A Maui County attorney acknowledged to the state Supreme Court that the county lacks procedures to store items seized in homeless sweeps to allow property owners the opportunity to retrieve their belongings.
Deputy Corporation Counsel Bradley Sova acknowledged shortcomings in how Maui County conducts its sweeps — and said that he could not “in good conscience” defend the lack of procedures similar to ones in place on Oahu following legal challenges to how Honolulu conducted its homeless sweeps.
“The proper process to protect the property at issue is the process that’s been acknowledged in multiple cases, most notably De-Occupy Honolulu where there was inventorying, storage and the ability to reclaim property,” Sova said. “That did not happen. I’m conceding that there may be a due-process violation based upon the failure to provide those specific procedures.
“I’m not saying the county did everything right,” Sova said. “I don’t think in good conscience I can stand here and say that.”
But Sova repeatedly insisted that a so-called contested case hearing that was denied to homeless plaintiffs on Maui was not the proper avenue for them after their property was immediately destroyed following a sweep in September 2021 in homeless encampments around the Kanaha Pond Wildlife Sanctuary and Wailuku-Kahului Wastewater Treatment Plant in Kanaha.
Sova said Maui County still has no procedures in place like on Oahu, prompting Supreme Court Associate Justice Todd Eddins to reply that repeated immediate destruction of homeless property storage and opportunities to reclaim it “would still be a violation” of due process.
Maui County has not conducted a similar large-scale sweep since September 2021, Sova replied, “and I think our policymakers are much more aware of the requirements that are necessary in order to conduct an action of this kind. … So, yes, prospectively, I don’t believe a thing of this kind would occur again without those procedures being in place.”
Asked repeatedly by Supreme Court Chief Justice Mark Recktenwald and associate justices what would have been the proper option for the homeless plaintiffs, Sova at one point said they could have filed for a temporary injunction before the sweep.
The justices appeared highly critical of how the county informed homeless people of the sweep of an area that at one point was occupied by 40 to 80 people.
The notice of the impending sweep offered no information that their property would be immediately destroyed and no instruction on how they could challenge the destruction.
When some of the homeless people sought a contested case hearing after the sweep, the county provided no response, including alternative options to challenge the immediate destruction of their property.
As Eddins put it, their request for a contested case hearing “fell on deaf ears.”
In October 2021 the American Civil Liberties Union of Hawaii appealed to the 2nd Circuit Court on behalf of two of the homeless people who lost property, alleging the county’s procedures and actions violated their state and federal constitutional rights of due process.
The court ruled that the plaintiffs were entitled to a contested case hearing before their property was destroyed.
The county then appealed, and the Supreme Court heard arguments Thursday.
In a statement before Thursday’s oral arguments, the ACLU said, “While the Second Circuit Court concluded that a contested case hearing was constitutionally required before the sweep, the county continues to assert that unhoused people’s property is not protected by due process.”
In response to questions about how the Supreme Court should rule, Wookie Kim, legal director of the ACLU of Hawaii, said that the court should make it clear that municipalities may not seize and destroy homeless property on public lands “without a pre-deprivation hearing.”
Such an opinion, Kim said, would still leave Hawaii counties “a lot of room” when it comes to enforcement of homeless encampments.
While Honolulu’s approach to clearing homeless encampments and dealing with seized homeless property was repeatedly cited Thursday by Sova, Kim and Supreme Court justices, the ACLU — and the civil rights law firm of Goldstein, Borgen, Dardarian &Ho — in July filed a lawsuit alleging that Honolulu’s homeless sweeps and other “anti-houseless” laws should be ruled illegal and unconstitutional because they violate Hawaii’s state constitutional prohibitions against cruel and unusual punishment.
Among a host of city laws, the ACLU particularly wants Honolulu’s sit-lie ban, park closure rules, camping prohibition in city parks and the 11-year-old sidewalk nuisance and stored property ordinances ruled illegal and unconstitutional in Circuit Court.
In 2014 the ACLU failed in U.S. District Court to overturn the city’s homeless sweeps.