By Chris Villani

Law360 (August 24, 2020, 6:33 PM EDT ) Massachusetts landlords seeking to end a moratorium on most evictions during the pandemic can keep making their case in both federal and state courts, as a federal judge on Monday rejected a forum-shopping claim and continued to hear his part of the challenge to the novel law.

U.S. District Judge Mark L. Wolf issued his order from the bench following a virtual hearing in which lawyers debated the proper forum for determining whether the law, which halts most housing court proceedings during the ongoing COVID-19 crisis, passes constitutional muster.

Attorneys for the Massachusetts Attorney General's Office argued Judge Wolf should stay the federal case and defer to the state court, where another suit, led by the same attorneys and some of the same landlords, is playing out.

The state argued the landlords only filed their federal case because they were not happy that the Massachusetts Supreme Judicial Court declined to hear the state suit and kicked it down to the Superior Court.

But Judge Wolf said that continuing to hear the landlords' federal claims would not affect the state case.

"This wasn't filed after an adverse decision in the state courts, and both cases are essentially at the outset," Judge Wolf said at the beginning of the hearing. "Given the importance and urgency of the issues, at the moment I don't see that the state case would moot the issues in this case, and I should not abstain."

He described that thinking as "preliminary" but memorialized the decision Monday afternoon following several hours of arguments. The judge then began hearing arguments over the landlords' bid for a preliminary injunction to halt the moratorium. Up to three more days of hearings on that issue, as well as the state's motion to dismiss the case, are scheduled for next week.

During oral arguments over the motion to have Judge Wolf pause while the state considers its part of the case, Assistant Attorney General Pierce Cray argued it presented an "explicit" instance of forum shopping on the part of the landlords. The state case has been moving along quickly, and attorneys worked through weekends to get ready for a July 30 hearing on a preliminary injunction in that forum, Cray said.

But Suffolk County Superior Court Judge Paul Wilson still has not ruled on the matter nearly a month later, and Richard Vetstein of Vetstein Law Group PC, representing the landlords, remarked that it seems like the case is being "slow-walked over there."

"We are trying to get our day in court," Vetstein said. "We filed with the SJC so we could have a final ruling by the SJC. We thought the SJC was going to take up the case, but they didn't. That's not our fault."

Vetstein took issue with the state's claim that the landlords filed their federal case because they were unhappy with the top appellate court's decision.

"We have to be reactive to that as lawyers because the whole goal is to get an expedited review on a motion for a preliminary injunction, because now we are three months into the state case and we still don't have any court saying whether or not the act is constitutional," he said. "That's what we are looking for, that's all we are looking for, for someone to make that decision."

Cray argued that the state court should be the one to decide an issue that presents novel questions of great public importance.

"Our most basic argument is that, in this unprecedented crisis, the state judiciary and the state more generally should be allowed to police themselves under the U.S. Constitution," Cray said.

But Judge Wolf noted the "time-sensitive nature" of the federal claims, which include allegations that First Amendment rights to petition and free speech have been violated, as well as alleged violations of the contracts and takings clauses. He ruled that sending those claims back to the state court would delay the process there.

The moratorium prevents the filing of new evictions and suspends all pending residential and commercial summary process cases, with few exceptions for public safety and health. Without the law, officials fear an avalanche of evictions due to tenants' pandemic-induced financial hardships.

The challenge to the April law landed in federal court after landlords Linda Smith and Mitchell Matorin filed the federal claims as part of an emergency appeal to the SJC. Then the landlords excised the federal claims from the state case and put them into the federal lawsuit, albeit with a different plaintiff, Marie Baptiste, along with Matorin.

Under Gov. Charlie Baker's recent extension, the moratorium is set to lift Oct. 17, or 45 days after the state exits its pandemic state of emergency, whichever is sooner, but it may be extended again.

Judge Wolf said Baker may be taking some cues from him or Judge Wilson, if he is to continue the moratorium.

"I expect the governor will consider any rulings in deciding whether he has the authority to extend the moratorium and, if so, whether to extend it in its current form or a modified form," Judge Wolf said.

The landlords are represented by Richard D. Vetstein of Vetstein Law Group PC and Jordana R. Roubicek.

Massachusetts is represented by Jennifer E. Greaney, Pierce O. Cray and Richard Weitzel of the Massachusetts Attorney General's Office.

The case is Baptiste et al. v. Massachusetts et al., case number 1:20-cv-11335, in the U.S. District Court for the District of Massachusetts. The state case is Matorin et al. v. Sullivan et al., case number 2084cv01334, in the Suffolk County Superior Court for Massachusetts.

--Additional reporting by Brian Dowling. Editing by Alyssa Miller.

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