Attorney and Counselor at Law
May 31, 2022:- The latest volume (number 14) of the Western Division Housing Court Reports is available online. It is the unofficial compilation of decisions and orders issued by the Western Division Housing Court, published for the benefit of lawyers, landlords, tenants, and the public at large.
To peruse the reports, click here.
May 20, 2022:- In a development that will be of interest to people discharged because of the No Jab, No Job policy (e.g. 1,000 or so State employees in Massachusetts) a congressional report has revealed that approximately 400 million doses of COVID-19 vaccines had to be destroyed for “quality control reasons.”
The House Committee on Oversight and Reform’s Select Subcommittee on the Coronavirus Crisis just issued a report titled The Coronavirus Vaccine Manufacturing Failures of Emergent Biolsolutions. It describes cross-contamination in Emergent’s production of Johnson& Johnson and AstraZeneca vaccines. For the report click here; for the subcommittee, click here.
If you were one of those State employees who thought you had the right to consider this sort of information (contamination at the vaxx plant) before deciding to receive or decline a COVID-19 shot, you quickly learned that your boss had other ideas.
In Executive Order 595, which mandated vaccines for executive-branch employees, Governor Baker wrote:
WHEREAS, COVID-19 vaccines are safe and effective, as evidenced by the fact that COVID-19 vaccines have satisfied the U.S. Food and Drug Administration’s rigorous scientific standards for safety, effectiveness, and manufacturing quality needed to permit widespread use and distribution, and to date, more than 357 million doses of COVID-19 vaccines have been safely administered in the United States, with more than 9 million safely administered in the Commonwealth, and negative side effects have proven exceedingly rare…
You didn’t get to decide whether to receive the jab. Governor Baker made that decision for you when he issued Executive Order 595 on August 19, 2021. Meanwhile, according to the congressional report:
Due to poor quality control approximately 240 million vaccine doses had to be destroyed in late 2020 and early 2021— significantly more than revealed previously. Following the discovery that Emergent had cross-contaminated vaccine doses in March 2021, the Biden Administration halted Emergent’s manufacturing from April to July 2021.
The discovery about the contamination was in March 2021. So that was before August 19, 2021. The report continues:
After Emergent was permitted to resume manufacturing in July 2021, an additional 90 million newly manufactured coronavirus vaccine doses had to be destroyed for quality control reasons, and 135 million remain sequestered pending further testing.
Was the trouble with the vaccines top secret? Not at all. Here’s a quote from an article published in April 2021 (four months before Governor Baker issued E.O. 595):
An FDA report cites multiple failures in an Emergent BioSolutions plant tapped to produce vaccines for Johnson & Johnson and AstraZeneca. The vaccine plant had been forced to discard up to 15 million doses of Johnson & Johnson’s COVID-19 vaccine in a single manufacturing batch.
Here’s a quote from another article published in April 2021:
An FDA report has illuminated problems at Emergent BioSolution’s Baltimore manufacturing site, where the CDMO recently had to scrap up to 15 million Johnson & Johnson COVID-19 vaccine doses over a production error.
Thing is, the FDA flagged Emergent for very similar issues almost a year ago to the day. During an April 2020 inspection of the CDMO’s contract testing laboratory, the FDA said Emergent failed to adequately prevent data tampering or deletion, neglected to follow its quality control procedures or put them in writing and, notably, didn’t do enough to stop contamination or mix-ups.
I mention all this because the State, whether acting as government or as employer, should allow people to make their own decisions about medical interventions. Is this my quirky personal predilection? No, it’s a principle that the United States endorsed as part of the Universal Declaration on Bioethics & Human Rights, article 6 of which provides:
Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
Consent is not “free” when your lack of consent leads to lack of your job. And I think loss of one’s job counts as a “disadvantage or prejudice.” Is the consent “informed” when your Governor issues an official order proclaiming the product’s safety? Answers on a postcard, please.
If you or someone you know lost a State job because of Executive Order 595, please feel free to contact my office for a free consult.
By the way, for the latest figures on COVID-19 hospitalizations in Massachusetts, click here. Spoiler alert: the percentage of COVID-19 patients who are fully vaccinated against COVID-19 is 65%.
Would you like to know about alternatives to eviction and ways to settle disputes before they end up in Housing Court?
At 6:00pm, Wednesday, June 1, 2022, I will be giving a Zoom presentation to MassLandlords members — and potential members — on the subject of relocation assistance agreements (cash-for-keys in the vernacular).
If the prospect of Housing Court litigation has you reaching for the TUMS®, a cash-for-keys agreement offers a healthy alternative, but it is not to everybody’s taste. I will discuss some of the essential ingredients, and why this item on the menu proves appetizing to some but unpalatable to others.
The event is free and open to the public.
For the event link click here.
May 2, 2022:- Two new decisions arrived today, one from a unanimous Supreme Court of the United States (SCOTUS) against the City of Boston’s refusal to let an applicant fly a Christian flag from a municipal flagpole, and the other from the Supreme Judicial Court (SJC) of Massachusetts regarding the City of Lynn’s insistence that a busines owner conduct her business be-masked.
For Shurtleff v. City of Boston click here, and for City of Lynn v. Murrell click here.
SCOTUS held that the City of Boston’s refusal to approve Harold Shurtleff’s request to raise a Christian flag on a City flagpole abridged his right to freedom of speech. The City had allowed people to use the City flagpole to fly the flags of other countries, e.g. Venezuela, and various secular organizations, e.g. Metro Credit Union, but claimed that flying this particular flag could constitute “government speech.” Justice Alito’s concurrence addresses this succinctly:
The flags flown reflected a dizzying and contradictory array of perspectives that cannot be understood to express the message of a single speaker. For
example, the City allowed parties to fly the gay pride flag, but it allowed others to fly the flag of Ethiopia… a country in which “homosexual act[s]” are punishable by “imprisonment for not less than one year.”
The prize for the pithiest observation, however, goes to Justices Thomas and Gorsuch in their concurrence. To see what I mean, scroll down to page 40.
In this case, the City of Lynn fined business owner Ariana Murrell for her no-mask policy, which defied the Commonwealth mask mandate. How did the City find out? Here are the words in the decision that made my heart sink:
The Lynn police department received multiple complaints about Murrell’s no-mask policy. The Lynn police investigated and corroborated these complaints with their own independent and documented
observations of Murrell’s practices at Liberty Tax. Members of the public also contacted the city’s board of health (board) to notify it of Murrell’s no-mask policy.
This practice (ratting, snitching, informing, whatever you want to call it) was the sort of thing that the bien pensant still seemed to care about as late as 2019, judging by this article in the Atlantic. But no longer.
The habit of informing on one another is now suitably engrained, but the mask mandates themselves have gone, at least for now.
And because the mandates are no more, the SJC decided that the issues were moot. But, in a somewhat encouraging response to Ms. Murrell’s argument that the issues remain alive because the State can reimpose a mask mandate whenever it feels like, the SJC implied (albeit ambiguously) that the widespread availability of treatments makes new mask mandates less likely. In addition, the court cited the SCOTUS decision on the OSHA vaccine-or-mask mandate, stating with sub-optimal clarity:
In light of this decision, we cannot say with any degree of certainty that our understanding of OSHA’s authority to issue general COVID-19 regulations, and the interrelated issue of preemption, would be the same if the Governor were to issue another
Statewide mandate.
For my post on that SCOTUS decision, click here.
In a glass half-full frame of mind, I think that the SJC was signaling that in reviewing any new mask mandates, it would take into account the changed jurisprudential landscape and would determine whether the facts (remember those?) really justify the mandates. Or perhaps I am getting carried away with hope.
Every rental agreement in Massachusetts — whether written or unwritten — contains an important clause. It will remain as part of the agreement even if both parties, landlord and tenant alike, want to waive it. No matter how hard you try, you cannot erase it.
What is this ineradicable clause? It is the warranty of habitability. It is the landlord’s guarantee that the landlord will, at a minimum, keep the premises in compliance with the State Sanitary Code, more particularly Chapter II of the Code titled Minimum* Standards of Fitness for Human Habitation.
So one easy way for landlords to breach the warranty of habitability, and land themselves in expensive trouble, is to ignore the State Sanitary Code. Ignoring the Code could result in the landlord having to pay the tenant damages (possibly multiple damages) plus the tenant’s legal fees.
On the other hand, by paying attention to the State Sanitary Code, and making sure that each and every rental unit complies with it, landlords are more likely to live up to the warranty of habitability, stay out of trouble, and maintain a healthy business relationship with their tenants.
State government has posted a synopsis of the responsibilities of landlords in Massachusetts. It is well worth a look. In the meantime, here are some — just some — of the requirements of the State Sanitary Code. The following five items are just a starting point, not an exhaustive list. Landlords and aspiring landlords should familiarize themselves with the Code in its entirety.
The State Sanitary Code states:
No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000
That is a clear rule. If you provide rental accommodation, you must comply with the State Sanitary Code. There are three exceptions to the rule for landlords to know about: (1) dwellings on campgrounds that comply with the applicable State regulations for campgrounds, and (2) dwellings used exclusively as civil defense shelters. Those two exceptions are very narrow. The other exception? If the dwelling is covered by another part of the Code.
What if the would-be tenant says, “Don’t worry about the warranty of habitability. I’m happy to sign a contract waiving it. Or we can say that I’m using the apartment exclusively as a civil defense shelter. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is an ordinary rental unit, it not exclusively a civil defense shelter. A lease provision cannot transform an ordinary apartment into a civil defense shelter, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
The State Sanitary Code establishes the minimum amount of living space that each dwelling unit must consist of:
Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.
This does not include: rooms containing toilets, bathtubs or showers; laundries; pantries; foyers; communicating corridors; closets; and storage spaces. These parts of the unit do not count toward the square footage of floor space.
There is a separate square-footage requirement for rooms used for sleeping. For one occupant, the sleeping room has to contain at least 70 square feet. For more than one occupant, the sleeping room must have at least 50 square feet for each person, e.g. for two occupants, 100 square feet; for three occupants, 150 square feet.
A unit that is less than 150 square feet, excluding closets and storage spaces, is not a Code-compliant unit. An owner who rents such a unit to a tenant is breaching the warranty of habitability.
What if the unit is 145 square feet, just 5 feet under the minimum, and the would-be tenant says, “I don’t mind. Just knock $50 off the rent?”
No, the landlord is not able to contract out of the warranty of habitability.
The unit must contain a kitchen sink and space to store, prepare, and serve food in a sanitary manner, and there must be a stove in good repair. Unless the written agreement puts the obligation on the tenant to provide a stove, the landlord must provide one. In addition, there must be space and connections for a refrigerator.
The kitchen must have at least one lighting fixture and at least two electrical outlets (for the kettle, coffee-maker, toaster, etc.) in “convenient locations.” In practice, this means that the tenants should not have to plug in the toaster down at the skirting board or up by the picture rail!
The Code also requires a kitchen window:
For each kitchen over 70 square feet, transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that kitchen.
What if the would-be tenant says, “I don’t mind not having a kitchen. Just knock $50 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
What if the landlord says to the would-be tenant, “There is no light fixture in the kitchen. I could install one if you pay for it.”
“Sure, I’ll pay for it,” says the would-be tenant.
No, the Code says that the owner must provide the fixture and outlets and it defines the word “provide” as “supply and pay for.”
Everything that the owner installs, the owner must maintain. For example, the owner has the duty to maintain the toilets, sinks, wash basins, water pipes, sewer lines, and gas lines free from leaks, obstructions, and defects. If the owner installed the stove and refrigerator, the owner must keep them in good repair. When the tenant tells the owner that the faucet is leaking, the owner has to repair it.
Does the Code say what standard the owner must live up to? Yes, the owner must install and maintain facilities “in accordance with accepted plumbing, gasfitting and electrical wiring standards.”
So who should do the plumbing? A licensed plumber. The wiring? A licensed electrician.
But let’s say the kitchen sink has always leaked. It leaked when the landlord bought the place, and it has leaked ever since. During the showing, the landlord says to the would-be tenant,
“The kitchen sink leaks. It’s leaked from the get-go. Somehow I never get around to fixing it.”
“That’s OK,” says the would-be tenant, “I don’t mind a leaky sink. Just knock $10 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
The Code states that in every habitable room other than the kitchen there must be:
transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that room
It also says:
The owner shall provide, install and maintain locks so that… Every openable exterior window shall be capable of being secured.
A habitable room needs a window of sufficient size. If the window is capable of being opened it needs to have a mechanism to keep it from simply sliding or falling open or from being opened from the outside (by an intruder, for example). It needs a lock.
What if the latch on the living-room window fell off?
“I see that the living room window doesn’t have a lock or even a latch that works. Could you knock $50 off the rent?”
“Sorry,” says the owner, “I can’t buy my way out of the warranty of habitability. I’ll install a lock tomorrow. And I’ll send you the bill.”
No, the owner is not allowed to charge the tenant for the cost of making the exterior window secure. The owner’s duty is to provide the lock, and the word “provide” means “supply and pay for.”
Anyone who intends to become a landlord in Massachusetts should become familiar with the State Sanitary Code, and consistently comply with it. Failing to comply with the Code and breaching the warranty of habitability could be a very expensive mistake.
*This is the word to focus on. The State Sanitary Code establishes the minimum standards of fitness for human habitation. Think of it as a floor, not a ceiling.
April 12, 2022:- Rent control has a new moniker: It now identifies as “rent stabilization.” You know when a policy is unpopular when its advocates give it a new name. Even today, when face-masking, mind-closing, and line-toeing are all the rage among the bien pensant, a policy with the word “control” right there in the title just doesn’t sit well, I guess.
But the reason for the policy’s unpopularity is not the name but the aim. And what is the aim of rent stabilization (née rent control)? An article in Jacobin explains. It has the headline “New York Needs Universal Rent Control Now,” and a sub-headline that tells you why: “Rent control can build tenant power and undermine the logic of speculative neighborhood investments.”
The phrase “undermine the logic of speculative neighborhood investments” is a reasonably to-the-point way of expressing the idea “abolish private property.” You can count on a forthright explanation from a magazine named after the movement that was responsible for the Reign of Terror during the French Revolution.
Lest readers doubt that the editor responsible for writing the headlines and sub-headlines at Jacobin got it wrong, here is a quote from the article itself:
By discouraging speculation and lowering the value of investment properties, it lays the groundwork for an expansion of alternative housing models, like social housing and community land trusts.
Discouraging speculation? That speaks for itself, as does “lowering the value of investment properties.” Similarly, the expansion of social housing (in plain English, government housing) and community land trusts (in plain English, government housing) means the contraction of something else, i.e. privately owned housing.
Why is this expressly Statist, anti-market policy of rent stabilization (née rent control) back on the political agenda in Massachusetts and elsewhere? In short, because the politics of the people who write for Jacobin are the politics of the people who are setting the agenda for the Democratic Party in Massachusetts, namely the supporters of Democratic Socialists of America (DSA).
DSA stalwart State Representative Mike Connolly of Cambridge has a bill, H. 1378, that includes an option for towns and cities to enact rent control. The Joint Committee on Housing is scheduled to vote on it next month.
Myself, I believe that affordable good-quality housing is more likely to emerge through markets than through policies such as rent control. That is a belief that some committed socialists share, and it is exactly why they want rent control. From the perspective of a dedicated revolutionary, if rent control reduces the amount of affordable housing, thereby exacerbating the situation, fomenting discontent, and stimulating revolutionary conditions, so much the better.
From the standpoint of the true socialist, in the long run no housing reforms are safe without a wholesale socialist transformation of society.
But reasonable people who wish to address the need for more affordable housing (and are not revolutionary socialists or even gradualist socialists) may find the arguments for and against rent control evenly poised. They may be on the fence about it.
There are plenty of reasons to oppose rent control (click here for a few) but here’s one that the fence-sitters might — just might — think about:
Rent control artificially reduces housing units’ value, forcing housing providers to offer their properties at below-market rates. This dramatically reduces developers’ incentive to construct new units, as the artificially deflated rental market offers a lower return on investment. In cities that implement rent control, new construction decreases dramatically, producing substantial declines in the availability of rental housing.
That’s a quote from an op-ed by Drew Hamrick, senior vice president of government affairs and general counsel for the Colorado Apartment Association, writing in Colorado Politics. The bill Mr. Hamrick opposes would impose rent control on Colorado’s mobile-home parks.
Yes, it’s not just Massachusetts. Even in Colorado — longtime home of Hunter S. Thompson, birthplace of Duane “Dog the Bounty Hunter” Chapman, and where it is illegal to lend your vacuum cleaner to your neighbor — questionable ideas sometimes find their way onto the agenda.
To be fair, the socialists have a response to people like Drew Hamrick. To the claim that rent control reduces the amount of new rental housing, they say “oh no it doesn’t.” For an article in Jacobin countering the pro-private property argument with data, click here. For arguments from the libertarian-leaning Cato Institute in favor of private ownership and against rent control, also with data, click here.
Please do me a favor and read the arguments for and against rent control.
As a former socialist whose mind changed after much experience, reading, and reflection, I am grateful for the liberty to read works that express ideas that differ from my own. Of course, that very liberty depends entirely on another liberty: the liberty to own and sell property. If one entity (the State) controls your ability to make the money with which you can buy food, shelter, and whatever else you need and desire, your ability to criticize that entity will be very constrained. Without that liberty to criticize through writing and speech, dissent sounds like this. And that, fundamentally, is why rent control is a bad policy.
March 30, 2022:- The Appeals Court has ruled that two District Court judges should not have prohibited a woman from posting anything online about the lawyer she and her husband had hired.
According to the lawyer, the couple had made statements on Facebook “calling us thiefs [sic]” and criticizing the lawyer in emails that cc’d other people. On the strength of this, first one judge (in Leominster District Court) then another (in Worcester District Court) issued a harassment prevention order under G.L. c. 258E. As the name suggests, harassment prevention orders are supposed to prevent harassment, not to prevent criticism. Nevertheless, two separate judges employed the harassment-prevention law to ban constitutionally-protected speech.
The Leominster judge issued the order on June 25, 2021, and the Worcester judge extended it on July 9, 2021 for a period of one year. The orders banned the defendant — the lawyer’s former client — from uttering any statements about the lawyer via “Internet or social media posts.” More than 8 months later, on March 30, 2022, the Appeals Court vacated the gag order. The part of the decision titled Discussion begins with this clear statement:
There is no basis in the record on which a c. 258E order could lawfully have issued.
Then the Appeals Court points out that the lawyer did not claim that the ex-client ever uttered any threats, and that nothing in the lawyer’s complaint described conduct that could qualify as “harassment,” which the statute defines in this way:
(i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.
To run afoul of the statute, a person needs to engage in three or more acts. Those acts need to be willful and malicious. The person must intend the acts to cause fear, intimidation, abuse or damage to property. And each of the three acts must, in fact, cause fear, intimidation, abuse or damage to property.
The appellate courts have consistently construed this definition so that it does not (or, at least, should not) discourage people, still less prohibit them, from engaging in the sort of robust back-and-forth speech that is essential in a self-governing republic of free people. To put it another way, no appellate court in Massachusetts has ever held that criticism of a lawyer by a disgruntled former client constitutes harassment under chapter 258E, still less that the offending speech warranted a comprehensive year-long ban on the mere utterance of the lawyer’s name online.
On the bright side, the lawyer’s ex-client had the wherewithal to hire another lawyer to file a successful appeal. But it is truly galling that a resident of Massachusetts should have to take a case up to the Appeals Court in order to vindicate her right to speak freely. It is more than galling that a lawyer and two judges (all of whom took an oath to uphold the Constitution of the United States, which still includes the First Amendment) all considered it OK to quash free speech. After all, even today — in the Trudeau-pian era of ochlocracy, Big Tech/Big Pharma shut-uppery, and the categorization of “misleading narratives that undermine public trust in US government institutions” as terrorism — this area of Massachusetts law is absolutely clear. It has been particularly clear since 2016 when the Supreme Judicial Court explained (because it was, sadly, necessary to explain) that judges really should not ban political candidates from mentioning the names of their opponents at election time. For my post on that decision, click here (quick, before they ban it).
So, three cheers for the Appeals Court justices and no cheers at all for the District Court judges who issued the gag order in the first place.
For the Appeals Court’s decision, click here.
March 15, 2022:- It’s Sunshine Week, a time to promote open government. Who says so? The News Leaders Association.
People who refer to themselves as “News Leaders” make me suspicious, for reasons that I will not sidetrack myself by going into. So staying focused (my suspicions of the News Leadership notwithstanding) and because the concept of Sunshine Week appeals to me, I will mark the event by recounting what I learned from the response to one of my recent public records requests, more specifically the discovery that a particular record does not seem to exist.
After the election of Donald Trump (R), Maura Healey (D), who is the Attorney General of the Commonwealth of Massachusetts, issued a press release:
“Following reports of harassment and intimidation of racial, ethnic and religious minorities, women, LGBTQ individuals and immigrants since Election Day, Attorney General Maura Healey today announced that her office has launched a new hotline for Massachusetts residents to report such incidents.”
At the time, I was reading about both (1) actual hate crimes, and (2) hate crime hoaxes, so the hotline caught my attention. I wondered what, if anything, would happen in response to calls that people made to the hotline and how, if at all, the Attorney General would measure the efficacy of the hotline. Whether public officials will bother to evaluate the effectiveness of a publicly-funded initiative (or even bother to think about how they would evaluate its effectiveness) is, indeed, one of the things that I wonder about.
Hate crimes are heinous. So if you receive a report of one, I think you should look into it, especially if you are the Commonwealth’s top law-enforcement official and you have set up a hotline for people to call. You might also want to keep track of the complaints. This, I thought, is what Attorney General Healey will do because according to the press release:
The hotline will be managed by attorneys and staff in the AG’s Office. While not every incident will be appropriate for legal action, the AG’s Office will be tracking reports and appropriate matters may be referred to local law enforcement or the Attorney General’s Criminal Bureau.
Based on that statement, it seemed reasonable to believe that the Attorney General’s Office (AGO) would be tracking reports and, perhaps, referring appropriate matters to local law enforcement or the Attorney General’s Criminal Bureau.
One very good reason to keep track of reports and of how many you refer to law enforcement and what happens to the referral thereafter is this: Without that knowledge, you do not know whether the hotline works. Collating that information is essential to determining whether this particular policy — a hate crime hotline — has any effect on hate crimes.
If the hotline works, hallelujah. If it does not work, stop wasting those resources on a failed initiative and devote them instead to an initiative that is more likely to reduce hate crimes.
That, of course, assumes that the purpose of the hotline is to help reduce hate crimes as opposed to, say, conveying the message that the election of Donald Trump led to an increase in hate crimes.
In January 2022, I submitted a public records request (the Massachusetts equivalent of a federal FOIA request) to the AGO asking for, among other things, the total number of calls received since the hotline’s inception. This, according to the AGO’s response is 5,929. I was surprised not so much by the total number as by how many were from other States (quite a few from California, in particular Los Angeles).
Another fact that I deem worthy of note is that 13 of the calls were from Amherst, where I live, so I have followed up with a public records request to the local police department to find out what, if anything, happened with these 13 hotline complaints.
In addition to the total number of calls, I asked for:
Regarding these two items, the AGO answered:
[W]e do not track our cases in a manner in which we could identify responsive records without spending an undetermined, yet voluminous, amount of time. It would require that we search, both electronically and manually, through every electronic and paper record made or received by AGO staff in multiple Bureaus and Divisions and review all of the records so found for applicable exemptions and privileges.
What I learned from this statement is that the AGO does not have a clear idea of how many hotline complaints were referred to local law enforcement or how many hotline calls resulted in investigations, prosecutions, and convictions. To find out, the folks at the AGO would have to really, really look into it, which would take an “undetermined, yet voluminous, amount of time.”
This matters. The AGO urged “any Massachusetts resident who has witnessed or experienced bias-motivated threats, harassment or violence” to call the hotline. And many Massachusetts residents did, along with residents of many other places (including more than one might have expected from LA for some reason). There have been almost 6,000 hotline calls logged over the last 5 years or so.
So what happened to those complaints? How many did the AGO refer to local law enforcement, how many were investigated, and how many led to convictions? The AGO has not collated all that information.
This is why public records requests are useful. With them, we can learn not only what records our public officials make, but also what sort of records our public officials do not consider it worth making.
March 1, 2022:- Today Attorney Patrick Daubert talked with me about the case of Captain Albert Brox v. Wood’s Hole, Martha’s Vineyard, and Nantucket Steamship Authority, which concerns religious liberty and medical-product mandates. Attorney Daubert represents employees of a State agency who are seeking religious exemptions from the mandate that their employer imposed at the beginning of the year. After the State court judge enjoined the authority from enforcing its mandate, the authority removed the case to federal court.
To watch and listen to the conversation, click here.
If you are a State or municipal employee facing religious discrimination, I would like to hear from you.
For example, if your employer requires you to receive a product known as a “COVID-19 vaccine” as a condition of your employment (the No Jab, No Job rule) and refuses your request for a religious exemption, you may have legal recourse. To set up a free 20-minute consult, use the contact form below.
As you may know, Massachusetts law (M.G.L. c. 151B) prohibits discrimination on the basis of religion. If your employer denied your request for a religious exemption from the No Jab, No Job rule, you may have a claim under that law. The place to file your claim is the Massachusetts Commission Against Discrimination (MCAD) and the filing deadline is 300 days after the discriminatory act.
This is a complicated and shifting area of law, so it is worth reading up on the subject even before talking to a lawyer. The New Civil Liberties Alliance has articles and press releases about its courtroom efforts against mandates, the Pacific Justice Institute provides free resources on protecting religious rights in the workplace, and the Christian Legal Aid Society offers a Religious Freedom Toolkit. You may also want to check out Attorney Aaron Siri’s site, Injecting Freedom.
In addition to the law against religious discrimination, Massachusetts also forbids discrimination on the basis of genetic information. Similarly, a federal statute called the Genetic Information Non-Discrimination Act (GINA, Title II) makes it unlawful for an employer
to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.
This information page and Q&A show where the Equal Employment Opportunity Commission (EEOC) stands on GINA and vaccines. Bear in mind, these EEOC documents are not law (they are not statutes, regulations, or judicial decisions) but courts usually defer to the EEOC when the agency is interpreting the statutes in its purview. The EEOC documents are helpful insights for employees who wish to use GINA to challenge the No Jab, No Job rule.
Another helpful resource for employees is Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights, which the General Conference of UNESCO adopted in 2005.
The relevant paragraph of Article 6 provides that:
Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.
Although it does not have the force of law, the Declaration is something that judges may choose to take note of in some cases, e.g. the Second Circuit Court of Appeals decision in Abdullahi v. Pfizer, a case about Pfizer’s drug trials in Nigeria.
The principle of prior, free, informed consent should guide courts and adjudicatory bodies like the MCAD when considering No Jab, No Job cases.
To set up a consult, please use this form.
February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.
The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:
Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.
Check here for updates on this case.
January 14, 2022:- Last year, President Biden issued a vaccine mandate through the Occupational Safety & Health Administration (OSHA). The regulation that OSHA issued would have required employers with 100+ employees to ensure that their employees either received vaccination against COVID-19 or to wear masks and undergo weekly testing. Yesterday, the Supreme Court of the United States issued a stay of OSHA’s regulation, effectively putting an end to it.
The case is NFIB v. Dept. of Labor, 595 U.S. _____ (2022).
The court pointed out that COVID-19 is a life hazard, not an occupational one:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.
Congress gave OSHA the limited task of regulating workplace safety, not the unlimited task of regulating the safety of society as a whole:
Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
The court pointed out the difference between job-specific risks and the general, everyday risks that we all face both at work and elsewher:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible… But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.
Again, the statutes that Congress has enacted that give OSHA the legal authority to issue regulations confine that authority to occupational safety, not to safety in general. If Congress wishes to give OSHA the authority to regulate the safety of everyone, everywhere, all the time, then Congress needs to do so via statute. OSHA cannot just give itself that power, even at the direction of the President. The court’s decision recognizes this basic principle of the separation of powers.
By the way, here in Massachusetts, according to the Department of Health dashboard, the number of people currently in hospital with COVID-19 is 3,180. Of that number, 1,505 (approximately half) are fully vaccinated.
January 10, 2022:- An op-ed in today’s edition of the Wall Street Journal titled “Omicron makes Biden’s vaccine mandates obsolete” will prove important, I think. It states that the vaccinations that are supposed to protect us against COVID-19 may make us more susceptible to catching the latest version of the disease known as the Omicron variant:
One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people.
One of the two co-authors is Jed Rubenfeld, a professor at Yale Law School. The other is Dr. Luc Montagnier, who won the 2008 Nobel Prize for Physiology or Medicine. But be advised, Wikipedia warns us about Dr. Montagnier:
During the COVID-19 pandemic, Montagnier was criticised for using his Nobel prize status to “spread dangerous health messages outside his field of knowledge”[6] for promoting the conspiracy theory that SARS-CoV-2 was deliberately created in a laboratory. Such a claim has been refuted by other virologists
Of course, Wikipedia also states that the total number of deaths from COVID-19 in China (pop. 1.4 billion) is about 5,000, which is roughly the same as the death toll in Ireland (pop. 5 million). According to Wikipedia:
Around March 2020, there was speculation that China’s COVID numbers were deliberately inaccurate, but now China’s COVID elimination strategy is considered to have been successful and its statistics are considered to be accurate
When weighing the credibility of Wikipedia on the subject of Dr. Montagnier, it’s worth considering the credibility of Wikipedia on the subject of the Chinese government’s COVID-19 statistics. To be a little more blunt, if you believe that the number of COVID-19 fatalities in China is the same as the number in Ireland, perhaps I could interest you in the purchase of a certain bridge.
So with that word of caution about Dr. Montagnier from Wikipedia, and my own word of caution about Wikipedia’s word of caution, let me move on to the legal implications.
If the vaccinations make people more susceptible to COVID-19, what are the implications for those employers who imposed a vaccine mandate on their employees? I have in mind the companies that gave their workers a simple choice: Either (A) get vaccinated; or (B) you’re terminated.
And what if the workers who chose option A (i.e. they got vaccinated) then caught COVID-19 — not in spite of but because of the vaccine — and became sick? Do they have any legal recourse, and if so against whom?
First, are the pharmaceutical companies liable? No, obviously not.
Second, is the government liable for urging you to do it? I doubt it (that’s what the National Vaccine Injury Compensation Program is for).
Is the employer liable? I wonder.
If you are a public employee and are curious about your rights, feel free to use the contact form and sign up for a no-charge consult.
On November 12, 2021, the Fifth Circuit Court of Appeals affirmed its decision to stay (pause) the COVID-19 vaccine mandate that President Biden issued via the Occupational Safety and Health Administration (OHSA). You can read the decision here.
The court had several reasons for finding the mandate unlawful, including the following:
[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.
With regard to the supposed “emergency” that could justify the OHSA rule, the court added:
And, of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.
As with the President Biden’s use of the CDC to ban evictions for non-payment of rent, this latest attempt to usurp the legislative function has failed, for the time being anyway.
Adam Schultz, photographer
Official portrait of President Joe Biden, taken in the Library room at the White House
September 7, 2021:- Massachusetts legislators are considering H. 1434, which would establish a moratorium on non-payment evictions. It would not ban all evictions, only a subset of evictions “where the plaintiff’s complaint is based upon or includes any claim for rent or use and occupancy.” The bill has an emergency preamble, and it’s supposedly related in some way to COVID-19.
Nothing can justify another ban on people regaining possession of their property from those who are occupying said property without paying rent. The article in this week’s Massachusetts Lawyers Weekly on that subject quotes me, accurately:
“In January, the pandemic was killing about 3,000 people a day, notes Amherst attorney Peter Vickery. But as vaccines have been distributed, the death rate has declined dramatically, down to about 150 people a day.
Vickery references the New Jersey law that prohibits motorists from pumping their own gasoline. There may be some very real concerns that led to the passage of that law, but there is an ‘extraordinary mismatch between the threat and the policy.'”
I mis-stated the current daily death toll, which is now around 400-500, up from about 200 per day in July but still a far cry from the January 2021 average of 3,000. Yesterday (September 6, 2021) in the United States there were 246 deaths from COVID-19, according to the CDC. For the CDC’s tracker of daily deaths from CIVID-19, click here.
But what does the New Jersey law against pumping your own gas have to do with eviction moratoria? For readers who are curious, please consider the findings that NJ legislators included in the statute so as to justify the self-pumping ban (NJSA 34:3A-4), which findings include:
“(d)… [R]isks of crime and fall-related personal injury, which are a special burden to drivers with physical infirmities, such as the handicapped and some senior citizens;(e) Exposure to toxic gasoline fumes represents a health hazard when customers dispense their own gasoline, particularly in the case of pregnant women;
(f) The significantly higher prices usually charged for full-service gasoline in States where self-service is permitted results in discrimination against low income individuals, who are under greater economic pressure to undergo the inconvenience and hazards of dispensing their own gasoline.”
These are all plausible risks. But do they really justify banning amateurs from filling our own gas tanks and leaving the job to trained pump attendants? No. In the rest of the United States, people manage to pump their own gas without triggering the Apocalypse. Similarly, nor does the potential for spreading COVID19 justify a ban on people regaining possession of their own property from those who are not paying rent.
As the Supreme Court of the United States held recently regarding the Biden administration’ unconstitutional non-payment eviction moratorium:
“The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”
Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021).
Massachusetts legislators should read this decision and, before criticizing it, think about the Court’s reasoning.
Our right to own property is one of the many rights that the State and federal Constitutions guarantee. It is not untrammeled, but it is is not something that legislators can violate on a whim. Here in Massachusetts, the Supreme Judicial Court has held:
“[S]ubstantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests.”
Sharris v. Commonwealth, 480 Mass. 586, 593, 106 N.E.3d 661, 668 (2018). Is the right to exclude non-paying tenants from your property a fundamental right? If it is, the court should apply strict scrutiny and require the Commonwealth to show that the law is narrowly tailored to further a compelling government interest.
Even if the court were to apply the weaker intermediate-scrutiny test, the non-payment eviction moratorium should fail. To pass this test, the Commonwealth would have to show a reasonable, proportional fit between the law and an important governmental interest. Here, what connection could there be between a ban on non-payment evictions and the governmental interest, i.e. slowing the spread of COVID19?
The reason that the CDC gave for its non-payment eviction moratorium — and that moratorium advocates continue to echo — was that “evicted renters must move.” They may move into “shared housing or other congregate settings” (of course, they may be moving from shared housing or other congregate settings, but no matter). And their relocation may even entail “crossing State borders.”
Surely, if people moving from one place to another is such a risk enhancer, the Legislature should put a stop to it altogether.
But does the Legislature wish to ban all of us, renters and homeowners alike, from moving house? No, it is not trying to prevent people who own their own homes from selling them and going to live somewhere else.
Does the Legislature wish to ban tenants from relocating of their own accord? No.
Does the Legislature wish to ban all evictions? No.
Does the Legislature wish to ban judges from evicting tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment? No.
For this bill to be a good fit, there would have to be some evidence that tenants who do not pay rent are more likely to contract and transmit COVID-19 than the tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment. And that is just silly.
Yes, deaths from COVID-19 are higher than they were in July, but nowhere near the high of January-February 2021. Most adults in the United States — and about 90% of those aged 70 and over — have been vaccinated against COVID-19, and those vaccinations work (click here for a recent article in the Atlantic magazine on that subject). Even if there had been a good reason for H. 1434 in early 2021 (and there was not) that reason has gone.
The only kinds of evictions that the Legislature wishes to ban with H. 1434 are evictions where the landlord is trying to get paid. That might make the bill’s proponents feel good, but it would not reduce the transmission of COVI-19.
August 31, 2021:- If you are a regular reader of my posts, you already know that Massachusetts is one of the worst States in the nation for civil asset forfeiture (worst, that is, from the point of view of the people whose property the police seize). And you also know that police departments can keep whatever they take from someone even if that person is never charged, let alone convicted, of any crime. But you might still be wondering how Massachusetts officials spend the proceeds. A new report by WBUR and ProPublica has some answers.
The WBUR and ProPublica journalists looked at Worcester County, where the District Attorney, Joseph D. Early, Jr., obtained $4 million in forfeitures in the period 2017-20:
“Early has been criticized by the state auditor for spending forfeiture funds on a Zamboni ice-clearing machine and tree-trimming equipment. Over the years, his office has posted photos on its website of Early handing out checks for “Drug Forfeiture Community Reinvestment,” to pay for baseball and softball fields or to support a cheerleading team.”
There’s nothing inherently wrong with baseball, softball, and cheerleaders, in my opinion. If the DA wants to spend his own money on that sort of thing, OK. But other people’s money? And who are these other people?
“WBUR’s analysis of Worcester County forfeitures from 2017 through 2019 found that more than half of the seizures in these cases were for less than $500. In one incident, Fitchburg police seized $10 from a man listed as homeless. In another, Sturbridge police took $10 from a 14-year-old boy.”
This helps explain why so few people bother challenging seizures in court: The cost of hiring an attorney is far higher than the value of the seized property.
If you have ever wondered how Massachusetts politicians can be so cavalier about other people’s property rights (e.g. enacting laws to stop landlords from going to court to enforce leases) read the WBUR/ProPublica article. It’s an eye-opener.
August 27, 2021:- HUD Secretary Marcia L. Fudge issued a statement criticizing the Supreme Court of the United States for holding the CDC eviction moratorium unconstitutional. Here is the opening paragraph of the statement:
“I am deeply disappointed by the Supreme Court’s ruling on the CDC’s eviction moratorium. With this decision, the Court has put millions of Americans at risk of losing their homes—even as the Delta variant heightens their risk of exposure to COVID-19. Many of these Americans are among our most vulnerable—including senior citizens, people with chronic illnesses, young children, and families with the lowest incomes.”
The statement is inaccurate. As the Supreme Court’s decision points out, it is Congress, not the CDC, that has the power to enact an eviction moratorium. Congress has done so before, and it could do so again. If Congress had wanted to enact a new eviction moratorium, it could have. But it did not. That choice on the part of Congress did not magically empower another branch of the federal government to legislate in its place.
Many political actors have put people at risk of losing their homes, e.g. the governors who closed down businesses and the legislators who enabled them. The culprits do not include the justices of the Supreme Court.
August 27, 2021:- Yesterday evening, the Supreme Court of the United States lifted the stay (pause) on the District Court’s order vacating the Biden administration’s eviction moratorium. By way of a reminder about the separation of powers, the Supreme Court stated:
The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19.
This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance… That is exactly the kind of power that the CDC claims here.
(internal citations and quotation marks omitted).
The Court was not saying that no branch of the federal government can impose an eviction moratorium. Congress can do it (and Congress has done it) but an executive-branch administrative agency cannot.
This article in scotusblog.com provides a clear description and link to the decision.
August 25, 2021:-Attorney Wayne Detring of Franklin, Tennessee, is not someone I had heard of before yesterday but, as a result of his letter to the editor of the Wall Street Journal, he is going on my Christmas card list.
Attorney Detring pointed out that after President Biden repeatedly said that there was no legal basis for extending his predecessor’s eviction moratorium (and then went ahead and did it anyway) the administration’s lawyer put his name to a court document arguing that, contrary to his client’s repeated and accurate public statements, the moratorium is lawful. That sort of conduct verges on the unethical, wrote Attorney Detring (see below).
Here is the President saying that the courts had ruled that the previous CDC eviction moratorium was unconstitutional and that although most constitutional scholars think that a new one would be “unlikely to pass constitutional muster” a few think it might and by the time a challenge gets through the courts the order will have served its purpose.
The court decision President Biden was referring to was the one that Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued back in June. “The question for the Court is a narrow one,” wrote Judge Friedrich.
“Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
The reason has nothing to do with the wording or extent of the CDC’s eviction moratorium. The reason is simpler than that. As an executive branch agency, the CDC may only act within the parameters that Congress has set for it, and Congress has never granted the CDC the authority to ban people who own rental property from going to court when tenants do not pay rent. The CDC does not have, and never has had, that authority.
At the end of June, Supreme Court Justice Brett Kavanaugh stated that a moratorium extension would need clear and specific congressional authorization via new legislation.
Nevertheless, when Congress did not enact any such clear and specific authorization, President Biden issued another eviction moratorium through the CDC.
The Alabama Association of Realtors quickly challenged the new moratorium.
In response, the Solicitor General filed a reply in which he argued that Congress had given the CDC authority via 42 USC 264(a), enacted in 1944, which provides that:
“The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”
According to the Acting Solicitor General of the United Stats, Brian H. Fletcher, by way of this provision in the 1944 statute Congress gave the head of the CDC discretion to “prevent the movement of persons to prevent the spread of communicable disease.” To be fair, he was quoting the Court of Appeals for the District of Columbia when it rejected the request from the Alabama Association of Realtors to vacate the stay of Judge Friedrich’s previous order. But at the time the Solicitor General filed the reply it was already clear that five justices of the Supreme Court of the United States share the opinion of Judge Friedrich that the 1944 statute, which (prior to President Trump) had never been used in this way, does not confer the necessary authority.
If you think there ought to be a rule against this sort of thing, there is, as Attorney Detring points out:
“Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so. Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to ‘cause unnecessary delay.’ Rule 11 also provides a process for sanctioning violators… Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay.”
Good point, I think.
President Biden’s conscious decision to issue an unlawful order will be one of topics up for discussion at an event MassLandlords has scheduled for September 8 titled “Are Eviction Moratoriums the New Normal?” The other points up for discussion:
Courtroom challenges to the CDC moratorium;
I will be one of the three speakers, together with Attorney Jordana Roubicek Greenman and Attorney Richard Vetstein. For the event link, click here.
August 6, 2021:- President Biden, like President Trump before him, has issued an eviction moratorium, via the CDC, without authorization from Congress. For an overview from Reason magazine, click here.
Peter Vickery, Esq., 