Two landlords, one the retired owner of a small building in Allston, have filed an emergency petition with the Supreme Judicial Court seeking to overturn a law passed and signed last month that bars the eviction of most tenants during the current state of emergency.
The law, passed to protect tenants who have found themselves suddenly jobless, is in turn screwing landlords, particularly small ones who may be counting on their units as their main source of income, according to the complaint, filed by two real-estate attorneys on behalf of Mitchell Matorin, who owns a two-unit building in Worcester and whose tenants stopped paying rent in February, long before the state of emergency, and Linda Smith, who owns a condo on Harvard Terrace in Allston, and whose tenant stopped paying rent in April because, allegedly, "the governor said I do not have to."
Matorin is currently out $4,800, including rent due before passage of the act - state Housing Court has suspended his eviction process due to the state of emergency - while Smith is now out $6,720 from the condo, which, aside from "a small Social Security stipend" had been her sole source of income, the complaint says.
But in appealing the law, attorneys Richard Vetstein of Framingham and Jordana Roubicek of Watertown are not simply appealing to the potential sympathy of the state's highest court. In their complaint, they allege the act violates the state and federal constitutions, most immediately the separation of powers between the legislature and the court system - in a state that is one of the few to explicitly tell the legislature, the courts and the executive to stay out of each other's business.
The law violates this by telling the court system how to oversee evictions, through a detailed set of rules for summary process.
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 complaint continues:
For any property owner seeking to file a nonessential 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 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.
The complaint notes that while the court system itself, through orders handed down by chief justices of different courts, has ordered a halt to all trials until the fall and even shut public access to courthouses through at least June, it has also quickly developed systems for conducting non-trial business - such as hearings and other proceedings - electronically or via phone
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 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.
The law also restricts the plaintiff's rights under the state constitution "to access the courts freely and without delay," ad under the federal First Amendment right to petition government - and their First Amendment right to say what they want, by requiring landlords who want to tell tenants they need to pay their rent to add state language about the eviction ban, the complaint continues.
What we have before this Court is a complete and total shutdown and indefinite ban on virtually every eviction case being Shutting down our courts to anyone plainly violates Article 11 [which grants the right to court access] 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.
They continue the measure is also an illegal taking of property and besides, it's just bad public policy because landlords weren't ever going to mass evict tenant, no sir:
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. 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.
Vetstein's explanation of the filing and a copy of the petition.