Gavel, scales of justice and law books

Landlords and mobile home park owners from around the state are asking the Arizona Supreme Court to void an executive order by Gov. Doug Ducey blocking evictions of tenants who do not pay their rent.

The lawsuit claims the governor lacks the constitutional authority to tell constables around the state not to process eviction orders, even those issued legally by judges. It also contends that the gubernatorial directive is violating both the property rights of landowners as well as their right to enter into contracts.

In seeking review, the lawsuit acknowledges that the governor can exercise certain powers in a public health emergency. But attorney Kory Langhofer, who prepared the legal filing, said 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.’’

Langhofer 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.’’

The lawsuit asks the high court not just to rule that Ducey’s order exceeds his constitutional authority but to specifically direct constables and justices of the peace to carry out their duties to evict tenants once there is a finding they are not paying their rent.

In previously defending the order, the governor’s office has argued that nothing in it eliminates the legal right of tenants to make up the missed rent once the emergency ends. But Langhofer said that eviction generally is a landlord’s only effective remedy when someone doesn’t pay.

And he called the end-of-emergency obligation to pay little more than “parchment promises’’ by tenants, who probably can’t pay anyway, making the requirement to come current on rent “an illusory means of redress’’ for landlords.

Courtney Gilstrap LeVinus, president of the Arizona Multihousing Association, one of the groups that sued, said when the governor issued the original order in March there was a promise that the state would be providing financial assistance to renters. So she said her members decided not to challenge the move.

But to date she said less than $2 million has gone out.

“Had those funds been deployed we may not have needed to file,’’ Gilstrap LeVinus said.

“There are plenty of resources out there,’’ she continued. “No one should be evicted.’’

Complicating matters, Ducey extended the no-eviction order last month through the end of October.

He did add a provision that requires tenants to certify to landlords by Aug. 22 they have applied for rental assistance from one of the state, county, city or private organizations that provide it. 

Ducey also set aside $5 million in grants for landlords, though aides to the governor said these were designed mainly to help those with one or just a few properties and not for owners of apartment complexes.

Gilstrap LeVinus said that will hardly be enough to compensate landlords for lost revenues.

Legal issues aside, she said it’s not fair to put the burden of the financial problems caused by the outbreak largely on the backs of landlords. “When the pandemic hit, the state didn’t mandate that grocery stores and restaurants give away free food or that gas stations give away free fuel,’’ Gilstrap LeVinus said. 

“Yet in this case, they’re asking rental housing owners to provide free housing.’’