Gov. Doug Ducey wants to defend his right to block residential evictions from a lawsuit filed by landlords.
In legal papers filed with the Arizona Supreme Court, the governor’s legal team said he needs the ability to be able to ensure “that Arizona can continue to respond to and recover from COVID-19.” So he wants to be able to convince the justices that they should throw out the case.
“The fight against evictions is key in slowing the spread of the virus,” wrote Brett Johnson, the private attorney retained by the governor to defend him in all the litigation over the COVID-19 restrictions he has imposed. “The federal Centers for Disease Control and Prevention has warned that homeless shelters are often crowded, making social distancing difficult, and that homeless can exacerbate and amplify the spread of COVID-19.”
He said that’s why federal agencies earlier this year temporarily suspended foreclosures and evictions for single-family mortgages they back.
Johnson said it was in that spirit that Ducey enacted his first anti-eviction order in March. It precludes throwing people out of their rental units if they meet certain conditions, including a diagnosis of COVID-19, having health conditions making them more at risk of catching the disease, or having suffered substantial loss of income due to the pandemic.
In July, Ducey extended that order through the end of October, adding a requirement for tenants to seek housing assistance and new mandates to communicate with their landlords.
All that, Johnson said, is legal. He said that during a declared emergency, Ducey is vested with “all police power” to “alleviate actual and threatened damage due to the emergency.”
But it remains to be seen whether Ducey and his legal team actually will get to make their case to the high court.
The lawsuit, filed after Ducey extended his anti-eviction order, seeks an order from the justices essentially telling justices of the peace and constables to ignore the governor’s executive order directing them to refuse to evict tenants who have not paid their rent. That is based on claims by attorney Tom Basile that Ducey’s directive exceeds his legal authority and unconstitutionally interferes with legitimate contracts.
More to the point, the lawsuit does not name the governor as a defendant. And, strictly speaking, that gives him no voice in the litigation.
That, according to Johnson, is unacceptable.
“If Gov. Ducey is not permitted to intervene, there is a significant risk that the governor’s ability to respond to major catastrophes … will be eroded,” Johnson wrote.
The lawsuit does name the state itself as “real party in interest” that might want to defend the governor’s authority.
But Attorney General Mark Brnovich, in his own legal filing, has no interest in doing that. In fact, Brnovich has asked the justices to dismiss the state from the lawsuit, saying they have no jurisdiction over the state, as a legal entity, in this case.
That would leave the JPs, the constables – and potentially, some tenants who are avoiding eviction because of the executive order – as the only defendants in the case.
Johnson said they may have an interest in keeping the governor’s executive order in place, particularly those who otherwise might wind up on the street.
But he told the justices they are not as concerned with defending Ducey’s authority. That, Johnson said, only the governor can do for himself.
In challenging the executive order, the lawsuit acknowledges that the governor can exercise certain powers in a public health emergency. But Basile contends that Ducey, in unilaterally barring landlords from enforcing the terms of lawful lease agreements, created “an indefinite economic welfare and redistribution program, rather than a public health measure to contain the COVID-19 contagion.”
Basile also warned the justices that if the governor’s order goes unchallenged, “then there is virtually no personal or commercial transaction or conduct that would lie outside his grasp.”
State lawmakers have granted the governor various emergency powers in times of an emergency, including a health emergency. That, according to Basile, is designed to protect public health.
But Basile, unlike the governor, does not see protecting tenants against eviction as a matter of public health, arguing it is “primarily an economic relief measure.”
Courtney Gilstrap LeVinus, president of the Arizona Multihousing Association, said that by the time Ducey’s current order expires at the end of October it will have been 221 days that landlords may have been without rent and without the ability to evict tenants and replace them with someone who can afford the fees.