1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

)
MARIE BAPTISTE, MITCHELL MATORIN, )
and JONATHAN DAPONTE, )
) Civil Action
Plaintiffs, ) No. 20-11335-MLW
)
v. )
)
MIKE KENNEALY, in his official )
capacity as Secretary of the )
Executive Office of Housing and )
Economic Development, and )
CHARLES BAKER, in his official )
capacity as Governor of the )
Commonwealth of Massachusetts, )
)
Defendants. )
)

BEFORE THE HONORABLE MARK L. WOLF

UNITED STATES DISTRICT JUDGE

VIDEOCONFERENCE
MOTION HEARING

September 2, 2020

John J. Moakley United States Courthouse

One Courthouse Way
Boston, Massachusetts 02210

Kelly Mortellite, RMR, CRR

Official Court Reporter
One Courthouse Way, Room 3200
Boston, Massachusetts 02210
mortellite@gmail.com
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1 APPEARANCES:

2 Counsel on behalf of Plaintiffs:

Richard D. Vetstein
3 Vetstein Law Group, P.C.
945 Concord Street
4 Framingham, MA 01702
508-620-5352
5 rvetstein@vetsteinlawgroup.com

6 Jordana R. Greenman
Jordana Roubicek Greenman, Attorney at Law
7 134 Main Street
Watertown, MA 02472
8 617-379-6669
jordana@jrglegal.com
9
Counsel on behalf of Defendants:
10 Jennifer E. Greaney
Pierce O. Cray
11 Richard Weitzel
Office of the Attorney General (MA)
12 One Ashburton Place
Boston, MA 02108
13 617-963-2981
jennifer.greaney@mass.gov
14 pierce.cray@state.ma.us
richard.weitzel@mass.gov
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1 P R O C E E D I N G S

2 THE COURT: Good afternoon. Would the clerk please

3 call the case.

4 COURTROOM CLERK: This is civil matter number

5 20-11335, Marie Baptiste, Mitchell Matorin and Jonathan DaPonte

6 v. Commonwealth of Mass., and others.

7 THE COURT: Good afternoon. I apologize for beginning

8 late. I was continuing to look at materials, including some

9 relatively recently emerged issues. Would counsel please

02:25 10 identify themselves for the court and for the stenographer.

11 MR. VETSTEIN: Good afternoon, Your Honor. Richard

12 Vetstein for the plaintiffs. With me is Jordana Greenman.

13 MS. GREENMAN: Good afternoon, Your Honor. Jordana

14 Greenman for the plaintiffs.

15 MS. GREANEY: Good afternoon, Your Honor. Jennifer

16 Greaney, Assistant Attorney General, for the defendants.

17 MR. CRAY: Good afternoon, Your Honor. Attorney

18 Pierce Cray, Assistant Attorney General, also for the

19 defendants.

02:26 20 MR. WEITZEL: Good afternoon, Your Honor. Richard

21 Weitzel, Assistant Attorney General, also for the defendants.

22 THE COURT: Okay. Yesterday I received a motion from

23 the Pacific Legal Foundation to file an amicus brief. I'm told

24 that -- well, it represents that the defendants don't oppose

25 the filing of the brief, and I believe the plaintiffs do not.

 4

1 It supports the plaintiffs' position on the Contracts Clause

2 issue.

3 At a quick glance, which is all that it's received

4 from me, I think this is different than the other motions for

5 amicus in that neither party opposes. But the Contracts Clause

6 issue has already been briefed and argued. I haven't decided

7 finally what to do with that brief, but I probably will deny

8 without prejudice the motion to file it, even though no party

9 opposes the filing of it, essentially for the reasons I didn't

02:27 10 permit City Life to intervene or file an amicus or the other

11 two amicus briefs in support of defendants to be filed, but

12 I'll have to think about that a little more.

13 The two matters remaining to be argued this afternoon

14 are Counts II and III. Is there anything before we go to the

15 argument on Count III?

16 MS. GREANEY: No, Your Honor. Only, could I just say

17 in response to the proposed amicus filing that we have not

18 assented to or opposed any of the amicus motions. We've taken

19 the same neutral position. And if Your Honor does end up

02:28 20 allowing another filing, we would want a chance to respond to

21 that.

22 THE COURT: Yes. And that is part of what I have in

23 mind when I say this has already been briefed and argued.

24 We're on a motion for preliminary injunction. I have to decide

25 it. The record has got to end so I can do that.

 5

1 And as I said, with regard to the other proposed

2 amicus briefs, it's without prejudice. If at a later stage in

3 the case I think it would be helpful, I can decide to accept

4 them.

5 MR. VETSTEIN: Your Honor, Richard Vetstein. I would

6 just add that when we were talking about Pacific Legal

7 Foundation, we told them that Your Honor had expressed

8 hesitation of accepting amicus briefs for the preliminary

9 injunction phase, and we kind of discussed that with them. And

02:29 10 they felt, Well, we wanted to bring these matters to the

11 attention of the judge.

12 I would note that their brief is really the only

13 amicus brief that actually reads like a real amicus brief in

14 the sense that it actually argues the legal merits as opposed

15 to the kind of legislative facts.

16 So for what it's worth, I skimmed through it. I

17 thought it was reasonably well done. And they're obviously a

18 property rights organization, and they're involved in a lot of

19 these cases. So I'll leave it to you. But I just wanted to

02:30 20 give you that kind of caveat. I did tell them what your

21 thoughts were during the course of the case.

22 THE COURT: And I did notice it addressed the legal

23 issues. The third proposed amicus brief that I didn't accept

24 with the information from the professor at Princeton, I noted

25 it didn't seem to address this case or the law. So in any

 6

1 event, I haven't read it, and I understand the parties'

2 positions and I'll think about them.

3 Should we go to Count II?

4 MR. VETSTEIN: We can go to Count II. So I was

5 planning on doing Count II and then Count III. Then I didn't

6 know if you wanted a discussion on irreparable harm. But

7 obviously that's part of the preliminary injunction. We've

8 covered a lot of it.

9 THE COURT: We have, we have, but that's a good

02:31 10 reminder. I'll give you a chance to discuss that, too.

11 MR. VETSTEIN: And then I think at the end, if you

12 wanted to talk about this brand new federal CDC moratorium,

13 we've read it. We talked about it last night. We don't think

14 it has any impact on the case, but we can certainly talk about

15 it.

16 THE COURT: Well, let's see, and this is all

17 preliminary. And you're going to do briefing tomorrow. You

18 can supplement this. I pointed it out to you. I doubt you

19 overlooked it. But I read about it last night at about 10:00.

02:32 20 And what's the plaintiffs' view as to whether it has any

21 relevance to any of the issues?

22 MR. VETSTEIN: So as we sit here today, with the

23 Massachusetts moratorium in place, the way that they structured

24 this, federal, is they basically said that if a state does not

25 have a moratorium that is as strict as this new federal

 7

1 moratorium, the federal will be kind of the bar. If a state

2 like Massachusetts has a stricter moratorium, then the state

3 moratorium would stay in place.

4 It is quite different than ours inasmuch as it only

5 applies to nonpayment situations. It does not apply to

6 for-cause or no-fault or squatting or any of the other type of

7 issues.

8 It also has a very unique and -- this is the problem

9 when the CDC is drafting an eviction moratorium. It's

02:33 10 incredibly poorly drafted. The tenant has to send the landlord

11 a form that basically goes through like four or five

12 check-the-boxes. They have to make less than $99,000 a year.

13 They have to certify that they've been impacted financially

14 from the pandemic; that they've searched for housing; that they

15 can't find it; that they've exhausted all government subsidies,

16 this whole laundry list. And only then will they be entitled

17 to the protections of the moratorium.

18 So, you know, it's kind of, it's an odd thing. And,

19 you know, at least -- there's kind of two scenarios. So the

02:34 20 first scenario is, okay, what happens if you leave the

21 moratorium in place? Well, the Mass. moratorium will stay in

22 place and the federal won't apply because it says that, if the

23 state is stricter, the state one takes precedence.

24 If you were to strike down the Massachusetts

25 moratorium, the federal would come in and essentially take its

 8

1 place. And then it would cover all nonpayment cases through

2 December 31, assuming that, you know, there's not a challenge

3 and itself doesn't get struck down.

4 I'm sure someone's going to file a suit somewhere.

5 I'm not sure if it's going to be us or it's going to be someone

6 in the D.C. circuit, but I mean, I'm already hearing a lot of

7 chatter on that.

8 So if the Act was struck down, there would still be a

9 moratorium in place, which would mean tenants would still be,

02:35 10 you know, not at risk of being displaced for nonpayment. It's

11 definitely narrower than the Massachusetts. So there's that.

12 And it does have this kind of certification process, and the

13 housing court would have to kind of figure out how to deal with

14 that. Because certain evictions could go forward. Certainly

15 voluntary agreements could go forward. Mediations could go

16 forward. The only thing that arguably wouldn't be able to go

17 forward would be contested nonpayment cases, which I think is,

18 that's kind of what -- I mean, partially what we've kind of

19 argued all along is, as long as you stop the end process, the

02:36 20 move-out order, then that might be constitutional. So, you

21 know, obviously there's a backstop here in case this moratorium

22 is struck down.

23 THE COURT: Well, it seemed to me -- and I really

24 haven't given this any serious thought, but the fact that the

25 President issued the executive order yesterday may for certain

 9

1 counts possibly -- I've taken a narrow view so far, as I think

2 I said maybe more narrow than the law requires, of what

3 evidence I should consider in determining legislative facts.

4 It's possible that the President's executive order is

5 something that could be considered in determining, A, you know,

6 whether there's still a reasonable basis to find there's an

7 emergency and some evidence of whether a moratorium on eviction

8 is a reasonable way of responding to the pandemic. That's

9 very -- that's really a question.

02:38 10 MR. VETSTEIN: Yeah. And I think in large part, we

11 haven't really made a substantial effort to dispute those

12 facts. Again, we're not parading out any epidemiologists that

13 are challenging what the Commonwealth says about the pandemic,

14 and we didn't really necessarily challenge whether the

15 governmental interest here was substantial. We've always been

16 challenging the fit, either the narrowly tailored or the

17 intermediate scrutiny, the means/ends text.

18 So, you know, again, I don't think that the federal

19 moratorium has said anything different from the affidavits that

02:38 20 the Commonwealth has submitted already, which by and large we

21 didn't dispute. The only little part of it that we disputed is

22 the tsunami of evictions that would result, at least in

23 Massachusetts.

24 The problem with the federal is there's 50 states and

25 50 different eviction statutory schemes. I mean, each day is

 10

1 different. So it's going to be a different analysis, at least

2 as far as Massachusetts goes, with our housing court and the

3 procedures they've implemented. We feel confident that we've

4 given you facts that show that, even if our moratorium is

5 lifted, that there will not be a tsunami. In fact, cases will

6 take longer to resolve because of COVID and because of the

7 measures that the housing court has implemented with virtual

8 hearings eliminated.

9 The sum, we don't think it has any impact. We've

02:39 10 already briefed the case. The case is teed up for resolution.

11 Everyone is waiting for a decision, both sides, and I think

12 that everyone, including the governor, needs to know if there

13 are any constitutional problems as he considers whether to

14 extend. I think that's very important.

15 THE COURT: Okay. Ms. Greaney, are you the one who

16 would like to say whether or not -- well, are you the one who

17 should address this?

18 MS. GREANEY: Yes, Your Honor, if that's acceptable to

19 the court. Yes, I agree that there's no technical impact on

02:40 20 our case. The Massachusetts statute is much broader, the

21 requirements in the declaration really narrow the number of

22 people to whom the federal moratorium would apply as compared

23 to the Massachusetts statute. So I don't think there's any

24 direct impact.

25 But I absolutely agree with Your Honor that there is

 11

1 significant impact in terms of legislative facts in this

2 document which is going to be published in the Federal

3 Register, and the court most certainly can take judicial notice

4 of a document like this.

5 I do think that not only does this CDC document sort

6 of emphasize some of the facts that we've already asserted, I

7 do think there's additional facts that are relevant, and

8 they're generally footnoted up. Many of those -- they

9 certainly reflect facts on the ground today, but some of those

02:41 10 facts, depending on what the source is, may also demonstrably

11 have existed back in April. And, you know, one particularly

12 interesting piece is found on 19. "In the absence of state and

13 local protections" --

14 THE COURT: Stop, stop, stop, stop.

15 MS. GREANEY: Sorry.

16 THE COURT: You're doing it again. You're going too

17 fast. One, if you want me to look at 19, you've got to let me

18 get it. And two, you need to speak more slowly at least for me

19 and maybe for the court reporter.

02:42 20 MS. GREANEY: Thank you, Your Honor.

21 THE COURT: So go ahead.

22 MS. GREANEY: So 19 says, "In the absence of state and

23 local protections, as many as 30 to 40 million people in

24 America could be at risk of eviction. A wave of evictions on

25 that scale would be unprecedented in modern times. A large

 12

1 portion of those who are evicted may move into close quarters

2 and shared housing or, as discussed below, become homeless,

3 thus contributing to the spread of COVID-19."

4 So this idea that a wave of evictions on the scale

5 that is anticipated nationwide would be unprecedented really is

6 relevant I think to the contention that we've certainly made in

7 our affidavits that the impact of removing the moratorium

8 prematurely here in Massachusetts would be quite significant.

9 THE COURT: All right. And footnote 18 goes to the

02:43 10 Princeton University Eviction Lab, which I think was the source

11 of information in one the amicus briefs I didn't accept.

12 MS. GREANEY: Yes, Your Honor.

13 MR. VETSTEIN: The other is to a blog post. I've

14 never seen a blog post cited in the Federal Register.

15 MS. GREANEY: Where the CDC has made these findings to

16 support its order, I certainly think the court could take

17 judicial notice of that. And there's nothing inconsistent --

18 not that I'm taking a position on any amicus brief; I'm not.

19 But there's nothing inconsistent with rejecting an amicus brief

02:44 20 that includes a citation to the same source and yet taking

21 judicial notice of what the CDC has said.

22 THE COURT: I believe that's right in principle. You

23 know -- well, you have an opportunity to make some filings by,

24 I said 11:00 tomorrow. But I just wanted to get your thoughts

25 on it. And if you have further thoughts, you can tell me

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1 tomorrow, but this is helpful.

2 MR. VETSTEIN: And the only thing I'd add, Your Honor,

3 is that obviously when they say 30 to 40 million at risk,

4 that's -- well, aside from disputing whether or not that's

5 accurate, because it's based upon a blog post by someone who we

6 don't even know who she is, that's in America. It's not in

7 Massachusetts. And again, you know, what happens in Tennessee

8 or Arkansas or Georgia -- Georgia has one of the least strict

9 eviction procedures. It's far different than Massachusetts,

02:45 10 which has one of the strictest.

11 THE COURT: Okay. Well, it's a fluid situation.

12 Okay. Let's move to Count II. That's the contention that the

13 statute section 3(a) --

14 MR. VETSTEIN: Your Honor, we talked to the court

15 reporter, and I was able to do a screen-share of the section.

16 THE COURT: Hold on just a second, please. Let me

17 pull out the statute and regulations. I'm not certain which of

18 my files it's in.

19 MR. VETSTEIN: I pulled it up, Your Honor, if you can

02:47 20 see this.

21 THE COURT: That's okay. And I can see you and

22 Ms. Greaney. I can't see everybody else, but you're the ones I

23 need to see. As long as I can see the two of you, that's okay.

24 MR. VETSTEIN: I could go back to -- I just thought,

25 it's kind of like a chalk, that we could highlight the

 14

1 language.

2 THE COURT: That's fine. I have the statute, too.

3 But as long as everybody in the public can see it -- and I'll

4 ask Ms. Loret, is that right? Is that on everybody's screen?

5 COURTROOM CLERK: It's visible to the public, yes.

6 THE COURT: All right. We'll try it this way.

7 MR. VETSTEIN: Okay.

8 THE COURT: So wait, wait. I've got a couple of

9 questions first, and I want to identify the correct standard.

02:48 10 MR. VETSTEIN: Okay.

11 THE COURT: Mr. Vetstein, so this provision in section

12 3(a)(i) prohibits terminating a tenancy. Do you claim that

13 that's speech rather than conduct?

14 MR. VETSTEIN: Yes.

15 THE COURT: The fact you can't terminate a tenancy is

16 speech. Okay. Well, I'll hear that. But I'm skeptical.

17 MR. VETSTEIN: We argue it's commercial speech.

18 THE COURT: Well, no. Then two -- well, all right.

19 Tell me why in your view section 3(a)(i) which prohibits

02:49 20 non-essential evictions for a residential unit -- it says,

21 "For the purposes of non-essential evictions for a residential

22 unit, landlord shall not terminate a tenancy." Why is that

23 speech and not pure conduct?

24 MR. VETSTEIN: Well, it's not conduct because it's --

25 okay. How do you terminate a tenancy in Massachusetts?

 15

1 There's basically two ways. The way that we think -- you send

2 a notice to quit either by certified mail or by constable.

3 That notice itself can be very different and have a lot of

4 different factual information depending on what type of

5 tenancy.

6 So for example, terminating a tenancy because of drug

7 use, for example, in order to do that, you would have to list

8 out all of the various incidents or facts that would go into

9 terminating a tenancy for violation of the lease for drug use,

02:51 10 or if it's noise --

11 THE COURT: But there you're talking about sending a

12 notice that's 3(a)(ii).

13 MR. VETSTEIN: That is true. It's not mutually

14 exclusive. So I mean, again, they're words on a piece of

15 paper. That's still speech. That's still speech.

16 THE COURT: No. I'm trying to sort these out. What

17 is the defendants' position? Is terminating a tenancy speech

18 or conduct?

19 MS. GREANEY: No, Your Honor. Terminating a tenancy

02:51 20 is conduct. The statute doesn't specify anything about the way

21 a tenancy is terminated. It simply forbids taking the legal

22 action of terminating a tenancy, and that's definitely conduct,

23 Your Honor.

24 THE COURT: All right. Then with regard to -- let's

25 say I agree with that -- and this all may be immaterial because
 16

1 I think the crux of the argument Mr. Vetstein was slipping into

2 is section 3(a)(ii). It says, "A landlord shall not, for the

3 purposes of non-essential eviction for a residential dwelling

4 unit, send any notice, including a notice to quit, requesting

5 or demanding that a tenant of a residential dwelling unit

6 vacate the premises."

7 I'm trying to, as usual, determine the standard. So

8 what are your respective positions on whether the notice to

9 quit is conduct that imposes incidental burden on speech that

02:52 10 the Supreme Court said in Sorrell, 564 U.S. 552, 567 is not

11 prohibited by the First Amendment?

12 MR. VETSTEIN: Your Honor, I think we're reading this

13 far too narrow because what it says is, "send any notice,

14 including a notice to quit," and that's non-exclusive,

15 "requesting or demanding a tenant of a residential dwelling

16 unit vacate the premises." So if I take out "a notice to quit"

17 here because it's superfluous, it says, "You cannot send any

18 notice requesting or demanding that a tenant of a residential

19 dwelling unit vacate the premises." "Any notice" is undefined.

02:53 20 A notice can be a text message. It can be an email. It can be

21 a letter. It might even be an oral in-person conversation.

22 THE COURT: Well, all right. I'll hear you on that.

23 I'm trying to ascertain --

24 MR. VETSTEIN: At minimum, if you assume it's a

25 written -- something in writing, a text, a formal notice or an

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1 email, then it's commercial speech. It's commercial speech.

2 THE COURT: Okay. And then that is --

3 MR. VETSTEIN: The Central Hudson standard would

4 apply.

5 THE COURT: So then Central Hudson says that the test

6 for commercial speech is what, intermediate scrutiny?

7 MR. VETSTEIN: Intermediate scrutiny. And the key is

8 "no more extensive than necessary to serve the governmental

9 interest." And then I would add that -- so no more extensive

02:55 10 than necessary to serve that interest, that's not rational

11 basis. It's not quite strict scrutiny.

12 THE COURT: It actually sounds --

13 MR. VETSTEIN: It sounds more strict.

14 THE COURT: Excuse me. I'll help you. It sounds like

15 strict scrutiny to me, although they say they're doing

16 intermediate scrutiny. Let me bring to your attention a case I

17 didn't tell you to consider the implications of. Lorillard

18 Tobacco, 533 U.S. 525, 561.

19 MR. VETSTEIN: I'm going to stop the screen-share.

02:56 20 THE COURT: All right. Lorillard is 2001. The

21 Supreme Court says in Lorillard, "The final step of the Central

22 Hudson analysis requires a reasonable fit between the means and

23 ends of the regulatory scheme." That sounds to me like a lower

24 standard than Central Hudson, but it's a more recent iteration

25 of the standard for commercial speech.

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1 MR. VETSTEIN: That would be an explicit overruling of

2 Central Hudson. The means/ends test, that's really the key

3 component of it. So I didn't hear any chatter on that.

4 THE COURT: I don't know who you hear chatter from,

5 but I'm telling you --

6 MR. VETSTEIN: In my readings, that is, of all these

7 cases.

8 THE COURT: Yeah. And as you've said, you're striving

9 to get it right. And to get the right answer, I have to know

02:57 10 what the question is.

11 MR. VETSTEIN: Yeah.

12 THE COURT: And they quote part of Central Hudson but

13 not the end of the sentence. They say -- these are outdoor

14 advertising regulations --

15 MR. VETSTEIN: For tobacco.

16 THE COURT: Yes. The final step of the Central Hudson

17 analysis, the quote, "Critical inquiry in the case," end quote,

18 "requires a reasonable fit between the means and ends of the

19 regulatory scheme." That sounds -- reasonable fit, that sounds

02:58 20 more like rational basis or at least intermediate scrutiny.

21 I'm just pointing it out to you.

22 MR. VETSTEIN: I'd be happy to take a look at the

23 tobacco case, and we can include that in our brief for

24 tomorrow. But Judge Stearns in the ACA case, he used the kind

25 of classic Central Hudson framework, no more extensive than

 19

1 necessary, so sort of a kind of heightened intermediate review.

2 The heightened review was also used in the attorney advertising

3 cases in fact that my sister has cited, Zauderer, Bates v. Bar

4 Association of Arizona, Ohio Bar. And they made the particular

5 point that blanket bans of speech or notices or advertisement,

6 that requires careful, I think Justice Stevens said careful

7 scrutiny. And that's what we have here is essentially a

8 blanket ban on a particular type of communication, albeit

9 commercial speech.

02:59 10 Again, you're still entitled to First Amendment

11 protection. You know, even an advertisement is and attorney

12 solicitation is and a notice to quit or any sort of notice

13 pertaining to whether or not a tenant has to vacate the

14 premises.

15 THE COURT: All right. Let me ask Ms. Greaney, what's

16 the defendants' position on whether a notice to quit is conduct

17 that imposes only an incidental burden on speech that the First

18 Amendment doesn't prohibit, according to Sorrell?

19 MS. GREANEY: It is indeed conduct, and the First

03:00 20 Amendment does not prohibit the regulation. So the language of

21 this regulation is actually, "A landlord or owner of a property

22 shall not, for the purposes of a non-essential eviction for a

23 residential dwelling unit, send any notice, including a notice

24 to quit, requesting or demanding that a tenant of a residential

25 dwelling unit vacate the premises."

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1 So looking at the entire language, there are several

2 elements to what is forbidden. It forbids sending a notice for

3 the purposes of the non-essential eviction for the residential

4 dwelling unit requesting or demanding that a tenant vacate the

5 premises. That is all conduct, Your Honor.

6 It is the case that notices to quit are typically

7 legally operative documents that are required by statute to be

8 sent. This statute does not refer to those statutes, but

9 Chapter 186 section 11 really concerns notices to quit.

03:01 10 Section 12 has to do with terminating a tenancy at will. But

11 regardless of whether this statute is limited to legally

12 effective notices under Chapter 186, it is clear that it is

13 limited to conduct because the only notices that are prevented

14 are notices that are for the purposes of a non-essential

15 eviction for residential dwelling unit. Even if it is possible

16 that a landlord would send a notice that isn't legally

17 effective, it's hard to understand why a landlord would do

18 that. So really the crux of this is it is prohibiting a

19 legally operative document from being sent, prohibiting the

03:02 20 Act.

21 THE COURT: Well, no. Actually, this somewhat merges

22 into Count III in the regulation. Because a communication --

23 Count III, you know, a landlord might want to send a notice

24 that says, Now you owe me $5,000, not $4,000, because you

25 didn't pay your rent last month. But if the landlord wants to
 21

1 do that, the regulation requires that it include other

2 information. So there are reasons somebody would send a notice

3 that has no legal effect.

4 And in fact, I think that's the import of the Adjarty

5 case that you cited several times. If somebody gets a

6 communication and it doesn't say "Notice to Quit" in the

7 statutory terms, they might mistakenly think they're obligated

8 to leave.

9 MS. GREANEY: That is absolutely true, Your Honor.

03:03 10 And Adjarty does say that and does acknowledge that

11 possibility. Even construed as broadly as possible, though,

12 section 3(a)(ii) is still conduct and not speech. It is

13 commercial conduct. And it's similar to what was discussed in

14 HomeAway v. City of Santa Monica.

15 THE COURT: What case is that?

16 MS. GREANEY: HomeAway v. City of Santa Monica. It's

17 918 F.3d 676. It's the Ninth Circuit. And that had to do with

18 the free speech --

19 THE COURT: Stop, stop. What page?

03:04 20 MS. GREANEY: So page 684 to 685 is where the most

21 relevant language is.

22 THE COURT: What is the language, please?

23 MS. GREANEY: "Restrictions on protected expression

24 are distinct from restrictions on economic activities or, more

25 generally, on non-expressive conduct." And it goes on to say

 22

1 that in the HomeAway case, the process of booking transactions

2 for home-sharing services, even though it required language and

3 even though it was a verbal act, it was not expressive conduct,

4 and therefore the ordinance that was passed in California did

5 not implicate the First Amendment.

6 Another I think very helpful cite on this is King v.

7 Federal Bureau of Prisons.

8 THE COURT: What's it called?

9 MS. GREANEY: King v. Federal Bureau of Prisons, 415

03:06 10 F.3d 634.

11 THE COURT: If you wait a minute, I'll see if I have

12 it. What page?

13 MS. GREANEY: 637.

14 THE COURT: Go ahead.

15 MS. GREANEY: So in that case a prisoner complained of

16 a free speech violation because he was not permitted to use the

17 telephone to call his broker to place a stock transaction. And

18 Judge Posnor said that -- he called this absurd. "He argues"

19 -- the prisoner that is -- "He argues that not letting him talk

03:06 20 to his broker on the phone infringes his freedom of speech, but

21 that is absurd; an order to sell, like a threat intended to

22 intimidate, is not the kind of verbal act that the First

23 Amendment protects."

24 If all verbal acts that relate to commercial conduct

25 were protected by the First Amendment, it would be very

 23

1 difficult to actually legislate anything about commercial

2 conduct since most commercial transactions require verbiage.

3 It's not possible to enter a contract without words. So it is

4 important to distinguish between words that are essentially

5 conduct in the commercial setting, a notice to quit, I'm

6 informing you that you need to leave the premises, from

7 expressive speech. And one of the classic cases about this is

8 the Giboney case, 336 U.S. 490. That's a 1949 Supreme Court

9 decision, and that case at page 502 --

03:08 10 THE COURT: How do you spell the first name?

11 MS. GREANEY: G-i-b-o-n-e-y. And this had to do with

12 an illegal activity to try to prevent a company from selling

13 product to nonunion distributors. And the whole course of

14 conduct was found violative of the particular statute. And

15 what the court said is that an expansive interpretation of the

16 guarantee of speech, such that the defendant was arguing -- or

17 such that the plaintiff rather was arguing, quote, "would make

18 it practically impossible ever to enforce laws against

19 agreements in restraint of trade as well as many other

03:09 20 agreements and conspiracies deemed injurious to society." And

21 that's on page 502.

22 So in order to regulate contacts and agreements of

23 various types, there always has to be an incidental impact on

24 speech. Because any sort of binding agreement is comprised of

25 words, whether it's --

 24

1 THE COURT: All right. I've got that. And I think

2 you may be right. But if this is deemed commercial speech,

3 what degree of scrutiny should it receive?

4 MS. GREANEY: So, Your Honor, it is an intermediate

5 degree of scrutiny, and the reasonable verbiage from Lorillard

6 is cited in our original opposition brief.

7 THE COURT: I didn't think you cited Lorillard.

8 MS. GREANEY: I believe we did, Your Honor. Sorry, so

9 many things.

03:10 10 THE COURT: Yes.

11 MS. GREANEY: Yes, page 19 of document 30. What we

12 said, "There also is 'a reasonable fit' between the means and

13 ends of the regulatory scheme." And that's from Lorillard. So

14 that is absolutely the standard that controls.

15 THE COURT: What page is that on of your brief?

16 MS. GREANEY: Our brief, it's 19 of our original

17 opposition to the motion for preliminary injunction.

18 THE COURT: Okay, good. Because I don't, as you may

19 have noticed, like to decide anything based on a case that you

03:11 20 haven't had an opportunity to address. But Lorillard is cited.

21 And as I said, I think Central Hudson said do intermediate

22 scrutiny, but the way it described it, it didn't sound like

23 intermediate scrutiny. But you argue that the Lorillard test

24 is the correct test?

25 MS. GREANEY: Yes, Your Honor.

 25

1 THE COURT: All right. So with that framing,

2 Mr. Vetstein, if you want to say -- you can say more about

3 whether this should be treated as conduct with an incidental

4 burden on speech that's not prohibited by the First Amendment

5 but particularly address -- if I think you're probably right

6 for preliminary injunction purposes and it's subject to

7 intermediate scrutiny, you should address that.

8 MR. VETSTEIN: Yeah. I just want to point out I

9 pulled up Lorillard, in the syllabus, which is referencing page

03:12 10 2421 and 2422. It does go through the same Central Hudson

11 four-part test that we cite, which is the

12 not-more-extensive-than-necessary to serve that interest.

13 THE COURT: Let me see.

14 MR. VETSTEIN: I mean, if you look at the syllabus,

15 and then it's referred to at 2421, 2422. I'm just trying to

16 get the pincite. Also plurality opinion, too, it looks like.

17 THE COURT: Yeah, it is on 2421. They quote Central

18 Hudson. But then, as I said, if you go to 2425, they say, "The

19 final step of the" --

03:13 20 MR. VETSTEIN: Hold on. It's like a block cite. So

21 it is on 2421, and it's a block cite starting with, "The

22 analysis contains four elements," and then it goes through and

23 it quotes Central Hudson verbatim.

24 MS. GREANEY: It does. I'm looking at it.

25 MR. VETSTEIN: So I mean, that's --

 26

1 THE COURT: But then, here, go over to --

2 MR. VETSTEIN: No. I see what your saying. I mean,

3 if Lorillard is changing Central Hudson, which would be a

4 ground-shattering type of -- I just -- I mean, I'm happy to

5 brief it. I don't think that it did take away that -- I mean,

6 "reasonable," when you hear "reasonable," that sounds like

7 rational basis. I hear what you're saying. When you hear, "No

8 more extensive than necessary," that sounds more like

9 heightened, intermediate to strict.

03:15 10 So I don't think that Lorillard changed the standard.

11 It might have attempted to put its little spin on it, but it's

12 a -- so I'd love the opportunity to address it again.

13 THE COURT: All right.

14 MR. VETSTEIN: But I do want to address this verbal

15 act notion. The attorney general states, it's like a fact,

16 they cite the Airbnb case and then this prisoner case, and

17 that's all they cite.

18 The Airbnb case, it dealt with the transaction online,

19 like the electronic transaction that you click a button to say,

03:15 20 you know, I accept the reservation. And they said that that is

21 conduct. I mean, yes, that sounds like the consummation of a

22 commercial transaction. I didn't really see too much talking

23 or language or speech there.

24 The prisoner case, I mean, I just glanced over it, but

25 it looked like it had more to do with the fact that they

 27

1 weren't happy the prisoner was using the phone to talk to his

2 stockbroker, and prisoners have less First Amendment rights

3 than the rest of us.

4 So if that's their argument, that those two cases -- I

5 mean, we've cited the 44 Liquormart case, which is the Supreme

6 Court case dealing with pricing on liquor. So the actual

7 sticker or the price information in an advertisement for a Bud

8 Light, the U.S. Supreme Court said that that was protected

9 commercial speech. So if a can of Bud Light is protected

03:17 10 commercial speech, how does suddenly, you know, a formal notice

11 from a landlord to a tenant, how is that not commercial speech?

12 And also, again, I want to reiterate that the statute

13 as drafted -- and it's not our job to say, you know, it should

14 have said this and it should have said that. It's undefined

15 and it's vague. It's really unconstitutionally vague. Because

16 it picks up -- including notices to quit, but it picks up all

17 types of speech or notices or texts or emails that would

18 request or demand that a tenant vacate. So if, for example,

19 Mr. Matorin wants to propose a cash-for-keys deal to his tenant

03:17 20 and he approaches him, say by email, and part of the

21 conversation is, Well, I want you to leave --

22 THE COURT: I'm sorry, cash --

23 MR. VETSTEIN: Cash for keys, we call it. Basically

24 the landlord says to the tenant, Hey, you need to get out.

25 I'll give you 60 days, and I'll give you five grand to move
 28

1 out. Very common, actually, in Massachusetts. It's called

2 cash for keys. But he can't do that because he would then be

3 requesting or demanding that the tenant vacate. So that whole

4 -- and that happens a lot in Massachusetts, a lot. I've done a

5 ton of them. Some for big money, too.

6 Also, I wonder if the attorney general would have a

7 problem with a landlord barging into a tenant's apartment --

8 THE COURT: Although, as I read the statute, it

9 wouldn't prohibit the landlord from saying that to his tenant.

03:18 10 It just would --

11 MR. VETSTEIN: Well, then --

12 THE COURT: Excuse me, excuse me. Let me finish.

13 MR. VETSTEIN: Yes. I'm sorry.

14 THE COURT: This deals with sending a notice, not

15 saying something orally. Anyway, go ahead.

16 MR. VETSTEIN: Okay. I also want to point to the

17 attorney general's advisory, and I mentioned this yesterday,

18 which was docket number 88-1.

19 THE COURT: Wait a minute. The advisory, are you

03:19 20 talking about the press release?

21 MR. VETSTEIN: The press release, yes.

22 THE COURT: Now I need to figure out where I put the

23 press release.

24 MR. VETSTEIN: I could pull it up on my screen if you

25 want it again, Your Honor.

 29

1 THE COURT: Yes, well, pull it up.

2 MR. VETSTEIN: Here we go. I'll just go to the top.

3 This is a press release, July 17. I've highlighted the

4 section. So here you have the AG talking about self-help

5 evictions, but then this is the concerning part. She says, "It

6 is unlawful to threaten, intimidate or coerce a tenant to get

7 them to leave property, including by threats to report them to

8 immigration. This protection applies to all tenants, whether

9 they have a lease, a sublease or no lease at all." Then it

03:20 10 goes on to talk about the AG receiving complaints and it can

11 taken enforcement action.

12 So this is all in the context of the eviction

13 moratorium. And we've been contacted by landlords who say,

14 Well, I don't want to get in trouble with the attorney general,

15 and if she says that something I say or write can be deemed a

16 threat or a form of intimidation, that's -- you know, and she's

17 linking that to the Act. What is a threat? What is

18 intimidation? I mean, that's for her to define on her own.

19 And so you have a situation where the landlords say,

03:21 20 Well, can I approach a tenant and ask them to move out? And if

21 I use colorful language, is the tenant going to report me to

22 the AG, and are they going to deem that a violation of the Act?

23 Because that seems to indicate that the AG might do that, and

24 she's obviously the chief law enforcement officer of the

25 Commonwealth. So she's linking these kind of historically

 30

1 vague words, "threaten," "intimidate" or "coerce," that are

2 undefined. And there's case law on disorderly conduct

3 ordinances which are unconstitutionally vague. So we get into

4 this kind of slippery slope. And it's a chill, it's a chill on

5 speech.

6 And so if I have Mr. Matorin who wants to propose the

7 cash-for-keys deal and it's done in writing so it could be

8 classified as a notice, and the tenant says, Well, you just

9 threatened me, threatened that I should move out, so I'm going

03:22 10 to report you -- so again, the Act is not well defined.

11 If it only said a notice to quit pursuant to General

12 Laws Chapter 186, blah, blah, blah, maybe. I still think it

13 would have constitutional problems. But again, the problem is

14 it's vague, it's undefined, and it leaves too much to

15 interpretation. So it operates as a ban on speech or ban on

16 commercial speech. And that's what the Supreme Court was

17 worried about in the attorney solicitation cases and the 44

18 Liquormart cases. It goes too far. So I definitely think that

19 there's a major First Amendment problem here.

03:23 20 MS. GREANEY: Your Honor, could I address some of the

21 things that Mr. Vetstein has been saying?

22 THE COURT: Of course.

23 MS. GREANEY: Thank you, Your Honor. So starting with

24 the standard in terms of the Lorillard case, I just wanted to

25 be clear that the Supreme Court precedent after Central Hudson

 31

1 makes clear that reasonableness is what applies in the

2 commercial setting.

3 And one of the citations in one of our briefs, it

4 might be our sur-reply, is Florida Bar v. Went For It, Inc.,

5 515 U.S. 618.

6 THE COURT: Let me look. What page of the decision?

7 MS. GREANEY: 632.

8 THE COURT: 632?

9 MS. GREANEY: Yes.

03:25 10 THE COURT: And what --

11 MS. GREANEY: So the paragraph starts, "Passing to

12 Central Hudson's third prong" --

13 THE COURT: Yes.

14 MS. GREANEY: -- "we examine the relationship between

15 the bar's interests and the means chosen to serve them." It

16 goes on to discuss the case called Board of Trustees, State

17 University of New York v. Fox.

18 THE COURT: I have this. Hold on just a second.

19 Maybe you should be on the Supreme Court. They say something

03:26 20 is clear, and then as I read this, I'd say they make it cloudy.

21 But it says, "In Fox we made clear that the least restrictive

22 means test has no role in the commercial speech context. What

23 our decisions require instead is a fit between the

24 legislature's ends and the means chosen to accomplish those

25 ends, a fit that is not necessarily perfect but reasonable that

 32

1 represents not necessarily the single best disposition but one

2 whose scope is in proportion to the interests served." If they

3 stopped there, I think I would understand it. Then it goes on

4 and says, "that employs not necessarily the least restrictive

5 means but a means narrowly tailored to achieve the desired

6 objective." So I guess here they're saying narrow tailoring is

7 not least restrictive. Perhaps I misunderstood that anyway.

8 MS. GREANEY: I think that's right.

9 THE COURT: That's what it says.

03:27 10 MS. GREANEY: I think that's right, Your Honor, but I

11 also think it's -- the overarching point is that it's not

12 strict scrutiny. It is a lower level of review that applies to

13 commercial speech and that necessary is not a requirement. A

14 fit that is not necessarily perfect but reasonable is what the

15 court is looking for in commercial speech in terms of a

16 regulation.

17 Going back for a moment to the conduct question, there

18 is more authority in our motion to dismiss and in our other

19 briefing, International Franchise v. City of Seattle, 803 F.3d

03:28 20 389, and that's a case that had to do with a minimum wage

21 escalation and whether or not -- the way --

22 THE COURT: Sorry. What case?

23 MS. GREANEY: It's called International Franchise v.

24 City of Seattle, 803 F.3d 389.

25 THE COURT: Let me see if I have it. What page?

 33

1 MS. GREANEY: So at page 408 --

2 THE COURT: Okay. What language?

3 MS. GREANEY: So the court was examining a statute

4 that had to do with minimum wage and whether the minimum wage

5 was going to be escalated, and at what rate had to do with the

6 size of the business. And franchises were determined to be in

7 the group of businesses to which the most aggressive increase

8 in minimum wage applied. And this was challenged on a free

9 speech basis, the idea being that the franchise agreement is

03:29 10 speech.

11 The court rejected that idea and said that the

12 franchise agreement, quote, "exhibits nothing that even the

13 most vivid imagination might deem uniquely expressive." That's

14 at page 408. The point being, Your Honor, that a contract is

15 not a form of expressive speech. A contract is a form of

16 commercial activity. Notice that was sent pursuant to a

17 contract or in connection with a contract would be the same,

18 would be commercial activity and not expressive speech.

19 Thirdly, I just want to get to the press release that

03:30 20 Mr. Vetstein was speaking of.

21 THE COURT: Hold on just one second, though, please.

22 Okay, the press release.

23 MS. GREANEY: So the press release that Mr. Vetstein

24 has been speaking of, the highlighted language that he spoke

25 to, there's a couple of problems with what he said.

 34

1 Number one, this press release doesn't say anything

2 about the source of law. The statement is, "It is unlawful to

3 threaten, intimidate or coerce a tenant to get them to leave

4 the property, including by threats to report them to

5 immigration authorities." That is an unremarkable statement.

6 It does not cite this particular statute that is at issue

7 before Your Honor as the source of that authority. So honestly

8 this is --

9 THE COURT: Excuse me. That's language from the

03:32 10 Massachusetts Civil Rights Act.

11 MS. GREANEY: Yes, it is, Your Honor. I was just

12 going to get to that.

13 THE COURT: But, you know, it's used in a press

14 release -- let me see if I can find my copy of the press

15 release.

16 MR. VETSTEIN: Just look at the title, Your Honor.

17 It's calling for the extension of the moratorium.

18 THE COURT: Yes, all right. It's used in a document

19 that relates to the moratorium.

03:32 20 MS. GREANEY: That is correct, Your Honor. It's used

21 in a document that is also talking about the moratorium, but

22 the acts that are referred to here are unlawful, totally

23 separate and apart and independent of the moratorium. And this

24 press release doesn't suggest anything different.

25 THE COURT: Now I'm going to have to pause, but does

 35

1 the Massachusetts Civil Rights Act make it unlawful for a

2 landlord to say to a tenant who is an undocumented alien, "I'm

3 going to tell ICE"?

4 MS. GREANEY: Well, I can't, Your Honor, speculate

5 about any particular hypothetical that is not before the court.

6 But I could say there are legal consequences to certain types

7 of verbal acts. There are tort consequences, there are Chapter

8 93A consequences. And the Massachusetts Civil Rights Act says,

9 "Whenever any person or persons, whether or not acting under

03:33 10 color of law, interfere by threats, intimidation or coercion or

11 attempt to interfere by threats, intimidation or coercion with

12 the exercise or enjoyment of any other person or persons of

13 rights secured by the Constitution or laws of the United

14 States," and then it goes on.

15 THE COURT: But you don't have a constitutional or

16 statutory right to live in an apartment without paying rent.

17 MS. GREANEY: I think that any particular instance in

18 which a landlord is engaging in some sort of threatening or

19 coercive behavior would have to be individually analyzed to

03:34 20 determine whether it is unlawful. I am saying that that

21 determination is independent of the statute that is before Your

22 Honor, except insofar as the statute, you know, disallows the

23 termination of a tenancy or the sending of a notice.

24 So the possibility -- I think that this press release

25 is entirely a red herring, and the possibility of there being

 36

1 an enforcement action in any particular instance, that we can't

2 really speculate about now. We're talking in hypotheticals.

3 THE COURT: I think you might want to tell the

4 attorney general to talk to you before she issues her press

5 release because the press release is at least complicating and

6 possibly jeopardizing the finding concerning the

7 constitutionality of the statute that she ardently wants to be

8 found valid.

9 MS. GREANEY: Your Honor, I maintain that the press

03:35 10 release is not relevant to anything that's before the court at

11 this time.

12 THE COURT: Okay. Ms. Greaney, is there anything else

13 you'd like to say on the Count II issue?

14 MS. GREANEY: Well, Your Honor, I don't think Your

15 Honor needs to even get to Central Hudson because I believe

16 this is conduct --

17 THE COURT: No. I understand that, and I may come out

18 that way. But I want to hear complete argument. So, you know,

19 you're saying the Central Hudson test is the Lorillard test.

03:36 20 Why do you meet the Lorillard test?

21 MS. GREANEY: Well, first of all, first, there's the

22 very first prong, which is whether the speech would be

23 inherently misleading or unlawful. And you have to determine

24 that, because anything that is unlawful or inherently

25 misleading can be regulated without going further into the

 37

1 other steps of the Central Hudson analysis.

2 So our position is that to send a notice to quit

3 telling a tenant that they must vacate the premises during a

4 period of time when there is a moratorium on evictions would be

5 inherently misleading and therefore that is an activity that

6 can be prohibited because it would be confusing to tenants to

7 receive notices telling them they must leave when the

8 Massachusetts legislature has imposed a moratorium on eviction

9 proceedings.

03:37 10 And so this is speech that can be regulated without

11 regard for the next three prongs of the Central Hudson standard

12 because it would be inherently misleading to send the notice in

13 the context of an ongoing moratorium that is currently in

14 place. And we certainly make that argument in our papers. In

15 the event that Your Honor doesn't believe it would be

16 inherently misleading, then going through the prongs of Central

17 Hudson. I don't think there's any question that there is a

18 substantial interest here.

19 THE COURT: Okay. That's agreed.

03:38 20 MS. GREANEY: Okay. Thank you, Your Honor. So then

21 the question becomes the fix, whether it materially advances

22 the goals of the statute and whether it's reasonably drawn to

23 meet those goals.

24 And in terms of material advancement, I would say that

25 is quite clear, because as Your Honor said in Adjarty, the

 38

1 Supreme Judicial Court of Massachusetts has said that when

2 notices to quit are sent, tenants sometimes believe that a

3 notice like that means they have to leave and that there is a

4 consequence of movement from one living space to another or

5 potentially into homelessness as a consequence of sending

6 notices to quit.

7 So we also have information included in our

8 affidavits. One study that I think was done in Milwaukee

9 showed something like 48 percent of people who were displaced

03:39 10 from their homes moved just because of the notice and not

11 because of informal -- sorry -- formal eviction proceedings.

12 So we've clearly shown in this case and the SJC has

13 already agreed that there is a material advancement of the

14 goal, and the goal here is to keep people in their homes, to

15 keep people from moving around in the middle of a deathly and

16 highly contagious pandemic.

17 And I've disagreed of course throughout the case with

18 Attorney Vetstein's view, which is that the only eviction

19 proceedings that matter in the context of the pandemic are

03:39 20 those where there has actually been an execution obtained where

21 a person or a family is being actually physically removed.

22 THE COURT: I understand that because I referenced it.

23 I have Adjarty in mind on this. So you say there's a

24 reasonable fit if the prohibition on sending a notice to quit

25 is treated as speech. It's essentially -- there's a reasonable

 39

1 fit in terms of preventing people from leaving, doubling up,

2 crowding homeless shelters, becoming homeless, because Adjarty,

3 among other things, tells me that people who get those notices

4 often frequently -- often think they're required to leave and

5 leave.

6 MS. GREANEY: Yes, that is how section 3(a)(ii)

7 materially and directly advances the goals of the statute.

8 Additionally, section 3(a)(ii) is reasonably drawn

9 with appropriate tailoring because, as the court pointed out,

03:41 10 it only prohibits the sending of a notice, the sending of a

11 notice in the context where the notice is sent, quote, "for the

12 purposes of a non-essential eviction for a residential

13 dwelling." That is extremely narrow. And so the intermediate

14 scrutiny test of Central Hudson is easily surpassed -- I'm

15 sorry, Your Honor. I shouldn't use a word like "easily," which

16 you've said before. Bad habit. The Central Hudson is

17 surpassed by this statute, especially section 3(a)(ii).

18 THE COURT: Let's call it the Lorillard test, the

19 reasonable fit. How is that different from rational basis

03:42 20 review?

21 MS. GREANEY: Well, Your Honor, in Florida Bar v. Went

22 For It, the court does mention this. The court says, the

23 Supreme Court says, "Of course" -- and this is also on page

24 632 -- "we do not equate this test with the less rigorous

25 obstacles of rational basis review."

 40

1 THE COURT: 632.

2 MS. GREANEY: 632.

3 THE COURT: Hold on a second. Oh, yeah, that's the

4 next sentence.

5 MS. GREANEY: "Of course we do not equate this test

6 with less rigorous obstacles of rational basis review. For

7 example, we observed that the existence of 'numerous and

8 obvious' less burdensome alternatives to the restriction on

9 commercial speech is certainly a relevant consideration in

03:42 10 determining whether the fit between ends and means is

11 reasonable."

12 So I think it is fair to say that the standard under

13 Central Hudson is not any rational justification. Under

14 rational basis review, the only question is whether the

15 government has a rational basis for the regulation, and that is

16 it.

17 Under Central Hudson, there is the ability to look at

18 the fit, to look at whether there are alternatives. But here,

19 there is no less restrictive alternative that would accomplish

03:43 20 the same goal, the regulation, the statute as tailored as

21 narrowly as it can be to accomplish the goal of not having

22 tenants receive notices to quit, which may inspire them to feel

23 that they need to leave their homes in the middle of a

24 pandemic.

25 THE COURT: Thank you. Mr. Vetstein, is there

 41

1 anything briefly that you'd like to say in response to that?

2 MR. VETSTEIN: Yes. The problem is a notice --

3 because of what the SJC said, that there's no requirement that

4 a tenant has to leave upon service of a notice to quit, there's

5 nothing inherently misleading either before the moratorium was

6 in place or now that it is in place.

7 The law says a tenant doesn't have to leave. And the

8 facts on the ground are that most, the vast majority of

9 tenants, they do not leave. And then we're also dealing with

03:44 10 kind of apples to oranges here.

11 THE COURT: Why wouldn't it be misleading to issue the

12 notice to quit? I mean, what does the notice to quit say?

13 MR. VETSTEIN: Well, that's the thing. So there is no

14 legal requirement in Massachusetts that a notice to quit has to

15 say the words, "You must vacate." The only -- all the purpose

16 of a notice to quit is to call a default. It's a default

17 notice that you haven't paid rent under the lease, so that is

18 an event of default, or you've done something, a behavioral

19 breach, you've been smoking in the unit, or you've let someone

03:45 20 in that you're not supposed to, drug activity, and therefore, I

21 am terminating your tenancy.

22 There is no legal requirement, as far as I'm aware,

23 that says a notice to quit has to have in any type of bold

24 language or whatever, "You're out of here in X days." It

25 doesn't have to say that.

 42

1 THE COURT: Do you have to provide a notice to quit if

2 you want to take advantage of the summary process?

3 MR. VETSTEIN: You do. And part of it -- and it's an

4 important part. So part of the utility of the notice for

5 nonpayment cases is it triggers cure rights for tenants. So it

6 says to tenants, You haven't paid. You haven't paid August 1,

7 and now you haven't paid September 1. You owe $2,000. Under

8 the law, you have a right to cure. You can pay the two grand

9 by the first court date, and you will avoid eviction.

03:46 10 Again, it doesn't have to say and it doesn't require

11 legally that the tenant has to get up and leave when there is a

12 notice to quit, especially for nonpayment. And there's two

13 cure rights in the statutes. There's one straight for

14 nonpayment and another for tenancies-at-will, and both

15 essentially allow the tenant to pay what's owed up to, I

16 believe it's the Monday entry date I think it is, and that's

17 Mass. General Laws 186, section 11, I believe. So again,

18 important functions that the moratorium essentially messes

19 with.

03:47 20 And again, our whole argument, you know, we're dealing

21 with -- we're looking at it one way and the AG is looking at it

22 the other way. The AG has a very narrow view of it. And the

23 press release is very important. I think it's critical because

24 it's a pronouncement from the chief law enforcement officer in

25 the Commonwealth. The heading is "Extend the Moratorium," and

 43

1 then the next thing you see is an announcement to all landlords

2 regarding notices, you can't threaten, intimidate or do

3 anything to tenants because you're going to be violating the

4 moratorium.

5 So any reasonable person reading it, a non-lawyer

6 landlord, like our clients, they're going to read that and say,

7 Oh, jeez, like, I basically can't say anything, can I? And I

8 can't send anything, can I? And our advice to the landlords

9 is, No, don't do it, don't risk it. Just stand down. You have

03:48 10 to stand down during this entire moratorium. I wouldn't even

11 approach a tenant with anything in writing, and I would be very

12 careful what you say in person because it could be used against

13 you. Because again, the provision is so broad it's picking up

14 both the Act of terminating tenancy and any notice, again, it

15 could be oral, text --

16 THE COURT: Okay, I've got that. I've got that.

17 MR. VETSTEIN: One word on the fit.

18 THE COURT: Go ahead.

19 MR. VETSTEIN: I just wanted to complete the argument

03:48 20 on the fit. No more extensive than necessary. So I mean, a

21 lot of other states don't have this requirement. New York

22 didn't have it, I believe Arizona, a few other states didn't

23 have a ban on notices to quit.

24 Again, where there's no requirement to move out

25 legally, it is -- and then the notices serve another important

 44

1 function with respect to cure rights. It does go over that

2 line, and it is more extensive than necessary. There are other

3 things -- and it's not for us to decide what those other things

4 are, but there are other things that could achieve the same

5 objectives, again stopping short of a ban on speech, commercial

6 speech and targeting the move-out orders. That would be an

7 alternative.

8 THE COURT: Okay. It's now 3:50. We'll take about a

9 15-minute break. I want to talk with my law clerks and then

03:49 10 we'll come back to the argument on Count III. Court is briefly

11 in recess.

12 (Recess taken 3:50 p.m. - 4:11 p.m.)

13 THE COURT: Okay. Do we have Ms. Greaney on here

14 somewhere?

15 MS. GREANEY: Yes.

16 THE COURT: There you are. Okay. Let's move to the

17 argument on Count III.

18 The defendants argue that the plaintiffs have no

19 standing with regard to the regulation, which at the moment,

04:12 20 under that test in McKee, at page 47, doesn't sound like that

21 promising of an argument. But perhaps I don't understand it.

22 MR. VETSTEIN: Do you want me to address that, Your

23 Honor?

24 THE COURT: No. Let's let the defendants go first.

25 MS. GREANEY: Thank you, Your Honor. So there is no

 45

1 standing on Count III, and that's because there isn't actually

2 any allegation of an injury-in-fact. An injury-in-fact has to

3 be a concrete injury that is pending. It's not a hypothetical

4 injury. And none of these plaintiffs have claimed any injury

5 related to their decision not to send notices under the

6 regulation.

7 THE COURT: Doesn't Ms. Baptiste -- and actually I

8 don't have the -- I'll have to lay my hands on the amended

9 complaint and check, but I thought Ms. Baptiste alleged that

04:13 10 she wants to send a notice of rent due to her tenants but she's

11 not doing so because she doesn't want to have to include in the

12 notice the statement that her tenants cannot be evicted or the

13 hyperlink directing the tenants to legal aid and pro tenant

14 advocacy groups.

15 MS. GREANEY: Yes, Your Honor, she has stated that in

16 her affidavit. I would contend that is not an injury-in-fact.

17 Ms. Baptiste does not explain how she is injured by her choice

18 not to send a notice.

19 THE COURT: I interpreted it to be that she's chilled

04:14 20 in communicating, speaking. And McKee says, "Where the

21 plaintiff claims injury based on such a chilling of speech,

22 plaintiff must establish with specificity that she's within the

23 class of persons potentially chilled." So she's somebody to

24 whom the notice required by the regulation is directed, and she

25 says, I'd like to tell my tenant how much my tenant owes me,
 46

1 but I don't want to tell her here is how you find City Life.

2 MS. GREANEY: Well, Your Honor, the only thing that

3 the regulation goes to is the sending of a notice, a notice of

4 missed rent. And what the statute provides is that -- I'm

5 sorry. What the regulation provides is that landlords should

6 provide tenants of residential dwelling units a written notice

7 of each missed rent payment. And if the landlord delivers such

8 a notice, they must include the disclosures.

9 This is a compelled speech claim. This is not a

04:15 10 situation where the claim is for an inhibition on speaking.

11 The claim in the framework that's been alleged is that there is

12 forced speech and that there's a requirement that the tenant

13 actually -- that there's a requirement that the speaker

14 actually give a particular speech.

15 THE COURT: Hold on just one second. I'm missing my

16 law clerks more and more because now I've misplaced the

17 regulation.

18 All right. Forced speech claim. Why doesn't she have

19 standing to make a forced speech claim?

04:17 20 MS. GREANEY: Because she's not alleging that she's

21 forced to make the speech. She's alleging that the notice is

22 optional, that she may send it or she may not, and she has

23 chosen not to send it.

24 THE COURT: Well, how does that differ from the St.

25 Patrick's Day Parade case, Hurley? In order to get a permit,

 47

1 the organizers of the private parade were being told by the

2 government that they had to include gay and lesbian groups

3 proclaiming their sexual identity, and they didn't want to do

4 that, and the Supreme Court said that was impermissible forced

5 speech.

6 MS. GREANEY: Well, Your Honor, that's a different

7 type of speech with a different level of protection. A public

8 parade is expressive speech. This is commercial speech.

9 THE COURT: Actually, the Supreme Judicial Court found

04:18 10 it wasn't expressive speech. That was at the heart of the

11 issue. There was just one dissent, citing Wooley.

12 MS. GREANEY: But --

13 THE COURT: But anyway, and the Supreme Court said

14 it's expressive speech. Why isn't it -- let me jump ahead a

15 little bit, and I really do want to hear you on this, but it

16 doesn't seem to me it's a standing issue, and you'll have

17 anticipated this because I sent you the severability cases.

18 But I look at the regulation. As I understand it, you

19 know, the regulation 5.032 is three paragraphs. The first

04:19 20 paragraph says you should, you don't have to, send a notice

21 about how much rent is owed. But if you do, one, you have to

22 say this is not a notice to quit; you're not being evicted; you

23 don't have to leave. And I thought that that might be -- well,

24 this is content-based, right? If it's speech, isn't it

25 content-based?
 48

1 MS. GREANEY: If it is speech, it is content-based,

2 but it is commercial speech, Your Honor.

3 THE COURT: Yes, I'm going there. And then if it's

4 commercial speech, it's subject to that Central Hudson standard

5 that we just discussed. No?

6 MS. GREANEY: No, Your Honor. It would be subject to

7 the Zauderer standard which is a rational basis standard

8 because that is the framework for a disclosure claim.

9 THE COURT: Okay. So Zauderer, that's, you say,

04:20 10 rational basis?

11 MS. GREANEY: Yes, Your Honor.

12 THE COURT: All right. And then you would say -- so

13 you say that's a disclosure because that's just telling them

14 what the law is, right?

15 MS. GREANEY: Correct, Your Honor.

16 THE COURT: So that's your position. And there's a

17 rational basis, the Supreme Judicial Court tells us in Adjarty,

18 people who get notices to quit often leave, and we don't want

19 them to leave, the government doesn't want them to leave during

04:21 20 a pandemic. That's the argument that would save paragraph 1,

21 right?

22 MS. GREANEY: Yes, yes, Your Honor.

23 THE COURT: And then with regard to paragraph 3, is

24 your argument the same?

25 MS. GREANEY: Yes, Your Honor. Paragraph 3 refers to

 49

1 a website maintained by the state agency that simply has a copy

2 of the moratorium itself and the form that a tenant could use

3 to inform the landlord that the reason that the tenant hasn't

4 paid is because of COVID-19, related to financial impact from

5 COVID-19.

6 We haven't talked about that aspect of the statute

7 because it's not relevant to any other count, but that is a

8 provision in the statute to avoid an adverse credit report if

9 one gives the notice to the landlord. And the EOHED has

04:22 10 promulgated a form that tenants can use for that purpose, and

11 that website that's listed in the third paragraph simply refers

12 tenants to the form and to other information about the

13 moratorium.

14 THE COURT: So the analysis essentially in paragraphs

15 1 and 3 from the defendants' perspective is the same. But it's

16 paragraph 2 that to me raises the substantial forced speech

17 problems. It has links to Mass. Housing, which I think relates

18 to how you get rental assistance. But particularly then

19 additional information -- well, resources for tenants is

04:23 20 available at a particular website. And if you go to that

21 website, it will tell you about a number of tenants' rights

22 organizations, including City Life, that wanted to intervene in

23 this case opposed to the plaintiffs.

24 So they say, you know, we don't want to be compelled

25 to tell tenants to go to our adversaries or how to go to our

 50

1 adversaries. And this is indistinguishable from Becerra.

2 MS. GREANEY: Yes, Your Honor. It is only, to be

3 clear, that last sentence of the second paragraph. In terms of

4 the opposition to the motion to dismiss, the plaintiffs have

5 really only argued about the very last sentence, which is,

6 "Additional information about resources for tenants is

7 available at," and it gives the Mass. Housing Partnership

8 website.

9 THE COURT: So even if we narrow the focus that way,

04:24 10 why isn't the last sentence permissible in view of Becerra and

11 other forced speech cases?

12 MS. GREANEY: Because, Your Honor, for two reasons.

13 First of all, this isn't any sort of controversial speech. It

14 is simply referring to resources. It is factually correct that

15 resources can be found at this website. This is not the type

16 of speech that requires somebody to take a position, requires

17 the sender of the communication to take a position on a

18 controversial issue or to take a position that they do not

19 agree with on an issue. It simply is informative, and

04:25 20 therefore it is purely factual and fits into the Zauderer

21 framework. It really is distinguishable from Becerra.

22 THE COURT: How is it distinguishable from Becerra?

23 The people had -- institutions that were pro life were being

24 required to post signs that told people who came to see them

25 how to find abortion services, and they didn't want to

 51

1 communicate that.

2 MS. GREANEY: So for one thing, in Becerra the clinics

3 were required to give the notice to all of their clients, to

4 everybody who came in the door for services.

5 As Your Honor pointed out, this regulation says the

6 landlord should send -- if they send in a complaint, looking at

7 the allegations of the complaint, there's no allegation from

8 the landlords that they feel obligated to give the speech.

9 They say that they have opted not to because they don't like

04:26 10 the disclosure provision, in particular, just that one sentence

11 in the second paragraph of the disclosure.

12 So it is factual information. But also, the

13 information that is included is not controversial information.

14 It simply is a referral to a website that has, you know,

15 resources for tenants. This does not rise to the level of a

16 political controversy the way that the disclosure about

17 abortion services did in Becerra. And our citation on that or

18 one of our citations on that is the CTIA case.

19 THE COURT: What is the name of it?

04:26 20 MS. GREANEY: CTIA. That is a cell phone case --

21 sorry. Yes, CTIA, 928 F.3d 832.

22 THE COURT: Hold on. What's the cite again, please?

23 MS. GREANEY: 928 F.3d, 832.

24 THE COURT: I don't know if I have that. I'm not sure

25 I have it. But anyway, what does it say?

 52

1 MS. GREANEY: So it's the Ninth Circuit, and it was an

2 ordinance that required cell phone distributors to give a

3 warning to consumers about the possibility of exposure to

4 radiofrequency radiation if they keep the cell phone in their

5 pocket or close to their body.

6 And that case explains that this question of whether

7 there could actually be impactful radiation from a cell phone

8 was highly controversial at the time. Yet the court found that

9 this was not a case like Becerra where the speaker was being

04:28 10 required to give a message that was controversial. The court

11 said on page 848, "Because we've determined that the disclosure

12 is factual" --

13 THE COURT: Not too fast. Go ahead.

14 MS. GREANEY: Sorry, Your Honor. "Because we have

15 determined that the disclosure is factual and not misleading,

16 we reject CTIA's argument that the disclosure is

17 controversial." The disclosure in this case is simply factual.

18 The Mass. Housing Partnership is at this website. It has

19 resources for tenants. That is it. It doesn't say anything,

04:28 20 take any side in any controversy.

21 CTIA went on to say, the Ninth Circuit went on to say

22 in that case, page 848, it's not controversial in the way that

23 Becerra was describing because, quote, "It does not force cell

24 phone retailers to take sides in a heated controversy." And

25 this regulation is the same. It doesn't force anyone to take

 53

1 any side in any particular controversy. It just tells tenants

2 this is a place where you might find resources. That is it.

3 THE COURT: All right. I'll ask my clerks to send

4 that to me because I'm not able to lay my hands on it. All

5 right. So that's your argument?

6 MS. GREANEY: Yes, Your Honor. This is a Zauderer

7 case, and it surpasses rational basis review.

8 THE COURT: All right. So that's the Ninth Circuit.

9 In Hurley, the Supreme Court says that, "The speaker has the

04:29 10 right to tailor the speech" -- it says, "This general rule that

11 the speaker has the right to tailor the speech applies not only

12 to expressions of value, opinion or endorsement but equally to

13 statements of fact the speaker would rather avoid." How do I

14 reconcile the Ninth Circuit with that?

15 MS. GREANEY: Even to expressions of fact that the

16 speaker would rather avoid.

17 THE COURT: Right.

18 MS. GREANEY: Well, I think that the way that that is

19 reconciled is twofold. First of all, under Zauderer, it is a

04:30 20 rational basis test. All that is required in order to require

21 a disclosure is that there's a rational basis. Again, we're

22 talking about commercial speech. We're talking about an

23 interaction with a consumer, not an expressive event such as a

24 demonstration, not a persuasive type of speech. I think the

25 context is different.
 54

1 But I think primarily Zauderer has established that a

2 rational basis review is what applies to this type of

3 disclosure given in a commercial setting, and the agency has a

4 rational basis for including the disclosure, which is to simply

5 direct tenants to a quasi-public agency that's whole purpose is

6 to provide --

7 THE COURT: Is City Life a quasi-public agency?

8 MS. GREANEY: No, no, I'm sorry, Your Honor. Mass.

9 Housing Partnership is a quasi-public agency.

04:31 10 THE COURT: But the link will take you to, among other

11 things, City Life.

12 MS. GREANEY: If you continue to click, there is a

13 hyperlink to City Life.

14 THE COURT: Well, I printed it out.

15 MS. GREANEY: Yes, there is.

16 THE COURT: I clicked on your link, and then I got two

17 pages.

18 MS. GREANEY: Yes, you can click from the Mass.

19 Housing Partnership site to a City Life site, and you can click

04:32 20 to a lawyer referral service related to legal services

21 organizations.

22 Of course that is also distinguishable from -- I

23 believe the Hurley case you're referring to is the St.

24 Patrick's Day parade case and distinguishable from Becerra. I

25 mean, in Becerra, the disclosure that was complained about was

 55

1 one disclosure given by signage and I think given in other ways

2 at the clinics. This is about some statement that is a step

3 removed. First, you've got to go to the Mass. Housing

4 Partnership website, and then, if you wish to, you can click to

5 something else.

6 So I think that also distinguishes this case from

7 other cases where there is commercial speech involved because

8 there is a remoteness. In this current age of using the

9 internet, there are web pages, and those web pages have

04:33 10 hyperlinks to other web pages.

11 And the idea that information that would be helpful to

12 a consumer in this particular situation that we are in now with

13 this pandemic could not be provided because there could be a

14 path to get to something that someone thinks is controversial I

15 think is too much of a restriction on the legislature's ability

16 to provide for disclosures that will assist consumers not only

17 in situations where they might be misled but also in situations

18 where there is additional information that could help them in

19 the commercial context.

04:34 20 THE COURT: Okay. So let me hear from Mr. Vetstein,

21 please, on standing and then that continuum of issues.

22 MR. VETSTEIN: Yeah. I mean, on standing, first of

23 all, we filed a declaratory judgment claim. I mean, this whole

24 notion that we're required to show -- it's almost like my

25 sister is arguing we need to show some sort of financial

 56

1 damage. We're not asking for money damages. We're asking for

2 a declaration that the regulations are unconstitutional. And

3 we've said, I believe all three plaintiffs have said that they

4 do want to send -- obviously, they're all owed rent. They do

5 want to send a notice explaining that the rent is owed.

6 THE COURT: Where do I find that? Is it in the

7 amended complaint?

8 MR. VETSTEIN: That would be in the amended complaint

9 and in the affidavits. All three of them, all three object to

04:35 10 sending the notice. And I believe that's all that is required

11 for a standing claim on a declaratory judgment.

12 THE COURT: I think you're reasonably likely to

13 prevail, my present sense is you're reasonably likely to

14 prevail on standing. So then let's go to the next --

15 MR. VETSTEIN: Yeah. I want to correct my sister. So

16 the -- well, first of all, the links. We all can take judicial

17 notice of the fact that everyone uses the internet now. So if

18 a tenant gets this notice and the first link -- the MHP

19 resources for tenants, that's the second link, pulls up a page

04:35 20 that is --

21 THE COURT: It's the second link? Okay.

22 MR. VETSTEIN: The second one. Yeah, that's the one

23 that we really have the issue with.

24 THE COURT: The first one is the regional agencies and

25 the second one is --

 57

1 MR. VETSTEIN: Right. Regional agencies, you know,

2 some are -- obviously, I mean, most are tenant-friendly, but

3 it's really -- you know, again it's directing them to kind of

4 the enemy. It's directing them to your adversary. That's the

5 problem. And the first link goes right to City Life/Vida

6 Urbana. It says, "You might also contact City Life/Vida

7 Urbana, which is a tenant advocacy group, ask them if they can

8 help you or give you referral, English 617" -- and Spanish --

9 they give the telephone numbers. That's the first

04:36 10 click-through.

11 So it's not a double click-through. The first

12 click-through is right to City Life, and we know from them

13 trying to intervene in this case they're not friendly to

14 landlords, certainly not. They're not in the business of

15 helping landlords, certainly not.

16 They are probably the most activist tenant

17 organization in the Commonwealth of Massachusetts who works

18 closely with Greater Boston Legal Services, Harvard Legal Aid.

19 They have teams of lawyers. Their lawyers are there at Boston

04:37 20 Housing Court every Thursday with tables with law students.

21 THE COURT: But why is it controversial? I mean, you

22 know, generally speaking, the defendants, you just heard, argue

23 that this is a fact. Okay, they're a tenant advocacy group,

24 but there are resources out there for tenants who may not know

25 their rights or be effective in advocating their rights. Why

 58

1 is it controversial to refer somebody to an agency like that,

2 an organization like that?

3 MR. VETSTEIN: Because they're a partisan agency.

4 They're not part of the government. They're not a state

5 agency. They self-advertise as a political tenant advocacy

6 organization. And it's not -- it's kind of a perversion of the

7 First Amendment to require that, Landlords, hey, if you want to

8 send out a notice, well, you're going to have to direct your

9 tenants to City Life. And so they would think, the tenants

04:38 10 would think that, Oh, well, if the landlord is sending me a

11 notice, this must be okay. You know, this kind of theme of,

12 well, it's government-sanctioned, that it's a required legal

13 notice, and it says to call City Life. And that's the last

14 people that the landlords want our tenants to call, and so why

15 on Earth would any landlord want to do that? I mean, it's

16 suicide.

17 So the whole point with -- so the Zauderer case, it

18 talks about preventing deception, deception of consumers,

19 state's interest in preventing deception of consumers. I mean,

04:39 20 where is deception of consumers at all here? I mean, what's

21 deceptive is how it treats landlords, how it makes landlords

22 inform tenants to go ahead and contact City Life; they might be

23 able to help you. Well, they might be able to sue you and hire

24 lawyers, free lawyers I might add, free lawyers, against

25 tenants who are aren't entitled to free lawyers in eviction

 59

1 cases.

2 THE COURT: You say, "not entitled." You mean they

3 have no constitutional right to it or statutory --

4 MR. VETSTEIN: No, they don't. But if you look at

5 Attorney Emil Ward's affidavit, it's all one-sided. Boston

6 Housing Court, Greater Boston Legal Services who works with

7 City Life, Harvard Legal Aid, they're only there to assist

8 tenants, and they do so free of charge. There's not a

9 reciprocal group that's there to help landlords, you know, mom

04:40 10 and pop.

11 So anyway, so the whole concept is, okay, the

12 government is saying you've got to send a notice and then send

13 them to your adversary. I don't see how that's permissible

14 under the First Amendment at all. Even if you're using this

15 kind of rational basis type review, it's not classic rational

16 basis, but it says, "reasonably related to the state's interest

17 in preventing deception of consumers," quoting right from the

18 case.

19 THE COURT: Sorry. Which case?

04:41 20 MR. VETSTEIN: Zauderer. I'm always mispronouncing it

21 but the case my sister relies on, Zauderer. That's on page --

22 let me pull it up. I just lost my place. It's key cite 16 and

23 17. There it is, key cite 20. So that would be on page 650 --

24 651.

25 THE COURT: That's where I am.

 60

1 MR. VETSTEIN: Yeah. This footnote 14 that's right

2 there. I mean, I haven't heard anything that the attorney

3 general said about preventing deception of consumers here. I

4 mean, I don't see what the purpose is --

5 MS. GREANEY: I'd be happy to address that, Your

6 Honor.

7 MR. VETSTEIN: -- of sending tenants to City Life.

8 THE COURT: Look, the issue here, and I doubt any of

9 the lawyers misunderstand it, the idea that -- in the political

04:43 10 arena, people who don't have money to hire lobbyists and

11 advocate for their interests have public interest groups that

12 do it is not -- in my view, it's admirable, you try to make

13 sure that all interests are represented in the political

14 process and effectively represented.

15 Similarly, in court, I mean, judges are often

16 encouraging pro bono representation of people who are indigent

17 so the adversary process will work. The narrower, more narrow

18 question here is whether this is not something that the

19 plaintiffs, the landlords in this case, should be compelled to

04:44 20 advertise.

21 MR. VETSTEIN: Right. I mean, the state agency or the

22 AG, they can set up their own web page with all of this stuff.

23 But again, they cross the line when they say that you, the

24 landlord, you have to put this in the hands of the tenant and

25 deliver it from you and give it to your tenant by hand or by

 61

1 mail. That's the line.

2 THE COURT: And if the AG set up her own website and

3 it had a link to City Life and the notice said you can find

4 information relating to the moratorium on this website, that

5 would be okay? In your view, that would not be

6 unconstitutional?

7 MR. VETSTEIN: Well, that's a tough one because,

8 again, the problem is you're making the landlord deliver the

9 message. The ultimate recipient is City Life. If the AG just

04:45 10 set up a general website of how to help tenants during the

11 moratorium and, you know, here is the links -- but again, the

12 problem is making the landlord deliver the message. Because

13 they don't ascribe to that viewpoint.

14 THE COURT: And in fact, we don't have that issue. So

15 then is it your contention that paragraphs 1 and 3 are also

16 unconstitutional or that the notice would be unconstitutional

17 if it didn't have paragraph 2?

18 MR. VETSTEIN: Yeah. Well, I don't think you can

19 parse through --

04:46 20 THE COURT: Well, leave out severability. That's

21 where I'm going next. But if it was just paragraphs 1 and 3,

22 is it your contention it would still be unconstitutional?

23 MR. VETSTEIN: You're talking about paragraphs 1 and 2

24 of the regulation, subsection 2?

25 THE COURT: 1 and 3. Take out 2 --

 62

1 MR. VETSTEIN: Take out 2.

2 THE COURT: -- that has the link to City Life and

3 others.

4 MR. VETSTEIN: Yeah, yeah, perhaps, yeah. Again, the

5 second paragraph with the links, that's the offending. But

6 again, I'm not sure if you can, with a regulation, take a

7 scalpel --

8 THE COURT: Okay. That relates to the cases I sent

9 you. All right. It's getting late even for me. Do you want

04:47 10 to respond briefly, Ms. Greaney, before we get to --

11 MS. GREANEY: Yes, Your Honor, and I'll be brief.

12 THE COURT: Go ahead.

13 MS. GREANEY: So first of all, on this language in

14 Zauderer about deception, I just want to be clear on one legal

15 point that is addressed in footnote 20 of our original

16 opposition to the motion for preliminary injunction. And that

17 is that Zauderer has been considered to apply to all commercial

18 disclosures, not only disclosures that are in this situation

19 where not giving a disclosure could be deceptive. So there are

04:48 20 some disclosure cases where, if the disclosure isn't given, it

21 could be deceptive.

22 This regulation has both because the first paragraph

23 is about preventing confusion. But other regulations that

24 simply give consumers information that they need and that will

25 be helpful to them are also considered under the Zauderer

 63

1 standard. And the citations for that are American Beverage v.

2 City and County of San Francisco, 916 F.3d 749 at page 756, and

3 American Meat Institute v. U.S. Department of Agriculture, 760

4 F.3d 18 page 22.

5 THE COURT: Okay.

6 MS. GREANEY: The second point I'd like to make, Your

7 Honor, is that I just want to be clear that the only complaint

8 in the plaintiffs' papers about any of these websites that are

9 included in the disclosure language is about that third

04:49 10 sentence of the second paragraph. The list of agencies in the

11 first sentence of the second paragraph, Masshousinginfo.org,

12 that is a list, when you pull up that page, it's just a list of

13 nine agencies that administer RAFT, which is the assistance for

14 renters who need assistance paying their rent.

15 THE COURT: Okay. I know that.

16 MS. GREANEY: Thank you, Your Honor.

17 THE COURT: And I understood their objection was to

18 paragraph 2, and this argument is refined that it's essentially

19 to that line that takes you to advocacy groups that plaintiffs

04:50 20 regard as adverse to their interests.

21 MS. GREANEY: Yes.

22 THE COURT: So then we get to the issue of

23 severability. Let's say I find there's a reasonable likelihood

24 that that's going to be an impermissible form of compelled

25 speech. Then this is an attack on the regulation, not the

 64

1 statute. So if the regulation is constitutionally infirm, I

2 don't believe at the moment that it would affect the statute.

3 That's one. But that might be wrong.

4 And two, I wonder whether severability under, say,

5 K-Mart would be an appropriate approach if that's where the

6 analysis comes out. Although -- anyway. So what are your

7 respective positions on severability at this moment?

8 MS. GREANEY: Your Honor, I'm happy to address that.

9 So severability is a matter of state law. That's clear. And

04:52 10 we have citations that we'd be happy to put in writing but also

11 can give to you.

12 So severability is a matter of state law. And in

13 Massachusetts, under state law, severability is encouraged.

14 There is actually a statute regarding severability of statutory

15 provisions that says, "In construing statutes, the following

16 rules shall be observed." 11th rule is, "The provisions of any

17 statute shall be deemed severable, and if any part of any

18 statute shall be adjudged unconstitutional or invalid, such

19 judgment shall not affect other valid parts thereof." That's

04:52 20 Chapter 4, section 6 of the general laws.

21 In terms of regulations, the same rule has been

22 applied in Massachusetts courts related to regulations and

23 indeed in federal courts as well. Typically, regulations in

24 Massachusetts have been deemed severable in the event that

25 there is one aspect of the regulation, as long as the

 65

1 regulation otherwise can stand on its own without that

2 provision and serve the purpose of the enabling statute,

3 severability can and should be done.

4 If the court were inclined to find that that last

5 sentence of the second paragraph of that disclosure language

6 was unconstitutional, I think not only could the court sever

7 it, but it also should sever it and leave the rest of the

8 regulation intact.

9 I could give the court some citations or we can just

04:53 10 submit them tomorrow.

11 THE COURT: Submit them tomorrow.

12 MS. GREANEY: Thank you, Your Honor.

13 THE COURT: Mr. Vetstein, what do you say?

14 MR. VETSTEIN: Yeah, I mean, we'd like to further

15 research it and brief it. But my initial reaction was, on the

16 larger picture, if the regulations are constitutionally infirm,

17 that wouldn't necessarily affect the constitutionality of the

18 overall act. I don't think we would argue it goes that far.

19 But in terms of kind of excising one sentence out of a

04:54 20 regulation, I'd need to do some further research on that. I'm

21 not sure if that's appropriate where the constitutional

22 infirmity kind of infects, like cancer infects the entire

23 section of 5.03 on this notice of missing rent. I think at a

24 minimum they would have to go back and redraw it somehow. But

25 I'm happy to take a look, and we can include that in the

 66

1 briefing for tomorrow.

2 THE COURT: Well, it's now 5:00, and I gave you until

3 11:00 tomorrow. Let me speak with my law clerks briefly, I

4 hope, and then get back to you. We'll go into the breakout

5 room.

6 MR. VETSTEIN: Okay. Thank you.

7 MS. GREANEY: Thank you, Your Honor.

8 (Recess taken, 4:55 p.m. - 5:04 p.m.)

9 THE COURT: All right. We seem to have everybody who

05:03 10 is essential.

11 That completes the argument. They've been excellent.

12 Your clients' interests are well represented. I'll take this

13 under advisement. I may write something. Given the urgency of

14 this and the fact that I have some other things to do, I'm

15 going to plan to see you again at 2:30 next Wednesday, which is

16 September 8. And if I haven't written a decision, it will be

17 my goal to give you one orally. And then --

18 MR. VETSTEIN: Tuesday.

19 THE COURT: No. Wednesday.

05:04 20 MR. VETSTEIN: That's the 9th.

21 THE COURT: I'm sorry, it's the 9th. Yes, the 9th.

22 I'm sorry, I misspoke.

23 MR. VETSTEIN: I'm sorry.

24 THE COURT: The 9th. And then you've given me a

25 report on your discussions about where we might go from there,

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1 but we'll probably have some brief discussion of that, and I'll

2 give you some time to reflect and confer on the implications of

3 whatever I decide.

4 MR. VETSTEIN: And the filing deadline for tomorrow,

5 is that still set?

6 THE COURT: Well, it's still at 11:00, and I mainly

7 want submissions on things before today. Well, here. That

8 doesn't give you much time. Let me give you until 1:00, and if

9 there's a slight issue -- see, I'm going to be working on this

05:05 10 tomorrow, Friday, Tuesday, maybe before that. Monday is Labor

11 Day. But get me as much as you can by noon. If there's one

12 issue or something you want to supplement on later tomorrow or

13 Friday, you may find me reasonable.

14 All right. I do want to talk with my staff once more

15 and the stenographer. Is there anything further for today?

16 MS. GREANEY: Thank you very much, Your Honor.

17 MR. VETSTEIN: Thank you for all your time on this

18 case. I know you spent a lot of time on it. We appreciate it.

19 MS. GREANEY: Absolutely. Thank you.

05:06 20 THE COURT: All right. Well, it's complex. It's

21 consequential. You've worked hard on it, so we want to do

22 that, too. All right. Court is in recess.

23 (Adjourned, 5:06 p.m.)

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1 CERTIFICATE OF OFFICIAL REPORTER

3 I, Kelly Mortellite, Registered Merit Reporter

4 and Certified Realtime Reporter, in and for the United States

5 District Court for the District of Massachusetts, do hereby

6 certify that the foregoing transcript is a true and correct

7 transcript of the stenographically reported proceedings held in

8 the above-entitled matter to the best of my skill and ability.

9 Dated this 4th day of September, 2020.

10

11 /s/ Kelly Mortellite

12 _______________________________

13 Kelly Mortellite, RMR, CRR

14 Official Court Reporter

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