## Facts

- Galaxy Towers is a privately owned residential condominium complex in Guttenberg, New Jersey, consisting of about 1,075 units in three high-rise buildings, plus common areas such as hallways, elevators, lobbies, and a parking garage.
- The property is managed by the Galaxy Towers Condominium Association, a nonprofit corporation governed by an elected board of directors; Bernard Furman served as board president.
- The complex includes a commercial shopping area referred to as the Galaxy Mall, which is open to the public and connects to or contains entrances serving the residential towers.
- The Association maintained rules restricting door-to-door canvassing and solicitation in the residential portions of the complex and barring unannounced visits or solicitation at any unit without the owner’s or resident’s permission.
- Security personnel were stationed in lobby and garage areas to monitor entry and enforce building rules.
- Residents of Galaxy Towers comprised a significant share of Guttenberg’s electorate (alleged to be roughly one-third of all registered voters and the large majority of voters in one district), and a polling place for that district was located in the mall area within the complex.
- The Guttenberg Taxpayers and Rentpayers Association (a local political association), Thomas G. Rizzi (a trustee), and Bill Scoullos (a candidate for the local school board) sought to distribute campaign flyers/pamphlets to Galaxy Towers residents in advance of the April 19, 1994 school-board election.
- Plaintiffs alleged that, at times, the Association had used newsletters or other communications to support or oppose local candidates, including in the school-board election at issue.
- The Association refused plaintiffs access to distribute materials in the residential portions of the complex, taking the position that the property was private and that its rules barred such activity.
- On April 4, 1994, plaintiffs filed a Chancery Division complaint and obtained an order to show cause seeking preliminary and permanent injunctive relief to prevent defendants from blocking distribution of their political materials on Galaxy Towers property.
- After an April 15, 1994 order-to-show-cause hearing, the Chancery judge denied interim relief and dismissed the complaint for failure to state a cause of action, reasoning that the property’s main use was residential, there was no meaningful public invitation into the residential areas, and plaintiffs had other methods (such as mail) to reach residents. An order reflecting that ruling was entered April 26, 1994.
- Plaintiffs appealed from both the denial of a preliminary injunction and the dismissal.

## Issues

1. Whether the complaint alleged a viable claim under the New Jersey Constitution for distributing political literature on privately owned condominium property, requiring analysis under *State v. Schmid*.
2. Whether the trial court erred by disposing of the case at the preliminary-injunction stage—denying interim relief and dismissing for failure to state a claim—without a plenary hearing to develop facts needed for the *Schmid* balancing.

## Decision

- The Appellate Division reversed the Chancery Division’s dismissal of the complaint.
- The Appellate Division also reversed the denial of preliminary relief to the extent it rested on resolving the constitutional claim on an incomplete record.
- The matter was remanded for a plenary hearing and further proceedings to develop a full factual record and apply the *State v. Schmid* factors.
- The court did not decide whether plaintiffs ultimately had a right of access; it held only that the claim could not be finally decided on the abbreviated record made on the order to show cause.

## Legal Principles

- Under the New Jersey Constitution, expressive activity on certain private property may be protected after balancing speech interests and property interests under *State v. Schmid*.
- The *Schmid* framework looks to: (1) the nature, purposes, and primary use of the property; (2) the extent and nature of the public’s invitation to use the property; and (3) the purpose of the expressive activity in relation to both the private and public uses of the property.
- A court should not resolve a *Schmid* claim as a matter of law when material facts about the property’s use, access, and the owner’s practices are disputed or not developed; fact-finding may be required before the balancing can be performed.
- Dismissal for failure to state a claim is improper where the pleaded facts, if proven, could support relief under the New Jersey Constitution’s free-speech protections as applied through *Schmid*.
- An order-to-show-cause hearing on interim restraints is not a substitute for a plenary hearing when resolution turns on contested facts bearing on constitutional balancing and the practical operation of the property.

## Conclusion

The Appellate Division held that plaintiffs’ attempt to distribute campaign literature at Galaxy Towers presented substantial state-constitutional questions about speech on private property that depended on facts not developed at the order-to-show-cause stage. Given the complex’s size, the public-facing mall and polling-place allegations, and claims that the Association itself had circulated election-related messages, the court concluded the Chancery Division erred by denying relief and dismissing the complaint on a limited record. The case was remanded for a plenary hearing to develop the evidence needed to apply the *State v. Schmid* balancing test and determine whether, and under what reasonable conditions, plaintiffs could be permitted access for political leafleting.


Guttenberg Taxpayers & Rentpayers Ass’n v. Galaxy Towers Condo. Ass’n, 296 N.J. Super. 101, 686 A.2d 344 (App. Div. 1996)