Appeals Court Justice Joseph M. Ditkoff Rules Moratorium Is Enforceable With Limited Duration Through February 28, 2022, But Leaves Door Open For Further Extension

The legal challenge to the Boston Eviction Moratorium just took an interesting turn on appeal. After Housing Court Justice Irene Bagdoian struck down the moratorium in a scathing opinion, Appeals Court Justice Joseph Ditkoff upheld its validity, ruling that the moratorium is lawful, but limiting its duration to a six month period, ending February 28, 2022. Justice Ditkoff, however, did leave the door open for the City to extend the moratorium, but that would likely result in further litigation over whether the current Covid-19 situation warrants further suspension of evictions in the city.

Let me say at the outset that I believe that Justice Ditkoff is wrong in his ultimate conclusion and reasoning that the moratorium is lawful even for six months in duration. But this is a great example of why litigation can be so unpredictable. We have gone from Justice Bagdoian originally ruling that the moratorium “should be unthinkable in a democratic system of governance,” to Justice Ditkoff concluding that is a “reasonable health regulation.” These diametrically opposite views just create more confusion for landlords, tenants, constables, and public health officials trying to navigate evictions in the Covid-19 era.

So where are we right now? Justice Ditkoff has ruled that the City’s eviction moratorium based on Covid-19 is a lawful exercise of the Boston public health commission’s legal authority, but should not exceed six months in duration based on legal precedent by the Supreme Judicial Court. (I believe Justice Ditkoff misapplied this precedent, but that’s a discussion for another day). Based on the six month standard, the City’s moratorium order will expire on February 28, 2022, and Justice Ditkoff has effectively stayed any eviction move out order within the City limits through that date.

So what will happen next? There are several scenarios in play. Justice Ditkoff said: “That is not to say that evictions necessarily must resume on March 1, 2022. The moratorium . . . could be extended for up to an additional six months upon a showing of hardship. In 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.” Thus, Mayor Wu’s office could come out with a revised moratorium order, more narrowly tailored and limited in duration. Or, she could extend the current order. Whatever she decides, further litigation will certainly follow. I know that the plaintiff/landlords are considering an appeal Justice Ditkoff’s ruling, which in my opinion would be warranted given the his faulty reasoning and the huge importance of the issue to landlords. That appeal could wind up before the entire Appeals Court or the Supreme Judicial Court. It is unclear at this point, and the timeline is unpredictable.

As always, I’ll keep you posted on further developments. Check back here at the end of the month. I’ve posted Justice Ditkoff’s ruling below.