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COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court

No. SJ-2020-

SUFFOLK, ss

________________________________

MITCHELL MATORIN and LINDA SMITH

Petitioners

v.

TIMOTHY SULLIVAN, in his Official Capacity as Chief


Justice of the Housing Court Department of the Trial
Court, PAUL C. DAWLEY, in his Official Capacity as
Chief Justice of the District Court Department of the
Trial Court, JUDITH FABRICANT, in her Official
Capacity as Chief Justice of the Superior Court
Department of the Trial Court, EXECUTIVE OFFICE OF
HOUSING AND ECONOMIC DEVELOPMENT, and the COMMONWEALTH
OF MASSACHUSETTS

Respondents.

________________________________

EMERGENCY PETITION FOR RELIEF PURSUANT TO G.L. c. 211,


§ 3, G.L. c. 214, § 1, and G.L. c. 231A, § 1

________________________________

Richard D. Vetstein, Esq. Jordana Roubicek, Esq.


BBO # 637681 BBO# 667842
Vetstein Law Group, P.C. 134 Main Street
945 Concord Street Watertown, MA 02472
Framingham, MA 01701 Tel: (617) 617-6669
Tel: (508) 620-5352 jordana@jrglegal.com
rvetstein@vetsteinlawgroup.com
TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . iii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . .1

PETITIONERS. . . . . . . . . . . . . . . . . . . . . 3

RESPONDENTS. . . . . . . . . . . . . . . . . . . . . 6

REASONS WHY RELIEF IS APPROPRIATE


IN THIS COURT PURSUANT TO
G.L. C. 211, § 3, G.L. c. 214, § 1,
and G.L. c. 231A, § 1. . . . . . . . . . . . . . . . 8

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . 10

STANDARD OF REVIEW. . . . . . . . . .. . . . . . . 30

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 31

A. The Act Violates the Separation of Powers


Between Branches Under Article 30 of the
Declaration of Rights. . . . . . . . . . . . . 31

B. The Act Violates the Petitioners’


Constitutional Right to Access
the Courts Under Article 11 and 29 of Our
Declaration of Rights.. . . . . . . . . . . . 38

C. The Act Is An Unconstitutional Infringement


on the Plaintiffs’ Right to Petition
under the First Amendment. . . . . . . . . . . 42

D. The Act and Regulations Violate


Petitioners’ Free Speech Rights. . . . . . . . 45

E. The Regulations Compel Petitioners’ Speech


In Violation of the First Amendment. . . . . . 52

F. The Act Operates as a Temporary


Regulatory Taking of Real Estate Without Just
Compensation In Violation of Article 10 of the
Declaration of Rights and the Fifth
Amendment of the U.S. Constitution. . . . . . .55

i
G. The Act Is An Unconstitutional Impairment of
Petitioners’ Contract Rights Under The
Contracts Clause of the United State
Constitution. . . . . . . . . . . . . . . . . 58

H. Petitioners Will Suffer Irreparable Harm


If Injunctive Relief Is Not Granted. . . . . .62

I. Injunctive Relief Will Serve the


Public Interest. . . . . . . . . . . . . . . .68

CONCLUSION AND RELIEF REQUESTED. . . . . . . . . . 70

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . .73

ii
TABLE OF AUTHORITIES
CASES

ACA Int'l v. Healey, No. CV 20-10767-RGS,


2020 WL 2198366 (D. Mass. May 6, 2020). . . 44, 47, 51
Armstrong v. United States, 364 U.S. 40,
49 (1960). . . . . . . . . . . . . . . . . . . . . .57

Blair v. Dep't of Conservation & Recreation,


457 Mass. 634, 641 (2010). . . . . . . . . . . . . 55
Bower v. Bournay-Bower, 469 Mass. 690 (2014). . .39-40

Bulldog Inv'rs Gen. P'ship v. Sec. of


Commonwealth, 460 Mass. 647, 669–70 (2011). . . 48, 52
Brach v. Chief Justice of the District Court
Dept., 386 Mass. 528, 535 (1982). . . . . . . . . . 33

Campbell v. Boston Hous. Auth., 443 Mass. 574 581


(2005). . . . . . . . . . . . . . . . . . . . . 58, 59

Central Hudson Gas & Elec. Corp. v. Public Serv.


Comm’n, 447 U.S. 557, 561 (1980). . . . . . . . 47, 48

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226


(1897). . . . . . . . . . . . . . . . . . . . . . . 55

Commonwealth v. Cole, 468 Mass. 294, 301 (2014). . 31

Committee for Public Counsel Services v.


Chief Justice of the Trial Court, 484 Mass. 431
(SJC-12926) (Apr. 3, 2020). . . . . . . . . . . . . 9

DeJonge v. Oregon, 299 U.S. 353 (1937). . . . . . . 42

Duracraft Corp. V. Holmes Products Corp., 427 Mass.


156 (1998). . . . . . . . . . . . . . . . . . . . . 43

Doe v. Sex Offender Registry Bd., 459 Mass. 603


(2011). . . . . . . . . . . . . . . . . . . . . . . 35

Ellis v. Department of Indus. Accs., 463 Mass. 541


(2012). . . . . . . . . . . . . . . . . . . . . . . 35

First Justice of the Bristol Div. of the

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Juvenile Court Dep’t v. Clerk–Magistrate
of the Bristol Div. of the Juvenile Court Dep’t,
438 Mass. 387, 396 (2003). . . . . . . . . . . .32, 35

Goldstein v. Galvin, SJC-12931 (Apr. 17, 2020). . . 9

Goodridge v. Department of Public Health, 440


Mass. 309 (2003). . . . . . . . . . . . . . . . . . 63

Haas v. Spencer, 30 Mass. L. Rptr. 623 (Mass.


Super. Ct. Dec. 11, 2012). . . . . . . . . . . . . 39

Home Building & Loan Association v.


Blaisdell, 290 U.S. 398 (1934). . . . . . . . . 59, 60

Jacobson v. Massachusetts, 197 U.S. 11 (1905). . . .65

Janus v. Am. Fed’n of State, Cty., & Mun.


Employees, Council 31, 138 S. Ct. 2448 (2018). . . 52

John T. Callahan & Sons, Inc. v. City of Malden,


430 Mass. 124 (1999). . . . . . . . . . . . . . . . 31

Maceira v. Pagan, 649 F.2d 8 (1st Cir. 1981). . . . 63

Massachusetts Community College Council v.


Commonwealth, 420 Mass. 126 (1995). . . . . . . 59, 61

McCarthy v. Tobin, 429 Mass. 84 (1999). . . . . . . 64

McDonald v. Smith, 472 U.S. 479 (1985). . . . . . .43

NAACP v. Button, 371 U.S. 415 (1963) .. . . . . . . 43

National Inst. of Family & Life Advocates v.


Becerra, 138 S. Ct. 2361 (2018). . . . . . . . . . .54

Nyer v. Munoz-Mendoza, 385 Mass. 184, 188 (1982). .66

Opinion of the Justices, 234 Mass. 612 (1920). . . .35

Packaging Industries Group v. Cheney, 380 Mass.


609 (1980). . . . . . . . . . . . . . . . . . . . . 30

Querubin v. Com., 440 Mass. 108 (2003). . . . . . . 32

iv
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218
(2015). . . . . . . . . . . . . . . . . . . . . . . 46

Shak v. Shak, 484 Mass. 658 (May 7, 2020). . . . . .47

Sheriff of Middlesex Cty v. Commissioner of


Correction, 383 Mass. 631 (1981). . . . . . . . . . 34

Sindicato Puertorriqueno de Trabajadores v.


Fortuno, 699 F.3d 1 (1st Cir. 2012). . . . . . . . . 63

T&D Video, Inc. v. City of Revere, 423 Mass. 577


(1996). . . . . . . . . . . . . . . . . . . . . . . 63

Town of Brookline v. Goldstein, 388 Mass. 443


(1983) . . . . . . . . . . . . . . . . . . . . . . .43

Town of Hanover v. New England Regional


Council of Carpenters, 467 Mass. 587 (2014). . . . .43

United Mine Workers of Am. v. Illinois State


Bar Ass’n, 389 U.S. 217 (1967). . . . . . . . . . . 43

United States v. Bollman, 1 Cranch, C.C. 373


(D.D.C. 1807). . . . . . . . . . . . . . . . . . . . 1

United States Trust Co. v. New Jersey, 431 U.S. 1


(1977). . . . . . . . . . . . . . . . . . . . . . . 58

Ventrice v. Ventrice, 87 Mass. App. Ct.


190 (2015). . . . . . . . . . . . . . . . . . . .38-40

W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935). 61

Zauderer v. Office of Disciplinary Counsel,


471 U.S. 626 (1985). . . . . . . . . . . . . . . . 54

CONSTITUTIONAL PROVISIONS

Mass. Const. Pt. 1, art. 10. . . . . . . . . . . 56

Mass. Const. Pt. 1, art. 11. . . . . . . . . . . 38

Mass. Const. Pt. 1, art. 29. . . . . . . . . 2, 38

Mass. Const. Pt. 1, art. 30. . . . . . . . . 2, 31

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U.S. Const. 1st Amend. . . . . . . . . . . . . 2, 42

U.S. Const. 5th Amend. . . . . . . . . . . . . 2, 56

U.S. Const. Art. 1, Section 10, Clause 1


(Contracts Clause). . . . . . . . . . . . . . 2, 59

STATUTES

Chapter 65 of the Acts of 2020. . . . . . . . passim

G.L. c. 93A. . . . . . . . . . . . . . . . . . . . 54

G.L. c. 184, § 18. . . . . . . . . . . . . . . . . 41

G.L. c. 186, § 11. . . . . . . . . . . . . . . 41, 50

G.L. c. 186, § 12. . . . . . . . . . . . . . . 41, 50

G.L. c. 186, §11-13. . . . . . . . . . . . . . 41, 49

G.L. c. 239, § 1. . . . . . . . . . . . . . . . . 41

G.L. c. 211, § 3. . . . . . . . . . . . . . . . . 9

G.L. c. 214, § 1. . . . . . . . . . . . . . . . . 9

G.L. c. 231, § 6F. . . . . . . . . . . . . . . . .43

G.L. c. 231, § 59H. . . . . . . . . . . . . . . . 43

G.L. c. 231A, § 1. . . . . . . . . . . . . . . . .9

G.L. c. 239, §1. . . . . . . . . . . . . . . . . . 41

G.L. c. 239, §9-10. . . . . .. . . . . . . . . . . 68

REGULATIONS

400 C.M.R. 5.0: COVID-19 Emergency


Regulations. . . . . . . . . . . . . . . . . . passim

BILLS

H.B. 4647. . . . . . . . . . . . . . . . . . . . 14,15

H.B. 4624. . . . . . . . . . . . . . . . . . . . . 15

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EXECUTIVE ORDERS

Executive Order No. 591 Declaration of a State of


Emergency to Respond to COVID-19
(March 10, 2020). . . . . . . . . . . . . . .10, 59

COVID-19 Order No. 13. . . . . . . . . . . . . . 11

COVID-19 Order No. 21. . . . . . . . . . . . . . 11

DPH Public Health Advisories


issued on March 24, 2020. . . . . . . . . . . . 12

COVID-19 Order No. 30. . . . . . . . . . . . . . 11

COVID-19 Order No. 30. . . . . . . . . . . . . . 11

COVID-19 Order No. 31. . . . . . . . . . . . . . 11

COVID-19 Order No. 33. . . . . . . . . . . . . . 11

Order Prohibiting Gatherings of More


Than 25 People and On-Premises Consumption
of Food or Drink (March 15, 2020). . . . . . . . 11

STANDING ORDERS

SJC Order In Re: COVID-19 (Coronavirus) Pandemic


Regarding Empanelment of Juries. . . . . . . . . . 12

SJC Order OE-144 (Apr. 27, 2020). . . . . . . . . .14

SJC Order OE-144 (Updated May 26, 2020). . . . . . 14

Housing Court Standing Order 2-20. . . . . . . . . 13

Housing Court Standing Order 3-20. . . . . . . . . 13

Housing Court Standing Order 4-20. . . . . . . . . 14

Housing Court Standing Order 5-20. . . . . . . . 26-27

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COURT RULES
Unif. Summ. Proc. R. 1 . . . . . . . . . . . . . . 66
Unif. Summ. Proc. R. 2(d). . . . . . . . . .41, 49, 67

SECONDARY SOURCES

Adam Newton, “Freedom of Petition Overview,”


Freedom Forum Institute (Oct. 10, 2002). . . . . . 42

viii
INTRODUCTION

“The constitution was made for times of commotion. . .


Dangerous precedents occur in dangerous times. It
then becomes the duty of the judiciary calmly to poise
the scales of justice, unmoved by the arm of power,
undisturbed by the clamor of the multitude.”

- Circuit Chief Judge William Cranch, United States v.


Bollman, 1 Cranch, C.C. 373 (D.D.C. 1807).

Petitioners are rental property owners in the

Commonwealth who seek a temporary restraining order

and preliminary injunction on an emergency basis and

expedited briefing schedule, to enjoin the enforcement

of Chapter 65 of the Acts of 2020, An Act Providing

for a Moratorium On Evictions and Foreclosures During

the COVID-19 Emergency (hereinafter, “the Act” or

“Eviction Moratorium”) (attached as Exhibit A),1 and

the regulations promulgated thereunder by the

Executive Office of Housing and Economic Development

(EOHED). See 400 C.M.R. 5.0: COVID-19 Emergency

Regulations (“Regulations”), attached as Exhibit B.2

1 An official version of Chapter 65 of the Acts of 2020


can be found at on the Legislature’s website:
https://malegislature.gov/Laws/SessionLaws/Acts/2020/C
hapter65.
2 An official version of the Regulations can be found
on the Mass.gov website at:
https://www.mass.gov/regulations/400-CMR-50-covid-19-
emergency-regulations.

1
As discussed below, the Petitioners are likely to

succeed on the merits of showing the Act is

unconstitutional in violation of Articles 30

(Separation of Powers), and 11 and 29 (Access to

Courts) of the Massachusetts Declaration of Rights, as

well as the right to petition the judiciary under the

U.S. Constitution. The Act and Regulations also

violate Petitioners’ free speech rights under the

Declaration of Rights and First Amendment of the U.S.

Constitution. Further, the Act operates as a taking

without just compensation under Article 10 of the

Declaration of Rights and its federal counterpart, the

Fifth Amendment of the U.S. Constitution. Lastly, the

Act violates the U.S. Constitution’s Contracts Clause

as it unconstitutionally impairs Petitioners’ existing

leases.

The Act provides for an unprecedented and

indefinite shutdown of virtually every future and

pending eviction case in the Commonwealth.

Petitioners can easily show irreparable harm on behalf

of themselves and all other similarly situated rental

property owners. Aside from the numerous

constitutional violations asserted and established by

the Petitioners, the state has eviscerated the core

2
remedy in their leases – the right to evict. The

operation of the Act obligates rental property owners

to pay their own mortgages, real estate taxes,

insurance, and water/sewer used by non-paying tenants,

and to maintain their properties and comply with the

state sanitary code, while being effectively deprived

of the revenue required to do those things. Given the

unpredictable nature of the COVID-19 pandemic, this

one-sided obligation and burden will continue

indefinitely and quite possibly into 2021. Many small

rental property owners, especially those on fixed

income like Petitioner Smith, rely on rents to afford

to live in their own homes.

Lastly, the public interest favors striking down

this facially unconstitutional statute and

regulations. As this Court held in two recent COVID-

19 related cases, fundamental constitutional rights

are not quarantined during a global pandemic.

PETITIONERS

Petitioner, Mitchell Matorin (“Matorin”) is the

owner of the rental property located at 162 Ingleside

Avenue #A (First Floor), Worcester, Massachusetts

(“162 Ingleside”). Matorin purchased 162 Ingleside on

3
or about September 27, 2019, at which time he assumed,

as lessor, an existing tenancy at will lease agreement

between the prior owner, A&A Realty LLC, and two

tenants.3 See Affidavit of Mitchell Matorin, attached

hereto as Exhibit C. The two tenants repeatedly paid

their $1,200/month rent late before making their last

payment for January 2020, also late. When the tenants

did not make their rental payment on February 1, 2020,

on February 19, 2020, Matorin had a constable deliver

a 14 day notice to quit to the tenants for non-payment

of rent. Id. With the rent remaining unpaid, on

March 9, 2020, a constable served the two tenants with

a Summary Process Summons and Complaint for non-

payment of rent, which was filed with the Central

(Worcester) Housing Court on March 11, 2020. See

Matorin Aff., Ex. C. The original trial date of March

26, 2020 was rescheduled by the Housing Court under

its applicable COVID-19 Standing Order. See Docket,

Central Housing Court, attached to Matorin Aff., Ex.

D. Pursuant to the operation of the Eviction

3 For privacy reasons concerning their financial


status, the identity of Matorin’s tenants have been
redacted from this brief and his affidavit. If this
Court desires unredacted documentation, Petitioners
can file same under seal/impoundment.

4
Moratorium Act, Mr. Matorin’s non-payment summary

process case falls within the definition of a “non-

essential eviction,” and is thus indefinitely

suspended until the expiration of the Act. To that

end, the Housing Court on April 27, 2020 issued a

notice reflected on the case docket that the case was

“Suspended COVID-19 Reschedule TBD.” Mr. Matorin has

not received any rent from his tenants, and is

currently owed $4,800 through May 31, 2020.

Petitioner, Linda Smith (“Smith”) is an

individual with a principal place of residence at 5

Glendale Road, Hudson, MA 01749. Ms. Smith is a small

rental property owner of the premises located at 11

Harvard Terrace #3, Allston, Massachusetts, which is

currently occupied by a tenant, and which, until late

March, 2020, was also occupied by two other

tenants. After the two other tenants vacated the

premises, the remaining tenant stated to Ms. Smith

that he did not have to pay rent in April because “the

Governor said I do not have to.” See Affidavit of

Linda G. Smith, attached hereto as Exhibit D. As of

June 1, 2020, the total arrears owed to Ms. Smith will

be $6,720. See id. Pursuant to the operation of the

Eviction Moratorium Act, Smith desires to, but is

5
prohibited from, serving on her tenant a 14 day Notice

to Quit for Non-Payment of Rent. With the exception

of a small monthly social security stipend, Smith

relies solely on rental income for her livelihood.

RESPONDENTS

Respondent, Hon. Timothy Sullivan is the Chief

Justice of the Housing Court Department of the Trial

Court (“Housing Court”), with a principal place of

business located at Edward W. Brooke Courthouse, 24

New Chardon Street, 6th Floor, Boston, MA 02114.

Chief Justice Sullivan is responsible for all

oversight and operations of the Housing Court and its

Clerk’s Office of its several divisions and sessions

with respect to court filing operations. The Housing

Court has concurrent jurisdiction over summary process

actions under G.L. c. 185C, § 3.

Respondent, Hon. Paul W. Dawley is the Chief

Justice of the District Court Department of the Trial

Court (“District Court”), with a principal place of

business located at Edward W. Brooke Courthouse, 24

New Chardon Street, 1st Floor, Boston, MA 02114.

Chief Justice Dawley is responsible for all oversight

and operations of the District Court and its Clerk’s

Office of its several divisions with respect to court

6
filing operations. The District Court has concurrent

jurisdiction over summary process actions under G.L.

c. 239, § 2.

Respondent, Hon. Judith Fabricant is the Chief

Justice of the Superior Court Department of the Trial

Court (“Superior Court”), with a principal place of

business located at the Suffolk County Courthouse,

Three Pemberton Square, 13th Floor, Boston, MA 02108.

Chief Justice Fabricant is responsible for all

oversight and operations of the Superior Court and its

Clerk’s Office of its several divisions and sessions

with respect to court filing operations. The Superior

Court has jurisdiction over certain summary process

actions under G.L. c. 239, § 2.

Respondent, Executive Office of Housing and

Economic Development (“EOHED”) is a body politic and

agency of the Commonwealth of Massachusetts under the

oversight of the executive branch, with a principal

place of business located at One Ashburton Place,

Boston, MA 02108.

Respondent, the Commonwealth of Massachusetts

(“Commonwealth” or the “State”) is a body politic and

a duly organized and incorporated state in the United

States of America. The Commonwealth is named for

7
purposes herein so that complete and final relief can

be granted, as well as any award of damages or just

compensation pursuant to G.L. c. 79, G.L. c. 12, §

11I, and 42 U.S.C. § 1983.

REASONS WHY RELIEF IS APPROPRIATE IN THIS COURT


PURSUANT TO G.L. C. 211, § 3, G.L. c. 214, § 1, and
G.L. c. 231A, § 1

This Petition challenges the constitutionality of

Chapter 65 of the Acts of 2020, An Act Providing for a

Moratorium On Evictions and Foreclosures During the

COVID-19 Emergency (hereinafter, “the Act” or

“Eviction Moratorium”) and the regulations promulgated

thereunder, 400 C.M.R. 5.0: COVID-19 Emergency

Regulations (“Regulations”). The Eviction Moratorium

– which closes all of the Commonwealth’s courthouses

to virtually all rental property owners who have legal

grounds to evict a tenant – imposes an unprecedented

interference with the core functions and

administration of the Trial Court in violation of

Article 30 of the Declaration of Rights, and is a

serious violation of Petitioners’ fundamental state

and federal constitutional rights.

Jurisdiction over this Petition is proper on

three separate bases –

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1. The Supreme Judicial Court’s power of general

superintendence of the judiciary and over all

Trial Courts (courts of inferior jurisdiction)

under G.L. c. 211, § 3

2. “Original and concurrent jurisdiction of all

cases and matters of equity cognizable under the

general principles of equity jurisprudence” under

G.L. c. 214, § 1

3. Jurisdiction under the Declaratory Judgment Act,

G.L. c. 231A, § 1, of any claim seeking “binding

declarations of right, duty status and other

legal relations sought thereby.

This Court recently invoked such jurisdiction

over two COVID-19 related emergency petitions, in

Goldstein v. Galvin, SJC-12931 (Apr. 17, 2020), and

Committee for Public Counsel Services v. Chief Justice

of the Trial Court, 484 Mass. 431 (SJC-12926) (Apr. 3,

2020). This case raises both a constitutional

challenge to a COVID-19 related statute as in

Goldstein, along with a claim of irreparable harm and

emergency relief as in Committee for Public Counsel.

Jurisdiction should be granted over this case due to

the important and serious constitutional issues

9
raised, and the broad impact to the public interest

raised in this Petition.

FACTUAL BACKGROUND

The COVID-19 Pandemic

On March 10, 2020, when Massachusetts reported

less than 500 COVID-19 cases, Governor Baker declared

a State of Emergency. See Executive Order No. 591.

Five days later, Gov. Baker ordered the closing of all

public and private schools, banned social gathering of

over more than 25 people, and prohibited on-premises

consumption of food and drink at restaurants and bars.

See Order Prohibiting Gatherings of More Than 25

People and On-Premises Consumption of Food or Drink

(March 15, 2020).4 A week later, on March 23, 2020,

the Governor issued a “Stay At Home” order, closing

all “non-essential” businesses and tightened the

social gathering restriction to no more than 10

persons. See COVID-19 Order No. 135 and 21.6 The

4 See https://www.mass.gov/doc/march-15-2020-large-
gatherings-25-and-restaurants-order/download
5 See https://www.mass.gov/doc/march-23-2020-essential-
services-and-revised-gatherings-order/download
6 See https://www.mass.gov/doc/march-31-2020-essential-
services-extension-order/download

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Department of Public Health issued advisories that

citizens only leave homes for essential errands, and

to practice social distancing by staying six feet

apart from others. See DPH Public Health Advisories

issued on March 24, 2020.7 On April 28, 2020, Gov.

Baker extended his order closing all non-essential

businesses and prohibitions of gatherings over 10

persons, to May 18, 2020. See COVID-19 Order No. 30.8

On May 1, Gov. Baker issued an order requiring that

people wear masks in public where social distancing is

not feasible. See COVID-19 Order No. 31.9 Effective

on May 25, 2020, Gov. Baker issued a “phased re-

opening” of the workplaces, lifting many of the

restrictions on business operations. See COVID-19

Order No. 33.10

7 See https://www.mass.gov/news/safer-at-home-advisory
8 See https://www.mass.gov/doc/signed-second-extension-
of-essential-services-order/download
9 See https://www.mass.gov/doc/may-1-2020-masks-and-
face-coverings/download
10See https://www.mass.gov/doc/may-18-2020-re-opening-
massachusetts-order/download

11
Court System Response To COVID-19 Pandemic

While Gov. Baker was taking executive action in

response to the pandemic, court leaders were also

taking unprecedented action in response to the virus.

The Supreme Judicial Court, along with the Appeals

Court and all Trial Court Departments, have issued a

series of Orders, Emergency Administrative Orders, and

Standing Orders to address the COVID-19 impact on the

judiciary. On March 13, 2020, this Court issued the

first of several COVID-19 orders that immediately

postponed all empanelments in jury trials, in both

criminal and civil cases, until April 21, 2020. See

SJC Order In Re: COVID-19 (Coronavirus) Pandemic

Regarding Empanelment of Juries. This Court also

ordered that persons who have symptoms of, or any

exposure to, COVID-19 may not enter a courthouse or

other state court facility, including probation

offices, until the SJC determines that it is safe to

remove the restrictions. See SJC Order OE-144.

Following this Court’s initial orders, all Trial Court

Departments issued their own orders significantly

limiting all in-person contact and access into

courthouse facilities.

12
Following the SJC’s directive, on March 17, 2020,

the Housing Court issued a series of new COVID-19

Standing Orders. The goal of the orders was to “where

practicable, to minimize the foot traffic in each

courthouse or confined quarters within the Housing

Court Clerks’ Offices and courtrooms. The goal is to

promote “social distancing,” thereby minimizing the

risk of exposure to court staff and litigants. See

Housing Court Standing Order 2-20. With respect to

docket control, the Housing Court continued all non-

emergency court events to April 21, 2020, and would

hear only emergency matters, preferably telephonically

or through video conferencing. See Housing Court

Standing Orders 2-20, 3-20. “Emergency matters” were

defined to include applications for injunctive relief,

temporary restraining orders where a complaint

involves a lockout, condemnation, no heat, no water,

and/or no utilities; conduct and or conditions

endangering the health safety and welfare of

residential occupants and others; stay of levy on an

execution; or where access is required to address an

emergency (e.g., burst water pipe, gas fumes, etc.).

Housing Court Standing order 3-20. As the COVID-19

crisis worsened through March, the Housing Court

13
extended its previous standing orders and de facto

closure through May 4, 2020. See Housing Court

Standing Order 4-20.

With infections and deaths steadily increasing

through the month of April, on April 27, 2020, this

Court ordered all courthouses closed to the general

public, except for enumerated emergency matters, until

at least June 1, 2020. See SJC Order OE-144 (Apr. 27,

2020). All criminal and civil jury trials are now

postponed until no earlier than September 8, 2020.

See SJC Order OE-144 (Updated May 26, 2020). Each

Trial Court has been authorized to conduct hearings of

non-emergency matters by virtual means such as through

telephonic or video-conferencing technology. See id.

Lastly, all deadlines set forth in statutes, court

rules, standing orders and tracking orders set to

expire between March 16 – June 1, 2020, are tolled

until July 1, 2020, with the rule providing for a new

calculation formula. See id. § 13.

The Eviction Moratorium Act

In early March 2020, in response to the financial

impact of COVID-19 on tenants, legislators began

considering a proposal to enact a moratorium on

evictions. The legislation was spearheaded by tenant

14
advocacy groups such as City Life/Vida Urbana who

organized a well-coordinated online and social media

campaign.11 There is no legislative record of any

public hearing or testimony taken on the bill, despite

the fact that it constitutes one of the most

unprecedented legislative actions concerning rental

housing in Massachusetts history.12 There is no record

of any study or committee report as to the impacts of

the Act’s unprecedented shifting of the COVID-19

financial burden from financially distressed tenants

to similarly distressed rental property owners.

Moreover, while state legislators were working on this

bill, they were largely working from home via e-mail

and conducting legislative business in remote

“informal” sessions.13 According to Provincetown State

Rep. Sarah Peake, the Legislature conducted these

“informal” sessions every 72 hours, which do not

11 See
http://www.clvu.org/petition_covid19_eviction_moratori
um
12 See H.B. 4647 (Bill History) found at

https://malegislature.gov/Bills/191/H4647.
13See Mass. State Lawmakers Work from Home Amid
Coronavirus Outbreak, NBC Boston, April 7, 2020 (found
at https://www.nbcboston.com/news/coronavirus/mass-
state-lawmakers-work-from-home-amid-coronavirus-
outbreak/2104230/ (last checked 5/15/20).

15
require roll call votes, and specifically pointed to

the Eviction Moratorium bill as an example of a piece

of legislation which went through this expedited,

truncated process.14 Citing concerns with this

process, Rep. Sean Dooley (R- Norfolk) objected to the

Act during one of the informal sessions, which under

House rules, suspended debate on the bill for that

day.15 Rep. Dooley eventually stood down, and the bill

was enacted and laid before the Governor on Friday

April 17, 2020 and signed into law the following

Monday, April 20, 2020. The bill went from filing in

the House to the Governor’s pen in only twenty-five

(25) days. See H.B. 4624 (first bill filed 3/26/20);

H.B. 4647 (final bill signed by Gov. Baker on

4/20/20).

Provisions of the Eviction Moratorium Act

The overall intent of the Act with respect to the

moratorium on evictions is to prevent the filing, and

suspend all pending, residential and commercial

summary process cases in the Commonwealth during the

14See id.
15See Emergency Coronavirus Housing Bill Takes Detour
in Mass. House, State House News Service (Apr. 17,
2020) found at
https://www.wbur.org/news/2020/04/17/coronavirus-
housing-bill-massachusetts-stalled.

16
COVID-19 Emergency, with certain very limited

exceptions. The Act, read as a whole, is clearly

directed at the financial impact of the COVID-19

crisis on tenants and homeowners, rather than safety

concerns within courthouse buildings. Indeed, one of

the lead legislative sponsors of the bill has boasted

publicly on Twitter that the Act is the “strongest

eviction [] moratorium in the nation.”16

The Act stops eviction cases through several

means. First, the Act creates a heretofore

unrecognized new class of summary process case –

defined as a “non-essential eviction,” which cannot be

filed or prosecuted in any court in the Commonwealth.

A non-essential eviction includes four classes of

summary process cases:

• All non-payment cases

• All post-foreclosure cases

16See Cambridge Representative Mike Connolly on his


public Twitter page: “When organizers, advocates and
legislators work together, good things are possible.
@Shelfterforce profiles the work @RepKevinHonan and I
did in partnership with @Citylife_Clvu and others to
pass the nation’s strongest Eviction and Foreclosure
Moratorium.”
https://twitter.com/MikeConnollyMA/status/126420994039
2153088?s=20

17
• All “no-fault” cases17

• All “for cause” cases except those which do

not involve or include allegations of

criminal activity or a lease violation “that

may impact the health and safety of other

residents, health care workers, emergency

personnel, persons lawfully on the subject

property, or the general public.”18

A “non-essential eviction,” includes both residential

units and certain commercial premises, newly defined

as involving a “small business premises unit.” The

Act broadly defines a “small business premises unit”

as – “a premises occupied by a tenant for commercial

purposes, whether for-profit or not-for-profit;

provided, however, that a small business premises unit

shall not include a premises occupied by a tenant if

the tenant or a party that controls, is controlled by

17 A so-called “no-fault case” would include evictions


based on the expiration of a written lease, a holdover
tenant, a tenant at sufferance, and the termination of
a tenancy at will.
18 Based upon the undersigned counsel’s participation

in recent Bench/Bar Zoom Seminars attended by Housing


Court justices, “for cause” cases which are considered
“essential” will not include cases relating to smoking
in a unit in violation of a lease, noise disturbances,
and allowing authorized occupants (with unknown COVID-
19 infection status) to occupy a unit in violation of
a lease.

18
or is in common control with the tenant: (i) operates

multi-state, (ii) operates multi-nationally; (iii) is

publicly traded; or (iv) has not less than 150 full-

time equivalent employees.”

The Act then imposes a total prohibition of all

new filings in any “non-essential eviction” and a de

facto stay of all pending non-essential eviction

cases, providing as follows:

Notwithstanding chapter 186 or 239 of the General


Laws or any general or special law, rule,
regulation, or order to the contrary, a court
having jurisdiction over an action for summary
process pursuant to said chapter 239, including
the Boston municipal court department, shall not,
in an non-essential eviction for a residential
dwelling unit or small business premises unit:
(i) accept for filing a writ, summons or
complaint; (ii) enter a judgment or default
judgment for a plaintiff for possession or a
residential dwelling unit or small business
premises unit, (iii) issue an execution for
possession of a residential dwelling unit or
small business premises unit; (iv) deny, upon the
request of a defendant, a stay of execution, or
upon the request by a party, a continuance of a
summary process case; or (v) schedule a court
event, including a summary process trial. St.
2020, c. 65, § 3(b)

The Act also prohibits the levy and enforcement

of any execution for possession (also known as move-

out orders) for both residential and commercial

properties, providing as follows: “A sheriff, deputy

sheriff, constable or other person shall not enforce

19
or levy upon an execution for possession for a non-

essential eviction of a residential dwelling unit or

small business premises unit.” See Act, §3(d).

The Act does not stop at banning and suspending

virtually every eviction in Massachusetts. It also

prohibits residential rental property owners from

exercising basic contractual rights through a total

ban against the termination of any tenancy and the

sending of “any notice, including a notice to quit,

requesting or demanding that a tenant of a residential

dwelling unit vacate the premises.” See Act, § 3(a)

(“Notwithstanding chapter 186 or chapter 239 of the

General Laws or any other general or special law,

rule, regulation or order to the contrary, a landlord

or owner of a property shall not, for the purposes of

a non-essential eviction for a residential dwelling

unit: (i) terminate a tenancy; or (ii) send any

notice, including a notice to quit, requesting or

demanding that a tenant of a residential dwelling unit

vacate the premises.”)

The Act further prohibits the imposition of any

late fees for the non-payment of rent in a residential

or small business unit premises provided that the

tenant provides the rental property owner with notice

20
and documentation of a COVID-19 related financial

hardship. See Act, §3(e).

The Act also authorizes rental property owners to

utilize a tenant’s last month rent deposit as a short-

term loan to pay for mortgage, utility and property

upkeep expenses. If invoked, a rental property owner

must pay back and account for the deposit, plus all

accrued interest, at the end of the tenancy or lease.

See Act, §4(a). Petitioners believe that this

provision will be seldomly used by rental property

owners because, among other things, a last month rent

deposit is unlikely to cover even one month of actual

carrying costs, and it must be paid back with

interest. Lastly, the Act does provide that subject

to the moratorium and notice prohibition provisions,

it does not suspend the underlying obligation to pay

rent or a rental property owner’s ability to recover

rent. See Act, §3(f).

Although not part of this Petition, the Act

provides for a moratorium on foreclosures for

residential property only.19 See Act, §5(a).

19This provision does not apply to either of the


Petitioners because their rental properties are not
their primary residence. Accordingly, they do not
benefit from the forbearance benefits under the Act,

21
Residential property is defined the same way as G.L.

c. 244, § 35B, as: “real property located in the

commonwealth, on which there is a dwelling house with

accommodations for 4 or fewer separate households and

occupied, or to be occupied, in whole or in part by

the obligor on the mortgage debt; provided, however,

that residential property shall be limited to the

principal residence of a person; provided, further,

that residential property shall not include an

investment property or residence other than a primary

residence; provided, further, that residential

property shall not include residential property taken

in whole or in part as collateral for a commercial

loan; and provided, further, that residential property

shall not include a property subject to condemnation

or receivership.” There appears to be a level of

internal conflict with this provision as to whether it

would apply to the various mortgage scenarios for

rental or investment income property, especially

multi-family dwellings. The Act also provides for

mortgage deferral of six month’s of payments for

and must continue to pay their mortgage and property


expenses without receiving rental income, thereby
risking their own credit hits and foreclosure.

22
residential mortgagors if they submit a COVID-19

related financial hardship request. See Act, § 5(b).

Those deferred payments are added to the end of the

mortgage term unless otherwise agreed by the parties.

Id.

The term and duration of the Eviction Moratorium

Act remains a moving target. The Act’s eviction

moratorium provisions will expire on August 18, 2020,20

or 45 days after the Governor lifts the COVID-19 State

of Emergency, whichever is earlier. However, the Act

specifically authorizes the Governor himself (without

any legislative consent requirement) to postpone the

expiration of the Act for 90 day incremental periods

(but no later than 45 days after the State of

Emergency is lifted). There is no express limitation

on how many 90 day incremental periods the Governor

may use to extend the Act, and the outer bounds of the

term is tied to the duration of the COVID-19 State of

Emergency, which the Governor solely controls. See

Act, § 7 (“the governor may postpone such expiration

in increments of not more than 90 days; provided

20The Act provides for an expiration date of 120 days


after the effective date of the Act (April 20, 2020).
Act, § 7.

23
further, that the governor shall not postpone such

expiration to later than 45 days after the COVID-19

emergency declaration has been lifted.”).

EOHED Regulations

As mandated in the Act, the Executive Office of

Housing and Economic Development (EOHED) has issue

regulations to ensure compliance with the Act. See

400 C.M.R. 5.0: COVID-19 Emergency Regulations. The

new regulations mandate that all rental property

owners must use specific language in a new type of

notice for a late or missing rent payment, called a

“Notice of Rent Arrearage.” The new notice must

contain the following special language and reference

to certain government agency websites:

“THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING

EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An

emergency law temporarily protects tenants from

eviction during the COVID-19 emergency. The purpose of

this notice is to make sure you understand the amount

of rent you owe to your landlord.”

“For information about resources that may help you pay

your rent, you can contact your regional Housing

Consumer Education Center. For a list of agencies,

24
see https://www.masshousinginfo.org/regional-

agencies. Additional information about resources for

tenants is available

at https://www.mhp.net/news/2020/resources-for-

tenants-during-covid-19-pandemic.”

“You will not be subject to late fees or a negative

report to a credit bureau if you certify to your

landlord in writing within 30 days from the missed

payment that your non-payment of rent is due to a

financial impact from COVID-19. If possible, you

should use the approved form

at: https://www.mass.gov/lists/moratorium-on-

evictions-and-foreclosures-forms-and-other-

resources. If you cannot access the form on this

website, you can ask your landlord to provide the form

to you. You may also send a letter or email so long as

it contains a detailed explanation of your household

loss in income or increase in expenses due to COVID-

19.”

The “Notice of Rent Arrearage” may also include

other information that will promote the prompt and

non-judicial resolution of such matters, such as the

total balance due, the months remaining and the total

25
of lease payments expected to be made on a lease for a

term of years, information on how to contact the

landlord to work out a revised payment arrangement,

and a reminder that after the state of emergency ends

the tenant may face eviction if rent remains unpaid.

The regulations also state that the notice should also

have language informing the tenant of the importance

of having it translated to their native language.

New Housing Court Standing Order

After the enactment of the Eviction Moratorium,

the Housing Court issued a new Standing Order to put

their operations into compliance with the Act. See

Housing Court Standing Order 5-20: Further

Modifications to Housing Court Operations Due to the

Coronavirus (COVID-19) Outbreak (May 1, 2020). The

new Standing Order provides, in pertinent part:

(2) Until such time as the Moratorium Legislation


expires, the Housing Court shall not accept and docket
any filing(s), decisions, orders, and other documents
in “non-essential eviction” (summary process)
matters, including such filings, decisions, orders,
and other documents that are not expressly prohibited
by the Moratorium Legislation. The following filings
in summary process cases, however, shall be accepted
and allowed by the court: (1) motions to continue; (2)
motions to vacate a default judgment entered since
March 1, 2020; (3) motions to vacate a dismissal for
failure to appear entered since March 1, 2020; and (4)
motions to stay an execution. In addition, the court
shall accept and, where necessary, docket the
following filings in summary process cases: (1) a

26
notice of appearance; (2) original summonses and
complaints in previously electronically-filed cases;
(3) a notice of voluntary dismissal; (4) a
satisfaction of judgment; and (5) original executions.
As set forth in the Moratorium Legislation, “a
deadline or time period for action by a party to a
non-essential eviction . . ., whether such deadline or
time period was established before or after [April 20,
2020], including, but not limited to, a date to answer
a complaint, appeal a judgment or levy upon an
execution for possession or a money judgment, shall be
tolled” until such time as the Moratorium Legislation
expires.

(5) Until further order, each Clerk-Magistrate, in


consultation with the respective First Justice, may
advance, schedule, and conduct proceedings, by virtual
means only, in any case type, except in a non-
essential eviction action, as defined by the
Moratorium Legislation.

The new Standing Order also provides for the new

procedure and a new “Affidavit for Cause” for the

filing of an “essential eviction” which is allowed by

the Act. See Standing Order 5-20, §3.

Impact to Massachusetts Rental Property Owners

In terms of overall impact to rental property

owners statewide, statistics for Fiscal Year 2019 show

that 30,614 summary process cases were filed in the

Housing Court.21 An additional 8,370 summary process

cases were filed in the District Courts in Fiscal Year

21See https://www.mass.gov/doc/housing-court-trends-
by-fiscal-year-2/download.

27
2019.22 The total for Fiscal Year ’19 summary process

filings in the entire state is nearly 39,000 cases.23

The Housing and District Court do not keep statistics

on the type of summary process case filed, such as

non-payment, no-fault, or for cause. However, the

reasonable inference from the nature of the COVID-19

crisis and its associated financial impact, together

with the dramatically rising unemployment rate, is

that non-payment cases would be the most affected type

of case subject to the Eviction Moratorium Act. The

Act, however, will also apply to termination of

tenancies at will, holdover tenants who stay past

their lease expiration, any many “for cause” cases

which do not fall within the limited exception. We

can extrapolate from the court statistics that at

least 20,000 or more pending eviction cases could be

impacted by the Act, and thousands more as-yet-filed

eviction cases. Moreover, Petitioners state that upon

information and belief, tenants, who have the

22See https://www.mass.gov/doc/total-filings-by-court-
location-18/download.
23The Superior Court also retains jurisdiction over
summary process cases under G.L. c. 239, however, it
does not track summary process case statistically, and
upon information and belief, its eviction caseload is
quite small.

28
financial means to pay rent, are informing their

rental property owners that they will not pay rent

because the Act effectively prevents rental property

owners from enforcing rental payment obligations and

evictions. Indeed, this is what Petitioner Smith’s

tenant told her – that he did not have to pay rent

because “the Governor said I do not have to.” Even

more concerning to rental property owners, there

appears to be a legislative groundswell for a “rent

freeze” in the wake of the Eviction Moratorium Act.24

24See Congresswoman Ayanna Pressley on Twitter


5/21/20 (“11 days until rent is due again. It’s past
time to cancel rent and mortgage payments.”) found at
https://twitter.com/AyannaPressley/status/126357854473
6698373?s=20

See Rep. Mike Connolly on Twitter 4/1/20 (“This ain't


no #AprilFools. For the past few days, I've been
drafting legislation to implement a #RentFreeze in
Massachusetts in response to the #COVIDー19 emergency.
I need your feedback and support to make it happen.
Visit http://rentfreeze.org to learn more!
#HousingForAll”) found at
https://twitter.com/MikeConnollyMA/status/124537204252
8120840?s=20

29
Standard of Review

As this Court is well aware, the standard when

considering an application for a preliminary

injunction is set forth in the seminal case of

Packaging Industries Group v. Cheney, 380 Mass. 609

(1980). As to the merits of the application, “when

asked to grant a preliminary injunction, the judge

initially evaluates in combination the moving party's

claim of injury and chance of success on the merits.”

Id. at 617. “If the judge is convinced that failure

to issue the injunction would subject the moving party

to a substantial risk of irreparable harm, the judge

must then balance this risk against any similar risk

of irreparable harm which granting the injunction

would create for the opposing party. What matters as

to each party is not the raw amount of irreparable

harm the party might conceivably suffer, but rather

the risk of such harm in light of the party's chance

of success on the merits. Only where the balance

between these risks cuts in favor of the moving party

may a preliminary injunction properly issue.” Id.

Where, as here, the dispute involves a government

entity, “a judge is required to determine that the

requested order promotes the public interest, or,

30
alternatively, that the equitable relief will not

adversely affect the public.” John T. Callahan & Sons,

Inc. v. City of Malden, 430 Mass. 124, 131 (1999).

ARGUMENT

A. The Act Violates the Separation of Powers Between


Branches Under Article 30 of the Declaration of
Rights

Article 30 of the Massachusetts Declaration of

Rights provides as follows:

“In the government of this commonwealth, the


legislative department shall never exercise the
executive and judicial powers, or either of them: the
executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall
never exercise the legislative and executive powers,
or either of them: to the end it may be a government
of laws and not of men.”

Mass. Const. Pt. 1, art. XXX

Our Commonwealth is one of only a few states to

articulate an explicit constitutional separation of

powers. Commonwealth v. Cole, 468 Mass. 294, 301

(2014). The line between the branches “has never been

delineated with absolute precision.” Id. However,

this Court has described it as both “sharp” and

“strict.” Id. at 303. “Nonetheless, the mandate of

art. 30 is clear: it forbids the legislative and

executive branches from exercising powers that are

entrusted to the judicial branch if that exercise

31
‘restricts or abolishes a court’s inherent powers.’”

Id. at 302, quoting Gray v. Commissioner of Revenue,

422 Mass. 666, 671 (1996). Stated another way, this

Court has said: “What art. 30 forbids — the essence

of what cannot be tolerated — is legislative

interference with the judiciary’s core functions.”

First Justice of the Bristol Div. of the Juvenile

Court Dep’t v. Clerk–Magistrate of the Bristol Div. of

the Juvenile Court Dep’t, 438 Mass. 387, 396 (2003).

The inherent powers of the judiciary “are those whose

exercise is essential to the function of the judicial

department, to the maintenance of its authority, or to

its capacity to decide cases.” Cole, 468 Mass. at

302, quoting Sheriff of Middlesex County v.

Commissioner of Correction, 383 Mass. 631, 636 (1981).

“Although inherent powers may be recognized by

statute, they exist independently, because they

‘directly affect[ ] the capacity of the judicial

department to function’ and cannot be nullified by the

Legislature without violating art. 30 [of the

Massachusetts Declaration of Rights].” Querubin v.

Com., 440 Mass. 108, 114 (2003). Although fairly

obvious, the inherent powers of the judiciary are

those whose exercise is essential to “its capacity to

32
decide cases.” Brach v. Chief Justice of the District

Court Dept., 386 Mass. 528, 535 (1982).

The Act operates as a historically unprecedented

interference by the legislative and executive branch

in the core functions and inherent powers of the Trial

Court’s ability to consider and decide summary process

cases. The Commonwealth has survived the Civil War,

two World Wars, the Great Depression, the 1918 Spanish

influenza pandemic, and numerous economic recessions,

yet until now the Legislature has never taken such a

drastic step as to close the courthouse doors to one

group of litigants in one particular type of civil

action. The Moratorium takes several drastic actions

which unconstitutionally interferes with the core

functions and inherent powers of the judicial branch,

including:

• Establishing a previously unrecognized new

class of summary process case – the “non-

essential eviction.”

• Ordering any Trial Court with jurisdiction over

summary process cases under G.L. c. 239 to

refuse to accept for filing a writ, summons, or

complaint for a non-essential summary process

case;

33
• Prohibiting all Trial Court justices presiding

over a non-essential summary process case from

entering a judgment or default judgment for a

plaintiff for possession.

• Prohibiting all Trial Court justices presiding

over a non-essential summary process case from

denying upon the request of a defendant, a stay

of execution, or upon the request by a party, a

continuance of a summary process case;

• Prohibiting all Trial Court justices presiding

over a non-essential summary process case from

scheduling any “court event, including a

summary process trial.”

• Barring the enforcement or levy of a summary

process execution for possession issued by a

Trial Court justice.

See St. 2020, c. 65, § 3(b)

All of these vast and unprecedented restrictions

on judicial functions and authority directly interfere

with the inherent powers of the courts – “those whose

exercise is essential to the function of the judicial

department, to the maintenance of its authority, or to

its capacity to decide cases.” Sheriff of Middlesex

Cty v. Commissioner of Correction, 383 Mass. 631, 636

34
(1981). This Court has held that the Legislature

impermissibly interferes with judicial functions when

it purports to modify the judgment of a court. Doe v.

Sex Offender Registry Bd., 459 Mass. 603, 621 (2011).

See also Opinion of the Justices, 234 Mass. 612, 621–

622 (1920) (ruling that judgment of court can be

modified only by judicial process; Legislature cannot

“supersede” judgment by declaration to that effect).

“Prohibited as well is legislation that attempts to

restrict or diminish those judicial powers that are

necessary to the court's ability to perform its core

judicial functions.” First Justice of the Bristol

Div. of the Juvenile Court Dep’t v. Clerk–Magistrate

of the Bristol Div. of the Juvenile Court Dep’t, 438

Mass. 387, 396 (2003). “Where a statute impermissibly

allocates a power held by only one branch to another,

it violates art. 30.” Ellis v. Department of Indus.

Accs., 463 Mass. 541, 549–550 (2012).

For any property owner seeking to file a non-

essential eviction, the Eviction Moratorium bans the

issuances of notices to quit, closes the Clerk’s

Office, shuts down the courthouse, and then acts as a

new judicial standing order telling Trial Court judges

precisely how to handle (or, more accurately, not

35
handle) their pending caseload. Aside from

prohibiting the filing of any new “non-essential”

eviction, the Act goes so far as to tell a Trial Court

judge he or she cannot even schedule a “court event.”

This would conceivably cover any typical event within

a summary process case, such as any motion hearing, a

motion for rent escrow, status conference, case

management conference, pre-trial conference, a motion

to set an appeal bond, a motion to issue execution,

and of course, a bench or jury trial. There has never

been such a blatant infringement on the judiciary’s

role to handle its own cases.

Moreover, the Act also permits an infringement by

the Governor (executive) on the core functions of the

judiciary. The Act authorizes the Governor himself

(without any legislative consent requirement or other

oversight) to postpone the expiration of the Act for

an unlimited successive 90 day incremental periods,

(but no later than 45 days after the State of

Emergency is lifted). There is no express limitation

on how many 90 day incremental periods the Governor

may use to extend the Act, and the outer bounds of the

term is tied to the duration of the COVID-19 State of

Emergency, which the Governor solely controls. Thus,

36
the Governor can keep the Act in place (even without

the consent of the Legislature) for as long as he

desires, essentially. This is a clear infringement by

the executive on the judiciary’s functions, in

violation of Article 30.

Lastly, the Act operates to interfere with the

Judiciary’s own administrative actions in dealing with

the COVID-19 crisis. As outlined above, this Court

and all the Trial Courts have enacted a series of new

standing orders, acting and adapting quickly to a “new

normal” brought on by the COVID-19 crisis. Even

though these orders have temporarily limited some

forward movement of summary process cases, they

authorize such innovative measures as telephone and

video conference hearings, electronic signatures and

certificates of service, and electronic filing of

pleadings. While trials are on pause, much court

business is still being conducted across the state;

cases are being filed and hearings are being

conducted. “Zoom” video conferences are being used in

the Trial Courts now. Emergency matters are also

being heard live in person in some cases. The Act,

however, usurps the Court’s own standing orders and

innovative measures to deal with the COVID-19 crisis

37
for summary process cases, which would allow for

evictions cases to be heard soon. Article 30

prohibits that, and it surely sets a worrisome

precedent for future legislative interference with

court operations.

B. The Act Violates the Petitioners’ Constitutional


Right to Access the Courts Under Article 11 and
29 of Our Declaration of Rights.

Article 11 of our Declaration of Rights

guarantees to every citizen a broad right to access to

the courts and justice – to “obtain right and justice

freely, and without being obliged to purchase it;

completely, and without any denial; promptly, and

without delay; conformably to the laws.” Article 29

of the Massachusetts Declaration of Rights likewise

guarantees that: “[i]t is essential to the

preservation of the rights of every individual, his

life, liberty, property and character, that there be

an impartial interpretation of the laws, and

administration of justice.” As the Appeals Court has

held, the “free access to the courts guaranteed to

each citizen by art. 11 requires that all cases be

decided by a judge, and that litigants need not

purchase access to justice.” Ventrice v. Ventrice, 87

Mass. App. Ct. 190, 193 (2015).

38
Citing Article 11’s constitutional right to

access the courts freely and without delay, this

Court, along with the Appeals and Superior Courts,

have struck down restrictions on litigants’ ability to

access the courts. See, e.g., Bower v. Bournay-Bower,

469 Mass. 690 (2014) (ruling that judge violated Art.

11 by mandating the appointment of parental

coordinator in divorce case without consent of both

parents); Ventrice, supra, at 194 (holding that

probate judge’s order requiring mediation before

filing any action in court violated Art. 11); Haas v.

Spencer, 30 Mass. L. Rptr. 623 (Mass. Super. Ct. Dec.

11, 2012) (holding that prison officials’ intentional

delaying of prisoner’s mail filings to court is a

violation of Art. 11).

In Bower, this Court considered a probate judge’s

order appointing a parental coordinator over a

parent’s objection. Of particular concern was that

the order expressly required the parties to submit all

disputes regarding custody or visitation to the parent

coordinator “before such matters are brought before

the court.” 469 Mass. at 703. This Court held that

such a prior restraint on the parent’s right to access

the courts was a violation of Article 11:

39
The order here denies the parents the right even
to obtain access to the court regarding future
disputes or other issues without first engaging
with the parent coordinator. This prior restraint
on the ability to file future claims without both
parents’ consent may also infringe upon the
parties’ right to seek “recourse to the laws.”
Art. 11. In an analogous context, one State court
held that a judge’s bar on future postjudgment
filings by parties to a divorce proceeding,
absent demonstrated, good-faith participation in
a “four-way settlement conference,” constituted
an impermissible burden on the parties’ due
process right of access to the courts. Parish v.
Parish, 412 N.J.Super. 39, 988 A.2d 1180, 1182,
1190 (N.J.Super.Ct.App.Div.2010).

Similarly, in Ventrice, the Appeals Court held

that probate order requiring mediation before bringing

a dispute into court, which could cause a delay in an

objecting party’s right to file a complaint in our

courts, was an Art. 11 violation and unconstitutional.

87 Mass. App. Ct. at 194. The Appeals Court also

spoke of the chilling effect that a such a requirement

would have on a litigants ability to litigate in the

courts. Id.

The Eviction Moratorium presents something far

more serious and unprecedented than a mediation

requirement or the appointment of a parental

coordinator in an custody dispute. What we have

before this Court is a complete and total shutdown and

indefinite ban on virtually every eviction case being

40
filed and pending in the Commonwealth of Massachusetts

for an unknown period of time. Shutting down our

courts to anyone plainly violates Article 11 and the

principals on which the Commonwealth and the United

States of American were founded. The COVID-19 crisis

does not, and cannot, suspend this fundamental

constitutional right.

For the same reasons, the Act’s prohibition

against termination of tenancies and notices to

quit/termination are likewise unconstitutional under

Article 11. These formal legal actions and notices

are statutory prerequisites to filing a summary

process action under Massachusetts statute. Under

G.L. c. 186, § 11, a rental property owner must issue

a 14 day written notice to quit to a tenant who has

failed to pay rent before commencing a summary process

action. Termination of a tenancy at will requires at

least 30 days written notice. G.L. c. 186, § 12, 13.

Recovery of possession of rental property may only be

had through the summary process procedure under G.L.

c. 239, et. seq. See G.L. c. 239 § 1. Massachusetts

does not allow for self-help evictions. G.L. c. 184,

§ 18. Uniform Summary Process Rule 2(d) requires that

the notice to quit or notice of termination be

41
attached to the Summary Process Summons and Complaint

at the time of filing. A ban on the issuance of a

notice to quit is the same as a ban on the actual

filing of a summary process case. Article 11 plainly

forbids this type of wholesale prohibition against

seeking legal redress in the courts of the

Commonwealth.

C. The Act Is An Unconstitutional Infringement on


the Plaintiffs’ Right to Petition under the First
Amendment.

The First Amendment of the United State

Constitution provides that “Congress shall make no law

. . . abridging . . . the right of the people . . . to

petition the Government for a redress of grievances.”

The First Amendment applies to the states through the

Fourteenth Amendment of the U.S. Constitution.

DeJonge v. Oregon, 299 U.S. 353 (1937). This right

has its roots in the Magna Carta and has long been

viewed as a fundamental and inviolate right. See Adam

Newton, “Freedom of Petition Overview,” Freedom Forum

Institute (Oct. 10, 2002) (available online at

https://is.gd/FOPOFFI) (viewed Apr. 15, 2020). Since

at least 1876, the Supreme Court has considered the

right to petition “implicit in ‘[t]he very idea of

government,” observing that “[t]he historical roots of

42
the Petition Clause long antedate the Constitution.”

McDonald v. Smith, 472 U.S. 479, 482 (1985) (quoting

United States v. Cruikshank, 2 Otto 542 (1876)). In

United Mine Workers of Am. v. Illinois State Bar

Ass’n, 389 U.S. 217, 222 (1967), the Court exalted the

right to petition as “among the most precious of the

liberties safeguarded by the Bill of Rights.” It is a

fundamental liberty, protected against encroachment by

federal, state, and local governments alike. See

NAACP v. Button, 371 U.S. 415 (1963). Citing similar

principles, this Court has stated that “access to the

courts should not be restricted unnecessarily.” Town

of Brookline v. Goldstein, 388 Mass. 443, 449 (1983).

There have been only very few statutes which have

withstood this strict scrutiny. Two are G.L. c. 231,

§ 6F, which grants attorneys’ fees for the filing of

frivolous suits, and the Anti-SLAPP Act, G.L. c. 231,

§ 59H, which protects the filing of lawsuits as

petitioning activity.25 See id.; Duracraft Corp. V.

Holmes Products Corp., 427 Mass. 156 (1998). Unlike

25Indeed, this Court has noted that the Anti-SLAPP Act


was intended “to protect the right to petition the
government for the ‘redress of grievances’ guaranteed
by the United States Constitution.” Town of Hanover
v. New England Regional Council of Carpenters, 467
Mass. 587, 528 (2014).

43
these fair limitations on the content or merit of

lawsuits, the Act makes no such distinction. It

simply prohibits all summary process cases falling

under the umbra of a “non-essential” eviction. That

is what makes the Act facially unconstitutional as a

prior restraint on the Petitioners’ constitutional

right to petition.

Lastly, the United District Court for the

District Court of Massachusetts used similar reasoning

to strike down as unconstitutional the COVID-19

emergency debt-collection regulations promulgated by

the Mass. Attorney General which prohibited the filing

of new debt collection civil actions and many other

judicial remedies such as attachment, wage garnishment

and seizure of assets. See ACA Int'l v. Healey, No.

CV 20-10767-RGS, 2020 WL 2198366, at *5 (D. Mass. May

6, 2020). In ACA Int’l, Judge Stearns held those

regulations unconstitutional, reasoning that the

constitutional guarantee of the right to access the

courts is “among the most precious of the liberties

safeguarded by the Bill of Rights.” Slip op. at 23,

quoting United Mine Workers of Am. Dist. 12 v.

Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967).

The Attorney General’s debt collection regulations are

44
of the same ilk as the Eviction Moratorium Act. Both

prohibit the filing and maintenance of a certain type

of lawsuit by a certain class of litigants (debt

collectors vs. landlords). Moreover, as Judge Stearns

also correctly reasoned, the temporary nature of the

AG rules did not save them. “[T]he mere fact of an

emergency does not increase constitutional power, nor

diminish constitutional protections.” Slip op. at 25-

26, citing Home Building & Loan Ass’n v. Blaisdell,

290 U.S. 398 (1934). With the Governor enjoying

unfettered discretion to extend the term of the Act as

he sees fit, the duration of the Act could extend into

2021. That is what clearly tips it over the

constitutional precipice into the abyss of

unconstitutionality.

D. The Act and Regulations Violate Petitioners’ Free


Speech Rights.

The Act’s ban on the issuing of legal notices

such as a notice to quit is also an infringement on

Petitioners’ constitutional right to free speech. As

discussed above, the Act prohibits rental property

owners and property owners from (1) terminating any

tenancy, or (2) sending “any notice, including a

notice to quit, requesting or demanding that a tenant

45
of a residential dwelling unit vacate the premises.”

See Act, §3(a)(ii). This provision impermissibly

burdens and censors Plaintiffs’ speech. The First

Amendment prohibits states from restricting speech

because of its message, its ideas, its subject matter,

or its content. Reed v. Town of Gilbert, Ariz., 135

S. Ct. 2218, 2224 (2015). Content-based restrictions

are presumptively unconstitutional and may be

justified only if the government proves they are

narrowly tailored to serve a compelling state

interest. Id. A restriction on speech is “content

based” if it “applies to particular speech because of

the topic discussed or the idea or message expressed.”

Id. at 2227. Courts consider whether the law “on its

face draws distinctions based on the message a speaker

conveys.” Id. (internal quotes omitted). Such facial

distinctions may identify a particular subject matter

to be restricted, while others may identify the

speech’s function or purpose. Id. Even if the

challenged law does not make these kinds of facial

distinctions, it will still be considered content-

based if it “cannot be ‘justified without reference to

the content of the regulated speech,’ or [was] adopted

by the government ‘because of disagreement with the

46
message [the speech] conveys[.]’” Id. (quoting Ward v.

Rock Against Racism, 491 U.S. at 791 (1989)). Echoing

these fundamental principles, this Court just ruled

recently:

A prior restraint is permissible only where the


harm expected from the unrestrained speech is
grave, the likelihood of the harm occurring
without the prior restraint in place is all but
certain, and there are no alternative, less
restrictive means to mitigate the harm.

Shak v. Shak, 484 Mass. 658 (May 7, 2020).

Commercial speech, as opposed to pure political

speech, is still protected under the First Amendment,

albeit to a lesser degree. See Central Hudson Gas &

Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561

(1980). As Judge Stearns noted in the ACA case,

supra, “the mere fact that speech proposes a

commercial transaction does not mean that the First

Amendment drops altogether from the picture. A State

has no constitutional power to suppress truthful,

nonmisleading commercial messages.” ACA Int'l v.

Healey, No. CV 20-10767-RGS, 2020 WL 2198366, at *5

(D. Mass. May 6, 2020) quoting 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484, 501 (1996)(internal

quotation marks omitted, and offered for persuasive

value only).

47
This Court has similarly held that “a restriction

on commercial speech will not be upheld if it provides

only ineffective or remote support for the

government's purpose.” Bulldog Inv'rs Gen. P'ship v.

Sec'y of Commonwealth, 460 Mass. 647, 669–70 (2011)

quoting Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm'n of N.Y., 447 U.S. 557, 564 (1980)

internal quotation marks omitted).

In commercial speech cases, the four-part

analysis under the seminal U.S. Supreme Court case of

Central Hudson applies. At the outset, the court must

determine whether the expression is protected by the

First Amendment. For commercial speech to come within

that provision, it at least must concern lawful

activity and not be misleading. Next, the court must

ask whether the asserted governmental interest is

substantial. If both inquiries yield positive

answers, the court must determine whether the

regulation directly advances the governmental interest

asserted, and whether it is not more extensive than is

necessary to serve that interest. Cent. Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S.

557, 566 (1980).

48
Turning to the Central Hudson test, a notice to

quit or to terminate a tenancy is a form of non-

misleading commercial speech. It is a legal notice

that a tenant has done or failed to do something

legally required (i.e, pay rent) warranting

termination of a lease or tenancy. It is far from an

advertisement of a product or services or a corporate

public relations release. Moreover, a notice to quit

is required by the state in order to file a summary

process action. See G.L. c. 186, §11-13; Unif. Summ.

Proc. R. 2(d). Accordingly, it is protected

commercial speech. As for the second prong, the

Petitioners will not dispute for purposes of this

analysis that the response to the COVID-19 crisis is a

substantial governmental interest. The key question

becomes whether the statutory provision directly

advances the governmental interest asserted, and

whether it is not more extensive than is necessary to

serve that interest. This it fails to do. Indeed,

the ban on notices to quit is overkill, and could

discourage voluntarily financial workouts between

rental property owners and tenants.

As discussed previously, the issuance of a notice

to quit is a statutory prerequisite to filing a

49
summary process action. In many cases, it is the

first time a tenant is put on formal notice there is a

serious problem with their undertaking obligations

under the lease or tenancy. Often, it results in a

discussion between landlord and tenant about working

out a financial hardship situation, and avoiding court

altogether. Furthermore, by statute, tenants have

certain cure rights for non-payment triggered by the

receipt of a notice to quit. Tenants who receive a

14-day notice to quit for payment of rent under a

written lease may likewise avoid eviction altogether

by tendering the unpaid rent on or before date on

which a summary process answer is due. See G.L. c.

186, § 11. In a non-payment situation for a tenant at

will, a tenant can cure a payment default by tendering

the unpaid rent within 10 days of service of a 14-day

notice to quit. See G.L. c. 186, § 12. Also, under

standard form written leases, there are also cure

rights for “cause” situations triggered by the

issuance of a notice to quit – typically a seven (7)

day cure period. Virtually of these notices are

banned under the Act, which fundamentally alters the

landlord-tenant relationship and will allow tenants to

legally withhold rent without legal basis and also

50
continue to engage in potentially harmful or dangerous

conduct.26 This would create very dangerous situations

exacerbated by the COVID-19 pandemic.

Again, the recent challenge to the Attorney

General’s COVID-19 debt collection regulations in our

federal court is instructive. See ACA Int'l v.

Healey, No. CV 20-10767-RGS, 2020 WL 2198366, (D.

Mass. May 6, 2020). There, applying the Central

Hudson test, Judge Stearns ruled that the regulations’

prohibition on telephonic communication from debt

collectors was a violation of the First Amendment.

Judge Stearns found that the AG rules singled out one

group of litigants and imposed a “blanket suppression

order” on their ability to use what they believe is

their most effective means of communication, the

telephone. ACA, Slip op. at 17. The Act does the

26Petitioners recognize the exception in the Act for


allegations of criminal activity or a lease violation
“that may impact the health and safety of other
residents, health care workers, emergency personnel,
persons lawfully on the subject property, or the
general public.” However, there are many situations
that would warrant a “for cause” notice to quit which
would fall outside this limited exception. For
example, cigarette, marijuana or other illegal drug
use confined within a unit; keeping of an unauthorized
occupant; keeping of an unauthorized pet; violations
of cleanliness and sanitary requirements; causing
damage inside a unit, such as ruining walls, carpets
or flooding bathrooms.

51
exact same thing, or even worse, by banning virtually

every legally required notice to quit available to a

rental property owner to enforce a lease or tenancy at

will.

For all these reasons, the Act goes too far under

the First Amendment. At best, it provides “only

ineffective or remote support for the government's

purpose.” Bulldog Inv'rs Gen. P'ship v. Sec'y of

Commonwealth, 460 Mass. 647, 669–70 (2011).

E. The Regulations Compel Petitioners’ Speech In


Violation of the First Amendment.

Free speech also includes the right to refrain

from speaking. Janus v. Am. Fed’n of State, Cty., &

Mun. Employees, Council 31, 138 S. Ct. 2448, 2463

(2018). With all non-payment notices to quit

prohibited, the EOHED Regulations mandate a government

approved notice and language for any rental property

owner who opts to send a “missed rental notice” to a

tenant. Rental property owners who choose to send

missed-payment notices, at their own expense, must

state the foregoing, in pertinent part:

THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING


EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.
An emergency law temporarily protects tenants
from eviction during the COVID-19 emergency. The
purpose of this notice is to make sure you

52
understand the amount of rent you owe to your
landlord.

“For information about resources that may help


you pay your rent, you can contact your regional
Housing Consumer Education Center. For a list of
agencies,
see https://www.masshousinginfo.org/regional-
agencies. Additional information about resources
for tenants is available
at https://www.mhp.net/news/2020/resources-for-
tenants-during-covid-19-pandemic.”

Not only does a state agency mandate certain bold

type language, but it requires rental property owners

to provide governmental approved and sponsored tenant

advocacy websites in the notice itself as resource

guides to tenants.27 By “compelling individuals to

27The website www.masshousinginfo.org/regional-


agencies lists a number of federally and state funded
housing organizations which historically cater to
consumers and tenants, such as South Middlesex
Opportunity Council, Inc. and Metro Housing | Boston.

The website,
https://www.mhp.net/news/2020/resources-for-tenants-
during-covid-19-pandemic, is hosted by the
Massachusetts Housing Partnership, which describes
itself as a “statewide public non-profit affordable
housing organization, MHP works in concert with the
Governor, the Department of Housing and Community
Development and the state's other quasi-public housing
organizations. MHP was established in 1985 to increase
the state's overall rate of housing production and
work with cities and towns to demonstrate new and
better ways of meeting our need for affordable
housing.”

53
speak a particular message,” the Commonwealth is

engaged in content-based regulation of speech.

National Inst. of Family & Life Advocates v. Becerra,

138 S. Ct. 2361, 2371 (2018). The compelled statement

is similar to an advertiser’s disclosure, but worse

because it points tenants to organizations which have

been historically adverse to rental property owners.

Rental property owners who want to remind tenants of

their missed rent payments are governmentally

obligated to give tenants information which will

enable them to keep not paying their rent. This is

out of the Twilight Zone.

If the regulations were ordinary ones promulgated

pursuant to the Consumer Protection Act, G.L. c. 93A,

Petitioners’ rights would arguably be “adequately

protected as long as disclosure requirements are

reasonably related to the State's interest in

preventing deception of consumers.” Zauderer v. Office

of Disciplinary Counsel, 471 U.S. 626, 651 (1985).

This is no ordinary regulation, however, and was not

promulgated pursuant to c. 93A. It is an emergency

regulation, free from the notice-and-comment

strictures of the Administrative Procedures Act, G.L.

c. 30A, and supposedly promulgated to comply with the

54
Act, which is itself an emergency statute, passed with

no formal comments or hearings.

Again, the state has gone too far. The

Regulations’ provision on missed rent payment notices

should be struck down.

F. The Act Operates as a Temporary Regulatory Taking


of Real Estate Without Just Compensation In
Violation of Article 10 of the Declaration of
Rights and the Fifth Amendment of the U.S.
Constitution.

Article 10 of the Massachusetts Declaration of

Rights provides “whenever the public exigencies

require that the property of any individual should be

appropriated for public uses, he shall receive a

reasonable compensation therefor.” The Fifth

Amendment, Takings Clause, of the U.S. Constitution

provides: “private property [shall not] be taken for

public use, without just compensation.” The Takings

Clause applies to the states through the Fourteenth

Amendment. See Chicago, B. & Q. R. Co. v. Chicago,

166 U.S. 226 (1897).

The concept of a regulatory taking was discussed

in detail in Blair v. Dep't of Conservation &

Recreation, 457 Mass. 634, 641 (2010), where this

Court stated:

55
A regulatory taking, a concept adopted by the United
States Supreme Court for the first time in 1922,
arises not from the acquisition of an interest in
property by the government, but rather from a
regulation enacted under the State's police power that
severely limits the property's use. While most
restrictions on the use of private property do not
constitute a taking, when a regulation substantially
restricts the owner's use of the property, so that the
regulation “goes too far,” it may be deemed
a regulatory taking of that property for a public use.
See id. Whether a regulation “goes too far” is
determined ordinarily by a three-prong test. See Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 124–
125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (Penn
Central). Thus, courts consider (1) “the economic
impact of the regulation on the claimant”; (2) “the
extent to which the regulation has interfered with
distinct investment-backed expectations”; and (3) “the
character of the governmental action.” (some internal
citations omitted).

The operation of the Act, fairly read, is that

rental property owners have no legal recourse or

enforcement remedies to remove a non-paying tenant

while the Act is in effect. It cannot be reasonably

disputed that an eviction is one of, if not the most,

effective methods of converting an non-performing

rental property into a performing one. The Act stops

this usual turnover economic system. Accordingly,

every Massachusetts rental property owner with a non-

paying tenant is faced with the prospect of being

forced by the state to quarter a non-paying tenant for

at least 120 days, and possibly many more months if

Gov. Baker exercises his right to extend the Act.

56
That would amount to millions, if not, billions of

lost rent, and many months of state-forced occupation

of real estate, as a direct result of the Moratorium.

The fact that the Act contains a fig leaf provision

that tenants remain responsible for paying rent does

not alter this analysis. The critical issue is how

the Act operates as applied. Tenants who have not

been able to pay rent due to the COVID-19 crisis are

unlikely to suddenly have the funds to pay months of

accrued rent. So most rental property owners will

likely choose not to pursue recovery given the cost,

expense, and unlikelihood of recoupment in small

claims or district court.

What the Act really does is forcibly impose an

unfair economic policy of transferring the financial

burden of the COVID-19 crisis from tenants to private

property owners, without providing any state financial

aid to compensate rental property owners for those

losses. In the words of the U.S. Supreme Court, the

Moratorium seeks to “forc[e] some people alone to bear

public burdens which, in all fairness and justice,

should be borne by the public as a whole.” Armstrong

v. United States, 364 U.S. 40, 49 (1960). For these

reasons, the Act operates as an unconstitutional

57
regulatory taking in violation of Article 10 of the

Declaration of Rights and Fifth Amendment of the U.S.

Constitution.

G. The Act Is An Unconstitutional Impairment of


Petitioners’ Contract Rights Under The Contracts
Clause of the United State Constitution.

Article 1, Section 10, Clause 1 of the U.S.

Constitution states: “No State shall. . . pass any. .

. . Law impairing the Obligation of Contracts.” This

is commonly referred to as the Contracts Clause. The

governing principles on the Contracts Clause are

stated in United States Trust Co. v. New Jersey, 431

U.S. 1 (1977), and Massachusetts Community College

Council v. Commonwealth, 420 Mass. 126 (1995).

The contract clause is “one of the few express

limitations on [S]tate power.” Campbell v. Boston

Hous. Auth., 443 Mass. 574 581 (2005), quoting United

States Trust Co. v. New Jersey, supra at 14. It

“limits the power of the States to modify their own

contracts as well as to regulate those between private

parties.” Id.

As outlined in Campbell v. Boston Housing

Authority, a Contract Clause violation exists only if

several factors are satisfied. “The first

consideration under the Contract Clause is whether

58
subsequent State action has in fact impaired any

enforceable contractual obligation.” Id. at 581. The

next inquiry is “whether the impairment is

substantial.” Even if a substantial impairment

exists, the impairment still may be constitutional if

“it is reasonable and necessary to serve an important

public purpose.” The State carries the burden of

making this latter showing. Id. In Campbell, this

Court found that the retroactive application of

statutory amendments which insulated public employers

from liability for failure to conduct health or safety

inspections substantially impaired rental assistance

contracts, of which a tenant was third-party

beneficiary. Id. at 583.

As the Supreme Court has stated, “[n]othing can

be more material to the obligation than the means of

enforcement . . . The ideas of validity and

enforcement are inseparable, and both are parts of the

obligation, which is guaranteed by the Constitution

against invasion.” Home Building & Loan Association

v. Blaisdell, 290 U.S. 398, 429-30 (1934).

In this case, the Act has undisputedly impaired

the Petitioners’ lease agreements with their tenants,

and by extension, has impaired thousands of leases

59
between tenants and rental property owners throughout

the Commonwealth. The Act does so by unconditionally

and indefinitely delaying a rental property owner’s

otherwise established right to timely pursue an

eviction against a breaching tenant, and by

prohibiting a rental property owner from even sending

a notice to quit or termination of tenancy for any

number of material breaches of a lease. The right to

evict and the right to declare a contractual default

are core to every residential lease contract, and any

material interference with those rights and remedies

is a substantial impairment of that contract. Indeed,

interfering with the right to evict for non-payment of

rent is arguably the most substantial impairments of

any lease agreement from a rental property owner’s

point of view. The payment of rent goes to the very

heart and most basic purpose of the legal relationship

between rental property owner and tenant. With

Massachusetts already one of the most highly regulated

states in the nation for rental housing, the state

cannot constitutionally eviscerate the core foundation

of a lease without providing reasonable compensation

to affected owners. See, e.g, Home Building & Loan

Association v. Blaisdell, 290 U.S. 398, 429-30 (1934).

60
The Moratorium does not provide any meaningful

safeguards with respect to the right to evict or

declare a lease default. It simply imposes a blanket

statewide prohibition on both the right to evict and

the right to formally terminate a lease or tenancy.

The U.S. Supreme Court, in W.B. Worthen Co. v.

Kavanaugh, 295 U.S. 56 (1935) (Cardozo, J.), struck

down an Arkansas law, similar to our Eviction

Moratorium, enacted during the Great Depression that

sought to impose substantial delays to bondholders’

foreclosure remedies. The Court explained how the

delay in the core remedy of foreclosure equated to a

substantial impairment of the contract:

To know the obligation of a contract we look to


the laws in force at its making. . . . Under the
statutes in force at the making of the contract,
the property owner was spurred by every motive of
self-interest to pay his assessments if he could,
and to pay them without delay. Under the present
statutes he has every incentive to refuse to pay
a dollar, either for interest or principal.

Id., at 60

The same is true here as the Act imposes an unknown

and indefinite delay upon the core remedy of eviction

pursuant to a residential lease.

Lastly, in Massachusetts Community College

Council v. Commonwealth, 420 Mass. 126 (1995), this

61
Court found a Contracts Clause violation where a

state-imposed furlough law impaired state employees’

collective bargaining agreements. This Court reasoned

that if there was a more moderate course of action

which would have served the state’s interest equally

well, then that is a clear indication of a Contracts

Clause impairment. A wholesale shutdown of the

state’s entire summary process system is the most

drastic of remedies for the financial impact of the

COVID-19 crisis on the state’s tenants. The most

obvious alternative is a legislative financial aid

package to tenants with a COVID-19 related economic

hardship. Or, on the other side of the equation, a

financial aid package for rental property owners who

are not receiving rent. Instead, the Legislature

decided to take the path of least resistance and

target the political “bad guys” – greedy rental

property owners, as they love to call our clients.

This may be politically expedient, but it does not

survive constitutional scrutiny.

H. Petitioners Will Suffer Irreparable Harm If


Injunctive Relief Is Not Granted.

It is well established that the loss of First

Amendment freedoms and other constitutional rights

62
constitutes irreparable injury, by definition, and

obviates the need to make an additional showing of

irreparable harm. See Maceira v. Pagan, 649 F.2d 8,

18 (1st Cir. 1981); Sindicato Puertorriqueno de

Trabajadores v. Fortuno, 699 F.3d 1, 10-11 (1st Cir.

2012); see also T&D Video, Inc. v. City of Revere, 423

Mass. 577, (1996); Goodridge v. Department of Public

Health, 440 Mass. 309 (2003).

Aside from the numerous constitutional violations

asserted and established by the Petitioners, it should

not be seriously disputed that they will suffer

irreparable harm if the operation of the Act is not

enjoined immediately. Every month which goes by the

Petitioners will not receive any rental income, while

being forced to have non-paying tenants occupy their

real property. Petitioners will remain obligated to

pay their mortgages, real estate taxes, insurance, and

water/sewer used by non-paying tenants, and to

maintain their properties and comply with the state

sanitary code, while being deprived of the revenue

required to do those things. As noted above, this

one-sided obligation and burden will continue

indefinitely and quite possibly into 2021. Many small

rental property owners, especially those on fixed

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income like Petitioner Smith, rely on rents to afford

to live in their own homes. If 4-6 months or more go

by without rent payments and the ability to evict,

these folks will be in dire financial straits. The

same is true for owners dealing with certain “for

cause” situations which do not fit into the narrow

exception under the Act. They are hand-cuffed by not

being able to evict problem tenants, and dangerous

situations will result. Massachusetts law is well

established that real estate is “unique” and therefore

appropriate for equitable remedies to address

violations concerning property rights. See McCarthy

v. Tobin, 429 Mass. 84, 89 (1999). The Petitioners’

irreparable harm is established in this important

case.

With respect to any claimed irreparable harm by

the state or the class of tenants the Act seeks to

protect, it is important to note that the Act targets

the financial impact of the COVID-19 crisis, not the

public health aspect of it. The Act is not a public

health order such as a requirement to wear masks in

public, to socially distance, or to limit public

gatherings of 10 or more people. Thus, the line of

cases invoking a state’s police power to address

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public health issues are inapplicable here. See, e.g.

Jacobson v. Massachusetts, 197 U.S. 11 (1905) (holding

that state under police power could mandate smallpox

vaccine over petitioner’s objections). The Court in

Jacobson recognized as much, holding that courts may

review a measure that has “no real or substantial

relation” to protecting the public health or “is,

beyond all question, a plain, palpable invasion of

rights secured by the fundamental law.” Id. at 31.

The Act falls within this category of a law not

reasonably related to true public health impacts and

goes way over the line in violating numerous

fundamental constitutional rights held by all

citizens. The Petitioners are not discounting the

financial impact upon tenants due to the COVID-19

crisis. Many of them, too, are also facing similar

financial impacts. However, the problem with the

basic concept of the Act is that it unfairly shifts

the burden of financial impact from tenants to the

state’s rental property owners, while at the same

time, imposing an unprecedented assault on such

fundamental constitutional rights as the right to

petition and free speech. The state was free to

establish a rent stabilization fund or similar

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financial remedy for a financial crisis, but it chose

not to do that.

Moreover, the perceived temporary nature of the

Act does not alter the irreparable harm analysis.

First, there is no such thing as a “temporary” prior

restraint on free speech. See, e.g, Nyer v. Munoz-

Mendoza, 385 Mass. 184, 188 (1982). Second, with

respect to access to the courts, the Act, provides

for a 120 day long moratorium,28 but can be extended

by Gov. Baker for an unlimited number of 90-day

incremental periods. The Uniform Summary Process

Rules set forth the “just, speedy and inexpensive

determination of every summary process action. See

Unif. Summ. Proc. R. 1. Under these Rules, a

plaintiff in a summary process case can have a trial

date and resolution of a case as quickly as 17 days

from the service of a summary process summons and

28Theoretically, it is possible that the Governor


could lift the COVID-19 State of Emergency before the
120 day period is up, but that appears to be highly
unlikely given the current state of the crisis and the
fact that the State of Emergency is linked to federal
disaster funding and several other legislative bills
dealing with the crisis. See
https://www.mass.gov/news/baker-polito-administration-
announces-federal-disaster-declaration-for-covid-19-
response

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complaint. Id. Rule 2. The Act’s 120 day moratorium

period, therefore, imposes a 150% increase in the

time a typical summary process case is heard. That

should be a per se violation of the right to petition

in the eviction context. Moreover, a four to six

month delay in all summary process cases statewide

will wreck absolute havoc in the rental housing

market. Take that delay, then extrapolate it to

thousands of rental properties and owners across the

state. This will also have spill-over effects into

the purchase market because tenants will be able to

essentially “squat” in place, and new buyers and

their families who have purchased occupied homes will

not be able to move in.

Lastly, the courts own administrative actions in

dealing with the COVID-19 crisis such as delaying

jury trials likewise do not affect the irreparable

harm analysis. Putting aside the question whether

the various COVID-19 standing orders violate the

right to petition and access the courts, the standing

orders do not provide for a blanket prohibition on

summary process actions and issuance of notices to

quit, as the Act provides. Petitioners believe that

the courts are better suited and equipped than state

67
representatives to deal with the particular public

safety challenges raised by the COVID-19, and that

they are doing so admirably. The courts are free to,

and have been, employing innovative measures to move

cases along, such as Zoom video conferences, and they

are already working well. There is no reason that

the Housing Court could not begin hearing summary

process cases, or at least hear motions in pending

cases, through video-conference or telephone

hearings. Cases could also be screened for mediation

with housing specialists and that could be done via

Zoom as well, with agreements for judgment filed

electronically.29 But the Legislature has taken away

such flexibility, in violation of Article 30.

I. Injunctive Relief Will Serve the Public Interest.

Injunctive relief will also serve the public

interest by upholding the fundamental state and

federal constitutional rights asserted by the

Petitioners in this case, and given the broad impact

the Act has on rental property owners statewide.

While we recognized the devastating impact of the

29Moreover, Housing and District Courts already have


the statutory power to stay the issuance of executions
for possession if a tenant shows good cause or
hardship. See G.L. c. 239, § 9-10.

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COVID-19 crisis, the Act is arguably the most

unprecedented legislative assault against the

constitutional rights of rental property owners in the

history of the Commonwealth. It is also unprecedented

in terms of its interference with the operations of

the Trial Court, and no doubt marking the beginning of

a slippery slope of legislative interference of

judicial decision making, whether in a potential

second wave of COVID-19 infections or the next

economic crisis.

Lastly, rental property owners seldom desire to

evict good tenants who are having legitimate financial

distress. Petitioners, and virtually all rental

property owners, have always been willing to work with

tenants in times of financial distress. The

Moratorium is a drastic over-reaction for a problem

that may very well not exist. That is, the Act was

intended to prevent a flood of evictions for

nonpayment, but that was unlikely to happen. Rental

property owners would much prefer to work with good

tenants than to try to find new tenants. Also, by

postponing the ability to evict in cases where a

tenant should be evicted, the Act guarantees a flood

of evictions the moment the Moratorium expires. This

69
will create months and months of backlogs in our

already over-burdened Housing and District Courts, and

make the already long eviction process even longer,

during which tenants may continue to avoid paying rent

and rental property owners will continue having to

bear the burden by themselves. While well intended,

the Act was not properly vetted for constitutional

compliance, and was rushed into law in a panic during

a global pandemic without much thought as to how it

would drastically impact the entire rental housing

market in the Commonwealth. It must be struck down.

Conclusion and Relief Requested

For the reasons stated above, Petitioners pray

for the following relief:

1. Accept this Emergency Petition under G.L. c. 211,


§ 3, G.L. c. 214, § 1, and G.L. c. 231A, § 1,
schedule a telephonic or video-conference hearing
as necessary, and issue all Summonses and Orders
of Notice as is necessary to administer the case.

2. Order, pursuant to Mass. R. Civ. P. 4 and all


applicable COVID-19 Standing Orders, that service
of process of all pleadings and notices in this
case may be effectuated on all Defendants through
e-mail or Federal Express upon the Attorney
General’s Office.

3. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of Article 30 of
the Declaration of Rights.

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4. Issue a binding declaratory judgment pursuant to
G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of Article 11 of
the Declaration of Rights.

5. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of Article 29 of
the Declaration of Rights.

6. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of the right to
petition under the First Amendment of the United
States Constitution.

7. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of the right to
free speech under the First Amendment of the
United State Constitution.

8. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional as a “taking” without just
compensation in violation Article 10 of the
Declaration of Rights and the Fifth Amendment of
the United States Constitution, and award the
Petitioners and any certified class under Mass.
R. Civ. P. 23, damages in the form of “just
compensation” for any taking pursuant to G.L. c.
79, G.L. c. 12, § 11I, and 42 U.S.C. § 1983.

9. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that Chapter 65 of the Acts of
2020, §§ 1, 3, 6, and 7 are unconstitutional as
an impairment of contracts in violation of the
Contracts Clause of the United States
Constitution.

10. Issue a binding declaratory judgment pursuant to


G.L. c. 231A, that 400 C.M.R. 5.0: COVID-19

71
Emergency Regulations are unconstitutional in
violation of the right to free speech under the
First Amendment of the United State Constitution.

11. Issue a temporary restraining order, followed by


a preliminary and permanent injunction, enjoining
the Defendant Chief Justices and all Clerk’s
Offices within their authority, supervision and
control, from enforcing the provisions of the Act
with respect to summary process actions under
G.L. c. 239 in any court of the Commonwealth.

12. Issue a temporary restraining order, followed by


a preliminary and permanent injunction, enjoining
the Defendant Executive Office of Housing and
Economic Development from enforcing the
provisions of the Act and 400 C.M.R. 5.0 with
respect to summary process actions and notices.

13. Pursuant to Mass. R. Civ. P. 23, and in the


Court’s discretion to effectuate injunctive and
equitable relief, certify the Petitioners as
class representatives of all similarly situated
rental property owners and rental property owners
in the Commonwealth who have been and are
impacted and aggrieved by the enforcement of the
Act and Regulations.

14. Issue an order granting the Petitioners their


attorneys’ fees and costs pursuant to 42 U.S.C. §
1983 and G.L. c. 12, §§ 11I.

15. Order any other appropriate relief as is


equitable and just.

Respectfully submitted,

MITCHELL MATORIN and LINDA SMITH


By their attorneys,

_/s Richard D. Vetstein__________


Richard D. Vetstein, BBO #637681
Vetstein Law Group, P.C.
945 Concord Street
Framingham, MA 01701
Tel: (508) 620-5352
rvetstein@vetsteinlawgroup.com

72
/s/ Jordana R. Roubicek
Jordana R. Roubicek, Esq.
BBO# 667842
134 Main Street
Watertown, MA 02472
Tel: 617-379-6669
jordana@jrglegal.com

Dated: May 29, 2020

Certificate of Service

I, Richard D. Vetstein, Esq., a member of the Bar


of this Court, hereby certify that on this day, May
29, 2020, the attached Petition and all accompanying
pleadings were electronically served on counsel for
the Defendants via e-mail.

/s/ Richard D. Vetstein


Richard D. Vetstein, Esq.

73