Rights under attack: no court for you

April 3, 2020:- In order to slow the spread of COVID 19, on March 10 Governor Baker declared a state of emergency. On March 23, he ordered all “non-essential” businesses to close. Yesterday, the Massachusetts House of Representatives voted to prohibit landlords (commercial and residential) from issuing notices to quit and commencing eviction actions for the duration of the state of emergency plus 30 days. For the eviction-moratorium bill itself click here.

If tenants cannot pay rent (e.g. because state government destroyed their jobs) the landlord will not receive the money needed to pay for the upkeep of the premises, to pay employees, and pay taxes. Perhaps, to cover at least one part of this government-made crisis, the Legislature will appropriate money to expand the RAFT program. If so, it will need to dramatically expand not just the amount of money but also the eligibility rules.

The eviction moratorium marks the crossing of an important threshold. If and when the Governor signs it into law, the people of Massachusetts will experience yet another extraordinary erosion of their rights.

Rights trampled

If government takes your property for public use, it should compensate you. If you have a grievance, you should be able to seek redress in a court of law. These are not ideas that just popped into my head; they are principles embodied in our founding charter.

Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses. Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.

The eviction moratorium robs property-owners of the right to a legal remedy and it amounts to a taking without just compensation. It makes a mockery of Article 1, which describes the right of enjoying and protecting property as “natural, essential, and unalienable.” And it will have a devastating impact on rental-property owners, their families, and their employees. What possible rationale could there be for such an attack on our rights?

Pretext

According to the COVID Tracking Project, at this point the cumulative number of hospitalizations for COVID 19 is approximately 36,000, and the number of deaths is 6,962.  Unfortunately it seems reasonable to expect that the numbers will rise over the next couple of months, perhaps even as high as 100,000.

For some perspective, here are the nationwide figures from the CDC for the 2017-18 flu season:

The overall burden of influenza for the 2017-2018 season was an estimated 45 million influenza illnesses, 21 million influenza-associated medical visits, 810,000 influenza-related hospitalizations, and 61,000 influenza-associated deaths.

That’s certainly a large number of deaths. There’s no getting around the fact that 61,000 represents a lot of lost lives and bereaved families.  That same year, by the way, there were 36,550 deaths attributable to road traffic accidents.

Here are the figures for the previous flu season:

The overall burden of influenza for the 2016-2017 season was an estimated 29 million influenza illnesses, 14 million influenza-associated medical visits, 500,000 influenza-related hospitalizations, and 38,000 influenza-associated deaths.

So in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000. And we did not close down the economy and throw millions of people out of work.

A few years before, according to the CDC.

From 12 April 2009 to 10 April 2010, we estimate that approximately 60.8 million cases (range: 43.3-89.3 million), 274,304 hospitalizations (195,086-402,719), and 12,469 deaths (8868-18,306) occurred in the United States due to pH1N1. Eighty-seven percent of deaths occurred in those under 65 years of age[.]

Approximately 12,000 people in the United States died from H1N1 in 2009-10. The following flu season (2010-11), approximately 37,000 died from a different kind of influenza, according to the CDC. We did not close down the economy and throw millions of people out of work.

We are not at war, no matter what the politicians say (well, we are at war–at least our all-volunteer military is–but not against a virus). Rather, we are in a horrible but manageable pandemic. The circumstances do not justify this attack on our rights.

Conclusion

The Legislature and Governor are poised to strip property owners of the right to go to court to seek repossession of their own property. They are forcing an economic minority (rental-property owners) to pay the price for the state government shuttering businesses and destroying jobs, in other words to provide a public good without reasonable compensation. The rights that we lose today will not automatically bounce back tomorrow, or the day after, or when the Governor chooses to declare the emergency over.