490 F.Supp.3d 353
D. Mass.2020Background
- In response to COVID-19, Massachusetts enacted an emergency moratorium (Apr. 20, 2020) banning most residential evictions, preventing courts from accepting or acting on summary-process eviction cases, and prohibiting landlords from sending "notices to quit" or other written demands to vacate.
- Regulations implementing the Act encouraged landlords to send rent-arrearage notices but required such notices to include specified language and web links directing tenants to non‑governmental tenant‑assistance organizations (including advocacy groups involved in promoting the moratorium).
- The moratorium was temporary (initially expiring Aug. 18, 2020) and authorizes gubernatorial extensions; Governor Baker extended it to Oct. 17, 2020 with a brief explanatory statement.
- Three landlord plaintiffs sued in federal court, asserting five constitutional claims: Contracts Clause, Takings Clause, Petition/Access‑to‑Courts (First Amendment), Free Speech (ban on notices), and Compelled Speech (required regulatory disclosure of third‑party resources).
- After five days of evidentiary hearings, the court evaluated likelihood of success on the merits for a preliminary injunction based on the law and facts as of April 20, 2020.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contracts Clause: Does the moratorium substantially impair leases and lack reasonable tailoring? | Moratorium suspends landlords' contract remedies (eviction) and is not narrowly tailored; strict review needed. | Emergency public‑health rationale; legislature had a rational basis; temporary measure merits deference. | Plaintiffs unlikely to prevail: possible impairment but statute was temporary and reasonably related to a significant public purpose; rational‑basis review applies. |
| Takings Clause: Does the moratorium effect a (physical or regulatory) taking requiring compensation or injunction? | Moratorium deprives landlords of use/value and constitutes a taking. | No physical occupation; any regulatory burden is temporary; state provides adequate remedy for compensation. | Plaintiffs unlikely to prevail: no physical taking; regulatory‑taking factors (Penn Central) do not support a taking; injunctive relief unavailable where adequate compensation remedy exists. |
| Petition / Access to Courts: Does barring summary‑process filings violate First Amendment petition/right of access? | Denial of access to Housing Court for eviction claims abridges the right to petition and must face strict scrutiny. | Right implicated at most is a non‑fundamental procedural right; action is subject to rational‑basis/Due Process review and is rationally related to public health. | Plaintiffs unlikely to prevail: right to evict is not fundamental; even under access analysis moratorium was rationally related to pandemic control. |
| Free Speech / Compelled Speech: (a) Does banning termination notices and notices to quit violate speech? (b) Does 400 C.M.R. §5.03(2) compel landlords to refer tenants to advocacy sites? | (a) Prohibition restricts landlords' speech and eviction‑related notices; (b) Regulation compels endorsement/assistance info for adversarial groups. | (a) Termination and statutory notices are conduct or only incidentally burden speech; (b) disclosure requirements are factual, permissible under commercial‑speech doctrine. | (a) Plaintiffs unlikely to prevail: termination is conduct and the ban on notices is an incidental restriction on speech and survives intermediate review (Central Hudson). (b) Plaintiffs likely to prevail: second paragraph of §5.03(2) is compelled, content‑based speech referencing private advocacy and fails applicable scrutiny; court will enjoin or require defendants to discontinue that paragraph. |
Key Cases Cited
- Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (states have latitude to protect public health in emergencies but not carte blanche)
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (U.S. 1978) (ad hoc three‑factor test for regulatory takings)
- Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557 (U.S. 1980) (four‑part test for commercial speech restrictions)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (permissibility of compelled disclosures of factual, uncontroversial information in commercial context)
- National Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. 2018) (limits of Zauderer where compelled disclosures do not relate to speaker's services and raise controversial content)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (U.S. 1982) (distinction between permanent physical occupation and regulation)
- Yee v. City of Escondido, 503 U.S. 519 (U.S. 1992) (no physical taking when owner voluntarily rents to tenants)
- Knick v. Township of Scott, 139 S. Ct. 2162 (U.S. 2019) (availability of compensation remedies forecloses equitable injunction against a taking)
- Hurley v. Irish‑American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (U.S. 1995) (a speaker may choose what not to say; compelled endorsement of third‑party views raises First Amendment concerns)
- Sveen v. Melin, 138 S. Ct. 1815 (U.S. 2018) (Contracts Clause framework: substantial impairment then means‑ends scrutiny)