Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

He Could Have Been a Contender: Attorney Challenges Delaware Constitutional Requirement that Courts Maintain Balance Between Two Major Political Parties


Carney v. Adams, No. 19-309 (S. Ct.)  Oral argument set for Monday, October 5, 2020 at 10:00 a.m.


The Supreme Court’s new term opens tomorrow, October 5, with oral argument concerning a Delaware attorney’s challenge to state constitutional requirements that judicial appointments for several courts be made with party affiliations in mind, such that courts are balanced, or if not balanced, such that only a ‘bare majority’ of one party holds power.

James Adams wishes to become a judge in Delaware but as an independent is frozen out because of the state’s two-party balancing requirements.   

The state asserts that as sovereign its constitution may provide for equitable apportionment among parties in judicial appointments without being overridden by the federal government.  The state also asserts that the Supreme Court’s decisions in anti-patronage disputes permit the course adopted by Delaware for judges are policy makers whose work necessitates party loyalty, unlike employees who do not make policy and who ought not fear termination because of any political party affiliation.  

The state argues that as a preliminary matter Adams cannot sue because he has not been injured by the Constitutional provisions.  He has not actively sought appointment and he cannot inflict injury upon himself in order to create an interest in challenging the judicial appointment provisions.  

Adams believes that he need not seek appointment with full knowledge that he would be rejected so that he can challenge Delaware’s constitution.  Delaware’s position that sovereignty precludes a challenge to its constitution must fail, Adams argues, because the constitution is depriving him of associational rights guaranteed by the First Amendment.   Moreover, there is little merit to the ‘policy maker’ argument, as the very thing that the anti-patronage cases rejected — loss of employment because of party affiliation — does not depend on whether an employee is high level or low level, but on whether party affiliation caused the harm in issue, his failure to be able to become a judge because he is not a partisan.

Delaware takes pride in having enshrined partisan balancing in its constitution.  Preeminent in the law of corporations, Delaware is invested in establishing and maintaining fairness in judicial appointments so that the credibility and reliability of its judiciary will be perceived to be sound.  Delaware argues that the state constitution serves this end and must be permitted to remain as it is.  

Adams insists that the preclusion from a coveted appointment is hardly the “light burden” on free speech that the state contends that it is, but rather creates an unconstitutional categorical exclusion of independent or third party judicial candidates.. 

Carney v. Adams No. 19-309 Brief of Petitioner John C. Carney, Governor of Delaware

Carney v. Adams, No. 19-309 Brief of Respondent James R. Adams

Carney v. Adams, No. 19-309 Reply Brief of Petitioner John C. Carney, Governor of Delaware



Note regarding oral argument.. As restrictions related to the COVID-19 virus remain in effect, and as the Supreme Court remains closed, argument will be conducted telephonically. Although modified to address public health concerns, guarantees of access to the courts have not been abandoned. Oral arguments will be available by livestream audio through C-Span: https://www.c-span.org/video/?469266-1/carney-v-adams-oral-argument

Never Can Say Goodbye: Judge Mulls Dismissing Flynn Proceedings with Room for Prosecution by “A New Administration”


United States v. Michael T. Flynn, No. 1:17-cr-232 (EGS).  Hearing on government’s motion to dismiss on September 29, 2020.



A hearing was held today on the government’s motion to dismiss proceedings against Gen. Michael T. Flynn, and in particular whether the government may deny it, notwithstanding that the government has represented that there is no case against General Flynn.  The court, persuaded that he had discretion to deny the government’s motion to dismiss, wanted to know from counsel where that discretion began and where it ends.  The court mused about whether dismissal might be granted without prejudice, allowing room for further proceedings by  “a new administration,” or, the court quickly added, perhaps in a continuation of the current administration.

The court’s amicus urged the court not to succumb to the importuning of a coordinate branch, stating that the court ought not tarnish its chambers with dismissal because “the President wants Flynn off the hook.”   

With respect to defendant’s arguments that the government sought to create circumstances in which it would appear that Flynn had lied, amicus offered, “Where ya been?  That’s what they do!”  

[JustLawful aside:  Perhaps amicus, by virtue of his experience in the law, and as a judge, has grown deaf to the appearance of such remarks to those who may be unacquainted with investigative pressures.  “That’s what they do!” suggests that, simply by virtue of a thing being done, it were acceptable.  Were this so, of course, there would be no criminal law at all, and while custom and usage go far in the law, custom and usage are always bounded by the Constitution.]

Amicus assured the judge that the judge had done a good job in summarizing the case.  

Counsel for the government argued the law as well as for the moral dignity of the Department of Justice in its prosecutorial functions.  Counsel argued strenuously that prosecutors may cease prosecution on discovery that there was no basis to proceed, and that this was so in this case, as the facts disclosed to the court revealed.  A senior counsel in the U.S. Attorney’s office expressed distress that the office had been accused of behaving with political motivation, assuring the court that the Department of Justice  acts with integrity, and that includes review if a prosecution seems to have gone awry.

Counsel for General Flynn was last in line for the court’s inquiry, which was preceded by the court’s intimating that counsel had behaved unethically in communicating with the Attorney General when initially retained.  In addition,the court was particularly interested in counsel’s contacts with the President, which counsel disclosed.  Thus the threat of bar disciplinary proceedings was made before counsel was permitted to advocate.  

Counsel for General Flynn asserted that there is no basis in law for the court’s appointment of a private prosecutor in this matter in the guise of an amicus, and noted that the court’s intention to orchestrate the possibility of future prosecutions provided yet more evidence of bias, and moved for recusal of the judge, with written motions to follow.

There will be additional filings by counsel for the defendant as well as by the United States, as the court has asked the Department of Justice to look into what was done with evidence concerning texts between an FBI official and a private attorney.

The court took the matter under advisement, noting how voluminous was the record before him. 

 

A Tangled Web Indeed: United States and General Flynn Submit Evidence Supporting Agreed Upon Motion for Dismissal


United States v. Michael T. Flynn, Crim. No. 17-232 (D.  D.C.).  Hearing on government’s motion to dismiss and court’s appointed amicus’ views on further proceedings to be held on September 29, 2020.


Tomorrow the federal court in the District of Columbia will hear arguments about the government’s motion to dismiss the criminal proceedings against General Michael T. Flynn, and will also hear from the court’s selected amicus.  

Months ago the government moved to dismiss charges against General Flynn, asserting that the government did not wish to proceed and also asserting that any statements in issue were not material.  General Flynn agreed. 

Ordinarily prosecutorial determinations not to proceed are granted.  In General Flynn’s case, the court itself balked, opining that General Flynn ought to be found in contempt for making false statements when entering guilty pleas for making false statements.  The court hired an amicus to advise the court, General Flynn filed a petition for mandamus to the United States Court of Appeals for the District of Columbia Circuit where he initially prevailed, but later failed to obtain the writ, and the matter is again before the judge in the District of Columbia.

The United States does not believe that there exists a basis for further criminal proceedings and has, in support of its position, disclosed the unclassified and/or unprivileged portions of an official memorandum (FD-302) documenting an interview with a Federal Bureau of Investigations agent involved in investigating General Flynn. 

The agent reported that his work did not disclose evidence that would support criminal charges against General Flynn.  Moreover, the agent reported that those in charge of the investigation seemed determined to find a basis or bases for not only charging General Flynn but also discrediting President Trump.  

The collusion collision course:  the collusion, in the legal sense,  sought to be substantiated is not the collusion, in the colloquial sense, that has been revealed.  Not only has an agent involved in the investigation provided his statement and opinions, but the government has, at the eleventh hour, disclosed internal Federal Bureau of Investigation electronic discussions and text exchanges between the FBI’s Chief of Counter Espionage and private lawyer Lisa Page.  Both the internal and external exchanges are disparaging, and the commentary between Strzok and Page exchanges vows to defeat their disfavored candidate.

Just Lawful Prognostication:  The Judge assigned to this case, Hon. Emmet G. Sullivan, having recently had the blessing of the federal appellate court to go forward with examining the government’s motion to dismiss, will not take his obligations lightly.  

While the government’s recent public disclosures are embarrassing, this is not a crime, nor are the opinions of a federal agent, however revealing, of the sort that control prosecutions.  

Judge Sullivan is likely to proceed with caution, taking as much time as he sees fit, to issue a ruling, if any, for there is always the possibility that, having gained traction in this way once before, the judge will seek more investigation, hold more hearings, and conduct further review.

U.S. v. Flynn Government’s Supplemental Filing in Support of Dismissal

U.S. v. Flynn Third Supp Supporting Agreed Upon Dismissal

U.S. v. Flynn 248-1 Strzok and Page Texts

U.S. v. Flynn, ECF 248-2 McCabe Handwritten Notes

U.S. v. Flynn, ECF 248-3 Strzok Handwritten Notes

U.S. v. Flynn, ECF 248-4 Strzok Handwritten Notes

Sound at the Time: Federal Court in Massachusetts Upholds Initial Pandemic-Related Eviction Moratorium with Exception for Compelled Referrals to Landlords’ Adversaries


Baptiste, et al. v. Kennealy, et al., No. 1:20-cv-11335 (MLW) (D. Mass.) (September 25, 2020).  Conference concerning future proceedings set for October 2, 2020.  


The court has released a 100 page opinion articulating all of its reasons for concluding that at the time that the statewide prohibition on evictions and eviction proceedings was a valid use of the state’s emergency powers to protect public health.  The court cautioned that under differing tests of constitutional sufficiency the state’s action would not survive constitutional scrutiny and stressed that changed conditions could affect the court’s determination.  The court urged  the governor of Massachusetts to bear the federal and state constitutions in mind when determining, upon the expiration of the emergency measures in mid-October,  whether further prohibition of eviction activity is necessary.

The court struck down the state’s regulation requiring any landlord notifying a tenant of rent arrearages to provide written referrals to tenant advocates to aid in countering the landlord’s position, as such provisions were unconstitutional compelled speech, as held in National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018).  

The court stated that if the state agreed to abandon the regulation, the court would not enter judgment against the state.  

The opinion is encyclopedic in its review of the law applicable to the use of emergency powers, particularly with reference to the Contracts Clause, the Takings Clause and the First Amendment.  This indicates that the court was concerned not only with the opinion of courts of appeals reviewing the opinion but also with respect to the lens of history, noting Korematsu v. United States, 323 U.S. 214 (1944).  

The court stated that it is possible that its denial of injunctive relief will effectively terminate the case but has ordered counsel to confer and to inform the court by October 2 of contemplated further proceedings.

2020 09 25 Baptiste et al v. Kennealy et al. No 11335 (MLW)

National Institute of Family and Life Advocates v. Becerra, No. 16-1140 (June 26, 2018)

Trump v. Hawaii, No. 17-965 (June 26, 2017)

Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)

Citizen Lockdowns, Mandated Business Closings and Assembly Restrictions All Unconstitutional, Federal Court in Pennsylvania Holds

County of Butler, et al. v. Wolf, et al., No. 2:20-cv-677 (W.D. Pa.) Opinion entered September 14, 2020.

In the pipeline:  state officials will appeal the court’s decision and seek to freeze proceedings until appellate review has concluded. Motions for entry of judgment or certification of issues for appeal are pending, as is a motion for entry of stay pending appeal.  The brief of plaintiffs on the motion for stay pending appeal is due on September 21.  

Good intentions are not good enough to protect constitutional interests, the United States District Court for the Western District of Pennsylvania observes, and this may be especially so when emergency conditions invite extraordinary government action:

In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions  — while expedient in the face of an emergency situation — may persist long after immediate danger has passed.

Slip op. 2.

The federal court reviewed emergency orders issued by the Pennsylvania governor and the secretary for health related to the COVID-19 virus using ordinary principles of review and found that the state’s limitations on assembly violate the First Amendment; that the stay-at-home and business closure orders violate the due process clause of the Fourteenth Amendment, and the the business closure components of the orders violate the Equal Protection clause of the Fourteenth Amendment.  

The governor signed a disaster emergency declaration on March 6, 2020, which activated emergency powers concerning commerce and health.

Groups of non-medical policy employees assembled by the governor divided businesses into “life sustaining” and “non life-threatening” businesses and drafted responses to questions from the public.

Schools were closed and stay-at-home orders issued.  Plans for reopening were developed along with capacity restrictions.  

Extensions and modifications of orders followed.

Counties, political persons, and businesses sued the state in May, 2020, challenging the orders on Takings Clause, Substantive Due Process, Equal Protection and First Amendment grounds.  

Following briefing, argument, and post-hearing briefing, on motions for declaratory judgment the court has concluded that: the assembly limitations violate the First Amendment; the stay-at-home and business closure orders violate the Due Process clause of the Fourteenth Amendment, and that the business closure orders violate the Equal Protection clause of the Fourteenth Amendment. 

First, the court concluded that plaintiff counties lack Article III standing to sue under 42 U.S.C. Section 1983 because this statute creates remedies, not rights, and as creations of the state, counties do not have constitutional rights.

Second, the court concluded that it need not apply relaxed or deferential standards of review to emergency measures.  Although states possess broad police powers, these powers cannot operate outside constitutional principles, the court reasoned, a position with which at least one Supreme Court justice agrees as do legal scholars.

The court found the abandonment of constitutional standards in emergency conditions particularly problematic where the emergency is ongoing and where mitigation restrictions are considered normative, and some want restrictions to remain in force indefinitely. 

The court recognizes that the exigencies of an emergency may require deference but not where the emergency has no stopping point:  

Faced with ongoing restrictions of indeterminate length, “suspension” of normal constitutional levels of scrutiny may ultimately lead to the suspension of constitutional liberties themselves. 

Slip Op. 19.

The judiciary, as an independent branch of government, must guarantee liberties even in an emergency.

Third, the court found that the open ended restraints on gatherings violate the First Amendment.  The restrictions apply to churches and some businesses, depending on the operation of capacity metrics.  There is no exception for protests but they have been permitted without compliance with restrictions.  

The court observed that the restrictions on assembly were content neutral, warranting intermediate scrutiny in which a regulation must be narrowly tailored to a significant government interest and leave ample alternative channels of communications.  

The open-ended and sweeping nature of the restrictions fail to survive this analysis, the court held.  In addition, they are categorically illogical, imposing fewer restraints in commerce than in other expressive settings, and no evidence supports the idea that the metrics chosen support the goal of diminishing disease.

Fourth, substantive due process rights were violated when the population was locked down and businesses deemed “non-life sustaining” were forced to close.  The court stressed that the issues are not moot because some restrictions have been relaxed, as the state’s orders remain vital and may spring back to life as the state wishes.  

The limitations imposed in quarantines require exposure to disease for a limited period of time.  That the wholesale societal lockdowns imposed by the state have no precedent will not make them unconstitutional, but because the orders impeded not only travel but associational rights, they are subject to, but cannot survive, strict scrutiny or even intermediate analysis.  

The lockdown orders impose far greater restrictions than necessary.  No one could go out except as approved by the state, an “inversion” of the American experience.  Where lockdown is the baseline for an indefinite period of time, no claim to narrow tailoring can be supported.

Fifth, where no rationale was even proffered for distinctions between life-sustaining and other businesses, the indefinite closure violates the Fourteenth Amendment due process clause.  These measures, which may spring to life from suspension at the government’s command, violate substantive due process as they arbitrarily interfere with the right to self support which is central to the personal freedom which was the purpose of the Fourteenth Amendment.  

The court wholly rejected the state’s “only temporary” argument, which was advanced to insist that there was no real damage caused by the shutdowns.  Even where suspensions were limited.  The measures cannot survive rational basis analysis.  The arbitrary creation, sweep, and administration of the order closing all “non-life sustaining” businesses is unconstitutional, having no fixed definitions and no temporal limitations.

Sixth, the business closure provisions of the orders violate the Fourteenth Amendment’s equal protection clause.  Determinations based on county boundaries or undefined notions of “life sustaining” enterprises are not rationally related to any legitimate government end.  Where it is undisputed that some businesses were treated differently from others, and even where distinctions based on county boundaries are constitutional, the “arbitrary, ad hoc” imposition of the “life sustaining” distinction was not subject to measurement, was inherently arbitrary, and conferred upon government sweeping powers over businesses effectively allowing government to determine which businesses would open and which would close.

Butler, et al. v. Wolf, et al., No. 20-cv-677 (W.D. Pa.)

Between Friends: Judge’s Selected Amicus Urges Court to Refuse to Dismiss Case Against General Flynn and to Proceed to Sentencing

United States v. Flynn, No. 17-cv-232 (EGS).  Amicus Reply Brief Submitted September 11, 2020.  Oral argument scheduled for September 29, 2020. 

An amicus appointed by the federal judge assigned to proceedings brought by the United States against General Michael T. Flynn opened his reply brief by asserting that General Flynn’s “guilt is obvious.”  Although the government has moved to dismiss the proceedings and the general has concurred, the amicus opines that the government’s acts are simply not done, offering the conclusion that “clear evidence” indicates that the prosecutor’s motion to dismiss was precipitated by “a corrupt and politically motivated favor unworthy of our justice system.”  The amicus believes that the government seeks to reduce the Article III court to a “rubber stamp,” and that the court ought not permit itself to be “sullied” in this way.  Instead, because the D.C. Circuit Court of Appeals has held that Article III jurisdiction continues until the court has ruled on a prosecutor’s motion to dismiss, and because the court has discretion to inquire into wrongdoing which the amicus asserts has occurred, the court may deny dismissal and proceed to sentence General Flynn.

The court has requested that the parties to the case submit a joint status report with their recommendations for further proceedings, with a proposed briefing schedule and proposed dates for oral argument, not later than September 21, 2020.  

Amicus briefs submitted September 11, 2020 and June 10, 2020, without attachments:

U.S. v. Flynn Amicus Brief September 11, 2020

U.S. v. Flynn Amicus Brief June

Referrals to Potential Adversaries Not Required: U.S.D.C. in Massachusetts Strikes Down Landlord’s Compelled Speech, Opines that Injunctive Relief Will Be Denied, Declines to Opine Further, and Promises a Written Opinion

Baptiste et al. v. Commonwealth, No. 1:20-cv-11335 (D. Mass.). Hearing on September 10, 2020.

_________________________________________________

Today the court declined to deliver an opinion on injunctive relief and dismissal orally, offering that the issues were sufficiently complex that doing so would be ill-advised, and promising to deliver a written opinion, admittedly still in draft.

The court noted that it would deny injunctive relief except that it had found the Commonwealth’s requirement that any landlord notifying tenants of nonpayment must provide referrals to representation was unconstitutional compelled speech under National Institutes of Family and Life Advocates v. Becerra, 585 U.S. ____ (2018). Applying principles of severability, that determination would not extend to other portions of the regulations promulgated in connection with the eviction moratorium enacted in response to the COVID-19 pandemic.

The court noted that much of the law imposing the moratorium would not survive strict scrutiny analysis, but the court is inclined to the view that strict scrutiny analysis is not warranted.

The court indicated that counsel should discuss how they wished to proceed going forward, bearing in mind changed conditions since the beginning of the moratorium and impending state action concerning continuation or cessation of the moratorium on evictions in mid-October.

The court offered that it would deny injunctive relief and that its reasoning on injunctive relief and dismissal would be presented all in one decision. The admonition to counsel to consider the future is some indication that dismissal will not be granted.

The court appeared to be focused on precedent from Chief Justice Stone of the Supreme Court who relied on Justice Holmes for the principle that it is within a court’s purview to consider whether an exigency that prompted state action has ceased to exist. Notwithstanding that the court seemed inclined to the view that the exigencies apparent last spring may no longer be present, the court also indicated fear that any action might be perceived in hindsight as being of a caliber of the now discredited Korematsu v. United States, 323 U.S. 214 (1944).

Still Standing, Yet at a Standstill. Federal Court Lauds Attorney’s Efforts to Call to Account the Kentucky State Supreme Court and Bar Administrative Committee But Decides Federal Relief is Precluded as Either Speculative or Barred by Sovereign Immunity

Doe v. Supreme Court of Kentucky, et al., No. 3:19-cv-236 (JRW).  Memorandum and Order granting dismissal entered August 28, 2020.

Doe sought admission to practice law in Kentucky after having done so successfully in Florida for nine years.  During that time, Doe was diagnosed with a mental health condition.  She agreed to practice with a monitor and complied with clinical recommendations.

Kentucky made multiple inquiries about Doe’s condition, demanding all medical records, convening hearings, requiring over-reaching contractual obligations but finally, after nearly two years, relenting in its insistence on conflating a mental condition with a deficit of character. Doe was admitted to practice.

Doe promptly commenced suit against the state court and bar authorities for violations of the Americans with Disabilities Act, defamation, and for other wrongs she asserted were inflicted upon her in the course of her pursuit of a license to practice law.

The federal court hearing her case praised her diligence in pursuing her licensure as doing so conferred a benefit not just to her but to the profession and society in general.  Where it is known that attorneys suffer a disproportionately higher incidence of stress, depression, addiction and suicide than others in society, hounding and threats of disqualification by the state and the bar serve only to invite harm, the court observed, as those fearing loss or denial of licensure or the oppression of the state will not seek help, and where help is not sought, some will lose not only their cases but their lives

Nonetheless, the court determined that it could not grant Doe relief.  Prospective relief could not be awarded as it would be speculative.  Other relief requested by Doe, even though she had standing, could not be awarded in federal court because immunity principles forbade doing so.  

Doe v. Supreme Court of Ky. (W.D. Ky. 2020)

Private Property, Public Problems: Landlords Challenge Massachusetts’ Eviction Moratorium in Federal and State Proceedings

Baptiste, et al. v. Secretary of Housing and Economic Development, et al., No. 1:20-cv-11335 (MLW) (D. Mass.).  Oral argument on motions for preliminary injunctive relief and for dismissal or stay held September 2 and 3. 

Matorin and Smith v. Executive Office of Housing and Development, No. 2084CV01134 (Sup. Ct.).  Memorandum and Order on Motion for Preliminary Injunction entered August 26, 2020.


Massachusetts’ Eviction Moratorium. In response to the health and economic crisis precipitated by the COVID-19 virus, last spring the Massachusetts legislature enacted a law suspending processes of eviction and foreclosure.  Regulations governing this moratorium forbade many communications between landlord and tenant except as dictated by the state, including advising tenants in obtaining financial and legal aid.  

Originally intended to expire in mid-August, the moratorium has been extended into mid-October.  It is not known whether or for how long the suspension will remain in effect, but it may, potentially, extend up to a year beyond the culmination of the COVID-19 crisis.

The Massachusetts act prohibits initiation of eviction proceedings as well as processes in aid of those proceedings occurring at or after the time the legislation and regulations became effective.  Although it is specifically stated that the moratorium does not relieve tenants of the obligation to pay rent, in practice the measures have been interpreted to permit exactly that.

Landlords Respond. Small landlords have launched state and federal challenges, asserting that the state law and regulations unconstitutionally inhibit property owners’ access to the courts, violate First Amendment rights both by proscribing and prescribing speech, constitute physical and/or regulatory takings, and violate the Contracts Clause.

No injunctive relief in state court, but ruling on motion for injunctive relief in federal court promised for September 9th. Having lost their motion to enjoin the act in state court, this week two days of argument were had in federal court, at the close of which the court invited commentary on issues arising during proceedings.  The federal court has scheduled a hearing on September 9th and has promised a ruling on injunctive relief at that time.  

Private enterprises, not public agencies. Plaintiffs assert that the state has demanded that landlords have been conscripted, without consent and without compensation, to act as state housing authorities by providing free lodging indefinitely to individuals who have no right to be on the landlords’ properties.  Plaintiffs further assert that the moratorium decimates leases and other contracts.  The Commonwealth denies that the landlords face the hardships they described as the state has enacted only temporary measures, the impact of which may be less than landlords perceive.  

Only temporary. The state has responded to plaintiffs’ claims by asserting  immunity and by arguing that the moratorium is a valid exercise of the state’s plenary emergency powers for the general welfare, and that no rights have been deprived or infringed by its temporary measures.  The Commonwealth has argued that no taking has occurred, that there is no right to injunctive relief in takings cases.  

No end in sight. Just as there is no certainty concerning the duration of the eviction moratorium, so too is there no certainty concerning resolution of this litigation, which has attracted the attention of advocacy groups seeking to serve as amici.  

Post argument submissions. Plaintiffs have submitted two post-argument memoranda of law, the first addressing the proper standard of review for deprivations of rights of petition, arguing that scholars perceive that some rights are so fundamental that only strict scrutiny will suffice. 

The Commonwealth’s response is that there can be no deprivation of rights of access to the courts where, in the Commonwealth’s view, there is no underlying case for adjudication.  A temporary interruption of enforcement mechanisms during an emergency works no harm where those remedies will become available when the emergency is over. 

Plaintiffs observe that the emergency is all but over and that the successful implementation of social distancing and other recommendations make the state’s draconian prohibitions unnecessary now if ever they were.  

Plaintiffs point to Massachusetts precedent finding significant deprivations of rights of access to the courts to have occurred over a period of weeks, and that the indefinite nature of the moratorium only enhances deprivations already suffered.  

The Commonwealth has commented on the state’s favorable view of statutory and regulatory severability which would permit the court to excise any portion of the moratorium provisions found to be unconstitutional while leaving the remainder intact.

The Center for Disease Control Weighs In. Plaintiffs point to a newly promulgated federal prohibition on evictions as proof that the state’s measures are needlessly harsh.  The federal measure permits evictions while permitting tenants to avoid eviction by submission of proof of financial difficulty and/or ability to obtain new housing, thus demonstrating that the state’s perceived link between access to the courts and public health is ill-founded.  

Ruling on Motion for a Preliminary Injunction in Superior Court 

2020 08 26 Matorin-v-Commonwealth-of-Massachusetts-Decision-on-Preliminary-Injunction

Memoranda of Law Submitted in Federal Court

2020 07 15 Memorandum of Law in Support of Preliminary Injunction

2020 07 24 Memorandum of Law in Support of Dismissal or Stay

2020 07 25 Opposition to Motion for Preliminary Injunction

2020 09 03 Supplemental Memorandum in Opposition to Preliminary Injunction

2020 09 03 Supplemental Memorandum Addressing Newly Raised Issues

2020 09 03 Supplemental Memorandum Addressing CDC Order

Centers for Disease Control Order

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19