Eviction Moratorium Raises Constitutional Questions

The call to action below was emailed to subscribers the morning of Thursday, April 16.

Today we need you to call the Governor and/or your Governor's councilor.

An eviction moratorium was reconciled late Wednesday and is expected to head to the Governor's office soon to become law as early as today. This bill makes sense from a public health perspective, but it has some major flaws.

First among these is practicality. The bill offers mortgage forbearance, but only for owner-occupy fours and below. How will housing providers cover costs with neither rental income nor cost reduction?

Second, those of us who read the bill in detail can see that this public health law violates two basic rights that are guaranteed by our State Constitution:

1. the right of access to justice, and
2. the right to reasonable compensation for public takings of private property.

Calling and email can make a difference. Before signing this bill, the Governor (and Governor's Council) can and should ask the Supreme Judicial Court for an advisory opinion as to whether the law would be constitutional. Chapter 3, section 2 of the Constitution allows the Governor & Council to seek the opinion of the justices "upon important questions of law and upon solemn occasions." Today we have both an important question of law and a solemn occasion.

This eviction moratorium bill, which is on its way to the Governor now, will prohibit property owners from asking the courts to evict tenants unless there is a health and safety violation to another resident. It will effectively compel owners to provide free housing (a public benefit) at their own expense, with no compensation from the Commonwealth. Two articles of the Massachusetts Declaration of Rights are at stake:

• Article 10 (no takings without compensation); and
• Article 11 (everyone has the right to seek a legal remedy by recourse to the laws, and to obtain justice freely)

To make matters worse, the law would remain in effect at the discretion of the Governor, not the Legislature. This is a separation of powers issue.

Please call the Governor and your Governor's Councilor today and urge them to seek an advisory opinion from the SJC. This is our last chance to stop this unconstitutional bill from becoming law. We must find a long-term sustainable way to provide housing for the needed stay-at-home order, however long it may last.

https://www.mass.gov/orgs/office-of-the-governor

(scroll down)

https://www.mass.gov/service-details/councillors

First find your district at http://www.sec.state.ma.us/ele/eledist/counc11idx.htm

Suggested text:

An eviction moratorium H4647 has been drafted by the legislature for signing into law today or very soon. Chapter 3, section 2 of the Constitution allows you to seek the opinion of the Supreme Judicial Court "upon important questions of law and upon solemn occasions." I think this law is unconstitutional. Please request the SJC review the law prior to signing.