NELF Senior Staff Attorney Ben Robbins Files Amicus Memorandum of Law in Support of Boston Landlords’ Opposition to City’s Motion to Dismiss Challenge to Eviction Moratorium

Boston- This case, pending in the Massachusetts Appeals Court, raises the crucial issue of whether the Boston Public Health Commission (Commission), or any other agency of local government in the Commonwealth, for that matter, has the legal authority to order a temporary eviction moratorium, when the Legislature never gave the Commission the permission to do so.  NELF’s Senior Staff Attorney, Ben Robbins, will argue for NELF that the Commission never had the constitutional authority to order the moratorium, because the Home Rule Amendment to the Massachusetts Constitution only allows the Legislature to regulate the landlord-tenant relationship, unless the Legislature has explicitly delegated that power to a local government.  The Legislature did not delegate any such powers to the Commission, whether by a general or special law.  Nor did the Commission ever petition the Legislature for permission to order an eviction moratorium, as it could have done under the Home Rule Amendment.

The Commission’s eviction moratorium took effect on August 31, 2021.  The landlords sued the Commission in the Massachusetts Housing Court, arguing that the eviction moratorium was invalid under state law.  The Housing Court agreed with the landlords and declared the moratorium invalid.  The Commission then filed an appeal in the Massachusetts Appeals Court.  However, the Commission ended the moratorium on March 31, 2022, just as the Commission’s appeal was getting started in the Appeals Court.  The Commission recently filed a motion to dismiss the appeal as moot, arguing that the challenged moratorium is now over.  Ben has filed a memorandum of law in support of the landlords’ opposition to the Commission’s motion to dismiss.  In his filing, Ben argues that, while the eviction moratorium has ended, the case is not moot under well-established Massachusetts case law because:  (1) it raises an issue of great public importance (the constitutional limits to local government’s police powers); (2) the issue is capable of repetition (due to this unending pandemic that is again on the rise, or due to any other perceived public health or economic emergency in the future); (3) and the issue evades judicial review, due to the temporary duration of the eviction moratorium.  Ben also argues, again under clear Massachusetts case law, that a party should not be permitted to create mootness by voluntarily ceasing the disputed action before an appellate court of the Commonwealth can determine the validity of that action.  Finally, Ben argues that, as a result of the Commission’s unconstitutional eviction moratorium, the Commission has violated the landlords’ constitutional right to enforce their statutory remedies governing the eviction process.



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