May 7, 2020:- A federal judge provided a welcome victory for the rights of free speech and access to the courts yesterday. Judge Stearns of the U.S. District Court for the District of Massachusetts issued an injunction prohibiting Maura Healey (the Massachusetts Attorney General ) from enforcing “emergency” regulations that would have prevented debt collectors from making phone calls to debtors and from going to court.
Claiming authority under the Consumer Protection Act (M.G.L. c. 93A) Healey had issued “emergency” regulations that were exempt from the notice-and-comment requirement that usually allows the public to weigh in. These were in addition to, not instead of, the comprehensive debt-collection regulations that already govern this area of economic activity. The new regulations purported to ban debt collection agencies from calling debtors and taking them to court for the duration of the open-ended state of emergency that Governor Charlie Baker proclaimed on March 10.
Because the regulations interfered with constitutionally-guaranteed rights of speech, petitioning, and access to the courts, ACA International asked the federal court for an injunction. The judge noted that one of the supposed justifications for the regulation (“vouchsafing the financial wellbeing of Massachusetts residents”) had little apparent connection to the AG’s attempt to prohibit one particular form of communication with debtors, namely the telephone. In fact, none of the reasons that the AG offered could justify burdening the commercial speech of professional debt collectors (as opposed to other people trying to collect debts, which the regulation exempted).
With regard to the AG’s rationale for barring the courthouse doors to one class of litigants (i.e. that there is a state of emergency), the judge quoted from a decision of the Supreme Court of the United States: “Emergency does not create power… Constitutions cannot be changed by events alone.”
There are similarities between the debt-collection regulations and Chapter 65, the Legislature’s eviction moratorium. Chapter 65 bars one class of litigants from going to court to seek possession of their real estate for nonpayment of rent (but allows them to seek repossession where a tenant’s criminal activity/lease violations “may impact the health or safety” of another person). Similarly it bans them from sending tenants notices to quit for nonpayment of rent (but not where criminal activity/lease violations “may impact the health or safety” of another person).
Might a court use the same line of reasoning to strike down the part of Chapter 65 that bans landlords from issuing notices to quit and going to court for summary process?
Certainly, there is a difference between a regulation and a statute. But the principle that an officer of state government may not use the state of emergency as an excuse to strip away basic constitutionally-guaranteed rights should apply with equal force to the Legislature. Landlords should take hope from the ruling.