PHOENIX — Gov. Doug Ducey wants to defend in court his right to block residential evictions.
In legal papers filed with the Arizona Supreme Court, the governor’s lawyers said he needs the ability to ensure “that Arizona can continue to respond to and recover from COVID-19.”
Therefore, Ducey wants the opportunity to try to convince the justices to throw out a lawsuit filed by landlords.
“The fight against evictions is key in slowing the spread of the virus,” wrote Brett Johnson, a private attorney retained by Ducey to defend him in all 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,” Johnson wrote.
He said that’s why, earlier this year, federal agencies temporarily suspended foreclosures and evictions for single-family mortgages they back.
It was in that spirit that Ducey enacted his first anti-eviction order in March, Johnson said. The order 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 virus, or having suffered substantial loss of income becasuse of 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.
During a declared emergency, Ducey is vested with “all police power” to “alleviate actual and threatened damage due to the emergency,” Johnson wrote to the high court.
The lawsuit filed by landlords seeks a state Supreme Court order essentially telling justices of the peace and constables to ignore Ducey’s executive order directing them to refuse to evict tenants who have not paid their rent. An attorney for the landlords, Tom Basile, argues that Ducey’s directive exceeds his legal authority and unconstitutionally interferes with legitimate contracts.
But the lawsuit does not name the governor as a defendant. And, strictly speaking, that gives Ducey no voice in the litigation.
That is unacceptable, Johnson contends.
“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,” he wrote.
The lawsuit does name the state itself as the “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 high court to dismiss the state from the lawsuit, saying it has no jurisdiction over the state in this case.
That would leave the justices of the peace and constables — and potentially, some tenants who are avoiding eviction because of the executive order — as the defendants in the case.
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