Locked out: Review of procedures prevents Big Island deputies from performing evictions

KAILUA-KONA — An internal review of the eviction process within the Hawaii Section of the state Sheriff Division has led to benching Big Island deputies from assisting in evictions.

“We are currently reviewing the eviction process and the way evictions are executed on the Big Island,” stated Toni Schwartz, spokeswoman for the Department of Public Safety.

Process servers and attorneys say it’s been about two years since a Hawaii Island deputy has assisted in executing an eviction.

In the meantime, Maui deputies have been made available to those seeking additional assistance in evicting a tenant. Maui deputies have been covering the Big Island’s needs since mid-2016, costing clients such as landlords, attorneys or Realtors thousands of dollars to obtain their services.

The process of an eviction is started when an independent process server issues a writ, or court-written order, to the tenant summoning them to court on the matter. However, they don’t have the authority to remove a tenant from the property.

That duty to remove a difficult tenant would fall on deputies, but the internal review is preventing Big Island deputies from providing that service.

Some say the lack of reliable local law enforcement assistance has been a problem. Attorneys have to tell their landlord clients there is no expeditious way to evict a problematic tenant, said Kailua-Kona lawyer Robert Triantos.

“What the landlord community needs is a professional group of people experienced and trained to remove people,” Triantos said. “The sheriffs perform that duty. They are the trained professionals.”

Others say the Maui deputies are doing the job when needed. Process server Kelly Tmakiung said it doesn’t matter if she’s working with deputies from Maui or the Big Island.

“It hasn’t been a real big deal because it’s not coming out of my pocket,” she said. “The Maui deputies are just as nice as the Big Island deputies.”

Property owners who want law enforcement presence during an eviction have to fly Maui deputies to Hawaii Island, which is more costly than paying local deputies for the same service as travel costs are included in the sum.

Tmakiung wonders what is holding up Big Island deputies from performing evictions, when needed, on their home island.

“I’ve been surprised that the Department of Public Safety has allowed Lt. (Patrick) Kawai not to assist for this long,” she said of the Sheriff Division’s Hawaii Island section.

Since the internal review began more than a year ago, no employees on the Big Island have left their posts or been reassigned since it started. Schwartz added there is no set timeline for when the review process will be completed.

Schwartz would not comment further as to the nature of the internal review process.

Some deputies say they weren’t aware of the review, only that they were told they couldn’t serve evictions.

“We are exploring options to incorporate Hawaii Island deputy sheriffs back into the evictions process,” Schwartz said.

Reaction to loss of local deputies

There were varying opinions as to what the most serious problem was since Hawaii Island deputies stopped assisting in evictions when requested.

Triantos said there is a huge problem in Ocean View where there are a lot of squatters. Unfortunately, they can’t get the deputies to help and police don’t assist because it’s considered a civil matter.

“The problem is you’re setting this up for potential violence because you’re sending in a civil person who has no authority,” Triantos said of process servers.

Some evictions Triantos worked on were parents evicting children.

“It’s a recipe for possible heightened violence,” he said. “You need someone who can calm that down and remove them efficiently.”

Process server Ira Hookano said he’s able to execute his evictions without law enforcement assistance. He thinks the root of the problem doesn’t lie with the internal review into the sheriff section’s eviction process, but the squatting or criminal element.

“It’s a real problem and people want to take their neighborhoods back,” Hookano said. “Criminals are so brazen.”

Hookano works on every island, but he said the Big Island is unique in that it’s large and there are a lot of wide-open spaces with houses tucked away down long driveways.

Process server Gregg Sakahara said the lack of local services has impacted a client’s decision to get law enforcement involved because of the cost to bring over a Maui deputy. In turn, that has affected proper procedure.

The last time Sakahara worked with a deputy from Maui was in June.

He said his services are now only available to attorneys he’s worked with in the past, who know and respect his established procedures.

“Other private landlords, Realtors and new attorneys have balked at the estimated cost of bringing in Maui deputies to effect the forcible eviction and have implemented improper proceedings on their own, which put me in jeopardy, making me return the writs and quit the association,” Sakahara said.

Sakahara added that it has become more difficult to remove stubborn tenants because “the majority of tenants that ‘refuse to leave’ are habitual problem tenants and have learned how to ‘milk the system.’”

They will wait until the last minute and not leave until the deputies actually arrive.

For security reasons, Sakahara said, the tenants are not told when the deputies will arrive, although they are told the consequences of being subjected to a forcible eviction are they can be arrested for trespass, their household goods will be packed and stored by a moving company and they might be held liable for the moving company fees before their properties are released to them and that the cost of the law enforcement team could be charged to them as well.

“They are also told that because these are law enforcement personnel, they will also be subjected to additional charges, criminal or otherwise, should any contraband or evidence be discovered,” Sakahara said.

Tmakiung’s experience has been different.

She has only executed writs on bank-owned properties.

Tmakiung has worked with Maui deputies two or three times since the beginning of the year. Between flight expenses, off-duty pay or other expenses relative to evictions, such as movers and locksmiths, she said, the cost for their service runs up to $10,000 to $12,000.

“It’s a costly service, even using the Big Island deputies,” she said.

The eviction policy

Since the eviction policy is under review, West Hawaii Today questioned what that policy was. Schwartz said the department has a directive, specific to the execution of writs of possession and other civil process that is not considered a public document.

“It would be a frustration of a legitimate government function to disclose how we perform law enforcement operations,” Schwartz said.

Serving an eviction on the Big Island is considered a special duty executed during off-duty hours. On neighbor islands, Schwartz said, if an eviction is involved after proper service, special duty services might be requested.

“Deputies are paid by the individuals who secure their services,” Schwartz said.

Attorneys, banks or landlords could hire a deputy to execute an eviction if the tenant doesn’t leave after a process server has executed a writ of possession.

While the policy is being reviewed within the department, legislation was passed during the past legislative session that addresses the department’s development of policies and procedures in regards to special duty.

As a favor to the Department of Public Safety, Maui Rep. Joseph Souki said he presented House Bill 1129, which requires the department to develop policies and procedures to govern the processing of requests for special duty and to establish a compensation schedule for law enforcement services provided by deputy sheriffs performing special duty. It also requires a report to the Legislature.

Schwartz said the internal review process was a factor in the department proposing this legislation.

Cost of service is written into state law. According to the statute, the fee can be an hourly rate of no less than $50 per hour agreed upon in advance between the party requesting the service and the sheriff, deputy sheriff, police officer or independent civil process server performing the service.

The eviction process

Once a tenant is delinquent in paying rent, the landlord issues a five-business-day notice or notice specific to the terms of the lease to either pay rent or vacate.

If the rent is not paid, lawyer Dennis Krueger said, the landlord files a complaint in District Court for summary possession. A process server serves the complaint and summons to the tenant where he/or she must answer to the charges of the complaint on a specified date in District Court.

Usually the delinquent tenant is ordered to appear in court about two weeks after they’ve been served with the complaint and summons.

During that first court appearance, Krueger said the tenant can either admit or deny the allegation.

If the tenant admits to the allegation, there is discussion on when they can leave the premises. Once that amount of time is determined by the judge, Krueger said, a writ of possession and judgment for possession is issued.

A process server does return on the day the tenant is set to be out with a writ of possession.

If the tenant denies the allegation, a trial or pretrial conference is scheduled in about 30 days.

West Hawaii Today reporter Nancy Cook Lauer contributed to this story.

Email Tiffany DeMasters at tdemasters@westhawaiitoday.com.