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)

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

No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.