Dutra v. Trustees of Boston University
U.S. Court of Appeals for the First Circuit
Dutra v. Trustees of Boston University, 96 F.4th 15 (1st Cir. 2024)
Dutra v. Trustees of Boston University
Opinion
United States Court of Appeals
For the First Circuit
No. 23-1385
JULIA DUTRA, individually and on behalf of all others similarly
situated; GABRIELLA DUBE, individually and on behalf of all
others similarly situated; SHAKURA COX, individually and on
behalf of all others similarly situated; VALAAUINA SILULU,
individually and on behalf of all others similarly situated;
NATALIE SILULU, individually and on behalf of all others
similarly situated; OLIVIA BORNSTEIN, individually and on behalf
of all others similarly situated; VENUS TRAN, individually and
on behalf of all others similarly situated,
Plaintiffs, Appellants,
v.
TRUSTEES OF BOSTON UNIVERSITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Gelpí, Lynch, and Howard,
Circuit Judges.
Kathryn Lee Boyd, with whom Michael K. Eggenberger, Kristen
L. Nelson, Hecht Partners LLP, Blake G. Abbott, Eric M. Poulin,
Paul Doolittle, Roy T. Willey, Poulin Willey Anastopoulo, LLC,
Patrick F. Madden, E. Michelle Drake, Berger Montague PC, Daniel
J. Kurowski, Steve W. Berman, Whitney K. Siehl, Rachel A. Downey,
Hagens Berman Sobol Shapiro LLP, Harold L. Lichten, Lichten &
Liss-Riordan, P.C., Joseph I. Marchese, L. Timothy Fisher, Sarah
N. Westcot, Bursor & Fisher, P.A., Michael C. Forrest, and Forrest,
LaMothe, Mazoe, McCullough, Yasi & Yasi, were on brief, for
appellants.
Kathleen M. Sullivan, with whom Alex H. Loomis, Crystal
Nix-Hines, Shon Morgan, Marina Lev, and Quinn Emanuel Urquhart &
Sullivan, LLP, were on brief, for appellee.
March 13, 2024
GELPÍ, Circuit Judge. This appeal requires us to analyze
whether the Due Process Clause of the United States Constitution
is violated by the retroactive application to this case of Section
80 ("Law 80"), signed into law on August 9, 2023, by Massachusetts
Governor Maura Healey through the state's 2024 Fiscal Year budget.
This appeal arises out of breach of contract claims filed
against Boston University ("BU") by Olivia Bornstein, Shakura Cox,
Gabriella Dube, Julia Dutra, Natalie Silulu, and Venus Tran
(collectively, "Plaintiffs") for the remote instruction they
received during the Spring 2020 semester. Plaintiffs alleged that
BU committed a breach by transitioning to fully remote classes and
services which they did not reasonably expect. Plaintiffs also
alleged that BU was unjustly enriched by the transition.
Lengthy discovery and motion practice ensued, then
summary judgment was entered below in favor of BU on the merits.
In re Bos. Univ. COVID-19 Refund Litig., No. 20-10827, 2023 WL
2838379 (D. Mass. Apr. 7, 2023). Plaintiffs timely appealed, and
soon thereafter, Law 80 was enacted. Law 80 is material to the
instant case because it bars actions for damages and equitable
monetary relief against higher education institutions for acts or
omissions in response to the emergency of COVID-19 and orders
ceasing in-person gatherings during the Spring 2020 academic
semester, subject to four provisions. 2023 Mass. Acts, ch. 28,
§ 80(b). As its retroactive application does not violate due
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process, Law 80 bars this action. So holding, we affirm the
district court's judgment below on this alternate ground.1
I. BACKGROUND
A. Relevant Facts
On March 10, 2020, during the height of the COVID-19
pandemic, former Massachusetts Governor Charlie Baker limited
gatherings to no more than ten people within the state. Weeks
later, Governor Baker issued an order further limiting gatherings
and requiring businesses that do not provide essential services to
close their physical facilities in order to reduce the transmission
of the virus. In response, BU, like other higher education
institutions, replaced in-person classes with remote instruction
on March 16, 2020. Providing fully remote instruction required BU
to significantly improve its IT infrastructure and technical
resources, resulting in BU incurring an additional $52 million in
expenses for the Spring 2020 semester. Alongside remote
instruction, students were provided with remote access to tutors,
counselors, health care, and other services that were previously
provided on campus.
Plaintiffs were full-time students enrolled for
in-person classes during the Spring 2020 semester. For the Spring
1We are free to "affirm a judgment on a legal ground not
relied upon in the district court." Sierra Club v. Wagner, 555
F.3d 21, 26(1st Cir. 2009) (citing Plymouth Sav. Bank v. IRS,187 F.3d 203, 209-10
(1st Cir. 1999)).
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2020 semester and before BU's compliance with the Governor's
mandate, students had been provided with the option of registering
for online or in-person courses. At that time, BU provided
registrants with the times and locations of where the Spring 2020
on-campus classes would be held. Plaintiffs each paid tuition,
and once BU transitioned to completely remote instruction, BU did
not alter the costs of tuition, maintaining the same annual tuition
rate as charged for in-person classes. Plaintiffs also paid BU
certain mandatory fees for sports passes and other services such
as health and wellness, community, and student services. Both the
tuition and the fees went towards BU's general revenue to cover
all expenses, including services and resources. After BU
transitioned to fully remote learning, students continued their
Spring 2020 semester with the same professors for the same classes
and received academic credit as they would have had the instruction
been in person. BU also continued to provide students with remote
access to tutors, counselors, health care providers, and other
services that were offered on campus.
B. Legal Proceedings
On April 29, 2020, Plaintiffs filed suit against BU
alleging that it had promised to provide in-person classes and
services thereby committing a breach of contract when it did not
do so (in compliance with the Governor's mandates) during the
COVID-19 pandemic. In the alternative, Plaintiffs sought damages
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for the unjust enrichment BU allegedly received for providing
remote instruction in place of in-person classes. After extended
discovery and a series of motions, Plaintiffs and BU filed
cross-motions for summary judgment. Plaintiffs also moved for
class certification and BU moved to exclude testimony from
Plaintiffs' expert witness for damages under Daubert. Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579(1993). The district court granted BU's motions to exclude testimony and for summary judgment. In re Bos. Univ. COVID-19 Refund Litig.,2023 WL 2838379
, at *4.
The district court reasoned that BU was entitled to
impossibility as a defense for the breach of contract claims
because continued performance of the contract was illegal under
the COVID-19 emergency orders. Id. at *3. As for the expert's
testimony, the district court determined that the expert witness
should be excluded subject to Federal Rule of Evidence 703 because
the expert's analysis did not measure the type of damages claimed,
resulting in a lack of genuine dispute of material fact as to
restitution damages. Id. at *2-3. In entering judgment for BU,
the district court denied Plaintiffs' motions for class
certification and summary judgment as moot. Id. at *4.
Plaintiffs timely appealed arguing that the district
court erred by excluding their expert witness's testimony,
granting summary judgment for BU, and denying their motions for
class certification and summary judgment. In response, BU defends
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the district court's rulings based on this Court's holding as to
unjust enrichment in Burt v. Board of Trustees of the University
of Rhode Island, 84 F.4th 42, 58-59 (1st Cir. 2023), and
alternatively, urges this Court to find that Law 80 bars this
action. As to subsection 80(b), Plaintiffs counter that
retroactive application of Law 80 to bar their case would violate
the Due Process Clauses of the United States and Massachusetts
Constitutions and the Contracts Clause of the United States
Constitution.
C. Law 80
Law 80 grants higher education institutions in
Massachusetts immunity for monetary relief claims as specified by
the text infra. Subsections 80(b) and (d) limit the scope of Law
80. Subsection 80(d) states that Law 80 is applicable "to claims
commenced on or after March 10, 2020, for which a judgment has not
become final before the effective date of this section and which
were based on acts or omissions that occurred during the spring
2020 academic term." 2023 Mass. Acts, ch. 28, § 80(d). Subsection
80(b) states:
(b) Notwithstanding any general or
special law to the contrary, except as
provided in subsection (c), an institution of
higher education shall be immune from civil
liability for any damages or equitable
monetary relief alleged to have been sustained
due to an act or omission of an institution of
higher education if:
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(i) the claim arises out of or in
connection with tuition or fees paid to
the institution of higher education for
the spring academic term of 2020;
(ii) the claim alleges losses or
damages arising from an act or omission
by the institution of higher education
during or in response to the COVID-19
emergency;
(iii) the alleged act or omission of
the institution of higher education was
reasonably related to protecting public
health and safety interests in response
to the COVID-19 emergency, in compliance
with federal, state or local guidance,
including, but not limited to: (A)
transition to online or otherwise remote
instruction; (B) pause or modification to
instruction and ancillary student
activities and services available
through the institution of higher
education; or (C) closure of, or
modification to, operations of on-campus
facilities of the institution of higher
education; and
(iv) the institution of higher
education offered online and otherwise
remote learning options that allowed
students to complete the coursework in
the spring academic term of 2020.
Id. § 80(b).
II. DISCUSSION
A. Standard of Review
Because the retroactive application of Law 80 is a
question of law, our review is de novo. Kenyon v. Cedeno-Rivera,
47 F.4th 12, 20 (1st Cir. 2022) (citing Hannon v. City of Newton,744 F.3d 759, 765
(1st Cir. 2014)). The parties do not dispute
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that subsection 80(b) is intended to be retroactive. Therefore,
our analysis centers on whether this is constitutionally
permissible. Leibovich v. Antonellis, 574 N.E.2d 978, 984 (Mass.
1991). Plaintiffs do not contend that BU does not satisfy
subsection 80(b)'s four requirements or that BU has acted in bad
faith.
B. Law 80's Retroactivity
The legal analysis of whether retroactive statutes
violate the Due Process Clause of the United States Constitution
is that also followed as to the Massachusetts Constitution.
Nantucket Conservation Found., Inc. v. Russell Mgmt., Inc., 402
N.E.2d 501, 503(Mass. 1980); Am. Mfrs. Mut. Ins. Co. v. Comm'r of Ins.,372 N.E.2d 520, 525
(Mass. 1978) ("[T]hese various
contentions 'amount to much the same thing.'" (citation omitted)).
Hence, only a single analysis is needed. Retroactive legislation
must satisfy the due process test: "a legitimate legislative
purpose furthered by rational means." Gen. Motors Corp. v. Romein,
503 U.S. 181, 191(1992) (citing Pension Benefit Guar. Corp. v. R.A. Gray & Co.,467 U.S. 717, 730
(1984)); see also Landgraf v. USI Film Prods.,511 U.S. 244, 267-68
(1994) (stating that
"[r]etroactivity provisions often serve entirely benign and
legitimate purposes").2 As to any Contract Clause claim, "[w]e
Although we are not bound by the SJC's interpretation of
2
the federal Due Process Clause, both parties brief the due process
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need not deal with a constitutional prohibition against impairing
the obligation of contracts, because the due process clause of the
federal constitution provides essentially the same restraint so
far as retrospectivity is concerned." Fornaris v. Ridge Tool Co.,
423 F.2d 563, 566-67(1st Cir. 1970), rev'd on other grounds,400 U.S. 41
(1970). The burden rests on the challenger "to establish that the legislature has acted in an arbitrary and irrational way." Usery v. Turner Elkhorn Mining Co.,428 U.S. 1, 15
(1976).
"A legislative enactment carries with it a presumption
of constitutionality, and the challenging party must demonstrate
beyond a reasonable doubt that there are no 'conceivable grounds'
which could support its validity." Leibovich, 574 N.E.2d at 984(quoting Zeller v. Cantu,478 N.E.2d 930, 934
(Mass. 1985)); see also E. Enters. v. Apfel,524 U.S. 498, 524
(1998) (reaffirming the principle that "legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality" (quoting Usery,428 U.S. at 15
)); City of Boston v. Keene Corp.,547 N.E.2d 328, 331
(Mass. 1989); Am. Mfrs. Mut. Ins. Co.,372 N.E.2d at 525
(citing Mass. Port Auth. v. Treasurer issue using the SJC's three-part test. We accordingly assume, without deciding, that this test reflects federal due process principles. See Vaello-Carmona v. Siemens Med. Sols. USA, Inc.,781 F.3d 1, 6
(1st Cir. 2015) ("assuming, without deciding, that
a legal standard applies where 'both parties agree that the
standard . . . was correct'" (quoting Ji v. Bose Corp., 626 F.3d
116, 129 (1st Cir. 2010))).
- 10 -
& Receiver Gen., 227 N.E.2d 902, 906-07(Mass. 1967)). "Only those statutes which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional." Am. Mfrs. Mut. Ins. Co.,372 N.E.2d at 525
; Usery,428 U.S. at 14-20
. "The equitable criteria as to reasonableness in this context [has] been established by the United States Supreme Court." Am. Mfrs. Mut. Ins. Co.,372 N.E.2d at 526
. Our inquiry rests on "whether the statute falls within the legislative power to enact," Keene Corp.,547 N.E.2d at 331
, even if the law may seem "unwise, improvident, or out of harmony with a particular school of thought," Williamson v. Lee Optical of Okla., Inc.,348 U.S. 483, 488
(1955).
In evaluating the reasonableness of a retroactive
statute, the parties agree that we should weigh three factors:
(1) the nature of the public interest which explicitly or may have
motivated the Legislature to enact the retroactive statute;
(2) the nature of the rights affected retroactively and the
reasonableness of any reliance expectations on those rights; and
(3) the extent or scope of the statutory effect or impact,
including whether the statute is appropriate and narrowly
tailored. Leibovich, 574 N.E.2d at 984; Bird Anderson v. BNY Mellon, N.A.,974 N.E.2d 21
, 32 (Mass. 2012). With these axioms
in mind, we weigh subsection 80(b)'s retroactive application to
this case under the three factors.
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1. Nature of the Public Interest
Courts "defer to legislative judgment as to the
necessity and reasonableness of a particular measure" which "is
customary in reviewing economic and social regulation." U.S. Tr.
Co. of N.Y. v. New Jersey, 431 U.S. 1, 22-23(1977) (citing E. N.Y. Sav. Bank v. Hahn,326 U.S. 230, 233
(1945)). We will find a statute valid and reasonable when the statute is intended to benefit the public rather than reduce the state's own contractual obligations. Am. Mfrs. Mut. Ins. Co.,372 N.E.2d at 527
; U.S. Tr. Co.,431 U.S. at 23-25
. We must also consider "whether [the public] interest[s are] reasonably served by the statute." Bird Anderson, 974 N.E.2d at 29 (citation omitted). The statute's public interests need not be explicitly stated. See Leibovich,574 N.E.2d at 984
(upholding a retroactive statute where the Legislature "may have been motivated by at least three considerations of public interest" (emphasis added)). "That the Legislature might have, or arguably should have, come to different conclusions or followed a different course is not determinative." Am. Mfrs. Mut. Ins. Co.,372 N.E.2d at 527
.
Plaintiffs argue foremost that subsection 80(b) serves
no public interest, especially not public safety concerns, because
Law 80 was enacted more than three years after the spring 2020
semester. Plaintiffs also contend that Law 80 is not a reasonable
response to COVID-19 because Law 80 was enacted after the risks
- 12 -
associated with the pandemic had largely subsided. We disagree
with Plaintiffs, and in doing so, hold that there are several
plausible and reasonable public interest motivations undergirding
Law 80's enactment.
Subsection 80(b)(iii) states that immunity will extend
to conduct "reasonably related to protecting public health and
safety interests in response to the COVID-19 emergency, in
compliance with federal, state or local guidance." 2023 Mass.
Acts, ch. 28, § 80(b)(iii). This language specifies that two
public interests, to wit, protection of public health and safety
interests and securing compliance with government health orders,
motivate, at least in part, the Legislature's reasons for enacting
this statute. Subsection 80(b)(iii)'s language also makes clear
that not all acts or omissions by higher education institutions
are immune from liability; instead, the relevant conduct must be
"reasonably related to . . . public health and safety interests"
for the institution to be immune from civil liability. Id.; see
generally Thomas v. Baker, No. 21-1038, 2022 WL 18354179, at *1
(1st Cir. Aug. 1, 2022) (recognizing that "the COVID-19 pandemic
has been taking a terrible toll in the United States over an
extended period of time"). This is further evidenced by the
exception to Law 80 that higher education institutions will not be
immune from civil liability for "act[s] or omission[s] . . . that
w[ere] malicious or in bad faith." 2023 Mass. Acts, ch. 28,
- 13 -
§ 80(c). Accordingly, the language in subsection 80(b)
establishes that a public health and safety motivation in
connection to COVID-19 underlies the enactment of Law 80.
Next, we find that the Legislature could have concluded
that there exists a need to correct the disproportionate financial
impact felt by higher education institutions due to good faith
compliance with COVID-19 emergency orders. See Am. Mfrs. Mut.
Ins. Co., 372 N.E.2d at 526, 528(recognizing "that the concept of reasonableness is supported when retroactive legislation is enacted to cure a substantial defect which could not easily have been perceived at the time of . . . enactment"). BU, like other universities in Massachusetts, was required to close its facilities to the public to comply with Governor Baker's March 23 emergency order. Underlying BU's compliance was the need for public safety and the reality that large in-person gatherings throughout Massachusetts were no longer an option. In re Bos. Univ. COVID-19 Refund Litig.,2023 WL 2838379
, at *3. The
Legislature could have found that an immunity statute, like Law
80, would ensure that higher education institutions would not
hesitate to follow prospective emergency public health orders
meant to protect the safety of students and others. More so,
securing compliance with these orders was likely to reduce the
economic and other strains on the state itself as it coped with a
public health emergency. The Legislature could also have
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determined that litigation risks and costs accompanying past
universities' compliance could deter them from future compliance.
And although the COVID-19 public health emergency officially ended
in Massachusetts on May 11, 2023, the Legislature could have found
that the negative financial effects that higher education
institutions experienced during the Spring 2020 semester were
ongoing. Cf. Veix v. Sixth Ward Bldg. & Loan Ass'n of Newark, 310
U.S. 32, 39 (1940) ("The emergency of the depression may have
caused the 1932 legislation, but the weakness in the financial
system brought to light by that emergency remains.").
Supporting these motivations for Law 80's enactment are
the existence of various lawsuits, such as this one, in which
students allege a breach of contract and demand tuition refunds or
other monetary relief for substitute online instruction when
universities had no practical or legal choice but to continue the
Spring 2020 semester online in compliance with Governor's Baker
emergency order. See, e.g., Rodrigues v. Bos. Coll., No.
20-CV-11662, 2024 WL 100912(D. Mass. Jan. 8, 2024); Omori v. Brandeis Univ., No. 20-11021,2024 WL 150250
(D. Mass. Jan. 11, 2024); In re Suffolk Univ. Covid Refund Litig.,616 F. Supp. 3d 115
(D. Mass. 2022); Chong v. Northeastern Univ.,494 F. Supp. 3d 24
(D. Mass. 2020). "The need for retroactivity, and the
reasonableness of the legislative response, become most apparent
when the plaintiff claims a vested right arising out of the very
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transaction which motivated the Legislature to act." Am. Mfrs.
Mut. Ins. Co., 372 N.E.2d at 527. This case provides an example as to why the Legislature could have "necessitated a legislative remedy" to address potential civil liability for higher education institutions arising from the Spring 2020 semester transition to online instruction.Id.
The Legislature is well aware that
Massachusetts is home to a number of colleges and universities,
and they are vital to the state's economy.
In these circumstances, we conclude that subsection
80(b) serves reasonable and plausible public interests related to
public health, safety, future compliance, and economic
consequences beyond the control of the universities. Compare,
e.g., id. at 526-27 (holding a statute constitutionally
retroactive in part because of the "urgent reasons, of emergency
proportions, for immediate correction" to the broad impact of
higher insurance rates causing "financial crisis to thousands"),
with Bird Anderson, 974 N.E.2d at 29 (holding a statute
unconstitutionally retroactive in part because the public
interest -- equal treatment of adopted and biological
descendants -- would disrupt "the planning of multiple generations
of a family" where there was no evidence of an emergency or "that
the position of adopted children [had] changed dramatically" to
support the newly enacted amendment).
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2. Nature of the Rights Affected Retroactively
"Essentially, the question is . . . how great is the
change viewed in the light of the reasonable expectations of the
parties when the contract was entered into." Am. Mfrs. Mut. Ins.
Co., 372 N.E.2d at 527(alteration in original) (quoting Fornaris,423 F.2d at 567
). "Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations." Landgraf,511 U.S. at 273
.
"Legislation adjusting the rights and responsibilities
of contracting parties must be upon reasonable conditions and of
a character appropriate to the public purpose justifying its
adoption." U.S. Tr. Co., 431 U.S. at 22(citing Hudson Water Co. v. McCarter,209 U.S. 349, 445-47
(1908)). "[N]ot every law that upsets expectations is invalid; courts have generally compared the public interest in the retroactive rule with the private interests that are overturned by it." Adams Nursing Home of Williamstown, Inc. v. Mathews,548 F.2d 1077, 1080
(1st Cir. 1977). These expectations are to be reconciled with States' ability "to safeguard the welfare of their citizens." U.S. Tr. Co.,431 U.S. at 21
.
Plaintiffs assert that retroactive application of
subsection 80(b) impairs their vested implied contractual rights
for which they would have been able to recover before Law 80's
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enactment and that they would have acted differently had they known
Law 80 would be enacted. See Carleton v. Town of Framingham, 640
N.E.2d 452, 458 (Mass. 1994). BU responds that, at most,
subsection 80(b) affects only not previously recognized "implied"
rather than express contract rights and that this Court's decision
in Burt makes clear that no express contractual rights are at
issue. Further, BU argues that Plaintiffs cannot show that
(a) they acted in reasonable reliance on the prior state of law
and (b) that they would have acted differently had they known Law
80 would be enacted.
Plaintiffs rely, in turn, on two cases which do not aid
them: Campbell v. Boston Housing Authority, 823 N.E.2d 363(Mass. 2005), where retroactive application substantially impaired contractual obligations, and Bird Anderson,974 N.E.2d 21
, where
vested interests rendered the statute unconstitutionally
retroactive.3
3 Plaintiffs also cite three cases which invalidated Florida's
immunity statute similar to Law 80. See Feretti v. Nova Se. Univ.,
Inc., 586 F. Supp. 3d 1260(S.D. Fla. 2022); Fiore v. Univ. of Tampa,568 F. Supp. 3d 350
(S.D.N.Y. 2021); Rhodes v. Embry-Riddle Aeronautical Univ., Inc., No. 6:20-cv-927,2022 WL 18492541
(M.D. Fla. Nov. 23, 2022). In each of these cases, the district courts applied Florida law, which recognizes a "vested rights" approach for accrued cause of actions, to strike down Florida's immunity statute because it impaired vested contractual rights. Feretti, 586 F. Supp. 3d at 1269-71; Fiore, 568 F. Supp. 3d at 359-65; Rhodes,2022 WL 18492541
, at *3-4. By contrast here, Plaintiffs
have, at most, an equitable claim for unjust enrichment because
the doctrine of impossibility rendered the contracts
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Bird Anderson and Campbell are easily distinguishable
from this case. Campbell involved statutory amendments that
insulated solely public employers from "liability resulting from
the general failure to conduct" necessary health inspections. 823
N.E.2d at 368-69. The statute's apparent direct motivation was to benefit the state as employer, which differentiates Campbell from the instant case. When a "State's self-interest is at stake," we will apply less "deference to a legislative assessment of reasonableness and necessity." U.S. Tr. Co.,431 U.S. at 26
. But
that is not the situation here. Subsection 80(a) defines
institutions of higher education to include public and nonpublic
institutions, encompassing all postsecondary institutions that
satisfy subsection 80(b)'s criteria. 2023 Mass. Acts, ch. 28,
§ 80(a)-(b). Hence, we do not find the sole State as employer
self interest that was conspicuous in Campbell to be present here.
Moreover, the contractual rights substantially impaired in
Campbell differ from Plaintiffs' alleged implied contract rights
as we explain infra. For these reasons, Plaintiffs' reliance on
Campbell is unpersuasive.
The affected vested property right interests in Bird
Anderson likewise differ from the alleged implied contract
interests that Plaintiffs assert. The substantive vested
unenforceable. See Burt, 84 F.4th at 57-58. As Florida law does
not apply here, we see no need to further address these cases.
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interests in Bird Anderson derived from irrevocable testamentary
instruments, and the amended statute, if it were to be held
constitutionally retroactive, would have substantially altered and
affected the "dispositional choices of testators, settlors, and
grantors." 974 N.E.2d at 28; see also Adams Nursing Home, 548
F.2d at 1080(noting that retrospective legislation tends to be unconstitutional when "vested property rights" are overturned). That practical effect combined with the weak underlying public interest and infinite duration of the statute resulted in unconstitutional retroactivity. Bird Anderson, 974 N.E.2d at 29, 32. By contrast, the underlying public interest here is stronger, and the alleged implied contract interests here are, at most implied, not express, contractual rights. "[I]t is basic that the State reserves police powers that may in particular predicaments enable it to alter or abrogate even conventional contractual rights." Op. of the Justs.,303 N.E.2d 320
, 329 (Mass. 1973). "As with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose." U.S. Tr. Co.,431 U.S. at 25
; see S. Terminal Corp. v. EPA,504 F.2d 646
, 680 (1st Cir. 1974). Instead of focusing on a "conclusory label" as to the Plaintiffs' alleged vested rights, we direct our focus to the Plaintiffs' actual and reasonable expectations. See Adams Nursing Home,548 F.2d at 1081
.
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Plaintiffs argue that they reasonably expected BU to
perform its obligations of providing services that were expected
and paid for -- claiming that on-campus classes and services were
expected, not remote instruction. Even accepting Plaintiffs'
arguments that they expected on-campus classes and services when
they registered and began their Spring 2020 semester before the
pandemic hit, they ignore key later events. Given that Governor
Baker had ordered practically all large in-person
gatherings -- which unquestionably includes university
campuses -- to cease, Plaintiffs could not reasonably continue to
have such expectations in light of the state mandated emergency
measures. As this Court held in Burt, the affirmative defenses of
impossibility and frustration of purpose resulting from compliance
with the Governor's orders meant Plaintiffs no longer had any
reasonable reliance on the performance of illegal contracts.4 See
Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 439-40 (1934)
("And, if state power exists to give temporary relief from the
enforcement of contracts in the presence of disasters due to
physical causes such as fire, flood, or earthquake, that power
4 Even assuming Plaintiffs' never-before-recognized implied
contract claim would have left open a possible restitution claim,
any such claims are defeated because BU gave considerable value in
exchange for its online programs and other services. See SEC v.
Sanchez-Diaz, 88 F.4th 81, 90 (1st Cir. 2023).
- 21 -
cannot be said to be nonexistent when the urgent public need
demanding such relief is produced by other and economic causes.").
3. Extent of Law 80 and Balancing of Competing Interests
Finally, we address whether the extent of the impact is
not excessive. See Carleton, 640 N.E.2d at 458. We weigh the "duration of the burden imposed by the retroactive statute and 'whether the scope of the statute is narrowly drawn to treat the problem perceived by the legislature.'" Sliney v. Previte,41 N.E.3d 732, 741
(Mass. 2015) (citation omitted); Leibovich,574 N.E.2d at 986
.
Law 80's application is limited in time. Subsection
80(d) limits subsection 80(b)'s immunity to "claims commenced on
or after March 10, 2020, for which a judgment has not become final
before the effective date of this section." 2023 Mass. Acts, ch.
28, § 80(d). And its application is confined to suits that
commence within the specified time frame, "which were based on
acts or omissions that occurred during the spring 2020 academic
term." Id. Therefore, we find that the plain language of
subsection 80(d) narrows subsection 80(b)'s retroactive
application to further the Legislature's plausible and reasonable
public interests. Blaisdell, 290 U.S. at 447 ("It is limited to
the exigency which called it forth."). Subsection 80(b)'s scope
is not excessive but necessarily constrained to suits arising from
the Spring 2020 semester. Moreover, subsection 80(c) makes clear
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that Law 80 provides no immunity to higher education institutions
for malicious or bad faith conduct. Id. § 80(c).
Thus, because a balancing of all three factors weighs in
favor of retroactive application of Law 80 to this case, we find
that Law 80 does not violate due process.
III. CONCLUSION
For the foregoing reasons, we affirm the district
court's grant of summary judgment in favor of BU.5
5 Given that subsection 80(b)'s constitutional retroactivity
applies here, we thus see no need to reach the merits of the
Daubert ruling below.
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