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Legal Aid files lawsuit against N.C. courts, alleging violation of CDC eviction ban

Legal Aid files lawsuit against N.C. courts, alleging violation of CDC eviction ban

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RALEIGH — Legal Aid of North Carolina filed a lawsuit against state and local court officials earlier this month in an effort to prevent unlawful evictions during the federal moratorium.

In the lawsuit, filed on Nov. 9 in Wake County Superior Court, Legal Aid alleges that court officials are not following the Centers for Disease Control and Prevention's nationwide eviction moratorium.

The defendants in the lawsuit are Durham County Clerk of Superior Court Archie Smith; assistant counsel for the state Administrative Office of the Courts Nicole Brinkley; and AOC director McKinley Wooten.

The plaintiffs are Action NC, a statewide group that advocates reducing social and economic inequality, and Judith Capell, who along with her family faces eviction in Durham County.

Capell and her family did not comment as Legal Aid advised they not speak to the media on pending litigation.

The AOC told The News & Observer in an email that court officials do not publicly comment on pending litigation.

How the CDC eviction moratorium works

The CDC eviction moratorium was instituted in early September as housing advocates statewide and nationwide were concerned about the possibility of mass evictions due to income loss from the COVID-19 pandemic.

The moratorium dictates that evictions must stop for tenants who submit a declaration form to their landlord saying they are unable to pay rent due to income loss as a result of the pandemic.

Landlords who violate the order are subject to criminal prosecution by the federal Department of Justice, according to the CDC order.

Tenants who submit the declaration form with incorrect information are subject to perjury charges.

Amid confusion surrounding state and local enforcement of the CDC order, Gov. Roy Cooper issued an executive order late last month clarifying enforcement in North Carolina.

Cooper's order requires landlords to take no action to request a writ of possession if a tenant provides a declaration that makes them eligible for protection under the CDC order.

A writ of possession is an order that legally removes a tenant from the landlord's property. Once the landlord files the writ, a sheriff is legally allowed to remove the tenant from the residence.

The executive order also requires landlords who seek an eviction to submit an affidavit saying that they gave the tenant a blank declaration form.

Both the CDC order and Cooper's executive order allow evictions for reasons other than nonpayment of rent.

Legal Aid's allegations

In its lawsuit, Legal Aid alleges that court officials at AOC are not following the CDC order or Cooper's executive order.

"The problem is, even though the CDC passed this order, it's not having the intended effect of actually stopping evictions or slowing the spread of COVID in North Carolina," said Isaac Sturgill, a Legal Aid attorney.

"One of the biggest components of why it has not been working is because our local courts, our core systems throughout the state, have failed to take any measures to implement the order."

The Legal Aid lawsuit centers around an email sent from Brinkley to county clerks of court throughout the state.

The email, sent on Sept. 9, instructs clerks to not change any processes associated with filing eviction cases.

Legal Aid argues that this violates the CDC order because they interpret clerks granting writs of possession to landlords as an action to remove someone from their home, which the CDC order prohibits if the reason for eviction is nonpayment of rent due to the pandemic.

Sturgill said Legal Aid has encountered numerous eviction cases for nonpayment of rent across the state since the CDC order began.

Legal Aid argues that this violates Cooper's executive order as well because the order says landlords are not entitled to a writ of possession if the eviction is for nonpayment of rent.

"The CDC order does not change the clerks' current process of filing and scheduling summary ejectment actions," Brinkley's email said.

Sturgill said that AOC has not updated its guidelines to clerks since Cooper's order took effect in late October.

"Clerks were to continue accepting eviction filings and to continue issuing rental possession against tenants and that nothing about that process should change. And that to me, to us, is astounding," Sturgill said.

"It is, I believe, causing many tenants to be evicted during this crisis when they should be receiving protection."

Sturgill said Legal Aid has not seen any cases across the state prosecuting landlords for taking actions to remove tenants for nonpayment of rent due to the pandemic.

"We've seen over time, over the last few months, is that landlords have become emboldened to disregard (the CDC order)," Sturgill said. "If you're not being prosecuted for violating it, then why not move forward with it?"

Across the state, pending eviction cases have increased since the CDC order was instituted, according to AOC.

On Aug. 4, before the CDC order was issued, there were 7,681 pending eviction cases. By the end of September, after the CDC order, there were 8,076 pending cases. By Nov. 2, that number had grown to 8,366.

It could not be determined how many of these cases were for nonpayment of rent.

Legal challenges to CDC order

The CDC is currently facing litigation challenging its authority to institute a nationwide eviction moratorium.

Shortly after the CDC order was issued, the New Civil Liberties Alliance joined a lawsuit that a Virginia landlord had filed against the CDC, arguing that the order would cause him significant economic damages.

Days later, the National Apartment Association joined the lawsuit.

The lawsuit is pending.

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