Supreme Court Grants Realtors’ and Landlords’ Petition for Relief from Stay of Judgment Vacating CDC Eviction Moratorium as Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23. Order granting emergency petition for relief from stay issued August 26, 2021.

The Supreme Court has lifted the stay of the United States District Court’s judgment vacating the Center for Disease Control order imposing a nationwide mortatorium on evictions. 

It is not only rare that the Supreme Court would reach down to a trial court to vacate that court’s order during the pendency of appellate litigation, it is even more rare that the Court would so forcefully tip its hand concerning the likely outcome should the merits of the litigation be reached:   The CDC’s exercise of power in issuing the eviction moratorium was so far outside its authority that, with respect to the likelihood of success of the realtors’ and landlords’ challenge, “it is difficult to imagine them losing.”  (Per Curiam opinion, p.5).  

Should a nationwide eviction moratorium remain desirable, Congress must specifically authorize such a measure. 

Three justices dissented, citing changed conditions supporting the issuance of a new eviction moratorium and finding that the statute granting the CDC powers to act to control communicable disease support the eviction moratorium orders.

21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08_26_21)

 

 

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.


Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

Going to the Chapel (Again): Supreme Court Enjoins California’s Restriction on Indoor Worship, Chastising Ninth Circuit for Failing to Reach Result “Clearly Dictated” by Supreme Court’s Decision Just Days Earlier

Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

  • Justices Thomas and Gorsuch would grant all the relief sought by the church.  
  • Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
  • Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
  • Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
  • Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
  • Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
  • California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
  • The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
  • Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
  • Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
  • Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
  • Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
  • In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
  • The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
  • Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
  • The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
  • The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
  • The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
  • Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits


High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.


This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

The Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings



Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S.  _____. Injunctions pending appeal entered November 25, 2020.


The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari.  The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.

Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic.  These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes.  The measures may be enhanced or relaxed as the perception of prevalence or risk changes. 

Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the  Free Exercise Clause of the First Amendment of the United States Constitution.  The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued.  The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.  

There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services. 

Both petitioners were denied relief in the district and appellate courts.  Decision on the merits in the Second Circuit awaits briefing and argument in December.

Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.  

The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.

The Supreme Court has disagreed.  

The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends.  Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable.  As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate. 

The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited:  “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns.  Slip Op. at pp. 5-6.  

Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.”  Slip. Gorsuch dissent  at 2.  The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience.  If the Constitution  has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.”  Gorsuch dissent at 3.  

Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11  (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference.  Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not.  As the current restrictions involve core constitutional concerns, Jacobson does not control.  Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.  

Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations.  Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed.  Once a favored class is created, the state must say why those who are less favored are excluded.  

Justice Kavanaugh takes a programmatic view of the Court’s offer of relief.  If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact.  The petitioners will at least be permitted some clarity during the pending appellate process.

Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect.  If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.  

Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed.  The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health  and  safety must be balanced against religion.  The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.  

Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order.  The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.  

Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.

Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view.  And the mere reference to religion within the measures will not suffice to make them discriminatory.  Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020

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

The House of God v. The House of the Rising Sun: Vigorous Dissents Accompany Supreme Court’s Denial of Injunctive Relief Where Nevada Church Alleges Pandemic Measures Restrict Churches More Than Casinos

Calvary Chapel Dayton Valley v. Sisolak, Governor of Nevada, No. 17A1070 (July 24, 2020).


A rural Nevada church asked the Supreme Court to enjoin state pandemic emergency measures that impose a flat numeric limit on church attendees while commercial entities such as casinos may operate at a percentage of capacity, permitting close contact for extended periods. 

The Supreme Court denied, without opinion, Calvary Chapel Dayton Valley’s request.  Four justices submitted three dissenting opinions. 

Justices Alito, Thomas and Kavanaugh would grant relief, given the inexplicable and unsupported discrepancy in treatment between secular and religious gatherings as well as the irreparable harm presumed to flow from deprivation of First Amendment rights.  

The justices observed that while “…a public health emergency does not give Governors and others carte blanche to disregard the Constitution for as long as the medical problem persists.”  (Alito dissent, p. 3.)  Particularly as time has passed since the emergency initially arose, and new information may permit revisions, the issue of exigency has diminished while the impact of discrimination against religion has continued unabated.  

The state’s actions fare no better under speech analysis.  While the state may posit that important viewpoints are advanced during permitted public protests, this overlooks the critical truth that the constitution does not permit preferring one viewpoint over another.

Justice Gorsuch wrote a separate dissent, offering his view that the Calvary Chapel case was “simple,” in that “…there is no world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.”  (Gorsuch dissent, p. 1.) 

Justice Kavanaugh wrote separately in dissent to emphasize that the state offered no plausible justification for its differential treatment of commercial activity and religious gatherings.  .  Justice Kavanaugh presented a primer addressing the nature and sources of religious disputes grounded in real or perceived differences in treatment of religion and other activities, and reviewing precedent addressing these cases.

Just Lawful Observes:  The concern with protracted state invocation of emergency powers permeates the dissent here, a concern that was not as apparent in May of this year, where the Court denied injunctive relief to a California church in a manner deferential to the state’s exercise of emergency powers to inhibit viral contagion during a pandemic.  South Bay United Pentacostal v. Newsom, Governor of California, No. 19a1044 (May 29, 2020). Although there were perceived differences between non-church and church activities, none were found to be inconsistent with the Free Exercise Clause. 

Calvary Chapel v. Sisolak, Governor of Nevada: Denial of Injunctive Relief and Dissenting Opinions. No. 19a1070 (July 24, 2020).

South Bay United Pentacostal v Newsom, Governor of California. No. 19a1044 (May 29, 2020).