Rights under attack: no court for you

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.

Rights trampled

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?

Pretext

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.

For some perspective, here are the nationwide figures from the CDC for the 2017-18 flu season:

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.

Here are the figures for the previous flu season:

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.

A few years before, according to the CDC.

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.

Conclusion

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.

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STABILIZE HOUSING: GUARANTEE RENT NOW

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Sign the petition

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.

Civil Asset Forfeiture

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 editorial Massachusetts 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.

Tel. 413.992.2915  Email: peter@petervickery.com

 

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Peter Vickery, Esq.

New rules in effect at MCAD

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.

For my earlier post on the subject, click here.

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New MCAD rules: I’ll drink to that.

Court corrects MCAD

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.

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Peter Vickery, Esq.

Tenant’s right to jury trial

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.

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Peter Vickery, Esq.

Free speech victory for enviro bloggers

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.

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Peter Vickery, Esq.