By Chris Villani

Law360 (September 10, 2020, 6:37 PM EDT ) Massachusetts' temporary ban on most types of evictions can stay in place for now, a federal judge said Thursday, while also stressing that the pandemic is not a "blank check" for the governor and that there will come a time when the moratorium has gone on too long to pass constitutional muster.

U.S. District Judge Mark L. Wolf gave his thoughts orally during a hearing, but said there will be a written order to follow. He said he intended to deny a motion for a preliminary injunction filed by some Bay State landlords who sought to block the pause on most eviction proceedings that was put in place because of the COVID-19 pandemic and the resulting job losses.

Judge Wolf cited the deference afforded to local governments during the crisis that was noted by U.S. Supreme Court Chief Justice John Roberts in his ruling in South Bay United Pentecostal Church v. Newsom , in which the nation's top jurist wrote that the decision on whether to restrict certain activities during a pandemic is "a dynamic, fact intensive matter, subject to reasonable disagreement."

"The notion that it is indisputably clear that the government's actions are unconstitutional seems quite improbable," Judge Wolf said, quickly adding that "there are limits imposed by the Constitution on what elected officials can lawfully do."

The judge pointed to the fact that the pandemic, by all metrics, has waned in Massachusetts in recent months after peaking in April, the time period in which the merits of the preliminary injunction motion were weighed. On April 20, 3,804 Massachusetts residents were hospitalized because of COVID-19. That number had dipped to 322 as of Sept. 7, according to state data.

Judge Wolf said the case prompted him to think about significant high court rulings, such as Korematsu v. U.S. , the 1944 ruling upholding the internment of Japanese Americans during World War II which was in 2018 rebuked by Chief Justice Roberts as "gravely wrong the day it was decided," as he penned his opinion in Trump v. Hawaii .

The judge also referenced the Supreme Court stepping in after American citizens were designated as "enemy combatants" after the Sept. 11, 2001, terrorist attacks, writing "a state of war is not a blank check for the president."

"I would say nor is a pandemic a blank check for state elected officials to trample constitutional rights," Judge Wolf said. "Fortunately the rights in this case do not involve anybody's liberty, but this case does implicate constitutional rights and I hope that the decisions made during this pandemic by our elected officials and by the courts will not be viewed in retrospect to be 'gravely wrong' themselves."

Judge Wolf said his thinking could change as he continued to write, but added "I don't expect it to."

An attorney for the landlords suing to block the temporary ban said after the hearing that, despite being rejected in the injunction bid, he was heartened by Judge Wolf's words.

"All encouraging words, certainly a lot more critical than any other court has given on these moratoriums," Richard Vetstein of Vetstein Law Group PC told Law360. "All the other decisions have been very much one way in favor of the government and this one seems to be not so one way, at least in terms of the reasoning and what may come in the future."

The moratorium, which halts most housing court proceedings during the ongoing COVID-19 crisis, is set to lift Oct. 17, unless extended by Gov. Charlie Baker. Vetstein said that the last time Baker extended the moratorium, he gave notice about a month before the deadline.

"My initial reaction is to maybe wait it out to see what he does for the extension before we pull the trigger on anything," Vetstein said, though he did not rule out a First Circuit appeal.

During the hearing, Vetstein asked the judge whether he had an estimated date on which the order would be finished.

"I do but I am not going to express it," Judge Wolf said. "It's done when it's done."

In late August, a Superior Court Judge denied an injunction motion made in a similar case filed in state court. Attorney General Maura Healey's office applauded the decision, saying through a spokesperson, "at a time when our residents are struggling financially, they need to know that they won't be kicked out of their homes."

A Healey spokeswoman declined to comment Thursday, citing the fact that no formal ruling has yet been issued.

The landlords argue that the legislature's "nuclear option" of halting housing court hearings for such disputes goes too far in eroding essential property rights, while proponents of the temporary ban say they fear a wave of evictions with people out of work and unable to pay rent exacerbating the COVID-19 crisis.

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.

--Additional reporting by Brian Dowling. Editing by Amy Rowe.

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