The US Federal Court for the District of Columbia has issued an order setting aside the CDC Order. Alabama Association of Relators v. US Dept of HHS
While we anticipate the local Justice Court in Pima County will be slow to respond to this Order, we are hopeful when we present our argument to the Court they will follow basic legal procedure and abide by the Federal Court Order. We encourage our clients to send out any relevant nonpayment of rent notices for the month of May and move forward with evictions.
The ruling of a Federal Court is binding on our Arizona courts. As such because the Federal Court has set aside the CDC Order, the CDC Order is no longer in place or in effect. The CDC Order, as most of you know, authorized the Eviction Moratorium for nonpayment of rent cases across the country if a tenant submitted to a Landlord a CDC Declaration. I have read the Memorandum Opinion (link above) explaining the Court’s reasoning for setting aside the CDC Order. The Court’s Order is the law, and while I believe their position is well argued and presented, whether I or anyone else agrees or disagrees with the ruling, a Federal Court Order must legally be followed by the Pima County Justice Courts and other state courts unless the Federal Court of Appeals in some manner puts a stay in place regarding the lower court’s ruling. HHS has filed a Notice of appeal based upon this ruling, but a notice of appeal and an appeal in general does not stop or negate the lower court’s ruling. For example, in a criminal case, if a Defendant is found guilty of Murder, he is not released and allowed to roam the streets while he appeals the ruling of the court. In a civil matter if a one party is awarded a monetary judgment after a car accident the ability of the prevailing party to pursue collecting that judgment does not disappear or go away and is not placed on hold because the non-prevailing party files an appeal. The only way to stop the prevailing party from moving forward to collect on his/her judgment is for the non-prevailing party to post a bond. With evictions the rule in Arizona is if a Landlord is granted a judgment including the authorization for a Writ of Restitution to issue, the only way to stop the Writ of Restitution from being issued and executed is for the Tenant to post a bond for the full amount of the monetary judgment associated with the order that includes the Writ of Restitution. Without the payment of the monetary bond, the Tenant can still appeal the case, but the Writ of Restitution is authorized to be issued and executed.
I believe the argument will be made by some that because HHS has filed an appeal the CDC Order remains in place until the Appellate court issues its ruling. This is not how our system works as I have described in the above examples. I encourage all my clients and all landlords to keep themselves apprised of what is happening in the courts and with this case. We will of course post updates here on my Blog as well as on our Facebook page
Landlords and Tenant should expect changes in the coming days and weeks as this favorable ruling for landlords takes effect.