On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County.
Approved for Publication December 17, 1996.
Before Judges Shebell, Skillman and Kleiner.
On April 4, 1994, plaintiffs filed a complaint in the Chancery Division and obtained an order for defendants to show cause why they should not be preliminarily and permanently enjoined from preventing plaintiffs from distributing pamphlets or flyers on defendants' property in anticipation of a school board election on April 19, 1994. A hearing on the order to show cause took place on April 15, 1994, at the Conclusion of which the Chancery Judge denied plaintiffs' application for a preliminary injunction and also dismissed the matter for failure to state a cause of action. On April 26, 1994, an order was entered in accordance with the Judge's ruling. On June 7, 1994, plaintiffs filed a notice of appeal.
Defendant Galaxy Towers Condominium Association is a nonprofit corporation that manages condominium property known as Galaxy Towers in Guttenberg. The association is governed by a nine member board of directors, elected by the owners of the condominium units. All of the owners and directors are members of the association. Defendant, Bernard Furman, is the president of the board of directors.
Plaintiff Guttenberg Taxpayers and Rentpayers Association is a nonprofit, unincorporated association involved in political activities in Guttenberg. Plaintiff Thomas G. Rizzi is an association trustee, and plaintiff Bill Scoullos is a candidate for the Guttenberg School Board.
Galaxy Towers is a private, residential property made up of 1075 condominium units located in three high-rise buildings, with related common elements, such as hallways, elevators, lobbies and a parking garage. Security personnel are employed by the condominium association to guard the lobby and garage. There is a shopping center located within the Galaxy Towers complex, known as the Galaxy Mall, owned by a third party. The mall is entirely open to the public and contains entrances to Galaxy Towers. There is a bus stop on the Galaxy Towers property for approximately 100 commuters who utilize a private bus service.
According to the certification of Sanford Simon, vice-president of the condominium association, the public is never invited into or permitted to enter Galaxy Towers without permission. Regulations applicable to all residents prohibit anyone from door-to-door canvassing or solicitation. These regulations also apply to outsiders, thereby preventing anyone from visiting or soliciting at any apartment unannounced or without the permission of an owner or resident. Simon certified that at no time has any political candidate, party or group been granted permission to distribute materials within Galaxy Towers.
The Town of Guttenberg is divided into six voting districts. Residents of Galaxy Towers constitute approximately thirty percent of the total number of registered voters in Guttenberg, and approximately eighty-seven percent of the registered voters in District Six. The polling place for this district is located in the Galaxy Mall.
The condominium association from time to time, in its regular newsletter and special notices and bulletins, endorses candidates for local elective office. The record is unclear as to whether the association distributes these materials by mail, door-to-door, or by leaving the material in a central location in the complex. *fn1
In April 1993, plaintiff Rizzi sought the association's consent to distribute political literature door-to-door in Galaxy Towers by leaving materials under the doors of the units without disturbing the residents and also to leave such materials at the concierge desk in each lobby of the towers. The association denied this request. Rizzi made a similar request in December 1993, and was denied. After the taxpayers' association fielded a slate of candidates for the April 1994 school board election, it sought permission to place its material on tables in the lobbies and to go door-to-door. It appears that before the hearing on the order to show cause, the condominium association distributed a flyer to unit owners endorsing several candidates in the school board election.
The Chancery Judge rejected plaintiffs' request for a preliminary injunction based on his application of the tripartite test enunciated by our Supreme Court in State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub. nom Princeton University v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982). The Judge found that the normal or primary use of the property was for residential purposes and that there was no indication that there had been any public invitation to use the property. He also found that this was not a case where plaintiffs had a "right of reply" because the distribution of election material by the condominium association was, in effect, a distribution by the unit owners themselves. He added that plaintiffs had a "reasonable alternative"--namely, distributing their literature by mail to the unit owners of the condominium.
Although the school board election in question has already been held, the issues raised in this appeal will not be considered moot as they present matters of great public importance. Oxfeld v. New Jersey State Board of Education, 68 N.J. 301, 303, 344 A.2d 769 (1975). Further, the wrongs alleged are capable of repetition and would evade review if dismissed by us as moot. Cain v. New Jersey State Parole Board, 78 N.J. 253, 255, 394 A.2d 327 (1978); Alderwood Assoc. v. Wash. Envir. Council, 96 Wash. 2d 230, 635 P.2d 108, 110-11 (Wash. 1981) (court addressed issue of the right of access to shopping malls for purpose of collecting petition signatures even though the initiative in question had already been voted on because of the continuing and substantial interest in a question of a public nature likely to recur, and the need for authoritative determination).
Plaintiffs claim that under the test enunciated by our Supreme Court to ascertain the parameters of the right of free speech upon private property in New Jersey and under the common law, they should be given the opportunity to respond to electioneering by a residential association that represents approximately thirty percent of the municipal electorate. Plaintiffs maintain that the public interest in allowing citizens to be exposed to both sides of a political controversy is sufficient to allow them to go onto private property for the limited purpose of exercising their "right of reply," once that property is used by others for the same purpose. Plaintiffs ask that we reverse and instruct the trial ...