Legal Aid of North Carolina is suing state and county court officials to stop the issuance of eviction orders that violate both the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention and Governor Cooper’s executive order affirming the CDC moratorium.
The suit was filed on November 9 in Wake County Superior Court. It can be viewed at legalaidnc.org/sites/default/files/2020-11/aoc-complaint-file-stamped.pdf.
Legal Aid is asking the court to stop Archie Smith, clerk of superior court for Durham County, from ordering county sheriffs to evict tenants who are protected by the CDC moratorium and the Governor’s executive order. It is also asking the court to order McKinley Wooten, director of the North Carolina Administrative Office of the Courts (AOC), and Nicole Brinkley, assistant counsel for the AOC, to direct all clerks of county courts to stop issuing writs of possession in such cases until a judge orders that a writ be issued.
The CDC moratorium temporarily prohibits the eviction of tenants who cannot pay their rent. To qualify for the moratorium’s protection, a tenant must submit to their landlord a declaration in which the tenant swears—under penalty of perjury—that they are protected by the moratorium. The agency issued the moratorium to keep people in their homes, thereby slowing the spread of COVID-19. The moratorium took effect September 4 and remains in effect through December 31.
Amidst widespread confusion about and noncompliance with the CDC moratorium, Governor Cooper issued Executive Order 171 on October 28. The executive order affirms that the moratorium applies to all residential tenants in the state and mandates that a landlord cannot request a writ of possession to evict a tenant who has submitted a declaration.
Nevertheless, the Administrative Office of the Courts directed clerks of county courts to issue writs of possession when the tenant has submitted a declaration to their landlord. This directive is contrary to both the CDC moratorium and the Governor’s executive order. Many clerks have followed the AOC’s directive, including Archie Smith in Durham, and have caused low-income residents who should be safe from eviction to become homeless.
Legal Aid filed the lawsuit on behalf of Durham residents facing eviction and a nonprofit advocacy group, Action NC. If the Durham residents are evicted, the tenants—a mother, her 3-year-old child and the child’s father—will become homeless, which will put them at increased risk of contracting and spreading COVID-19, all through no fault of their own. The mother and father lost their jobs during the pandemic.