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.
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.
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).
Breakthrough data
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.
Collusion
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.
White House
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.
Conclusion
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.”
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.
Balance of payments
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).
Error
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.
Landlord homeless
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.”
Conclusion
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.
Time outs
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.
Say hello to the new law, same as the old law
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.
Your very own Open Door policy
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.
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).
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
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.
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.
Sword and shield
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.
What to do
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.
Conclusion
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.
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.
No checkbox for covered dwellings under the CARES Act
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.
A new checkbox
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.
No “covered dwelling” checkbox
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.
Affidavit of Compliance
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.
Conclusion
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:
The remaining term of the lease or rental period;
[Until] such time as the residence is deemed suitable for habitation by the board of health;
[Until] such time as the occupant finds alternative, permanent housing and voluntarily terminates tenancy.
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.
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.
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.
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.
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.
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.
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.
More than 12%
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.
Not regular, but periodic
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.
Why stop publishing?
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.
On Saturday, October 22, 2022, in Springfield, Massachusetts, I will be teaching part of the MassLandlords Crash Course.
This fast-paced course is strictly limited to 16 participants to allow for detailed discussion and Q&A. Course tuition includes:
Small group session with the Executive Director, a trained presenter and experienced landlord, and Peter Vickery, Esq..
A comprehensive agenda, see below.
Your choice of two books:
Every Landlord’s Tax Deduction Guide by NOLO,
The Good Landlord by Peter Shapiro,
Getting to Yes by Roger Fisher, and/or
The Housing Manual by H. John Fisher.
A bound summary of all material presented.
Breakfast pastries, coffee, tea.
Lunch sandwiches, sodas, chips, cookies; all dietary requirements satisfied, please notify us when you purchase a ticket.
A MassLandlords ballpoint pen.
A MassLandlords certificate of completion and permission to use “MassLandlords Crash Course graduate” on your marketing material.
You will receive a box packed with your personalized signed certificate, your choice of two books, course notes, pen, and half a dozen other pieces of literature.
The Crash Course is a program of MassLandlords, Inc., the statewide membership organization of housing providers that I am proud to serve as Legislative Affairs Counsel.
October 11, 2022:- This post is about the Massachusetts Public Records Law but also about something even more important. What could be even more important than the Massachusetts Public Records Law? I hear readers asking. The answer: Whether it should be (a) you and your conscience or (b) the government that gets to define your beliefs as religious or non-religious.
What sort of beliefs can be religious, or philosophical, or both?
Here is an example. I believe (among other things) that there is such a thing as evil, by which I mean the innate human desire to obtain pleasure by causing suffering. I am a Christian, so perhaps I should call this a religious belief. But I believed the same thing when I was not a Christian. I did not believe in the survival of the individual human personality beyond death and I did not believe in God, but I certainly believed in evil. Does that make the belief philosophical instead of religious?
How to go about putting my belief in the existence of evil into one of those two categories, as if they were mutually exclusive, continues to puzzle me, even though the belief in question is my own and I have spent considerable time pondering the subject. How much harder, then, to neatly taxonomize someone else’s beliefs about the nature and purpose of life; right and wrong; sin, forgiveness, and redemption. What an extraordinarily ambitious undertaking. But State government has decided that it is up to the task.
No Jab, No Job
Governor Baker’s No Jab, No Job order required State employees to be injected with products advertised as “COVID-19 vaccines.” The order allowed public employees to request exemptions from the mandate on the basis of their religious beliefs. When approximately 600 employees of the Department of Corrections requested religious exemptions, I gather that nearly all of them received letters telling them that they had “articulated a philosophical viewpoint not a religious belief.”
The difference between philosophy and religion is not obvious. As the United States District Court for the District of Massachusetts stated:
Few beliefs are entirely isolated from a belief system, and in any event there are not always bright lines that would readily permit beliefs to be sorted into the categories of “religious” and “non-religious.”
Together Emps. v. Mass Gen. Brigham Inc., No. CV 21-11686-FDS, (D. Mass. Nov. 10, 2021), aff’d, No. 21-1909, 2022 WL 1236952 (1st Cir. Apr. 27, 2022).
Never mind not always; are there ever “bright lines” between beliefs that are religious and those that are philosophical? Distinguishing the one from the other requires some grounding in metaphysics and the opportunity to discuss the matter at length and in depth with the individual whose beliefs are at issue.
Because the nature of ideas is complex, classifying any given statement of belief in a binary manner as either (a) philosophical or (b) religious presents a challenge. But with enough time and skill I suppose a reasonably competent professor of philosophy or theology could pull it off. Classifying approximately 600 such statements from employees of the Department of Corrections in just a few weeks would present more of a challenge, I should think. Just how did the folks in HR manage it?
To find out, I submitted a public records request in which I asked for:
any and all public records created in the period March 10, 2020, through the date of the response reflecting or embodying the standards the Department of Correction relied on or used in any way in determining whether requests by employees for religious exemption from Executive Order 595 (EO 595) articulated a philosophical viewpoint as opposed to a religious belief.
I added this explanatory note: “I am requesting documents that show the criteria that the Department used in assessing the nature of the beliefs of those employees who requested religious exemption from the EO 595 vaccine mandate, in particular the documents the Department employed so as to: (1) define religious beliefs; (2) differentiate between religious beliefs and philosophical viewpoints; and (3) assess whether any given employee had articulated a philosophical viewpoint vis-à-vis a religious belief.”
The request, unlike the subject matter, was simple.
First Response
On June 8, 2022, the first response from the Department arrived. It stated:
For the following reasons, the response to your request for records will require more than ten (10) days. The Department needs to search numerous records, segregate them, and redact non-public information pursuant to G.L. c. 4, § 7, cl. 26. Additionally, the Department will calculate charges for production, if any, and send an estimate to you. It is anticipated that the production of the requested records will be completed within eight (8) weeks. If the records are not produced within eight (8) weeks, you will be contacted in writing to advise you about the status of your request.
That same day I replied with a short letter stating that the response fell short of what the Public Records Law requires (the law gives the record-holder 15 days, not 8 weeks). But then the Department’s lawyer asked me to wait, so over the summer I did just that; I waited. But nothing arrived.
In September, I sent a couple of reminders that elicited no replies. Then I submitted a second public records request, identical to the first. This time I received a different response.
Second Response
This time, instead of saying that it would take 8 weeks to collate the records, the Department said that I would not be allowed to see the records at all. Why not? Because an individual whom the Department referred to as my client (he is not) had made a similar request and has an ongoing case against the Department. Here is the relevant quote (I have redacted the name of my non-client):
The Department understands that your client, [NAME REDACTED], requested the same documents from the Department and the Massachusetts Human Resources Division. General Counsel Michele Heffernan responded for HRD [Human Resources Division] and the Department as follows:
Records of the names of those individuals involved with the exemption process, training materials and criteria are not public record as they are part of the deliberative process undertaken by Executive Department agencies. Pursuant to M.G.L. c. 4, § 7, cl. 26 (d), records that relate to interagency or intra-agency memoranda, work products or letters relating to policy positions being developed by the agency may be withheld. Records related to policy deliberations are protected from disclosure. DaRosa v. New Bedford, 471 Mass. 446 (2015). In addition, your client has litigation pending against the Commonwealth, as such, a records request is not the appropriate vehicle information that may be subject to a discovery request.
Mr. [NAME REDACTED] appealed this response. The Supervisor of Public Records responded and decided to close the appeal.
The Department says that it can keep these records secret because they fall within one of the 20-plus exemptions to the Public Records Law’s disclosure requirements that the Legislature carved out, namely the deliberative-process exemption, in that the documents “relate to policy positions being developed by” the Department.
I have appealed this decision to the Supervisor of Records, and will update this post when I learn the outcome.
In the meantime, I remind readers what it is, exactly, that I am asking to see: Documents showing the standards that the Department of Correction used in determining whether employees had articulated a philosophical viewpoint as opposed to a religious belief.
There must have been some kind of rubric, a conceptual sieve for sorting the religious wheat from the philosophical chaff; passages from the Summa Theologica by St. Thomas Aquinas perhaps, or from the Kabbalah or the Hadith. The HR folks cannot have just pigeonholed all those individuals’ beliefs without reference to some articulated standards. Can they?
If the Department has any such documents, they do not want to disclose them and they claim that they can keep these documents secret because they relate to “policy positions.” That is the exemption set forth in General Laws chapter 4, section 7, clause 26 (d).
The Department legal team had more than 20 statutory exemptions to choose from, and this is the one they picked. It is a curious choice. After all, whether a belief is religious as opposed to philosophical is surely a matter of religion and philosophy, not of policy.
If government officials honestly think that religion is a policy matter, we all need to step back and take a breath.
Why this matters
Deciding whether our beliefs are religious is not something that government should do. The phrase “wall of separation between Church and State” appears nowhere in the free-exercise and establishment clauses of First Amendment to the Constitution of the United States, but it helps remind us of the reason for those clauses. We do not want government officials regulating our religious beliefs and practices.
By way of contrast, in ancient Rome there was a public official whose very job was to regulate religious beliefs and practices, and his title was Pontifex Maximus. After the decline of the republic, the emperors adopted the title and the role. The emperors became the arbiters of religion, deciding which religious beliefs and practices were legal and which were not.
The French dictator, Napoleon Bonaparte, rather envied the powers of the caesars. At his coronation, he wore a laurel wreath like the Roman emperors used to wear and he tended to emulate their approach to governing and propagandizing, commissioning paintings and sculptures of himself in classical Roman outfits and poses. To illustrate, here’s a statue of him playing dress-up.
Photo by author
The caesars and Napoleon Bonaparte were dictators. It is a sign of the times that I feel compelled to point out that they are not good role models for our public employees. This should go without saying. But nowadays in the American republic, governors and human resource managers are unabashedly assuming the role of Pontifex Maximus, arrogating to themselves powers that they should not wield, the power to decide what is, and what is not, a religious belief.
And they seem to have no shame in describing what they are doing as “developing policy positions.”
Conclusion
The Supervisor of Records is reviewing my appeal. If and when I obtain the public records that show how the Department of Correction was able to take human beliefs about the nature of existence and the meaning of life, and pour them into two distinct buckets, one labeled Religious and the other Philosophical, you will be able to see those documents here.
P.S.
October 24, 2022:- Today the Supervisor of Records issued an order:
[T]he Department is ordered to provide this office with an un-redacted copy of a representative sample of the responsive records for in camera inspection without delay.
After inspecting the sample, the Supervisor will issue an opinion as to whether the records are (a) public, or (b) exempt.
Of course, this all depends on the documents actually existing.
September 27, 2022:- It’s amazing what you can not find out when you don’t try. And the Commonwealth of Massachusetts is definitely not trying to find out something that most of us would find quite helpful, especially if we wanted to learn how to protect people against COVID-19.
Today I learned that the Commonwealth’s public health agency no longer tracks the number of people who are “fully vaccinated” against COVID-19 who have gone on to catch COVID-19 anyway (the disease that the vaccines were supposed to stop them catching).
A good leaving alone
Today I learned that instead of tracking those numbers, the Commonwealth is giving them a good leaving alone, as Howie Carr would say.
What does this lack of curiosity on the part of State government have to do with the practice of law? I will tell you.
Readers may know that I represent a number of people who worked for agencies of the Commonwealth until the Governor ordered them to be injected with products advertised as “COVID-19 vaccines.” For religious reasons, my clients were not able to comply, so they requested exemption from the mandate on religious grounds. The State denied their requests. And then the State discharged them.
In defending itself against charges of religious discrimination, the State says that letting workers carry on working without being injected would have caused undue hardship because these un-injected workers posed a threat. Of course, that defense rests entirely on the premise that the injections would have stopped the workers from catching and spreading the disease. It falls rather flat if it turns out that the injections do not really do that.
August 6: The day the calculator stood still
The Massachusetts Department of Public Health (DPH) used to publish regular reports that showed the growing number of “fully vaccinated” people who have caught COVID-19 (the disease that the vaccines were supposed to stop them catching). Public health officials refer to these as “breakthrough cases.”
Those regular reports stopped in early July when the number of breakthrough cases reached 617,337, i.e. 11.4% of all the fully vaccinated people in Massachusetts. As I mentioned in a previous post, that figure only includes the cases that people report to their healthcare providers.
For most people who display some symptoms, those symptoms are mild (e.g. sore throat, slight cough, and runny nose) and do not require a visit to a healthcare provider. If a person with COVID-19 does not report the infection to a healthcare provider, nobody enters the case into a healthcare provider’s database, and it does not appear in the department’s figures.
So the official figure does not does not include people who are fully vaccinated and then contract COVID-19 but do not report the fact to a healthcare provider. This means that the number 617,337 (11.4% of the fully vaccinated population) is an undercount.
The last report was dated July 5, 2022. Because I am curious (which, in and of itself, probably disqualifies me from a job in the upper reaches of State government) I asked DPH for records showing the number of COVID-19 breakthrough cases from July 6 to the date of the response.
Today the Department responded. 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.
That’s a lot of new infections in just 41 days. But what about after August 6?
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? Why has the Department not analyzed data beyond that date? The letter does not say. And that is why I just submitted another public records request.
A simple question
In my new public records request, I am asking for records that embody or reflect the reason why, after August 6, 2022, the Department stopped analyzing COVID-19 breakthrough cases. Why seems like such a simple question.
September 21, 2022:- Another volume of the Western Division Housing Court Law Reporter is available online.
The reporter is an unofficial compilation of decisions and orders issued by the Western Division Housing Court. It is a collaborative effort by and among several individuals representative of the Court, the local landlord bar, the local tenant bar, and government practice.
August 29, 2022:- The latest volume of the Western Division Housing Court Reporter is available. The reporter is the unofficial compilation of decisions and orders issued by the Western Division Housing Court
August 11, 2022:- Here is an update to my previous post about the lack of new data on so-called breakthrough infections in Massachusetts.
When the State stopped publishing the number of “fully vaccinated” people who are on record as having caught COVID-19 (the stoppage occurred when the number reached 617,337, i.e. 11.4% of the fully vaccinated population), I was curious. So I submitted a public records request. Today I received the response from Monica Mitteness, Epidemiologist at the Bureau of Infectious Disease and Laboratory Sciences. Or rather, I received a response telling me that an actual response will cost me $175..
Letter from Monica Mitteness, Epidemiologist at the Bureau of Infectious Disease and Laboratory Sciences
Apparently there are 440 responsive records, and reviewing them will take 11 hours.
“At a rate of $25.00 per hour, the total estimated fee for reviewing, redacting, and electronically producing records in response to your request is $175 ((11 hrs. – 4 hrs.) x $25 = $175).”
How long does it take to perform 11 hours’ work?
OK, once they get the check will I get the documents right away? No. The letter states:
“Upon payment of the fee, DPH will require an extension of time to respond to this request given the volume of records.”
I wonder how much time they will need to perform 11 hours of work. If there are any mathematicians out there reading this, perhaps you could chime in with an estimate.
Anyway, should I cough up the sum of $175 to see at least some of the 400+ documents in which public employees discuss why their employer (the public) should no longer be privy to this information about the efficacy of medical products advertised as “vaccines”? Money well spent, in my opinion.
Footnote 1
By the way, take a look at the footnote in the excerpt of the letter posted above:
“Please note that dates may be extended one day in either direction to account for time zone conversions.”
Needing to take account of time zone conversions suggests that the decision involved correspondence with people in other time zones. Massachusetts, the other New England States, and Washington, DC, are all in the same time zone. Officials in what other States (or countries) could have had a say in the decision to withhold this data from the residents of Massachusetts? I look forward to finding out.
July 26, 2022:- To celebrate the notion of open government, in the month of March we have “sunshine week.” March has come and gone. We are in July and, weather notwithstanding, it is most definitely not sunshine week.
As of mid-July the Massachusetts Department of Public Health is no longer publishing the number of COVID-19 breakthrough cases, i.e. people who got the shot and then caught the disease. The number of such cases has been rising steadily. At the beginning of July that number was 617,337, which is 11.4% of the population the State classifies as fully vaccinated, up from 8.4% in February.
Keeping track of the number of reported COVID-19 cases among people who have had the jab helps all of us gauge the efficacy of the products and to make informed choices about whether to keep getting injected with them. But making informed decisions just became harder; the department’s site now states:
Yes, the “data on vaccine breakthrough cases in Massachusetts are no longer being updated.” The department does not say why.
Perhaps the data were becoming just too embarrassing. After all, the No Jab, No Job policy in Massachusetts that forced many State employees out of work rested on the claim that receiving the products would reduce the spread of COVID-19. You may remember Rochelle Walensky assuring us that the data (“real world data,” as she put it) show that “vaccinated people do not carry the virus and don’t get sick.”
One of the facts that undermines that claim is the increasing number of vaccinated people who who do carry the virus and do get sick.
Undercounting
The most recent figures from the Massachusetts Department Health show that of the Massachusetts residents classified as “fully vaccinated” at least 11.4 % have caught COVID-19.
As of July 2, 2022 there were 5,408,359 fully vaccinated people and there were 617,337 cases in vaccinated people
10,121 of those 617,337 cases resulted in hospitalization and 3,213 cases resulted in death based on information reported to date
The department classifies as “fully vaccinated” people who reported testing positive for COVID-19 more than 14 days after receiving their final dose. Below the figures, the department includes this note about undercounting both of cases and hospitalizations:
Identification of cases in vaccinated people relies on matching data between the system of record for cases and vaccinations. The number of cases in vaccinated people may be undercounted due to discrepancies in the names and dates of birth of individuals, resulting in an inability to match records across systems. Hospitalization data is likely also undercounted as identification and reporting of hospitalized cases relies on that information being obtainable by case investigators through patient interview.
This note about undercounting is important, but it leaves out something equally important. It has been clear since soon after the outbreak that a large proportion of people infected with COVID-19 are asymptomatic. Approximately 25-45% of people who are infected with COVID-19 show no symptoms at all, according to Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, speaking on Good Morning America on June 10, 2020.
For most people who display some symptoms, those symptoms are mild (e.g. sore throat, slight cough, and runny nose) and do not require a visit to a healthcare provider. If a person with COVID-19 does not report the infection to a healthcare provider, nobody enters the case into a healthcare provider’s database, and it does not appear in the department’s figures.
Accordingly, the case count of 617,337 does not include people who are fully vaccinated and then contract COVID-19 but do not report the fact to a healthcare provider. So the number 617,337 (11.4% of the fully vaccinated population) is an undercount.
Reasons?
It is not clear whether the department is now (a) keeping track of the breakthrough cases but keeping the figures to itself or (b) just no longer counting them. Choosing not to publish the data is one thing, but choosing not to even collect it would be something else. It is hard to say which would be worse.
In either case, why is State government keeping these cards so close to the vest rather than tipping its hand? This is not a game.
If the public servants in the Department of Public Health have a legitimate reason for either not collating the data at all or collating it but not publishing it, that reason must be written down somewhere, e.g. a memorandum or at least an email. Using the Public Records Law, I will try to find out the State’s rationale for keeping this important information from the public.
If and when I can drag the relevant documents out into the sunshine, I will post them here.
P.S.
July 28, 2022:- Today I submitted a public records request to the Massachusetts Department of Public Health asking for the documents that reflect or embody the decision to stop publishing the data on breakthrough infections.
On the subject of breakthrough infections, here is Dr. Deborah Birx, former White House Coronavirus Response Coordinator, stating:
“I knew these vaccines were not going to protect against infection and I think we overplayed the vaccines.”
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.
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%.
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.
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.
1. The Code applies to every dwelling
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 a few exceptions, e.g. hospitals and federal military bases.
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 the apartment is on a federal military base. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is not on a federal military base a lease provision cannot make it so, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
2. Minimum living space
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.
3. Kitchen facilities
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.”
4. Maintaining facilities
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.
5. Windows must be secure
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.”
Conclusion
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.
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.
Hate Crime Hotline
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.
Measuring Success
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.
Public Records Request
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:
The number of complaints received via the hotline referred to local law enforcement or the Attorney General’s Criminal Bureau, and
Investigations commenced as a result of calls to the hotline, and prosecutions and convictions arising therefrom.
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.
Religious Freedom
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.
Genetic Discrimination
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.
Bioethics
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.
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.
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 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?
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.
NJ ban on amateur gas-pumping
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.
Photo by Kyle Glenn on Unsplash
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.”
What H. 1434 would not do
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.
Conclusion
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.
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.
Clearly unconstitutional
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.
New order
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.
Professional Conduct
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.
Discussion
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;
The “state moratorium 2.0” currently pending the Massachusetts Legislature; and
What litigation might be brought to bear against a new Massachusetts eviction 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.
August 4, 2021:- If you lie awake worrying that there are too few people incarcerated, too few criminal offenses on the statute books, and too much unregulated speech (in fact altogether too much unregulated human activity in general) rest easy. Help is at hand. The Massachusetts Legislature is considering a bill that would criminalize videos that make it look as if people are saying things that they did not really say.
It seems unlikely that the bill, H. 1755, sponsored by Representative Jay D. Livingstone, will become law, not this session anyway. It is a refile of H. 3366, which he filed in 2019. For reasons that I explain below, I hope this bill does not become law, not this session, not next session, not ever.
The clue is in the typo
Whoever drafted the bill apparently drew inspiration, and most of the text, from a federal bill titled the Malicious Deep Fake Prohibition Act of 2018 filed by United States Senator Bill Sasse (R – Nebraska). If you want to read Attorney Nina Iacono Brown’s critique in Slate of Senator Sasse’s bill and similar proposals, click here.
Copying another legislator’s bill is not a violation of the Copyright Act, of course (on which subject see below). In fact, they should have gone the whole hog and copied the title too. Because what did the drafters choose as a moniker for Representative Livingstone’s adaptation of Senator Sasse’s bill? They called it “An Act to protect against deep fakes used to facilitate torturous or criminal conduct.”
Aside from the irony-laden, Freudian-slippy typo (I am quite sure that they meant to write “tortious” not “torturous”) it’s just too much of a mouthful. But that problem is a small one compared with the bill’s potential impact on freedom of expression. It would hand the shut-uppers yet another tool with which to silence heterodox speakers.
Trust me, I’m from Big Tech
H. 1755 was on the agenda for the Joint Committee on the Judiciary on July 27, 2021. If you would like to watch the relevant part of the hearing, click here and scroll to 1:09:40. There you can see and hear testimony from Nick Gatz, manager of State Government Relations for Adobe, who states that the company is neutral on H.1755 and offers the Legislature its expertise “on the topic of content manipulation and online misinformation,” which is the sort of thing Adobe is against, I gather.
Adobe is so very much against content manipulation and online misinformation that it has established an entity called the Coalition for Content Provenance and Authenticity. If that name was approved by a focus group, I am quite sure that its members either: (a) had no familiarity with Orwell’s 1984; or (b) considered the book to have been not so much a cautionary tale as an instruction manual.
Coalition of the all too willing
The purpose of the Coalition for Content Provenance and Authenticity? To deploy technology that will help us — naïve saps that we are — sort the real-news wheat from the fake-news chaff, thereby obviating the need for legislation. Why should politicians bother to extend control over online speech with laws (laws that could conceivably be struck down by bothersome judges or repealed by the great unwashed) when Big Tech has an app for that? If the alternative to the Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct is the Coalition for Content Provenance and Authenticity, forgive me for not sighing with relief.
One of the more famous members of the coalition is Twitter, the company that (like Google’s YouTube) runs advertisements for the Chinese government, says the Columbia Journalism Review:
“According to a number of reports, the most recent ads push the message that protesters in Hong Kong are violent extremists and that state police are simply doing their best to keep the peace.”
Yes, Twitter takes money to promote the Chinese Communist Party line that pro-democracy protestors are violent extremists, a falsehood that does not count as “online misinformation” so far as Twitter is concerned, apparently.
Another coalition member is Microsoft, which, according to Business Insider, complies with China’s censorship laws. For example, earlier this year, when users in the United States tried to find images of Tank Man via Microsoft’s search engine, Bing, their searches yielded no results.
Readers may recall that Tank Man was the protestor who stood in front of Red Army tanks during the Tiananmen Square demonstrations. He was being a “violent extremist,” I suppose. But Bing’s omission was merely the result of “human error,” according to reports on the British Broadcasting Corporation (BBC).
“Beijing is known to require search engines operating in its jurisdiction to censor results, but those restrictions are rarely applied elsewhere.”
The most important word in that sentence is “rarely.” Fans of Gilbert and Sulivan’s H.M.S. Pinafore may be recalling the Captain’s lines, “What, never? Well, hardly ever.”
Coincidentally, the BBC is another member of the Coalition for Content Provenance and Authenticity. For readers unfamiliar with the BBC, it is Britain’s publicly-funded media organization that makes popular dramas, documentaries, and situation comedies and, once upon a time, used to be a trustworthy source of news, at least in comparison with, say, TASS or Pravda. It is also the organization that employed Martin Bashir, the reporter who secured a TV interview with Diana, Princess of Wales, by using faked bank statements that fueled the princess’s paranoid delusions that she was the victim of a conspiracy involving, inter alia, royal bodyguards; her husband and heir apparent to the Crown, Prince Charles; the Secret Intelligence Service; and GCHQ, Britain’s equivalent of the National Security Agency.
The BBC followed up on Bashir’s fakery with an equally fake internal inquiry and not only retained his services but gave him a promotion. For the report of the independent inquiry, click here.
In addition to Martin Bashir, the BBC employed Jimmy Savile who, during his lengthy broadcasting career, sexually assaulted approximately 72 people and raped several more, including an 8-year-old girl, crimes to which the BBC later admitted it had “turned a blind eye.”
So Twitter, Microsoft, and the BBC are now coalescing with other media corporations in order to protect us — poor, credulous, undiscerning, gullible us — against content manipulation and online misinformation. What, as they say, could possibly go wrong.
Federal question
During the hearing, the House chair of the committee suggested that deepfakes might be better dealt with via a new federal law. This brought to mind a current federal law, namely section 506 (c) of the Copyright Act, which makes it a crime to place on any work a false copyright notice:
“Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false… shall be fined not more than $2,500.”
This provision came to mind for two reasons. First, it was only last year that the Supreme Court of the United States issued its decision in Georgia, et al v. Public.Resource.Org, Inc., on the subject of copyright in legislative works (the public edicts doctrine). The court reiterated the well-established point that legislators cannot claim copyright in the works they create in the course of their official duties.
That’s why Senator Ben Sasse has no grounds to go after State Representative Livingstone. And it is why the Massachusetts Legislature cannot claim copyright in the documents that it publishes. If it did so, e.g. by fraudulently posting a false copyright notice on its website, it would be violating section 506 (c) of the Copyright Act.
And that was the second reason that the provision came to mind as I watched the hearing, because right there on the screen, at the bottom of the page, appeared the following words:
I wonder if that qualifies as “online misinformation.”
From tort to crime
If we cannot safely place total trust in Twitter, Microsoft, the BBC, and the Coalition for Content Provenance and Authenticity as a whole (and we can’t), would we be any better off with Rep. Livingstone’s Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct? No, and here’s why.
The proposed law would make it a crime to distribute a video in order to “facilitate criminal or tortious conduct” if the video was “created or altered in a manner that [it] would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
The word “facilitate” is pretty clear, I suppose, and the term “criminal conduct” is easy enough to grasp. It covers things like assault and battery, and fraudulently placing a false copyright notice in violation of section 506 (c) of the Copyright Act.
But what qualifies as tortious conduct? We have torts aplenty in Massachusetts, but here are two that tend to come up in the context of online spats: defamation and the intentional infliction of emotional distress. To me, these are the two torts that seem likely to provide a pretext for political prosecutions under H. 1755, allowing Massachusetts politicians to use the courts to silence their opponents. Do such things really happen here? For just one example, see my post titled “Free speech wins (four years after judge bans candidate from mentioning opponent’s name.”
It can be difficult for public figures such as politicians to shut up their detractors with defamation lawsuits. They have to prove “actual malice,” i.e. that the speaker made a false statement knowing that it was false or with reckless disregard of whether it was false or not.
Easier, then, if you are an elected tribune of the people, to seek a civil harassment-prevention order, as did the politician in the case I discuss in the aforementioned post. Even easier, perhaps, to bring a private criminal complaint under the proposed Act to Protect Against Deep Fakes Used to Facilitate Torturous or Criminal Conduct or, better still, get your friend the prosecutor to ask a grand jury to issue an indictment.
If H. 1755 becomes law and you share a deepfake with the intent to cause emotional distress to, say, Senator Suehappy Thinskin you won’t be looking at your screen for a while; you’ll be looking at two and a half years in the slammer.
To safely forward the video of the esteemed Senator without fear of criminal prosecution, you would need to know — prior to sharing it — that it was not “created or altered in a manner that would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.”
How could you be sure? Perhaps you could look for a certificate of authenticity issued by the Coalition for Content Provenance and Authenticity. But the Coalition (i.e. Twitter, Microsoft, the BBC, etc.) might not issue certificates to videos that criticize the powerful. It might routinely withhold certificates from people who say things that the powerful do not like.
But the absence of a certificate would not necessarily mean that the video was deepfake. So you could roll the dice, share the video, and hope that you don’t get a call from the offended hack’s lawyer or from law enforcement.
Even if the video is authentic, you might worry that people with friends in high places might be able to persuade law enforcement — and even a judge and jury — that it is not. Readers may have noticed that when somebody says something true, but embarrassing, about a powerful person, the powerful person first denies it and then attacks the somebody who said it, often with the eager help of the online mob. Even if the truth of the statement eventually becomes apparent, by that point the speaker’s life has been turned upside down.
Yes, H. 1755 says that “no person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.” But when do you, the speaker, find out whether your activity was protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States? When a judge says so, i.e. long after you’ve been interrogated and prosecuted.
Those risks, I suspect, would make you think twice about forwarding the video of Senator Suehappy Thinskin saying or doing something idiotic. We call this the chilling effect.
But shouldn’t there be laws against using deepfakes to defame people or cause them emotional distress? Yes, and we already have them, e.g. the torts called defamation and the intentional infliction of emotional distress.
If you still think we need more criminal offenses for prosecutors to threaten people with, check out @ACrimeADay on Twitter. Spoiler alert: There are a lot.
Conclusion
Back in 2019, the Massachusetts bill to ban deepfakes had two cosponsors, but this time Representative Livingstone is going it alone. The bill is losing support rather than gaining it. You may think that I should take heart from this trend, but I do not. Why? Because of the difference between bad ideas and nuclear waste.
At some point, with the passage of time, nuclear waste stops being dangerous. Not so with bad ideas. You cannot summon forth the ideas that H. 1755 embodies, bottle them, bury them in a lead-lined underground vault, and wait for them to disintegrate into harmless nothingness. No, they remain in the atmosphere, floating freely like wraiths, sometimes for decades, until they suddenly make themselves manifest as emergency bills or outside sections in the State budget.
That is why I am no more relieved at the bill’s feeble prospects this session than I am about entrusting the task of identifying deepfakes to the likes of Twitter, Microsoft, and the BBC.
P.S. For the full text of Representative Jay Livingstone’s bill, H. 1755, scroll down below the image.
Photo by Kindel Media from Pexels
SECTION 1. Chapter 266 of the General Laws is hereby amended by inserting after section 37E the following section:-
Section 37E 1/2. (a)As used in this section, the following words shall have the following meaning unless the context clearly requires otherwise:
“Audiovisual record,” any audio or visual media in an electronic format and includes any photograph, motion-picture film, video recording, electronic image, or sound recording.
“Deep fake”, an audiovisual record created or altered in a manner that the record would falsely appear to a reasonable observer to be an authentic record of the actual speech or conduct of an individual.
(b) Whoever (1), creates, with the intent to distribute, a deep fake and with the intent that the distribution of the deep fake would facilitate criminal or tortious conduct, or (2) distributes an audiovisual record with actual knowledge that the audiovisual record is a deep fake and with the intent that the distribution of the audiovisual record would facilitate criminal or tortious conduct shall be guilty of the crime of identity fraud and shall be punished by a fine of not more than $5,000 or imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment.
No person shall be held liable under this section for any activity protected by the Massachusetts Constitution or by the First Amendment to the Constitution of the United States.
A security deposit slip up can spoil a seemingly straightforward summary process case. So MassLandlords is holding a virtual lunch-and-learn session for housing providers (12 noon on Tuesday, July 20, 2021) where I will provide an overview of this slippery subject and answer questions.
June 24, 2021:- President Biden has extended President Trump’s eviction moratorium again. The Centers for Disease Control (CDC) announced that the moratorium will remain in effect until the end of July 2021.
June 7, 2021:- The owner of a short-term rental property was not liable for the shooting death of a man who attended a party at the property, the Supreme Judicial Court (SJC) announced today in the case of Heath-Latson v. Styller.
The shooting occurred in May 2016 at the Lynnfield home of Alexander Styller, who let the house to a group of people as a short-term rental. Here is a link to the NECN coverage.
Ostensibly the booking was for a college reunion but via social media one of the group advertised the gathering as a “Splash Mansion Pool Party.” Approximately 100 people attended and in the early hours of the morning the local police received a call that somebody had been shot.
The estate of the decedent, Keivan Heath, sued the organizers and Mr. Styller (the homeowner) in Superior Court. The judge allowed Mr. Styller’s motion to dismiss, and the case went to the SJC. In upholding the dismissal, the SJC stated:
“A duty to protect against harm caused by the conduct of a third person arises where there is a special relationship between a defendant and a plaintiff such that the defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so…
Here, the complaint alleges no facts suggesting that the defendant had a duty to protect the decedent from wrongdoing of a third party. Although the complaint cites a finding made by a Land Court judge in a related case that that short-term rentals have significant external effects on the neighboring community and community at large, it does not allege that short-term rentals are correlated with an increase in violent crime.”
Heath-Latson v. Styller (internal citations and quotation marks omitted)
The decision reiterates the duties of a landlord and the limits on those duties.
The SJC issued another decision involving Mr. Styller today, namely Styller v Zoning Board of Appeals of Lynnfield, in which the court upheld the ZBA’s determination that the zoning bylaw prohibited short-terms rentals even before it did so expressly in 2016.
June 3, 2021:- Today the Asset Forfeiture Commission held its sixth meeting, which consisted of a presentation by Attorney Dan Alban, co-director of the National Initiative to End Civil Forfeiture at the Institute for Justice (IJ). You can watch the hearing by clicking here.
Among Attorney Alban’s recommendations:
Not simply increasing the evidentiary standard from probable cause to preponderance of the evidence/beyond reasonable doubt. Instead, remove the financial incentive for the practice.
Using criminal asset forfeiture only and abolishing civil asset forfeiture, as New Mexico has done. IJ’s goal is not to defund the police but to restore due process. “Crime should not pay,” he said, “and it is legitimate for the State to confiscate the proceeds of crime.”
Enacting anti-circumvention laws to prevent State law enforcement simply outsourcing forfeiture to their federal counterparts. Massachusetts engages in “equitable sharing” with the federal government far more than most other States (the Commonwealth is 48th in IJ’s ranking)
Requiring greater detail in law enforcement’s reporting requirements in Massachusetts in connection with proceeds of civil asset forfeiture. Attorney Alban pointing to the 2018 report which states that 6% of the proceeds went to travel and training, 7% to equipment, with 53% listed as “other.”
After the presentation, Norfolk District Attorney Michael W. Morrissey said that he agreed with the need for more information, which should be a prerequisite to any overhaul of the system in his opinion. He stated that forfeiture is necessary to deal with those who are “undercutting” the “pretty successful consumer oriented sale of drugs,” i.e. marijuana, in Massachusetts. He held up a photograph of one of the houses he had seized, stating that it had been used as a “grow house.”
Norfolk DA Michael W. Morrissey
DA Morrissey also stated that prosecutors stay (i.e. pause) civil forfeiture cases until the criminal case is resolved. My review of some of the 70 or so civil forfeiture cases filed under MGL c 94C, section 47, in Hampden County Superior Court over the last year did not support that assertion but that may be a result of my sample size or of my misreading the docket. I used masscourts.org and searched under Administrative Civil Actions. Readers with the time and inclination can double-check my search in Hampden Superior Court and look for cases in the Superior Court in other counties.
In response to DA Morrissey’s request for one example of an innocent owner whose property had been forfeited in Massachusetts, Attorney Alban cited the Motel Caswell case in Tewksbury, in which the owner had not only reported criminal activity but had cooperated in a sting operation. Law enforcement seized his motel anyway.
DA Morrissey pointed out that the Motel Caswell case was an instance of “equitable sharing,” i.e. local police working with the federal law enforcement and using federal law. The Malinda Harris case did not come up during the discussion.
Co-chair Senator Jamie Eldridge announced that the commission will issue its report, with recommendations, by July 31, 2021. Between now and then the commission will have one more meeting (date to be announced).
June 2,2021:- Where is the $12 million of public money earmarked for the Eviction Diversion Initiative actually going?
Finding out is harder than you might think because the body in charge of distributing the money (the Massachusetts Legal Assistance Corporation) says that it is not subject to the Public Records Law. So on behalf of MassLandlords, I asked the Legislature to investigate.
To learn more, you can read my article in the MassLandlords newsletter by clicking here.
June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.
Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.
Photo by Toa Heftiba on Unsplash
Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:
“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”
Jacob Sullum, Reason, 3.2.2021
Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.
If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:
In the period 2017-19 the Massachusetts attorney general and district attorneys seized more than $20 million from people who had not been accused of, let alone convicted of, any crime
In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20
Section 47(d) of chapter 94C of the Massachusetts General Laws puts the burden on a claimant to prove that the property is not forfeitable
In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property
In approximately 80 per cent of civil asset forfeiture cases in the period 2017-19 the owner made no claim
I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.
In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.
For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.
And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.
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.
Provide or post
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.
State government helping lobby for 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.
Conclusion
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.
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.
Undue hardship?
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.
Peter Vickery, Esq., 