Matorin V Chief Justice, SJC Petition Challenge Mass. COVID-19 Eviction Moratorium

COMMONWEALTH OF MASSACHUSETTS
Supreme Judicial Court
No. SJ-2020-
SUFFOLK, ss
________________________________
MITCHELL MATORIN and LINDA SMITH
Petitioners
v.
TIMOTHY SULLIVAN, in his Official Capacity as Chief

Justice of the Housing Court Department of the Trial
Court, PAUL C. DAWLEY, in his Official Capacity as
Chief Justice of the District Court Department of the
Trial Court, JUDITH FABRICANT, in her Official
Capacity as Chief Justice of the Superior Court
Department of the Trial Court, EXECUTIVE OFFICE OF
HOUSING AND ECONOMIC DEVELOPMENT, and the COMMONWEALTH
OF MASSACHUSETTS
Respondents.
________________________________
EMERGENCY PETITION FOR RELIEF PURSUANT TO G.L. c. 211,

§ 3, G.L. c. 214, § 1, and G.L. c. 231A, § 1
________________________________
Richard D. Vetstein, Esq. Jordana Roubicek, Esq.

BBO # 637681 BBO# 667842
Vetstein Law Group, P.C. 134 Main Street
945 Concord Street Watertown, MA 02472
Framingham, MA 01701 Tel: (617) 617-6669
Tel: (508) 620-5352 jordana@jrglegal.com
rvetstein@vetsteinlawgroup.com
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . iii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . .1
PETITIONERS. . . . . . . . . . . . . . . . . . . . . 3
RESPONDENTS. . . . . . . . . . . . . . . . . . . . . 6
REASONS WHY RELIEF IS APPROPRIATE

IN THIS COURT PURSUANT TO
G.L. C. 211, § 3, G.L. c. 214, § 1,
and G.L. c. 231A, § 1. . . . . . . . . . . . . . . . 8
FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . 10
STANDARD OF REVIEW. . . . . . . . . .. . . . . . . 30
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . 31
A. The Act Violates the Separation of Powers

Between Branches Under Article 30 of the
Declaration of Rights. . . . . . . . . . . . . 31
B. The Act Violates the Petitioners’

Constitutional Right to Access
the Courts Under Article 11 and 29 of Our
Declaration of Rights.. . . . . . . . . . . . 38
C. The Act Is An Unconstitutional Infringement

on the Plaintiffs’ Right to Petition
under the First Amendment. . . . . . . . . . . 42
D. The Act and Regulations Violate

Petitioners’ Free Speech Rights. . . . . . . . 45
E. The Regulations Compel Petitioners’ Speech

In Violation of the First Amendment. . . . . . 52
F. The Act Operates as a Temporary

Regulatory Taking of Real Estate Without Just
Compensation In Violation of Article 10 of the
Declaration of Rights and the Fifth
Amendment of the U.S. Constitution. . . . . . .55
i
G. The Act Is An Unconstitutional Impairment of
Petitioners’ Contract Rights Under The
Contracts Clause of the United State
Constitution. . . . . . . . . . . . . . . . . 58
H. Petitioners Will Suffer Irreparable Harm

If Injunctive Relief Is Not Granted. . . . . .62
I. Injunctive Relief Will Serve the

Public Interest. . . . . . . . . . . . . . . .68
CONCLUSION AND RELIEF REQUESTED. . . . . . . . . . 70
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . .73
ii
TABLE OF AUTHORITIES
CASES
ACA Int'l v. Healey, No. CV 20-10767-RGS,

2020 WL 2198366 (D. Mass. May 6, 2020). . . 44, 47, 51
Armstrong v. United States, 364 U.S. 40,
49 (1960). . . . . . . . . . . . . . . . . . . . . .57
Blair v. Dep't of Conservation & Recreation,

457 Mass. 634, 641 (2010). . . . . . . . . . . . . 55
Bower v. Bournay-Bower, 469 Mass. 690 (2014). . .39-40
Bulldog Inv'rs Gen. P'ship v. Sec. of

Commonwealth, 460 Mass. 647, 669–70 (2011). . . 48, 52
Brach v. Chief Justice of the District Court
Dept., 386 Mass. 528, 535 (1982). . . . . . . . . . 33
Campbell v. Boston Hous. Auth., 443 Mass. 574 581

(2005). . . . . . . . . . . . . . . . . . . . . 58, 59
Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm’n, 447 U.S. 557, 561 (1980). . . . . . . . 47, 48
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

(1897). . . . . . . . . . . . . . . . . . . . . . . 55
Commonwealth v. Cole, 468 Mass. 294, 301 (2014). . 31
Committee for Public Counsel Services v.

Chief Justice of the Trial Court, 484 Mass. 431
(SJC-12926) (Apr. 3, 2020). . . . . . . . . . . . . 9
DeJonge v. Oregon, 299 U.S. 353 (1937). . . . . . . 42
Duracraft Corp. V. Holmes Products Corp., 427 Mass.

156 (1998). . . . . . . . . . . . . . . . . . . . . 43
Doe v. Sex Offender Registry Bd., 459 Mass. 603

(2011). . . . . . . . . . . . . . . . . . . . . . . 35
Ellis v. Department of Indus. Accs., 463 Mass. 541

(2012). . . . . . . . . . . . . . . . . . . . . . . 35
First Justice of the Bristol Div. of the
iii
Juvenile Court Dep’t v. Clerk–Magistrate
of the Bristol Div. of the Juvenile Court Dep’t,
438 Mass. 387, 396 (2003). . . . . . . . . . . .32, 35
Goldstein v. Galvin, SJC-12931 (Apr. 17, 2020). . . 9
Goodridge v. Department of Public Health, 440

Mass. 309 (2003). . . . . . . . . . . . . . . . . . 63
Haas v. Spencer, 30 Mass. L. Rptr. 623 (Mass.

Super. Ct. Dec. 11, 2012). . . . . . . . . . . . . 39
Home Building & Loan Association v.

Blaisdell, 290 U.S. 398 (1934). . . . . . . . . 59, 60
Jacobson v. Massachusetts, 197 U.S. 11 (1905). . . .65
Janus v. Am. Fed’n of State, Cty., & Mun.

Employees, Council 31, 138 S. Ct. 2448 (2018). . . 52
John T. Callahan & Sons, Inc. v. City of Malden,

430 Mass. 124 (1999). . . . . . . . . . . . . . . . 31
Maceira v. Pagan, 649 F.2d 8 (1st Cir. 1981). . . . 63
Massachusetts Community College Council v.

Commonwealth, 420 Mass. 126 (1995). . . . . . . 59, 61
McCarthy v. Tobin, 429 Mass. 84 (1999). . . . . . . 64
McDonald v. Smith, 472 U.S. 479 (1985). . . . . . .43
NAACP v. Button, 371 U.S. 415 (1963) .. . . . . . . 43
National Inst. of Family & Life Advocates v.

Becerra, 138 S. Ct. 2361 (2018). . . . . . . . . . .54
Nyer v. Munoz-Mendoza, 385 Mass. 184, 188 (1982). .66
Opinion of the Justices, 234 Mass. 612 (1920). . . .35
Packaging Industries Group v. Cheney, 380 Mass.

609 (1980). . . . . . . . . . . . . . . . . . . . . 30
Querubin v. Com., 440 Mass. 108 (2003). . . . . . . 32
iv
Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218
(2015). . . . . . . . . . . . . . . . . . . . . . . 46
Shak v. Shak, 484 Mass. 658 (May 7, 2020). . . . . .47
Sheriff of Middlesex Cty v. Commissioner of

Correction, 383 Mass. 631 (1981). . . . . . . . . . 34
Sindicato Puertorriqueno de Trabajadores v.

Fortuno, 699 F.3d 1 (1st Cir. 2012). . . . . . . . . 63
T&D Video, Inc. v. City of Revere, 423 Mass. 577

(1996). . . . . . . . . . . . . . . . . . . . . . . 63
Town of Brookline v. Goldstein, 388 Mass. 443

(1983) . . . . . . . . . . . . . . . . . . . . . . .43
Town of Hanover v. New England Regional

Council of Carpenters, 467 Mass. 587 (2014). . . . .43
United Mine Workers of Am. v. Illinois State

Bar Ass’n, 389 U.S. 217 (1967). . . . . . . . . . . 43
United States v. Bollman, 1 Cranch, C.C. 373

(D.D.C. 1807). . . . . . . . . . . . . . . . . . . . 1
United States Trust Co. v. New Jersey, 431 U.S. 1

(1977). . . . . . . . . . . . . . . . . . . . . . . 58
Ventrice v. Ventrice, 87 Mass. App. Ct.

190 (2015). . . . . . . . . . . . . . . . . . . .38-40
W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935). 61
Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626 (1985). . . . . . . . . . . . . . . . 54
CONSTITUTIONAL PROVISIONS
Mass. Const. Pt. 1, art. 10. . . . . . . . . . . 56
Mass. Const. Pt. 1, art. 11. . . . . . . . . . . 38
Mass. Const. Pt. 1, art. 29. . . . . . . . . 2, 38
Mass. Const. Pt. 1, art. 30. . . . . . . . . 2, 31
v
U.S. Const. 1st Amend. . . . . . . . . . . . . 2, 42
U.S. Const. 5th Amend. . . . . . . . . . . . . 2, 56
U.S. Const. Art. 1, Section 10, Clause 1

(Contracts Clause). . . . . . . . . . . . . . 2, 59
STATUTES
Chapter 65 of the Acts of 2020. . . . . . . . passim
G.L. c. 93A. . . . . . . . . . . . . . . . . . . . 54
G.L. c. 184, § 18. . . . . . . . . . . . . . . . . 41
G.L. c. 186, § 11. . . . . . . . . . . . . . . 41, 50
G.L. c. 186, § 12. . . . . . . . . . . . . . . 41, 50
G.L. c. 186, §11-13. . . . . . . . . . . . . . 41, 49
G.L. c. 239, § 1. . . . . . . . . . . . . . . . . 41
G.L. c. 211, § 3. . . . . . . . . . . . . . . . . 9
G.L. c. 214, § 1. . . . . . . . . . . . . . . . . 9
G.L. c. 231, § 6F. . . . . . . . . . . . . . . . .43
G.L. c. 231, § 59H. . . . . . . . . . . . . . . . 43
G.L. c. 231A, § 1. . . . . . . . . . . . . . . . .9
G.L. c. 239, §1. . . . . . . . . . . . . . . . . . 41
G.L. c. 239, §9-10. . . . . .. . . . . . . . . . . 68
REGULATIONS
400 C.M.R. 5.0: COVID-19 Emergency

Regulations. . . . . . . . . . . . . . . . . . passim
BILLS
H.B. 4647. . . . . . . . . . . . . . . . . . . . 14,15
H.B. 4624. . . . . . . . . . . . . . . . . . . . . 15
vi
EXECUTIVE ORDERS
Executive Order No. 591 Declaration of a State of

Emergency to Respond to COVID-19
(March 10, 2020). . . . . . . . . . . . . . .10, 59
COVID-19 Order No. 13. . . . . . . . . . . . . . 11
COVID-19 Order No. 21. . . . . . . . . . . . . . 11
DPH Public Health Advisories

issued on March 24, 2020. . . . . . . . . . . . 12
COVID-19 Order No. 30. . . . . . . . . . . . . . 11
COVID-19 Order No. 30. . . . . . . . . . . . . . 11
COVID-19 Order No. 31. . . . . . . . . . . . . . 11
COVID-19 Order No. 33. . . . . . . . . . . . . . 11
Order Prohibiting Gatherings of More

Than 25 People and On-Premises Consumption
of Food or Drink (March 15, 2020). . . . . . . . 11
STANDING ORDERS
SJC Order In Re: COVID-19 (Coronavirus) Pandemic

Regarding Empanelment of Juries. . . . . . . . . . 12
SJC Order OE-144 (Apr. 27, 2020). . . . . . . . . .14
SJC Order OE-144 (Updated May 26, 2020). . . . . . 14
Housing Court Standing Order 2-20. . . . . . . . . 13
Housing Court Standing Order 5-20. . . . . . . . 26-27
vii
COURT RULES
Unif. Summ. Proc. R. 1 . . . . . . . . . . . . . . 66
Unif. Summ. Proc. R. 2(d). . . . . . . . . .41, 49, 67
SECONDARY SOURCES
Adam Newton, “Freedom of Petition Overview,”

Freedom Forum Institute (Oct. 10, 2002). . . . . . 42
viii
INTRODUCTION
“The constitution was made for times of commotion. . .

Dangerous precedents occur in dangerous times. It
then becomes the duty of the judiciary calmly to poise
the scales of justice, unmoved by the arm of power,
undisturbed by the clamor of the multitude.”
- Circuit Chief Judge William Cranch, United States v.

Bollman, 1 Cranch, C.C. 373 (D.D.C. 1807).
Petitioners are rental property owners in the
Commonwealth who seek a temporary restraining order
and preliminary injunction on an emergency basis and
expedited briefing schedule, to enjoin the enforcement
of Chapter 65 of the Acts of 2020, An Act Providing
for a Moratorium On Evictions and Foreclosures During
the COVID-19 Emergency (hereinafter, “the Act” or
“Eviction Moratorium”) (attached as Exhibit A),1 and
the regulations promulgated thereunder by the
Executive Office of Housing and Economic Development
(EOHED). See 400 C.M.R. 5.0: COVID-19 Emergency
Regulations (“Regulations”), attached as Exhibit B.2
1 An official version of Chapter 65 of the Acts of 2020

can be found at on the Legislature’s website:
https://malegislature.gov/Laws/SessionLaws/Acts/2020/C
hapter65.
2 An official version of the Regulations can be found
on the Mass.gov website at:
https://www.mass.gov/regulations/400-CMR-50-covid-19-
emergency-regulations.
1
As discussed below, the Petitioners are likely to
succeed on the merits of showing the Act is
unconstitutional in violation of Articles 30
(Separation of Powers), and 11 and 29 (Access to
Courts) of the Massachusetts Declaration of Rights, as
well as the right to petition the judiciary under the
U.S. Constitution. The Act and Regulations also
violate Petitioners’ free speech rights under the
Declaration of Rights and First Amendment of the U.S.
Constitution. Further, the Act operates as a taking
without just compensation under Article 10 of the
Declaration of Rights and its federal counterpart, the
Fifth Amendment of the U.S. Constitution. Lastly, the
Act violates the U.S. Constitution’s Contracts Clause
as it unconstitutionally impairs Petitioners’ existing
leases.
The Act provides for an unprecedented and
indefinite shutdown of virtually every future and
pending eviction case in the Commonwealth.
Petitioners can easily show irreparable harm on behalf
of themselves and all other similarly situated rental
property owners. Aside from the numerous
constitutional violations asserted and established by
the Petitioners, the state has eviscerated the core
2
remedy in their leases – the right to evict. The
operation of the Act obligates rental property owners
to pay their own mortgages, real estate taxes,
insurance, and water/sewer used by non-paying tenants,
and to maintain their properties and comply with the
state sanitary code, while being effectively deprived
of the revenue required to do those things. Given the
unpredictable nature of the COVID-19 pandemic, this
one-sided obligation and burden will continue
indefinitely and quite possibly into 2021. Many small
rental property owners, especially those on fixed
income like Petitioner Smith, rely on rents to afford
to live in their own homes.
Lastly, the public interest favors striking down
this facially unconstitutional statute and
regulations. As this Court held in two recent COVID-
19 related cases, fundamental constitutional rights
are not quarantined during a global pandemic.
PETITIONERS
Petitioner, Mitchell Matorin (“Matorin”) is the
owner of the rental property located at 162 Ingleside
Avenue #A (First Floor), Worcester, Massachusetts
(“162 Ingleside”). Matorin purchased 162 Ingleside on
3
or about September 27, 2019, at which time he assumed,
as lessor, an existing tenancy at will lease agreement
between the prior owner, A&A Realty LLC, and two
tenants.3 See Affidavit of Mitchell Matorin, attached
hereto as Exhibit C. The two tenants repeatedly paid
their $1,200/month rent late before making their last
payment for January 2020, also late. When the tenants
did not make their rental payment on February 1, 2020,
on February 19, 2020, Matorin had a constable deliver
a 14 day notice to quit to the tenants for non-payment
of rent. Id. With the rent remaining unpaid, on
March 9, 2020, a constable served the two tenants with
a Summary Process Summons and Complaint for non-
payment of rent, which was filed with the Central
(Worcester) Housing Court on March 11, 2020. See
Matorin Aff., Ex. C. The original trial date of March
26, 2020 was rescheduled by the Housing Court under
its applicable COVID-19 Standing Order. See Docket,
Central Housing Court, attached to Matorin Aff., Ex.
D. Pursuant to the operation of the Eviction
3 For privacy reasons concerning their financial

status, the identity of Matorin’s tenants have been
redacted from this brief and his affidavit. If this
Court desires unredacted documentation, Petitioners
can file same under seal/impoundment.
4
Moratorium Act, Mr. Matorin’s non-payment summary
process case falls within the definition of a “non-
essential eviction,” and is thus indefinitely
suspended until the expiration of the Act. To that
end, the Housing Court on April 27, 2020 issued a
notice reflected on the case docket that the case was
“Suspended COVID-19 Reschedule TBD.” Mr. Matorin has
not received any rent from his tenants, and is
currently owed $4,800 through May 31, 2020.
Petitioner, Linda Smith (“Smith”) is an
individual with a principal place of residence at 5
Glendale Road, Hudson, MA 01749. Ms. Smith is a small
rental property owner of the premises located at 11
Harvard Terrace #3, Allston, Massachusetts, which is
currently occupied by a tenant, and which, until late
March, 2020, was also occupied by two other
tenants. After the two other tenants vacated the
premises, the remaining tenant stated to Ms. Smith
that he did not have to pay rent in April because “the
Governor said I do not have to.” See Affidavit of
Linda G. Smith, attached hereto as Exhibit D. As of
June 1, 2020, the total arrears owed to Ms. Smith will
be $6,720. See id. Pursuant to the operation of the
Eviction Moratorium Act, Smith desires to, but is
5
prohibited from, serving on her tenant a 14 day Notice
to Quit for Non-Payment of Rent. With the exception
of a small monthly social security stipend, Smith
relies solely on rental income for her livelihood.
RESPONDENTS
Respondent, Hon. Timothy Sullivan is the Chief
Justice of the Housing Court Department of the Trial
Court (“Housing Court”), with a principal place of
business located at Edward W. Brooke Courthouse, 24
New Chardon Street, 6th Floor, Boston, MA 02114.
Chief Justice Sullivan is responsible for all
oversight and operations of the Housing Court and its
Clerk’s Office of its several divisions and sessions
with respect to court filing operations. The Housing
Court has concurrent jurisdiction over summary process
actions under G.L. c. 185C, § 3.
Respondent, Hon. Paul W. Dawley is the Chief
Justice of the District Court Department of the Trial
Court (“District Court”), with a principal place of
business located at Edward W. Brooke Courthouse, 24
New Chardon Street, 1st Floor, Boston, MA 02114.
Chief Justice Dawley is responsible for all oversight
and operations of the District Court and its Clerk’s
Office of its several divisions with respect to court
6
filing operations. The District Court has concurrent
jurisdiction over summary process actions under G.L.
c. 239, § 2.
Respondent, Hon. Judith Fabricant is the Chief
Justice of the Superior Court Department of the Trial
Court (“Superior Court”), with a principal place of
business located at the Suffolk County Courthouse,
Three Pemberton Square, 13th Floor, Boston, MA 02108.
Chief Justice Fabricant is responsible for all
oversight and operations of the Superior Court and its
Clerk’s Office of its several divisions and sessions
with respect to court filing operations. The Superior
Court has jurisdiction over certain summary process
actions under G.L. c. 239, § 2.
Respondent, Executive Office of Housing and
Economic Development (“EOHED”) is a body politic and
agency of the Commonwealth of Massachusetts under the
oversight of the executive branch, with a principal
place of business located at One Ashburton Place,
Boston, MA 02108.
Respondent, the Commonwealth of Massachusetts
(“Commonwealth” or the “State”) is a body politic and
a duly organized and incorporated state in the United
States of America. The Commonwealth is named for
7
purposes herein so that complete and final relief can
be granted, as well as any award of damages or just
compensation pursuant to G.L. c. 79, G.L. c. 12, §
11I, and 42 U.S.C. § 1983.
REASONS WHY RELIEF IS APPROPRIATE IN THIS COURT

PURSUANT TO G.L. C. 211, § 3, G.L. c. 214, § 1, and
G.L. c. 231A, § 1
This Petition challenges the constitutionality of
Chapter 65 of the Acts of 2020, An Act Providing for a
Moratorium On Evictions and Foreclosures During the
COVID-19 Emergency (hereinafter, “the Act” or
“Eviction Moratorium”) and the regulations promulgated
thereunder, 400 C.M.R. 5.0: COVID-19 Emergency
Regulations (“Regulations”). The Eviction Moratorium
– which closes all of the Commonwealth’s courthouses
to virtually all rental property owners who have legal
grounds to evict a tenant – imposes an unprecedented
interference with the core functions and
administration of the Trial Court in violation of
Article 30 of the Declaration of Rights, and is a
serious violation of Petitioners’ fundamental state
and federal constitutional rights.
Jurisdiction over this Petition is proper on
three separate bases –
8
1. The Supreme Judicial Court’s power of general
superintendence of the judiciary and over all
Trial Courts (courts of inferior jurisdiction)
under G.L. c. 211, § 3
2. “Original and concurrent jurisdiction of all
cases and matters of equity cognizable under the
general principles of equity jurisprudence” under
G.L. c. 214, § 1
3. Jurisdiction under the Declaratory Judgment Act,
G.L. c. 231A, § 1, of any claim seeking “binding
declarations of right, duty status and other
legal relations sought thereby.
This Court recently invoked such jurisdiction
over two COVID-19 related emergency petitions, in
Goldstein v. Galvin, SJC-12931 (Apr. 17, 2020), and
Committee for Public Counsel Services v. Chief Justice
of the Trial Court, 484 Mass. 431 (SJC-12926) (Apr. 3,
2020). This case raises both a constitutional
challenge to a COVID-19 related statute as in
Goldstein, along with a claim of irreparable harm and
emergency relief as in Committee for Public Counsel.
Jurisdiction should be granted over this case due to
the important and serious constitutional issues
9
raised, and the broad impact to the public interest
raised in this Petition.
FACTUAL BACKGROUND
The COVID-19 Pandemic
On March 10, 2020, when Massachusetts reported
less than 500 COVID-19 cases, Governor Baker declared
a State of Emergency. See Executive Order No. 591.
Five days later, Gov. Baker ordered the closing of all
public and private schools, banned social gathering of
over more than 25 people, and prohibited on-premises
consumption of food and drink at restaurants and bars.
See Order Prohibiting Gatherings of More Than 25
People and On-Premises Consumption of Food or Drink
(March 15, 2020).4 A week later, on March 23, 2020,
the Governor issued a “Stay At Home” order, closing
all “non-essential” businesses and tightened the
social gathering restriction to no more than 10
persons. See COVID-19 Order No. 135 and 21.6 The
4 See https://www.mass.gov/doc/march-15-2020-large-
gatherings-25-and-restaurants-order/download
5 See https://www.mass.gov/doc/march-23-2020-essential-
services-and-revised-gatherings-order/download
6 See https://www.mass.gov/doc/march-31-2020-essential-
services-extension-order/download
10
Department of Public Health issued advisories that
citizens only leave homes for essential errands, and
to practice social distancing by staying six feet
apart from others. See DPH Public Health Advisories
issued on March 24, 2020.7 On April 28, 2020, Gov.
Baker extended his order closing all non-essential
businesses and prohibitions of gatherings over 10
persons, to May 18, 2020. See COVID-19 Order No. 30.8
On May 1, Gov. Baker issued an order requiring that
people wear masks in public where social distancing is
not feasible. See COVID-19 Order No. 31.9 Effective
on May 25, 2020, Gov. Baker issued a “phased re-
opening” of the workplaces, lifting many of the
restrictions on business operations. See COVID-19
Order No. 33.10
7 See https://www.mass.gov/news/safer-at-home-advisory
8 See https://www.mass.gov/doc/signed-second-extension-
of-essential-services-order/download
9 See https://www.mass.gov/doc/may-1-2020-masks-and-
face-coverings/download
10See https://www.mass.gov/doc/may-18-2020-re-opening-
massachusetts-order/download
11
Court System Response To COVID-19 Pandemic
While Gov. Baker was taking executive action in
response to the pandemic, court leaders were also
taking unprecedented action in response to the virus.
The Supreme Judicial Court, along with the Appeals
Court and all Trial Court Departments, have issued a
series of Orders, Emergency Administrative Orders, and
Standing Orders to address the COVID-19 impact on the
judiciary. On March 13, 2020, this Court issued the
first of several COVID-19 orders that immediately
postponed all empanelments in jury trials, in both
criminal and civil cases, until April 21, 2020. See
SJC Order In Re: COVID-19 (Coronavirus) Pandemic
Regarding Empanelment of Juries. This Court also
ordered that persons who have symptoms of, or any
exposure to, COVID-19 may not enter a courthouse or
other state court facility, including probation
offices, until the SJC determines that it is safe to
remove the restrictions. See SJC Order OE-144.
Following this Court’s initial orders, all Trial Court
Departments issued their own orders significantly
limiting all in-person contact and access into
courthouse facilities.
12
Following the SJC’s directive, on March 17, 2020,
the Housing Court issued a series of new COVID-19
Standing Orders. The goal of the orders was to “where
practicable, to minimize the foot traffic in each
courthouse or confined quarters within the Housing
Court Clerks’ Offices and courtrooms. The goal is to
promote “social distancing,” thereby minimizing the
risk of exposure to court staff and litigants. See
Housing Court Standing Order 2-20. With respect to
docket control, the Housing Court continued all non-
emergency court events to April 21, 2020, and would
hear only emergency matters, preferably telephonically
or through video conferencing. See Housing Court
Standing Orders 2-20, 3-20. “Emergency matters” were
defined to include applications for injunctive relief,
temporary restraining orders where a complaint
involves a lockout, condemnation, no heat, no water,
and/or no utilities; conduct and or conditions
endangering the health safety and welfare of
residential occupants and others; stay of levy on an
execution; or where access is required to address an
emergency (e.g., burst water pipe, gas fumes, etc.).
Housing Court Standing order 3-20. As the COVID-19
crisis worsened through March, the Housing Court
13
extended its previous standing orders and de facto
closure through May 4, 2020. See Housing Court
Standing Order 4-20.
With infections and deaths steadily increasing
through the month of April, on April 27, 2020, this
Court ordered all courthouses closed to the general
public, except for enumerated emergency matters, until
at least June 1, 2020. See SJC Order OE-144 (Apr. 27,
2020). All criminal and civil jury trials are now
postponed until no earlier than September 8, 2020.
See SJC Order OE-144 (Updated May 26, 2020). Each
Trial Court has been authorized to conduct hearings of
non-emergency matters by virtual means such as through
telephonic or video-conferencing technology. See id.
Lastly, all deadlines set forth in statutes, court
rules, standing orders and tracking orders set to
expire between March 16 – June 1, 2020, are tolled
until July 1, 2020, with the rule providing for a new
calculation formula. See id. § 13.
The Eviction Moratorium Act
In early March 2020, in response to the financial
impact of COVID-19 on tenants, legislators began
considering a proposal to enact a moratorium on
evictions. The legislation was spearheaded by tenant
14
advocacy groups such as City Life/Vida Urbana who
organized a well-coordinated online and social media
campaign.11 There is no legislative record of any
public hearing or testimony taken on the bill, despite
the fact that it constitutes one of the most
unprecedented legislative actions concerning rental
housing in Massachusetts history.12 There is no record
of any study or committee report as to the impacts of
the Act’s unprecedented shifting of the COVID-19
financial burden from financially distressed tenants
to similarly distressed rental property owners.
Moreover, while state legislators were working on this
bill, they were largely working from home via e-mail
and conducting legislative business in remote
“informal” sessions.13 According to Provincetown State
Rep. Sarah Peake, the Legislature conducted these
“informal” sessions every 72 hours, which do not
11 See
http://www.clvu.org/petition_covid19_eviction_moratori
um
12 See H.B. 4647 (Bill History) found at
https://malegislature.gov/Bills/191/H4647.
13See Mass. State Lawmakers Work from Home Amid
Coronavirus Outbreak, NBC Boston, April 7, 2020 (found
at https://www.nbcboston.com/news/coronavirus/mass-
state-lawmakers-work-from-home-amid-coronavirus-
outbreak/2104230/ (last checked 5/15/20).
15
require roll call votes, and specifically pointed to
the Eviction Moratorium bill as an example of a piece
of legislation which went through this expedited,
truncated process.14 Citing concerns with this
process, Rep. Sean Dooley (R- Norfolk) objected to the
Act during one of the informal sessions, which under
House rules, suspended debate on the bill for that
day.15 Rep. Dooley eventually stood down, and the bill
was enacted and laid before the Governor on Friday
April 17, 2020 and signed into law the following
Monday, April 20, 2020. The bill went from filing in
the House to the Governor’s pen in only twenty-five
(25) days. See H.B. 4624 (first bill filed 3/26/20);
H.B. 4647 (final bill signed by Gov. Baker on
4/20/20).
Provisions of the Eviction Moratorium Act
The overall intent of the Act with respect to the
moratorium on evictions is to prevent the filing, and
suspend all pending, residential and commercial
summary process cases in the Commonwealth during the
14See id.
15See Emergency Coronavirus Housing Bill Takes Detour
in Mass. House, State House News Service (Apr. 17,
2020) found at
https://www.wbur.org/news/2020/04/17/coronavirus-
housing-bill-massachusetts-stalled.
16
COVID-19 Emergency, with certain very limited
exceptions. The Act, read as a whole, is clearly
directed at the financial impact of the COVID-19
crisis on tenants and homeowners, rather than safety
concerns within courthouse buildings. Indeed, one of
the lead legislative sponsors of the bill has boasted
publicly on Twitter that the Act is the “strongest
eviction [] moratorium in the nation.”16
The Act stops eviction cases through several
means. First, the Act creates a heretofore
unrecognized new class of summary process case –
defined as a “non-essential eviction,” which cannot be
filed or prosecuted in any court in the Commonwealth.
A non-essential eviction includes four classes of
summary process cases:
• All non-payment cases
• All post-foreclosure cases
16See Cambridge Representative Mike Connolly on his

public Twitter page: “When organizers, advocates and
legislators work together, good things are possible.
@Shelfterforce profiles the work @RepKevinHonan and I
did in partnership with @Citylife_Clvu and others to
pass the nation’s strongest Eviction and Foreclosure
Moratorium.”
https://twitter.com/MikeConnollyMA/status/126420994039
2153088?s=20
17
• All “no-fault” cases17
• All “for cause” cases except those which do
not involve or include allegations of
criminal activity or a lease violation “that
may impact the health and safety of other
residents, health care workers, emergency
personnel, persons lawfully on the subject
property, or the general public.”18
A “non-essential eviction,” includes both residential
units and certain commercial premises, newly defined
as involving a “small business premises unit.” The
Act broadly defines a “small business premises unit”
as – “a premises occupied by a tenant for commercial
purposes, whether for-profit or not-for-profit;
provided, however, that a small business premises unit
shall not include a premises occupied by a tenant if
the tenant or a party that controls, is controlled by
17 A so-called “no-fault case” would include evictions

based on the expiration of a written lease, a holdover
tenant, a tenant at sufferance, and the termination of
a tenancy at will.
18 Based upon the undersigned counsel’s participation
in recent Bench/Bar Zoom Seminars attended by Housing

Court justices, “for cause” cases which are considered
“essential” will not include cases relating to smoking
in a unit in violation of a lease, noise disturbances,
and allowing authorized occupants (with unknown COVID-
19 infection status) to occupy a unit in violation of
a lease.
18
or is in common control with the tenant: (i) operates
multi-state, (ii) operates multi-nationally; (iii) is
publicly traded; or (iv) has not less than 150 full-
time equivalent employees.”
The Act then imposes a total prohibition of all
new filings in any “non-essential eviction” and a de
facto stay of all pending non-essential eviction
cases, providing as follows:
Notwithstanding chapter 186 or 239 of the General

Laws or any general or special law, rule,
regulation, or order to the contrary, a court
having jurisdiction over an action for summary
process pursuant to said chapter 239, including
the Boston municipal court department, shall not,
in an non-essential eviction for a residential
dwelling unit or small business premises unit:
(i) accept for filing a writ, summons or
complaint; (ii) enter a judgment or default
judgment for a plaintiff for possession or a
residential dwelling unit or small business
premises unit, (iii) issue an execution for
possession of a residential dwelling unit or
small business premises unit; (iv) deny, upon the
request of a defendant, a stay of execution, or
upon the request by a party, a continuance of a
summary process case; or (v) schedule a court
event, including a summary process trial. St.
2020, c. 65, § 3(b)
The Act also prohibits the levy and enforcement
of any execution for possession (also known as move-
out orders) for both residential and commercial
properties, providing as follows: “A sheriff, deputy
sheriff, constable or other person shall not enforce
19
or levy upon an execution for possession for a non-
essential eviction of a residential dwelling unit or
small business premises unit.” See Act, §3(d).
The Act does not stop at banning and suspending
virtually every eviction in Massachusetts. It also
prohibits residential rental property owners from
exercising basic contractual rights through a total
ban against the termination of any tenancy and the
sending of “any notice, including a notice to quit,
requesting or demanding that a tenant of a residential
dwelling unit vacate the premises.” See Act, § 3(a)
(“Notwithstanding chapter 186 or chapter 239 of the
General Laws or any other general or special law,
rule, regulation or order to the contrary, a landlord
or owner of a property shall not, for the purposes of
a non-essential eviction for a residential dwelling
unit: (i) terminate a tenancy; or (ii) send any
notice, including a notice to quit, requesting or
demanding that a tenant of a residential dwelling unit
vacate the premises.”)
The Act further prohibits the imposition of any
late fees for the non-payment of rent in a residential
or small business unit premises provided that the
tenant provides the rental property owner with notice
20
and documentation of a COVID-19 related financial
hardship. See Act, §3(e).
The Act also authorizes rental property owners to
utilize a tenant’s last month rent deposit as a short-
term loan to pay for mortgage, utility and property
upkeep expenses. If invoked, a rental property owner
must pay back and account for the deposit, plus all
accrued interest, at the end of the tenancy or lease.
See Act, §4(a). Petitioners believe that this
provision will be seldomly used by rental property
owners because, among other things, a last month rent
deposit is unlikely to cover even one month of actual
carrying costs, and it must be paid back with
interest. Lastly, the Act does provide that subject
to the moratorium and notice prohibition provisions,
it does not suspend the underlying obligation to pay
rent or a rental property owner’s ability to recover
rent. See Act, §3(f).
Although not part of this Petition, the Act
provides for a moratorium on foreclosures for
residential property only.19 See Act, §5(a).
19This provision does not apply to either of the

Petitioners because their rental properties are not
their primary residence. Accordingly, they do not
benefit from the forbearance benefits under the Act,
21
Residential property is defined the same way as G.L.
c. 244, § 35B, as: “real property located in the
commonwealth, on which there is a dwelling house with
accommodations for 4 or fewer separate households and
occupied, or to be occupied, in whole or in part by
the obligor on the mortgage debt; provided, however,
that residential property shall be limited to the
principal residence of a person; provided, further,
that residential property shall not include an
investment property or residence other than a primary
residence; provided, further, that residential
property shall not include residential property taken
in whole or in part as collateral for a commercial
loan; and provided, further, that residential property
shall not include a property subject to condemnation
or receivership.” There appears to be a level of
internal conflict with this provision as to whether it
would apply to the various mortgage scenarios for
rental or investment income property, especially
multi-family dwellings. The Act also provides for
mortgage deferral of six month’s of payments for
and must continue to pay their mortgage and property

expenses without receiving rental income, thereby
risking their own credit hits and foreclosure.
22
residential mortgagors if they submit a COVID-19
related financial hardship request. See Act, § 5(b).
Those deferred payments are added to the end of the
mortgage term unless otherwise agreed by the parties.
Id.
The term and duration of the Eviction Moratorium
Act remains a moving target. The Act’s eviction
moratorium provisions will expire on August 18, 2020,20
or 45 days after the Governor lifts the COVID-19 State
of Emergency, whichever is earlier. However, the Act
specifically authorizes the Governor himself (without
any legislative consent requirement) to postpone the
expiration of the Act for 90 day incremental periods
(but no later than 45 days after the State of
Emergency is lifted). There is no express limitation
on how many 90 day incremental periods the Governor
may use to extend the Act, and the outer bounds of the
term is tied to the duration of the COVID-19 State of
Emergency, which the Governor solely controls. See
Act, § 7 (“the governor may postpone such expiration
in increments of not more than 90 days; provided
20The Act provides for an expiration date of 120 days

after the effective date of the Act (April 20, 2020).
Act, § 7.
23
further, that the governor shall not postpone such
expiration to later than 45 days after the COVID-19
emergency declaration has been lifted.”).
EOHED Regulations
As mandated in the Act, the Executive Office of
Housing and Economic Development (EOHED) has issue
regulations to ensure compliance with the Act. See
400 C.M.R. 5.0: COVID-19 Emergency Regulations. The
new regulations mandate that all rental property
owners must use specific language in a new type of
notice for a late or missing rent payment, called a
“Notice of Rent Arrearage.” The new notice must
contain the following special language and reference
to certain government agency websites:
“THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING
EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An
emergency law temporarily protects tenants from
eviction during the COVID-19 emergency. The purpose of
this notice is to make sure you understand the amount
of rent you owe to your landlord.”
“For information about resources that may help you pay
your rent, you can contact your regional Housing
Consumer Education Center. For a list of agencies,
24
see https://www.masshousinginfo.org/regional-
agencies. Additional information about resources for
tenants is available
at https://www.mhp.net/news/2020/resources-for-
tenants-during-covid-19-pandemic.”
“You will not be subject to late fees or a negative
report to a credit bureau if you certify to your
landlord in writing within 30 days from the missed
payment that your non-payment of rent is due to a
financial impact from COVID-19. If possible, you
should use the approved form
at: https://www.mass.gov/lists/moratorium-on-
evictions-and-foreclosures-forms-and-other-
resources. If you cannot access the form on this
website, you can ask your landlord to provide the form
to you. You may also send a letter or email so long as
it contains a detailed explanation of your household
loss in income or increase in expenses due to COVID-
19.”
The “Notice of Rent Arrearage” may also include
other information that will promote the prompt and
non-judicial resolution of such matters, such as the
total balance due, the months remaining and the total
25
of lease payments expected to be made on a lease for a
term of years, information on how to contact the
landlord to work out a revised payment arrangement,
and a reminder that after the state of emergency ends
the tenant may face eviction if rent remains unpaid.
The regulations also state that the notice should also
have language informing the tenant of the importance
of having it translated to their native language.
New Housing Court Standing Order
After the enactment of the Eviction Moratorium,
the Housing Court issued a new Standing Order to put
their operations into compliance with the Act. See
Housing Court Standing Order 5-20: Further
Modifications to Housing Court Operations Due to the
Coronavirus (COVID-19) Outbreak (May 1, 2020). The
new Standing Order provides, in pertinent part:
(2) Until such time as the Moratorium Legislation

expires, the Housing Court shall not accept and docket
any filing(s), decisions, orders, and other documents
in “non-essential eviction” (summary process)
matters, including such filings, decisions, orders,
and other documents that are not expressly prohibited
by the Moratorium Legislation. The following filings
in summary process cases, however, shall be accepted
and allowed by the court: (1) motions to continue; (2)
motions to vacate a default judgment entered since
March 1, 2020; (3) motions to vacate a dismissal for
failure to appear entered since March 1, 2020; and (4)
motions to stay an execution. In addition, the court
shall accept and, where necessary, docket the
following filings in summary process cases: (1) a
26
notice of appearance; (2) original summonses and
complaints in previously electronically-filed cases;
(3) a notice of voluntary dismissal; (4) a
satisfaction of judgment; and (5) original executions.
As set forth in the Moratorium Legislation, “a
deadline or time period for action by a party to a
non-essential eviction . . ., whether such deadline or
time period was established before or after [April 20,
2020], including, but not limited to, a date to answer
a complaint, appeal a judgment or levy upon an
execution for possession or a money judgment, shall be
tolled” until such time as the Moratorium Legislation
expires.
(5) Until further order, each Clerk-Magistrate, in

consultation with the respective First Justice, may
advance, schedule, and conduct proceedings, by virtual
means only, in any case type, except in a non-
essential eviction action, as defined by the
Moratorium Legislation.
The new Standing Order also provides for the new
procedure and a new “Affidavit for Cause” for the
filing of an “essential eviction” which is allowed by
the Act. See Standing Order 5-20, §3.
Impact to Massachusetts Rental Property Owners
In terms of overall impact to rental property
owners statewide, statistics for Fiscal Year 2019 show
that 30,614 summary process cases were filed in the
Housing Court.21 An additional 8,370 summary process
cases were filed in the District Courts in Fiscal Year
21See https://www.mass.gov/doc/housing-court-trends-
by-fiscal-year-2/download.
27
2019.22 The total for Fiscal Year ’19 summary process
filings in the entire state is nearly 39,000 cases.23
The Housing and District Court do not keep statistics
on the type of summary process case filed, such as
non-payment, no-fault, or for cause. However, the
reasonable inference from the nature of the COVID-19
crisis and its associated financial impact, together
with the dramatically rising unemployment rate, is
that non-payment cases would be the most affected type
of case subject to the Eviction Moratorium Act. The
Act, however, will also apply to termination of
tenancies at will, holdover tenants who stay past
their lease expiration, any many “for cause” cases
which do not fall within the limited exception. We
can extrapolate from the court statistics that at
least 20,000 or more pending eviction cases could be
impacted by the Act, and thousands more as-yet-filed
eviction cases. Moreover, Petitioners state that upon
information and belief, tenants, who have the
22See https://www.mass.gov/doc/total-filings-by-court-
location-18/download.
23The Superior Court also retains jurisdiction over
summary process cases under G.L. c. 239, however, it
does not track summary process case statistically, and
upon information and belief, its eviction caseload is
quite small.
28
financial means to pay rent, are informing their
rental property owners that they will not pay rent
because the Act effectively prevents rental property
owners from enforcing rental payment obligations and
evictions. Indeed, this is what Petitioner Smith’s
tenant told her – that he did not have to pay rent
because “the Governor said I do not have to.” Even
more concerning to rental property owners, there
appears to be a legislative groundswell for a “rent
freeze” in the wake of the Eviction Moratorium Act.24
24See Congresswoman Ayanna Pressley on Twitter

5/21/20 (“11 days until rent is due again. It’s past
time to cancel rent and mortgage payments.”) found at
https://twitter.com/AyannaPressley/status/126357854473
6698373?s=20
See Rep. Mike Connolly on Twitter 4/1/20 (“This ain't

no #AprilFools. For the past few days, I've been
drafting legislation to implement a #RentFreeze in
Massachusetts in response to the #COVIDー19 emergency.
I need your feedback and support to make it happen.
Visit http://rentfreeze.org to learn more!
#HousingForAll”) found at
https://twitter.com/MikeConnollyMA/status/124537204252
8120840?s=20
29
Standard of Review
As this Court is well aware, the standard when
considering an application for a preliminary
injunction is set forth in the seminal case of
Packaging Industries Group v. Cheney, 380 Mass. 609
(1980). As to the merits of the application, “when
asked to grant a preliminary injunction, the judge
initially evaluates in combination the moving party's
claim of injury and chance of success on the merits.”
Id. at 617. “If the judge is convinced that failure
to issue the injunction would subject the moving party
to a substantial risk of irreparable harm, the judge
must then balance this risk against any similar risk
of irreparable harm which granting the injunction
would create for the opposing party. What matters as
to each party is not the raw amount of irreparable
harm the party might conceivably suffer, but rather
the risk of such harm in light of the party's chance
of success on the merits. Only where the balance
between these risks cuts in favor of the moving party
may a preliminary injunction properly issue.” Id.
Where, as here, the dispute involves a government
entity, “a judge is required to determine that the
requested order promotes the public interest, or,
30
alternatively, that the equitable relief will not
adversely affect the public.” John T. Callahan & Sons,
Inc. v. City of Malden, 430 Mass. 124, 131 (1999).
ARGUMENT
A. The Act Violates the Separation of Powers Between

Branches Under Article 30 of the Declaration of
Rights
Article 30 of the Massachusetts Declaration of
Rights provides as follows:
“In the government of this commonwealth, the

legislative department shall never exercise the
executive and judicial powers, or either of them: the
executive shall never exercise the legislative and
judicial powers, or either of them: the judicial shall
never exercise the legislative and executive powers,
or either of them: to the end it may be a government
of laws and not of men.”
Mass. Const. Pt. 1, art. XXX
Our Commonwealth is one of only a few states to
articulate an explicit constitutional separation of
powers. Commonwealth v. Cole, 468 Mass. 294, 301
(2014). The line between the branches “has never been
delineated with absolute precision.” Id. However,
this Court has described it as both “sharp” and
“strict.” Id. at 303. “Nonetheless, the mandate of
art. 30 is clear: it forbids the legislative and
executive branches from exercising powers that are
entrusted to the judicial branch if that exercise
31
‘restricts or abolishes a court’s inherent powers.’”
Id. at 302, quoting Gray v. Commissioner of Revenue,
422 Mass. 666, 671 (1996). Stated another way, this
Court has said: “What art. 30 forbids — the essence
of what cannot be tolerated — is legislative
interference with the judiciary’s core functions.”
First Justice of the Bristol Div. of the Juvenile
Court Dep’t v. Clerk–Magistrate of the Bristol Div. of
the Juvenile Court Dep’t, 438 Mass. 387, 396 (2003).
The inherent powers of the judiciary “are those whose
exercise is essential to the function of the judicial
department, to the maintenance of its authority, or to
its capacity to decide cases.” Cole, 468 Mass. at
302, quoting Sheriff of Middlesex County v.
Commissioner of Correction, 383 Mass. 631, 636 (1981).
“Although inherent powers may be recognized by
statute, they exist independently, because they
‘directly affect[ ] the capacity of the judicial
department to function’ and cannot be nullified by the
Legislature without violating art. 30 [of the
Massachusetts Declaration of Rights].” Querubin v.
Com., 440 Mass. 108, 114 (2003). Although fairly
obvious, the inherent powers of the judiciary are
those whose exercise is essential to “its capacity to
32
decide cases.” Brach v. Chief Justice of the District
Court Dept., 386 Mass. 528, 535 (1982).
The Act operates as a historically unprecedented
interference by the legislative and executive branch
in the core functions and inherent powers of the Trial
Court’s ability to consider and decide summary process
cases. The Commonwealth has survived the Civil War,
two World Wars, the Great Depression, the 1918 Spanish
influenza pandemic, and numerous economic recessions,
yet until now the Legislature has never taken such a
drastic step as to close the courthouse doors to one
group of litigants in one particular type of civil
action. The Moratorium takes several drastic actions
which unconstitutionally interferes with the core
functions and inherent powers of the judicial branch,
including:
• Establishing a previously unrecognized new
class of summary process case – the “non-
essential eviction.”
• Ordering any Trial Court with jurisdiction over
summary process cases under G.L. c. 239 to
refuse to accept for filing a writ, summons, or
complaint for a non-essential summary process
case;
33
• Prohibiting all Trial Court justices presiding
over a non-essential summary process case from
entering a judgment or default judgment for a
plaintiff for possession.
denying upon the request of a defendant, a stay
of execution, or upon the request by a party, a
continuance of a summary process case;
scheduling any “court event, including a
summary process trial.”
• Barring the enforcement or levy of a summary
process execution for possession issued by a
Trial Court justice.
See St. 2020, c. 65, § 3(b)
All of these vast and unprecedented restrictions
on judicial functions and authority directly interfere
with the inherent powers of the courts – “those whose
exercise is essential to the function of the judicial
department, to the maintenance of its authority, or to
its capacity to decide cases.” Sheriff of Middlesex
Cty v. Commissioner of Correction, 383 Mass. 631, 636
34
(1981). This Court has held that the Legislature
impermissibly interferes with judicial functions when
it purports to modify the judgment of a court. Doe v.
Sex Offender Registry Bd., 459 Mass. 603, 621 (2011).
See also Opinion of the Justices, 234 Mass. 612, 621–
622 (1920) (ruling that judgment of court can be
modified only by judicial process; Legislature cannot
“supersede” judgment by declaration to that effect).
“Prohibited as well is legislation that attempts to
restrict or diminish those judicial powers that are
necessary to the court's ability to perform its core
judicial functions.” First Justice of the Bristol
Div. of the Juvenile Court Dep’t v. Clerk–Magistrate
of the Bristol Div. of the Juvenile Court Dep’t, 438
Mass. 387, 396 (2003). “Where a statute impermissibly
allocates a power held by only one branch to another,
it violates art. 30.” Ellis v. Department of Indus.
Accs., 463 Mass. 541, 549–550 (2012).
For any property owner seeking to file a non-
essential eviction, the Eviction Moratorium bans the
issuances of notices to quit, closes the Clerk’s
Office, shuts down the courthouse, and then acts as a
new judicial standing order telling Trial Court judges
precisely how to handle (or, more accurately, not
35
handle) their pending caseload. Aside from
prohibiting the filing of any new “non-essential”
eviction, the Act goes so far as to tell a Trial Court
judge he or she cannot even schedule a “court event.”
This would conceivably cover any typical event within
a summary process case, such as any motion hearing, a
motion for rent escrow, status conference, case
management conference, pre-trial conference, a motion
to set an appeal bond, a motion to issue execution,
and of course, a bench or jury trial. There has never
been such a blatant infringement on the judiciary’s
role to handle its own cases.
Moreover, the Act also permits an infringement by
the Governor (executive) on the core functions of the
judiciary. The Act authorizes the Governor himself
(without any legislative consent requirement or other
oversight) to postpone the expiration of the Act for
an unlimited successive 90 day incremental periods,
(but no later than 45 days after the State of
Emergency is lifted). There is no express limitation
on how many 90 day incremental periods the Governor
may use to extend the Act, and the outer bounds of the
term is tied to the duration of the COVID-19 State of
Emergency, which the Governor solely controls. Thus,
36
the Governor can keep the Act in place (even without
the consent of the Legislature) for as long as he
desires, essentially. This is a clear infringement by
the executive on the judiciary’s functions, in
violation of Article 30.
Lastly, the Act operates to interfere with the
Judiciary’s own administrative actions in dealing with
the COVID-19 crisis. As outlined above, this Court
and all the Trial Courts have enacted a series of new
standing orders, acting and adapting quickly to a “new
normal” brought on by the COVID-19 crisis. Even
though these orders have temporarily limited some
forward movement of summary process cases, they
authorize such innovative measures as telephone and
video conference hearings, electronic signatures and
certificates of service, and electronic filing of
pleadings. While trials are on pause, much court
business is still being conducted across the state;
cases are being filed and hearings are being
conducted. “Zoom” video conferences are being used in
the Trial Courts now. Emergency matters are also
being heard live in person in some cases. The Act,
however, usurps the Court’s own standing orders and
innovative measures to deal with the COVID-19 crisis
37
for summary process cases, which would allow for
evictions cases to be heard soon. Article 30
prohibits that, and it surely sets a worrisome
precedent for future legislative interference with
court operations.
B. The Act Violates the Petitioners’ Constitutional

Right to Access the Courts Under Article 11 and
29 of Our Declaration of Rights.
Article 11 of our Declaration of Rights
guarantees to every citizen a broad right to access to
the courts and justice – to “obtain right and justice
freely, and without being obliged to purchase it;
completely, and without any denial; promptly, and
without delay; conformably to the laws.” Article 29
of the Massachusetts Declaration of Rights likewise
guarantees that: “[i]t is essential to the
preservation of the rights of every individual, his
life, liberty, property and character, that there be
an impartial interpretation of the laws, and
administration of justice.” As the Appeals Court has
held, the “free access to the courts guaranteed to
each citizen by art. 11 requires that all cases be
decided by a judge, and that litigants need not
purchase access to justice.” Ventrice v. Ventrice, 87
Mass. App. Ct. 190, 193 (2015).
38
Citing Article 11’s constitutional right to
access the courts freely and without delay, this
Court, along with the Appeals and Superior Courts,
have struck down restrictions on litigants’ ability to
access the courts. See, e.g., Bower v. Bournay-Bower,
469 Mass. 690 (2014) (ruling that judge violated Art.
11 by mandating the appointment of parental
coordinator in divorce case without consent of both
parents); Ventrice, supra, at 194 (holding that
probate judge’s order requiring mediation before
filing any action in court violated Art. 11); Haas v.
Spencer, 30 Mass. L. Rptr. 623 (Mass. Super. Ct. Dec.
11, 2012) (holding that prison officials’ intentional
delaying of prisoner’s mail filings to court is a
violation of Art. 11).
In Bower, this Court considered a probate judge’s
order appointing a parental coordinator over a
parent’s objection. Of particular concern was that
the order expressly required the parties to submit all
disputes regarding custody or visitation to the parent
coordinator “before such matters are brought before
the court.” 469 Mass. at 703. This Court held that
such a prior restraint on the parent’s right to access
the courts was a violation of Article 11:
39
The order here denies the parents the right even
to obtain access to the court regarding future
disputes or other issues without first engaging
with the parent coordinator. This prior restraint
on the ability to file future claims without both
parents’ consent may also infringe upon the
parties’ right to seek “recourse to the laws.”
Art. 11. In an analogous context, one State court
held that a judge’s bar on future postjudgment
filings by parties to a divorce proceeding,
absent demonstrated, good-faith participation in
a “four-way settlement conference,” constituted
an impermissible burden on the parties’ due
process right of access to the courts. Parish v.
Parish, 412 N.J.Super. 39, 988 A.2d 1180, 1182,
1190 (N.J.Super.Ct.App.Div.2010).
Similarly, in Ventrice, the Appeals Court held
that probate order requiring mediation before bringing
a dispute into court, which could cause a delay in an
objecting party’s right to file a complaint in our
courts, was an Art. 11 violation and unconstitutional.
87 Mass. App. Ct. at 194. The Appeals Court also
spoke of the chilling effect that a such a requirement
would have on a litigants ability to litigate in the
courts. Id.
The Eviction Moratorium presents something far
more serious and unprecedented than a mediation
requirement or the appointment of a parental
coordinator in an custody dispute. What we have
before this Court is a complete and total shutdown and
indefinite ban on virtually every eviction case being
40
filed and pending in the Commonwealth of Massachusetts
for an unknown period of time. Shutting down our
courts to anyone plainly violates Article 11 and the
principals on which the Commonwealth and the United
States of American were founded. The COVID-19 crisis
does not, and cannot, suspend this fundamental
constitutional right.
For the same reasons, the Act’s prohibition
against termination of tenancies and notices to
quit/termination are likewise unconstitutional under
Article 11. These formal legal actions and notices
are statutory prerequisites to filing a summary
process action under Massachusetts statute. Under
G.L. c. 186, § 11, a rental property owner must issue
a 14 day written notice to quit to a tenant who has
failed to pay rent before commencing a summary process
action. Termination of a tenancy at will requires at
least 30 days written notice. G.L. c. 186, § 12, 13.
Recovery of possession of rental property may only be
had through the summary process procedure under G.L.
c. 239, et. seq. See G.L. c. 239 § 1. Massachusetts
does not allow for self-help evictions. G.L. c. 184,
§ 18. Uniform Summary Process Rule 2(d) requires that
the notice to quit or notice of termination be
41
attached to the Summary Process Summons and Complaint
at the time of filing. A ban on the issuance of a
notice to quit is the same as a ban on the actual
filing of a summary process case. Article 11 plainly
forbids this type of wholesale prohibition against
seeking legal redress in the courts of the
Commonwealth.
C. The Act Is An Unconstitutional Infringement on

the Plaintiffs’ Right to Petition under the First
Amendment.
The First Amendment of the United State
Constitution provides that “Congress shall make no law
. . . abridging . . . the right of the people . . . to
petition the Government for a redress of grievances.”
The First Amendment applies to the states through the
Fourteenth Amendment of the U.S. Constitution.
DeJonge v. Oregon, 299 U.S. 353 (1937). This right
has its roots in the Magna Carta and has long been
viewed as a fundamental and inviolate right. See Adam
Newton, “Freedom of Petition Overview,” Freedom Forum
Institute (Oct. 10, 2002) (available online at
https://is.gd/FOPOFFI) (viewed Apr. 15, 2020). Since
at least 1876, the Supreme Court has considered the
right to petition “implicit in ‘[t]he very idea of
government,” observing that “[t]he historical roots of
42
the Petition Clause long antedate the Constitution.”
McDonald v. Smith, 472 U.S. 479, 482 (1985) (quoting
United States v. Cruikshank, 2 Otto 542 (1876)). In
United Mine Workers of Am. v. Illinois State Bar
Ass’n, 389 U.S. 217, 222 (1967), the Court exalted the
right to petition as “among the most precious of the
liberties safeguarded by the Bill of Rights.” It is a
fundamental liberty, protected against encroachment by
federal, state, and local governments alike. See
NAACP v. Button, 371 U.S. 415 (1963). Citing similar
principles, this Court has stated that “access to the
courts should not be restricted unnecessarily.” Town
of Brookline v. Goldstein, 388 Mass. 443, 449 (1983).
There have been only very few statutes which have
withstood this strict scrutiny. Two are G.L. c. 231,
§ 6F, which grants attorneys’ fees for the filing of
frivolous suits, and the Anti-SLAPP Act, G.L. c. 231,
§ 59H, which protects the filing of lawsuits as
petitioning activity.25 See id.; Duracraft Corp. V.
Holmes Products Corp., 427 Mass. 156 (1998). Unlike
25Indeed, this Court has noted that the Anti-SLAPP Act

was intended “to protect the right to petition the
government for the ‘redress of grievances’ guaranteed
by the United States Constitution.” Town of Hanover
v. New England Regional Council of Carpenters, 467
Mass. 587, 528 (2014).
43
these fair limitations on the content or merit of
lawsuits, the Act makes no such distinction. It
simply prohibits all summary process cases falling
under the umbra of a “non-essential” eviction. That
is what makes the Act facially unconstitutional as a
prior restraint on the Petitioners’ constitutional
right to petition.
Lastly, the United District Court for the
District Court of Massachusetts used similar reasoning
to strike down as unconstitutional the COVID-19
emergency debt-collection regulations promulgated by
the Mass. Attorney General which prohibited the filing
of new debt collection civil actions and many other
judicial remedies such as attachment, wage garnishment
and seizure of assets. See ACA Int'l v. Healey, No.
CV 20-10767-RGS, 2020 WL 2198366, at *5 (D. Mass. May
6, 2020). In ACA Int’l, Judge Stearns held those
regulations unconstitutional, reasoning that the
constitutional guarantee of the right to access the
courts is “among the most precious of the liberties
safeguarded by the Bill of Rights.” Slip op. at 23,
quoting United Mine Workers of Am. Dist. 12 v.
Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967).
The Attorney General’s debt collection regulations are
44
of the same ilk as the Eviction Moratorium Act. Both
prohibit the filing and maintenance of a certain type
of lawsuit by a certain class of litigants (debt
collectors vs. landlords). Moreover, as Judge Stearns
also correctly reasoned, the temporary nature of the
AG rules did not save them. “[T]he mere fact of an
emergency does not increase constitutional power, nor
diminish constitutional protections.” Slip op. at 25-
26, citing Home Building & Loan Ass’n v. Blaisdell,
290 U.S. 398 (1934). With the Governor enjoying
unfettered discretion to extend the term of the Act as
he sees fit, the duration of the Act could extend into
2021. That is what clearly tips it over the
constitutional precipice into the abyss of
unconstitutionality.
D. The Act and Regulations Violate Petitioners’ Free

Speech Rights.
The Act’s ban on the issuing of legal notices
such as a notice to quit is also an infringement on
Petitioners’ constitutional right to free speech. As
discussed above, the Act prohibits rental property
owners and property owners from (1) terminating any
tenancy, or (2) sending “any notice, including a
notice to quit, requesting or demanding that a tenant
45
of a residential dwelling unit vacate the premises.”
See Act, §3(a)(ii). This provision impermissibly
burdens and censors Plaintiffs’ speech. The First
Amendment prohibits states from restricting speech
because of its message, its ideas, its subject matter,
or its content. Reed v. Town of Gilbert, Ariz., 135
S. Ct. 2218, 2224 (2015). Content-based restrictions
are presumptively unconstitutional and may be
justified only if the government proves they are
narrowly tailored to serve a compelling state
interest. Id. A restriction on speech is “content
based” if it “applies to particular speech because of
the topic discussed or the idea or message expressed.”
Id. at 2227. Courts consider whether the law “on its
face draws distinctions based on the message a speaker
conveys.” Id. (internal quotes omitted). Such facial
distinctions may identify a particular subject matter
to be restricted, while others may identify the
speech’s function or purpose. Id. Even if the
challenged law does not make these kinds of facial
distinctions, it will still be considered content-
based if it “cannot be ‘justified without reference to
the content of the regulated speech,’ or [was] adopted
by the government ‘because of disagreement with the
46
message [the speech] conveys[.]’” Id. (quoting Ward v.
Rock Against Racism, 491 U.S. at 791 (1989)). Echoing
these fundamental principles, this Court just ruled
recently:
A prior restraint is permissible only where the

harm expected from the unrestrained speech is
grave, the likelihood of the harm occurring
without the prior restraint in place is all but
certain, and there are no alternative, less
restrictive means to mitigate the harm.
Shak v. Shak, 484 Mass. 658 (May 7, 2020).
Commercial speech, as opposed to pure political
speech, is still protected under the First Amendment,
albeit to a lesser degree. See Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 561
(1980). As Judge Stearns noted in the ACA case,
supra, “the mere fact that speech proposes a
commercial transaction does not mean that the First
Amendment drops altogether from the picture. A State
has no constitutional power to suppress truthful,
nonmisleading commercial messages.” ACA Int'l v.
Healey, No. CV 20-10767-RGS, 2020 WL 2198366, at *5
(D. Mass. May 6, 2020) quoting 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 501 (1996)(internal
quotation marks omitted, and offered for persuasive
value only).
47
This Court has similarly held that “a restriction
on commercial speech will not be upheld if it provides
only ineffective or remote support for the
government's purpose.” Bulldog Inv'rs Gen. P'ship v.
Sec'y of Commonwealth, 460 Mass. 647, 669–70 (2011)
quoting Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm'n of N.Y., 447 U.S. 557, 564 (1980)
internal quotation marks omitted).
In commercial speech cases, the four-part
analysis under the seminal U.S. Supreme Court case of
Central Hudson applies. At the outset, the court must
determine whether the expression is protected by the
First Amendment. For commercial speech to come within
that provision, it at least must concern lawful
activity and not be misleading. Next, the court must
ask whether the asserted governmental interest is
substantial. If both inquiries yield positive
answers, the court must determine whether the
regulation directly advances the governmental interest
asserted, and whether it is not more extensive than is
necessary to serve that interest. Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S.
557, 566 (1980).
48
Turning to the Central Hudson test, a notice to
quit or to terminate a tenancy is a form of non-
misleading commercial speech. It is a legal notice
that a tenant has done or failed to do something
legally required (i.e, pay rent) warranting
termination of a lease or tenancy. It is far from an
advertisement of a product or services or a corporate
public relations release. Moreover, a notice to quit
is required by the state in order to file a summary
process action. See G.L. c. 186, §11-13; Unif. Summ.
Proc. R. 2(d). Accordingly, it is protected
commercial speech. As for the second prong, the
Petitioners will not dispute for purposes of this
analysis that the response to the COVID-19 crisis is a
substantial governmental interest. The key question
becomes whether the statutory provision directly
advances the governmental interest asserted, and
whether it is not more extensive than is necessary to
serve that interest. This it fails to do. Indeed,
the ban on notices to quit is overkill, and could
discourage voluntarily financial workouts between
rental property owners and tenants.
As discussed previously, the issuance of a notice
to quit is a statutory prerequisite to filing a
49
summary process action. In many cases, it is the
first time a tenant is put on formal notice there is a
serious problem with their undertaking obligations
under the lease or tenancy. Often, it results in a
discussion between landlord and tenant about working
out a financial hardship situation, and avoiding court
altogether. Furthermore, by statute, tenants have
certain cure rights for non-payment triggered by the
receipt of a notice to quit. Tenants who receive a
14-day notice to quit for payment of rent under a
written lease may likewise avoid eviction altogether
by tendering the unpaid rent on or before date on
which a summary process answer is due. See G.L. c.
186, § 11. In a non-payment situation for a tenant at
will, a tenant can cure a payment default by tendering
the unpaid rent within 10 days of service of a 14-day
notice to quit. See G.L. c. 186, § 12. Also, under
standard form written leases, there are also cure
rights for “cause” situations triggered by the
issuance of a notice to quit – typically a seven (7)
day cure period. Virtually of these notices are
banned under the Act, which fundamentally alters the
landlord-tenant relationship and will allow tenants to
legally withhold rent without legal basis and also
50
continue to engage in potentially harmful or dangerous
conduct.26 This would create very dangerous situations
exacerbated by the COVID-19 pandemic.
Again, the recent challenge to the Attorney
General’s COVID-19 debt collection regulations in our
federal court is instructive. See ACA Int'l v.
Healey, No. CV 20-10767-RGS, 2020 WL 2198366, (D.
Mass. May 6, 2020). There, applying the Central
Hudson test, Judge Stearns ruled that the regulations’
prohibition on telephonic communication from debt
collectors was a violation of the First Amendment.
Judge Stearns found that the AG rules singled out one
group of litigants and imposed a “blanket suppression
order” on their ability to use what they believe is
their most effective means of communication, the
telephone. ACA, Slip op. at 17. The Act does the
26Petitioners recognize the exception in the Act for

allegations of criminal activity or a lease violation
“that may impact the health and safety of other
residents, health care workers, emergency personnel,
persons lawfully on the subject property, or the
general public.” However, there are many situations
that would warrant a “for cause” notice to quit which
would fall outside this limited exception. For
example, cigarette, marijuana or other illegal drug
use confined within a unit; keeping of an unauthorized
occupant; keeping of an unauthorized pet; violations
of cleanliness and sanitary requirements; causing
damage inside a unit, such as ruining walls, carpets
or flooding bathrooms.
51
exact same thing, or even worse, by banning virtually
every legally required notice to quit available to a
rental property owner to enforce a lease or tenancy at
will.
For all these reasons, the Act goes too far under
the First Amendment. At best, it provides “only
ineffective or remote support for the government's
purpose.” Bulldog Inv'rs Gen. P'ship v. Sec'y of
Commonwealth, 460 Mass. 647, 669–70 (2011).
E. The Regulations Compel Petitioners’ Speech In

Violation of the First Amendment.
Free speech also includes the right to refrain
from speaking. Janus v. Am. Fed’n of State, Cty., &
Mun. Employees, Council 31, 138 S. Ct. 2448, 2463
(2018). With all non-payment notices to quit
prohibited, the EOHED Regulations mandate a government
approved notice and language for any rental property
owner who opts to send a “missed rental notice” to a
tenant. Rental property owners who choose to send
missed-payment notices, at their own expense, must
state the foregoing, in pertinent part:
THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING

EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.
An emergency law temporarily protects tenants
from eviction during the COVID-19 emergency. The
purpose of this notice is to make sure you
52
understand the amount of rent you owe to your
landlord.
“For information about resources that may help

you pay your rent, you can contact your regional
Housing Consumer Education Center. For a list of
agencies,
see https://www.masshousinginfo.org/regional-
agencies. Additional information about resources
for tenants is available
at https://www.mhp.net/news/2020/resources-for-
tenants-during-covid-19-pandemic.”
Not only does a state agency mandate certain bold
type language, but it requires rental property owners
to provide governmental approved and sponsored tenant
advocacy websites in the notice itself as resource
guides to tenants.27 By “compelling individuals to
27The website www.masshousinginfo.org/regional-

agencies lists a number of federally and state funded
housing organizations which historically cater to
consumers and tenants, such as South Middlesex
Opportunity Council, Inc. and Metro Housing | Boston.
The website,
https://www.mhp.net/news/2020/resources-for-tenants-
during-covid-19-pandemic, is hosted by the
Massachusetts Housing Partnership, which describes
itself as a “statewide public non-profit affordable
housing organization, MHP works in concert with the
Governor, the Department of Housing and Community
Development and the state's other quasi-public housing
organizations. MHP was established in 1985 to increase
the state's overall rate of housing production and
work with cities and towns to demonstrate new and
better ways of meeting our need for affordable
housing.”
53
speak a particular message,” the Commonwealth is
engaged in content-based regulation of speech.
National Inst. of Family & Life Advocates v. Becerra,
138 S. Ct. 2361, 2371 (2018). The compelled statement
is similar to an advertiser’s disclosure, but worse
because it points tenants to organizations which have
been historically adverse to rental property owners.
Rental property owners who want to remind tenants of
their missed rent payments are governmentally
obligated to give tenants information which will
enable them to keep not paying their rent. This is
out of the Twilight Zone.
If the regulations were ordinary ones promulgated
pursuant to the Consumer Protection Act, G.L. c. 93A,
Petitioners’ rights would arguably be “adequately
protected as long as disclosure requirements are
reasonably related to the State's interest in
preventing deception of consumers.” Zauderer v. Office
of Disciplinary Counsel, 471 U.S. 626, 651 (1985).
This is no ordinary regulation, however, and was not
promulgated pursuant to c. 93A. It is an emergency
regulation, free from the notice-and-comment
strictures of the Administrative Procedures Act, G.L.
c. 30A, and supposedly promulgated to comply with the
54
Act, which is itself an emergency statute, passed with
no formal comments or hearings.
Again, the state has gone too far. The
Regulations’ provision on missed rent payment notices
should be struck down.
F. The Act Operates as a Temporary Regulatory Taking

of Real Estate Without Just Compensation In
Violation of Article 10 of the Declaration of
Rights and the Fifth Amendment of the U.S.
Constitution.
Article 10 of the Massachusetts Declaration of
Rights provides “whenever the public exigencies
require that the property of any individual should be
appropriated for public uses, he shall receive a
reasonable compensation therefor.” The Fifth
Amendment, Takings Clause, of the U.S. Constitution
provides: “private property [shall not] be taken for
public use, without just compensation.” The Takings
Clause applies to the states through the Fourteenth
Amendment. See Chicago, B. & Q. R. Co. v. Chicago,
166 U.S. 226 (1897).
The concept of a regulatory taking was discussed
in detail in Blair v. Dep't of Conservation &
Recreation, 457 Mass. 634, 641 (2010), where this
Court stated:
55
A regulatory taking, a concept adopted by the United
States Supreme Court for the first time in 1922,
arises not from the acquisition of an interest in
property by the government, but rather from a
regulation enacted under the State's police power that
severely limits the property's use. While most
restrictions on the use of private property do not
constitute a taking, when a regulation substantially
restricts the owner's use of the property, so that the
regulation “goes too far,” it may be deemed
a regulatory taking of that property for a public use.
See id. Whether a regulation “goes too far” is
determined ordinarily by a three-prong test. See Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 124–
125, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) (Penn
Central). Thus, courts consider (1) “the economic
impact of the regulation on the claimant”; (2) “the
extent to which the regulation has interfered with
distinct investment-backed expectations”; and (3) “the
character of the governmental action.” (some internal
citations omitted).
The operation of the Act, fairly read, is that
rental property owners have no legal recourse or
enforcement remedies to remove a non-paying tenant
while the Act is in effect. It cannot be reasonably
disputed that an eviction is one of, if not the most,
effective methods of converting an non-performing
rental property into a performing one. The Act stops
this usual turnover economic system. Accordingly,
every Massachusetts rental property owner with a non-
paying tenant is faced with the prospect of being
forced by the state to quarter a non-paying tenant for
at least 120 days, and possibly many more months if
Gov. Baker exercises his right to extend the Act.
56
That would amount to millions, if not, billions of
lost rent, and many months of state-forced occupation
of real estate, as a direct result of the Moratorium.
The fact that the Act contains a fig leaf provision
that tenants remain responsible for paying rent does
not alter this analysis. The critical issue is how
the Act operates as applied. Tenants who have not
been able to pay rent due to the COVID-19 crisis are
unlikely to suddenly have the funds to pay months of
accrued rent. So most rental property owners will
likely choose not to pursue recovery given the cost,
expense, and unlikelihood of recoupment in small
claims or district court.
What the Act really does is forcibly impose an
unfair economic policy of transferring the financial
burden of the COVID-19 crisis from tenants to private
property owners, without providing any state financial
aid to compensate rental property owners for those
losses. In the words of the U.S. Supreme Court, the
Moratorium seeks to “forc[e] some people alone to bear
public burdens which, in all fairness and justice,
should be borne by the public as a whole.” Armstrong
v. United States, 364 U.S. 40, 49 (1960). For these
reasons, the Act operates as an unconstitutional
57
regulatory taking in violation of Article 10 of the
Declaration of Rights and Fifth Amendment of the U.S.
Constitution.
G. The Act Is An Unconstitutional Impairment of

Petitioners’ Contract Rights Under The Contracts
Clause of the United State Constitution.
Article 1, Section 10, Clause 1 of the U.S.
Constitution states: “No State shall. . . pass any. .
. . Law impairing the Obligation of Contracts.” This
is commonly referred to as the Contracts Clause. The
governing principles on the Contracts Clause are
stated in United States Trust Co. v. New Jersey, 431
U.S. 1 (1977), and Massachusetts Community College
Council v. Commonwealth, 420 Mass. 126 (1995).
The contract clause is “one of the few express
limitations on [S]tate power.” Campbell v. Boston
Hous. Auth., 443 Mass. 574 581 (2005), quoting United
States Trust Co. v. New Jersey, supra at 14. It
“limits the power of the States to modify their own
contracts as well as to regulate those between private
parties.” Id.
As outlined in Campbell v. Boston Housing
Authority, a Contract Clause violation exists only if
several factors are satisfied. “The first
consideration under the Contract Clause is whether
58
subsequent State action has in fact impaired any
enforceable contractual obligation.” Id. at 581. The
next inquiry is “whether the impairment is
substantial.” Even if a substantial impairment
exists, the impairment still may be constitutional if
“it is reasonable and necessary to serve an important
public purpose.” The State carries the burden of
making this latter showing. Id. In Campbell, this
Court found that the retroactive application of
statutory amendments which insulated public employers
from liability for failure to conduct health or safety
inspections substantially impaired rental assistance
contracts, of which a tenant was third-party
beneficiary. Id. at 583.
As the Supreme Court has stated, “[n]othing can
be more material to the obligation than the means of
enforcement . . . The ideas of validity and
enforcement are inseparable, and both are parts of the
obligation, which is guaranteed by the Constitution
against invasion.” Home Building & Loan Association
v. Blaisdell, 290 U.S. 398, 429-30 (1934).
In this case, the Act has undisputedly impaired
the Petitioners’ lease agreements with their tenants,
and by extension, has impaired thousands of leases
59
between tenants and rental property owners throughout
the Commonwealth. The Act does so by unconditionally
and indefinitely delaying a rental property owner’s
otherwise established right to timely pursue an
eviction against a breaching tenant, and by
prohibiting a rental property owner from even sending
a notice to quit or termination of tenancy for any
number of material breaches of a lease. The right to
evict and the right to declare a contractual default
are core to every residential lease contract, and any
material interference with those rights and remedies
is a substantial impairment of that contract. Indeed,
interfering with the right to evict for non-payment of
rent is arguably the most substantial impairments of
any lease agreement from a rental property owner’s
point of view. The payment of rent goes to the very
heart and most basic purpose of the legal relationship
between rental property owner and tenant. With
Massachusetts already one of the most highly regulated
states in the nation for rental housing, the state
cannot constitutionally eviscerate the core foundation
of a lease without providing reasonable compensation
to affected owners. See, e.g, Home Building & Loan
Association v. Blaisdell, 290 U.S. 398, 429-30 (1934).
60
The Moratorium does not provide any meaningful
safeguards with respect to the right to evict or
declare a lease default. It simply imposes a blanket
statewide prohibition on both the right to evict and
the right to formally terminate a lease or tenancy.
The U.S. Supreme Court, in W.B. Worthen Co. v.
Kavanaugh, 295 U.S. 56 (1935) (Cardozo, J.), struck
down an Arkansas law, similar to our Eviction
Moratorium, enacted during the Great Depression that
sought to impose substantial delays to bondholders’
foreclosure remedies. The Court explained how the
delay in the core remedy of foreclosure equated to a
substantial impairment of the contract:
To know the obligation of a contract we look to

the laws in force at its making. . . . Under the
statutes in force at the making of the contract,
the property owner was spurred by every motive of
self-interest to pay his assessments if he could,
and to pay them without delay. Under the present
statutes he has every incentive to refuse to pay
a dollar, either for interest or principal.
Id., at 60
The same is true here as the Act imposes an unknown
and indefinite delay upon the core remedy of eviction
pursuant to a residential lease.
Lastly, in Massachusetts Community College
Council v. Commonwealth, 420 Mass. 126 (1995), this
61
Court found a Contracts Clause violation where a
state-imposed furlough law impaired state employees’
collective bargaining agreements. This Court reasoned
that if there was a more moderate course of action
which would have served the state’s interest equally
well, then that is a clear indication of a Contracts
Clause impairment. A wholesale shutdown of the
state’s entire summary process system is the most
drastic of remedies for the financial impact of the
COVID-19 crisis on the state’s tenants. The most
obvious alternative is a legislative financial aid
package to tenants with a COVID-19 related economic
hardship. Or, on the other side of the equation, a
financial aid package for rental property owners who
are not receiving rent. Instead, the Legislature
decided to take the path of least resistance and
target the political “bad guys” – greedy rental
property owners, as they love to call our clients.
This may be politically expedient, but it does not
survive constitutional scrutiny.
H. Petitioners Will Suffer Irreparable Harm If

Injunctive Relief Is Not Granted.
It is well established that the loss of First
Amendment freedoms and other constitutional rights
62
constitutes irreparable injury, by definition, and
obviates the need to make an additional showing of
irreparable harm. See Maceira v. Pagan, 649 F.2d 8,
18 (1st Cir. 1981); Sindicato Puertorriqueno de
Trabajadores v. Fortuno, 699 F.3d 1, 10-11 (1st Cir.
2012); see also T&D Video, Inc. v. City of Revere, 423
Mass. 577, (1996); Goodridge v. Department of Public
Health, 440 Mass. 309 (2003).
Aside from the numerous constitutional violations
asserted and established by the Petitioners, it should
not be seriously disputed that they will suffer
irreparable harm if the operation of the Act is not
enjoined immediately. Every month which goes by the
Petitioners will not receive any rental income, while
being forced to have non-paying tenants occupy their
real property. Petitioners will remain obligated to
pay their mortgages, real estate taxes, insurance, and
water/sewer used by non-paying tenants, and to
maintain their properties and comply with the state
sanitary code, while being deprived of the revenue
required to do those things. As noted above, this
one-sided obligation and burden will continue
indefinitely and quite possibly into 2021. Many small
rental property owners, especially those on fixed
63
income like Petitioner Smith, rely on rents to afford
to live in their own homes. If 4-6 months or more go
by without rent payments and the ability to evict,
these folks will be in dire financial straits. The
same is true for owners dealing with certain “for
cause” situations which do not fit into the narrow
exception under the Act. They are hand-cuffed by not
being able to evict problem tenants, and dangerous
situations will result. Massachusetts law is well
established that real estate is “unique” and therefore
appropriate for equitable remedies to address
violations concerning property rights. See McCarthy
v. Tobin, 429 Mass. 84, 89 (1999). The Petitioners’
irreparable harm is established in this important
case.
With respect to any claimed irreparable harm by
the state or the class of tenants the Act seeks to
protect, it is important to note that the Act targets
the financial impact of the COVID-19 crisis, not the
public health aspect of it. The Act is not a public
health order such as a requirement to wear masks in
public, to socially distance, or to limit public
gatherings of 10 or more people. Thus, the line of
cases invoking a state’s police power to address
64
public health issues are inapplicable here. See, e.g.
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (holding
that state under police power could mandate smallpox
vaccine over petitioner’s objections). The Court in
Jacobson recognized as much, holding that courts may
review a measure that has “no real or substantial
relation” to protecting the public health or “is,
beyond all question, a plain, palpable invasion of
rights secured by the fundamental law.” Id. at 31.
The Act falls within this category of a law not
reasonably related to true public health impacts and
goes way over the line in violating numerous
fundamental constitutional rights held by all
citizens. The Petitioners are not discounting the
financial impact upon tenants due to the COVID-19
crisis. Many of them, too, are also facing similar
financial impacts. However, the problem with the
basic concept of the Act is that it unfairly shifts
the burden of financial impact from tenants to the
state’s rental property owners, while at the same
time, imposing an unprecedented assault on such
fundamental constitutional rights as the right to
petition and free speech. The state was free to
establish a rent stabilization fund or similar
65
financial remedy for a financial crisis, but it chose
not to do that.
Moreover, the perceived temporary nature of the
Act does not alter the irreparable harm analysis.
First, there is no such thing as a “temporary” prior
restraint on free speech. See, e.g, Nyer v. Munoz-
Mendoza, 385 Mass. 184, 188 (1982). Second, with
respect to access to the courts, the Act, provides
for a 120 day long moratorium,28 but can be extended
by Gov. Baker for an unlimited number of 90-day
incremental periods. The Uniform Summary Process
Rules set forth the “just, speedy and inexpensive
determination of every summary process action. See
Unif. Summ. Proc. R. 1. Under these Rules, a
plaintiff in a summary process case can have a trial
date and resolution of a case as quickly as 17 days
from the service of a summary process summons and
28Theoretically, it is possible that the Governor

could lift the COVID-19 State of Emergency before the
120 day period is up, but that appears to be highly
unlikely given the current state of the crisis and the
fact that the State of Emergency is linked to federal
disaster funding and several other legislative bills
dealing with the crisis. See
https://www.mass.gov/news/baker-polito-administration-
announces-federal-disaster-declaration-for-covid-19-
response
66
complaint. Id. Rule 2. The Act’s 120 day moratorium
period, therefore, imposes a 150% increase in the
time a typical summary process case is heard. That
should be a per se violation of the right to petition
in the eviction context. Moreover, a four to six
month delay in all summary process cases statewide
will wreck absolute havoc in the rental housing
market. Take that delay, then extrapolate it to
thousands of rental properties and owners across the
state. This will also have spill-over effects into
the purchase market because tenants will be able to
essentially “squat” in place, and new buyers and
their families who have purchased occupied homes will
not be able to move in.
Lastly, the courts own administrative actions in
dealing with the COVID-19 crisis such as delaying
jury trials likewise do not affect the irreparable
harm analysis. Putting aside the question whether
the various COVID-19 standing orders violate the
right to petition and access the courts, the standing
orders do not provide for a blanket prohibition on
summary process actions and issuance of notices to
quit, as the Act provides. Petitioners believe that
the courts are better suited and equipped than state
67
representatives to deal with the particular public
safety challenges raised by the COVID-19, and that
they are doing so admirably. The courts are free to,
and have been, employing innovative measures to move
cases along, such as Zoom video conferences, and they
are already working well. There is no reason that
the Housing Court could not begin hearing summary
process cases, or at least hear motions in pending
cases, through video-conference or telephone
hearings. Cases could also be screened for mediation
with housing specialists and that could be done via
Zoom as well, with agreements for judgment filed
electronically.29 But the Legislature has taken away
such flexibility, in violation of Article 30.
I. Injunctive Relief Will Serve the Public Interest.
Injunctive relief will also serve the public
interest by upholding the fundamental state and
federal constitutional rights asserted by the
Petitioners in this case, and given the broad impact
the Act has on rental property owners statewide.
While we recognized the devastating impact of the
29Moreover, Housing and District Courts already have

the statutory power to stay the issuance of executions
for possession if a tenant shows good cause or
hardship. See G.L. c. 239, § 9-10.
68
COVID-19 crisis, the Act is arguably the most
unprecedented legislative assault against the
constitutional rights of rental property owners in the
history of the Commonwealth. It is also unprecedented
in terms of its interference with the operations of
the Trial Court, and no doubt marking the beginning of
a slippery slope of legislative interference of
judicial decision making, whether in a potential
second wave of COVID-19 infections or the next
economic crisis.
Lastly, rental property owners seldom desire to
evict good tenants who are having legitimate financial
distress. Petitioners, and virtually all rental
property owners, have always been willing to work with
tenants in times of financial distress. The
Moratorium is a drastic over-reaction for a problem
that may very well not exist. That is, the Act was
intended to prevent a flood of evictions for
nonpayment, but that was unlikely to happen. Rental
property owners would much prefer to work with good
tenants than to try to find new tenants. Also, by
postponing the ability to evict in cases where a
tenant should be evicted, the Act guarantees a flood
of evictions the moment the Moratorium expires. This
69
will create months and months of backlogs in our
already over-burdened Housing and District Courts, and
make the already long eviction process even longer,
during which tenants may continue to avoid paying rent
and rental property owners will continue having to
bear the burden by themselves. While well intended,
the Act was not properly vetted for constitutional
compliance, and was rushed into law in a panic during
a global pandemic without much thought as to how it
would drastically impact the entire rental housing
market in the Commonwealth. It must be struck down.
Conclusion and Relief Requested
For the reasons stated above, Petitioners pray
for the following relief:
1. Accept this Emergency Petition under G.L. c. 211,

§ 3, G.L. c. 214, § 1, and G.L. c. 231A, § 1,
schedule a telephonic or video-conference hearing
as necessary, and issue all Summonses and Orders
of Notice as is necessary to administer the case.
2. Order, pursuant to Mass. R. Civ. P. 4 and all

applicable COVID-19 Standing Orders, that service
of process of all pleadings and notices in this
case may be effectuated on all Defendants through
e-mail or Federal Express upon the Attorney
General’s Office.
3. Issue a binding declaratory judgment pursuant to

G.L. c. 231A, that Chapter 65 of the Acts of
2020, Sections 1, 3, 6, and 7 are
unconstitutional in violation of Article 30 of
the Declaration of Rights.
70


unconstitutional in violation of the right to
petition under the First Amendment of the United
States Constitution.

unconstitutional in violation of the right to
free speech under the First Amendment of the
United State Constitution.

unconstitutional as a “taking” without just
compensation in violation Article 10 of the
Declaration of Rights and the Fifth Amendment of
the United States Constitution, and award the
Petitioners and any certified class under Mass.
R. Civ. P. 23, damages in the form of “just
compensation” for any taking pursuant to G.L. c.
79, G.L. c. 12, § 11I, and 42 U.S.C. § 1983.

2020, §§ 1, 3, 6, and 7 are unconstitutional as
an impairment of contracts in violation of the
Contracts Clause of the United States
Constitution.

G.L. c. 231A, that 400 C.M.R. 5.0: COVID-19
71
Emergency Regulations are unconstitutional in
violation of the right to free speech under the
First Amendment of the United State Constitution.
11. Issue a temporary restraining order, followed by

a preliminary and permanent injunction, enjoining
the Defendant Chief Justices and all Clerk’s
Offices within their authority, supervision and
control, from enforcing the provisions of the Act
with respect to summary process actions under
G.L. c. 239 in any court of the Commonwealth.
12. Issue a temporary restraining order, followed by

a preliminary and permanent injunction, enjoining
the Defendant Executive Office of Housing and
Economic Development from enforcing the
provisions of the Act and 400 C.M.R. 5.0 with
respect to summary process actions and notices.
13. Pursuant to Mass. R. Civ. P. 23, and in the

Court’s discretion to effectuate injunctive and
equitable relief, certify the Petitioners as
class representatives of all similarly situated
rental property owners and rental property owners
in the Commonwealth who have been and are
impacted and aggrieved by the enforcement of the
Act and Regulations.
14. Issue an order granting the Petitioners their

attorneys’ fees and costs pursuant to 42 U.S.C. §
1983 and G.L. c. 12, §§ 11I.
15. Order any other appropriate relief as is

equitable and just.
Respectfully submitted,
MITCHELL MATORIN and LINDA SMITH

By their attorneys,
_/s Richard D. Vetstein__________

Richard D. Vetstein, BBO #637681
Vetstein Law Group, P.C.
945 Concord Street
Framingham, MA 01701
Tel: (508) 620-5352
rvetstein@vetsteinlawgroup.com
72
/s/ Jordana R. Roubicek
Jordana R. Roubicek, Esq.
BBO# 667842
134 Main Street
Watertown, MA 02472
Tel: 617-379-6669
jordana@jrglegal.com
Dated: May 29, 2020
Certificate of Service
I, Richard D. Vetstein, Esq., a member of the Bar

of this Court, hereby certify that on this day, May
29, 2020, the attached Petition and all accompanying
pleadings were electronically served on counsel for
the Defendants via e-mail.
/s/ Richard D. Vetstein

Richard D. Vetstein, Esq.
73

Matorin V Chief Justice, SJC Petition Challenge Mass. COVID-19 Eviction Moratorium

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Matorin V Chief Justice, SJC Petition Challenge Mass. COVID-19 Eviction Moratorium

Uploaded by

Copyright:

Available Formats

COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court

MITCHELL MATORIN and LINDA SMITH

TIMOTHY SULLIVAN, in his Official Capacity as Chief

EMERGENCY PETITION FOR RELIEF PURSUANT TO G.L. c. 211,

Richard D. Vetstein, Esq. Jordana Roubicek, Esq.

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . iii

REASONS WHY RELIEF IS APPROPRIATE

A. The Act Violates the Separation of Powers

B. The Act Violates the Petitioners’

C. The Act Is An Unconstitutional Infringement

D. The Act and Regulations Violate

E. The Regulations Compel Petitioners’ Speech

F. The Act Operates as a Temporary

H. Petitioners Will Suffer Irreparable Harm

I. Injunctive Relief Will Serve the

CONCLUSION AND RELIEF REQUESTED. . . . . . . . . . 70

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . .73

ACA Int'l v. Healey, No. CV 20-10767-RGS,

Blair v. Dep't of Conservation & Recreation,

Bulldog Inv'rs Gen. P'ship v. Sec. of

Campbell v. Boston Hous. Auth., 443 Mass. 574 581

Central Hudson Gas & Elec. Corp. v. Public Serv.

Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226

Commonwealth v. Cole, 468 Mass. 294, 301 (2014). . 31

Committee for Public Counsel Services v.

DeJonge v. Oregon, 299 U.S. 353 (1937). . . . . . . 42

Duracraft Corp. V. Holmes Products Corp., 427 Mass.

Doe v. Sex Offender Registry Bd., 459 Mass. 603

Ellis v. Department of Indus. Accs., 463 Mass. 541

First Justice of the Bristol Div. of the

Goldstein v. Galvin, SJC-12931 (Apr. 17, 2020). . . 9

Goodridge v. Department of Public Health, 440

Haas v. Spencer, 30 Mass. L. Rptr. 623 (Mass.

Home Building & Loan Association v.

Jacobson v. Massachusetts, 197 U.S. 11 (1905). . . .65

Janus v. Am. Fed’n of State, Cty., & Mun.

John T. Callahan & Sons, Inc. v. City of Malden,

Maceira v. Pagan, 649 F.2d 8 (1st Cir. 1981). . . . 63

Massachusetts Community College Council v.

McCarthy v. Tobin, 429 Mass. 84 (1999). . . . . . . 64

McDonald v. Smith, 472 U.S. 479 (1985). . . . . . .43

NAACP v. Button, 371 U.S. 415 (1963) .. . . . . . . 43

National Inst. of Family & Life Advocates v.

Nyer v. Munoz-Mendoza, 385 Mass. 184, 188 (1982). .66

Opinion of the Justices, 234 Mass. 612 (1920). . . .35

Packaging Industries Group v. Cheney, 380 Mass.

Querubin v. Com., 440 Mass. 108 (2003). . . . . . . 32

Shak v. Shak, 484 Mass. 658 (May 7, 2020). . . . . .47

Sheriff of Middlesex Cty v. Commissioner of

Sindicato Puertorriqueno de Trabajadores v.

T&D Video, Inc. v. City of Revere, 423 Mass. 577

Town of Brookline v. Goldstein, 388 Mass. 443

Town of Hanover v. New England Regional

United Mine Workers of Am. v. Illinois State

United States v. Bollman, 1 Cranch, C.C. 373

United States Trust Co. v. New Jersey, 431 U.S. 1

Ventrice v. Ventrice, 87 Mass. App. Ct.

W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935). 61

Zauderer v. Office of Disciplinary Counsel,

Mass. Const. Pt. 1, art. 10. . . . . . . . . . . 56

Mass. Const. Pt. 1, art. 11. . . . . . . . . . . 38

Mass. Const. Pt. 1, art. 29. . . . . . . . . 2, 38