In discussing Avila v. Boston Public Health Commission, Bob and Jordana Greenman talk about whether Boston’s eviction moratorium violates “due process of law” and how campaign rhetoric may have led to the implementation of this law. 

welcome to legal judgements, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I'm Bob Stetson, a Boston-based trial lawyer at burn cough Goodman. Today, we're looking at another pandemic related case. A challenge to Boston's recent eviction moratorium with me today is Jordana Greenman. Jordana has become something of a legal Crusader on behalf of businesses harmed by governmental restrictions in the wake of the pandemic.

Welcome Jordanna. Thanks for joining.

[00:02:59] Bob: So [00:03:00] let's start with the decision by the housing court judge presiding over this case, struck down the eviction moratorium in a manner that struck similar tones to the Supreme court's decision striking down the vaccine mandate. ostensibly, the court held that the Boston public health commission lacked the power to issue such a sweeping law because the Massachusetts legislature had not conferred such broad authority in it by its enabling act.

Which generally refers to some infringement of a constitutional right. Now, I know that you leveled some constitutional challenges in this case, but quite frankly, I am not certain that's what the court was referring to when it mentioned due process. So the question is how did you interpret the court's reference to due process and where did that due process concept whether procedural substantive or both fit into your litigation strategy?

Get your piece of paper that says you won. Wait your 10 days and get your other piece of paper that says that you can have a sheriff or Constable do something, but you can't do that. So in effect litigants, there is no due process for you because you can't rely on what our judges are saying anyway. And even if you win your case and the process that was due was had by all parties, there's nothing that you can do now to enforce this judgement.

It doesn't matter if you win. It doesn't matter if you lose this court's orders have no effect under this particular moratorium.

Perhaps even broader than the federal government in many respects in this decision, the housing court judge held that a municipal agency had no power to override it carefully constructed legislative scheme, namely the legislative procedures governing evictions. Can you [00:07:00] take us through that analysis and perhaps also explain what the home role amendment is and how that factored into this decision.

In the Grace Case, in the early seventies, the town of Brookline was concerned for its citizenry that was living in buildings that were going to soon be converted to condominiums and did not want people to be summarily uprooted. If just because I am the owner of this multi-family building, I want to convert it to condo.

And they still though cannot conflict with state law all at the same time. And that was a critical element for us, is that the Boston public health commission and what needs to be understood is that shortly after we filed this case, using Janet Avila as a plaintiff, we got an intervention motion from greater Boston legal services on behalf of the tenant in that particular summary process case. The greater Boston legal services has played a very large role in the litigating of this case. More so I would say than the Boston public health commission, and certainly more than the city of Boston that at one point moved to be dismissed from the case altogether. They brought up two cases in their main argument Grace versus the Town of Brookline and then the Trinel Case. Both [00:09:00] of which are very fact specific and procedurally different in Boston in the Boston moratorium, there was no attempt to go to the legislature and say legislature we're the city of Boston and we're the densest population in the state. And there's all these people that we think might be evicted.

We are concerned we would like permission to go and make this rule. No, what happened was in the midst of a very heated, political debate, when the mayoral race for Boston was going on the then acting mayor, Kim Janey was getting a lot of pressure from one of her opponents, not Michelle Wu, but Campbell that not enough was being done about evictions.

The statute allows us stay in eviction cases. This stay was more automatic. If you are converting your condominium, you have to wait between six and 12 months to be able to evict somebody that does not even sound that unreasonable to me. There's a finite period of time. It's fair because you're doing something new with the property.

It's a little bit different. All of landlord tenant law in a sense throws away all rights under the contracts clause. Cause these pieces of paper that we signed called leases don't really mean that you can go in at the end of the lease and remove people. I think the other question was about the enabling statute for the board of health.

[00:12:28] Jordana: Yes, it did not exist and it was not even sought. If you saw the YouTube video that I think Kim Janey posted that day, it appears to be very much a gut reaction.

And there was an order that a form that would be attached to notices to quit. That would have big capital letter language, that this is just a notice. You don't have to leave your home and provide information about rental assistance resources. And we started to have to fill out a form when we filed summary process cases that said the date that form was served and certified, that form was also served.

It took a lot of the courts, a long time to get off the ground and get people dates. You had a massive, at least I would say six weeks of people who were scheduled to be heard at the end of March of 2020, when the courts shut down before chapter 65, 1 into place that we're going to go first. So the whole scheme of what used to be a quote "summary" unquote process had to be overhauled.

The city of Boston, for whatever reason, in a part of COVID, that was much more novel if you will, than it is now. They talk about this novel Corona virus. It's no longer novel, it's now 2022. It was 2021 when this Boston moratorium came about. But one of the things we pointed out in our brief was that the COVID 19 is not a static event.

That we're all still, sitting huddled in our homes. People are going outside, people are doing things. then chapter 2 57 and the CDC, which have a lot of similarities were in existence at the same time. And something about the CDC moratorium expiring or being struck down while 2 57 is still in effect was a really big deal for the city of Boston.

It's now going to be akin to chapter 65, which means that there are no evictions. And I know that you can read about this carve-out for health and safety reasons. It's I don't know if I would call it a red herring or just plain wrong as far as I know. And I am very frequent practicer in the housing courts. No such eviction took place during chapter 65 and no such eviction has taken place.

Sure. But it's not the same thing. It's not a summary process. There's no real description of what that health and safety reason is. For instance. If somebody is smoking and an apartment, and another tenant has asthma that is not considered a health and safety issue that rises to the level of defeating this type of moratorium.

So on the ground, there's just no evictions. And it's created this in terrorem feeling of constables who don't want to do things and landlords who are scared. But back to your question, So it came to be, they did it and snap your fingers. Okay. Everybody was excited. Finally, this is ending people like Janet Avila.

We had our first hearing on March 25th, 2021. And the judge said, yes, she violated the agreement for judgment that she signed in 2019. And yes, you get a judgment, but your judgment is subject to the CDC moratorium. And you can do discovery to determine whether the tenant has applied for raft or done anything else.

It only had the amount owed from 2019 on it, but that was just, you know, a typographical administrative error. But here, this woman is who's waited all this time since 2019 and this particular tenant stopped paying in 2018 and she finally can get her house back. It's her house. She's not really a business person.

The next day he called back and said, I'm sorry, I can't do this. again, there was no law that played into it. And if you read the moratorium itself, it lacks any enforcement mechanism. It looks like a dear public landlords and other people associated with landlords. We are seeking your compliance with this order that we have no legal basis to make.

And then off, we went into the sunset of a lot of me aggressively trying to convince clients to join a lawsuit, promising them, they don't have to pay for it. This is all for the good of landlord. For the better good it's for the good of the law and taking a stand, everybody was scared.

We wanted initially to include Somerville, but my Somerville execution sort of mooted itself when the tenant vacated the property. So we didn't have really standing in Somerville anymore. Because Boston and Somerville both go to this same court. The Eastern housing court would use to be called the Boston housing court.

These used to be administratively allowed by the clerk's office. And the Eastern housing court stopped that because they said there's something going on. And the judges were dying for somebody to Mount a challenge, but everybody was just too scared. And all of the bigger landlords don't want their name out there because in the public image probably looks like, oh these people just all want to evict everybody and throw everybody onto the street.

Nowhere does this do this. And one of the best parts about it is that the moratorium was twofold. It says one, you can't evict anybody. Two. If you want to access a tenant's apartment, you need to give 48 hour notice and you need to follow all of the COVID protocols. Doesn't that sound reasonable? Yes, of course it does, because it sounds like it's directly related to spreading disease and people getting sick and COVID-19.

[00:24:36] Bob: So you touched on so many different points of this very rich litigation. You talked on the political considerations, you talked on the timeline of these moratoriums, the impact on landlords. You talked on the enforcement mechanisms and how that played a role in this. [00:25:00] You talked about fear on behalf of landlords and those assisting with evictions, I do want to touch on all of those things, but I want to go back to the last point that you touched on, which is that the authority, the enabling act. Now this case is being appealed. And as we know in the last week or so, the single justice of the appeals court heard oral argument on a motion to essentially stay the housing court judges decision pending that appeal. Now the Boston public health commission's position or their defense, I would say is based on several statutes. No, of course they're disagreeing with your contention that was adopted by the housing court judge, that there [00:26:00] was no authority for this sweeping law and in particular, the Boston public health commission has cited mass general laws chapter one, 11, section 31, which authorizes local boards of health to issue quote, reasonable health regulations. The housing court found that a regulation that overrides a comprehensive legislative scheme such as the eviction procedures that we've been talking about today can not be deemed quote "reasonable". And therefore that statute offered no viable grounds for justifying the legality of this moratorium. However, the appeals court judge noted that the mass legislature amended that statute during the pandemic and actually broadened it a bit to address emergency situations in particular, the [00:27:00] new portion of the statute authorized, and I quote "such actions as the board of health deems necessary to address the emergency," end quote. Jordanna, why was that increased authority insufficient to authorize what the Boston public health commission did here.

They can be of any demographic and they just can't be evicted. That is not reasonable. It was not [00:28:00] reasonably tailored to meet the need. I'm not suggesting that I would be okay with any moratorium, but had it said in the event that you, whereas there's a health emergency and whereas we're the board of health.

And whereas we need to create emergency orders. And whereas if you are a litigant in an eviction case and you win your case and you want to evict your tenant, you need to have yourself tested for COVID. You need your tenant to be tested. You need your Constable to be tested. Everybody needs to wear masks and gloves while they're carrying out an eviction.

So it didn't appear as an emergency order. Homelessness has always been an emergency. The fact that there are people who are becoming homeless or a risk of homelessness I has always been an emergency and always will be. The fact that it does not address any of the health related issues in the order itself makes it unreasonable.

And the fact that you have to wear gloves and masks and give your tenant 48 hours is reasonable because that is created in a reasonable manner. And it addresses an immediate concern. The concern of tenants being evicted and becoming homeless is a general concern. It's not an immediate concern.

The sweeping-ness of it, I think is what made it so unreasonable and so untenable and an stomachable.

[00:31:01] Jordana: October 17 or 18, it was a Sunday. So the 18th, the monday.

In the sense that it was really related to housing relief. It wasn't a broad based moratorium prohibiting all evictions. The Boston moratorium that we're talking about was basically one in a long chain of events that ostensibly forced landlords to subsidize. Certain public health policies to prevent the spread.

You're talking about somebody that depends on the use of her property for her livelihood in order for her to survive. And all of that this moratorium was still not challenged right away. And you talked a little bit about the difficulties there in trying to get the clients to sign on to this.

[00:33:38] Jordana: That's a very good question. And I think. That we had a similar issue in the federal litigation last year, but just to focus on this, you have two aspects here. We initially discussed having just landlords involved and then added the idea of having a Constable and a moving company involved just like [00:34:00] last year, we could not get people like Equity Residential , Wynn Residential, Avalon Bay... A lot of these companies signed on last year to the idea that they would agree not to evict anybody until I think it was January of 2021 or something like that. A lot of those companies, number one, they have the financial backing to sustain the losses. They have the insurance to sustain the losses and the cause based eviction cases, I think happened a little bit less often in these places. Wynn Residential mostly I believe has a lot of project-based facilities, and when you have project or mobile voucher, section eight benefits, I think those people really fared the best during 2020, anybody who does take section eight tenants were still being paid because the government never stopped paying.

But what the landlords were afraid of was if we put our name on this complaint, The next thing that's going to happen is inspectional services is going to rain down. Holy moly on us. They are going to come to our properties. Even if the tenants don't ask them to, they are going to find chipping paint, or they are going to cause us to suffer because we will be putting our names out in the public to get attention.

You need bulk business to make money. That way, where they do make more money is when an eviction is actually carried out or levied as it's called and they get a moving company involved. But if they get their license pulled by the Mayor, Then they don't get to have a livelihood anymore. And so with the exception of maybe a Constable who would have a contract with Equity or Avalon bay, they just don't have enough work from landlord, John Doe in Mattapan to take that risk.

People like Janet Avila and people like Patrick Odeboy and Antonio Lepping who another plaintiff that we added, they are providing affordable housing. For instance, one of our plaintiffs, Antonio Leppa owns rooming houses. Or, bordering on rooming houses. He has three [00:38:00] apartments per floor, three rooms per floor, and then they have a shared kitchen and he charges something like $700 a month to live there and it's in Boston and we're can you get that?

And so everybody was just too nervous to go forward and put their name on it, all of the big players. And it was up to the little guys who suffered the most to do this.

Because I heard that argument again when I watched the oral argument with the appeals court. And again, I think that there is a very convincing argument to be made there. And I'd like to understand why it's so important in this litigation.

These people, these small landlords have been being told that there was this quote, temporary unquote of inability to evict people for temporarily close to two years now. I think that brought back a point that I [00:40:00] brought up earlier, which was that from October 18th, 2020, till beginning of December, 2020, there was nothing in Boston except for the CDC moratorium.

And they think it is hard to argue that the CDC moratorium, as it translates into chapter 2 57 in Massachusetts is not arguably somewhat reasonable. I was very successful in defeating. I don't know, probably 90% of the tenant declarations I got because the people were just plain lying. But the fact that the city of Boston at the right, right when the actual eviction moratorium for the state ended, didn't see fit to do anything, even bring it.

Overall, it's not, it's not a terrible thing that people are doing what they're supposed to be doing. And if the only reason you really need to evict somebody is because of money and you can get the money. Great. But this sort of oh my God, the CDC moratorium is over. And chapter 2 57 actually probably does more for tenants anyway, but we have to have this overall ban on evictions.

We have to ban evictions that weren't banned before we have to ban evictions for people. I have a client who I absolutely cannot name, but who bought a property in I don't know, July and got started to try to talk to the tenants living there because she needed to move in. She got an FHA loan. She can not move in.

There's something else going on behind the scenes because what it's done is it's a reenactment of chapter two and chapter 65 in Boston. And there's also a similar one in Somerville and Malden. All of the other cities and towns let their various moratoria expire. Most of them expired on their own 45 days after the end of the declaration of emergency, which Baker lifted in October of 2020.

So this is the last question. Why did you decide to wage this battle here in the housing court and how, if at all, did that venue impact your strategy?

[00:44:00] Challenge last year, we initially brought it in superior court and we'll actually, we initially filed a petition with the SJC. And about a month later, we got kicked down to superior court and then we waited and we waited more. And then we waited more and we waited and we waited. And while we were waiting, we decided that we shouldn't be waiting anymore.

And we filed in federal court where things took on a life of their own, and we I forgot about the state court litigation. We did what we needed to do, but it wasn't going anywhere. It wasn't leading in good direction. There was no emergency looked at by the superior court in terms of seeking injunctive relief and timelines.

Also very personally that this is my home court. This is where I grew up. It's where I tried my first case. It's where I know the judge is it's where I know the litigants. It's where I feel comfortable in the hallways. And just knowing from my experience that every case is different and every situation is different.

[00:46:12] Bob: Jordanna thank you so much for your time today.

[00:46:16] Bob: And best of luck on the appeal.

[00:46:20] Bob: That's our show. Check out the show notes for more information on today's case. Also, if you are involved in an interesting civil case or know about one that you think would be a good topic for the show, reach out to me at rstetson@bg-llp.com.