Baptiste v. Kennealy

Decision Date25 September 2020
Docket NumberC.A. No. 1:20-cv-11335-MLW
Parties Marie BAPTISTE, Mitchell Matorin, and Jonathan DaPonte, Plaintiffs, v. Mike KENNEALY, in his official capacity as Secretary of the Executive Office of Housing and Economic Development, and Charles Baker, in his official capacity as Governor of the Commonwealth of Massachusetts, Defendants.
CourtU.S. District Court — District of Massachusetts

Richard D. Vetstein, Vetstein Law Group, P.C., Framingham, MA, Jordana R. Greenman, Jordana Roubicek Greenman, Attorney at Law, Watertown, MA, for Plaintiffs Marie Baptiste, Mitchell Matorin.

Richard D. Vetstein, Vetstein Law Group, P.C., Framingham, MA, for Plaintiff Jonathan DaPonte.

Jennifer E. Greaney, Pierce O. Cray, Richard Weitzel, Office of the Attorney General, Boston, MA, for Defendants Commonwealth of Massachusetts, Executive Office of Housing and Economic Development.

Jennifer E. Greaney, Office of the Attorney General, Boston, MA, for Defendants Gov. Charles Baker, Mike Kennealy.




I. SUMMARY...368

II. FACTS...375




A. Plaintiffs Are Not Likely to Prove that the Moratorium Violates the Contracts Clause...381

B. Plaintiffs Are Not Likely to Prove That the Moratorium Violates the Takings Clause...387

C. Plaintiffs Are Not Likely to Prove that the Moratorium Violates the Petition Clause...392

D. Plaintiffs Are Not Likely to Prove that the Prohibition on the Termination of Tenancies and Sending of Certain Written Notices Violates the First Amendment...396

E. Plaintiffs Have Standing to Assert and Are Likely to Prove that the Second Paragraph Required by 400 C.M.R. § 5.03(2) Violates the First Amendment...402

F. A Preliminary Injunction Will Issue If Necessary...408


VII. ORDER...409


This is an unusually complex and challenging case.1 It arises out of legislation enacted on April 20, 2020, by the Commonwealth of Massachusetts, in response to the then-emerging pandemic of coronavirus disease caused by the SARS-CoV-2 virus (COVID-19). The legislation, in pertinent part, establishes a temporary moratorium on residential evictions. This case presents issues of federal constitutional law that are not often litigated. These include whether and to what extent legislation that might ordinarily violate the United States Constitution is permissible in an emergency. The case also involves fundamental issues concerning the relative roles and responsibilities of elected officials and the courts generally and in an emergency particularly.

On March 10, 2020, Massachusetts Governor Charles Baker declared a State of Emergency in response to the then-recent outbreak of COVID-19. The Governor subsequently issued a series of emergency orders and advisories to cause people to stay home to the maximum extent possible. These directions were based on the growing understanding that the COVID-19 virus is transmitted from individuals to others in close proximity to them and, therefore, of the importance of persons’ staying at least six feet apart -- "social distancing" -- to limit the spread of the virus.

Tenant advocacy groups, among others, were seeking a moratorium on evictions, arguing that they would result in the overcrowding of shared dwellings and homeless shelters, and more people living on the streets. Such conditions would have been injurious to the effort to limit the spread of the COVID-19 virus.

By April 20, 2020, schools were closed. Many businesses were also closed, causing many people to be unemployed. In addition, beginning in mid-March 2020, state trial courts, including the Massachusetts Housing Court, were closed to the public, except for emergency hearings that could not be conducted by telephone or videoconference. State courts were postponing other business, including non-emergency summary process eviction cases.

On April 20, 2020, Massachusetts enacted an "Act Providing for a Moratorium on Evictions and Foreclosures during the COVID-19 Emergency," 2020 Mass. Legis. Serv. Ch. 65 (H.B. 4647) (West) (the "Act" or the "Moratorium") (copy filed at Dkt. No. 67-1, at 139 of 150). Among other things, the Act prohibits all "non-essential" evictions, including residential evictions for failure to pay rent. In addition, the Act prohibits landlords from sending tenants "notices to quit," which are the first step required to obtain expedited summary process evictions.2 The Act also prohibits landlords from sending tenants any notice demanding or requesting that a tenant who has not paid rent leave the landlord's property. Moreover, the Act prohibits the Massachusetts courts, including the Housing Court, from accepting for filing any summary process case or taking action in any pending summary process case.

Regulations promulgated pursuant to the Act encourage landlords to provide tenants with notice of how much rent they owe. However, they mandate that any such notice refer tenants to websites with information on how tenants can contact non-governmental organizations that advocated for the Moratorium and could provide legal assistance to tenants attempting to frustrate a landlord's efforts to regain possession of his or her property.

The Moratorium was scheduled to expire on August 18, 2020. However, the statute gives the Governor the authority to extend the Moratorium further for an unlimited number of periods of up to 90 days without further action by the legislature, provided the declared State of Emergency has not been terminated.

In July 2020, the Governor extended the Moratorium to October 17, 2020. In a July 21, 2020 letter notifying the legislature, the Governor stated the reasons for the extension in one paragraph:

The Act's limitations on evictions and foreclosures have allowed many tenants and homeowners impacted by COVID-19 to remain in their homes during the state of emergency. I am confident that this action, coupled with federal assistance, helped to slow the spread of COVID-19 while minimizing the impact to date on vulnerable families and on our housing market. The extension I am declaring today will provide residents of the Commonwealth with continued housing security as businesses cautiously re-open, more people return to work, and we collectively move toward a "new normal."

Letter from Gov. Baker to House Speaker DeLeo & Sen. Pres. Spilka (July 21, 2020) (copy filed at Dkt. No. 30-2).

In the following paragraph, the Governor stated that:

I am aware that the extension I am declaring today will impact many small landlords who rely on rental income to pay their own expenses. I strongly encourage tenants to continue to pay rent, and homeowners to make their mortgage payments, to the extent they are able while the moratori[um] remain[s] in place.

Id. However, the Moratorium Act does not require that tenants certify that they are unable to pay rent, for COVID-19-related reasons or any others, to be protected from eviction.

Plaintiffs Marie Baptiste, Mitchell Matorin, and Jonathan DaPonte are landlords in Massachusetts. Baptiste is a nurse from Haiti who served a notice to quit before the Moratorium on tenants who had not paid rent since October 2019. She is now owed $21,000. Prior to the Moratorium, Matorin had also served a notice to quit on his tenants who did not pay rent for February 2020. They owed him $8,400 as of August 2020. DaPonte is a disabled Iraq War veteran who as of August 2020 was owed more than $4,000 rent by a tenant who told him "you can't evict me so I am not paying shit."

Plaintiffs allege that the Moratorium violates their rights under the United States Constitution in five ways. More specifically, they contend that the Moratorium: (1) violates the Contracts Clause in Article I, § 10, which prohibits states from passing laws that impair the obligations of contracts; (2) takes their property without paying just compensation as required by the Fifth Amendment; (3) denies them their right to access to the courts in violation of the First Amendment; (4) violates their First Amendment right to free speech by prohibiting them from sending notices to quit and other notices; and (5) violates the First Amendment because if they want to inform tenants of how much rent they owe plaintiffs are compelled to tell their tenants how to contact the groups that advocated for the Moratorium and will assist them in attempting to frustrate plaintiffs’ efforts to regain possession of their property.

Plaintiffs moved for a declaratory judgment and a preliminary injunction on all five counts, which the defendants opposed. The court denied defendants’ request that it abstain in view of a case in the courts of the Commonwealth of Massachusetts alleging that the Moratorium violates the Massachusetts constitution, specifically, Articles 10, 11 and 30 of the Massachusetts Declaration of Rights, which address, respectively, takings of real estate, access to the courts, and separation of powers.

The court explored whether the parties could engage in expedited discovery so that the hearing on the motion for preliminary injunction could be consolidated with the trial on the merits pursuant to Federal Rule of Civil Procedure 65(a)(2). Both plaintiffs and defendants opposed this proposal. In contrast to the case challenging New York's COVID-19 eviction moratorium, the parties here could not agree on stipulated facts for the purpose of cross-motions for summary judgment. Compare Elmsford Apt. Assocs., LLC v. Cuomo, No. 20-cv-4062 (CM), 469 F.Supp.3d 148, 155–56, (S.D.N.Y. June 29, 2020). Nor, in contrast to a case involving the Connecticut COVID-19 eviction moratorium, could they agree on a stipulated record for the purpose of the motion for preliminary injunction. Compare Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829 (VAB), 478 F.Supp.3d 199, 215–16, (D. Conn. Aug. 7, 2020). In any event, the court held five days of hearings on the complex issues presented by the motion for...

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