July 21, 2020 Practice Points

COVID-19 Has Resulted in Some Awkward Separation of Powers Issues

The pandemic is a bottomless pit for real estate attorneys.

By Nicholas P. Shapiro

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The COVID-19 pandemic is a bottomless pit when it comes to creating legal issues for real estate practitioners. From how to apply and enforce force majeure clauses in leases, to lease work outs, the constitutionality of eviction moratoria and whether emergency orders amount to regulatory takings, and the commercial real estate finance implications for landlords who are being denied income streams to make mortgage payments and are trying to survive stifled demand for office space, the issues are endless. In our practice in Massachusetts, we have noticed yet another area in which COVID-19 has pushed the boundaries of what we have understood to be the law: separation of powers.

In March 2020, Massachusetts Governor Charlie Baker issued an executive order putatively allowing proceedings subject to the state’s Open Meeting Law, such as zoning, planning, and selectmen meetings, to be conducted remotely. Although the move made good policy sense in light of the pandemic, this executive action posed an obvious question of separation of powers: Can a governor effectively amend statutory text via executive order, without the legislature’s blessing? In this instance, the executive branch getting out in front of its skis was relatively innocuous, given that, at the governor’s petitioning, the Massachusetts legislature rapidly enacted emergency legislation codifying his executive order into law.

MA H.B. 4598, which Baker signed into law on April 3, 2020, also included a so-called permit extension act extending the exercise period for outstanding zoning permits; automatically granted continuances for outstanding zoning applications; and included language ensuring that outstanding applications would not be constructively granted through board inaction during the pandemic. The legislature thus made some needed alterations to state statutory law to make it work with present exigencies. However, this was not the only instance of separation of powers norms not being respected in our jurisdiction during the pandemic.

Throughout the COVID-19 crisis, the Massachusetts Supreme Judicial Court (SJC) issued a series of emergency orders, the most recent of which was entered on June 24, 2020, was effective as of July 1, 2020, and which purports to toll “all deadlines set forth in statutes . . . that expired at any time from March 17, 2020, through June 30, 2020” to a date on or after June 30, 2020, based on a calculation formula. (Emphasis added.) In our practice in particular, these orders would appear to have the greatest immediate impact on the short, strictly policed 20-day appeal period for judicial review of local zoning decisions and notices of the same being filed with municipal clerks. See M.G. L. c. 40A, § 17; O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986).

In Massachusetts zoning litigation practice, this 20-day deadline is an absolute drop-dead date. While the case law holds that “strict enforcement and strong policing” do not require “inflexible literalness,” such that some marginal exceptions to statutory requirements, particularly as to the manner of giving notice have been allowed, Konover Management Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 322-323 (1992), the timeframe in which an appeal may be lodged and notice filed has never been subject to equitable judicial negotiation before. Other principles of equity invoked to extend the deadline, such as reliance on mistaken advice from a town clerk, have been rejected. See O’Blenes, 397 Mass. at 556-559. Equitable tolling, stingily applied to statutes of limitation, which the zoning appeal deadline arguably is not—it is more akin to an appeal deadline in appellate practice than a statute of limitations—has never been used in this context before. And, the cases where the SJC has ruled that, regardless of its policy preference, the court lacks authority to re-write statutes are myriad. Generally, the Legislature’s job is to enact laws, and the courts to construe them. It is not the court’s role to alter statutory language, such as for deadlines, even if there were extremely sound policy grounds for doing so.

But, the body with the ultimate authority to say what Massachusetts law is, and whether it has been violated is the SJC, and it has apparently ordered this deadline “tolled.” It intones and we are obliged to listen. To whom may practitioners appeal, if the SJC has acted in violation of separation of powers and its own case law? Although this issue has yet to be litigated, suffice it to say that COVID-19 has created some awkward separation of powers issues.

Nicholas P. Shapiro is a shareholder with Phillips & Angley in Boston, Massachusetts.

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