Summary and Comments on the Federal case Baptiste vs Kennealy (Landlords say that the Eviction Moratorium is unconstitutional)
Judge Mark Wolf
MY COMMENTS ARE IN GREEN AND IN BOLD.
This a 103-page Federal case which I have tried to summarize. I looked up the judge and he has had a long and distinguished carrier. I don’t understand though why he used the “rational basis” standard here instead of the “strict scrutiny” standard and why he seems to think temporary violations of the Constitution are OK.
Landlords contend that they have been: (a) denied their First Amendment right to access to the courts by being prohibited from filing and pursuing eviction cases (Count 1); (b) denied their First Amendment right to free speech by being prohibited from sending certain notices (Count 2); (c) being compelled to refer tenants to their adversaries for assistance in violation of the First Amendment (Count 3); (d) having their contracts with their tenants altered by state law in violation of the Contracts Clause, Art. I, §10, cl. 1 (Count 4); and (e) having their property taken without just compensation in violation of the Due Process Clause of the Fifth Amendment (Count 5).
(On p.15 the judge says “it should be recognized that a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.” So it seems that he agrees that the Constitution was disregarded but he is willing to look the other way if it stops being disregarded at some point before the medical condition is fully over. That is just weird for me because it’s like saying to a person wrongly imprisoned “Sure, the Constitution was disregarded in your case. I am ok that you were wrongfully imprisoned and it was disregarded for 6 months but I won’t be ok if it’s for more than that.”)
(On p.17 this judge says “The state trial courts, including the Massachusetts Housing Court, are reopened.” Does he know something we don’t because Housing Court is NOT reopened except for “health and safety” evictions per the moratorium and we still can’t serve a notice to quit in order to start a case and even “health and safety” violations they are not interpreting them broadly as they should but they are interpreting them very narrowly – they need to be criminal and close to criminal in order to count? In addition District Courts are also practically closed. I have a year old case there that has been postponed multiple times and still no hearing has happened.)
The judge in this case is of the opinion that the Moratorium at its inception did not violate the Contracts Clause of the Constitution or at least that the Landlords are not likely to win.
The Contracts Clause restricts the power of States to disrupt contractual arrangements. It provides that “no state shall pass any Law impairing the Obligation of Contracts.”
In order to win the landlords must prove that their contracts with the tenants were substantially impaired and that the moratorium was not drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose.
This judge agrees that depriving the landlords of the right to evict substantially impairs the lease contract because a reasonable landlord should have anticipated that there might be new laws or regulations regarding the leases in question that would be unfavorable to them but no reasonable landlord would have anticipated a virtually unprecedented event such as the COVID-19 pandemic that would generate a ban on even initiating eviction actions against tenants who do not pay rent nor would a reasonable landlord have anticipated more than a brief, temporary prohibition on evictions if an unforeseen emergency developed.
The landlords can prove substantial impairment of their Contracts but their right to evict for failure to pay rent has only been temporarily suspended and, absent new legislation, will be reinstated soon after the Moratorium ends so they will lose. Also they are unlikely to prove that when enacted in April 2020 the Moratorium was not drawn in an ‘appropriate’ and ‘reasonable’ way to advance ‘a significant and legitimate public purpose so they are not likely to win.
He says landlords do not dispute that, in April 2020, combatting the growing threat of COVID-19 was a significant and legitimate public purpose. Rather, they assert that the Moratorium was not a reasonable, necessary, and appropriate way to address that threat. The court concludes that, at least if the Moratorium expires on October 17, 2020, landlords are unlikely to prove that the Moratorium was not reasonable and appropriate when enacted. Where, as here, a contract involves only private parties, (the state being not an interested party to the Contract, a party which will benefit from its impairment), a claim that a state has violated the Contracts Clause will be meritorious only if it is proven that there was not a rational basis for the legislation at issue.
(Excuse me? Of course the State is a party to the contracts. As you say at the bottom of p.43, top of page 44 the State is a party to all Contracts. But in this case it’s not just a party but it’s a very interested party because it stands to have to spend millions of dollars unless it adopted this Moratorium and pushed its costs of subsidizing housing for non-paying tenants in the context of a public health emergency to a private party, the landlords.)
Landlords Are Not Likely to Prove That the Moratorium Violates the Takings Clause
Landlords contend that the Act effects both a physical and regulatory taking of their rental properties.
Landlords are unlikely to prove that a physical taking occurred when the Moratorium was enacted because landlords voluntarily rented their properties to their tenants.
(This argument reminds me of the argument: “Well, she wore a short skirt and she invited him to her apartment”. Yes, she invited him to her apartment as long as he was nice, not to rape her. Similarly, we voluntarily invited the tenants but only until they pay rent.)
Here is what the judge is basically saying: Due to recent supreme court case law I cannot issue an order stopping MA from engaging in Taking because the landlords can always sue the state after the Taking.
But he also says: Even if landlords sue for money, Massachusetts has not waived its sovereign immunity for such money claims in federal court and, therefore, they would be barred by the Eleventh Amendment from getting paid for the Taking.
(This is like basically saying: “My hands are tied, I can’t stop the rape while it’s in progress but you can sue later but even then the rapist must admit it first in order for you to win.”)
“The government effects a physical taking only where it requires the landowner to submit to the physical occupation of his land.”
The Moratorium did not compel landlords to rent their properties. Rather, landlords voluntarily chose to rent to their tenants prior to the Act. The Moratorium temporarily prevents the termination of those tenancies. A different case would be presented were the statute, on its face or as applied, to compel a landowner over objection to rent his property or to refrain in perpetuity from terminating a tenancy.
(First, the argument that we invited them so we asked for it is ridiculous but also…ah, we DO object to suddenly be compelled to rent our property without compensation and for all we know the Moratorium the way it’s written smells like perpetuity)
Landlords are also unlikely to show that a “categorical” or “non-categorical” regulatory taking has occurred.
A categorical regulatory taking occurs “where regulation denies all economically beneficial or productive use of land.” As the Moratorium, and any prohibition on economically beneficial use it imposes, was when enacted only temporary, and landlords do not contend the Act has rendered their properties valueless, no categorical regulatory taking has occurred.
“Anything less than a ‘complete elimination of value,’ or a ‘total loss,'” may be a non-categorical taking. Courts apply a three-part “ad hoc, factual inquiry” to evaluate whether a non-categorical regulatory taking has occurred: (1) what is the economic impact of the regulation; (2) whether the government action interferes with reasonable investment-backed expectations; and (3) what is the character of the government action.
The Supreme Court has held that the “mere diminution in the value of property, however serious, is insufficient to demonstrate a taking.” Concrete Pipe & Prods. Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 645 (1993). Similarly, the Ninth Circuit has held that “the mere loss of some income because of regulation does not itself establish a taking.” Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 451 (9th Cir. 2018). (These case law quotes bother me quite a bit. Taken just as is without context and further research would mean that one can never win arguing “non-categorical” taking.)
The court finds for present purposes that the Moratorium does significantly interfere with landlords’ reasonable investment backed expectations which is (2) but on (1) and (3) landlords would likely lose because they have not shown decrease in value and because the Moratorium is temporary so landlords have only temporarily been deprived of income from their property.
(Have not shown decrease in value? Everybody knows that banks and appraisers value rental buildings with and without any rental income much differently sometimes by hundreds of thousands of dollars. What, do you want us to show you before and after appraisals? I also love the “don’t worry, your constitutional rights were violated only temporarily”. Judge, everything is temporary. Our whole lives are temporary. The Sun is temporary! How would you like if somebody temporarily illegally imprisoned you for a day? It’s temporary. Bad example, you say, because the right to liberty is fundamental while the right to evict is not? Ok, how would you like if I was the State, I come to your house and take your Lexus for 6 months to a year? Certainly you don’t have a constitutional right to own an automobile, right? Don’t worry, I have no inclination to steal your car the way the State is stealing our rents with your blessing. I am just using it as an example.)
Landlords Are Not Likely to Prove that the Moratorium Violates the Petition Clause
Landlords assert that their right to access to the courts is a First Amendment right; that it is a “fundamental” right; that it is, therefore, subject to strict scrutiny; and the Moratorium fails that test because there are less restrictive ways to serve the State’s compelling interest in combatting the COVID-19 pandemic. Defendants assert that landlords’ claim is instead an alleged denial of Due Process; that the Moratorium is, therefore, subject to rational basis review; and that there was a rational basis for its enactment in April 2020.
As explained below, the court finds that whether the right to access to the courts is a First Amendment “fundamental” right or is rooted in the Fifth Amendment guarantee of Due Process, landlords’ claims are subject to rational basis review.
A legislature may alter rights and remedies without violating the First Amendment right to petition if doing so does not violate another guarantee of the United States Constitution. In this case, the other relevant provisions of the Constitution are the Contracts Clause, the Takings Clause, and the requirement that the state action satisfy Due Process. Landlords are not being deprived of the right of access to the courts concerning their Takings and Contracts Clause claims, as they are litigating those claims in this case. As to the Due Process claim, encouraging social distancing was in April 2020 a key component of the Commonwealth’s COVID-19 strategy, and evicting tenants would reduce their ability to socially distance, the Moratorium is likely to be found to have been rationally related to this interest when enacted. Therefore, under a Due Process analysis, landlords are not reasonably likely to prevail on their claim that the Moratorium violated their constitutional right to access to the courts when enacted.
(First of all, as a non-lawyer I am amazed to be informed that 1st Amendment rights to Free Speech are fundamental while 5th Amendment rights to Due Process are somehow not fundamental so they deserve a lower standard. That aside, I thought the law says “A legislature may alter rights and remedies without violating the First Amendment right to petition if doing so does not violate another guarantee of the United States Constitution”. But we, the landlords, think it does violate other guarantees. That’s why we are here. We are not talking about any due process access denied by your court. We are talking about due process denied to landlords not allowed to go to Housing court. So just because we have access to your court concerning the Taking, Contracts and Due Process claims doesn’t mean that our Due Process in Housing court is not violated. So I am not following your logic.)
The court recognizes that the right to access the courts to redress wrongs has at times been characterized as “an aspect of the First Amendment right to petition the government,” Accordingly, this court concludes that, in light of the Moratorium’s temporary prohibition on accessing the Housing Court for summary process, landlords are not reasonably likely to prove that when enacted in April 2020 the Moratorium substantially interfered with their right to access the courts, even assuming, without finding, that the right is fundamental.
(Now that doesn’t even make any sense – a prohibition on the 1st amendment is ok if it’s only temporary?)
Landlords Are Not Likely to Prove that the Prohibition on the Termination of Tenancies and Sending of Certain Written Notices Violates the First Amendment.
Even a statute which only regulates conduct may implicate the First Amendment “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct. Content-based restrictions on speech are typically subject to strict scrutiny. However, “commercial speech” –- speech “related solely to the economic interests of the speaker and its audience” –- is afforded less First Amendment protection than other forms of speech. Restrictions on commercial speech are subject only to an intermediate level of scrutiny.
Section 3(a) of the Act provides that “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 to vacate.
The Massachusetts Attorney General has indicated in a press release that the Act prohibits the sending of more than only statutory notices to quit and similar documents. In discussing complaints of violations of the Act that the Attorney General has received, the Attorney General states that the office has heard of landlords “sending tenants notices to quit that are not labelled as such.” The Attorney General also states in the same press release that “it is unlawful to threaten, intimidate, or coerce a tenant to get them to leave the property,” without identifying what law such actions would violate.
However, §3(a)(ii) does not, as landlords argue, prohibit any oral communications. Section 3(a)(ii) prohibits only “send[ing] any notice.” An oral communication is not “sent” and, in any event, is not a “notice.” Section 3(a)(ii), therefore, applies only to written communications.
(It is not true that it only prohibits written speech. It also prohibits oral speech. It says “terminate tenancy OR send any notice…” not “terminate tenancy AND send any notice…” One can terminate tenancy orally simply by asking the tenant to leave. Also the AG says it’s “unlawful to threaten, intimidate or coerce a tenant” which is an indication that they do not exclude oral communications.)
Landlords acknowledge that “a notice to quit or to terminate a tenancy is . . . a legal notice that a lease or tenancy is terminated.” It is, therefore, primarily a form of conduct.
Terminating a tenancy alone is conduct, not speech, and it does not necessarily include any “communicative elements.” The prohibition on terminating tenancies, therefore, is not likely to be found to implicate the First Amendment.
(What about if you terminate tenancy orally?)
In the instant case, the purpose of sending a statutory notice to quit would be to initiate a judicial eviction unless the tenant voluntarily departed. However, all non-essential evictions are prohibited while the Moratorium is in effect. Therefore, the prohibition on sending statutory notices to quit addresses preventing unlawful conduct, which only incidentally burdens speech and is not likely to be found to violate the First Amendment.
(the very reason we are here is because we are saying the conduct of prohibiting “non-essential evictions was made “illegal” by the state unconstitutionally.)
With regard to Non-Statutory Requests that a Tenant Leave, §3(a)(ii) Is Not an Unconstitutional Restriction of Commercial Speech
To the extent that §3(a)(ii) covers notices requesting or demanding that a tenant vacate in addition to statutory notices to quit, it is a restriction on commercial speech. As explained below, landlords are unlikely to prove that this restriction violates the First Amendment. The following analysis would also apply to the prohibition on sending statutory notices to quit if it were not deemed to be a prohibition of conduct with only an incidental impact on speech.
The constitutionality of regulations concerning commercial speech is analyzed under the “intermediate scrutiny” standard.
In commercial speech cases a four-part analysis has developed. At the outset, we 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, we ask whether the asserted governmental interest is substantial. If both inquires yield positive answers, we 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.
Sending of a statutory notice to quit would fail the first part of this test. Such notices would be misleading because they would express the landlord’s intention to initiate eviction proceedings promptly at a time when such proceedings are prohibited by the §3(b) of the Moratorium.
(I love the circular logic here: “We just banned water. Asking for water is not a lawful activity. Unlawful activity is misleading.”)
Other notices requesting or demanding that a tenant vacate would not be misleading. However, §3(a)’s prohibition of them likely satisfies the other elements of the Central Hudson test.
Although a closer question, landlords are not likely to prove that §3(a)(ii)’s prohibition on sending notices is “more extensive than is necessary” to serve the government’s interest. The Supreme Court explained the meaning of this prong of the Central Hudson test in Florida Bar, writing: In Fox, we made clear that the “least restrictive means” test has no role in the commercial speech context. “What our decisions require,” instead, “is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends,” a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” Of course, we do not equate this test with the less rigorous obstacles of rational basis review.
For example, we observed that the existence of “numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.”
Elected officials in other states and the CDC have determined that an eviction moratorium can be effective without a counterpart to §3(a). The existence of adequate alternatives is a “relevant consideration in determining whether the ‘fit’ between ends and means is reasonable.” However, it is not necessarily dispositive, in part, the court infers, because there can be more than one reasonable “fit.”
(it says “means narrowly tailored to achieve the desired objective”. There is a big distance between that and what we have instead in MA which is the “nuclear option” – the most restrictive Moratorium in the nation. The State admits it and the judge admits it. Of course, it is way more extensive than necessary – what we have here is the Legislature with the support the Executive Branch closing another co-equal branch of Government, the Courts. And this judge is cheering them on?)
Landlords 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
In Count III, landlords allege that regulation 400 C.M.R. §5.03(2) compels speech in violation of the First Amendment because it requires any landlord who wishes to send a notice to a tenant about missed rent payments to include certain language.
Because Baptiste has alleged that she wants to contact her tenants in writing about their unpaid rent, but is not doing so because she would have to include the language she finds objectionable that is required by the regulation, Baptiste is engaged in self-censorship which suffices to establish standing for present purposes.
In April 2020, minimizing evictions in the midst of the COVID-19 pandemic was a substantial state interest. However, requiring that landlords who want to write tenants to inform them of how much rent they owe also refer those tenants to private advocacy groups that are adverse to the landlords’ interests is not a means of serving the state’s interest that survives intermediate scrutiny.
The “general rule, that a speaker has the right to tailor [his or her] speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.
Since all speech inherently involves choices of what to say and what to leave unsaid, one important manifestation of the principle of free speech is that one who chooses to speak may also decide what not to say.
Landlords do not want to encourage their tenants to work with private organizations to frustrate the landlords’ efforts to regain possession of their property. They also do not want to appear to be endorsing City Life/Vida Urbana and other organizations by, in effect, seeming to recommend that their tenants seek assistance from them. Landlords are likely to prove that they may not be compelled to do so.
There are constitutionally permissible means of advancing the state interest in minimizing evictions and displacement of tenants, such as by requiring the statements in the first and third paragraphs of §5.03(2). However, requiring landlords to refer tenants to organizations which advocate positions with which landlords disagree, and which oppose the landlords’ interests in the political arena and in court, is not one of them.
(So finally this judge throws a couple of crumbs our way as if to say: “Don’t say I didn’t do nothin’ for you” by asking the state to remove one internet link that leads, if clicked, to City Life/Vida Urbana. I am not saying it should not be removed but this is clearly designed to be a meatless bone thrown to us so that his opinion looks fair and balanced the same way the Moratorium said landlords can use the Last Month to cover expenses as long as we account for it at the end (a right which we already had even prior the Moratorium!) or the way the 12-month rent cancellation bill has a provision allowing the landlords to defer paying mortgages for 12 months (as if though rents only go to pay for mortgages) but then if we decide to use that option, we must forever give up the full rent from the whole building. These crumbs/bones are designed to look like they are giving something to the landlords when in reality they are giving nothing.
The judge easily could have gone the other way as he did with all the other claims and simply said that these notices are optional and Baptiste is not required to mail anything. She could simply pick up the phone and does not need to mention City Life/Vida Urbana. Which confirms in my mind that this is designed to be just crumbs thrown our way.
These crumbs thrown our way are like saying “I am Ok with the Nazi uniform of the State but I won’t stand for the color – it should be dark brown not light brown.’ On other words, this “win” is very very small almost symbolic compared to the fact that he thinks the landlords are likely to lose on all the rest.
So this judge goes on to say in his closing comments “The length of time for which the Moratorium is in effect will be relevant to whether it continues to be constitutional. Elected officials share with the courts a responsibility to assure that statutes and regulations do not violate the Constitution. The degree of deference accorded to their judgments by courts in the future will be influenced by whether they carefully consider the requirements of the Constitution and any changed facts in deciding whether the Moratorium should be continued and, if so, whether its provisions should be revised.” Clearly this was also designed as a warning shot to the Legislature and the Governor hinting that they should NOT extend the Moratorium any further and if they do he might rule it unconstitutional. That’s a good thing.)
And finally, I want to say several words about the “rational basis” standard vs the “strict scrutiny” standard.
The judge admits that the only reason the State wins is because the “rational basis” standard was used. If the “strict scrutiny” standard was used, he says, the landlords would win. (see page 45).
First of all,
“Rational basis” is NOT a standard!
Excuse my French but prostitutes have higher standards than that!
Whoever came up with this standard, I am sorry to say, the educational system failed him. (I assume it’s a him)
Rational basis should never be used when it comes to the State because the State always has some rational basis of doing anything including atrocities and crimes against humanity:
Hitler had a rational basis for starting the 2nd World War (the Treaty of Versailles was unfair and he needed more land for his people), Stalin’s Administration had a rational basis for sending all those people to Siberia and killing a bunch (he was trying to protect the fragile Revolution fought in the name of the common man), Saudi Arabia had a rational basis to eliminate Khashoggi (trying to protect the Monarchy), Bush W. had a rational basis to implement mass surveillance (his Administration was trying to protect the American people from terrorism), Trump had a rational basis to ban all Muslims from entering the USA (protect citizens from Islamic terrorism), Roosevelt’s Administration had a rational basis to create the Japanese internment camps mentioned in this decision (after all, we were just attacked by the Japanese at Pearl Harbor so who is who and what is what needed to be sorted out for the protection of the American people) and finally, the Baker Administration in MA had a rational basis in coming up with this Eviction Moratorium (they were trying to protect the population from the Covid-19 epidemic).
I wouldn’t use this “standard” on my three and a half year old toddler. Did he or did he NOT have a rational basis to poop while I was telling him stories about a mentally ill Orange Orangutan living in a White House who throws poop at people all day?
Judge, does the government have a rational basis to take your car for 6 months to a year along with half the cars in the nation because there are too many cars out there polluting the Environment? Based on this Opinion they sure do because they have a rational basis to do so.
Rational basis should not be used as a standard at all when it comes to evaluating the actions of our lovely Sovereign, the State. We need to hold them at a higher standard. The standard should be “is this the least intrusive thing you could have done?” or simply apply the “strict scrutiny” standard – did the state directly and substantially interfere with the constitutional right at issue OR was there are a large portion of those affected by the rule who are absolutely or at least largely prevented from exercising the fundamental right at issue?
Why use “rational basis” when “strict scrutiny” is not that hard to reach? Certainly banning eviction and access to housing courts even temporality directly and substantially interferes with constitutional rights like due process. We may not be absolutely affected but certainly we are largely affected. Eviction is not just an important right and remedy. It’s the most essential landlord-tenant right and remedy. Owing 45 apartments and doing this for 22 years I can easily say that the threat of eviction is the glue that holds the landlord-tenant relationship together. We, the landlords, do not want to evict anyone, are not for evictions and homelessness and we are not against having an Eviction Moratorium where people stay at home. We do not want anyone to get sick. What we are against is our due process rights being taken away by being not allowed to see a judge for 6 months to a year (or more) and we are against being forced by the State to house non-paying tenants without compensation.
By the way, the State Court Judge Decision also opted to use the rational basis standard, the arguments there are similar and so I won’t comment on it at all beyond what I have already said.
If a standard when applied makes one side always win that’s not a standard. That cannot be an adequate standard.
But don’t just take my word for it.
During the last oral hearing this judge said it himself better than I ever could. He said: “The State always wins if rational basis is used”.
So knowing that, he chose to apply it. It’s not like his hands were tied by prior decisions. He had the option to use the “strict scrutiny” standard. He just chose not to use it.