Division One
Gregory Real Estate and Management, LLC, Plaintiff-Appellant,
– vs. –
Hon. Miles M. Keegan et al., Defendants-Appellees
No. 1 CA-CV 20-0419
APPELLANT’S OPENING BRIEF
TABLE OF AUTHORITIES CITED iii
I. STATEMENT OF THE CASE AND FACTS. 1
II. STATEMENT OF ISSUES PRESENTED 6
III. ARGUMENT 7
IV. REQUEST FOR ATTORNEY’S FEES AND COSTS 39
V. CONCLUSION 40
Table of Authorities Cited
Cases
Berman v. Parker, 348 U.S. 26, 33, 75 S.CT. 98, 99 L.ED. 27 (1954)…………………………………………………………………………… 33
Buckley v. Valeo, 424 U.S. 1, 124, 96 S.CT. 612, 684, 46 L.ED.2D 659 (1976)………………………………………………………….. 13
Calmat of Arizona v. State ex rel. Miller, 176 ARIZ. 190, 859 P.2D 1323 (1993)………………………………………………………. 26
Clark v. Campbell, 219 ARIZ. 66, 193 P.3D 320, 325-26 (App. Div. 1 2008)………………………………………………………… 9, 10
Cook v. State, 230 ARIZ. 185, 281 P.3D 1053 (App. Div. 1 2012)……………………………………………………………………………… 14
Corrigan v. City of Scottsdale, 149 ARIZ. 538, 541, 720 P.2D 513, 516 (1986)…………………………………………………………. 32
Crane v. Frohmiller, 45 Ariz. 490, 496 (1935)…………………………………………………………………………………………………………….. 13
Dos Picos Land LLP v. Pima County, 225 ARIZ. 458 ¶ 10, 240 P.3D 853, 857 (App. Div. 2 2010)…………………………… 31
Duncan v. A.R. Krull Co., 57 Ariz. 472, 476 (1941)…………………………………………………………………………………………………….. 14
Giss v. Jordan, 82 Ariz. 152, 165 (1957)……………………………………………………………………………………………………………………… 13
Globe School Dist. No. 1. v. Bd. of Health of City of Globe, 20 Ariz. 208, 211 (1919)…………………………………………. 16, 22
Hercules Equipment Co. v. Smith, 335 P.2D 255, 259, 138 Colo. 458 (Colo. 1959)…………………………………………………… 9
Hughes Tool Co. v. Superior Court of Pima County, 370 P.2D 646, 650, 91 ARIZ. 154 (1962)…………………………………. 27
In re Forsstrom, 44 ARIZ. 472, 479, 38 P.2D 878, 881 (1934)…………………………………………………………………………………… 26
In re Gould, 113 A. 900 (Del. Super. 1921)…………………………………………………………………………………………………………………… 9
J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 ARIZ. 400,
405, 690 P.2D 119, 124 (App. Div. 1 1984)……………………………………………………………………………………………………………….. 8
Lehigh & N. E. R. Co. v. Hanhauser, 70 A. 1089, 1090, 222 Pa. 248 (Pa. 1908)………………………………………………………. 9
Maricopa County Mun. Water Conservation Dist. No. 1 v. La Prade, 45 Ariz. 61, 73 (1935)…………………………………….. 13
Mecham v. Gordon, 156 Ariz. 297, 300 (1988)……………………………………………………………………………………………………………. 13
Mitcheson’s Administrator v. Foster, 60 KY. 324, 326 (Ky. App. 1860)………………………………………………………………………. 9
Mohave County v. Chamberlin, 78 ARIZ. 422, 281 P.2D 128, 133 (1955)…………………………………………………………………. 26
Murr v. Wisconsin, 137 S. Ct. 1933, 1950 (2017)………………………………………………………………………………………………………… 28
Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922)………………………………………………………………………………………………………. 28
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.CT. 2646, 57 L.ED.2D 631 (1978)………………… 29
Powers v. Carpenter, 203 Ariz. 116, 120, 51 P.3d 338, 342 (2002)………………………………………………………………………………. 9
Rios v. Symington, 172 Ariz. 3, 5-6 (1992)…………………………………………………………………………………………………………………… 13
Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451, 454 (App. Div. 1 2003)……………………………………………………. 35
State ex rel. Woods v. Block, 189 Ariz. 269, 275 (1997)………………………………………………………………………………………………. 12
State v. Arizona Mines Supply Co., 107 Ariz. 199, 206 (1971)……………………………………………………………………………………. 14
Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 354 (2002)…………………………. 28
Trombi v. Donahoe, 223 Ariz. 261 ¶ 24, 222 P.3d 284, 290 (App. Div. 1 2009)…………………………………………………………… 9
Tucson Airport Authority v. Freilich, 136 Ariz. 280, 282, 665 P.2d 1002, 1004 (1983)………………………………………………. 33
United States v. Causby, 328 U.S. 256, 261, 66 S.CT. 1062, 90 L.ED. 1206, 104 Ct.Cl. 342 (1946)………………………….. 25
United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.CT. 357, 89 L.ED. 311 (1945)…………………………. 25, 32
Matter of Walker, 153 Ariz. 307, 310 (1987)……………………………………………………………………………………………………………….. 13
Yee v. City of Escondido, 503 U.S. 519, 527, 112 S.CT. 1522, 118 L.ED.2D 153………………………………………………………. 24
Statutes
1913 Code, § 4367……………………………………………………………………………………………………………………………………………………….. 21
1913 Code, § 4370……………………………………………………………………………………………………………………………………………………….. 22
20 Illinois Compiled Stat. 3305/7…………………………………………………………………………………………………………………………………. 19
A.R.S. § 12-2101(A)(1)………………………………………………………………………………………………………………………………………………….. 3
A.R.S. § 22-131……………………………………………………………………………………………………………………………………………………………… 9
A.R.S. § 25-101(A)………………………………………………………………………………………………………………………………………………………. 18
A.R.S. § 26-301(15)……………………………………………………………………………………………………………………………………………………… 17
A.R.S. § 26-303……………………………………………………………………………………………………………………………………………………………… 7
A.R.S. § 26-303(A)(2)………………………………………………………………………………………………………………………………………………….. 26
A.R.S. § 26-303(E)…………………………………………………………………………………………………………………………………………………. 18, 20
A.R.S. § 26-303(E)(1)……………………………………………………………………………………………………………………………………………. passim
A.R.S. § 26-303(G)………………………………………………………………………………………………………………………………………………… 19, 20
A.R.S. § 303(E)(1)……………………………………………………………………………………………………………………………………………………….. 16
A.R.S. § 303(E)(2)…………………………………………………………………………………………………………………………………………………………. 21
A.R.S. § 303(G)…………………………………………………………………………………………………………………………………………………………….. 21
A.R.S. § 36-787(A)……………………………………………………………………………………………………………………………………………………….. 15
A.R.S. § 36-787(B)……………………………………………………………………………………………………………………………………………………….. 34
A.R.S. § 36-787(B)(3)……………………………………………………………………………………………………………………………………………………. 34
A.R.S. § 36-787(C)………………………………………………………………………………………………………………………………………………….. 15, 16
A.R.S. §§ 26-301 – 26-320…………………………………………………………………………………………………………………………………………….. 20
A.R.S. §§ 26-303(E)(1)………………………………………………………………………………………………………………………………………………….. 15
A.R.S. § 41-1001(1)……………………………………………………………………………………………………………………………………………………… 16
P.L. 95-223 (1978)……………………………………………………………………………………………………………………………………………………….. 25
Other Authorities
Bulletin of the Ariz. State Bd. of Health, Vol. VI, No. 8 (Oct. 1918)……………………………………………………………………………. 22
Plato, Crito 53e (360 B.C.; B. Jowett trans. 1888)……………………………………………………………………………………………………….. 18
Rules
A.R.Civ.App.P. 21……………………………………………………………………………………………………………………………………………………….. 36
R.Proc. for Special Actions 4(g)…………………………………………………………………………………………………………………………………… 36
R.Proc. for Special Actions 8…………………………………………………………………………………………………………………………………………. 3
Regulations
Pres.Proc. 2039 (1933)…………………………………………………………………………………………………………………………………………………. 25
Constitutional Provisions
Ariz. Const. Art. II, § 2…………………………………………………………………………………………………………………………………………………… 7
Ariz. Const. Art. II, § 4…………………………………………………………………………………………………………………………………………… 32, 33
Ariz. Const. Art. II, § 17……………………………………………………………………………………………………………………………………….. passim
Ariz. Const. Art. II, § 32……………………………………………………………………………………………………………………………………………….. 27
Ariz. Const. Art. III………………………………………………………………………………………………………………………………………………….. 7, 12
ARIZ. CONST. Art. V, § 4…………………………………………………………………………………………………………………………………….. 11, 35
ARIZ. CONST. Art. V, § 9…………………………………………………………………………………………………………………………………………….. 20
Arizona Court of Appeals
Division One
Gregory Real Estate and Management, LLC, Plaintiff-Appellant,
– vs. –
Hon. Miles M. Keegan et al., Defendants-Appellees
No. 1 CA-CV 20-0419
I. STATEMENT OF THE CASE AND FACTS.
Plaintiff-Appellant Gregory Real Estate and Management, LLC (“Gregory”) is a management company entitled, under its contract with the property owner, to possess, when not occupied by a tenant per rental agreement, a house at 16237 N. 161st Drive, Surprise, Arizona (“the Real Property”). Defendants-Appellees Casey and Kinslee Radermacher (“Tenants”) are, or were at the time of proceedings in the Superior Court, tenants in possession of the Real Property and defendants in an eviction action before Defendant-Appellee Miles M. Keegan, Justice of the Peace for the Hassayampa Precinct of Maricopa County (“the J.P.”) which had proceeded to judgment in favor of Gregory, plaintiff therein. Defendant-Appellee Douglas A. Ducey is the Governor of Arizona (“the Governor”). The Governor’s Executive Orders 2020-14 and 2020-49 are referred to, collectively, as “the Executive Orders” or simply “the Orders.”
The Clerk’s Index of Record on Appeal is designated by the abbreviation “C.I.R.” The reporter’s transcript of the superior court proceedings of July 21, 2020, is cited as “R.T. 07/21/2020.” Portions of documents with line numbers are identified in the conventional page:line number form.
On May 5, 2020, Gregory brought an eviction action against Tenants in the Hassayampa Justice Court, Maricopa County, alleging non-payment of rent for two months and claiming entitlement to the immediate possession of the Real Property. C.I.R. 6. On May 13, 2020, the J.P. entered judgment awarding Gregory $3,954.80 and “immediate possession of the subject premises.” C.I.R. 7. With Tenants still in possession a week later, Gregory applied for a writ of restitution.
On March 24, 2020 the Governor had issued Executive Order 2020-14, which directed constables and other law enforcement personnel to “temporarily delay enforcement of eviction orders for residential premises” if (1) the defaulted tenant or a household member is subject to a quarantine order, (2) the defaulted tenant has a “health condition … that makes them more at risk for COVID-19 than the average person,” or (3) the defaulted tenant has “suffered a substantial loss of income resulting from COVID-19.” C.I.R. 12, Exhibit 23. E.O. 2020-14 was set to expire on July 22, 2020, but on the eve of its expiration the Governor issued Executive Order 2020-49. The successor proclamation is largely a continuation of its predecessor, but adds that after August 21, 2020, a tenant in default “is entitled to the delay in the enforcement of a writ of restitution” if he or she has provided the property owner with documentation of (1) an “ongoing financial hardship,” and (2) a submitted application to a governmental or nonprofit rental assistance program. Executive Order 2020-49, “Continued Postponement Of Eviction Enforcement Actions,” 07/16/2020, reproduced in Appendix, Part A. Although E.O. 2020-49 states that it will expire on October 31, 2020, nothing precludes repeated extensions for so long as the Governor is prepared to affirm that an emergency caused by the pandemic still exists.
The J.P. declined to issue a writ of restitution until Gregory presented a motion to compel such issuance. Upon hearing Gregory’s Motion to Compel, the J.P. found
there to be a significant loss of income due to Covid-19 in accordance with the Governor’s Executive Order 2020-14. The Writ of Restitution is stayed until the last day of the order, Wednesday July 22nd, 2020, or until the Defendant’s income has been restored, whichever comes first. The Constable shall execute the Writ on the earlier possible date after the stay is lifted.
C.I.R. 8.
Gregory commenced a special action in the Maricopa County Superior Court in the nature of mandamus to compel the J.P. to issue the writ of restitution and deliver it to the precinct constable for service in the usual course of eviction proceedings. C.I.R. 1. The special action was instituted with application for order to show cause. All Defendants appeared (C.I.R. 23), but the Governor was the only Defendant to actively participate. Although an Order to Show Cause had been issued, the Governor filed a Response to Gregory’s Application for Order to Show Cause and issue was joined on the Application, Response and Gregory’s Reply to Response. C.I.R. 4, 15, and 20. Argument was heard by Superior Court Judge Christopher Coury on July 21, 2020. On July 22, judgment was entered in favor of Defendants and against Gregory. C.I.R. 29. This appeal was initiated by Gregory on August 7, 2020. C.I.R. 31. The Court of Appeals has jurisdiction of the appeal under A.R.S. §12-2101(A)(1) and Special Action Rule 8.
Initially the Governor contended that the J.P.’s order denying Gregory’s Motion to Compel had been erroneous since the Executive Order affects only the precinct constable and not the justice court:
Gregory’s constitutional challenge is based on a fundamental misreading of EO 2020-14, which does not prevent a justice court from issuing a writ of restitution. EO 2020-14 instead institutes a temporary delay on enforcement of eviction action orders. … Such enforcement is within the domain of the executive branch. To the extent that the justice court misinterpreted EO 2020-14, Gregory’s objections to that court action have nothing to do with Governor Ducey.
* * *
The order does not prevent the justice court from issuing a writ of restitution or any other relief. Therefore, Plaintiff’s claim is non-cognizable at the outset.
C.I.R. 15, 2:26-3:4, 4:2-4 (emphasis in original).
To which Gregory replied:
The Governor asserts that it “is simply not true” that E.O. 2020-14 interferes with the Defendant Justice Court’s performance of its ministerial duty to issue a writ of restitution upon proper application following the entry of an eviction judgment. If that is so, the Governor ought to be explaining to the Defendant Justice Court that its interpretation and application of the Order is erroneous, since it is clear that it denied Gregory’s motion to compel issuance of the writ and instead stayed the writ until the last day of the Order solely because of, and in the belief that it was bound by, the Order. All Gregory asks here is the issuance and delivery to the Constable, for service in the ordinary course of the judicial process, of the writ for which Gregory has properly applied. Unless the Governor thinks that this would be violative of the Order, there is no reason for him to oppose Gregory in this special action. If he thinks the Order “does not prevent the justice court from issuing a writ of restitution or any other relief,” why does he respond here at all?
But it would scarcely comport with the high considerations of policy which motivate the Governor for him to postpone the question by another step. If upon the issuance of the writ the Constable for the Hassayampa Precinct should, thinking herself constrained by the Order, refuse to serve or enforce it, Gregory would be back in this Court presenting exactly the same issues, only with the Constable as Defendant in place of the Justice Court. Precisely to the extent the measure he has promulgated the Order to implement is necessary and salutary, the Governor should be anxious to have the Order’s validity ascertained. If pursuing his policy will necessitate calling the Legislature into emergency session or adopting other alternative measures, the emergency he says he perceives would demand that the Governor set about such tasks sooner rather than later.
C.I.R. 20, 2:5-26.
At the special action hearing, the following remark and colloquy occurred:
* * *
THE COURT: Let me just ask, Mr. Ahler, I – it’s my understanding that the Governor does oppose the special action petition. And it’s my reading that the Governor’s position is that it’s okay and acceptable under his executive order for the writ to issue; however, the time of execution, either as set forth in the order or as executed on by the constable or any other law enforcement officer, is upon the expiration of Executive Order 2020-14, which since has been extended. Am I getting that right or am I misunderstanding this?
The way the complaint was style, though, as seeking some sort of relief or declaration that his actions were – the Governor’s orders were unconstitutional, that is what the Governor is very much opposed to, for all the reasons I’ve stated.
R.T. 07/21/2020, 25:24 – 26:10, 30:5-24.
In its decision, the superior court addressed the Executive Order broadly as imposing a delay in the enforcement of eviction judgments, and of the challenged justice court action it said
given the language of EO 2020-14, perhaps the most precise action would be to issue an eviction order, and delay the date the eviction order could be served until the day after EO 2020-14, as extended, expired. However, delaying the issuance of the eviction order until EO 2020-14 expires has the same practical effect.
C.I.R. 29, p. 10 n. 7.
The J.P. tried to preserve a shred of judicial dignity by preferring to withhold issuance of the writ rather than issuing it only to have it ignored. Although other aspects of the superior court’s judgment are erroneous, it was right in taking cognizance of this special action and in addressing Executive Order 2020-14 as an order imposing delay of enforcement of eviction judgments generally and disregarding the quibble (abandoned by the Governor at argument in any event) that the Order restrains constables and sheriffs without directly constraining judges.
II. STATEMENT OF ISSUES PRESENTED
Whether the Defendant J.P. abused his discretion or acted in excess of his lawful authority by relying on the Executive Orders to stay until the last day of the Executive Orders the issuance and/or enforcement of a writ of restitution to enforce Gregory’s eviction judgment, given that the Executive Orders:
III. ARGUMENT.
The powers of the government of the state of Arizona shall be divided into three separate departments, the legislative, the executive, and the judicial; and, except as provided in this constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others. ARIZ. CONST. Art. III.
Any significant interference by one department with the operations of another department constitutes a usurpation of power in violation of Article III. J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 142 ARIZ. 400, 405, 690 P.2D 119, 124 (App. Div. 1 1984). The Executive Orders represent a blatant executive intrusion upon a function of the judicial department.
The Governor has characterized the Orders as merely “delay[ing] the enforcement of [judicial] eviction action orders” (emphasis his), noting that it purports to do this by issuing a command to “all Arizona Peace Officer Standards and Training Board certified law enforcement officers and any person subject to the jurisdiction of the Constable Ethics Standards and Training Board,” from which he seems to infer that it in no way impinges upon the exercise by the Judicial department of the powers properly belonging to it.
However,
¶ 18 In Arizona, the office of constable is a legislative creation. Although the Arizona Constitution requires a constable’s salary to be fixed and definite, it is the Legislature that has established the qualifications for holding the office, its term, and its duties. These duties require constables to attend the justice courts and to serve process directed or delivered to them by the justices of the peace. Historically, the office of constable has been linked with the office of sheriff. The Legislature has recognized the connection between these offices as it has directed [that] the provisions of law relating to sheriffs, as far as applicable, shall govern the powers, duties and liabilities of constables.
* * *
¶ 21 The duties of a constable, while more limited, closely resemble and, as discussed above, are historically linked to another county officer, the sheriff. Both the Arizona Supreme Court and this court have recognized that a sheriff, when carrying out certain of the statutory duties of the office, is acting as an officer of the court. [The] sheriff is required to attend all courts … [as] requested by the presiding judge and to [s]erve process and notices in the manner prescribed by law. When a constable attends a court and serves process as directed by a court, the constable, like a sheriff, is acting as an officer of the court.
Clark v. Campbell, 219 ARIZ. 66, 193 P.3D 320, 325-26 (App. Div. 1 2008) (citations and quotation signals omitted). Cf. Trombi v. Donahoe, 223 Ariz. 261 ¶ 24, 222 P.3d 284, 290 (App. Div. 1 2009) (“[T]he sheriff acts as an officer of the court in carrying out [his] duty” to “obey lawful orders and directions issued by the judge.”) It has long and widely been recognized that a sheriff to whom final process for the enforcement of a judgment has been delivered then acts as an officer of the issuing court in pursuing the mandate of such process.[1]
In the judgment under review the superior court states
Arizona law provides that “[c]onstables shall attend the courts of justices of the peace within their precincts when required, and within their counties shall execute, serve and return all processes, warrants and notices directed or delivered to them by a justice of the peace of the county or by competent authority.” A.R.S. § 22-131. Arizona law further provides that “the provisions of law relating to sheriffs, as far as applicable, shall govern the powers, duties and liabilities of constables.” A.R.S. § 22-131(D).
C.I.R. 29, p. 5 n. 2. Observing that in Powers v. Carpenter, 203 Ariz. 116, 120, 51 P.3d 338, 342 (2002), the Supreme Court found it unnecessary to reach the issue whether a constable is a judicial or an executive officer although it had been discussed by the parties, the superior court expressed the belief that it was unnecessary for it to determine whether a constable is an officer of the Executive Branch or Judicial Branch but said
[I]f such a determination was required to be made in this case, the Court believes that the relevant inquiry under Arizona law involves consideration of the function performed by constables, and not only title of the office held. … Service of an eviction order, like all other Court orders (Order of Protection, etc.) are functions belonging to officers of the Executive Branch, not the Judicial Branch. It, consequently, is appropriate (and not an infringement of the powers of the Judicial Branch) for the Arizona Governor to direct how Executive Branch functions and powers are to be exercised by government officials.
Id. (emphasis in original).
But there is no support for the trial court’s assertion that service of court orders is a “function belonging to officers of the Executive Branch, not the Judicial Branch.” It is established that while fulfilling her duties to “attend the courts of justices of the peace within [her] precinct” and “execute, serve and return all processes, warrants and notices directed or delivered to [her] by a justice of the peace,” the constable for the Hassayampa Precinct would be acting as an officer of the justice court. Clark v. Campbell, supra, 219 ARIZ. 66 ¶ 21. By what standard is the function of serving and enforcing court orders determined to be a “function belonging to officers of the Executive Branch, not the Judicial Branch?” The service and execution of judicial orders is a prescribed function of constables and sheriffs – and not of the Governor, adjutant general, attorney general, mine inspector or any other executive officer of state government.
Does anything underlie the trial court’s opinion that service of court orders is a “function belonging to officers of the Executive Branch and not the Judicial Branch” but squeamishness? “Why, that might lead to fisticuffs, and therefore it’s no work for anyone in my department!” But a judge is no judge if he does not rule in the solemn and sobering knowledge that he is committing the authority of government to the enforcement of his rulings; neither, if he pronounce sentence of death, is his moral responsibility any less because somebody else does the killing.
If it proves impossible for the officer designated by law to execute, serve or return a writ of restitution or other process by the ordinary means at his disposal – if the sheriff is obliged to summon the might of the county, or inform the governor of a state of insurrection, for instance – then at some point the question whether the operation has passed from the judicial to the executive realm might be presented. But while civil order prevails in the county there is no basis for saying that the service and execution of ordinary court orders by the officers charged by law with that duty is a function belonging to officers of the Executive and not the Judicial branch.
The Governor contends that it lies within the powers properly belonging to him as chief executive to prohibit enforcement of the judgments and orders of the Judicial branch, and his argument in support of that contention is that the Judicial branch may judge, pronounce and rule to its heart’s content, but the enforcement of its judgments, pronouncements and rulings lies entirely within his discretion. This he reconciles with his duty to take care that the laws be faithfully executed, ARIZ. CONST. Art. V, § 4, by asserting that it is up to him and not the judiciary to decide what laws shall be executed, when and how. The acceptance of his doctrine would transform Arizona courts of law into impotent debating societies, but, according to the Governor, have no effect on the constitutional balance of powers among the three branches of government.
The superior court seems not to have been troubled by the fact that in approving the Governor’s emasculation of the Hassayampa Justice Court it also embraced its own. The question is now squarely before this Court: Is the Judicial department without power to enforce its judgments because that power lies exclusively with the Executive department, so that the chief executive may promote or prohibit such enforcement at his discretion? The Governor’s attempt to reconcile the Executive Orders with Article III of the Arizona Constitution by arguing that he has forbidden only the enforcement of eviction judgments must fail unless that question is answered in the affirmative.
The depth of degradation embraced by the courts below is made manifest by the superior court’s observing, in support of the Executive Orders, that they permit the trial court to avoid their prohibitions upon finding that the enforcement of its judgment “is necessary in the interest of justice.” As if the solemn judgement here establishing Gregory’s right were not rendered in the interest of justice, or in general judgments granting relief to eviction-action plaintiffs were unnecessary or unjust! The Executive Orders must be justified, if they can be justified, by arguing that it is necessary to sacrifice enforcement of the just judgment awarding immediate possession of the Real Property to Gregory so as to promote a higher public need. The order of the J.P. challenged in this special action (C.I.R. 8) makes it clear that the justice of the judgment was not questioned but that the J.P. believed a writ of restitution could not be enforced, and so should not be issued, if E.O. 2020-14 were by its terms applicable.
“The roles of each branch of government in Arizona are … separate and distinct. ‘The legislature has the exclusive power to declare what the law shall be.’ In contrast, the executive branch’s duty is to carry out the policies and purposes declared by the Legislature.” State ex rel. Woods v. Block, 189 Ariz. 269, 275 (1997) (internal citations omitted). “The separation of powers doctrine is a fundamental principle on which federal, state, and local governments are based,” Matter of Walker, 153 Ariz. 307, 310 (1987), and is nowhere “more explicitly and firmly expressed than in Arizona.” Mecham v. Gordon, 156 Ariz. 297, 300 (1988). Similarly, at the federal level, “The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the documents that they drafted in Philadelphia in the summer of 1787.” Buckley v. Valeo, 424 U.S. 1, 124, 96 S.CT. 612, 684, 46 L.ED.2D 659 (1976).[2]
Just as no branch may invade the province of another, neither can one branch voluntarily cede power entrusted to it by the Constitution. Accordingly, “the Legislature may not delegate its power to make laws to any other person or body, except when authorized by the Constitution.” Crane v. Frohmiller, 45 Ariz. 490, 496 (1935); see also Maricopa County Mun. Water Conservation Dist. No. 1 v. La Prade, 45 Ariz. 61, 73 (1935) (“It is universally held that the Legislature cannot delegate its power of general legislation to any individual, or group of individuals, however organized.”). Were it otherwise, “the whole constitutional fabric might be undermined and destroyed.” Giss v. Jordan, 82 Ariz. 152, 165 (1957) (observing that “[e]very positive delegation of power to one officer or department implies a negation of its exercise by any other officer, department or person.”). In short, “[t]he lawmaking power vests solely in the Legislature.” Rios v. Symington, 172 Ariz. 3, 5-6 (1992).
The governor of Arizona is a democratically elected officer. So why insist that he refrain from legislating? Why did the framers of the Arizona Constitution vest the lawmaking power exclusively in the Legislative department? Because they created that department as a bicameral Legislature, with members locally elected by relatively small constituencies across the state. The first Legislature under the constitution, like the Territorial Legislatures that had come before and all subsequent Legislatures, consisted of members of different parties and creeds, pursuing a variety of occupations. Persons situated as is Gregory and persons situated as are the Radermachers might both expect the attention of the legislators from their district. Moreover, the Legislature is responsible for enacting a budget to cover the state’s financial needs, and devising the ways and means of meeting the obligations of that budget. The Governor, on the other hand, is in a position to take actions which may impose financial burdens upon the state without knowing or caring how the state will sustain such burdens. See below, p. 27 n. 12 and accompanying text.
Of course, the vicissitudes of human life and the practical demands of governance defy hermetical and crystalline boundaries between the three branches. Because the Legislature cannot anticipate and address with lapidary precision every possible contingency or constellation of circumstances, it “may expressly authorize” an executive branch body, “within definite valid limits, to provide rules and regulations for the complete operation and enforcement of the law.” Duncan v. A.R. Krull Co., 57 Ariz. 472, 476 (1941). The constitutional validity of such arrangements, however, presupposes a clear “standard … established by a statute” that only permits “the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.” Id. Thus, legislative imposition of an adequate standard or definite valid limitation is an indispensable predicate of a valid delegation of legislative power. See State v. Arizona Mines Supply Co., 107 Ariz. 199, 206 (1971).
Cook v. State, 230 ARIZ. 185, 281 P.3D 1053 (App. Div. 1 2012) is illustrative. There, the Legislature had defined the crime of first-degree murder, had provided that under certain circumstances it may be punished by death, and had provided that death sentences be carried out by lethal injection. The Court of Appeals said (230 ARIZ. at ¶ 6, 281 P.3D at 1055):
Although under the doctrine of separation of powers the legislature alone possesses the lawmaking power and while it cannot completely delegate this power to any other body, it may allow another body to fill in the details of legislation already enacted.
And so saying held that the precise formulation of the lethal intravenous cocktail was a detail of legislation already enacted which the Department of Corrections might properly be allowed to fill in.
The Governor contends that the Executive Orders are authorized by A.R.S. §§ 26-303(E)(1) and/or 36-787(C). However, § 36-787(C) becomes applicable only upon the occurrence or imminent threat of “a highly contagious and highly fatal disease with transmission characteristics similar to smallpox.” The Governor has not proclaimed COVID-19 to be “a highly contagious and highly fatal disease.” The Governor’s Declaration of Emergency *COVID-19* (03/11/2020),[3] upon which the Executive Orders are based, is couched in terms of the lesser § 36-787(A) standard, the presence of an “illness or health condition caused by … an epidemic or pandemic disease … that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.” Further, none of the documents of which the Governor succeeded in having the superior court take judicial notice[4] likens COVID-19 to smallpox or even mentions smallpox or its transmission characteristics.[5] Accordingly, § 36-787(C) is plainly irrelevant.
Thus we come to the main prop for the Governor’s position, A.R.S. § 26-303(E)(1). This statute provides, in its first independent clause, that during a declared state of emergency, “[t]he governor shall have complete authority over all agencies of the state government.” While the phrase “agencies of state government” is not defined in Title 26, in Title 41, State Government, §1001(1), it is laid down that “ ‘Agency’ does not include the legislature, the courts or the governor.” Besides, if “agencies of the state government” in § 303(E)(1) were read as including either of the other two departments, the statute clearly could not be reconciled with ARIZ. CONST. Art. III.
In its second independent clause, § 26-303(E)(1) provides that during a declared state of emergency the governor shall also have “the right to exercise … all police power vested in the state by the constitution and laws of this state.” It has been said that the police power of the sovereign “is that inherent and plenary power in the state which enables it to prohibit all things hurtful to the comfort and welfare of society.”[6] Does § 303(E)(1) enable the governor to exercise the same power of prohibition which the constitution vests in the Legislature? If it were so construed, would it be consistent with Article III of the Arizona Constitution?
The Governor has argued that
The Legislature has also provided standards to guide the Governor’s exercise of the emergency police power, such [as] by specifically defining a “state of emergency,” A.R.S. § 26-301(15), and by directing the Governor to use the police power “in order to effectuate the purposes of this chapter,” A.R.S. § 26-303(E)(1).
But the Legislature could hardly grant the Governor powers that may be exercised only in a state of emergency without defining what an emergency is. Under A.R.S. § 26-301(15), a state of emergency is “the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by … epidemic … or other causes … which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.” Chapter 2 of Title 26 doesn’t say who is to make the “due proclamation” or who is to determine the existence of the specified conditions. Here the Governor has simply asserted as to both, “C’est moi.” Perhaps that assertion is correct, but if so it could scarcely be said that the § 26-301(15) definition establishes any standard to guide the Governor’s exercise of the emergency powers granted him elsewhere in the chapter.
The hope that in exercising those powers the governor will be motivated by a desire to “effectuate the purposes” of Chapter 2 would come only slightly closer to the legislative establishment of “definite valid limits” on the Governor’s power to issue decrees under §303(E)(1) if the Legislature had specified what the purposes of the chapter are – but it failed to do so. Rummaging through the article and section headings one might infer that the Legislature had it in mind that the general welfare should be promoted in stressful times, but surely it is always understood that the Legislature exercises or (to the extent it may) delegates its powers only for the public good. If such pious generalities are accepted as a substitute for the legislative imposition of definite valid limits on the executive exercise of delegated power, then the rule of non-delegability obviously becomes a dead letter.
Encomiums on the breadth and dignity of the police powers possessed by the sovereign state – of whose laws we are children and slaves as were our fathers before us, a great theoretician on the subject teaches[7] – are not necessarily helpful to the Governor’s case. The Legislature in the exercise of this power has forbidden the marriage of first cousins. A.R.S. § 25-101(A). Supposing it had not done so, would § 26-303(E)(1) enable the Governor to impose such prohibition by decree? (What if it should be found, or suspected, that the products of inbreeding are more susceptible to COVID-19 infection, complications or death?) The infirmity of § 303(E)(1), as the Governor reads it, is that it purports, under certain circumstances, to hand the whole police power over to him, and it is fatuous to contend that it limits him to filling in the details of legislation already enacted or imposes any definite limits on the regulations he may issue by invoking it.
Gregory does not contend that the Legislature could not make a valid delegation of quasi-legislative authority to the Governor or another executive officer or department. Gregory does contend that, if it were given the interpretation for which the Governor contends, A.R.S. § 26-303(E)(1) would constitute an impermissible legislative shortcut. If the Legislature meant the “all police power” delegation in the same sense as the Governor would construe it, the brevity and simplicity of the Legislature’s formulation are so extreme as to undo the statute’s constitutional viability. To be empowered to take extraordinary measures to meet an emergency, a state governor need not be clothed with the entirety of the police power vested in the state by its constitution and laws to the point where he is enabled to legislate, in an emergency, with the same freedom as could the Legislature or – under the Arizona Constitution – the People.
A good example is Section 7, “Emergency Powers of the Governor,” added to the Illinois Emergency Management Agency Act in 2018.[8] The Illinois Legislature took the time to craft a provision enabling the governor of that state to exercise broad power in an emergency, but it did so by defining fourteen specific powers, in some cases subject to specific limitations. Of course the validity of this legislation under the Illinois constitution is not a matter which this Court need consider. No doubt a similar act with fewer or more subsections, of greater or less specificity, could pass muster under ARIZ. CONST. Art. III. Without necessarily going into as much detail as this Illinois law, our Legislature could at least have made some effort to prescribe definite limits to the authority it was conferring.
But perhaps the Legislature did mean to prescribe such limits. The construction the Governor would give to § 26-303(E)(1) is not the only one that is possible. This Court must harmonize §§ 26-303(E)(1) and 26-303(G), or else invalidate either or both of those subsections. Subsection G stipulates that “[n]o provision of this chapter [T. 16, Ch. 2] may limit, modify or abridge the powers vested in the governor under the constitution or statutes of this state.” (Emphasis supplied.) Since limitation or abridgment would both be types of modification, operatively this subsection provides that Chapter 2 must not be construed to modify the powers vested in the Governor by the constitution or by other statutes. Subsection G applies not just to subsection E and its subparts, but to all the provisions (A.R.S. §§ 26-301 – 26-320) of Chapter 2.
In harmonizing 26-303(E) and 26-303(G), the potential difficulty is determining whether giving effect to (G) would render (E) wholly ineffectual. But while giving meaning to (G) would preclude the sweeping and radical modification of the powers of the Governor which he here would read into (E), it would not render (E) wholly meaningless. The analysis should begin with a look at 303(E) as a whole:
Under its constitution, Arizona does not have a unitary executive. In fact its Executive department consists of five separately elected officers. Each presides over a separate office or agency and each office or agency typically receives a separate annual appropriation. The powers and duties of the four constitutionally established officers other than the governor – to wit, the secretary of state, state treasurer, attorney general and superintendent of public instruction – “shall be as prescribed by law.” ARIZ. CONST. Art. V, § 9. Except as provided by statute, the governor has no authority over or power to direct the other four executive officers or control the operations of their agencies.
The effect of §303(E)(2) and its harmonization with §303(G) become apparent when viewed against this background. By (E)(2), the governor is granted power, during a declared emergency, to direct the application and utilization of the resources of all state agencies, but under (G) this power is only valid to the extent it does not conflict with the authority of other executive officers as prescribed by another legislative enactment or with express directions or limitations that may be incorporated in public appropriations. In this manner, substantial resources are made subject to the governor’s disposition without modifying his powers as defined in the constitution and other statutes.
This reconciles (G) and (E)(2) perfectly, preserving substantial significance for each. The same may be said of (E)(1), though perhaps not quite so absolutely. As we have seen, interpreting “all agencies of the state government” in the first independent clause of (E)(1) as including the Legislature or judiciary would render (E) constitutionally irredeemable in any event, so to give (E)(1) any chance for preservation we must construe this clause as referring to all executive agencies. As (E)(2) gives the governor power to direct the application of executive agency resources, to the extent not in conflict with other legislation, (E)(1) gives similar authority over the operations of executive agencies. Thus both subsections G and, taken as a whole, E may be given substantial effect.
In designing a regulatory infrastructure for the new State of Arizona, the First Legislature created a State Board of Health headed by the Governor and the Attorney General as President and Vice President, respectively. See 1913 Code, § 4367 in Appendix, Part B. The agency was permitted “[t]o make and enforce all needful rules and regulations for the prevention and cure, and to prevent the spread of any contagious, infectious or malarial diseases among persons and domestic animals,” and carry out related measures to, for example, enforce quarantines, provide for the disposition of corpses, police food safety, and oversee a hierarchy of county and municipal boards of health. Id. § 4370.
Although the State Board of Health was not vested with any expressly denominated “emergency” powers, its statutory functions assumed particular salience during the Spanish flu epidemic in 1918-19. Contemporaneous records indicate that the State Board of Health mandated the closure of churches, schools, theaters, and other places of public accommodation, and conditioned their reopening upon evidence that “the number of cases of influenza has sufficiently decreased” and these facilities’ implementation of particular hygiene and sanitation protocols. See Bulletin of the Ariz. State Bd. of Health, Vol. VI, No. 8 (Oct. 1918) at pp. 7-8 in Appendix, Part C.[9]
Exercising authority vertically delegated to them by the State Board, local boards imposed similar edicts, engendering a dispute that made its way to the Arizona Supreme Court. Confronting the question whether the Globe municipal board of health could compel the shuttering of public schools during the epidemic, the Court premised its analysis on a recognition that “[t]o concede that any board of health has been delegated the legislative power to declare what is or what is not a nuisance is to concede that boards of health may be delegated legislative power, and this cannot be done.” Globe School Dist. No. 1. v. Bd. of Health of City of Globe, 20 Ariz. 208, 211 (1919). It observed, however, that the Legislature had explicitly designated each board of health to act as “the responsible administrative agency within its jurisdiction, to enforce the health laws with regard to” the containment of a “contagious, infectious, or dangerous disease.” Id. at 216.
What the Supreme Court definitely did not confront in the Globe School District case was a law purporting to clothe any executive agency with “all police power vested in the state.” The Globe School District Court suggested that the local health board’s actions were lawful only because they were carefully adapted to align with the contours of the State Board’s enumerated statutory powers with respect to the containment of contagious disease. Id. at 218. Because the provisions of the 1913 Code were so fundamentally different from the legislation now before the Court, the Globe School District decision is of limited utility in analyzing § 26-303, except insofar as that decision stresses the non-delegability of legislative authority.
Private property shall not be taken for private use … . No private property shall be taken or damaged for public or private use without just compensation having first been made, paid into court for the owner, secured by bond as may be fixed by the court, or paid into the state treasury for the owner … . ARIZ. CONST. Art. II, § 17.
Actually, Gregory’s adjudicated right of immediate possession has effectively been taken for the private use of Defendants Radermacher, which is prohibited by the first sentence of § 17. Presumably, the Governor would characterize his program of redistribution as necessary to protect the public from the spread of COVID-19 and thereby argue that what might look like Radermacher’s private use is really a public use. Even accepting that argument, the just compensation required by § 17 would remain to be considered.
The superior court held that “There has been no physical invasion or direct appropriation of Plaintiff’s real property. Consequently, there is no actual taking.” C.I.R. 29, p. 9. But the purpose and effect of the Executive Orders are to keep rental property tenants in possession despite eviction judgments awarding immediate possession to owners or their agents. It is true that the Orders do not purport to appropriate property directly to the state. They do, however, effectively redistribute property interests by blocking the enforcement of court orders awarding such interests to a certain class of successful litigants – a class by definition consisting of persons adjudged to be entitled to the immediate possession of real property currently in the possession of others. They require the owners to submit to the tenants’ physical occupation by preventing the enforcement of the legal remedy that would otherwise be available to the owners. “The government effects a physical taking … where it requires the landowner to submit to the physical occupation of his land. This element of required acquiescence is at the heart of the concept of occupation.” Yee v. City of Escondido, 503 U.S. 519, 527, 112 S.CT. 1522, 118 L.ED.2D 153 (1992) (internal quotation signals omitted).
It would be difficult to identify a set of property rights more fundamental to our law, or more essential to our economy, than the interests incidental to the allodial ownership of real property; and among those interests none is more fundamental or essential than the interest of immediate possession. But regardless of the importance of a property interest, the owner of that interest may not be deprived of it, for public or private use, unless just compensation has first been paid or secured. ARIZ. CONST. Art. II, § 17. It is the deprivation of the owner rather than the accretion of a right or interest to the sovereign that constitutes a taking which constitutionally requires compensation. United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.CT. 357, 89 L.ED. 311 (1945)[10].
An executive decree may block the enforcement of judicial orders determining the property rights claimed by and judicially awarded to a certain class of owners, thereby leaving such rights in the hands of those who are in actual possession of them despite the judicial determinations of the owners’ entitlement, and the deprived owners will not be entitled to any compensation. That is the precedent the Governor and the trial court would establish. The Court ought to consider how great an engine of uncompensated expropriation would thus be installed in Arizona law. Only seize a house, apartment building or factory and let the Governor issue an emergency decree prohibiting enforcement of any court orders ousting you and re-installing the rightful possessor, and the property will be yours – at least for the duration of the emergency.[11] The previous owner is just out of luck.
A.R.S. § 26-303(A)(2) should also be considered in this context. It would become applicable only in a “state of war emergency,” when it would authorize the governor to “[c]ommandeer and utilize any property … or personnel” but stipulates that eventually “the state shall pay reasonable compensation” for commandeered property. (Compensation for commandeered personnel is not addressed.) Subsection (A)(2)(a) provides that “[i]f property is taken for temporary use, the governor, within ten days after the taking, shall determine the amount of compensation to be paid therefor.” The Executive Orders effectively requisition housing to be occupied by evicted tenants, declaring that “avoid[ing] the serious consequence of Arizonans losing their rental housing” is necessary in order “to further protect public health.”
If under this legislation the government were asserting a need to allocate housing resources because of a military emergency, the persons otherwise entitled to immediate possession of the affected properties would clearly have to be compensated. The same authority is not expressly conferred upon the governor in a public health emergency – but is that a reason to deny compensation to the dispossessed?
Citing Calmat of Arizona v. State ex rel. Miller, 176 ARIZ. 190, 859 P.2D 1323 (1993) the Governor has argued that Gregory’s remedy of monetary damages through an inverse condemnation action prevents it from obtaining the special action relief Gregory sought in the superior court. Calmat, 176 ARIZ. at 192, 859 P.2D at 1325, and its antecedent Mohave County v. Chamberlin, 78 ARIZ. 422, 281 P.2D 128, 133 (1955) (overruling In re Forsstrom, 44 ARIZ. 472, 479, 38 P.2D 878, 881 (1934) ) alike stand for the proposition that an owner whose property has been taken or damaged without compensation may sue the public body that did the taking or damaging for money damages even if there is no legislative enactment providing for or statutory procedure governing such a suit.[12] Neither suggests in any way that the express constitutional requirement, to wit, that just compensation first be made, paid into court or the state treasury or secured by bond, may or should be ignored. On the contrary, the Supreme Court has granted special action relief to prevent an in-progress taking where just compensation has not been determined and provided for. Hughes Tool Co. v. Superior Court of Pima County, 370 P.2D 646, 650, 91 ARIZ. 154 (1962).
The requirements of ARIZ. CONST. Art. II, § 17 are mandatory. ARIZ. CONST. Art. II, § 32. The fact that a judicially created damages remedy is available when property has been taken or damaged in violation of § 17 neither mandates nor justifies judicial disregard of the plain language of this provision where an instance of taking or damaging is challenged when it is threatened or in progress. Authorities from jurisdictions where taking for public use is not constrained by an explicit requirement that just compensation be made and secured beforehand, including federal cases under the Fifth Amendment of the United States Constitution, are not appropriately cited as justification for ignoring the explicit terms of § 17.
Assume that the Governor’s ban on the enforcement of eviction judgments is both within his lawful authority and vital for the protection of the public welfare because, as the Orders assert, “avoid[ing] the serious consequence of Arizonans losing their rental housing” is necessary in order “to protect public health.” Clearly, this allotment of the right to possess housing units to persons other than those adjudged to be entitled to such possession imposes a burden on the dispossessed, and by hypothesis this burden is imposed in order to promote the general welfare. Do not both natural fairness and our constitution demand that this burden be borne by the entire populace, through the state, rather than by the dispossessed?
As Justice Holmes observed over one hundred years ago, “We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 416 (1922); see also Murr v. Wisconsin, 137 S. Ct. 1933, 1950 (2017) (Roberts, C.J., dissenting, joined by Thomas & Alito, JJ.). (“Our decisions have, time and time again, declared that the Takings Clause protects private property rights as state law creates and defines them. By securing such established property rights, the Takings Clause protects individuals from being forced to bear the full weight of actions that should be borne by the public at large.”) (emphasis omitted); see also Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 354 (2002) (Rehnquist, C.J., dissenting, joined by Thomas & Scalia, JJ.). (“[A]s is the case with most governmental action that furthers the public interest, the Constitution requires that the costs and burdens be borne by the public at large, not a few targeted citizens.”).
This issue is not unrelated to the “taking” issue discussed in Part III.B.1 above:
The question of what constitutes a “taking” for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the Fifth Amendment’s guarantee … is designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole, this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely upon the particular circumstances in that case.
In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations.
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24, 98 S.CT. 2646, 57 L.ED.2D 631 (1978) (citations and internal quotation signal omitted). Neither is it obvious how a bright line could be drawn between such an ad hoc inquiry into what justice and fairness require and an inquiry into whether an owner’s due process rights have been violated, the issue discussed in Part III.C.1 below.
The Governor’s Orders have caused Gregory to lose the possession of and all income from the Real Property for as long as the Governor may choose to extend his ban on the enforcement of eviction judgments. Factors peculiar to Gregory, such as other properties in its portfolio, degree of leverage and debt levels, are not properly considered as part of the economic impact of the Orders. Inherent factors, such as Gregory’s ongoing burden of maintenance and property taxes, are. Economically, the Orders have effected the expropriation of Gregory’s interest in the Real Property – for an indefinite “temporary” period – without alleviating its associated burdens.
Turning from the impact on Gregory to “particularly, the extent to which the [Orders have] interfered with distinct investment-backed expectations,” landlords invest in a residential property to be made available to residential tenants in the expectation of receiving a stream of rental income as long as the property is occupied by the tenants and being able to use this income to cover expenses such as maintenance and taxes and providing a return on the investment. If the Orders are allowed to teach landlords that through no fault of their own they may at any time be deprived, for an indefinite period and without compensation, of both possession of their properties and the income they expected to derive from them, the inevitable consequences are obvious: Fewer people will be willing to build or (what is economically equivalent) buy residential rental properties, fewer residential rental units will become available, and those available will obtain higher rents, because of both diminished supply and the owners’ need to provide a reserve against such indefinite dispossession.
It is the judgment of the Defendant Justice Court that Gregory is entitled to the immediate possession of the Real Property and the Orders, as applied in that Court, are blocking the issuance of final process for the enforcement of that judgment. In effect the Governor has deprived Gregory of its property interest not for the direct benefit of the State of Arizona but so that the Defendants Radermacher may remain in possession.
There is no precedent concerning a taking that is effected by blocking the enforcement of a court judgment confirming the interest owned by the citizen, because no American executive authority has heretofore sought to redistribute property by interfering with the judicial vindication of existing property rights. “Regulatory taking,” as commonly understood, is an altogether different matter.
The hallmark of a regulatory taking is the imposition of governmental regulations that impermissibly limit an owner’s free use of his or her property. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.
Dos Picos Land LLP v. Pima County, 225 ARIZ. 458 ¶ 10, 240 P.3D 853, 857 (App. Div. 2 2010) (citations and quotation signals omitted).
Here, the only effect of the Orders is to keep the Radermachers in possession by preventing the enforcement of the justice court judgment awarding immediate possession to Gregory. Similarly maintaining in possession tenants affected physically or economically by COVID-19 and/or measures for its suppression is the entire and avowed purpose of the Orders. Reallocation of rental housing, accomplished by barring the enforcement of judgments awarding immediate possession to successful eviction plaintiffs – that is, by effectively depriving such plaintiffs of their judicially established right of possession – is plainly what the Orders were meant to bring about.[13] No separate or broader regulation of real property usage is imposed or subserved.
That the Governor’s ultimate objective is the suppression of epidemic disease does not make the taking of Gregory’s right of possession any less the deprivation of a property interest, just as the great national objective of achieving victory in World War II did not make the government’s seizure of a warehouse leased by General Motors any less a deprivation of that corporation’s leasehold interest in United States v. General Motors Corp., p. 24 above.
Finally, it is of no moment that the Orders are notionally temporary. That the Governor is willing and claims the ability to renew and extend them indefinitely has already been demonstrated. Moreover, our Supreme Court has held that an owner whose property interest is taken temporarily is as entitled to compensation for the injury suffered as is an owner whose interest was taken permanently. Corrigan v. City of Scottsdale, 149 ARIZ. 538, 541, 720 P.2D 513, 516 (1986).
No person shall be deprived of … property without due process of law. ARIZ. CONST. Art. II, § 4.
The character of the governmental action to which Gregory objects must be taken into consideration in determining whether due process of law has been observed. The Orders explicitly operate upon the interests of persons who have obtained judgments establishing their entitlement to the immediate possession of real property currently in the possession of others, by prohibiting the enforcement of such judgments. Once it is recognized that these gubernatorial decrees have been applied to deprive Gregory of a property interest, it follows that constitutional restraints applicable to such state action must be observed.
Gregory concedes that the Legislature might validly empower the Governor, under certain circumstances and subject to definite limits, to exercise the sovereign’s inherent power of eminent domain. Whether it has validly done this so as to authorize the program of economic redistribution evinced by these Orders is a separate question, as is the question whether, if just compensation be required, under Art. II, § 17 of the Arizona Constitution it must be made or secured before eminent domain is exercised. Even if those questions are decided in the Governor’s favor, it must be recognized that the effective deprivation of property rights imposed upon Gregory, for private or public good, is effectively an exercise of government power to deprive an owner of a property interest, and thus an instance of eminent domain. “Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end.” Berman v. Parker, 348 U.S. 26, 33, 75 S.CT. 98, 99 L.ED. 27 (1954).
The Governor’s Orders disregard compensation entirely. Gregory presented above its argument that this violates § 17 of the Declaration of Rights, Article II of the Arizona Constitution. Gregory further submits that just compensation is so firmly and appropriately linked, in our law, with the power of eminent domain that the exercise of eminent domain without addressing a concomitant requirement for just compensation[14] is a violation of Article II, § 4, and would be even if: (a.) the deprivation of its interest of immediate possession which Gregory has suffered were not technically a “taking” within the meaning of § 17; or (b.) Section 17 were not included in the Declaration of Rights.
The Governor’s Exhibits 14 and 18 (in C.I.R. 11) say that “People who are homeless are at risk of COVID-19.” But his Exhibit 13 says that “Everyone is at risk of getting COVID-19.” The Governor’s Exhibit 5, his only document discussing rental housing in any detail, contains no suggestion that prohibiting evictions might be a viable curative measure. Exhibit 5 says that many American households face housing insecurity on economic grounds but it also says that this insecurity has been building for decades and as to any current increase in this insecurity it merely cites another study presenting an economic model which relates projected increases in evictions to levels of unemployment. As Gregory observed in connection with its objection to the Governor’s request for judicial notice, “this indirectly cited economic model is not exactly up there with the Pythagorean Theorem or the Periodic Table of Elements” as a fit subject for judicial notice. But even if the positive correlation described in that model is taken as gospel, the Governor’s A.R.S. § 36-787(B) powers are clearly designed to support the pursuit of particular public health objectives, not general economic policies.
It is already quite a stretch to explain the Orders as an instance of the Governor, “in consultation with the director of the department of health services, issu[ing] orders that … [p]rovide for transportation of … ill and exposed persons” within the meaning of A.R.S. § 36-787(B)(3). (The explanation being that the Orders promote the non-transportation – interpreted as retaining their existing places of residence however much they may otherwise move about – of tenants subject to eviction judgments, who are presumptively exposed like everyone else.) But since the only evidence the Governor produces relate evictions to unemployment and not to public health conditions or outcomes, the Orders cannot be sustained as public health measures, whatever their merits might be as tools to implement a new “to each according to his needs” economic regime.
The enforcement of a final judgment – whose legality and justice are in no way questioned – vindicating existing property rights is as “implicit in the concept of ordered liberty” as the enforcement of any other final judgment, or as the existence, separateness and vitality of a Judicial department with power to render effectual judgments. Gregory maintains that its right to obtain enforcement of its judgment is therefore a fundamental right, protected by § 4 of the Declaration of Rights. If so, then “strict scrutiny” analysis is applicable, rendering the Orders sustainable only if they serve a compelling state interest and are narrowly tailored to achieve that interest. Standhardt v. Superior Court, 206 Ariz. 276, 77 P.3d 451, 454 (App. Div. 1 2003).
Even if Gregory’s admitted right is not deemed “fundamental” in nature, the Orders could be sustained only if they are rationally related to the governmental interest which the Governor claims they promote. Id. at 455. The Orders fail either test because allowing a random and relatively sparse scattering of housing units to stay occupied by their current occupants if the occupants so choose, while imposing no other constraints on changes in the occupancy of housing units or on the general mobility of the populace, cannot possibly promote any public health objective, and the singling out of rental units whose owners have been adjudged entitled to immediate possession is arbitrary, capricious and unrelated to a legitimate governmental purpose.
IV. REQUEST FOR ATTORNEY’S FEES AND COSTS.
Plaintiff requests an award of costs pursuant to Spec. Action Proc. R. 4(g), A.R.C.A.P. 21, and an award of reasonable attorneys’ fees pursuant to Spec. Action Proc. R. 4(g) and the private attorney general doctrine.
V. CONCLUSION.
The Defendant Justice of the Peace rendered, in the interest of justice, a final and unchallenged judgment granting Gregory’s plea to be awarded immediate possession of the Real Property, but it applied the Executive Orders as barring the enforcement of that judgment. For the reasons stated, the Orders, as applied by the Defendant Justice of the Peace, were and are invalid. Thus the justice court order withholding issuance of the writ of restitution properly applied for by Gregory was based on an error of law and therefore constitutes an abuse of discretion. Accordingly, the superior court judgment appealed from should be vacated and the matter remanded with instructions to grant Gregory special action relief in the nature of mandamus.
DATED: September 22, 2020.
Law Office of Brian K. Stanley
By: /s/Brian K. Stanley
Brian K. Stanley
Attorney for Plaintiff-Appellant Gregory Real Estate and Management, LLC
[1]. See, e.g., Hercules Equipment Co. v. Smith, 335 P.2D 255, 259, 138 Colo. 458 (Colo. 1959) (“In carrying out execution process the sheriff is an officer of the court”); In re Gould, 113 A. 900 (Del. Super. 1921) (“the sheriff is an officer of this court, and in the execution of the writ of replevin placed in his hands was acting under the direction of the court, and as its agent”); Lehigh & N. E. R. Co. v. Hanhauser, 70 A. 1089, 1090, 222 Pa. 248 (Pa. 1908) (“In executing [a writ of execution issued by the Philadelphia county court] the sheriff of [Northhampton] county would become, for the time being, the officer of the Philadelphia court.”); Mitcheson’s Administrator v. Foster, 60 KY. 324, 326 (Ky. App. 1860) (Writ of execution “was placed in the hands of the sheriff, as the appropriate officer of this court, and it was his duty to obey the command of the writ”).
[2]. For quotations illustrating the significance of the separation of powers doctrine in the political philosophy of the Founding Fathers, see Appendix, Part D.
[3]. C.I.R. 6, Exhibit 22.
[4]. The author of at least one of which documents, and the presiding genius behind several others, has repeatedly characterized COVID-19 as no more dangerous than influenza and, as of the date of the superior court hearing, had recently stated that the disease is “under control” in the United States and that it is, in any event, “99% harmless.” Why such sources must be taken as authoritative for some purposes and may be disregarded for others is something the Governor does not explain.
[5]. Since there is a lacuna in the Governor’s evidence on this point, Gregory feels it is not amiss to point out that experts have put the R0 of smallpox at 3.5 to 6, and that of COVID-19 at 2.0 to 3.1. M. Eichner and K. Dietz, Transmission Potential of Smallpox: Estimates Based on Detailed Data from an Outbreak, American Journal of Epidemiology, 158(2), pp. 110-17, 15 July 2003; Abstract at https://academic.oup.com/aje/article/158/2/110/323323; M. Majumder and K. D. Mandl, Early Transmissibility Assessment of a Novel Coronavirus in Wuhan, China, https://papers.ssrn.com/sol3/papers.cfm?abstract id=3524675.
[6]. Globe School Dist. No. 1 v. Bd. of Health, 20 ARIZ. 208, 221 (1919).
[7]. Plato, Crito 53e (360 B.C.; B. Jowett trans. 1888).
[8]. 20 ILCS 3305/7, reproduced in Appendix, Part E.
[9]. The State Board of Health was eventually overhauled and reincarnated as the modern Department of Health. See 1941 Ariz. Session Laws, ch. 105 (Fifteenth Legislature, House Bill 1).
[10]. In that case the United States Supreme Court also said that “property,” as used in the Fifth Amendment, denotes “the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it” and that “it deals with what lawyers term the individual’s ‘interest’ in the thing in question. That interest may comprise the group of rights for which the shorthand term is ‘a fee simple’ or it may be the interest known as an ‘estate or tenancy for years’ … . The constitutional provision is addressed to every sort of interest the citizen may possess.” Id.
Cf. United States v. Causby, 328 U.S. 256, 261, 66 S.CT. 1062, 90 L.ED. 1206, 104 Ct.Cl. 342 (1946) (“It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken.”)
[11]. The Bank Holiday emergency proclaimed on March 9, 1933 lasted 45½ years, until September 14, 1978. Pres.Proc. 2039 (1933); P.L. 95-223 (1978). The Decree on Land authored by V.I. Lenin was issued on October 26, 1917 O.S. and as of 2000 less than 10% of St. Petersburg had been re-privatized. https://www.lincolninst.edu/publications/articles/land-reform-property-markets-russia
[12]. Whether it be their exclusive remedy or not, the Governor’s suggestion that Gregory and thousands of other landlords will be entitled to seek compensation through inverse condemnation actions raises an interesting question. Has the Governor even estimated the burden his largesse must therefore impose upon the public fisc?
[13]. There is no rational relationship between the effect of the Orders and any public health objective. If combatting the pandemic required that inhabitants of the state maintain their places of residence for the duration the Governor, under his interpretation of A.R.S. § 26-303(E)(1), could easily so decree. The Orders affect only an arbitrary scattershot of housing units, revealing that their real purpose is not the protection of public health but pursuit of an economic program.
That it is a very poor economic program, confronting an ever-increasing number of tenants with an ever-mounting “cliff” of debt if ever the Governor dares to let his eviction ban lapse while saddling the state government with a compensation burden of unknown proportions (see p. 26, n. 12), only underscores the wisdom of the constitutional plan relegating such invocations of the police power to the deliberations of the Legislature.
[14]. Cf. Tucson Airport Authority v. Freilich, 136 Ariz. 280, 282, 665 P.2d 1002, 1004 (1983) (“Just compensation in eminent domain cases consists of the full equivalent of the value of [the property] … paid contemporaneously with the taking.”) (quotation signals omitted).
