APPEALS COURT

Single Justice
Case Docket

JANET AVILA & another vs. DR. BISOLA OJIKUTU & others
2021-J-0620

ORDER: The Housing Court judge issued a declaratory judgment that an eviction moratorium
imposed by the city of Boston (city) is invalid and unenforceable. The defendants, tenant
Veronica Watson, the city, and various agencies and officials of the city, have filed notices of
appeal of that judgment. The defendants now move for a stay of that judgment pending appeal
pursuant to Mass. R. A. P. 6 (a). Concluding that an eviction moratorium is within the authority
of the Boston Health Commission (commission), and that an eviction moratorium of up to six
months in duration is permitted by Supreme Judicial Court precedent, I will stay this judgment
through February 28, 2022. I offer no opinion whether a tailored and time-limited new
moratorium or extension of the current moratorium at that time would be permissible, in light of
the speculative nature of such an order and the unknowability of the state of COVID-19
infections at that time.

It should be stressed that I have considered only the legal rights of the city and the tenant,
landlords, and constable before me. No doubt other tenants, landlords, and constables could raise
different arguments regarding the validity of the moratorium, and due process requires that every
such party be heard before a determination of that party's rights are made. Nothing in this order
should be construed as limiting or adjudicating the rights of parties not before me.

1. Background. The lead plaintiff, Janet Avila, is Watson's landlord. In September 2019, Avila
filed a summary process action seeking to evict Watson for nonpayment of rent. On December
16, 2019, the parties entered into an agreement for judgment, in which Watson agreed to a
payment plan for rent. On March 25, 2021, a Housing Court judge found that Watson had failed
to make the required payments and that an execution for possession would be warranted.
Nonetheless, the judge concluded that eviction was not possible pursuant to the Residential
Assistance to Families in Transition statute, St. 2020, c. 257, § 2(b), as amended by St. 2021, c.
20, § 16, and the Centers for Disease Control (CDC) eviction moratorium, see Alabama Ass'n of
Realtors v. Department of Health & Human Servs., 141 S. Ct. 2485, 2486 (2021).

On August 26, 2021, the United States Supreme Court issued an opinion that had the effect of
abolishing the CDC moratorium. Alabama Ass'n of Realtors, 141 S. Ct. at 2490. On August 31,
2021, a Housing Court judge issued an execution of the judgment for possession in favor of
Avila.

That same day, the commission issued a "Temporary Order Establishing an Eviction Moratorium
in the City of Boston." The order provides the following:

1. Notwithstanding G. L. c. 186, G. L. c. 239 or any general or special law to the contrary, no

landlord and/or owner shall serve or cause the service of notice of levy upon an eviction, or
otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.
This Order shall not apply to cases where a Court of competent jurisdiction has entered a
judgment against a tenant which relates to serious violations of the terms of the tenancy that
impair the health and safety of other building residents or immediately adjacent neighbors.[4]

Regarding its duration, the order shall "remain in effect until rescinded by the Executive Director
at the time of such decision, in their discretion."

The order has no particular enforcement mechanism, but, in September 2021, the Executive
Director of the commission sent a letter to all Boston constables requesting that they assist the
city in the implementation of the order. Because the assistance of a constable, all of whom are
appointed by the city, is usually necessary in a practical sense to carry out an eviction, this
effectively made evictions in the city impossible.

In response, on October 28, 2021, Avila and a constable, David Boudreau, filed a civil complaint
in Housing Court against the city and various city agencies and officials seeking a declaratory
judgment that the Boston moratorium was invalid.[5] Watson promptly intervened as a
defendant. On November 29, 2021, a Housing Court judge issued a decision stating that
"Paragraph 1 of the Boston Moratorium issued by the [commission] is invalid and unenforceable
as an overreach of power. This Court shall not enforce the Boston Moratorium." The defendants
moved for a stay pending appeal, which the judge denied.

On December 27, 2021, the judge issued a final judgment.[6] As amended, that judgment
declared "that paragraph 1 of the Boston Moratorium on eviction is invalid and unenforceable."
On December 27 and 28, both Watson and the city filed notices of appeal. On December 28 and
29, 2021, Watson and the city filed separate motions before the single justice for a stay pending
appeal. On December 29, 2021, I issued an administrative stay of the judgment (as well as of any
eviction of Watson) pending a decision on the matter.[7] The Housing Court assembled the
record on February 9, 2022.

2. Standard of review. In a civil case, "[a]n appellant seeking a stay pending appeal must
ordinarily meet four tests: (1) the likelihood of appellant's success on the merits; (2) the
likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of
substantial harm to other parties if the stay issues; and (4) the absence of harm to the public
interest from granting the stay." Property Acquisition Group, LLC v. Ivester, 95 Mass. App. Ct.
170, 180 (2019), quoting C.E. v. J.E., 472 Mass. 1016, 1017 (2015). Failure to show a likelihood
of irreparable harm or a likelihood of success on the merits is fatal to a motion to stay.
See id.; Property Acquisition Group, LLC, supra at 180-181.

The parties disagree over the meaning of "likelihood of appellant's success on the merits." The
city relies on the standard for a stay of a criminal sentence under Mass. R. A. P. 6 (b),
citing Commonwealth v. Nash, 486 Mass. 394, 403-404 (2020). Under that standard, the
criminal defendant must "present 'an issue which is worthy of presentation to an appellate court,
one which offers some reasonable possibility of a successful decision in the
appeal.'" Commonwealth v. Allen, 378 Mass. 489, 498 (1979), quoting Commonwealth v. Levin,
7 Mass. App. Ct. 501, 504 (1979). This lenient standard for a criminal case, however, is not the
correct standard for a civil case. Instead of the four-prong C.E. standard, an appellant in a
criminal case need show only two factors: "the defendant's likelihood of success on appeal" and
"certain security factors." Nash, supra at 403.

Citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 617 n.12 (1980), Watson argues
that the proper standard is a "substantial possibility of success on the merits." That, however, is
the standard for a preliminary injunction pending trial intended to "creat[e] or preserv[e], in so
far as possible, a state of affairs such that after the full trial, a meaningful decision may be
rendered for either party." Id. at 616. I note, as well, that the Supreme Judicial Court has never
repeated that standard since, and this court repeated it only once, in 1982. See Egbert v. Freedom
Federal Sav. & Loan Ass'n, 14 Mass. App. Ct. 383, 395 (1982). More recent cases have stressed
that a party moving for a preliminary injunction must "demonstrate that he is likely to
succeed," Foster v. Commissioner of Correction, 488 Mass. 643, 651 (2021),
quoting Foster v. Commissioner of Correction, 484 Mass. 698, 712 (2020), and "must show that
success is likely on the merits," Doe v. Superintendent of Schs. of Weston, 461 Mass. 159, 164
(2011), and held that a preliminary injunction was improper even though the plaintiffs might be
able to prove their case, see Garcia v. Department of Hous. & Community Development, 480
Mass. 736, 752 (2018).

Instead, I am guided by the Supreme Judicial Court in C.E., which denied a stay based on
asserted error in excluding out-of-court statements by stating that appellant "has not shown, for
purposes of obtaining a stay, that the judge likely erred or abused her discretion in ruling that the
statements were hearsay not subject to any exception." 472 Mass. at 1017. Accordingly, the
appellants must show that the Housing Court judge "likely erred," that is, more likely than not
erred.

3. Authority of the commission. By special statute, the commission has the same authority as a
municipal board of health for the purpose of issuing public health regulations. St. 1995, c. 147, §
6(b). Boards of health, in turn, have the authority to "make reasonable health regulations." G. L.
c. 111, § 31, par. 1. The Legislature has granted the boards particular authority regarding health
emergencies in general, and outbreaks of infectious diseases in particular.
See Desrosiers v. Governor, 486 Mass. 369, 379 (2020) ("it is evident that the [Public Health
Act] was designed to protect Massachusetts residents from, among other things, dangerous
diseases"). Upon determining "that an emergency exists," a board may "issue an order reciting
the existence of the emergency and requiring that such action be taken as the board of health
deems necessary to address the emergency." G. L. c. 111, § 31, par. 3. The regulations are to the
same effect. See 105 Code Mass. Regs. § 400.200(B) (2021). Furthermore, "[i]f a disease
dangerous to the public health exists in a town, the . . . board of health shall use all possible care
to prevent the spread of the infection." G. L. c. 111, § 104. The regulations, again, are to the
same effect. See 105 Code Mass. Regs. § 11.05(1) (2021).

"As a general rule, we give health regulations promulgated by local boards like the commission
the kind of deference we accord statutes." RYO Cigar Ass'n, Inc. v. Boston Pub. Health Comm'n,
79 Mass. App. Ct. 822, 827 (2011). "Health regulations have a strong presumption of validity,
and, when assessing a regulation's 'reasonableness,' all rational presumptions are made in favor
of the validity of the regulation." Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass.
217, 220 (2001). "A plaintiff challenging a health regulation must prove that the regulation
'cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain
it.'" American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol,
446 Mass. 310, 317 (2006), quoting Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138
(1949). Courts have upheld as reasonable health regulations a ban on the sale of cigar
wraps, RYO Cigar Ass'n, Inc., supra at 823, a ban on smoking in restaurants, Tri-Nel Mgt.,
Inc., supra at 218, a ban on smoking in private clubs, American Lithuanian Naturalization
Club, supra at 311, and a mandatory sewer connection rule, Padden v. West Boylston, 64 Mass.
App. Ct. 120, 121 (2005).

Under this broad grant of authority, the eviction moratorium is a reasonable health regulation.
There is little question, as the commission found, that evictions cause residents to take up
residence with friends and family members or in shelters, with the concordant risk of spreading
COVID-19. See American Lithuanian Naturalization Club, 446 Mass. at 317-318 (court properly
considered board of health's findings of "substantial health dangers caused by tobacco smoke to
smokers and nonsmokers alike"). Both our Legislature and Congress recognized this reality in
their respective 2020 eviction moratoria, see St. 2020, c. 65, § 3(b); Alabama Ass'n of Realtors,
141 S. Ct. at 2486; Bank of N.Y. Mellon v. King, 485 Mass. 37, 51 n.13 (2020), as have other
jurisdictions and courts. See, e.g., Apartment Ass'n of Los Angeles County, Inc. v. Los Angeles,
10 F. 4th 905, 909 (9th Cir. 2021); District of Columbia v. Towers, 250 A.3d 1048, 1051-1052
(D.C. 2021).

The plaintiffs challenge this by arguing that the moratorium was actually motivated by the
Acting Mayor's political interests, rather than public health concerns. A similar challenge,
however, was brought in Padden, where the plaintiffs argued that "the real reason for the
regulation is the financial difficulties that the town faced in connection with the new sewer
system and not genuine public health concerns." 64 Mass. App. Ct. at 129. This court held that,
where "a nexus between the regulation and public health existed, we need not consider the
motives of the board of health." Id. Accordingly, the subjective motivations of the commission
are not before me.

4. Preemption. The Housing Court's decision centered not on the board's authority, but the
possibility of conflict between the moratorium and summary process law enshrined in G. L. c.
239. In this regard, Massachusetts courts have recognized that a board of health regulation may
not be "inconsistent with State law." RYO Cigar Ass'n, Inc., 79 Mass. App. Ct. at 831,
quoting American Lithuanian Naturalization Club, 446 Mass. at 321. Accord Tri-Nel Mgt., Inc.,
433 Mass. at 222-223.[8] "In assessing whether a reasonable health regulation is inconsistent
with a State statute, we will afford the local board '"considerable latitude," requiring a "sharp
conflict" between the [regulation] and the statute before invalidating the [regulation].'" Tri-Nel
Mgt., Inc., supra at 223, quoting Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 744
(1993).

The Supreme Judicial Court addressed this very question in Grace v. Brookline, 379 Mass. 43
(1979). There, the Legislature authorized Brookline to "regulate the evictions of tenants," id. at
45 n.4, just as the Legislature here has authorized the commission to issue reasonable health
regulations. There, Brookline imposed a six-month moratorium on the evictions of residents after
a condominium conversion. See id. at 48. The moratorium could be extended for an additional
six months upon a showing of a hardship. See id. at 46 n.8. As here, the plaintiffs argued that this
moratorium was preempted by the summary process statute. See id. at 53.

The Supreme Judicial Court rejected this argument, pointing out that G. L. c. 239 is "an attempt
'to mitigate hardships to tenants, and at the same time to protect adequately the rights of the
owner.'" Grace, 379 Mass. at 54, quoting Opinion of the Justices, 321 Mass. 772, 774 (1947).
Accordingly, "[t]he automatic six-month delay in issuance of certificates of eviction (plus the
discretionary hardship delay of up to an additional six months) . . . does not undercut this design.
The operation of the amendments merely postpones the application of c. 239, without
compromising its objectives." Grace, supra. It is evident, therefore, that the city and Watson have
demonstrated a likelihood of success on the merits that they will be able to show on appeal that
the moratorium is valid for six months.

The problem, of course, is that the moratorium by its terms is not limited to six months, but
rather shall "remain in effect until rescinded by the Executive Director at the time of such
decision, in their discretion." The plaintiffs argue that the moratorium is, in effect, permanent,
and thus is preempted under the principles set forth in Grace. The city, however, represents to me
that the moratorium is intended to be temporary and will be revisited as necessary. I am also
cognizant that the city recently announced benchmark metrics for lifting the city's vaccine
requirements.

The teachings of the Supreme Judicial Court reveal that a six-month moratorium on evictions is
not preempted by summary process law. See Grace, 379 Mass. at 54. The Boston moratorium
will reach six months on February 28, 2022. Accordingly, a stay of the Housing Court order
lifting the stay is justified on the current record only until February 28, 2022. Cf. Alabama Ass'n
of Realtors v. Department of Health & Human Servs., 141 S. Ct. 2320, 2321 (2021) (Kavanaugh,
J., concurring) (continuing eviction moratorium for approximately one month to "allow for
additional and more orderly distribution of the congressionally appropriated rental assistance
funds").

That is not to say that evictions necessarily must resume on March 1, 2022. The moratorium
upheld in Grace could be extended for up to an additional six months upon a showing of
hardship. 379 Mass. at 46 n.8. "[I]n light of the rapidly changing situation arising from the
COVID-19 pandemic," I have no occasion to consider at this time whether, at the end of
February, the commission could enact a tailored and time-limited extension of the moratorium on
the basis of the then-current COVID-19 hospitalizations and community positivity
rates. Commonwealth v. Lougee, 485 Mass. 70, 82 (2020), quoting Christie v. Commonwealth,
484 Mass. 397, 401 (2020).

5. Likelihood of irreparable harm. Watson has demonstrated a likelihood of irreparable harm if

evicted. She has averred in her verified motion to intervene that she "has high blood pressure,
congestive heart failure, asthma and allergies that continue to put her at greater risk from
COVID," and her doctor authored a letter describing her chronic medical conditions and opining
that "eviction could be detrimental to her health."
The city similarly has demonstrated a likelihood of irreparable harm. The city has cited articles
and studies demonstrating the adverse public health consequences from the premature
resumption of evictions, as well as evidence that increased use of homeless shelters causes an
increase in COVID-19 infections. Mitigating all of these problems is the responsibility of the city
generally and the commission in particular. See G. L. c. 111, § 104 ("If a disease dangerous to
the public health exists in a town, the . . . board of health shall use all possible care to prevent the
spread of the infection" [emphasis added]). Where the city has demonstrated that the end of the
eviction moratorium will make it unable to fulfill its statutory mandate, the city has shown a
likelihood of irreparable harm.

6. Absence of substantial harm to other parties and absence of harm to the public interest. At
least as regards the plaintiffs before me,[9] there is no indication that a stay will create a
substantial harm to them that outweighs the likelihood of irreparable harm to the appellants.
Watson represents to me that she is able to pay use and occupancy during the pendency of this
appeal, and proceedings are ongoing in the Housing Court to establish the amount of such use
and occupancy payments. The summary process case involving plaintiffs Moteke-Ogbue and
Ogbue resulted in a satisfaction of judgment on January 13, 2022. Plaintiff Lepe has two
unsatisfied judgments for possession, but (unlike the other plaintiffs) is not an owner-occupant
and there is no indication in the record that inability to relet the apartments during the pendency
of this appeal will impose a substantial hardship on him.[10]

Finally, considering harm to the public, it is true, as the plaintiffs state, that there is a "public
interest in the availability of rental housing." Evicting current tenants, however, does not result in
any net gain in the availability of rental housing. By contrast, reducing the spread of COVID-19
occasioned by evictions is in the public interest. See Tri-Nel Mgt., Inc., 433 Mass. at 228.
Accordingly, these factors also weigh in favor of a stay.

7. Conclusion. The final judgment of the Housing Court, declaring that paragraph 1 of the
Boston moratorium is invalid and unenforceable, is stayed through February 28, 2022. This order
is without prejudice to the commission's imposing a new moratorium or extending the current
moratorium at that time, though I make no opinion whether such a moratorium or extension
would be permissible.[11]

So ordered. (Ditkoff, J.), *Notice/Attest/Bagdoian, J.

Footnotes:

[1] Ngozi Moteke-Ogbue, Patrick Ogbue, Antonio Lepe, and David E. Boudreau, Sr.

[2] In her capacity as Executive Director of the Boston Public Health Commission. [3] Rita
Nieves, in her former capacity as Interim Director of the Boston Public Health Commission and
as agent of the Board of Health; Kim Janey, in her capacity as Acting Mayor of the City of
Boston; Boston Public Health Commission; Boston Board of Public Health; City of Boston; and
Veronica Watson. Watson was allowed to intervene as a defendant.

[4] The order also provides rules regarding landlord access to dwellings, such as advance notice
and mask use. No party challenges this portion of the order.

[5] The complaint was later amended to add three other landlords as plaintiffs.

[6] Usually, a motion to stay pending appeal is filed and decided after the entry of final
judgment, not before. Nonetheless, the purposes of Mass. R. A. P. 6 (a) (1), requiring that a stay
be sought from the Trial Court in the first instance, have been satisfied.

[7] My decision was delayed by the necessity of conducting a hearing and by the necessity of the
parties twice returning to the Housing Court to seek correction of the final judgment.

[8] The plaintiffs argue that this prohibition has a constitutional basis, citing the constitutional
provision authorizing local ordinances. This is a dubious argument where the commission acted
in accordance with the authority granted it by the Legislature. I need not address this question,
however, as the courts have construed this prohibition as a statutory limitation on the authority of
boards of health.

[9] A different landlord might be able to show substantial harm. As stated, I do not purport to
adjudicate the rights of anyone but the parties before me.

[10] I am cognizant that there may be a substantial loss of income to constables from the
moratorium, but the plaintiffs do not argue substantial harm to the constable in their opposition
to the stay.

[11] I reject the plaintiffs' request for conditioning the stay "upon the filing of a bond or other
appropriate security" pursuant to Mass. R. A. P. 6 (a) (2). Requiring such a bond by the city
would make little sense, as it does not seem possible that the plaintiffs would be entitled to
recover monetary damages against the city, and the city is not likely to be unable to pay any
monetary award in any event. As mentioned, the Housing Court is actively determining whether
Watson should make use and occupancy payments, and I have little doubt that process will result
in an equitable order for both parties. Cf. Damaskos v. Board of Appeal of Boston, 359 Mass. 55,
59 (1971) (noting discretionary nature of bond order for preliminary injunction); Petricca Constr.
Co. v. Commonwealth, 37 Mass. App. Ct. 392, 400-401 (1994) (same).

Jordana Roubicek Greenman, Esquire

Mitchell J. Matorin, Esquire
David E. Boudreau, Sr.
Plaintiff/Respondent

Dr. Bisola Ojikutu

Defendant/Respondent

Batool Raza, Esquire

Rita Nieves
Defendant/Respondent

Batool Raza, Esquire

Kim Janey
Defendant/Respondent

Katherine Jones, Esquire

Veronica Watson
Intervener/Petitioner

Ilana Gelfman, Esquire

Zoe Cronin, Esquire
Kathleen Elliott, Esquire
Gary Klein, Esquire
Richard M.W. Bauer, Esquire