May 26, 2020:- The eviction moratorium (Chapter 65) is still in effect. The earliest date on which is will expire is August 18 (120 days after Chapter 65 became law). However, the Governor could extend it by 90 days, and keep doing so until 45 after the end of the state of emergency.
When will the state of emergency end? The Governor has not said. There has to be a state of emergency in effect for the Governor to issue emergency orders, so the chronology of his four-phase re-opening plan gives some clues.
Until the moratorium expires (August 18 at the earliest, and possibly later), housing providers must not send notices to quit, except for “essential evictions,” i.e. where the tenant’s criminal activity/lease violations “may impact the health or safety” of another person lawfully on the premises or the general public.
May 28, 2020:- In addition to the State-level eviction moratorium established by Chapter 65, there is also a federal moratorium that Congress imposed on some properties by way of the CARES Act. As this reminder from HUD points out, housing providers are not allowed to charge late fees that accrue for unpaid rent during the 120-day federal moratorium (which ends July 25). To determine whether your property is subject to the federal moratorium, you may want to ask your lawyer.
May 22, 2020:- Missed rental payments are on the rise in Massachusetts, but a market solution may be available.
Even though the eviction moratorium law (Chapter 65) says that tenants are required to pay rent, the lack of an enforcement mechanism is leading some to skip paying the rent with a sense of impunity. Housing providers still have to pay to maintain the property and keep it up to code even when they are not receiving rent. One way for providers to stay afloat might be rent-guarantee insurance, also known as rent default insurance, which promises coverage in the event that a tenant stops paying rent.
Unless and until the Massachusetts Legislature takes up the Fair and Equal Housing Guarantee surety-bond policy that MassLandlords is promoting, some housing providers may find this kind of product helpful. And I see that one company, Avail, has a short video on the subject.
If affordable, insurance might be a viable market solution to government failure. By “government failure” I mean the Commonwealth requiring one party to provide housing without being able to go to court to make the other party pay for said housing. This forces rental-property owners to either (a) provide free housing (not a great business model) or (b) exit the market, thereby reducing the amount of rental housing available.
Ideally, Governor Charlie Baker would let Chapter 65 expire on August 18 rather than exercising his option to extend it. But if he chooses to prolong the moratorium, insurance might do the trick.
Please note that I have no contractual, fiduciary, relationship with Avail or Steady Marketplace, either oral or written, and receive no remuneration of any kind from the companies, make no representations regarding them, and suspect that there are other entities out there that offer similar insurance products. In the vernacular, I am not shilling for Avail or Steady Marketplace, or any other insurance company for that matter. I just think that for some housing providers, rent-guarantee insurance might be worth exploring.
May 19, 2020:- Volume 3 of the unofficial Western Division Housing Court reporter is now available online at masshousingcourtreports.org.
Please note that the reporter does not include all decisions and orders. The Court does not provide decisions from impounded cases and cases involving highly sensitive issues relating to minors, and the editors will generally exclude certain types of decisions, such as simple scheduling orders; terse orders lacking sufficient context to be of value to those unfamiliar with the case; and, decisions that relate certain types of particularly sensitive, personal information. A full description of the process and editorial standards can be found at the beginning of each volume.
May 12, 2020:- On May 8, 2020, Attorney General Maura Healey issued an “advisory” on residential evictions. An advisory is not a law or regulation, but it indicates how the Attorney General will interpret the law and try to persuade the courts to apply it. This particular advisory includes a novel interpretation of Chapter 65, the statute that limits the right of access to the courts for one class of people, namely housing providers (landlords).
The statute also abridges freedom of speech by banning landlords from sending notices to quit. In addition, by preventing property owners from obtaining possession even when tenants stop paying rent (whether for reasons related to COVID 19 or not) it operates as a taking. I have addressed those violations before and will do so again in future posts. This post is about access to justice, and how Attorney General Healey’s advisory (mis)interprets what the statute has to say about it.
Chapter 65 allows housing providers to file for summary process only where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person lawfully on the property or of the general public. But it bars housing providers from taking tenants to court for non-payment of rent. Under Chapter 65 (as opposed to the Declaration of Rights) no access to the courts is the rule, and the health/safety provision is the exception.
Statute in Derogation of Liberty
Chapter 65 takes away a fundamental liberty, namely access to the courts, which (as I have mentioned elsewhere) is one of the liberties guaranteed by the Massachusetts Declaration of Rights. Here in Massachusetts it is well established that statutes in derogation of liberty should be strictly construed and interpreted narrowly. They should be narrowly tailored to serve a compelling and legitimate government interest and strictly construed to comply with requirements of substantive due process, as the Supreme Judicial Court held in the Mattter of E.C., 479 Mass. 113 (2018).
In other words, if a statute takes away a basic right, the courts should interpret it narrowly so as to confine the damage to the individual’s liberty interest.
But Attorney General Healey says the opposite, that it is the fundamental right that should be narrowly construed, not the exception to it.
Editing out, and editing in
“Evictions can be brought only where a tenant (1) violates lease terms or engages in criminal activity, and (2) the violation may impact the health or safety of others who are lawfully on the premises. This exception is narrow and should only be used where there is a serious health or safety concern that can’t otherwise be addressed.”
That is what the advisory says about the statute. But that is not what the statute itself says. Not at all. First, the statutory language about impacts on health/safety applies not only to people lawfully on the premises but also to the general public. It says so right there in Section 1 of the statute:
“… may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.”
So in advising the general public, the Attorney General Healey left out that bit about the general public.
Second, if the Legislature had intended to say that housing providers may ask the courts to evict tenants only where the criminal activity or lease violations “are likely to seriously affect the health or safety of another person and cannot be addressed short of eviction” it would have said so. But it did not. Chapter 65 does not say “serious health or safety concerns” nor does it state that eviction must be the very last resort.
In addition to leaving out some words and adding others, the Attorney General’s interpretation is the opposite of the way to interpret a statute that derogates from liberty. The advisory says that the right of access to the courts that is the “narrow exception,” which is not what the appellate decisions say about statutes in derogation of liberty. On the contrary, according to precedent it is the liberty that should be construed broadly, and the exception to that liberty (in this case the barring of the courtroom doors for all but health/safety cases) that should be construed narrowly.
As if it were not bad enough that we have a statute that abridges freedom speech, bars access to the courts for one class of people, operates as an unconstitutional taking without reasonable compensation, and grants the Governor the option of extending its duration, now the Commonwealth’s chief law-enforcement official says that she will read into that statute words that are not there and apply it n a way that flies in the face of precedent.
So now you know the opinion of Attorney General Healey about your right of access to the courts. Should you wish to share your opinion with Attorney General Maura Healey, here is a link to the Contact page.
May 7, 2020:- A federal judge provided a welcome victory for the rights of free speech and access to the courts yesterday. Judge Stearns of the U.S. District Court for the District of Massachusetts issued an injunction prohibiting Maura Healey (the Massachusetts Attorney General ) from enforcing “emergency” regulations that would have prevented debt collectors from making phone calls to debtors and from going to court.
Claiming authority under the Consumer Protection Act (M.G.L. c. 93A) Healey had issued “emergency” regulations that were exempt from the notice-and-comment requirement that usually allows the public to weigh in. These were in addition to, not instead of, the comprehensive debt-collection regulations that already govern this area of economic activity. The new regulations purported to ban debt collection agencies from calling debtors and taking them to court for the duration of the open-ended state of emergency that Governor Charlie Baker proclaimed on March 10.
Because the regulations interfered with constitutionally-guaranteed rights of speech, petitioning, and access to the courts, ACA International asked the federal court for an injunction. The judge noted that one of the supposed justifications for the regulation (“vouchsafing the financial wellbeing of Massachusetts residents”) had little apparent connection to the AG’s attempt to prohibit one particular form of communication with debtors, namely the telephone. In fact, none of the reasons that the AG offered could justify burdening the commercial speech of professional debt collectors (as opposed to other people trying to collect debts, which the regulation exempted).
With regard to the AG’s rationale for barring the courthouse doors to one class of litigants (i.e. that there is a state of emergency), the judge quoted from a decision of the Supreme Court of the United States: “Emergency does not create power… Constitutions cannot be changed by events alone.”
There are similarities between the debt-collection regulations and Chapter 65, the Legislature’s eviction moratorium. Chapter 65 bars one class of litigants from going to court to seek possession of their real estate for nonpayment of rent (but allows them to seek repossession where a tenant’s criminal activity/lease violations “may impact the health or safety” of another person). Similarly it bans them from sending tenants notices to quit for nonpayment of rent (but not where criminal activity/lease violations “may impact the health or safety” of another person).
Might a court use the same line of reasoning to strike down the part of Chapter 65 that bans landlords from issuing notices to quit and going to court for summary process?
Certainly, there is a difference between a regulation and a statute. But the principle that an officer of state government may not use the state of emergency as an excuse to strip away basic constitutionally-guaranteed rights should apply with equal force to the Legislature. Landlords should take hope from the ruling.
Q. Is the eviction moratorium a federal law or a state law?
There are two moratoria. One is contained in the federal CARES Act. The other is a Massachusetts law, Chapter 65.
Q. Is the Massachusetts eviction moratorium a statute or an executive order?
The eviction moratorium is a statute, not an executive order. The Massachusetts Legislature passed it (and Governor Charlie Baker signed it) as an emergency law, Chapter 65 of the Acts of 2020, on April 20.
How long will the eviction moratorium last?
At present, Chapter 65 says that the eviction moratorium will last as long as the state of emergency plus 45 days. Governor Baker proclaimed the state of emergency on March 10, 2020, and his proclamation does not have an end date.
Even when Governor Baker does announce an end to the state of emergency, the Legislature could still amend the statute to extend the length of the moratorium.
Does the moratorium ban all evictions?
No, it allows housing providers to file summary process complaints where a tenant’s criminal activity or lease violation “may impact the health or safety” of another person. It prohibits no-cause evictions and evictions for nonpayment of rent.
In order for the court to accept a summary process summons and complaint, Standing Order 5-20 requires that the housing provider or attorney also file an affidavit swearing that the case qualifies as an “essential eviction” under Chapter 65, i.e. that it is based on a tenant’s criminal activity or lease violation “may impact the health or safety” of another person.
Q. Does the moratorium allow landlords to send notices to quit?
Yes, so long as the notice is for a tenant’s criminal activity or lease violation that “may impact the health or safety” of another person. Chapter 65 prohibits all other notices to quit, e.g. for nonpayment of rent. It also bans any notices that demand or request that a tenant vacate the premises. Landlords should take care not to write anything that could be construed as a request to vacate. For what to write in missed-rent notices, read on.
Q. Does the moratorium allow landlords to charge a late fee?
No, not if within 30 days after the missed rent payment the tenant gives the landlord a notice stating that the non-payment of rent was due to a financial impact from COVID-19. State government has published a notice for tenants to use.
Q. Does the moratorium allow a landlord to send notices of missed payments?
Yes, and landlords should do so, but the executive office of housing and economic development has issued regulations that specify what the notice must say including the following statement, which must appear on the first page.
“THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An emergency law temporarily protects tenants from eviction during the COVID-19 emergency. The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord. For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center.
You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19. If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources. If you cannot access the form on this website, you can ask your landlord to provide the form to you. You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.”
Landlords should also include the following, “This is important notice. Please have it translated.” The State government notice for tenants (see above) contains translations of that statement in 10 languages:
THIS IS AN IMPORTANT NOTICE. PLEASE HAVE IT TRANSLATED.
Questa é una notizia molto importante. Per piacere falla tradurre.
Este es un aviso importante. Sírvase mandarlo traducir.
C’est important. Veuillez faire traduire.
ĐÂY LÀ MỘT BẢN THÔNG CÁO QUAN TRỌNG.
XIN VUI LÒNG CHO DỊCH LẠI THÔNG CÁO NÀY.
Este é um aviso importante. Por favor mande traduzi-lo.
Es ê un avizu importanti. Di favor, manda traduzil.
Se yon anons ki enpòtan anpil. Sou Ple, fè tradwi li pou w.
Σπουδαιε Πληροφορεια − Παρακαλω να το µεταφρασετε.
MassLandlords has a sample notice available for members. Landlords should not send missed-payment notices that fail to comply with the regulations.
Q. Is Chapter 65 constitutional?
Some people believe that by prohibiting owners from going to court to try to regain possession of their property Chapter 65 violates the constitutional guarantee of access to justice, and that by requiring owners to provide housing with no guarantee of payment it may operate as a taking without compensation. Neither the Legislature nor the Governor asked the Supreme Judicial Court for an advisory opinion prior to enactment, and so far there are no judicial decisions one way or the other.
Q. If landlords wish to seek compensation for the alleged taking, what law could they rely on?
For owners whose real estate the Commonwealth has taken for public use during a state of emergency, the Civil Defense Act of 1950 sets forth the steps to follow. In a nutshell, the Act allows aggrieved property owners to file claims in Superior Court. Potential claimants should note the one-year statute of limitations.
May 1, 2020:- Today the Housing Court issued Standing Order 5-20, which sets out the steps for property-owners and attorneys to take in summary process cases that the Legislature deems “essential.”
Along with the summary process summons and complaint, the owner/attorney must file an Affidavit of Cause affirming under oath that the eviction is “for cause,” as defined in the moratorium law, Chapter 65, i.e. that the tenant’s criminal activity/lease violation “may impact the health or safety” of another person.
This new standing order provides some much-needed clarity for court staff, litigants, and practitioners. It also serves as a reminder that the moratorium does not prohibit all evictions, only some.
Of course, how prohibiting evictions for non-payment of rent but not evictions for health/safety reasons could in any way help “flatten the curve” or otherwise reduce the spread of COVID19 is not at all clear.
April 27, 2020:- Since March 23, 2020, when Governor Baker issued COVID 19 Order No. 13, closing businesses across Massachusetts, about half-a-million Bay Staters have been thrown out of work. Some are renters who will find it difficult–or impossible–to pay rent. In ordinary times, landlords would have had the option of sending them a notice to quit and then going to court for summary process.
On April 20 the Governor signed the eviction moratorium that the Legislature had passed, which will last as long as the state of emergency plus 45 days, namely Acts of 2020 Chapter 65. The new law prohibits property-owners from going to court for summary process (except where a tenant’s criminal activity/lease violations “may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public”). So landlords with tenants who can’t or won’t pay rent have no legal recourse. They are, however, allowed to remind tenants of the duty to pay rent.
If you are a property owner, what should you tell the tenant who misses rent?
Do not worry: the Executive Office of Housing and Economic Development of has decided for you. It has issued regulations that state not only what you may write but what you must write. These are emergency regulations, so did not have to go through the process of notice and comment that allows the public to have a say. Here are the precise words that your State government requires you to utter:
THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An emergency law temporarily protects tenants from eviction during the COVID-19 emergency. The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord.
If you cannot access the form on this website, you can ask your landlord to provide the form to you. You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.
The regulation adds:
The notice may also include other information that will promote the prompt and non-judicial resolution of such matters, such as the total balance due, the months remaining and the total of lease payments expected to be made on a lease for a term of years, information on how to contact the landlord to work out a revised payment arrangement, and a reminder that after the state of emergency ends the tenant may face eviction if rent remains unpaid.
The term “non-judicial resolution” is a bit pointless in the absence of any possibility of judicial resolution (Chapter 65 effectively barred the courthouse doors). But anyway, at least they are letting you say how much the tenants owe you and what may happen after the emergency.
The regulation goes on to add something that you should do, and also mentions something it “encourages” you to do.
If a landlord knows that the tenant is not proficient in English, the landlord should use reasonable efforts to deliver the notice in a language that the tenant understands.
Not a mandate, of course, just a suggestion. Then some more hortatory language.
Landlords are encouraged to include with the notice a statement that the notice is important and should be translated, a form of which is available on the EOHED website.
“Should” is not “shall” and “encouraged” is not exactly the same as “directly ordered to,” but you do not need a particularly vivid imagination to foresee what will happen to the landlord who chooses not to translate the notice and not to include the translated statement about the notice’s importance.
State government now permits you to inform non-paying tenants how much they owe and that after the state of emergency they may face eviction for non-payment. If you do choose to communicate with tenants on this subject, State government requires you to write the words set forth in the regulation. For some additional legal text that I consider relevant, click here.
April 23, 2020:- The new law is a moratorium on some (not all) evictions, not on rent. The law expressly states:
Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.
Are landlords allowed to remind tenants of this fact? Yes.
Certainly, landlords who choose to provide a written reminder need to take care not to say anything that could construed as a request to vacate or as a threat to initiate a debt-collection lawsuit, nor should they visit the tenant. Sending the reminder to some tenants but not to others would invite a charge of discrimination, so an all-or-none approach would be wiser.
The eviction moratorium statute prohibits landlords from sending, for the purposes of a “non-essential eviction,” any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”
The Attorney General’s emergency debt-collection regulations prohibit “creditors” from threatening to initiate a collection lawsuit. Is a landlord who is trying to collect rent owed (overdue by 30+ days) under a lease a “creditor” within the meaning of the debt-collection regulations?
The emergency regulation states, at s. 35.03(2), that the prohibitions do not apply to “an attempt to collect a debt owed by a tenant to an owner.” The applicable regulation defines “tenant” as a person who occupies a dwelling unit “under a rental agreement,” which term the regulation defines as “an express or implied agreement for use and occupancy of a dwelling unit.” Is a tenant-at-sufferance someone who is occupying a dwelling unit “under an express or implied agreement”? No; on the contrary, the tenant-at-sufferance is occupying the unit without the owner’s agreement, after any express or implied agreement has expired or been terminated.
This is somewhat convoluted, but bear with me: It is all too easy to imagine someone whose lease/rental agreement has expired or been terminated claiming to be a tenant-at-sufferance and, therefore, not a “tenant” within the meaning of the regulation and, therefore, outside the scope of the landlord-tenant exception to the ban on creditor-debtor communication. So tread carefully.
Sending a simple reminder to all tenants that the new law states that “nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent” would not, in my opinion, violate the statute or the regulations.
April 23, 2020:- Landlords and lawyers should bear in mind that the new eviction-moratorium law does not prohibit all evictions. The definition of “non-essential evictions” excludes:
(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.
Such evictions are not non-essential. Put another way so as to avoid a surfeit of negatives, such evictions are essential.
Note in particular the words “may,” “impact,” and “or.” The law does not say that the tenant’s criminal activity/lease violations must have a significant impact on the health and safety of another person, only that it “impact” the health or safety. Plus, it uses the disjunctive “or” as opposed to “and.”
What kind of activity can be said to “impact” someone’s health, including mental health? That is food for thought.
Takeaway: If a tenant’s activity may impact the health or safety of another person, the new law allows the landlord to file–and does not authorize the court to reject–a summary process case.
April 20, 2020:- Today Governor Charlie Baker signed the eviction-moratorium bill that will last as long as the state of emergency that he proclaimed on March 10, plus 45 days. What is the duration of the state of emergency? How long is a piece of string?
Unlike Order No. 13 (the business-closure order that expires on May 4, 2020) the state of emergency has no end date. By its terms the proclamation “shall remain in effect until notice is given, pursuant to my judgment, that the STATE OF EMERGENCY no longer exists” (all caps in original).
The new law says that the Governor may extend the moratorium in 90-day increments, so long as he does not extend it to a date more than 45 days after the end of the emergency. If, for the sake of argument, the Governor terminates the emergency on June 30, the earliest date on which a landlord could issue a notice to quit for non-payment of rent would be August 14 and the Housing Court would not have a hearing on the summary process summons and complaint until September at the earliest. Given the backlog of cases, further delays are inevitable.
The conclusion of the moratorium depends on when the emergency expires, and right now that day looks distant. There is no reason to assume that it will be in June. Because although the pandemic may be on the wane, economically we are in tatters.
According to the International Monetary Fund (IMF), by the end of 2020 the global economy will have contracted by 3%, compared with 0.1% in the recession of 2009. Unemployment in the United States is already at 22 million (at least) and likely to go up. Hospitals are laying off workers. The price of oil has fallen below zero. If there wasn’t an emergency on March 10, there certainly is now.
But even if the Governor does lift the state of emergency and lets the moratorium expire 45 days thereafter, that might not mean much. The Legislature could choose to extend the moratorium by amending the statute. That seems more likely than not.
In view of its popularity among the majority and the likely demands by tenants’ advocates for an extension, it would take real political courage to leave the statue in its present form and let the moratorium expire on time. In the language of politics, the definition of “temporary” is almost infinitely elastic.
April 15, 2020:- Just when you thought it couldn’t get any worse. If the Massachusetts Legislature passes the eviction moratorium embodied in this bill, which emerged from the Senate today, it will not only violate two of the bedrock rights that are guaranteed in the Massachusetts Declaration of Rights, but will also grant to the Governor a power that no executive branch in the Anglosphere — no English monarch even — has claimed since the 17th Century: the power of suspending and dispensing the laws. This is a step backward, a step back to the era of royal absolutism.
It was already bad enough that our full-time salaried lawmakers wished to take private property without compensation and bar people from going to the courts. As I pointed out in a previous post, Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses and Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
Now the Legislature intends to strip away another right, one that the people of Massachusetts granted to their Legislature, namely the power to decide how long a statute should remain in force. Section 7 of the new bill says that the eviction moratorium will expire in 120 days unless the Governor extends it. Read that again. Unless the Governor extends it. The alleged power to suspend or dispense legislation was a medieval prerogative reclaimed in the 1640s by Charles I. Things went poorly from there, for both the king and the kingdom.
If this were simply a matter of the Legislature surrendering their own rights to the executive branch, it would merit little more than a meh. But the right is not theirs to give. The purpose behind the separation of powers is to protect the rights of the people, not the rights of their full-time salaried servants in the State House.
If Governor Baker signs this bill into law we will have crossed another constitutional threshold.
April 13, 2020:- On March 23 Governor Baker issued an order titled COVID 19 Order No. 13 instructing businesses (other than those providing “COVID 19 Essential Services”) to “close their physical workplaces and facilities… to workers, customers, and the public.” This was an extraordinary order. As a direct result, unemployment in Massachusetts rocketed upward as it did in other States whose governors issued similar orders.
In my previous post I mentioned that in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000, and we did not close down the economy and throw millions of people out of work. Putting that to one side, whatever the past efficacy if any of Order No. 13, it is now time to rescind it. If the number of hospitalizations increases over the next week or so, there is no reason to believe that this will strain the system to capacity.
Accordingly I have asked Governor Baker the following simple question:
With the cumulative number of hospitalizations in Massachusetts at fewer than 2,500 and with the number of deaths per day attributable to the virus at about 80-90, it is now reasonably clear that COVID 19 is not going to overwhelm our healthcare system. Given that the purpose underlying your order dated March 23 (COVID 19 Order No. 13) was to flatten the curve, could you please announce when you are going to rescind the order?
The designer of the University of Washington model says that “the worst is behind us.” That may be accurate as to the pandemic, but it is not true about the effects of our State government’s response. The close-business orders have led to the immiseration of countless families, and more livelihoods and lives are now at risk than there were before March 23.
If your business closed because of Governor Baker’s order, please let me know.
April 3, 2020:- In order to slow the spread of COVID 19, on March 10 Governor Baker declared a state of emergency. On March 23, he ordered all “non-essential” businesses to close. Yesterday, the Massachusetts House of Representatives voted to prohibit landlords (commercial and residential) from issuing notices to quit and commencing eviction actions for the duration of the state of emergency plus 30 days. For the eviction-moratorium bill itself click here.
If tenants cannot pay rent (e.g. because state government destroyed their jobs) the landlord will not receive the money needed to pay for the upkeep of the premises, to pay employees, and pay taxes. Perhaps, to cover at least one part of this government-made crisis, the Legislature will appropriate money to expand the RAFT program. If so, it will need to dramatically expand not just the amount of money but also the eligibility rules.
The eviction moratorium marks the crossing of an important threshold. If and when the Governor signs it into law, the people of Massachusetts will experience yet another extraordinary erosion of their rights.
If government takes your property for public use, it should compensate you. If you have a grievance, you should be able to seek redress in a court of law. These are not ideas that just popped into my head; they are principles embodied in our founding charter.
Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses. Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
The eviction moratorium robs property-owners of the right to a legal remedy and it amounts to a taking without just compensation. It makes a mockery of Article 1, which describes the right of enjoying and protecting property as “natural, essential, and unalienable.” And it will have a devastating impact on rental-property owners, their families, and their employees. What possible rationale could there be for such an attack on our rights?
According to the COVID Tracking Project, at this point the cumulative number of hospitalizations for COVID 19 is approximately 36,000, and the number of deaths is 6,962. Unfortunately it seems reasonable to expect that the numbers will rise over the next couple of months, perhaps even as high as 100,000.
The overall burden of influenza for the 2017-2018 season was an estimated 45 million influenza illnesses, 21 million influenza-associated medical visits, 810,000 influenza-related hospitalizations, and 61,000 influenza-associated deaths.
That’s certainly a large number of deaths. There’s no getting around the fact that 61,000 represents a lot of lost lives and bereaved families. That same year, by the way, there were 36,550 deaths attributable to road traffic accidents.
The overall burden of influenza for the 2016-2017 season was an estimated 29 million influenza illnesses, 14 million influenza-associated medical visits, 500,000 influenza-related hospitalizations, and 38,000 influenza-associated deaths.
So in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000. And we did not close down the economy and throw millions of people out of work.
From 12 April 2009 to 10 April 2010, we estimate that approximately 60.8 million cases (range: 43.3-89.3 million), 274,304 hospitalizations (195,086-402,719), and 12,469 deaths (8868-18,306) occurred in the United States due to pH1N1. Eighty-seven percent of deaths occurred in those under 65 years of age[.]
Approximately 12,000 people in the United States died from H1N1 in 2009-10. The following flu season (2010-11), approximately 37,000 died from a different kind of influenza, according to the CDC. We did not close down the economy and throw millions of people out of work.
We are not at war, no matter what the politicians say (well, we are at war–at least our all-volunteer military is–but not against a virus). Rather, we are in a horrible but manageable pandemic. The circumstances do not justify this attack on our rights.
The Legislature and Governor are poised to strip property owners of the right to go to court to seek repossession of their own property. They are forcing an economic minority (rental-property owners) to pay the price for the state government shuttering businesses and destroying jobs, in other words to provide a public good without reasonable compensation. The rights that we lose today will not automatically bounce back tomorrow, or the day after, or when the Governor chooses to declare the emergency over.
March 31, 2020:- For many people in Massachusetts, tomorrow rent is due. Some will face a very tough choice. Why?
Because today is the seventh day since Governor Baker’s business-closure order took effect. At the stroke of a pen, approximately 150,000 people had their jobs and livelihoods taken away (albeit with the best of intentions on the part of the Governor).
People are hurting. For a lot of us, renters and home-owners alike, it feels like we are about to fall off a cliff.
What happens when people cannot afford to pay rent?
In this emergency, no landlord would want to ask the Housing Court to evict a tenant for nonpayment of rent. And now many do not have that option anyway, even for tenants who are still in work and can afford to pay rent. Why?
Because today is also the fifth day since Congress passed the CARES Act, which (among other things) imposes a 4-month moratorium on evictions from residential properties with federally-backed mortgages. For the applicable language, scroll down to page 574 and read Section 4024(a)(4) and (5).
In the coming months, more and more people are going to face hardship and the appalling choice between food and rent. I know which one I would choose.
There will be a handful–there always is–of those who can pay but won’t; those who will take advantage, safe in the knowledge that if they live in a property with a federally backed mortgage the landlord must not send them a notice to quite, let alone ask a judge to evict them.
So who is going to pay for the cost of housing people who can’t (or won’t) pay rent?
Who is going to pay the landlord’s employees and contractors, the people who keep rental homes fit to live in?
Sign the petition
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition.
The Commonwealth should immediately stand as surety for renters who cannot afford to pay rent. A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
If you think that the Commonwealth as a whole should stabilize housing by guaranteeing rents via surety bonds, sign the petition today.
Tell the Legislature to keep us from falling off that cliff.
March 27, 2020:- Here’s my video asking people to sign the petition that asks Massachusetts lawmakers to stabilize housing by guaranteeing the rent.
As I mention in the video, this is day 17 of the state of emergency and only four days have passed since the Governor issued the executive order closing all “non-essential” businesses. As a result, unemployment in Massachusetts has gone up 1,900%.
For my description of the proposal and its rationale, please see my previous post.
By the way, in the video I wonder whether we will look back on state government’s response as proper or as Operation Barn Burner. I’m using the term “barn burner” in its 19th-century sense, i.e. someone who will rid the barn of rats by burning it down, akin to journalist Peter Arnett’s phrase that he attributed to an officer in the US Army, “destroy the village to save it” (which phrase no officer may have actually uttered).
I am inviting you to sign a petition, and here’s why:
“No one should fear losing their home because of the coronavirus,” HUD Secretary Ben Carson tweeted on March 18.
Well said, ditto that, and hear hear. The same principle should apply to renters and owners alike. No one who provides homes should fear losing them because of the coronavirus.
Without a doubt, Governor Baker and our other elected officials in Massachusetts have been attempting, in good faith, to protect the public by flattening the curve. But the cumulative effect of the orders has been devastating to the livelihoods of thousands.
I am not a landlord, but I have represented quite a few over the years (some tenants too) and know that they depend on rent checks to pay their bills. When tenants can’t pay landlords, landlords can’t pay the next people along in the chain of obligations, e.g. the cleaners, plumbers, carpenters, roofers, and electricians who keep tenants’ homes up to code.
Many tenants are losing their jobs and can’t pay rent, and the ripple effects are obvious.
Even if, looking back, it turns out that these measures really did help slow the spread of COVID 19, it is already clear that they have inflicted massive damage on families across Massachusetts. And things are likely to get worse before they get better. The Economic Policy Institute projects 125,000 job losses in Massachusetts by the summer.
People are out of work and unable to pay rent as a direct result of our State government’s response to COVID 19. Acting under the authority that the Legislature granted in 1950, the Governor issued a series of executive orders.
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition:
The Commonwealth should immediately stand as surety for renters who now—because of those executive orders—cannot afford to pay rent. It was the Governor—not landlords—who issued those orders, and it was the Legislature—not landlords—that granted the Governor the legal authority to issue them.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out. It is a way to insure against loss. Some insurance companies offer this kind of product to landlords.
But now is hardly the time to try to buy surety bonds. The peril is already manifest. Instead, in the interests of social cohesion and stability, State government needs to act as insurer and guarantee the rent. After all, this is not an instance of market failure, but rather government failure.
If you agree that the Commonwealth of Massachusetts needs to guarantee rental payments during this crisis, please sign this petition.
The Massachusetts Legislature can make this happen. Our Constitution vests the sole authority to initiate money bills, the so-called power of the purse, in the House of Representatives, and the Speaker of the House should act immediately. He has the power to push the necessary legislation through.
Sign the Petition
COVID 19 has thrown us a curve ball, and we all — owners and renters alike — are in need of one heck of a batter.
Mr. Speaker, you’re up.
To call on the Speaker to issue surety bonds to guarantee people’s rent, sign the petition today.
March 23, 2020:- What a difference a day makes. Today’s decision from the Supreme Judicial Court (SJC) in Youghal, LLC v. Entwistle reminds landlords that they need to prove receipt (not merely the sending) of a notice to quit and that they can only commence summary process for non-payment of rent after 14 days have elapsed.
In the Youghal case, the landlord’s agent taped the notice to quit for non-payment of rent to the tenants’ door on June 6, 2017. But at trial one tenant testified that she did not see the notice until the following day, June 7. The landlord served the tenants with a summary process summons and complaint on June 21, 2017, which within the 14-day period that commenced on June 7 (the day the tenant said she saw it). Therefore, said the SJC today, “judgment must enter for the tenants.”
March 6, 2020:- Civil asset forfeiture is a way for law-enforcement agencies to acquire property (money, vehicles, real estate, etc.) from people who have not been charged with, let alone convicted of, any crime. If somebody — anybody — used the property, or even just intended to use it, in the commission of a drug crime, the government can take the property, sell it, and keep the proceeds, and all without the rigmarole of a trial.
Under Massachusetts law, G.L. c. 94C, sec. 47(d), if the Commonwealth establishes probable cause (not a very high bar) the burden is on the owner to prove that the property is not forfeitable.
For example, one case in Tewksbury involved local and federal agencies trying to take a motel that had been in the same family for two generations. The reason? Over the course of 14 years during which the owners had rented out rooms approximately 200,000 times there had been 14 drug-related arrests on the premises. There was no suggestion that the owners themselves had done anything wrong.
As an editorialMassachusetts Lawyers Weekly in 2019 stated:
All of this makes it too easy for property to be confiscated, and creates incentives for police and prosecutors to use forfeiture as a way to target those without the ability to fight a seizure. The law can also lead to unintended consequences, such as putting elderly parents or minor children living in a target’s house at risk for homelessness.
I am committed to helping reform the these laws, and am working with other concerned citizens to raise awareness and organize for change.
In the meantime, if law enforcement is trying to obtain your property through forfeiture, email/call me for a free 30-minute consult.
February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.
January 28, 2020:- The federal Department of Housing and Urban Development (HUD) has issued a new guidance document on the subject of assistance animals, a term that covers (1) service animals, and (2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).
As HUD clearly states, the guidance document is just that: a guidance document, not something that expands or otherwise alters obligations under the federal Fair Housing Act.
November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued. The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.
Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents. My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”
In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.
Today’s decision makes this a good day for open government and the rule of law.
P.S. November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.
September 19, 2019:- At 12 noon on October 9 in its Springfield office, the Massachusetts Commission Against Discrimination (MCAD) will hold a public hearing on proposed changes to its procedural regulations. For a link to the notice click here.
One proposal in particular caught my eye, as I mentioned in a previous post, and here is the text of the comment I submitted to the MCAD in support of it:
804 CMR 1.13(9)(b)(3)
The proposed rule provides that “where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.”
As an attorney who has previously complained about the Commission investigating charges without having adjudicated a motion to dismiss for lack of jurisdiction, I welcome this proposal. A clear and unambiguous grant of discretion to issue a stay would be a significant improvement on the current situation.
However, where a respondent’s motion raises the limitation period I believe that a stay should be mandatory not discretionary. The purpose of a statute of limitation is to provide a degree of certainty and predictability, which purpose is undermined when investigations commence after the statutory deadline has passed. Accordingly, where a motion seeks dismissal based on the expiry of the limitation period, the Commission should only continue to investigate after determining that the period has not expired and the Commission does, in fact, have jurisdiction.
In order to maintain the principle of separation of powers (one of the bulwarks of liberty), agencies should operate within, not beyond, their statutory remit. Conducting an investigation without jurisdiction violates that principle. It should not happen. This proposed regulation goes some way toward preventing the MCAD exceeding its authority, so I hope that it makes the final cut.
I intend to be at the public hearing in Springfield and to post a brief report of what, if anything, occurs. Probably it will not be necessary to arrive hours ahead of time and queue for a seat. After all, on October 9 many Bay Staters will be busy observing the anniversary of the banishment of Roger Williams in 1635 or celebrating Leif Erikson Day. Quite possibly, therefore, there may not be much of a crowd at the mid-week, noontime meeting to discuss amendments to the MCAD’s procedural regulations. But you never know. In the meantime, if readers would like to know more about the issue, please post a comment or email me.
September 16, 2019:- Today the Supreme Judicial Court (SJC) announced a decision that gives landlords cause to rejoice.
Following motion by a landlord, a court has statutory and equitable authority… to order a tenant at sufferance to make interim use and occupancy payments during the pendency of an eviction action.
On behalf of MassLandlords, I submitted an amicus brief in the case, Davis v. Comerford, and my main worry was that the court would set an unrealistic threshold for landlords to meet before a rent-escrow order could issue. That worry was misplaced, I am relieved to say. Instead of following the advice of the Harvard Legal Aid Bureau and requiring landlords to show the threat of “irreparable harm,” (i.e. harm that money cannot fix) the SJC tells judges which factors to take int account and to then engage in an “overall balancing of the equities.”
The first factor?
[T]ime lost in regaining [real property] from a party in illegal possession can represent an irreplaceable loss to the owner.
The other factors in the non-exhaustive list of factors that the judge should weigh are;
Amount of rent owed;
Number of months with no payments/partial payments;
Landlord’s monthly obligations;
Whether landlord faces the threat of foreclosure;
Tenant’s likelihood of success on the merits of defenses/counterclaims;
Whether tenant has been withholding rent because of conditions, or has repaired and deducted cost from rent;
Whether code violations are de minimis or substantial;
Whether tenant is indigent.
In addition to making clear that judges can order rent escrow and not setting an impossibly high bar for landlords, the SJC said this:
We further conclude that payment into an escrow account maintained by the court or counsel for one of the parties typically will provide sufficient protection to a landlord, but we clarify that a judge may order payments directly to a landlord if certain additional factors are present, such as where the landlord demonstrates that use and occupancy payments are necessary for the landlord to pay a mortgage on the premises or meet other pressing financial obligations.
For the slip opinion of the Davis v. Comerford decision click here.
August 29, 2019:- If you like government secrecy and think the legal system would function much better out of the public eye, you are going to love a proposal called “eviction sealing.”
Some Massachusetts lawmakers would like eviction cases sealed so that the public (in particular, landlords) will not be able to know who has been taken to Housing Court. The bills are H. 3566 and S. 824, and if enacted they would move Massachusetts further away from an important constitutional principle, one that Oliver Wendell Holmes, Jr., described more than 100 years ago:
It is desirable that [judicial proceedings] should take place under the public eye… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). Based on the idea that sunlight is the best disinfectant, as another jurist put it (quoting James Bryce), Massachusetts court records are available for public inspection unless a specific statute, court rule, or order says otherwise. Public access is the default setting. But here is a video of Professor Esme Caramello, clinic director of the Harvard Legal Aid Bureau, explaining to the Poverty Law Clearingouse why summary-process records should be an exception.
In the video Professor Caramello says that “we saw a dramatic increase in barriers to finding new housing once all the Housing Court records went online” and that allowing public access to Housing Court cases “allows landlords to say ‘if ever a person tries to assert their rights, I don’t want to have anything to do with them,’ so it really creates a major access-to-justice problem.”
This is consistent with what Professor Caramello and Annette Duke of the Massachusetts Law Reform Institute wrote in an article titled “The Misuse of MassCourts as a Free Tenant Screening Device,” published in the Fall 2015 edition of the Boston Bar Journal making the case that landlords should not be allowed to know whether a prospective tenant has been party to a case in Housing Court.
Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
Another scholar, Paula A. Franzese, makes a similar point in a law review article titled “A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity,” 45 Fordham Urban Law Journal 661 (April 2018):
Blacklists stigmatize, precluding future renting opportunities and rendering affordable housing options even less accessible. What is more, the lists skew market efficiencies, creating “false negatives” of prospective renters who would in fact be fine tenants. The very specter of being blacklisted can impose a considerable chilling effect, dissuading tenants from exercising otherwise assured rights and remedies.
These are strong arguments against landlords making decisions based solely on Housing Court records. A rental-property owner who declines to rent to applicants because their names appear in the Housing Court records could be missing out on great tenants. Rental property owners do not want to miss out on great tenants because (as tenants’ advocates seem to forget occasionally) owners are in the business of renting homes to people, not rejecting and evicting them.
But, appealing as their equity-based arguments may be, Professors Caramello and Franzese do not explain why a tenant’s interest in secrecy should outweigh the public’s interest in access to information, which is a right protected by the First Amendment, according to the First Circuit Court of Appeals. The professors’ solution is not narrowly tailored to serve a compelling government interest, which is the test courts use in deciding whether the government is justified in restricting rights guaranteed by the First Amendment. A blanket ban is quite the opposite of narrow tailoring, really.
Nor do they address the likely consequences of hiding this information from landlords. If landlords are not allowed to manage risk by deciding how much weight to give Housing Court records (because the Legislature has clawed the records back from the public domain) they will insure against the unknown risk in the obvious way: by raising rents.
The State with the highest homeless population in the nation, California, enacted eviction sealing in 2016. According to this article in the Mercury News the bill’s sponsor called it “a commonsense law… that will prevent working families from becoming homeless.” This article from the Wall Street Journal and this one in the Sacramento Bee tell us just how accurate that prediction turned out to be. True, homelessness in California as a whole did drop by 1% in 2017-18 — after years of going upward — as CNN reported. But as NPR, Curbed, and the Guardian pointed out 2019 is another story, with homelessness in Los Angeles (the county with the largest population) rising dramatically this year.
Is there really no way to tackle the eviction-records issue in Massachusetts short of stripping the public of a First Amendment right, becoming more like California, and raising rents?
Last month in the State House I testified against eviction-sealing on behalf of MassLandlords. The proposal is just one among a cluster of landlord-tenant bills pending before the Legislature, e.g. the return of rent control, providing tenants with publicly-funded lawyers, prohibiting evictions without “just cause,” and creating a tenants’ right of first refusal.
For details of my testimony, please stay tuned for the September edition of the MassLandlords newsletter.
March 5, 2019:- Amherst attorneys Paul Bobrowski and Peter Vickery are pleased to announce the formation of Bobrowski & Vickery, LLC, which will focus on civil litigation, employment law, land-use law, landlord-tenant, general business law, and estate planning.
Bobrowski is a graduate of the University of Massachusetts, Amherst, where he obtained his BS (Astronomy) and MA (Sociology), and of the University of San Francisco where he obtained his JD. In addition to practicing law, he served for 11 years as Senior Consultant at the Information Technology Division of the Judicial Branch for the State of Connecticut.
Vickery is a graduate of Oxford University (BA); the University of the West of England (Postgraduate Diploma in Law); Boston University School of Law (JD); and the University of Massachusetts, Amherst (Master of Public Policy & Administration). Vickery is a former Governor’s Councilor for Western Massachusetts and former member of the State Ballot Law Commission, and is Legislative Affairs Counsel for MassLandlords, the statewide membership organization representing rental-property owners in Massachusetts.
January 15, 2019:- The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.
Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.
The new proposed rules give the Investigating Commissioner clear authority to issue a stay.
Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
December 4, 2018:- Leyla Pirnie’s landlord would like her to move out. Why? Because Ms. Pirnie (a graduate student at Harvard University) keeps a firearm in her apartment.
The story has been gaining national attention after it broke in the Washington Free Beacon , and it raises important questions for landlords across Massachusetts. How far can landlords go in limiting their tenants’ exercise of constitutionally-guaranteed rights? For example, does a landlord have the right to prohibit a tenant from exercising her right to free speech in the leased premises? What about the free exercise of religion?
If a tenant has a disability, the landlord may have to make an exception to the property’s no-pets policy so as to accommodate the tenant’s emotional support animal (for my MassLandords article on that subject click here). But is there such a thing as an emotional support gun?
I will be exploring these and other questions in next month’s MassLandlords newsletter. In the meantime, to watch Ms. Pirnie’s interview on Fox News click here.
The Washington Post reports that Lynne Patton, the New York regional administrator at the Department of Housing and Urban Development (HUD) is moving from her apartment in Trump Plaza into public housing in Harlem for the month of January.
Patton will become a tenant of the New York City Housing Authority, which has been the subject of much criticism for, among other things, failing to address lead paint problems. See e.g. this New York Times article and various stories in The Real Deal. The conditions in the authority’s units triggered a federal investigation and lawsuit, which in turn prompted Patton’s planned stint as a public-housing tenant.
“As Regional Administrator, I cannot continue to purport to understand, nor resolve, the daily plight of a NYCHA resident without experiencing it firsthand,” Patton said. “It is my intent to spend the entire month of January doing exactly that.”
From the MassLandlords newsletter: Massachusetts Attorney General Maura Healey issued a press release relating to the sum of $40,000 that her office acquired from three sets of rental-property owners, property managers, and real-estate agents to settle enforcement actions. The press release outlines cases involving three properties: the first in Taunton, the second in Revere, and the third in Roslindale. To read the rest of the article, click here.
August 1, 2017:- In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Although the employer denied any wrongdoing, the case settled for $10,000.00.
In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Stop me if you’ve heard this one before.
In fact, second time around the outcome was different. By the time of the pay-out from employer 1 (Roadway Express) Alberto Rodriguez was already working for employer 2 (UPS) in Springfield, Western Massachusetts. After 11 months, UPS fired him, and a few days later Mr. Rodriguez filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. Earlier this year the MCAD dismissed the case. Among the various reasons the MCAD hearing officer gave for ruling against Mr. Rodriguez was this one:
In her deposition in the Roadway Express lawsuit (which, during his deposition in the UPS case, Mr. Rodriguez denied ever having filed), Mrs. Rodriguez stated that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. In her deposition in the UPS case, Mrs. Rodriguez testified that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. The hearing officer found this similarity not only “striking and suspicious” but “so far-fetched as to be wholly implausible.”
Fool me once, shame on me, as the saying goes. Fool me twice? For the second part of that aphorism (the less traditional version) delivered by internationally-acclaimed business guru Michael Scott, click here.
The lessons for employers facing charges of discrimination? First, consider taking depositions, so that you can compare and contrast the deposition testimony with the deponent’s testimony at the hearing. It is not only discrepancies that can be helpful; so can consistencies, especially those that strike a reasonable objective listener as implausible. Second, even if the MCAD issues a probable-cause finding that paves the way for a public hearing, as happened in the Rodriguez v. UPS case, if the facts are on your side and you can prove them, consider resisting the understandable impulse to settle and, instead, stand firm.
July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.
The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.
Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.
Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:
This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.” If a State does not like a Federal law, the judges of that State may not repeal it. Nullification is not an option. I believe we fought a war about this.
However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:
“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”
That is a very difficult sentence for me to understand. Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.
After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC. Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.
Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.
June 15, 2017:- Massachusetts state government is in debt to the tune of approximately $130 billion. Paying that down will require, I think, a fairly large number of people gainfully employed — providing goods and services that other people want — and paying taxes. So (and please forgive the sarcasm here) what could be better for Massachusetts than a new state government program that allows private-sector employees to take half the year off while getting paid up to $1,000.00 per week? Only one thing could be better than that: a new state government agency to administer the program. The new agency will need staff, of course. So at least somebody will be working.
Last session, this proposed item of legislation (titled An Act Establishing the Family and Medical Leave Insurance Program) passed the Senate. The re-filed bill had a hearing in the State House recently. For the bill text click here. To read the testimony of John Regan, Executive VP for Government Affairs for Associated Industries of Massachusetts, click here.
For the sake of balance I also direct you to the website of the bill’s proponents, the Coalition for Social Justice, Inc. (CSJ). Just click here. Needless to say, CSJ (2015 revenue $164,456.00) and CSJ Education Fund, Inc., (2015 revenue $394,811.00) are 501(c) non-profits, which means that they do not pay taxes.
May 24, 2017:- If someone tells a Boston Globe reporter something about you that you consider defamatory, and the Globe publishes it, you could sue for defamation. But what if that certain someone expresses the same message through the same medium as a way to reach to those Globe readers who happen to be state government officials? Should a judge throw the case out right away because of the speaker’s intended audience?
Because of the broad language of the Massachusetts law barring “strategic lawsuits against public participation” (the anti-SLAPP statute) this is a question that comes before the courts from time to time. The statute bars claims and counterclaims “based on” a party’s constitutional right of petition. This casts too wide a net, one that catches (and thereby prohibits) claims that people bring in good faith, not out of any desire to chill the other side’s petitioning rights.
Fortunately, yesterday the Supreme Judicial Court (SJC) narrowed the statute’s reach via the case of Blanchard v. Steward Carney Hospital. For my post on the Appeals Court’s decision on the same case last year click here.
In a nutshell: The action will survive if the person suing can show that they did not sue primarily to chill the other side’s legitimate exercise of their right to petition.
This is the right decision, but what a shame that the Legislature left it to the judicial branch to remedy its own poor drafting.
April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?
Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.
After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”
The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.
In a nutshell: This decision delivers a subtle but important victory for employers.
March 31, 2017:- Today the Appeals Court issued its decision in CMJ Management Co. v. Wilkerson, a landlord-tenant case from the Boston Housing Court. After the tenant failed to comply with the pre-trial orders, the judge struck the demand for trial by jury.
The Appeals Court held that the judge should not have struck the demand without first considering “lesser sanctions.” But it also made clear that Housing Court judges do have the discretion to impose the sanction of striking a jury-trial demand, so long as the judge takes into account the tenant’s culpability, any prejudice to the landlord, and the deterrent effect. The right to jury trial is fundamental but it is not absolute.
February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.
Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.
Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.
But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.
As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.
The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.
February 14, 2017:-Today the highest court in Massachusetts marked St. Valentine’s Day by demonstrating its love for free speech.
The question was this: If bloggers accuse a scientific consulting company of fraud, questionable ethics, and intentionally manipulating findings, may the company sue the bloggers for defamation? The answer: No, not in Massachusetts, at least not if the company is providing expert testimony in high-profile litigation.
In a case connected to the Deepwater Horizon explosion and oil spill, the Supreme Judicial Court (SJC) considered the defamation complaint one of BP’s experts, Chemrisk, had brought against two environmental activists. The activists wrote that Chemrisk had engaged in fraud and “intentionally manipulated findings.” Relying on the anti-SLAPP statute, they had asked a lower court to dismiss Chemrisk’s lawsuit. The lower court denied the motion, but the SJC essentially overturned that denial and, to boot, awarded the activists their costs and legal fees. To read the SJC decision, click here.
The anti-SLAPP statute protects defendants not only in directly petitioning governmental bodies, but also in making “any statement reasonably likely to enlist public participation” in that petitioning effort effort. According to the SJC, the activists’ blog post was “part of [their] ongoing efforts to influence governmental bodies by increasing the amount and tenor of coverage around the environmental consequences of the spill, and closes with an implicit call for its readers to take action.”
Today’s decision represents a very welcome victory for freedom of speech.
February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.
In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.
Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.
Must a charity that offers free reconstructive surgery to female victims of domestic violence also provide those services to a gay man? No, said the MCAD in a decision last September. Only two months earlier the Legislature and Governor had prohibited places of public accommodations from excluding men from women’s restrooms and locker rooms, so you might think the case would have grabbed the odd headline, but apart from this Mass Lawyers Weekly article it received surprisingly little media attention.
The respondent was the R.O.S.E (Regaining One’s Self Esteem) Fund, a non-profit that seeks to help women who are the survivors of domestic violence. In 2008 it declined to extend its services to Kevin Doran, whose male partner had assaulted him, leaving him with broken teeth and facial bones. With the support of Gay & Lesbian Advocates & Defenders (GLAD), Mr. Doran argued that the ROSE Fund is a place of public accommodation and that by turning him away it had violated the Massachusetts anti-discrimination laws.
In 2014 an MCAD hearing officer ruled in favor of the ROSE Fund, finding that the organization was not a place of public accommodation. In its appeal brief GLAD said the decision meant that “ROSE can now discriminate not only against men, but also on the basis of race, national origin, religion, sex, sexual orientation, and disability as well.”
Nevertheless the full three-member Commission upheld the 2014 decision on First Amendment grounds:
“The U.S. Supreme Court has recognized the venerable history of the public accommodation laws in Massachusetts, but when applied to expressive activity, the laws may not act to compel certain speech in violation of the First Amendment.”
For that reason, the Commission held that “a private charity set up with the express purpose of serving a narrow community may be allowed to make choices about whom to serve, based on the purpose of the organization and consistent selection criteria.”
This is a very narrow ruling. The MCAD limits its First Amendment expressive-activity exception to a thin sliver of entities: tax-exempt corporations set up to serve a “narrow community,” as opposed to regular businesses and individuals who do not have tax-exempt status and cater to the general public. The decision sits awkwardly alongside expressive-conduct cases from other jurisdictions such as Elane Photography (photographers fined for refusing to photograph same-sex commitment ceremony) and Barronnelle Stutzman (flower arranger fined for refusing to design arrangement for her friend’s same-sex wedding). In those cases, the fact that the defendants’ businesses consisted of expressive activity did not exempt them from the legal obligation to provide their services at same-sex weddings. If those are not examples of the state “compelling certain speech” I don’t know what is.
And as for why tax-exempt corporations should have greater free-speech rights than the rest of us, that is not something the MCAD’s Doran decision addresses.
November 29, 2016:- In the general election the voters of Massachusetts approved a law to legalize, tax, and regulate marijuana. It was a convincing eight-point win for the legalization campaign: 54% to 46%. In my home town, Amherst, the margin was dramatically larger: 75% to 25%.
How the new law will affect Amherst and the surrounding communities was the focus of a forum I moderated recently for BLAAST (Business Leadership for Amherst Area Strategies) a joint program of the Amherst Area Chamber of Commerce and the Amherst Business Improvement District. To watch the video, click here. To read the related article in Business West, click here.
Given the nature of my practice, a few people have asked me about the effect of legalization on trademarks, e.g. will marijuana sellers be able to register their trademarks? Two facts are relevant.
The first is that there trademark owners can protect their marks via state law and federal law. Registering a mark with the state only protects it within that state, of course. For example, I have registered my mark (the flying-V logo) in Massachusetts, the state where I am admitted to practice law. If some lawyer started using the same mark in California and I sued for trademark infringement, my Massachusetts certificate of registration would not be sufficient evidence to afford me an automatic courtroom victory. To have the presumptive exclusive right to use my mark nationwide I would need to register it federally with the United States Patent & Trademark Office (USPTO).
The second important fact is that on the subject of marijuana there is now a clear tension between federal law and state law. In 1970 Congress passed the Controlled Substances Act, which prohibits the cultivation, possession, and distribution of marijuana. The Supreme Court of the United States upheld the statute in 2005, ruling that Congress had the necessary constitutional authority under the Commerce Clause. And although the People of Massachusetts have enacted the Regulation and Taxation of Marijuana Act, Congress has not repealed the Controlled Substances Act.
Nor has Congress amended the federal trademark statute, the Lanham Act. This matters because the Lanham Act only allows the registration of trademarks that are used in connection with lawful activities, which excludes the sale of marijuana (a federal crime). For so long as the Controlled Substances Act and the unamended Lanham Act remain the law of the land, it seems highly likely that the USPTO will carry on refusing to register marks used in connection with the sale of marijuana.
As a result of this federal-state tension, a few constitutional questions come to mind. For example, doesn’t the Supremacy Clause mean that the Controlled Substances Act preempts state law in this field? No. Why not? Because the statute itself expressly says so (section 903, if you’re interested). Nevertheless, couldn’t the federal government compel Massachusetts to enforce the Controlled Substances Act? No. Why not? Because of the Tenth Amendment.
So could the trademark section in the Corporations Division of the Massachusetts Secretary of the Commonwealth allow marijuana sellers to register their marks at the state level? My answer to this question is forthright and unequivocal: it depends.
On the one hand, the applicable state statute prohibits the registration of marks that consist of or comprise “immoral… or scandalous matter.” In view of the voters’ decision to legalize marijuana it seems unlikely that a judge would find that the drug qualifies as immoral or scandalous any more. Under Massachusetts trademark law, therefore, marijuana trademarks are beginning to look registrable.
On the other hand, there is a big difference between not enforcing the federal Controlled Substances Act and positively aiding and abetting its violation, a criminal offense under Section 846. This means that state trademark officials in Boston who register a mark that the applicant expressly uses in connection with the sale of marijuana could face federal criminal charges.
Would that happen? I doubt it? Could it happen? Yes. Some future U.S. District Attorney for the District of Massachusetts prosecuting Secretary of the Commonwealth William F. Galvin for issuing a certificate of trademark registration to owners of, say, BUDS-U-LIKE is not beyond the realm of possibility. At the very least, the idea could serve as the basis for a book, albeit one with very limited appeal destined for rapid remaindered status.
But, more realistically, what if an applicant uses the mark in connection with other products, not just marijuana, and makes no mention of marijuana in the state trademark application? Now that is a much more practical area of inquiry. Stay tuned.
October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.
In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.
If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.
Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.
Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email email@example.com with the words “MCAD Bill” in the subject line.
Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.
So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.
September 1, 2016:- Employers take note: In compliance with the Act Relative to Transgender Discrimination that Governor Baker signed into law in July, earlier today the Massachusetts Commission Against Discrimination (MCAD) filed with the Clerk of the House of Representatives its Gender Identity Guidance. Much of the document is old, a restatement of the MCAD’s 2015 Advisory, including the “best practices” e.g. “update personnel records, email systems, and other documents to reflect [an] employee’s stated name and gender identity, and ensure confidentiality of any prior documentation of an employee’s pre-transition name or gender marker.”
But the section of the Guidance regarding proof of gender identity and restrooms (Part III. D) is new. Readers will recall that the statute requires that employers allow employees and members of the public to use the restroom “consistent with their gender identity.” The Guidance states that “[r]equiring an employee to provide identification or proof of any particular medical procedure (including gender affirming surgery) in order to access gender designated facilities, may be evidence of discriminatory bias” (emphasis added).
This is important to note because an earlier part of the Guidance (III. A: Definition of Gender Identity) states that when it investigates claims of discrimination the MCAD may look at “medical records from medical or other professionals involved in the treatment or transition of the individual seeking, in the process of, or who has completed gender transition.”
In a nutshell: When an employee files a discrimination claim against the employer the MCAD can consider evidence of a medical procedure, but ahead of time — unless it wishes to invite an MCAD investigation — an employer must not ask an employee for proof of any particular medical procedure.
July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:
Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.
So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.
And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”
Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.
Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:
“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.
In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:
Q. Does your employee Valery earn more than your employee Valerie for comparable work?
July 1, 2016:- The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”
The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).
Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.
So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:
Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.
The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.
Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least 123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:
[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.
I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.
Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.
The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:
If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.
The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.
I submitted this suggestion back in January 2015. In view of the State Auditor’s findings, I shall re-send it.
June 16, 2016:- It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:
The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.
The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.
We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.
May 24, 2015:- Today the Supreme Judicial Court (SJC) sent back to the Housing Court a summary process case that started almost four years ago in August 2012. In its decision (in favor of the tenants) the SJC points out the need to promote “the legislative goal of just, speedy, and inexpensive resolution of summary process cases.” But it is not only connoisseurs of irony who will find the decision noteworthy. Although the case concerns an attempted post-foreclosure eviction, it refers to yet another defense against claims for possession (a defense, as opposed to a mere counterclaim) that may have an impact on the more run-of-the-mill landlord-tenant cases as well.
In May 2012, a mortgage company recorded the foreclosure deed for home of Edward and Emanuela Rego. At the foreclosure sale, the Federal National Mortgage Association (Fannie Mae) took title. In August it started a summary process action in Housing Court to evict the Regos. In October 2012, the Regos filed their Answer, replete with 25 affirmative defenses and one counterclaim alleging that the mortgage company had violated the Consumer Protection Act, G.L. c. 93A. According to the Regos’ counterclaim, the company had violated 93A by charging excessive late fees and sending deceptive notices about their eligibility for loan modifications.
Fannie Mae filed a motion for summary judgment in February 2014, almost two years after it had purchased the house. The Housing Court awarded it possession and dismissed the Regos’ counterclaim. In July 2014, the Housing Court entered final judgment in favor of Fannie Mae. But the judge did not expressly state whether he agreed with Fannie Mae’s argument that because he had awarded possession he now lacked jurisdiction to decide the 93A counterclaim. The judge scheduled a separate hearing this particular question, and dismissed the 93A counterclaim, but did not state why. This bit is important, by the way.
When Fannie Mae prevailed on its motion for summary judgment and the Housing Court awarded it possession, its lawyers may well have thought they could discern the proverbial light at the end of the tunnel. When the judge entered final judgment, the light may have shone a little more brightly. But today the SJC — which had reached down to transfer the matter to itself from the Appeals Court — vacated the summary judgment and reinstated the tenants’ counterclaims, thereby snuffing out the light and turning Fannie Mae back into the tunnel of Housing Court.
On appeal, the Regos argued that the mortgage company had failed to comply with the writing-under-seal requirement of the foreclosure statute, focusing on a statutory amendment enacted in 1906. The SJC’s decision goes into laudable detail explaining why this argument must fail. But the 93A counterclaim is another matter, the SJC held. Please note: The Regos raised 93A as a counterclaim, not a defense.
Fannie Mae argued that even if the 93A counterclaim was successful, it would not entitle the Regos to possession, only to monetary damages. Not so, contended the Regos: The court could deploy the equitable remedy of rescinding the foreclosure sale.
One of the organizations that responded to the SJC’s request for amicus briefs was Community Legal Aid, which stated that:
In certain cases, the equitable rescission of a foreclosure sale might not be the trial court’s remedy for violations of G.L.c. 93A. Nevertheless, the adjudication of different claims arising from the same facts supports both judicial economy and access to justice for low-income and elderly litigants who may be unable to advance claims independently.
Even if rescission is not on the cards and no right to possession is at issue any more, the Housing Court should retain jurisdiction, in other words. Of like mind, the SJC held:
“[U]nable to determine whether, in the context of the summary process action, the judge determined that the Regos’ G.L.c. 93A counterclaims and defenses did not entitle them to equitable relief affecting the right to possession, or whether he intended to consider that form of equitable relief, along with all other potential forms of equitable and monetary relief in the separate proceeding but erroneously concluded that he lacked the jurisdiction to do it.” (Emphasis added).
Of course, the Housing Court judge did, in fact, rule on the counterclaim, which tends to suggest that he had concluded that he had the jurisdiction to do so. Had he “erroneously concluded that he lacked the jurisdiction” he could have chosen a different course. But this absence of an express ruling on Fannie Mae’s jurisdictional argument led the SJC to sent the case back.
“All very interesting, I’m sure,” I hear you think, “but how does this affect me?” Here’s how:
Landlords seeking possession should bear in mind that a tenant’s 93A counterclaim is an equitable defense.
June 1, 2020:- What is there to say today. Following the slow and public killing of George Floyd by an agent of the state, there is some valuable discussion about the doctrine of qualified immunity, e.g. this article in reason, and some renewed interest in a subject that was in the news before COVID 19, e.g. this 2019 post from the ACLU on the way collective bargaining agreements stymie reform. In a future post, I will weigh in.
But for now, I believe that it is worth thinking about two simple statements. First, this one, sometimes attributed to George Washington: “Government, like fire, is a dangerous servant and a fearful master.” Second, this quote from V for Vendetta.
I offer my sincere condolences to Mr. Floyd’s loved ones.
May 28, 2020:- Alleging that the eviction moratorium operates as a taking of their property without just compensation, a group of housing providers in New York have filed suit in federal court, according to the New York Law Journal.
May 28, 2020:- According to this report in News Brig, the New York legislature voted to extend the moratorium on residential evictions to last as long as the state of emergency. Originally, the moratorium was scheduled to expire in August.
Unlike Massachusetts (whose eviction moratorium will end on August 18 unless the Governor extends it)* New York’s moratorium is confined to cases where the reason for non-payment is related to COVID 19. In contrast, the Massachusetts law, Chapter 65, prohibits housing providers starting evictions for any and all reasons, except where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person on the premises or the general public.
*Under Chapter 65, if Governor Baker so chooses, he could extend the moratorium for the length of the state of emergency plus 45 days. How long will state of emergency last? How long is a piece of string?
May 19, 2020:- The Massachusetts eviction moratorium (Chapter 65) has several execrable features, and one of the worst is the abridgment of free speech. The speech in question is in the category that courts refer to as “commercial speech.” Should you care about State government violating people’s right to utter commercial speech? If you care about the non-commercial variety, yes.
Some, but not all, notices to quit
The statute — §3(a)(ii) to be precise — prohibits housing providers from sending “any notice, including a notice to quit, requesting, or demanding that a tenant of a residential dwelling unit vacate the premises” for non-payment of rent, for cause, or for no cause. However, the statute does permit notices to quit where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person, including the general public.
So if a tenant is violating the lease in a way that “may impact the health or safety” of another, the housing provider is allowed to terminate the tenancy and issue a notice to quit (a prerequisite for most eviction proceedings, called “summary process” in Massachusetts). But if a tenant is simply not paying rent, the housing provider is not allowed to do so.
Before going any further, it is important to remember this key point: The law prohibits some, but not all, notices to quit.
Notices to quit are speech
A notice to quit is, literally, correspondence; a letter from one person to another. Both sender and recipient are parties to a contract, and the notice to quit is how the sender tells the recipient that the contract is at an end. It is a form of “expression related solely to the economic interests of the speaker and its audience” so constitutes commercial speech. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). The housing provider who sends the notice to quit is not evicting the tenant. Only a judge can do that by way of legal proceedings called summary process (see below).
Even though the notice to quit is commercial speech, which means that it gets less protection from the courts than non-commercial varieties, the government does not have free rein. If it wants to restrict someone’s commercial speech, the government still has to follow some rules.
To be constitutional, commercial-speech restrictions must be effective
The Supreme Judicial Court has held that “a restriction on commercial speech will not be upheld if it provides only ineffective or remote support for the government’s purpose.” Bulldog Inv’rs Gen. P’ship v. Sec’y of Com., 460 Mass. 647, 669–70 (2011) quoting Central Hudson, 447 U.S. at 564. If the restriction does not effectively support the government’s purpose, it is unconstitutional.
Does the ban on some notices to quit (but not others) effectively support the government’s purpose? And what is the government’s purpose, anyway?
The selective ban on notices to quit is ineffective
The express purpose of the Commonwealth, stated in the statute’s emergency preamble, is to establish “a moratorium on evictions and foreclosures during the Governor’s COVID 19 emergency declaration.” So for the duration of the emergency the government wants to temporarily stop evictions. Fair enough, some might say.
But evictions are not something housing providers can perform. Housing providers cannot evict anyone; only judges can do that. There are statutes that make this clear. G.L. c. 239 and c. 186.
If landlords try to evict, that is called self help, and it is illegal in Massachusetts. In fact, tenants’ advocates recommend that if a landlord resorts to self help the tenants should call the police and file a criminal complaint. Don’t believe me? Follow this link to the Massachusetts Legal Aid site and scroll down to the words in bold: Call the police and file a criminal complaint.
In order to impose a moratorium on evictions, the Commonwealth need only prohibit the courts from issuing judgments and executions for possession, which it has done by way of §3(b)(ii) which states that the courts must not “enter a judgment or default judgment for a plaintiff for possession of a residential dwelling unit… (iii) issue an execution for possession of a residential dwelling unit… ; (iv) deny, upon the request of a defendant, a stay of execution, or upon the request by a party, a continuance of a summary process case; or (v) schedule a court event, including a summary process trial.”
Courts are not allowed to hold summary process trials, enter judgment, award possession to housing providers, or deny tenants a stay of execution (execution means the eviction itself, where the sheriff forcibly removes the people and their belongings). That part of the statute, §3(b)(ii), is the one part that actually does establish a moratorium on evictions.
But only some evictions. Remember, Chapter 65 prohibits evictions for non-payment of rent and evictions where the housing provider does not specify a particular reason, so-called “no cause” evictions. It does not prohibit evictions where the tenant’s criminal activity or lease violations” may impact the health or safety” of another person or the general public.
How does evicting someone for criminal activity that may impact the safety of the general public (thereby rendering that dangerous person homeless) help keep the general public safe, whereas evicting someone for nonpayment of rent makes the general public less safe? That is a genuine question. I would like to know the Commonwealth’s answer.
The supposed goal of Chapter 65 is to establish a moratorium on evictions during the COVID 19 emergency. One part of the statute does exactly that (almost), by barring the courts from evicting people, except people who are potentially a danger to the public (putting them out on the street is OK, apparently). What does restricting the commercial speech rights of housing providers do to make the moratorium more effective? Nothing.
Chapter 65 is set to expire on August 18 unless the Governor exercises his option to extend it. Should he let it expire, or grant it an extension?
Exercise your speech rights while you can and let me know what you think.