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March 25, 1995
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Case No: C-48-94 - The Guttenberg Taxpayers and Rentpayers Associaton v Galaxy Tower
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Federal
Other Court
County of Hudson
Branch: Law Division
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The Guttenberg Taxpayers and Rentpayers Associaton
Thomas G. Rizzi and Bill Scoullos
Represented by: Frank Askin, Esq. (Rutgers Contitutional Litigation Clinic)
v.
Galaxy Towers Condominium Association
and Bernard Furman
Represented by: Burton T. Cohen, Esq and Greenberg, P.J. CH.
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Summary
The ACLU and Guttenberg Taxpayers and Rentpayers Associaton V. The Galaxy Towers Case This was the legal background against which the Guttenberg Taxpayers and Rentpayers Association sued the Galaxy Towers Condominium Association just prior to the Guttenberg Board of Education election in 1994. A condo political action committee organized telephone squads to remind residents to vote and, on election day, stationed volunteers in the lobbies of the three buildings to hand slate cards to the residents as they crossed the lobbies to the polling place, which was located in the adjacent mall. Ninety per cent of the voters in Election District 6 lived in the Galaxy. The mall [*959] was open to the public, which one could enter from a city street, but Galaxy residents had a private entry-way from each of the Galaxy Towers.
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Causes of Action:
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Judge: The Honorable Chief Justice Wilentz
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Lawsuit Text
The ACLU and Guttenberg Taxpayers and Rentpayers Associaton V. The Galaxy Towers Case
This was the legal background against which the Guttenberg Taxpayers and Rentpayers Association sued the Galaxy Towers Condominium Association just prior to the Guttenberg Board of Education election in 1994.
Galaxy Towers is a luxury condominium consisting of three high-rise residential buildings with underground parking and an attached mini-mall housing a food market, several restaurants, shops, and a movie theater. The Galaxy Mall was operated by an independent corporation. Slightly more than twenty-five per cent of the registered voters in the town of Guttenberg resided in Galaxy Towers.
For the prior decade, the Galaxy Towers Condominium Association had actively involved itself in local political affairs and regularly endorsed candidates for school board and town council. It conducted regular voter registration drives in the lobbies of the buildings, and, during the week prior to each election, the Condominium Association regularly left flyers at each apartment listing the preferred candidates.
A condo political action committee organized telephone squads to remind residents to vote and, on election day, stationed volunteers in the lobbies of the three buildings to hand slate cards to the residents as they crossed the lobbies to the polling place, which was located in the adjacent mall. Ninety per cent of the voters in Election District 6 lived in the Galaxy. The mall [*959] was open to the public, which one could enter from a city street, but Galaxy residents had a private entry-way from each of the Galaxy Towers.
On Election Day, representatives of other candidates could have access to the ten per cent of the District 6 registrants who did not reside in the Galaxy, but could not hand literature to those who went to vote directly from the Galaxy premises. Not surprisingly, the Galaxy vote invariably went about ninety-eight per cent for the slate endorsed by the association. The Guttenberg Taxpayers Association, which regularly supported candidates opposing the Galaxy-backed slate, was denied the right to distribute its literature in the buildings. The Taxpayers Association slate regularly carried the rest of the town by margins of approximately two to one, but when the Galaxy vote was counted, the Galaxy slate always prevailed. So went the Galaxy, so went Guttenberg!
The Taxpayers Association filed suit prior to the 1994 school board election seeking the right to distribute its materials in the Galaxy in the same manner that the Condominium Association did.
The first time around the trial court dismissed the case. The judge held that the Galaxy was private property and the governing board could control access. By the time the appeal was heard in the appellate division, the New Jersey Supreme Court had decided the shopping mall case. In that opinion, the court made several points of direct relevance to the Galaxy case:
(1) It modified the tripartite test it had originally articulated in the Princeton case to make clear that "primary use" of the property included the normal uses to which the property had been put whether or not deliberately intended by the property owner.
(2) It held that the public invitation did not have to be express, but could be implied from the uses to which the property had previously been put.
(3) Finally, the Wilentz opinion expressly endorsed the public function analysis used by the United States Supreme Court in Marsh and held that the tripartite test of the Schmid case was only one application of the general balancing test required by the New Jersey Constitution when rights of free expression came into conflict with the rights of private property.
The New Jersey Appellate Division, citing the shopping mall opinion, remanded the Galaxy case to the Superior Court in Hudson County for a full evidentiary hearing. That hearing established the facts recited above regarding the political activities of the condo association and its domination of local elections in Guttenberg. This time the trial judge had no trouble ruling in favor of the plaintiffs.
Finding that the plaintiffs had "no adequate meaningful substitute for 'door-to-door communication,'" the court held: "A level playing field requires equal access to this condominium because it has become in essence a political 'company town'. . . in which political access controlled by the Association is the only 'game in town.'"
The court issued an injunction requiring the condo association to allow the plaintiffs to distribute materials in the building in "essentially the same manner" that the condo association did. Access was still within the association's control. If the association wanted to make the Galaxy into a politics-free zone, it could do so. Plaintiffs' rights were only derivative of the association's own political activities.
The appellate division unanimously upheld the decision of the trial judge for the reasons stated in the trial court's opinion. The New Jersey Supreme Court subsequently denied certification.
VI. Conclusion
Once upon a time, the United States Supreme Court held that the First Amendment offered special solicitude for "the poorly financed causes of little people." It was that notion that gave rise to decisions which protected the right of grass-roots proselytizers to disseminate their messages in privately owned company towns, at private shopping centers, as well as by going door to door along the public streets.
But the United States Supreme Court backed away from doctrines which extended constitutional protections to privately owned forums that had replaced public spaces; more and more of the nation's residential streets are now off-limits in private gated communities. As a consequence, the public forum for the "poorly financed causes of little people" is shrinking away. If grass roots organizers cannot go to the new town squares or go door to door in gated communities to disseminate their messages, their opportunity to be heard is greatly reduced in the modern age.
Together with the Coalition opinion of Chief Justice Wilentz, the Galaxy case offers new hope that "the poorly financed causes of little people" will not be totally silenced in an increasingly privatized society. While the United States Supreme Court operates with blinders when it comes to viewing public forum doctrine, in New Jersey an earlier free-speech jurisprudence survives.
Consequently, other states now have an alternative model for defining the real public forum--an inescapable chore as we come upon the new millennium, when the title to formerly public space resides more in more in private hands.
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