Notes from Boston Eviction Moratorium Appeal Hearing January 19, 2022

These notes were taken during a hearing presided over by Judge Joseph M. Ditkoff in Suffolk County Housing Court, considering the “validity and enforceability of the temporary order establishing an eviction moratorium in the City of Boston.” The hearing pertained to two related cases: 1) Real Property Management v. defendants Eyette Green, Dashawnda Garrett and Ahmed Lewis, and 2) Janet Avila and David Boudreau v. defendants the Boston Public Health Commission and Acting Mayor of Boston Kim Janey.

Update April 14, 2022: The Chapter 257 law mentioned in these notes has been extended from Jan. 1, 2023, to March 1, 2023 by the April 1, 2022, budget amendment. This delays court cases while an application for rental assistance is pending.

Starting at 10:30 a.m., an appeal was heard on whether the lower court ruling should be stayed pending appeal. One of the two lower court hearings had been stayed administratively pending this hearing. The two lower court hearings were adjudicated by Judge Irene H. Bagdoian.

Justice Ditkoff initially began by commenting that Judge Bagdoian’s decision in the lower court seemed to have inadvertently granted possession to the landlord, not of the rented premises, but of the entire City of Boston. Both sides agreed to work with the court to correct what the judgment should have said.

There were two cases being appealed, a civil action and a summary process action both challenging the Boston eviction moratorium.

The summary process action was brought by plaintiff Real Property Management against defendants Eyette Green, Dashawnda Barrett and Ahmed Lewis. The civil action plaintiffs were Janet Avila and David E. Boudreau, Sr. v. defendants Dr. Bisola Ojikutu Executive Director of the Boston Public Health Commission; Rita Nieves, Interim Director and Agent of the Boston Public Health Commission; and Kim Janey, Acting Mayor of the City of Boston. (Appointments held by the participants as of the day of the hearing.)

Indefinite Moratorium?

Justice Ditkoff asked the city to speak first and gave the civil action defendants roughly 26 minutes. Tory Weigand, counsel for the Boston Public Health Commission (BPHC), defended the city’s moratorium by citing facts about COVID-19 and how evictions tend to lead to people being more likely to get sick with COVID-19.

Justice Ditkoff asked what the BPHC would want a judge to do, after having issued an execution (which typically reads, “You are hereby commanded…”) to comply with the moratorium. Weigand didn’t say the judge should tear up the execution or issue a stay. He said he would expect the order to be complied with in the course of law.

Justice Ditkoff also asked when the moratorium would end, and expressed concern that government inertia would result in the moratorium never being repealed.

No Self-Help Evictions

Next to speak was Dick Bauer of Greater Boston Legal Services (GBLS). He asked the court to preserve the moratorium to keep their client housed.

GBLS alleged that the landlord in that case refused to cooperate to get rental assistance for the renter and is not being substantially harmed.

Justice Ditkoff then turned to plaintiffs. First, he asked the plaintiffs about their amended complaint, where plaintiffs were added. The judgment before him only references the original plaintiffs.

Attorney Matorin spoke, saying they have the right to amend complaints and that the judgment reflects all plaintiffs. Justice Ditkoff asked Matorin to include this in the amendments made to the judgment, such that the final item before him would reference the amended complaint.

Justice Ditkoff then gave the plaintiffs 26 minutes to speak. He asked Attorney Matorin to explain, if he would be willing, what’s to prevent a renter from being evicted during the pandemic without the BPHC order.

The following is a paraphrase of what was said, with emphasis on Attorney Matorin’s comments. Any errors or omissions are our own. The tilde (~) represents the start of a long paraphrase.

Justice Ditkoff: ~What is preventing someone from evicting absent the moratorium?

Attorney Matorin: ~State law. It’s a very detailed process. It requires that the constables or sheriffs carry out the levy. A landlord can’t do anything unless the constables or sheriffs are willing to do it. There are no self-help evictions. BPHC has called for “voluntary compliance” because the order only applies to landlords.

~Constables serve at the pleasure of the mayor: their status can be revoked or renewed, so all constables are under the implicit threat of being put out of business.

Schrödinger’s Order

~Previously, the “Grace” case was mentioned by the defendants, regarding a Brookline eviction. Brookline asked for home rule authority to amend state law for evictions and impose a moratorium. Brookline got this permission, didn’t initially exercise the power, then did so in the case of Grace. The judge said Brookline’s moratorium doesn’t conflict with Chapter 239 because the legislature explicitly gave them permission to adjust it within city limits temporarily. Boston didn’t ask for a home rule petition.

~Another technical point: Note there are two cases here. Real Property Management (RPM) vs. Zayed Green was heard at the same time as Avila. The city has not requested a stay on RPM, but has on Avila only. Therefore, the housing court order is in effect on the RPM case, even though motion was filed to stay Avila. The order is kind of a Schrödinger’s order: it exists but does not exist on the Avila matter.

~Landlords could look at this and say, “There’s no stay on that other case, so I’m free to evict?” It’s a weird situation, and should factor into the court’s decision whether to extend the stay pending appeal.

(At this point, there was discussion about whether the RPM v. Green case had actually been levied. It might have been that there was no stay. Gary Klein of GBLS had represented Green, asked to address the point but was not allowed to speak yet.)

Is the Moratorium Political?

Matorin’s main focus was on whether the BPHC moratorium was reasonable. He argued that the BPHC moratorium is not actually a health regulation at all. Returning to MassLandlords’ paraphrase of Attorney Matorin’s remarks:

Attorney Matorin: ~The pandemic began March 2020. The legislature enacted Chapter 65 of the General Laws of 2020, and shut down the entire summary process procedure. Whether or not that’s constitutional, you can argue that the legislature has a statutory right to amend evictions. This lasted until October 2020 and then lapsed.

~When that lapsed, the BPHC didn’t announce their moratorium. They could have said, “There are no vaccines, the virus is spreading like wildfire, people are dying.” They didn’t. Between October 2020 and December 2020, there was no BPHC order.

~The CDC moratorium, in their wisdom as experts on communicable disease, focused on economically displaced people (their moratorium specified income limitations, whether someone had applied for rental assistance, etc.). In December 2020, it looked like the CDC moratorium might be expiring, so the legislature enacted Chapter 257. This was not an exact overlap, but focuses on economic displacement, pending applications for assistance, etc.

~The CDC moratorium was renewed. When challenged, BPHC didn’t come in and say, “We need to do this because the CDC moratorium is going to get struck down.”

~The CDC moratorium lapsed for a few days, then the CDC enacted a new moratorium slightly narrower but still focused. BPHC didn’t act during the lapse.

~Then the second CDC moratorium was struck down by SCOTUS, and it was at that moment that BPHC said they needed to act, despite the fact that chapter 257 was still in effect. So why did they do that?

~It’s pretty clear: Boston was in the midst of a heated mayoral campaign. Acting Mayor Janey was being attacked by an opponent for not doing enough to protect tenants in this housing crisis. The very next day she announced that the BPHC had imposed this across-the-board moratorium. So the question is, why did the BPHC do this? Was it really a health crisis, or was it political? Was it really trying to prevent the spread of disease, or was it simply a political tactic to show that the administration of the city of Boston knows that there are some real social issues with housing and rent rates, and we’re doing something to support you, and, “by the way, could you vote for us.”

~So the suggestion that this is a health regulation, never mind whether it’s reasonable, is belied by the political context. The courts should not defer to BPHC, and should decide that this is not a health regulation. And you see this in the briefs. The issues raised by the defendants are all social issues like disparate impact that have nothing to do with health.

In Discord with State Law

~The 6^th whereas clause from the end of the BPHC order described the need for additional time to access rental assistance. So the goal was to provide additional time, but that’s what Chapter 257 already does. The Boston moratorium isn’t limited to this goal, either. It’s an across-the-board ban regardless of whether someone is trying, so not even supported by its supposed justifications.

Justice Ditkoff asked about paragraph 1 of Chapter 111 section 31. He said there’s lots of law and case law on public health regulations, but no case law on this. He asked how he should adjudicate as a judge that law says the BPHC can do what it needs to do.

Matorin answered. Returning to our paraphrase:

Attorney Matorin: ~You judge this the same as any other decision. You can allow BPHC to issue regulations, as long as they don’t contradict state law. For instance, banning smoking in a bar, preventing vending machines for cigarettes being accessible to minors, preventing residences being infested with vermin. All of those are consistent with state law.

~The BPHC moratorium says, “I don’t care about the law.” And executions actually order constables to act, they say, “I order you, constable, to do this.” BPHC says, “We don’t care what judges order, what they write in executions.” BPHC can’t do that. They can only enact regulations in the interstices of the law. For instance, they could do what they do in second paragraph with respect to showings and access to units: when you’re going into a housing unit, you have to give 48 hours’ notice. They could say you have to wear masks, allow the tenant to be there or not, etc. Those are all reasonable and don’t run contrary to any law.

~BPHC could shut down restaurants if they believed that the spread of the virus was a problem. They haven’t done that, haven’t shut down anything. You can get a massage, go to a bar, go to a concert. The one thing that you’re not allowed to do is the one thing that has a social problem component to it, which is to levy on an execution. So they’re trying to address a broad social problem by going directly against what state law says should happen.

~That’s where the problem lies: they’re not acting in the interstices. They could require constables to wear a mask during a levy, they haven’t done that. And they are ignoring the fact that courts have the authority to evaluate any particular case on the merits. So, the BPHC says no one can get evicted, no matter how rich you are, how many other houses you have, or whether you’re going to live on the street or in a high rise after, no one can be evicted.

~The contradiction with state law brings me to the other issue not addressed by the defendants: whether the BPHC has the ability to do this at all. Article 89 Section 6 says BPHC cannot conflict with state law. you cannot enact local regulations that are civil laws. Landlord-tenant relationship is a civil law, the Supreme Judicial Court has repeatedly held this. BPHC are explicitly and ostentatiously contradicting state law and doing that in a way that regulates landlord-tenant relationships, and that violates the constitution.

No Irreparable Harm

~In terms of the likelihood of irreparable harm to the tenant, Ms. Watson is fully vaccinated and was awaiting booster at last report. As a matter of law, she has no legal right to remain, the housing court has already adjudicated her case. There cannot be irreparable harm because she has no right to be there to begin with.

~In terms of harm to landlords, the suggestion that there is money available is not true.

At this point, Justice Ditkoff interrupted Matorin for time and Matorin summarized, then stopped.

Ruling Pending Final Judgement

Klein was invited to speak about the Green, Barrett and Lewis cases. He said Ms. Green did not seek a stay pending appeal because she has an effective stay at paragraph 3 of the order that Judge Bagdoian entered. She was working with the clerk to schedule a hearing in January, so there was no risk to Ms. Green for eviction. Klein said she would reserve her right to seek a stay pending appeal if it became necessary.

Justice Ditkoff thanked everyone, and said this has been extremely helpful to the court.

Justice Ditkoff said he expected something to happen about the final judgment. Paraphrased: ~“I’m not going to issue a ruling until I get a notice from you that something is happening and here is the final judgment.” This reiterated the point he made upfront, which is that the Bagdoian order appears to grant possession of the City (rather than the premises) to the Landlord.

The administrative stay on one of the two cases continues until the judge issues an order.