger the application of constitutional standards
The case involved a long-running dispute between the association’s board and an owner (Preu), who expressed his dissatisfaction with board decisions by, among other actions, depositing bags filled with dog feces in common areas, wedging open or obstructing fire doors, and posting offensive signs in common areas, all of which, the board contended, violated association rules governing the use of common areas and constituted “misconduct” under the Massachusetts condominium law.
A Superior Court judge agreed that some of Preu’s actions (placing feces in common areas and tampering with fire doors) violated the association’s rules and regulations, the state condominium statute, or both. But the court held that “communication by signs and posters is pure speech,” protected by the First Amendment, which the association could not restrict. The association appealed on that point – and lost.
The Appeals Court ruled that constitutional protections applied not because the community association was a governmental entity, but because resorting to the court to enforce a state law, (the Massachusetts condominium statute) was sufficient to constitute “state action,” requiring association rules to pass constitutional muster.
A Dramatic Departure
Although the decision was surprising, it was not entirely unheralded. In dicta in previous decisions, Massachusetts courts have hinted that constitutional protections might apply in common interest ownership settings. One appellate case in particular, Noble v. Murphy, held that an association’s rules might be insulated from attack except “on constitutional or public policy grounds.” However, the Noble court did not hold, as the Appeals Court here suggests, that a condominium association’s regulations are subject to invalidation “if they violate a right guaranteed by ‘any fundamental public policy or constitutional provision.’” The Noble court also did not specifically hold that the constitution would apply to community association boards.
In another case, Franklin v. Spadafora, the Massachusetts Supreme Judicial Court assumed the existence of a state action, but it did not actually reach the question, because the court had already determined that the by-law did not deprive the plaintiff of any constitutional rights.
While many condominium cases have offered the opportunity for Massachusetts courts to apply the constitution in similar circumstances, this Appeals Court in Old Colony Village is the first to accept the invitation. And its decision represents a dramatic departure from the way in which other Massachusetts courts have applied the first amendment to private property owners.
The court’s reliance upon the hybrid nature of condominium ownership is curious. After acknowledging that other courts have concluded that “the First Amendment does not prevent a property owner from restricting the exercise of free speech on private property,” the court went on to note that the relationship between a condominium owner and a community association differs from that between “a member of the public and some third party’s private property.”
This is absolutely true; a community association does have a different relationship with owners – a relationship that arguably makes a common interest ownership community even more private than private property owned by a third party and even less subject to constitutional restrictions. It is difficult to understand this court’s contrary conclusion that “a condominium association does not have as free a hand in restricting the speech of unit owners in the common areas in which [the] owners share an undivided property interest as another property owner might in dealing with a stranger on his or her property.”
If this decision stands (the community association has not decided whether to appeal to the state Supreme Judicial Court), the precedent will have potentially staggering implications, not just for community associations but for private entities of all kinds. Up until this time, the broad “state action” analysis adopted by the Appeals Court has been limited primarily to instances of invidious discrimination or to significant public policy concerns affecting speech (e.g., limitations on the press). In this day and age, you’d be hard-pressed to find many organizations that aren’t regulated by statutes or regulations, and court action is how we resolve disputes in this country. If all you need to trigger “state action” is an underlying statute and court action to enforce it, all bets are off. There’s no way to predict where the limits on the authority of private entities might be drawn. A court might find, for example, that rules restricting the use of company computers or regulating the language used in company e-mails interfered with the free speech rights of employees.
Admittedly, this court went to some lengths to emphasize that its decision should be construed narrowly. “Because we recognize the delicacy and importance of the balance between, on the one hand, the needs of condominium owners to act collectively through rulemaking to create a desirable living environment and, on the other, the rights of individual unit owners, we emphasize the narrowness of our holding. We do not hold condominium restrictions on speech and expressive conduct may never be enforceable…” the court said. “We hold only that when an action is brought [under state law] claiming the breach of such restrictions…the restrictions are subject to scrutiny under the First Amendment.”
The court considered only the central question in this case — whether constitutional standards applied to the rule the board sought to enforce. It specifically did not consider whether the rule itself would pass constitutional muster, nor did it consider whether owners who purchase a condominium unit voluntarily waive their constitutional rights, leaving both questions “for another day.”
In the meantime, the decision leaves other critical questions unanswered, among them: Could an association avoid “state action” triggering constitutional requirements if instead of seeking to enforce its rights under a state statute, it based enforcement actions on the association’s bylaws or covenants alone? There are cases, as mentioned above, in significantly different contexts, suggesting that resort to the court would itself be sufficient to trigger state action, because enforcement of the condominium documents would itself be premised upon state common law principles. If constitutional standards are going to apply to association rules, what level of scrutiny will the courts use in evaluating them?
Under the most rigorous constitutional test, a restriction must fulfill “a compelling governmental interest” that can’t be achieved by other less restrictive means. This would be a nightmare for community associations, subjecting virtually any rule or enforcement action to a standard that few would be able to meet.
In its decision, the court implied, without stating, that the “compelling interest” standard would not necessarily apply. A lower level of constitutional scrutiny — whether a rule is rationally related to a legitimate purpose of the organization — would set the bar much lower and might not be much different from the “reasonable person” standard that guides, or should guide, community association rulemaking today.
It’s not as if boards have unfettered authority to impose any restrictions they can manufacture; the courts have held consistently that a community association’s rules and enforcement actions must be reasonable. But will rules that pass the “reasonable person” standard today also pass the standard of constitutional scrutiny the courts will apply?
That’s a question – one of many – the courts will have to resolve if this decision stands.