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Free Speech and Your Community Association: Will the New Jersey Supreme Court’s Ruling in Dublirer v 2000 Linwood Avenue Owners, Inc. Impact Campaigning in Michigan Condominium Association Elections?

In Dublirer v 2000 Linwood Avenue Owners, Inc the New Jersey Supreme Court considered the issue of whether or not an owner in a cooperative had a right to distribute campaign materials in seeking election to the co-op’s board of directors.  The Co-Op had a house rule that barred soliciting and distributing any written materials and the Co-Op denied Mr. Dublirer’s request to distribute campaign materials.  Mr. Dublirer challenged the Co-Op’s rule as unconstitutional and claimed that it violated his free speech rights under the New Jersey Constitution.  The provision of the New Jersey Constitution at issue provides as follows: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.” N.J. Const. Art I, Section 6.  On December 4, 2014, the New Jersey Supreme Court held that while federal law requires state action to invoke the protections of the First Amendment, the New Jersey Constitution did not.  In ruling that Dublirer had right to distribute his campaign materials under the New Jersey Constitution, the Court indicated that the New Jersey Constitution protects against unreasonable or oppressive conduct by private entities, in addition to government entities.

Article I, Section 5 of the Michigan Constitution provides as follows: “Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.”  The language of Article I, Section 5 of the Michigan Constitution is almost identical to that of Article I, Section 6 of the New Jersey Constitution.  However, the Michigan Courts have previously ruled that “the federal and the Michigan constitutional provisions guaranteeing free speech do not extend to private conduct, but have been limited to protection against state action.”  Prysak v RL Polk Co, 193 Mich App 1, 10, 483 NW2d 629, 634 (1992).  Accordingly, it is unlikely that a Michigan Court would disallow a community association from regulating the use of campaign materials on constitutional grounds as community associations are private actors.

 Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country.  He has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2018, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel was named an Up & Coming Lawyer by Michigan Lawyer’s Weekly in 2015, an award given to only 30 attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 480-8758 or kevin@hirzellaw.com.

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kevin@hirzellaw.com

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Hirzel Law has offices in Farmington, Grand Rapids, and Traverse City and services clients throughout the State of Michigan. Mr. Hirzel focuses his practice on condominium law, homeowners association law, and real estate law. He is a fellow in the College of Community Association Lawyers (“CCAL”), a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel formerly served on the CCAL National Board of Governors and is a former member of the Community Associations Institute’s (“CAI”) Board of Trustees, an international organization with over 40,000 members worldwide that is dedicated to improving community associations. Mr. Hirzel has been recognized as a Leading Lawyer in Michigan by Leading Lawyers, a distinction earned by fewer than 5% of all lawyers licensed in Michigan. He has been named a Michigan “Rising Star” in real estate law by Super Lawyers Magazine, a designation is given to no more than 2.5% of the attorneys in Michigan each year. Mr. Hirzel was also named as a “Go-To-Lawyer” in condominium and real estate law by Michigan Lawyer’s Weekly. Hirzel Law was also voted the best law firm in Metro Detroit in the Detroit Free Press Best of the Best awards. He is the Co-Chairman of the State Bar of Michigan’s Real Property Law Section Committee for Condominiums, PUDs & Cooperatives. Mr. Hirzel has authored numerous articles on community association law for publications such as the Michigan Community Association News, Michigan Real Property Review, Macomb County Bar Briefs and the Washington Post. He is also the author of “Hirzel’s Handbook: How to operate a Michigan Condo or HOA”, which is available for purchase on amazon.com. Mr. Hirzel has been interviewed on community association legal issues by various media outlets throughout the country, such as CBS, CNBC, Common Ground Magazine, Community Association Management Insider, the Dan Abrams Show on SiriusXM Radio, the Detroit News, Dr. Drew Midday Live on KABC Radio, Fox Business News, Fox News, HOALeader.com, the Law & Crime Network, Michigan Lawyer’s Weekly, NPR, WWJ News Radio and WXYZ. Mr. Hirzel is a dynamic speaker and frequently lectures on community association law throughout Michigan, as well as nationally at the CAI National Law Seminar, and is a two-time winner of the best manuscript award at the CAI National Law Seminar.

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