Attorney and Counselor at Law
March 27, 2024:- Yesterday I sat down for a live on-air interview with Julie and Lisa, the hosts of Health Freedom Radio on WCRN. We discussed the No Jab, No Job rule and Murthy v. Missouri, the censorship case currently pending before the Supreme Court of the United States.
To listen, click here. The interview starts at about the 20-minute mark.
What would you do if somebody accused you of discrimination? That’s a question landlords need to think about.
On Thursday, April 11, 2024, I will be presenting at a MassLandlords meeting on the subject of how to defend yourself at the Massachusetts Commission Against Discrimination (MCAD).
The venue: Twin Hills Country Club, 700 Wolf Swamp Rd, Longmeadow, MA 01106.
For tickets, click here.
March 4, 2024:- Today the Supreme Judicial Court (SJC) issued its decision in Fallon Community Health Plan, Inc. v. Acting Director of the Department of Employment Assistance. You can read the decision on the New Opinions page. It is good news for workers who were discharged because their religious beliefs prevented them being injected with the products advertised as COVID-19 vaccines.
In October 2021, Shanika Jefferson was a home health aide whose employer, Fallon, required her to get the jab or lose her job. Because of her religious convictions, Ms. Jeffreson did not get the jab, and Fallon terminated her employment. She applied for and, after an appeal, obtained unemployment benefit. But Fallon said she did not qualify for benefits because she had knowingly violated Fallon’s reasonable policy or engaged in deliberate misconduct in willful disregard of Fallon’s interests, which (under the applicable statute) would render Ms. Jefferson ineligible.
But the SJC upheld the decision to award Ms. Jefferson benefits, stating:
Jefferson engaged in a good faith effort to comply with Fallon’s policy by applying for a religious exemption, which was offered under the policy, based on her sincerely held religious beliefs. That her request for an exemption was denied does not mean that she engaged in deliberate misconduct.
Further:
[T]he record demonstrates that rather than disregarding Fallon’s interest, Jefferson was willing to take several measures, including wearing personal protective equipment and undergoing frequent testing, in order to keep Fallon’s vulnerable patient population safe.
Finally, and (to my mind) of the utmost significance:
Although Jefferson was aware of the policy prior to and during her noncompliance, the unique circumstances here did not present Jefferson with a meaningful choice regarding vaccination given her religious beliefs.
This is a welcome decision.
January 29, 2024:- If you are a Massachusetts landlord, remember that under the State Sanitary Code you have to make tenants aware of a State government document called the Notice of Occupants’ Legal Rights and Responsibilities.
The notice informs tenants that if they think that the conditions in the property are unsafe or unsanitary and may violate the State Sanitary Code they should inform the landlord and, if that does not work, call the local board of health.
Landlords need to either provide tenants with the notice or post a copy of it “on durable material not less than 20 square inches in size and placed at the residence adjacent to the mailboxes or within the interior of the residence in a location visible to the occupants.” Some landlords choose to include a copy of the notice with the other documents that new tenants receive at the beginning of the tenancy, e.g. the receipt for first month’s rent and last month’s rent and the Lead Law Notification.
This is something that landlords need to do in order to comply with the Code. But bear in mind, the notice not only informs people about the law; it also promotes organizations that campaign for measures that hurt landlords, such as rent control.
The Notice of Occupants’ Rights has a link to masslrf.org, the site of a State program called the Massachusetts Legal Resource Finder. Here is the relevant paragraph:
According to the notice, the reason for the link to the Massachusetts Legal Resource Finder is so that tenants can “find available options for free legal advice.” Innocuous enough, perhaps.
But among the organizations to which Massachusetts Legal Resource Finder directs tenants is City Life/Vida Urbana. This particular organization is not exactly a source of “legal advice,” although its blurb on the Legal Resource Finder’s site says that it gives “legal information.”
Clicking the More Info button takes you here:
Clicking on the clvu.org link takes you to the City Life/Vida Urbana website, which includes this:
And this:
City Life/Vida Urbana is not a law firm, nor does it pretend to be. What this tax-exempt group does is engage in political organizing and lobbying, some of it geared toward rent control. Its avowed mission?
“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”
As for the vision, City Life/Vida Urbana “embraces” a vision that includes:
“a guarantee that each person has the right to food, housing, health care, education, meaningful employment, and the right to exist in freedom without fear of displacement or deportation.”
There is certainly nothing wrong with political organizing and lobbying (self-government depends on it), and people are perfectly free to “build collective power to effect systemic change and transform society” if that’s how they like to spend their time. And you can embrace any vision you want, so far as I’m concerned, if the vision is amenable to being embraced. But all this is not at all the same thing as free legal advice, which is the legal resource that the Massachusetts Legal Resource Finder is supposed to help tenants find. If the term “legal resource” encompasses City Life/Vida Urbana, what does it not encompass, I wonder.
To summarize: State law requires that landlords distribute a document that directs tenants to the Massachusetts Legal Resource Finder, an organization that promotes City Life/Vida Urbana, an advocacy group that campaigns for rent control. Failure to comply is a violation of the State Sanitary Code.
Landlords have a legal duty to provide tenants with a State-published document titled Notice of Occupants’ Rights and Responsibilities. This notice, albeit indirectly, helps advocate for rent control, a policy that runs directly counter to the interests of landlords. In this way, individuals who oppose rent control have to subsidize and amplify political speech that endorses it.
If you would like to help persuade State government to revise the notice, let me know.
December 1, 2023:- The Attorney General of Texas has filed suit against Pfizer over the company’s misrepresentations about the efficacy of its COVID-19 “vaccine.” The lawsuit alleges that Pfizer violated the Texas Deceptive Trade Practices Act by misrepresenting relative risk reduction, durability of protection, transmission, and protection against variants.
I expect to write more about this case as it moves forward. In the meantime here are the facts at the heart of the complaint:
While Pfizer’s 95% figure made its vaccines seem highly effective, the truth was quite different. When it began making those claims, Pfizer possessed on average only two months of clinical trial data from which to compare vaccinated and unvaccinated persons.
Of 17,000 placebo recipients, only 162 acquired COVID-19 during this two-month period. Based on those numbers, vaccination status had a negligible impact on whether a trial participant contracted COVID-19.
The risk of acquiring COVID-19 was so small in the first instance during this short window that Pfizer’s vaccine only fractionally improved a person’s risk of infection. And a vaccine recipient’s absolute risk reduction—the federal Food & Drug Administration’s (FDA) preferred efficacy metric—showed that the vaccine was merely 0.85% effective.
Texas v. Pfizer, Inc., Petition, p. 2
For a little more detail, take a look at paragraph 45 of the Petition:
[T]he absolute risk reduction for defined COVID-19 cases was only 0.85%. As previously noted, a vaccine’s absolute risk reduction is determined by subtracting the post-treatment risk rate from the baseline risk rate. Using Pfizer’s Phase 2/3 data, this calculation is performed by subtracting the post-treatment risk rate of 0.04% (8/17,411 persons) found in the vaccine group from the baseline risk rate of 0.9% (162/17,511 persons) found in the placebo group, which after rounding yields 0.85%. This less-than-one-percent total reduction in risk is a product of the fact that very few people in either the placebo or treatment group qualified as a defined COVID-19 case.
How effective are these mRNA-based products at stopping people catching and spreading the disease they are supposed to prevent? Was the degree of effectiveness really just 0.85%, as Pfizer’s own data indicated? The answer to this question is important.
Residents of Massachusetts (as well as Texas) deserve to know, in part because millions of Bay Staters received the products in the belief that they were effective, and also because the Commonwealth discharged a large number of public employees by requiring them to be injected, even those workers who could not do so for medical and religious reasons (the No Jab, No Job rule).
A public health researcher could try to answer this question by tracking breakthrough cases, i.e. the percentage of people who got the jab then caught the disease. But, as I have mentioned before, the Massachusetts Department of Public Health — whose statutory duties include investigating and preventing the spread of infectious diseases — has deliberately chosen not to track breakthrough cases, at least not since they crossed the 11% threshold.
Pleased as I am to see the Texas Attorney General trying to hold Pfizer and, in turn, the other “vaccine” purveyors to account for misleading the public about the products, the companies did not act alone. It was the politicians, public health officials, intelligence agencies, and allied media outlets who took the lead in the deception.
Yes, on the one hand, the Texas lawsuit mentions the company’s practice of smearing anyone who dared question the products’ efficacy as conspiracy theorists and stigmatizing their statements as misinformation:
Pfizer also took overt action to intimidate and silence persons who spread factual information about vaccine efficacy. On information and belief, Pfizer engaged in this misconduct to prolong the effectiveness of the company’s deception campaign, thereby maintaining the false impression that its COVID-19 vaccine had more efficacy than in reality. Over the course of 2021, Pfizer’s censorship campaign helped secure commitments to purchase at least 415 million and 2.7 billion doses from the U.S. and foreign governments respectively, displacing Pfizer’s rivals and achieving the status of first-choice vaccine.
Pfizer was certainly part of the censorship campaign. But it was not Pfizer who had the power to persuade Facebook, YouTube, Twitter, etc., to quash questions and inconvenient truths. It was US government employees who had that power, and they used it.
One potential weakness of the Texas case is that it goes after only one of the conspirators, namely Pfizer. Among the many other conspirators was Rob Flaherty, who had served the Biden campaign and transition team as Digital Director and, after inauguration day, became Deputy Assistant to the President and Director of Digital Strategy. Now, according to his LinkedIn page, Mr. Flaherty is full-time Deputy Campaign Manager for the Biden for President Campaign.
Rob Flaherty
Until April 2023, Mr. Flaherty was the President’s Director of Digital Strategy. Here is how US District Judge Doughty’s decision in the case of Missouri v. Biden described Mr. Flaherty’s role in censoring speech (pp. 9-27, White House Defendants):
In an April 22, 2021, email, Flaherty provided a recap of the meeting and stated his concern that misinformation on YouTube was “shared at the highest (and I mean the highest) levels of the White House.” Flaherty indicated that the White House remains concerned that YouTube is “funneling people into hesitancy and intensifying people’s vaccine hesitancy.” Flaherty further shared that “we” want to make sure YouTube has a handle on vaccine hesitancy and is working toward making the problem better. Flaherty again noted vaccine hesitancy was a concern that is shared by the highest (“and I mean the highest”) levels of the White House.
That was from p. 19. This is at page 26:
On June 13, 2022, Flaherty demanded Meta continue to produce periodic COVID-19 insight reports to track COVID-19 misinformation, and he expressed a concern about misinformation regarding the upcoming authorization of COVID-19 vaccines for children under five years of age. Meta agreed to do so on June 22, 2022.
And at p. 27:
On August 23, 2021, Flaherty emailed Facebook requesting a report on how Facebook intended to promote the FDA approval of the Pfizer vaccine. He also stated that the White House would appreciate a “push” and provided suggested language.
On behalf of President Biden, Mr. Flaherty told social media companies to stop publishing statements about Pfizer’s products — truthful statements that the government misdescribed as disinformation — and to instead provide the products with free advertising. Remember, Mr. Flaherty was an employee not of Pfizer but of the US government. Certainly, Pfizer reaped the benefit, but Pfizer did not commit the unlawful acts of censorship.
How will Pfizer respond to the Texas lawsuit? If I had to bet, I would put serious money on the company’s second or third line of defense consisting of finger pointing, something along these lines: “Fair enough, our product does not stop people from catching and spreading COVID-19 and any suggestions to the contrary are misleading. But we aren’t the ones who misled people; that was the government.”
Stay tuned.
September 5, 2023:- Let me begin this post about today’s Appeals Court decision in the matter of Ferreira v. Charland with a quote from one of the 8 dissenting justices:
[O]ur decision adds to the steady judicial drumbeat warning every small residential landowner that, whatever you do, do not rent out your property. There are many reasons for the housing crisis in Massachusetts, but we would do well to acknowledge that our landlord-tenant jurisprudence is one of them.
Ditkoff, J. (dissenting, with whom Meade, Neyman, Singh, Englander, Walsh, Brennan, and Hodgens, JJ., join).
The case concerns a no-fault summary process (eviction) case in which the tenant’s answer to the complaint alleged that the landlord, Cassandra Ferreira, had violated the water-use statute in some way. There was no suggestion that Ms. Ferreira was trying to evict the tenant in retaliation because the tenant had complained about something. The landlord attempted to address this allegation before the trial by paying the tenant an amount equal to three months’ rent. That payment may well have been more than the tenant’s claim was worth.
Why did Ms. Ferreira pay the tenant?
One part of the summary-process statute , G.L. c. 239, s. 8A, says that landlords cannot regain possession if they owe the tenants money as a result of the tenants’ counterclaims. Here is the exact text of the fifth paragraph (most relevant language in bold):
“There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section. If the amount found to be due the landlord exceeds the amount found to be due the tenant or occupant, there shall be no recovery of possession if the tenant or occupant, within one week after having received written notice from the court of the balance due, pays to the clerk the balance due the landlord, together with interest and costs of suit, less any credit due the tenant or occupant for funds already paid by him to the clerk under this section. In such event, no judgment shall enter until after the expiration of the time for such payment and the tenant has failed to make such payment. Any such payment received by the clerk shall be held by him subject to the provisions of the preceding paragraph.”
In an effort to regain her home by ensuring that she did not owe the tenant anything, Ms. Ferreira tried to settle the tenant’s claim. Settlement of claims is what the summary process statute should encourage. But the Appeals Court held that her payment did not settle the matter.
The normative effect of this decision? It will tend to prolong summary process cases and remove an incentive for prompt settlement. It will, or at least should, deter homeowners from becoming landlords (remember, Governor Healey and Lieutenant Governor Driscoll want you to open your doors to help solve the housing crisis).
By the time of trial, Ms. Ferreira did not owe the tenant any money, and the tenant’s attorney agreed that by way of the payment she had been “made whole,” so the Housing Court judge concluded that Ms. Ferreira was entitled to possession. The tenant appealed. But today the Appeals Court held that the judge should not have awarded Ms. Ferreira possession. Writing for the majority, Justice Blake stated:
This was error because the judge failed to recognize that the tenant’s counterclaim carried two potential forms of relief at the time it was asserted: money damages and a defense to possession under § 8A.
Blake, J.
Why was the judge wrong, according to the majority? Because the payment that Ms. Ferreira made only addressed the money side of things and did not cancel out the tenant’s defense against possession.
In one sense, the Appeals Court decision is a run-of-the-mill reminder that in Massachusetts a tenant’s counterclaim — any counterclaim — can defeat a landlord’s claim for possession, even in no-fault cases where the landlord is not seeking any rent arrears. But given the particular facts of the case, the decision is quite stunning.
Before quoting Justice Ditkoff’s account of the basic facts, here is a recap of the majority’s decision: Ms. Ferreira could not regain possession of her home even though before the trial she had given the tenant a check equal to three months’ rent to compensate for an alleged water-use violation that she only learned about after the case had commenced and which the tenant’s lawyer conceded had made the tenant whole.
Now, here is how Justice Ditkoff describes the situation:
“Cassandra Ferreira lived in the subject property for over three years. When she decided to move in with her boyfriend in 2016, she rented the property to the tenants for less than her carrying costs. Her relationship fell victim to the stresses of the pandemic, however, so she left her boyfriend and informed the tenants in July 2020 that she needed the property for herself. For the same reason, her ballet studio ceased to be profitable, and she was in financial straits. She sent the tenants a notice to quit on October 20, 2020, three days after the Massachusetts pandemic eviction moratorium ended… terminating the tenancy effective December 3, 2020.
When the tenants refused to leave, Ferreira became homeless, moving from couch to couch in the houses of family or friends. Mostly, she stays on a couch in the unheated basement of her parents’ home. She suffers from depression and anxiety, both of which have been exacerbated by her living situation. She also is being treated for a medical condition and her doctor opined that ‘[i]t will be medically necessary for [Ferreira] to have a stable living situation in order to have a successful recovery.’ That medical recommendation has not been followed.”
Here is the description from Justice Meade (dissenting):
“Cassandra Ferreira… just wants to live in her own home. She had rented it to Laural Charland (tenant), and later wished to regain possession. In a no-fault summary process action, the tenant asserted a counterclaim alleging a violation of the water use statute. See G. L. c. 186, § 22. The landlord realized her mistake and, prior to trial, paid the tenant not just the amount owed for the water and sewer damages, but double that amount, which was equal to more than three times the tenant’s monthly rent. While not quite devolving to the level of Charles Dickens’s Bleak House, this case could easily be described as Kafkaesque. The majority concludes that even though counsel for the tenant admitted that the tenant had been made whole (and then some), she gets to remain in the home, and the only solution for the landlord is more litigation. As I cannot agree, I respectfully dissent.”
Readers inclined to take the advice of the Governor and open up their homes to help solve the housing crisis, should pause and think about what happened to — what is still happening to — Cassandra Ferreira. It is hard to see the decision of the Appeals Court as anything other than what Justice Ditkoff called it: Yet another warning to small property owners to refrain from becoming landlords, and yet another ratcheting up of the cost of housing in Massachusetts.
August 17, 2023:- The Massachusetts Legislature has restored and made permanent a law that puts nonpayment eviction cases on hold if the tenant applies for rental assistance, e.g. RAFT. It adds a new section 15 to chapter 239 of the General Laws. To read the new law, click here.
How does the law work? When tenants stop paying rent, the landlord sends a notice to quit for nonpayment of rent together with a State government form called the Form to Accompany Residential Notice to Quit. This form informs the tenants (in all capitals) that the notice to quit is not an eviction and they do not need to leave.
Some people, when they receive a government document that declares
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT
conclude that the notice to quit is not an eviction, and they do not need to immediately leave.
If the tenants do not leave and do not pay the arrears, the landlord starts a summary process (eviction) case by having the sheriff serve a legal document called the summary process summons and complaint. A few weeks after the landlord files the case, the Housing Court will schedule an opportunity to mediate. This is called the First-Tier Event.
The court gives the landlord a notice of the First-Tier Event, which the landlord must pay the sheriff to serve on the tenants. The notice contains information about how to file an answer to the summary process complaint, including links to an online service that Greater Boston Legal Services created (with help from City Life/Vida Urbana and the court) that guides tenants through the process of preparing an answer, replete with defenses and counterclaims.
At the First-Tier Event, if one party does not want to mediate or if mediation happens but does not produce an agreement, the court schedules a trial. By the time of the mediation, the tenants are supposed to have filed an answer to the complaint.
On the day of trial, the tenants can put the brakes on the case by submitting an application for rental assistance. Unless and until the rental-assistance administrator approves or denies the application, the judge cannot enter judgment or issue execution. The case goes into suspended animation.
But as the people who passed this law know perfectly well, a large proportion of rental applications result in neither an approval nor a denial; they simply time out.
Administrators deem applications timed-out for a variety of reasons, e.g. the tenants did not submit a copy of the lease, or they did submit a copy but it got lost in the system, or the landlord did not submit a copy of the ledger showing the amount of the arrears, or the landlord did submit the ledger but by the time the administrator got round to processing the application the ledger was out of date. There is nothing rare about time-outs.
So how does section 15 provide for the time-out scenario? It doesn’t. This means that landlord lawyers will bring motions arguing that a timed-out application means that the case can go forward. The tenants’ lawyers will oppose those motions arguing that the word “denied” means denied, not timed-out. Judges will have to decide whether the time-out is the functional equivalent of a denial (so that the case can proceed) or not (meaning the case remains on ice). A patchwork of decisions emerges across the different divisions of the Housing Court — sometimes even between the judges within one division — and uncertainty and unpredictability ensue until an appellate-level court resolves the matter.
Section 15 is a law that the Legislature originally enacted to help prevent people losing their homes as a result of the governmental response to COVID-19. It was a policy response to three earlier policies (measures with perfectly foreseeable consequences) namely (1) Governor Charlie Baker’s decision to close “non-essential” businesses in 2020 thereby causing mass unemployment; (2) the partial eviction moratoria that President Trump and the Massachusetts Legislature imposed at the federal and State level, which prevented landlords from going to court to seek rent; and (3) the decision by Congress to print/borrow money at a hitherto unimaginable scale thereby reducing the value of the dollar.
Together these three policy choices ensured that the cost of rental housing would rise and that people whom policymakers had impoverished would be unable to afford their housing. Putting eviction cases on hold while tenants apply for rental assistance, which they could have applied for before the landlord started eviction proceedings, adds to the average cost of a nonpayment eviction case. Bear in mind, while the eviction case is on ice, the landlords’ costs continue to accrue; landlords still have to maintain the premises up to Code, pay their employees, and meet their other obligations. Landlords have to keep the premises up to Code and pay their other bills and taxes. They also need to pay their lawyers, and longer cases mean higher legal fees.
How do landlords manage cost increases of this kind? Like other businesses that provide a service, when costs go up they increase the price of the service. They raise the rent.
The previous incarnation of section 15 expired earlier this year. By then, in combination with the other measures that policymakers inflicted on us in 2020-23, it had worked its magic. Housing had become less affordable and many smaller landlords had left the rental-housing business by either taking their properties off the market or selling to larger entities with more capital and better political connections.
Now, having devoted much effort to driving smaller landlords out of business and pushing up the price of rental housing, Beacon Hill leaders want you to help solve the problem by becoming an amateur landlord. Yes, seriously.
Earlier this month, Governor Maura Healey declared a state of emergency to address the sudden influx of people who are arriving in Massachusetts in search of, inter alia, free housing. The shelters are full, and apparently there is a dearth of affordable housing in Massachusetts.
According to several media reports, including Boston 25, Lt. Governor Kim Driscoll said, “if you have an extra room or suite in your home, please consider hosting a family.”
When you invite someone else to come live in your home, and you obtain something of value in return (e.g. they help out around the house) you become a landlord. After they move in and you, for whatever reason, come to regret your decision and politely request that your tenants find somewhere else to live but they decline to do so, you will need to go to court.
This is the situation that the Governor and Lieutenant Governor, with their shameless appeal to altruism, are asking you to put yourself in.
On the bright side, right now at least they’re just asking. As I write this, they have still not passed a Quartering Act, which means that your State government is not yet requiring you to open up your door and play host to strangers. But remember, by declaring a state of emergency Governor Healey arrogated to herself the same powers that her predecessor deployed with such care and foresight from March 2020 onward (forgive my sarcasm). So stay tuned.
Photo by Zulian Firmansyah on Unsplash
Arizona, et al v. Mayorkas, 589 U.S. _____ (2023)
Statement of GORSUCH, J.
This case concerns the “Title 42 orders.” Those emergency decrees severely restricted immigration to this country for the ostensible purpose of preventing the spread of COVID-19. The federal government began issuing the orders in March 2020 and continued issuing them until April 2022, when officials decided they were no longer necessary.1 If that seems reasonable enough, events soon took a turn.
In a federal district court in Louisiana, a number of States argued that the government’s decision to end the Title 42 orders violated the Administrative Procedure Act (APA), 5 U. S. C. §551 et seq., because agency officials had not pro vided advance notice of their decision or invited public com ment.2 The States did not seriously dispute that the public- health justification for the orders had lapsed. The States also understood that their lawsuit would only require the government to take certain additional procedural steps before ending the Title 42 orders. But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight. Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it.3 Keeping the Title 42 orders in place even temporarily was better than the alternative. In the end, the district court agreed with the States’ APA arguments and entered a nationwide injunction that effectively required the government to enforce the Title 42 orders until and un less it complied with the statute’s notice-and-comment procedures.4
Meanwhile, a thousand miles away, a group of asylum seekers filed a competing class-action lawsuit in a federal district court in Washington, D. C. This group argued that, from the start, the government lacked legal authority to issue its Title 42 orders. Ultimately, the D. C. district court agreed with the group’s assessment and issued an equally sweeping form of relief — sometimes called “universal vacatur” — that purported to wipe the Title 42 orders off the books as if they never existed.5 So it is that the federal government found itself in an unenviable spot — bound by two inconsistent nationwide commands, one requiring it to enforce the Title 42 orders and another practically forbidding it from doing so.
If these head-spinning developments were not enough, more followed. Displeased with the D. C. district court’s ruling, some of the States in the Louisiana case moved to intervene in the D. C. case. The States said they wanted to defend the Title 42 orders on appeal because the federal government was unlikely to do so with sufficient vigor. Ultimately, the court of appeals denied the States’ motion to intervene as untimely.6 So, late in 2022, the States turned to this Court seeking two things. First, they asked for expedited review of the appellate court’s order denying their motion to intervene. Second, they asked for a stay of the D. C. district court’s decree vacating the Title 42 orders. The Court granted both requests. In doing so, the Court effectively extended the Title 42 orders indefinitely.7
Now, almost five months later, the Court puts a final twist on the tale. It vacates the appellate court’s order denying the States’ motion to intervene and remands with instructions to dismiss the motion as moot. Why the sudden about-face? Recently, Congress passed and the President signed into law a joint resolution declaring that the COVID-19 emergency is over.8 The Secretary of Health and Human Services, too, has issued his own directive announcing the end of the public-health emergency underlying the Title 42 orders.9 Apparently, these developments are enough to persuade the Court that the Title 42 orders the government wished to withdraw a year ago are now as good as gone and any dispute over them is moot.
I recite all this tortured procedural history not because I think the Court’s decision today is wrong. Nearly five months ago, I argued that the Court erred when it granted expedited review and issued a stay. As I explained at the time, I do not discount the States’ concerns about what is happening at the border, but “the current border crisis is not a COVID crisis.”10 And the Court took a serious misstep when it effectively allowed nonparties to this case to manipulate our docket to prolong an emergency decree designed for one crisis in order to address an entirely different one.11 Today’s dismissal goes some way to correcting that error.
I lay out the history of this case only because it is so typical. Not just as an illustration of the quandaries that can follow when district courts award nationwide relief, a problem I have written about before.12 Even more importantly, the history of this case illustrates the disruption we have experienced over the last three years in how our laws are made and our freedoms observed.
Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes.13 They shuttered businesses and schools, public and private.14 They closed churches even as they allowed casinos and other favored businesses to carry on.15 They threatened violators not just with civil penalties but with criminal sanctions too.16 They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct.17 They divided cities and neighborhoods into color-coded zones, forced individuals to fight for their freedoms in court on emergency timetables, and then changed their color-coded schemes when defeat in court seemed imminent.18
Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide.19 They used a workplace-safety agency to issue a vaccination mandate for most working Americans.20 They threatened to fire noncompliant employees,21 and warned that service members who refused to vaccinate might face dishonorable discharge and confinement.22 Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.23
While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress — the bodies normally responsible for adopting our laws — too often fell silent. Courts bound to protect our liberties addressed a few-but hardly all-of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmakingby-litigation.
Doubtless, many lessons can be learned from this chapter in our history, and hopefully serious efforts will be made to study it. One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action — almost any action — as long as someone does something to address a perceived threat. A leader or an expert who claims he can fix everything, if only we do exactly as he says, can prove an irresistible force. We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties — the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. Of course, this is no new story. Even the ancients warned that democracies can degenerate toward autocracy in the face of fear.24
But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process.25 Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.26 Decisions announced on the fly are rarely as wise as those that come after careful deliberation. Decisions made by a few often yield unintended consequences that may be avoided when more are consulted. Autocracies have always suffered these defects. Maybe, hope fully, we have relearned these lessons too.
In the 1970s, Congress studied the use of emergency decrees.27 It observed that they can allow executive authorities to tap into extraordinary powers.28 Congress also observed that emergency decrees have a habit of long outliving the crises that generate them; some federal emergency proclamations, Congress noted, had remained in effect for years or decades after the emergency in question had passed.29
At the same time, Congress recognized that quick unilateral executive action is sometimes necessary and permitted in our constitutional order.30 In an effort to balance these considerations and ensure a more normal operation of our laws and a firmer protection of our liberties, Congress adopted a number of new guardrails in the National Emergencies Act.31
Despite that law, the number of declared emergencies has only grown in the ensuing years.32 And it is hard not to wonder whether, after nearly a half century and in light of our Nation’s recent experience, another look is warranted. It is hard not to wonder, too, whether state legislatures might profitably reexamine the proper scope of emergency executive powers at the state level. At the very least, one can hope that the Judiciary will not soon again allow itself to be part of the problem by permitting litigants to manipulate our docket to perpetuate a decree designed for one emergency to address another. Make no mistake-decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.
Footnotes
1 87 Fed. Reg. 19944-19946, 19956 (2022).
2 Louisiana v. Centers for Disease Control & Prevention, 603 F. Supp. 3d 406, 412 (WD La. 2022).
3 Id., at 417.
4 Id., at 441.
5 Huisha-Huisha v. Mayorkas, 2022 WL 16948610, *15 (Nov. 15, 2022).
6 Arizona v. Mayorkas, 598 U. S. _ , _ (2022) (GORSUCH, J., dissenting) (slip op., at 2).
7 See id., at_ (slip op., at 3).
8 Pub. L. 118-3, 137 Stat. 6.
9 See U.S. Dept. of Health and Human Services, COVID-19 Public Health Emergency (PHE), https://www.hhs.gov/coronavirus/covid-19- public-health-emergency/index.html.
10 Arizona, 598 U. S., at_ (GORSUCH, J., dissenting) (slip op., at 3).
11 Id., at_-_ (slip op., at 2-3).
12 Department of Homeland Security v. New York, 589 U. S. _, _ (2020) (opinion concurring in grant of stay) (slip op., at 3).
13 See, e.g., Republican National Committee v. Democratic National Committee, 589 U. S. _, _ (2020) (Ginsburg, J., dissenting) (slip op., at 2) (noting that the Governor of Wisconsin ordered residents “to stay at home … to slow the spread of the disease”); see generally The Council of State Governments, COVID-19 Resources for State Leaders: 2020- 2021 Executive Orders, https://web.csg.org/covidl9/executive-orders/ (COVID-19 Resources for State Leaders) (cataloging such orders issued throughout the country).
14 See, e.g., Rossi v. Arch Ins. Co., 60 F. 4th 1189, 1192 (CA8 2023) (noting that “state and local governments” across the country issued “stayat-home orders” that shuttered businesses); Kentucky ex rel. Danville Christian Academy, Inc. v. Beshear, 981 F. 3d 505, 507 (CA6 2020) (noting that the Governor of Kentucky prohibited “in-person instruction at all public and private elementary and secondary schools”); see generally COVID-19 Resources for State Leaders.
15 Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. _, _ (2020) (GORSUCH, J., dissenting from denial of application for injunctive relief) (slip op., at 1).
16 See, e.g., D. Burke, Police Arrest Florida Pastor for Holding Church
Services Despite Stay-at-Home Order, CNN (Mar. 30, 2020), https:// http://www.cnn.com/2020/03/30/us/florida-pastor-arrested-river-church/index.html.
17 Roberts v. Neace, 958 F. 3d 409, 412 (CA6 2020) (per curiam).
18 Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. _, _ (2020) (per curiam) (slip op., at 1-7); see also South Bay United Pentecostal Church v. Newsom, 592 U.S._,_-_ (2021) (statement of GORSUCH, J.) (slip op., at 1-6).
19 Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. _, _ (2021) (per curiam) (slip op., at 1).
20 National Federation of Independent Business v. OSHA, 595 U. S. _,_ (2022) (slip op., at 1).
21 See, e.g., K. Liptak & K. Collins, Biden Announces New Vaccine Mandates that Could Cover 100 Million Americans, CNN (Sept. 9, 2021), https://www.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html. 22Austin v. U.S. Navy Seals 1-26, 595 U.S._,_ (2022) (ALITO, J., dissenting) (slip op., at 1).
23 See, e.g., S. Myers, Free Speech vs. Disinformation Comes to a Head, N. Y. Times (Feb. 9, 2023), https://www.nytimes.com/2023/02/09/business/ free-speech-social-media-lawsuit.html.
24 See, e.g., Aristotle’s Politics, Bk. V, chs. 2, 4 (H. Rackham transl. 1959).
25 See, e.g., The Federalist No. 10, pp. 80-84 (C. Rossiter ed. 1961) (J. Madison); id., No. 35, at 215-216 (A. Hamilton); id., No. 57, at 350- 356 (J. Madison).
26 Cf. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
27 Congressional Research Service, National Emergency Powers 7 (Nov. 19, 2021) (CRS) (describing congressional studies undertaken from 1972 to 1976 regarding emergency powers).
28 Id., at 8.
29 Id., at 7.
30 Id., at 1, 8-10.
31 90 Stat. 1255 (codified at 50 U.S. C. §§1601-1651).
32 CRS 12 (identifying dozens of existing emergencies as of 2019).
April 28, 2023:- As part of the applicant screening process, landlords are able to look at masscourts.org, a site that enables the public to search for civil lawsuits. There they can find out whether rental applicants have been involved in any court proceedings, including summary process (eviction) cases and cases where tenants have sued their landlords.
If an applicant has been the defendant in several eviction cases for nonpayment of rent, the landlord may worry that the person may not be a reliable tenant. May the landlord safely reject the applicant for that reason alone?
I would counsel caution. Although I have not seen any Housing Court rulings on this topic, let alone any appellate-level decisions, I think that rejecting an applicant on the basis of having been the defendant in a summary-process case could be unlawful. Why? Because it might constitute reprisal.
Reprisals against tenants are unlawful. The relevant Massachusetts statute, G.L. c. 186, § 18, prohibits “any person or agent thereof” from taking reprisals against tenants because of the tenants reporting or complaining about suspected violations or because of the tenants trying to enforce any law, regulation, or bylaw that regulates residential premises. For example, if the conditions in a dwelling fall below what the State Sanitary Code requires and the tenants complain to the board of health, any act of reprisal against the tenants will give the tenants the right to sue for damages.
The rationale is clear. If landlords can evict tenants who complain about sub-standard conditions, tenants will be more likely to put up with bad conditions out of fear of losing the house or apartment. This would cause quality of rental housing to deteriorate. The law’s goal is to protect tenants who complain and thereby encourage landlords to respond to complaints by repairing the bad conditions so that the quality of rental housing to improve.
This law usually comes up when a landlord has taken tenants to court for nonpayment of rent.
If a landlord starts a nonpayment case, the tenants will have a defense if they can show that the reason they were not paying rent was the bad conditions in the dwelling. This defense does not appear in c. 186, § 18, by the way, but in a different statute, namely G.L. c. 239, § 2A. Again, the rationale for this law is obvious: It encourages landlords to respond promptly to conditions complaints so that the tenants will resume paying rent. In the context of a nonpayment eviction, therefore, the law against reprisal operates as a shield.
But reprisal can also serve as a sword, enabling the tenants to go on offense and sue, even if nobody is trying to evict them.
Is it only the tenants’ current landlord who is vulnerable to a lawsuit for reprisal?
No, at least not if my reading of the statute is correct. By prohibiting “any person” from taking reprisals, section 18 encompasses not only the landlord who tries to evict the tenants but also anyone else who retaliates against the tenants, including (arguably) a person who decides not to rent to them because of their exercising those legally-protected rights vis-à-vis their previous landlord.
Let’s say I’m a landlord with a vacant unit and a couple responds to my advertisement by submitting an application. They have great credit and the ability to pay the rent. Before I invite them to a viewing, I check out masscourts.org and learn that one of their previous landlords filed an eviction case against them for nonpayment of rent. So I decline to take their application any further and wish them well with their housing search.
But if the applicants had been withholding rent because of bad conditions (as the law permits them to do) and their landlord — instead of bringing the place up to Code — tried to evict them anyway, I will be depriving this couple of housing solely because they exercised a legally-protected right. In rejecting their application, I am retaliating against them just as surely as their landlord did. If the couple figure out my reason for rejecting their application, could they sue me for reprisal?
I am not a landlord and this is a hypothetical situation. But it is not one that I would like any of my landlord clients to confront in real life.
Landlords can use information about previous civil cases without engaging in reprisals. Think about the Criminal Offender Registration (CORI) database, for example.
Some landlords ask applicants to authorize them to run CORI checks as the last step in the application process. The regulations that govern CORI checks (803 CMR 500) allow landlords to do that, so long as they abide by some basic, sensible rules. If the CORI check produces a result, the landlord has to let the applicant know and provide an opportunity to dispute it. A landlord is not allowed to assume that the CORI result is accurate and reject the application for that reason.
This seems like a practical model for how landlords should to treat civil cases. If a landlord learns that the applicants were defendants in a nonpayment case, the landlord could review the court filings. What did the applicants file in response to the previous landlord’s complaint for nonpayment? If the tenants did not file an answer with counterclaims, it might seem reasonable to believe, for the time being, that the tenants had not been withholding rent because of bad conditions. Think of that as a working assumption, and nothing more.
The landlord should still ask the applicants for their side of the story. Perhaps the case settled even before the applicants needed to file an answer, because the Housing Court Specialist examined the Health Inspector’s report (yes, the applicants had called the board of health, which you would not necessarily know just by looking at the list of court filings) and explained how the judge would probably rule. At that point, the plaintiff landlord agreed to waive the arrears and dismiss the nonpayment case, and the tenants agreed to move out and move on.
On the other hand, perhaps the applicants were elective nonpayers, the polite term for tenants who choose not to pay rent and opt instead to game the system by forcing the landlord to file an eviction case, drag out the proceedings as long as they can, then — with the landlord having reached the end of a very long tether — agree to leave so long as the landlord pays them off. Such cases are real, and not as rare as one would wish.
But it would be a mistake to presume that all summary-process defendants are elective nonpayers until proven otherwise. Merely seeing that applicants have been defendants in a summary-process case tells you nothing about why. A presumption of guilt is not only unfair, but also legally hazardous as a potential act of reprisal, in my opinion.
Landlords are free to use masscourts.org as one tool in the applicant-screening toolkit but should bear in mind the risk of being sued for unlawful reprisal. If applicants show up in the court records, landlords should not treat the fact as conclusive evidence that the applicants would be bad tenants and automatically reject the application. Instead, landlords should find out more about the case, both from the court filings and from the applicants.
April 27, 2023:- Landlords in Massachusetts have been preparing to adapt to the new State Sanitary Code, which was supposed to go into effect this month. But today the Department of Public Health announced that the promulgation of the amendments to the Housing Code, 105 CMR 410.000, Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter II), has been delayed. The email did not give a reason.
For the time being, therefore, the old Sanitary Code remains in effect.
Photo by Levi Meir Clancy on Unsplash
Today (April 28, 2023) the Department stated that it expects to publish the new code on May 12, 2023, which will be the day it goes into effect.
April 21, 2023:- Massachusetts now requires landlords who are serving notices to quit for nonpayment of rent to also serve a document called the Form to Accompany Residential Notice to Quit.
Like the old Attestation Form, which landlords no longer have to serve, the new form states in all caps:
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT.
YOU ARE ENTITLED TO A LEGAL PROCEEDING IN WHICH YOU CAN DEFEND AGAINST THE EVICTION.
ONLY A COURT ORDER CAN FORCE YOU TO LEAVE YOUR UNIT.
That’s the important part, I think, from the Legislature’s point of view, and, to be fair, it is an accurate statement of the law. Of course, it would also be an accurate statement of the law to say “landlords are entitled to receive rent,” but the form does not include anything to that effect.
The new form differs somewhat from the Attestation Form, which required the landlord to tell the tenants whether the property was a “covered dwelling” under the federal CARES Act. The new version does not have a checkbox for that, although it does include the following paragraph that advises the tenants:
If you live in a building with five or more units, or if you receive a HUD tenant-based voucher, you may have more federal protections. If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then your Landlord may be required to give you written notice at least 30 days before filing an eviction claim.
The document titled “Instructions for Landlords” offers landlords who are completing the form the following helpful advice:
If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then you may be required to give your tenant written notice at least 30 days before filing an eviction claim. You should use diligent efforts to determine whether your housing unit is a “covered dwelling” under the CARES Act, and whether the notice to quit complies with the CARES Act notice requirements.
Using diligent efforts to find out whether it is necessary to give 30 days’ notice as opposed to 14 days’ notice is a very good idea, because failing to give sufficient notice could result in the judge dismissing the summary process case and the landlord having to start all over again with a new notice to quit. This could happen some months after the landlord served the notice to quit, during which time the tenants will probably not have been paying rent.
Instead of a checkbox requiring the landlord to tell the tenants whether they are entitled to a 30-day notice to quit, the new form has a checkbox by which the landlord tells the tenants whether they (the landlord and the tenants) have entered into any agreements about paying the overdue rent. In my experience, people who enter into agreements tend to know about it, but the drafters of this form may have had completely different experiences. In their experience, perhaps, people enter into agreements by accident all the time and never even notice.
The State seems to base this requirement — that the landlord inform the tenants whether they have entered into any agreements with the landlord — on the assumption that the tenants would not already know whether they had entered into any agreements with the landlord. Why the State would assume such a degree of ignorance on the part of people who are tenants is beyond me. As I said, perhaps the life experience of the State employees who drafted the form is completely different from my own. On the other hand, they may just be condescending.
Anyway, that is what the new checkbox is for, so that landlords can tell tenants something they already know. Gone is the old checkbox that required landlords to tell tenants something that they might not already know, i.e. whether the property is a “covered dwelling” within the meaning of the federal CARES Act.
Requiring landlords to check a box stating whether the building was a “covered dwelling” tended to encourage landlords to find out ahead of time, or to err on the side of caution and give 30 days’ notice even if the tenants were only legally entitled to 14 days’ notice.
Dispensing with the “covered dwelling” checkbox removes that incentive and thereby increases the likelihood that some landlords who should give 30 days’ notice will give only 14 days’ notice. Those landlords are more likely to have their eviction cases dismissed.
Readers disposed towards suspiciousness may sense a familiar tingle.
In addition to the new form, there is one more document worth noting. After the notice to quit has expired and the tenants have still not paid the arrears, the landlord will need to commence summary process (eviction) proceedings. When filing the case, the landlord has to include an affidavit confirming that the landlord did indeed serve the Form to Accompany Residential Notices to Quit.
Landlords serving notices to quit for nonpayment of rent need to remember to: (1) determine whether the property is a “covered dwelling” and how much notice is necessary; (2) complete the form; and (3) include the completed form with the notice to quit. When filing the case in court, landlords need to file the affidavit along with the summons and complaint and the notice to quit.
April 2, 2023:- This month the revised version of the State Sanitary Code goes into effect. One of the changes that landlords should note is the duty to provide alternative housing for tenants if the local board of health has condemned a unit as unfit for human habitation.
The owner needs to provide “comparable, suitable housing” for the shortest of the following time periods:
Housing Court judges already have the authority to tell landlords to provide alternative housing (e.g. a motel) when the board of health has condemned a unit. Now that it is a Code requirement, the board itself will be able to issue these orders.
With tenancies at will, i.e. month-to-month, the remaining rental period could be a couple of weeks, depending on when the board condemns the property. But landlords should bear in mind that a judge could still order them to pay to house the tenants for longer, even after the board’s alternative-housing order has expired.
Would that be lawful? Does landlord-tenant law allow judges to order the owners of condemned dwellings to pay to put up tenants in a motel for longer than the remaining weeks of their month-to-month tenancy? Taking that question to the Appeals Court in order to find out would probably cost more than the alternative housing. More cost-effective by far to keep the unit up to Code and avoid the condemnation.
Photo by benjamin lehman on Unsplash
March 31, 2023:- Attorney Patrick Daubert and I both represent people who held fast to their religious principles rather than bow to the vaccine mandate. In this new video, we discuss the Supreme Court taking another look at the meaning of “undue hardship” in religious-discrimination cases.
At present, if employees demonstrate a sincerely held religious belief that prevent them from getting injected with a particular pharmaceutical product, the employer can get out of accommodating those beliefs if doing so would cause a hardship that is more than a de minimis.
The more-than-de-minimis rule is something that the Supreme Court came up with many years ago when applying Title VII; what Title VII itself says is “undue hardship,” not “any trifling inconvenience.” Attorney Daubert and I consider the implications of the Supreme Court construing the term “undue hardship” in the way Congress intended when it enacted the law.
March 23, 2023:- Today the Massachusetts Department of Public Health (DPH) responded to my recent request for records of breakthrough cases and breakthrough deaths from September 4, 2022, onward.
My purpose with this request (like the previous requests) was to find out how many people in Massachusetts got injected with products advertised as COVID-19 vaccines and then caught COVID-19 and, of these, how many died of the disease.
Readers of previous posts (e.g. this one) will recall that more than 3,000 “fully vaccinated” people had died of COVID-19 before DPH stopped publishing the figures last July. In the 69-day period June 26-September 3, 2022, the number of “fully vaccinated” people who died from COVID-19 was 314 (that’s in addition to the 3,000+ figure).
September 4, 2022, was more than 6 months ago. What information has DPH collated since then?
How many “fully vaccinated” people has DPH recorded as having caught and died from COVID-19 since September 4? Today’s response states:
At this time, the Department has no records responsive to your request beyond those that have been produced to you in response to prior requests numbered BIDLS-2022-79, BIDLS-2022-99, BIDLS-2022-110, and BIDLS-2022-117.
In other words, since September 4, 2022, DPH has created no records of breakthrough cases and breakthrough deaths. Nary a one. Zero.
Is it really looking for the data? The response from DPH states:
Please be advised that the Department conducts its data analyses periodically as deemed necessary and appropriate. Analyses of COVID-19 breakthrough deaths are conducted, in part, with consideration to current federal guidance. With respect to COVID-19 breakthrough infection, the U.S. Centers for Disease Control and Prevention (CDC) is reviewing its guidance.
What criteria DPH applies in order to determine whether some analysis of data has become necessary and appropriate is not something that DPH chose to share. But clearly, conducting any analysis after September 4, 2022, must have been unnecessary and inappropriate, in the opinion of whoever makes these decisions at DPH.
As for the CDC reviewing its guidance about breakthrough infection, I don’t doubt it. That review will probably take a good long time and conclude with a rock-solid commitment to convening a group of stakeholders who will think about it some more before resuming the reviewing process.
Remember, thousands of people lost their jobs because they would not or could not get injected with these products, products that public health officials, politicians, and corporate media told us were necessary to stop people catching and spreading COVID-19. Were those officials, politicians, and media mouthpieces telling the truth? Answering that question requires some analysis of the breakthrough data.
But DPH is giving that data a good leaving alone.
If you would like the Commonwealth’s public health officials to resume their analysis so as to find out how effective the vaccines are at preventing recipients from catching and dying from COVID-19, please tell them. Tell Margaret R. Cooke, the Commissioner.
And tell your State legislators. They’re the ones who pass the budget, which gives DPH somewhere north of $170 million, a few bucks of which you might think could go toward analysis of vaccine efficacy.
To find your legislators, click here.
In the meantime, here’s a picture of the data that DPH has analyzed over the last 6 months about “fully vaccinated” people who caught and died from the disease that the public health officials told them they were “fully vaccinated” against.
March 5, 2022:- In April, the Supreme Court of the United States will hear oral argument in a case that may have a big impact on religious-discrimination lawsuits here in Massachusetts.
The case is Gerald E. Groff v. Louis DeJoy, Postmaster General, United States Postal Service, (here’s a link to Mr. Groff’s petition for certiorari) and a handy place to find the filings (including the amicus briefs) is scotusblog.com. For Professor Josh Blackman’s short overview in Reason magazine, click here and for Professor Eugene Volokh’s take in the same publication click here.
If the court rules the way I hope it does, we will have more cause than usual to give thanks. Either way, I will let you know.
At issue is the question of what constitutes “undue hardship” for an employer when an employee asks for an exemption to a workplace rule on the basis of religious belief. You may be familiar with this term already, but you may not realize that in this area of law it means much less than it should. To help explain how judges interpret the term right now – and how they may start to interpret it differently after the Supreme Court’s decision in Groff – let’s compare religious discrimination in employment to disability discrimination in housing.
Emotional Support Animals
Imagine a landlord with a no-pets policy in one particular building, and a tenant who signs the lease, agrees to the policy, moves into the no-pets building, and promptly adopts a large dog. Let’s say the tenant is wealthy and could easily relocate to the landlord’s other building, the one where all pets are welcome (dogs, cats, elephants, boa constrictors, whatever). But the tenant likes this building, the no-pets building, and does not want to move 100 yards across the street to the all-pets-welcome building.
Photo by Vlad Rudkov on Unsplash
In addition to being wealthy, our imaginary tenant suffers from anxiety. That’s a disability. If the tenant gives the landlord a letter from a psychiatrist stating that the tenant has a disability and the large dog helps alleviate one of the symptoms, the landlord has to exempt the tenant from the no-pets policy in the no-pets building, unless the landlord can show “undue hardship.”
To prove “undue hardship,” the landlord would need to show that this particular large dog would cause the landlord to suffer a significant expense or difficulty. Would the landlord succeed by showing that the exemption might cause some minor difficulty, something that would cost a trifling amount of money to address (e.g. scratches on the back door)? No, the landlord would have to show much more than that.
For the landlord, the “undue hardship” bar is high.
Devout Employee
Now imagine an employee who starts work for an employer. Let’s say that unlike our imaginary tenant our imaginary employee is poor; poor in money but rich in spirit. The employee devoutly adheres to a faith that prohibits the taking of certain drugs.
When the employee first got the job, the employer had no policies compelling its workers to take drugs of any kind, and absolutely no requirement that its workers be injected with experimental pharmaceutical products. But suddenly – at the behest of the pharmaceutical industry and the government agencies that purport to regulate said industry – the employer adopts such a policy.
If the employee shows that getting injected with the products would conflict with the employee’s religion, the employer has to exempt the employee from the policy, unless the employer can show “undue hardship.”
So far, the law about religious rights in the workplace looks the same as the law about disability rights in housing. Just like the tenant, the employee is asking to be exempt from a policy because of a legally-guaranteed right to be free from discrimination.
Here’s the difference.
Remember, for a landlord to successfully claim “undue hardship” the landlord would need to show that the accommodation (i.e. letting the tenant keep the big dog) would cause the landlord to incur significant expense. Minor inconveniences would not suffice.
How about the employer? Would the employer succeed with the “undue hardship” defense just by showing that granting the exemption might cause some minor difficulty that it would cost a trifling amount of money to address?
Yes. For the employer, any inconvenience, no matter how minor, constitutes an undue hardship.
For the employer, the “undue hardship” bar is low.
So how did it come to this? Why is it easier for a rich tenant with an emotional support dog to keep an apartment than it is for a poor public employee with an abiding devotion to God to keep a job?
The Hardison decision
Title VII of the federal Civil Rights Act prohibits discrimination on the basis of religion, as does Chapter 151B of the Massachusetts General Laws (courts tend to analyze these federal and State laws the same way). Under Title VII, to get out of accommodating an employee’s religious practices, an employer is supposed to prove that doing so would cause the business to suffer “undue hardship.” The statute says not merely “hardship,” meaning some expense or some difficulty, but “undue hardship.” Like “hardship,” the word “undue” has a pretty clear meaning, i.e. extraordinary or excessive.
But the courts have interpreted “undue hardship” to mean an inconvenience that is just a tad more than minimal.
In religious-discrimination cases, the employer only needs to show that the cost of accommodating the employee’s religion would incur a cost that is more than minimal. Any minor, trivial, piffling inconvenience will do, so long as it is more than minimal.
The term “more than minimal” is not at all the same as “undue hardship,” but that is the judge-made rule that the courts have been applying ever since the Supreme Court issued its ruling in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
This rule may change when the Supreme Court decides the Groff case. There are two questions for the justices to answer, and the first one is this:
Whether the Court should disapprove the more-than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
Let’s hope that the court simply applies the plain words of the statute that Congress enacted back in 1972, i.e. undue hardship, and does away with the judge-made rule that strips that simple two-word term of its meaning. In his amicus brief, Senator Ted Cruz puts it this way:
In 1972, the word “undue” was ordinarily defined as “unwarranted” or “excessive,” The Random House Dictionary of the English Language (1968), while “hardship” was ordinarily defined as “a condition that is difficult to endure; suffering; deprivation; oppression.” The American Heritage Dictionary of the English Language, The Concise Oxford Dictionary of Current English, and Webster’s New Illustrated Dictionary all concur.
“De minimis” on the other hand, was defined by Black’s Law Dictionary at the time as “very small or trifling,” tantamount to a “fractional part of a penny.”
… It cannot seriously be contended that a “very small” or “trifling” cost is the same as one that causes “excessive suffering” and “deprivation.” In fact, “more than a de minimis” cost may not even cause suffering, let alone “excessive suffering.”
I agree, and I hope that at least five justices of the Supreme Court do as well.
If the court jettisons the more-than-de-minimis-cost test, the landscape of religious-discrimination litigation will change. An employer will have to show that accommodating an employee’s religious beliefs causes not just a minor inconvenience but a real “undue hardship,” perhaps the kind of extraordinary expense that a landlord would have to prove in a disability-discrimination case. That would be good news for religious freedom and liberty of conscience in genertal.
I will keep you posted.
February 24, 2023:- Mayor Michelle Wu’s proposal to control the price of rental housing in Boston will not, in real life, control the price of rental housing in Boston. Why? Because, as Catherine Ruth Pakaluk explains in this article, politicians can control only something’s money price, not its real price.
Altering the number on a product’s price tag, without changing either supply or demand, does not make the product cost any less. The price of something is a signal of its value, not the value itself. Pakaluk likens price controls to trying to change reality by simply printing falsehoods about it; if you don’t like what you read in the news, just change the words on the page (a common phenomenon, you may have noticed).
Life would certainly be easier if you could alter what really happened just by hitting the Delete button and rewriting the story. But facts are not that flexible. Nor are the true values of products and services in a market consisting of millions of people making millions of decisions about millions of items.
That is one of the basic reasons that rent control will not work in Boston, just as it has not worked anywhere else.
Photo by Ujesh Krishnan on Unsplash
February 9, 2023:- How many people got the shots then caught the disease? Once upon a time, the Massachusetts Department of Public Health (DPH) used to publish the numbers. But then (when the proportion of “fully vaccinated” people who later reported catching COVID-19 hit 11.4%) they stopped.
So I submitted a public records request and learned that the number of breakthrough cases in the 69-day period June 26-September 3, 2022 was 58,199.
What about breakthrough cases recorded after September 3, 2022? I submitted another public records request in order to find out. You can read about the response here.
Because there were still no new figures for breakthrough cases from September 3 onward, in January I submitted yet another request, and today I received the response:
The Department has not found records responsive to your request. The Department herewith
informs you it has not stopped analyzing breakthrough COVID-19 cases but conducts this
analysis on a periodic basis.
That was exactly what they said in response to my previous request, and the one before that. The DPH says that it conducts its analysis on a “periodic basis,” but clearly the periods are quite long: they have no figures for the last 4 months.
Here’s a reminder about why this matters to employees in Massachusetts. If you submitted a request for exemption from the mandate (the No Jab, No Job rule) you may have received a letter telling you that accommodating your request would impose “undue hardship” on the employer. That contention of undue hardship rests on the premise that the shots stop people from catching and transmitting the disease.
But if lots of people get the shots and then catch the disease anyway — and in Massachusetts we know that the proportion is at least 12% — that premise vanishes (it wanes, you might say).
We need to know what’s going on, and for how long these pharmaceutical products provide any degree of protection. Otherwise how can we make informed choices about whether to get ourselves and our children injected? Knowing how many breakthrough cases there have been is one important piece of information, information that the State used to deem important enough to publish on a regular basis.
If you would like to help find out what the numbers really are, please let me know. I am not looking donations, just volunteers. To get in touch, use the contact form or send me an email.
December 5, 2022:- Until July 2022, the Massachusetts Department of Public Health (DPH) used to publish a regular report that stated the number of “fully vaccinated” people who had been hospitalized from COVID-19 and the number who had died. Then, when the number of deaths passed 3,000, DPH stopped publishing its weekly report.
In November I submitted a public records request to DPH asking for the new numbers. Today I received the response.
[T]here have been 314 COVID-19 vaccine breakthrough deaths among vaccinated MA residents reported to the Department between June 26, 2022- September 3, 2022. A COVID-19 breakthrough case is defined as an individual who has tested positive for COVID19 at least 14 days after being “fully vaccinated” against COVID-19.
So there you have it. In the 69-day period June 26-September 3, 2022, 314 people died of COVID-19, a disease against which they were “fully vaccinated.” That number is in addition to the 3,000+ “fully vaccinated” people who had died before DPH stopped publishing the figures.
A reminder of why these numbers matter to those of us who do not know the victims or the families and friends they left behind: Hundreds of people in Massachusetts were discharged from their jobs because their religious beliefs prevented them being injected with products advertised as “COVID-19 vaccines.” Their employers, including State government agencies, contend that letting them continue working without being injected would have been an “undue hardship,” i.e. the un-injected workers were more likely to catch and spread COVID-19 than the injected workers.
That contention rests entirely on the premise that the injections stop you catching the disease. When, if ever, will employers just admit the obvious falsity of this belief? That’s a rhetorical question, by the way.
As Allysia Finley points out in today’s edition of the Wall Street Journal:
But by last fall it was clear that vaccinated Americans were catching and spreading the virus. Then the administration rolled out third doses it claimed would strengthen individual and collective protection.
To many Americans, the boosters came as a bait-and-switch. They’d been led to believe vaccines offered a lifelong warranty against infection. Public-health officials at the outset should have set more realistic expectations.
… The CDC’s website in September showed that, since April, Americans who got the original boosters were testing positive at higher rates than those who had only two doses.
Employers — government agencies in particular — that imposed the No Jab, No Job policy under false pretenses should own up and admit that they either did not know the products did not work, or knew and lied about it. Is that really too much to ask? That’s another rhetorical question.
Mika Baumeister on Unsplash
November 9, 2022:- According to the Massachusetts Department of Health’s latest figures, there are 5,555,220 people in Massachusetts classified as “fully vaccinated” against COVID-19. How many have caught COVID-19?
If you have read my recent post, you will know that I asked the department to disclose the number of breakthrough cases that occurred after the department stopped publishing the data, which was when the number hit 617,337 (11.4% of the “fully vaccinated” population).
By way of a reminder, breakthrough cases are people whose healthcare provider reports them as having caught COVID-19 more than 14 days after having been injected with the products advertised as COVID-19 vaccines.
Today the department sent me the latest breakthrough figures, which I added to those that they produced in September in response to a previous public records request.
The number of breakthrough cases in the 69-day period June 26-September 3, 2022 is 58,199.
So the total number of breakthrough cases so far in Massachusetts is approximately 675,000. That represents about 12% of the “fully vaccinated” people in Massachusetts.
October 27, 2022:- How many Massachusetts residents are on record as catching COVID-19 after having who been injected with the products advertised as “COVID-19 vaccines”? Perhaps we will find out soon.
Readers of this post will recall that the Department of Public Health stopped publishing the number in July 2022, when the number hit 617,337, i.e. 11.4% of all the “fully vaccinated” people in Massachusetts. I submitted a public records request asking the Department for records showing the number of COVID-19 breakthrough cases from July 6 to the date of the response.
According to State Epidemiologist Catherine Brown, the number of breakthrough cases reported in the period June 26-August 6, 2022 (41 days) was 38,015.
But what about after August 6? They could not say, because:
The Department does not have a responsive record for data after August 6, 2022, as the analysis is not performed routinely, and no analysis has been performed beyond that date.
Why has the Department not analyzed data beyond August 6, 2022? To find out, I submitted another public records request. Today I received the response, which says:
The Department herewith informs you it has not stopped analyzing breakthrough COVID-19 cases. The Department conducts this analysis on a periodic basis.
The Department, you see, no longer performs the analysis on a “regular” basis but it does still does so on a “periodic” basis. Naturally, I have submitted a new public records request asking for the latest numbers (how many “fully vaccinated” people has the Department recorded as having caught COVID-19 since August 6, 2022).
But it is worth noting that the Department is still keeping count of breakthrough cases (periodically, not regularly) but no longer publishing the numbers. To be clear: It has the numbers; it’s just not telling us what they are.
Back in July I submitted a public records request asking why the Department had stopped publishing the numbers of breakthrough cases (something it continues to analyze on a “periodic” basis, apparently). The department told me that it would take a while to collate those records.
I am still waiting. And I can keep waiting. And then, when I have waited long enough. I will ask a judge to tell the Department to hand over the public records.
Peter Vickery, Esq., 