Who Decides?

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. 

Episode Highlights

DECISION

Janet Avila and David Boudreau, Sr. v. Dr. Ojikutu, et al.

News Links

Boston’s Eviction Ban Overreach, WSJ

Boston appeals judge’s decision overturning citywide eviction moratorium, Boston Globe

State judge strikes down Boston’s eviction moratorium, WGBH

Episode Transcript

Bob Stetson: On January 13th, 2020 to the United States Supreme court struck down a vaccine mandate that would have been applicable to much of the country’s workforce. Specifically the secretary of labor acting through the occupational safety and health administration or OSHA sought to apply the mandate to all employers with 100 or more employees, roughly 84 million Americans. In striking down the mandate the Supreme court explained that OSHA, an administrative agency located in Washington, DC and charged with occupational workplace safety, lacked congressional authority to issue such a sweeping law, a vast national significance. In a concurring opinion, agreeing with the court’s decision to strike down the vaccine mandate Supreme Court Justice Neil Gorsuch wrote that quote, “the central question we face today is who decides? No one doubts that the [00:01:00] COVID-19 pandemic has posed challenges for every American. Or that our state local and national governments all have roles to play in combating the disease” end quote. but which of these authorities possesses what powers during times of national strife is not so easy to answer and is still being played out in the courts. In Boston, Massachusetts on August 31st, 2021, the Boston public health commission issued a temporary order establishing an eviction moratorium throughout the city citing various studies that purportedly linked residential evictions to the spread of COVID-19. The Boston public health commission’s moratorium prevented landlords from enforcing residential evictions, even if they were able to obtain a judgment from a court. Although titled a temporary order Boston’s eviction moratorium was open ended a nd contained no definitive end date. This was not the first eviction moratorium applicable to Boston landlords since the onset of the pandemic. However, for this [00:02:00] moratorium, a number of landlords and also special process servers who assist landlords in carrying out court ordered evictions challenge, the moratorium as unconstitutional, and also as beyond the scope of authority bestowed upon the Boston public health commission. This case further raises the simple question raised by Supreme court justice Gorsuch in time of national emergency, who decides? This is a Avila versus Boston Public Health Commission.

Welcome to Legal Judg(e)ments, 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 Bernkopf 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 Jordana. Thanks for joining.

[00:02:58] Jordana Greenman: Thank you for having me.

[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.

But the court’s reasoning went a bit further and, in particular, the court concluded that the moratorium would essentially override the courts. And I’m using that in a lower case since the moratorium would override the court’s ability to enforce their own orders in strong language, the housing court judge explained that quote, “the moratorium has had the perverse effect of rescinding this court’s power to enforce its own orders.” end quote. The court further explained that if a court has gone through the trouble of deciding a case, that due [00:04:00] process requires that the judgment be carried into effect. This reference to due process struck me as quite important due process usually refers to either procedural due process, like making sure a party gets their day in court or substantive due process.

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?

[00:04:44] Jordana: That is a very interesting question. And I do still get chills when I hear that line of the perverse effect that I got the first time I read judge decision, which I think was extremely well written and well thought out. The due process specifically that [00:05:00] I think that she was referring to. This particular judge seemed to take on behalf of the court, a very offended tone at this moratorium and its affect on the housing courts specifically. And overall, this concept that you can be a litigant, you can go to court, you can possibly have to go to court in person, wear a mask, maybe be exposed to COVID, maybe not. Win your case after it’s considered by a judge. 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. This particular judge seemed to take on behalf of the court, a very offended tone at this moratorium and its affect on the housing courts specifically. And overall, this concept that you can be a litigant, you can go to court, you can possibly have to go to court in person, wear a mask, maybe be exposed to COVID. Maybe not win your case after it’s considered by a judge.

That was what I think she was getting at that as members of the [00:06:00] public and probably the most pro se friendly court in the Commonwealth that even people are on the landlord side who maybe don’t have the ability to hire a lawyer. They can’t rely on what a judge says anymore.

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.

[00:06:19] Bob: There’s an aspect of this case. And judge decision that really depends on what’s the nature of a municipality? Why does it exist? And cities and towns are really just component parts of the state, which of course has broad policing powers to protect the safety, health, and wellbeing of its citizenry.

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.

[00:07:10] Jordana: Yes. Which is also very interesting and to go forwards, to go backwards, to go forwards again. One of the cases that we looked at that the other side looked at and that I actually looked at in the case against the governor last year in federal court was a case called grace versus the town of Brookline.

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.

So everybody has to go. And where will these people go? So what the town of Brookline did is that they went to the legislature and they petitioned for a home rule amendment, [00:08:00] which once done is the legislature granting the town of Brookline permission to control what happens and make laws based on certain areas that there are already laws in.

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.

So that same day. She said to the board of health, we need an eviction moratorium in Boston, and then boom, we had an eviction moratorium in Boston. The day after the CDC was struck down, there was no legislative history. There was no real, it appears, thought that went into this. All of the statistics that the board of health argued at the inception of the case were [00:10:00] from 2020. And that’s one big difference. In Grace Case, there was a home rule amendment for the town of Brookline, enabling that to do that. And since Boston doesn’t have that, the judge says, you can’t do this. There is no home rule amendment in Boston, which brings up another interesting fact, which is that the Boston public health commission Asserts that they are not part of the city of Boston. They’re a separate body politic that has nothing to do with the city of Boston research shows that actually the mayor appoints, I think at least half of the members of the BPHC and they are very intertwined with Boston, which is another reason why the judge did not allow them to be dismissed, but that home rule petition issue is a big issue because in Grace there was one and that is why Brookline was allowed to do what they did. And it was temporary. It was directly aligned with all of the state provisions contained in 2 39, sections nine and 10, where anybody actually at this point, if you’re elderly, if [00:11:00] you’re disabled, if you have small children that are in school, there’s all these reasons why.

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.

[00:11:41] Bob: Yeah. It seems to me that, and I think you’ve done a really good job explaining it. The difference between this situation and what the court saw in the Grace versus Brookline case was that in that case, Brookline actually went through the [00:12:00] step of going to the Massachusetts state legislature, which has this broad policing power and asked for authority which was granted to actually halt evictions in contravention of the legislative statutes regarding evictions. And in this case, that permission we’ll call it from the legislature did not exist. Is that essentially the argument?

[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.

The whole coming into this moratorium is very interesting because on October 17th, 2020, that was the end date of chapter 65 of the acts of 2020, which was the Governor telling to halt on evictions evictions when COVID started. At that point, the CDC came into effect the CDC moratorium, if you have [00:13:00] lost your job or are affected by COVID, if you’re applying for rental assistance and you meet all of these criteria that were on actual declaration form that needed to be signed under penalties of perjury, then you were protected. As long as that order was in place. So from October 17th through, I believe it was December 9th or December 10th-ish of 2020, there was nothing in Massachusetts in place, nothing in Boston, in place other than the CDC moratorium along came chapter 257 of the acts of 2020 at the beginning of December of 2020.

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.

We also have to upload to the state database. And report to the city of [00:14:00] Boston. But again, there was about a month and a half period where there was absolutely nothing protecting tenants in Massachusetts, specifically other than the CDC moratorium, which certainly did its job. And it was a slow going at the beginning with the exception of maybe one of the housing courts, which would be the Southeast housing court.

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.

It had to be because of that lag that the courts were understandably closed.. And so they took time to create new procedures and new ways of doing things and doing things virtually and in the denser places like Suffolk county and Middlesex county, it takes even longer. [00:15:00] But there was nothing else in place.

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 257 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 257 is still in effect was a really big deal for the city of Boston.

And instead of saying, oh because the CDC moratorium is out, [00:16:00] we need to get people better information about chapter 257. We need to help people understand how they can come to find this information about resources that can help them. And that is still limited to this sector of tenants that is having trouble because of COVID and having trouble making payments.

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.

Recently. There are civil action cases that landlords are bringing against their tenant, where there’s a behavioral issue and they get an order and it tells the tenant, you have to do this, that, and the other, or you have to not do this, that, and the other. If you bring them back [00:17:00] on a contempt, you can end up with a health and safety related execution.

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.

So the Avila case started in 2019. I was not the lawyer. It was started by somebody else. I don’t really know what the falling out was, but I was contacted by a woman who had [00:18:00] been in the daycare of Janet Avila when she was a child and had heard that Ms. Avila was suffering because of this tenant, a and was, owed, it’s something like, I think it was $20,000 when I was contacted and she paid me to take the case over.

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.

There was then a lag. We just sat and waited to see what happened with the CDC. We didn’t really much look into RAF there’s. Other issues. There’s somewhat of a language barrier between myself and the client. There’s economic reasons for not wanting to call me every day or have me do things every day, but then it was like a day at the beginning of August [00:19:00] or July where it ended, I got the judgment to issue. I think it was August 1st or August 2nd, 2021. And then the CDC went back into effect and then we waited. And then on August 31st, we were able to get the first execution. For some reason, I don’t understand.

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.

She’s one of these people who buy a house and they rely on their rental income from the other apartments in the house in order to pay their own bills. That’s the smallest slice of the American pie. And then the September 1st came, we heard of this [00:20:00] newest from Kim Janey and we’re oh my God. Even though she had the execution in her hand, she went to the Constable started getting ready on August 31st.

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.

Constables were scared. Constables are [00:21:00] appointed in the city of Boston by the mayor every year they need to be reappointed or maybe it’s two years. But in any event, they are scared that they will not have any ability to make money if they take this risk. And so evictions just completely stopped. I eventually had three people and a Constable and we started to work and started drafting.

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.

So unlike in grace versus the town of Brookline, there was just this sort of vague document that says that we can’t do what we’re entitled to do [00:22:00] legally, for some reason. We’re not really sure why, but that’s what the Boston public health commission says. The constables will not do it. And as the judge pointed out as judge bag, Julian pointed out, there was an uptick of people filing for motions, which is you want a Constable from a separate city or town to come into Boston and serve your papers.

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.

Not so eventually we were able to find two people because one the tenant left and a constable and we started and they [00:23:00] immediately, you know, they just said we are authorized to do whatever we want pursuant to chapter one 11 of the general laws. And I think that judge bag Dwayne does a really good job of analyzing each different section of one 11 that they talk about and saying, but this still doesn’t give you the power to override state law.

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.

Of course that sounds reasonable, but just stopping evictions. One of the things that’s really interesting is that in the order itself, it doesn’t say if your tenant has COVID, you can’t evict them. Or if [00:24:00] your Constable hasn’t been tested, you can’t evict. It just is cart blanch, no evictions. So had this been related, it didn’t appear to be related at all to COVID because people are still moving. Citizens can come and go. As they pleased from their homes, you can go and get a massage. I assume that there are probably strip clubs that are open, where people are in close contact, but you just can’t evict. And there is no basis in the law for the board of health to have decided that there could be no evictions.

[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. Jordana, why was that increased authority insufficient to authorize what the Boston public health commission did here.

[00:27:19] Jordana: Again, it is not a reasonable order. What is reasonable about saying you cannot evict people, but there is no actual regulation about what these people are doing. So these people. I can go out in public. These people can have COVID or not have COVID. These people can be rich or poor. They can be employed or have lost their job a year ago.

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.

And you need to make sure that the tenant has a place to go, or, some reasonable law that doesn’t just cover the general public. There are people living on Seaport Boulevard. Paying $10,000 a month to [00:29:00] live in their apartment that can be protected by this, despite the fact that they don’t need it.

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.

Somebody who has called five minutes before their landlord comes to their apartment, because they just want to do a, an appraisal or an inspection that’s a little bit [00:30:00] more immediate or somebody that is on the verge of eviction and has COVID, that’s an immediate threat. Nothing like that was incorporated into the order itself.

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

[00:30:17] Bob: And that kind of gets, I think, into the timeline again, which you’ve what you’ve already touched on, but just to lay it out again. This was not the first essentially moratorium that was applicable to Boston landlords. In the early days of the pandemic, the Supreme judicial court, the highest court in Massachusetts, effectively postponed all litigation, including an eviction cases in 2020, as you pointed out, the mass legislature issued their own version of an eviction moratorium, which, as you also pointed out expired, I believe towards the [00:31:00] end of 2020.,

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

[00:31:05] Bob: Essentially, almost a year before the moratorium that we’re talking about. And then there was the CDCs moratoriums or moratoria which as you also mentioned were far more limited.

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.

But as you pointed out, it disproportionately impacted Boston landlords because bars [00:32:00] were open, gyms were open. Sporting events are open. So it really had a significant impact on, and again, as you pointed out with your client, Janet Avila, we’re not just talking about, the big, bad, slumlords of the early 19 hundreds.

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.

And and some of the fear that was associated with it, and I read your pleading. And it actually struck me that not only did you [00:33:00] have this fear that you’re talking about today, but you actually had a count in your complaint. I believe seeking injunctive relief that would prevent city officials from essentially retaliating against your clients based on their challenge of this eviction moratorium. I want you to explain, why was this challenge in your opinion so politically sensitive? And why was there such a concern about retaliation?

[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 these private landlords, the people who are actually. Generally, either small, they have [00:35:00] a few properties or, near and dear to me because my practice mostly represents owner occupied, landlords, small S landlords that have this one difference, which is that they’re not subject to 93A which is really the only benefit that they get.

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.

And on the side of the constables, of course, the constables. Although I think that for the constables, it was a, a risk benefit analysis [00:36:00] and fear constables, as you can imagine, don’t make that much money from serving a notice to quit. They get somewhere between depending who you work with $35 to $80. And you need a lot.

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.

In addition to not wanting to do what the order says not to do. They don’t want to put their name out there to the public. And I think also [00:37:00] for myself included, it’s a stigma similar to the stigma of criminal defense. This is the closest analogy I can come up with. “You evict people for a living? Oh my goodness! How can you go to sleep at night?” My father, when he got out of law school in the seventies did pro bono work for the black Panther party. So suffice it to say this was a personal conflict for me, but it’s a big issue. And it’s a very important issue because I think it ties into affordable housing. And affordable housing means more than just condo projects going up that have certain percentage of units that have to be affordable.

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.

[00:38:24] Bob: So that’s the political on the enforcement side. I want to get back to a point that you made earlier about the political motivation on the enactment side, and you’ve argued and you argued in your brief, I think, quite convincingly t hat the Boston public health commission law, the eviction moratorium was a political response to certain accusations [00:39:00] that were a part of the mayoral race at that particular time. Can you explain why you believe from either a legal or a strategic perspective, that it was important to really highlight that for the court.

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.

[00:39:37] Jordana: I think it has to do a little bit with enough is enough.

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 257 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.

Because there was no campaign. There was no political motivation at the time. It wasn’t a bargaining power that could be used at the time. And chapter [00:41:00] 257 then came into effect and is still in effect supposedly until April, I believe the end of April of this year. And might or might not be extended.

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 257 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.

She’s currently in violation of federal law because she’s not living in her property because [00:42:00] somebody who just doesn’t feel like leaving is protected by this when said person has the money to relocate. There is no other justification. Other than that, there’s political motivation.

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.

[00:42:43] Bob: So in Massachusetts, we have a number of different courts. We have a district court that handles community type matters on a more localized basis. Superior courts. They handle more serious matters on [00:43:00] a county by county basis, appellate courts, of course, and we have some specialty courts like land court, which of course handles land matters probate and family court, which handles trusts and estate matters and family law matters. Here you made this challenge in the housing court, which is of course, another specialty court, instead of perhaps a more traditional avenue for contesting, the validity of a law, which would be in the superior court.

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?

[00:43:49] Jordana: Well, That’s definitely my favorite question. There’s a couple of reasons. From a tactical purpose, we had already had the experience from the state.

[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.

And then you have 9A and just lots of delays. The district court does not have. The same jurisdiction as superior court has. So seeking injunctive relief in district court is a no-go the [00:45:00] housing court, which has the, actually the same jurisdiction as the superior court also has the benefit of being the only court in the state that really understands this stuff because they exist for this stuff and feeling.

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.

And when you delve into the very personal aspects, Having a roof over your head and who gets to decide the housing court is very sincere. They do a very good job of making determinations in these cases. And to me, it really seemed like the only choice, [00:46:00] because I knew we would get a fair shake from a judge that actually understood this particular law and these particular types of litigants.

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

[00:46:15] Jordana: Thank you.

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

[00:46:18] Jordana: Please. Yes.

[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.

Thanks for listening.