New England Legal Foundation (NELF) Files “Amicus” Brief Urging the Massachusetts Appeals Court to Review the Legality of Boston’s Eviction Ban

NELF Argues that the Boston Public Health Commission Did Not Have Legal Authority to Order City’s Temporary Eviction Moratorium

BOSTON – Citing concern that a city  government made access to justice illegal for certain citizens, the New England Legal Foundation (NELF, has urged the Massachusetts Appeals Court to rule on the legality of Boston’s temporary eviction moratorium. Boston has rescinded the ban for now, although similar bans in other cities continue. According to an “amicus,” friend-of-the-court, filing by NELF, the issue of increased Covid exposure is capable of repetition before any meaningful opportunity for judicial review.

“This case raises the crucial issue of whether the Boston Public Health Commission, or any other agency of local government, 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,” according to NELF Senior Staff Attorney Ben Robbins, who authored and filed the brief on behalf of NELF.

Robbins noted that the Home Rule Amendment to the Massachusetts Constitution only allows the Legislature to regulate the landlord-tenant relationship, unless the Legislature has clearly 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,” Robbins said in the brief.

The Commission recently filed a motion to dismiss the appeal as moot, arguing that the challenged moratorium is now over.  NELF argues that, among other points, while the eviction moratorium has ended for now, the case is not moot under well-established Massachusetts case law because:  (1) it raises an issue of great importance (the constitutional limits to local government’s police powers); (2) the issue of heightened Covid exposure 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); and (3) the issue has evaded judicial review due to the temporary duration of the eviction moratorium.

“We hope that the Appeals Court takes this opportunity to provide legal direction to Boston and other cities ahead of the next Covid surge or other crisis,” noted NELF President Dan Winslow. “Our Constitution was created during a time of crisis, so a crisis is not an excuse to depart from constitutional requirements.  If anything, a crisis requires us to embrace our Constitution,” said Winslow.

A pdf copy of the brief is available upon request.  Contact Burt Peretsky,, 781-696-5579.



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