SJC Hears Cases On Business Owners Upset Over State Lockdown, Uber Arbitration

The Supreme Judicial Court holds oral arguments in appellate cases on the first week of the month between September and May. GBH News Morning Edition host Joe Mathieu spoke with Northeastern University law professor and GBH News legal analyst Daniel Medwed about some of the cases the court is considering. The transcript below has been edited for clarity.

Joe Mathieu: So the SJC has three days of oral arguments this week, starting Wednesday. Are we full of COVID-19 cases? What are you looking at?

Daniel Medwed: Unsurprisingly and sadly, yes. There are a pair of cases scheduled for tomorrow that involve criminal defendants seeking a stay of execution, it's called, to delay serving their sentences while their appeals are pending due to the health risk posed by COVID-19. Ordinarily after you're convicted, you go straight to prison irrespective of the status of your appeal, so this is fairly interesting and relatively technical. It involves the nuances of how trial judges evaluate these state requests [and] how much deference appeals courts must exhibit to those trial court decisions. But at bottom, they're really about how much evidence do you have to put on about your individual susceptibility to COVID-19 and about the safety precautions — or lack thereof — in the prison to justify getting a stay? So we need to watch these ones.

There's also a case later this week where the SJC is considering a claim by several business owners and others that Gov. Baker overstepped his legal bounds when he issued the lockdown ordered last spring and that they suffered a lot of harm as a result.

Mathieu: Reminds me of the landlords who sued over the evictions. What's the basis for this lawsuit, Daniel?

Medwed: Well, Joe, it's essentially a two-pronged claim.

First, the plaintiffs argue that the governor improperly relied on a particular law — our Civil Defense Act of 1950. It's a Cold War-era piece of legislation that gives the governor vast powers to act in order to thwart things like a foreign invasion. The plaintiffs argue he should have relied on a different law, the Public Health Act, which doesn't vest a lot of power in the state government, but instead delegates responsibility to local officials.

Second, they claim that because of this, I guess what they call a usurpation of power by the governor, they suffered a lot of harm, that it violated the separation of powers, that it impinged on their due process rights and their freedom of assembly.

Mathieu: What's the commonwealth's defense here, Daniel?

Medwed: Well, the commonwealth is making what's known as a textualist argument. It's relying on the plain language of the Civil Defense Act, which defines civil defense very broadly and includes the phrase "natural causes" as a basis for invoking its powers. So presuming that COVID-19 is treated as a natural cause, it would appear as though the governor is on solid ground here. But we just have to wait and see how it plays out.

Mathieu: Indeed. I'm sure we'll talk about it. There's another one I wanted to ask about. It's not about COVID, it's actually about Uber, Daniel.

Medwed: Yeah, a fascinating case about Uber later this week, the ride sharing company. Evidently, two customers complained that they were denied service and tried to get into court to litigate that dispute. Uber then tried to divert the case to arbitration, citing a clause contained in the terms of service agreement. When we all use Uber and enter our credit card information, apparently we also agree to settle all future disputes through arbitration, not court.

So the interesting issue here is whether this clause is considered, under Massachusetts law, conspicuous enough for us to all be on notice about arbitration and therefore be enforceable, or is it really a hidden clause that's designed to suppress legitimate claims and should be overlooked? This case has implications, of course, not just for Uber, but potentially for a lot of online contracting in the commonwealth.

Mathieu: This is all about the fine print. You always read terms of service on those, right? You're a lawyer, Daniel.

Medwed: Oh, always, Joe. Always.

Mathieu: Before you click "I agree".

Medwed: Well, I call you first.

Mathieu: Yeah, right. We don't even think about it! We just scroll until we can click. This is gonna be an interesting one, and I appreciate you bringing it up.