Davis v. Bissen, JR.

• Court: Hawaii Supreme Court
• Decided: March 5, 2024
• Docket: SCAP-22-0000368
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 05-MAR-2024 07:49 AM Dkt. 35 OP

SCAP-XX-XXXXXXX

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________

SONIA DAVIS, JESSICA LAU, LAURALEE B. RIEDELL, and ADAM M. WALTON, Plaintiffs-Appellees,

vs.

RICHARD T. BISSEN, JR., County of Maui Office of the Mayor, SCOTT TERUYA, County of Maui Department of Finance, and COUNTY OF MAUI, Defendants-Appellants. ________________________________________________________________

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CAAP-XX-XXXXXXX; 2CCV-XX-XXXXXXX)

MARCH 5, 2024

RECKTENWALD, C.J., McKENNA AND EDDINS, JJ., CIRCUIT JUDGE PARK AND CIRCUIT JUDGE KAWASHIMA, ASSIGNED BY REASON OF VACANCIES

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

This appeal concerns a sweep of a large encampment of

houseless individuals that occurred in Maui County in September

2021. Before the sweep, Sonia Davis, Jessica Lau, Lauralee

Riedell, and Adam Walton (“plaintiffs”) made written requests *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

for a contested case hearing, but those requests went ignored.

The sweep occurred as planned, and Davis and Lau’s personal

property was seized.

The plaintiffs filed a Hawaiʻi Revised Statutes (“HRS”) §

91-14 agency appeal with the Circuit Court of the Second Circuit

(“circuit court”).1 They asserted they were denied procedural due

process under the state and federal constitutions when the

county seized their personal property without proper notice or

an opportunity to be heard. The County of Maui, Mayor Michael

Victorino,2 and Director of Finance Scott Teruya (collectively,

“the County”) filed a motion to dismiss, arguing the circuit

court lacked jurisdiction over the appeal because the plaintiffs

did not have a protected property interest in continuing to

store their belongings on County land. The circuit court

granted the motion as to Riedell and Walton, who had not lost

property during the sweep, but denied the motion as to Davis and

Lau, who had. The circuit court then granted the County leave

to file an interlocutory appeal.

1 The Honorable Kirstin M. Hamman presided.

2 Pursuant to Hawaiʻi Rules of Appellate Procedure (“HRAP”) Rule 43(c) (2010), Mayor Richard Bissen was substituted as a party in place of Mayor Michael Victorino upon the latter’s election to the office of Maui County Mayor. See HRAP Rule 43(c) (“When a public officer is a party to an appeal . . . in his . . . official capacity and during its pendency . . . ceases to hold office, the action does not abate and his . . . successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party. . . .”).

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This court accepted transfer of this case from the

Intermediate Court of Appeals (“ICA”). The County raises the

following points of error:

1) Was it proper for the Court to make findings on the issues of finality, the following of applicable agency rules and standing when those issues were not raised by any party in either briefing or hearings on the County’s Motion to Dismiss? . . . . 2) Did the Court err in making substantive findings on the merits of Plaintiffs’ allegations and issuing Findings of Fact in its Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss Notice of Appeal? . . . . 3) Did the Court err in determining that Constitutional Due Process required a contested case hearing before Defendants could remove houseless plaintiffs and their belongings from County property? . . . . 4) Did the Court err in Denying the County’s Motion to Dismiss as to the claims of Plaintiffs SONIA DAVIS and JESSICA LAU?

We affirm the circuit court and hold as follows. First,

the circuit court properly ruled on all of the factors pertinent

to its jurisdiction over the plaintiffs’ agency appeal. Second,

plaintiffs undeniably possessed a property interest in their

chattels (personal property) protected by Article I, Section 5

of the Constitution of the State of Hawaiʻi. Thus, the due

process clause of the Hawaiʻi Constitution required a hearing

before the County could seize the plaintiffs’ chattels. The

circuit court properly granted the County’s motion to dismiss

Riedell and Walton’s claims because they did not lose property

during the sweep and properly denied the County’s motion to

dismiss as to Davis and Lau, who did.

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II. Background

A. The County’s Kanahā Sweep

On September 1, 2021, the County issued a press release

announcing its plans to clear out a large encampment of

houseless individuals on County property on Amala Place near

Kanahā Pond and the Wailuku-Kahului Wastewater Treatment Plant.

The County had been working with the houseless individuals to

relocate them. Mayor Victorino was concerned about the upcoming

rainy season and believed it was not compassionate to allow

people to continue living among mounds of rubbish, human waste,

and used syringes. He stated, “Once the unsheltered residents

have settled into new accommodations, we will start the clean-

up. . . .” Scott Fretz, the Maui Branch Manager for the

Department of Land and Natural Resources’ (“DLNR”) Division of

Forestry and Wildlife stated that Kanahā Pond was an important

breeding site for numerous species of endangered waterbirds.

The fence around the pond had been vandalized, syringes and

other hazardous waste littered the area, and his staff had been

harassed and threatened. Eric Nakagawa, the director of the

County of Maui Department of Environmental Management, stated

that his staff had reported individuals blocking the roadway

entrance to the Kahului wastewater treatment plant on Amala

Place, starting verbal arguments, and jumping on a truck during

an incident in which police were called.

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On September 14, 2021, the County distributed notices to

houseless persons on Amala Place and posted notices to vacate

county property by September 20, 2021. The notice to vacate

stated, “Habitation in vehicles, camping and/or the storage of

personal property on County of Maui properties located in the

vicinity of: Amala Place and Keoneone Street, along with the

portion known as the Kahului Wastewater Treatment Plant, is

prohibited.” The notice announced that the “premises will be

cleared of personal property and vehicular access will be

restricted between: Monday, September 20, 2021 at 6:00 am -

Wednesday[,] September 22, 2021 at 4:30 pm.” It further advised

that “[a]ll campsites, personal property, and vehicles must be

removed from these Premises by or before” those dates and times,

or else “[a]ny person who remains on the ‘Premises’ during this

time may be cited for Trespassing under Hawaii Revised Statutes

section 708-815.”

The notice to vacate contained no information on who to

contact to challenge the sweep. It also contained no

information as to what would happen to the personal property

cleared from the premises. The notice, however, did contain

contact information and a list of services offered to houseless

individuals by Mental Health Kokua, Ka Hale I Ke Ola, Family

Life Center, and the Salvation Army.

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On September 17, 2021, the County issued another press

release, indicating the cleanup would begin on September 19,

2021 and end on September 24, 2021. The press release noted

that many of the houseless individuals had received or were in

the process of receiving shelter, but it also acknowledged 14

individuals remained on site. Later press releases also

mentioned that eight to ten individuals still remained on the

site in the days preceding the planned sweep.

The sweep took place on September 20-24, 2021. There were

no notices issued to houseless individuals as to where their

personal property was taken, if it was stored, how to reclaim

the property, or if the property was going to be destroyed. The

County, however, did follow certain statutory procedures with

respect to vehicles removed from the site. The County posted

notices stating that abandoned vehicles towed from the Kanahā

area would be stored for 30 days then disposed of and that

derelict vehicles towed from the Kanahā area may be disposed of

before 30 days. The County provided a phone number to call for

individuals to claim their vehicles or remove belongings from

those vehicles.

B. Circuit court proceedings

On October 20, 2021, plaintiffs Davis, Lau, Riedell, and

Walton filed a notice of appeal to the circuit court from the

September 20-22, 2021 “final decision” of the County “to execute

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the forced eviction and vacatur of people and their belongings

from putative County of Maui property.” They declared each had

sent the County written requests for contested case hearings

before the sweep, but the County did not act upon the requests.

The plaintiffs alleged the County violated their state and

federal constitutional procedural due process rights by seizing

their property without proper notice or an opportunity to be

heard. They sought “a declaratory judgment that County

Appellees violated Houseless Appellants’ constitutional rights,

an order remanding the matter for a contested case . . . , and

an order requiring County Appellees . . . to comply with the

Hawaiʻi and U.S. constitutions in conducting any future evictions

or vacaturs of Houseless Appellants and other houseless people

from County of Maui property (including by providing a pre-

deprivation contested case hearing).”

In her declaration appended to the notice of appeal, Davis

averred she had been living in the Kanahā area before and during

the Kanahā sweep. She had been incarcerated for three weeks in

fall 2021 for missing a phone call from her probation officer.

When she was released in mid-September, she learned of the

impending sweep from others living in the area. A police

officer had also handed Davis a notice of the sweep. Davis had

just a few days to move her items before the sweep began. Davis

had filed a contested case request with the county on September

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20, 2021. Before the sweep began, she met with Mayor Victorino

in person. He told her he could not change the date of the

sweep but he would help get people into shelters before the

sweep. On the day of the sweep, Davis vacated the Kanahā area.

She was unable to move all of her property, so she lost pots and

pans, tents, a canopy, folding tables, diapers, a stroller, a

playpen, a baby’s car seat, her sister’s two vehicles, and her

niece’s two vehicles.

Plaintiff Lau declared she had been living in the Kanahā

area before and during the Kanahā sweep. Lau had filed a

contested case request with the county on September 6, 2021.

Lau met with Mayor Victorino in person before the sweep. He

told her the sweep would not be postponed but if houseless

residents used duct tape or caution tape to mark their

belongings, the County would not touch that property. He also

told her nothing would happen until all residents were settled

into new accommodations. On the day of the sweep, Lau was still

unsheltered and she observed the sweep as it happened. She was

able to move most of her belongings before the sweep, but she

did lose a portable water tank, fishing poles, and her Bluetooth

speakers to the sweep.

Plaintiffs Riedell and Walton, a couple living together in

the Kanahā area before and during the sweep, alleged they did

not receive notice of the sweep because both were working when

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the notices were distributed by the police. Each had filed a

contested case request with the county on September 16, 2023.

Neither Riedell nor Walton were able to meet in person with

Mayor Victorino because both were working. On the day of the

sweep, Riedell and Walton were still living at the Kanahā site

and told police they were going to stay and contest the sweep.

Neither Riedell nor Walton lost any property during the sweep.

None of the plaintiffs received contested case hearings or

responses to their contested case hearing requests. None of the

plaintiffs were given pre-deprivation or post-deprivation

hearings.

On November 9, 2021, the County filed a motion to dismiss

the appeal for lack of jurisdiction under Hawaiʻi Rules of Civil

Procedure (“HRCP”) Rule 12(b)(1) (2000). The County argued it

did not need to conduct a contested case hearing because such a

hearing was not required by administrative rule, by statute, or

by constitutional due process. With respect to constitutional

due process, the County argued, “While [the plaintiffs] may have

a property interest in their chattels, those rights do not exist

in a vacuum,” because they have no legitimate entitlement to

“illegally occupy public lands and store their property thereon.

. . .” Therefore, the county argued, no contested case was

required, and no circuit court appeal from a contested case

would lie.

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In their memorandum in opposition to the County’s motion to

dismiss, the plaintiffs pointed out there were four requirements

for the circuit court to have jurisdiction over their case under

HRS § 91-14: “(1) a contested case hearing that was ‘required

by law’; (2) finality; (3) the following of applicable agency

rules; and (4) standing,” citing Public Access Shoreline Hawaiʻi

v. Hawaiʻi County Planning Comm’n, 79 Hawaiʻi 425, 431, 903 P.2d

1246, 1252 (1995) (“PASH”). The plaintiffs noted the County

“d[id] not contest the latter three elements[, n]or could they,”

because the elements were plainly met. As to “finality,” the

plaintiffs argued the final decision was the County’s decision

to conduct the sweep. As to “the following of applicable agency

rules,” the plaintiffs argued they submitted contested case

requests. As to “standing,” the plaintiffs argued they were

injured by the agency action when their chattels were

unconstitutionally seized.

As to the County’s argument that the circuit court did not

have jurisdiction over the case because there was no contested

case hearing held, the plaintiffs counter-argued that a court

has jurisdiction to review the denial of a contested case

hearing prior to an agency action, citing Kaleikini v. Thielen,

124 Hawaiʻi 1, 26, 237 P.3d 1067, 1092 (2010). The plaintiffs

argued the County effectively denied the requests by ignoring

them, citing Kilakila ʻO Haleakala v. Bd. of Land and Nat. Res.,

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131 Hawaiʻi 193, 203, 317 P.3d 27, 37 (2013). As to the County’s

argument that contested case hearings were not required by

statute, administrative rule, or by constitutional due process,

the plaintiffs asserted contested case hearings were required by

constitutional due process because their property interest in

chattels was at stake.

The County replied that the plaintiffs had no right to

continue storing their property on County grounds after actually

receiving the notice to vacate, and they had ample time to

remove themselves and their belongings. Further, even if there

were a protected property interest at stake, the County argued a

contested case hearing was not necessarily required when

alternative processes were available, for example, a petition

for writ of mandamus or a request for an injunction.

The circuit court held a hearing on the County’s motion to

dismiss on December 7, 2021. The circuit court requested

supplemental briefing from the parties as to whether a contested

case hearing was required by constitutional due process. The

court asked the parties to brief the three Flores factors: (1)

the private interest that will be affected; (2) the risk of an

erroneous deprivation of such interest through the procedures

actually used, and the probable value, if any, of additional or

alternative procedural safeguards; and (3) the governmental

interest, including the burden that additional safeguards would

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entail, referring to Flores v. Bd. of Land and Nat. Res., 143

Hawaiʻi 114, 424 P.3d 469 (2018).

The parties submitted their supplemental briefs. As to the

first Flores factor (the private interest affected), the

plaintiffs maintained there can be no dispute they had a

protected property interest in their chattels, which were vital

to their survival. The County stated that it had addressed the

chattels argument in its prior briefing.

As to the second Flores factor (the risk of erroneous

deprivation through the procedures actually used and the

probable value of additional or alternative procedural

safeguards), the plaintiffs argued their chattels were likely

destroyed, which is a decision the County cannot reverse. They

argued additional safeguards could have been provided, such as

more time, notice that included procedures available for

challenging the sweep, and a hearing. The County counter-argued

it engaged in outreach efforts for months prior to the sweep.

Further, it asserted the plaintiffs received actual notice, as

each knew to request a contested case hearing, and two of them

(Davis and Lau) were able to meet in person with Mayor

Victorino. The County’s position was that the plaintiffs had

more than enough time, once they had received notice, to vacate

the Kanahā area. Further, the County noted that Riedell and

Walton admitted neither had lost any property to the sweep.

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As to the third Flores factor (the governmental interests

and the burdens that additional safeguards would create), the

plaintiffs argued the County overstated its governmental

interests in public health and safety, and that the plaintiffs’

survival interest outweighed those interests. Further, the

plaintiffs argued the burden on the County to provide sufficient

notice and a hearing was not great. For example, a consolidated

hearing could have sufficed to address all of their concerns.

The County counter-argued it had a substantial and compelling

interest in keeping the Kanahā property clean and safe to avoid

liability for failure to police its property. It also asserted

its interests in accessing the wastewater treatment facility and

bird sanctuary on the property. The County claimed holding

contested case hearings for the plaintiffs would have been too

administratively burdensome on it, citing statutory notice,

service, and trial-type hearing requirements in HRS chapter 91.

After a further hearing, the circuit court granted in part,

and denied in part, the County’s motion to dismiss (“circuit

court’s order”). The motion was granted as to plaintiffs

Riedell and Walton, who had not lost any property during the

sweep. The motion was denied as to plaintiffs Davis and Lau,

who had lost property. In its findings of fact, the circuit

court noted, “The record does not show that Defendants had any

procedures in place to hold, store, or return personal property

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(other than vehicles) seized by Defendants during the Kanahā

Sweep.” The circuit court also noted, “The record does not show

that Defendants held, stored, or returned personal property

Sweep.” Instead, the circuit court found, “the record suggests

that . . . Defendants proceeded to destroy the personal property

[(other than vehicles)] left behind in the Kanahā Area, and that

Defendants had seized, during the Kanahā Sweep.” No party

challenges these (or any) findings of fact; therefore, we accept

them as true. Okada Trucking Co. v. Bd. of Water Supply, 97

Hawaiʻi 450, 458, 40 P.3d 73, 81 (2002) (“Findings of fact . . .

that are not challenged on appeal are binding on the appellate

court.”).

The circuit court made the following conclusions of law

relevant to this appeal:

13. The court applies a two-step analysis in deciding whether a constitutional due process right to a hearing exists: (1) whether “the particular interest which claimant seeks to protect by a hearing [is] ‘property’ within the meaning of the due process clauses of the federal and state constitutions,” and (2) if, so, “what specific procedures are required to protect it,” Flores, 143 Hawaiʻi at 125, 424 P.3d at 480 (quoting Sandy Beach Def. Fund v. City Council of City & Cty. of Honolulu, 70 Haw. 361, 377, 773 P.2d 250, 260 (1989)).

14. The Court finds that Plaintiffs’ personal property and vehicles are property within the meaning of the due process clauses of the U.S. and Hawaiʻi constitutions. See Brown v. Thompson, 91 Hawaiʻi 1, 9, 979 P.2d 586, 594 (1999), as amended (July 13, 1999) (holding that a derelict boat was “unquestionably” property protected by due process under the Fifth Amendment to the U.S. Constitution and article I, section 5 of the Hawaiʻi Constitution); In re Application of Maui Elec. Co., Ltd., 141 Hawaiʻi 249, 260, 408 P.3d 1, 12

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(2017) (confirming that procedural due process protects “chattels”); Lavan v. City of Los Angeles, 693 F.3d 1022, 1031 (9th Cir. 2012) (describing houseless individuals’ “interest in the continued ownership of their personal possessions” as “the most basic of property interests encompassed by the due process clause”).

15. The Court does not agree with Defendants’ contrary argument that Plaintiffs’ personal property loses protections under constitutional due process by virtue of being maintained on public property allegedly “in violation of criminal statutes.”

16. Due process also protected the vehicles that were in Plaintiffs’ possession, regardless of who were the registered owners, since Plaintiffs were in possession of those vehicles and were using those vehicles both to store other personal property and for shelter.

. . . .

19. The Court concludes that constitutional due process required a contested case hearing before Defendants deprived Plaintiffs SONIA DAVIS and JESSICA LAU of their constitutionally protected interests in their personal property.

With respect to the three Flores considerations, the court made

the following conclusions of law:

22. The Court finds that the private interests at stake here are significant. The private interests are chattels, which are core property interests under the Hawaiʻi and U.S. constitutions. And they are not just any chattels, but chattels used as shelter and life-sustenance for Plaintiffs SONIA DAVIS and JESSICA LAU. See De-Occupy Honolulu v. City & Cty. of Honolulu, No. CIV 12-00668 JMS, 2013 WL 2285100, at *6 (D. Haw. May 21, 2013) (recognizing that “a strong private interest exists in Plaintiffs’ continued ownership of their possessions, especially given that the possessions . . . may be everything that a homeless individual owns”); Mitchell v. City of Los Angeles, No. CV1601750SJOGJSX, 2016 WL 11519288, at *5 (C.D. Cal. Apr. 13, 2016) (finding that the private interest was “significant” because it “touches on the basic survival of homeless individuals”).

23. The Court finds that there was a high risk of erroneous deprivation of Plaintiffs SONIA DAVIS and JESSICA LAU’s property interest through the procedures used by Defendants. The method for providing notice and procedures Defendants used did not afford Plaintiffs with the ability to meaningfully challenge the Kanahā Sweep and the taking and destruction of their property. Among other things, the Notice to Vacate did not provide for procedures available

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to challenge the agency action, nor did it provide information on how to retrieve items post-seizure. See Brown v. Thompson, 91 Hawaiʻi at 10, 979 P.2d at 595. Further, as noted, the record does not show that Defendants had any process in place to store Plaintiffs’ personal property. Instead, it appears that Defendants seized and destroyed personal property taken during the Kanahā Sweep. The absence of such procedures significantly increased the risk of erroneous deprivation. See Mauna Kea Anaina Hou, 136 Hawaiʻi at 412, 363 P.3d at 260 (stating that “the fact that the Board’s administrative rules do not appear to provide a procedural vehicle for the Board to reverse its grant of a permit, if it were later found that the permit was improperly granted, elevated the risk of erroneous deprivation”).

24. The Court also finds that the procedures actually used by Defendants were materially different from those used by the municipalities in the decisions cited by Defendants in their briefing. See Dkt. 97 at 8-9 (citing cases in which municipalities had a “policy of storing personal property that is taken after an encampment is removed” and “items were stored and inventoried, and the City had procedures for people to retrieve their property”). For example, in De-Occupy Honolulu v. City & Cty. of Honolulu, the City and County of Honolulu was required to announce its intentions at every step, pre-seizure, post-seizure, and pre- destruction. No. CIV. 12-00668 JMS, 2013 WL 2285100, at *6 (D. Haw. May 21, 2013). Here, by contrast, Defendants did not announce their intentions at every step, and there were no alternative procedures in place, thus increasing the risk of erroneous deprivation of Plaintiffs’ property.

25. Under these circumstances, more or alternative procedural safeguards — including the holding of a contested case hearing – would have reduced the risk of erroneous deprivation.

26. The Court acknowledges that Defendants may have important interests in public health, safety, and the maintenance of its public spaces, but on balance they do not outweigh the significant private interests at stake, especially in light of the high risk of erroneous deprivation created by the procedures Defendants actually used. See Mitchell, 2016 WL 11519288, at *6 (acknowledging “significant” governmental interest and “heavy costs,” but stating that “these costs do not justify infringing the basic constitutional rights of homeless individuals” and that, “[g]iven the scope of the property interest at stake,” the city’s interest did not “outweigh[] the individual interests of homeless people”).

The County moved for leave to take an interlocutory appeal

of the circuit court’s order, which the circuit court granted.

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The County timely filed its notice of appeal, and this court

accepted transfer of the appeal.

III. Standards of Review

A. Motions to dismiss

A trial court’s grant or denial of a motion to dismiss for

“lack of subject matter jurisdiction is a question of law,

reviewable de novo.” Norris v. Hawaiian Airlines, Inc., 74 Haw.

235, 239, 842 P.2d 634, 637 (1992), aff’d, Hawaiian Airlines,

Inc. v. Norris, 512 U.S. 246, 114 S. Ct. 2239 (1994). In

Norris, the Hawaiʻi Supreme Court adopted the view of the Ninth

Circuit Court of Appeals in Love v. United States, 871 F.2d

1488, 1491 (9th Cir. 1989), opinion amended on other grounds and

superseded by Love v. United States, 915 F.2d 1242 (9th Cir.

1989), that:

review of a motion to dismiss for lack of subject matter jurisdiction is based on the contents of the complaint, the allegations of which we accept as true and construe in the light most favorable to the plaintiff. Dismissal is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Norris, 74 Haw. at 240, 842 P.2d at 637 (cleaned up). “However,

when considering a motion to dismiss pursuant to HRCP Rule

12(b)(1) the trial court is not restricted to the face of the

pleadings, but may review any evidence, such as affidavits and

testimony, to resolve factual disputes concerning the existence

of jurisdiction.” Id. (cleaned up).

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B. Constitutional law

This court answers questions of constitutional law by

exercising its own independent judgment based on the facts of

the case. State v. Trainor, 83 Hawaiʻi 250, 255, 925 P.2d 818,

823 (1996). Questions of constitutional law are reviewed under

the right/wrong standard. State v. Toyomura, 80 Hawaiʻi 8, 15,

904 P.2d 893, 900 (1995).

C. Findings of fact and conclusions of law

This court reviews findings of fact for clear error.

Furukawa v. Honolulu Zoological Soc’y, 85 Hawaiʻi 7, 12, 936 P.2d

643, 648 (1997). A finding of fact is clearly erroneous when,

despite evidence to support the finding, the appellate court is

left with a definite and firm conviction that a mistake has been

made. State v. Kane, 87 Hawaiʻi 71, 74, 951 P.2d 934, 937

(1998). This court reviews a trial court’s conclusions of law

de novo under the right/wrong standard. State v. Medeiros, 89

Hawaiʻi 361, 364, 973 P.2d 736, 739 (1999). A conclusion of law

is not binding upon the appellate court and is freely reviewable

for its correctness. Id.

IV. The Parties’ Arguments on Appeal

A. The County’s arguments

On appeal, the County raises the following points of error:

(1) Was it proper for the Court to make findings on the issues of finality, the following of applicable agency rules and standing when those issues were not raised by any

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party in either briefing or hearings on the County’s Motion to Dismiss? . . . . (2) Did the Court err in making substantive findings on the merits of Plaintiffs’ allegations and issuing Findings of Fact in its Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss Notice of Appeal? . . . . (3) Did the Court err in determining that Constitutional Due Process required a contested case hearing before Defendants could remove houseless plaintiffs and their belongings from County property? . . . . (4) Did the Court err in Denying the County’s Motion to Dismiss as to the claims of Plaintiffs SONIA DAVIS and JESSICA LAU?

Stated differently, the County first argues that the circuit

court should not have made full findings as to whether it

possessed jurisdiction over the plaintiffs’ agency appeal. The

County next argues that the plaintiffs did not have a

constitutionally protected property interest in storing their

chattels on County property and, even if they did, the process

due would not be a contested case hearing. The County thus

argues that the circuit court should have granted its motion to

dismiss as to plaintiffs Davis and Lau.

At oral argument, the County chose not to focus on the

first point of error, and rightfully so. The circuit court did

not err in fully analyzing all of the factors necessary to its

jurisdiction over the plaintiffs’ agency appeal. The focus of

this appeal, then, is whether the plaintiffs had a

constitutionally protected property interest, and, if so,

whether a contested case hearing was the process due.

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At oral argument, the County ultimately conceded that the

plaintiffs possess a constitutionally protected interest in

their chattels. Nevertheless, the County maintains that a

contested case hearing was not necessary in order to protect

that property interest. The County argues courts must consider

“the specific procedures required to comply with constitutional

due process” by balancing the Flores factors:

(1) the private interest which will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures actually used, and the probable value, if any, of additional or alternative procedural safeguards; and (3) the governmental interest, including the burden that additional procedural safeguards would entail.

143 Hawaiʻi at 126-27, 424 P.3d 469 at 482.

With respect to the first factor (the private interest that

will be affected), the County argues the plaintiffs have no

right to indefinitely store personal items on public land after

receiving notice that the County intended to clear its property.

Further, the County argues none of the plaintiffs are registered

owners of any of the vehicles impounded and, to date, have not

indicated any property interest in any of the vehicles.

The second factor is “the risk of erroneous deprivation of

a property interest through the procedures actually used, and

the probable value, if any, of additional or alternative

procedural safeguards.” The County points out the following

procedures were actually used: outreach efforts, posted written

notice of the sweep, Davis and Lau’s in-person meeting with

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Mayor Victorino prior to the sweep, and notice mailed to

registered owners of impounded vehicles. The County argues

these procedures provided plaintiffs with enough time to remove

their belongings to avoid a deprivation of their property

interests. The County states plaintiffs Riedell and Walton did

remove their property and did not suffer any losses during the

sweep. The County maintains Davis had two weeks to remove her

property after receiving notice, and Lau had five days to remove

her property, in order to avoid a deprivation of their property

interests, but they chose not to act. The County states courts

have held there was sufficient notice in cases where houseless

individuals received 24-hours’ notice of a sweep, citing De-

Occupy Honolulu v. City & Cnty. of Honolulu, No. CIV. 12-00668

JMS, 2013 WL 2285100, at *6 (D. Haw. May 21, 2013), and 72-

hours’ notice of a sweep, citing Sullivan v. City of Berkeley,

No. C 17-06051 WHA, 2017 WL 4922614, at *6 (N.D. Cal. Oct. 31,

2017), and Hooper v. City of Seattle, No. C17-0077RSM, 2017 WL

591112, at *5 (W.D. Wash. Feb. 14, 2017). The County also

asserts the plaintiffs could have sought preliminary injunctive

relief from the courts but did not.

The County next asserts a contested case hearing was not

necessary because the plaintiffs would not have been able to

prove that they “owned the property, that the County had no

interest in protecting its property to assure public access,

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that the State Wildlife Sanctuary should be abandoned, or that

its Wailuku-Kahului Wastewater Treatment Plant should be shut

down.” Further, the County cites to De-Occupy Honolulu and

James for the proposition that a contested case hearing is not

required where the government has provided pre-seizure notice of

the government action, post-seizure notice of the property

seized, and information as to where the property seized would be

held. De-Occupy Honolulu, No. CIV. 12-00668 JMS, 2013 WL

2285100, at *5; James v. City & Cnty. of Honolulu, 125 F. Supp.

3d 1080, 1094 (D. Haw. 2015). The County also cited to Sullivan

and Hooper for the proposition that no pre-seizure hearing is

necessary where the government has provided notice of the seized

property’s location and the procedure for retrieving it.

Sullivan, No. C 17-06051 WHA, 2017 WL 4922614, at *6; Hooper,

No. C17-0077RSM, 2017 WL 591112, at *5. The County states,

“These ‘alternative procedures’ have been determined to decrease

the likelihood of erroneous deprivation of property interests

while being substantially less onerous than providing

individualized contested case hearings to any person who chooses

to store their personal belonging[s] on public land prior to

being able to undertake clean-up efforts”; therefore, a

contested case hearing prior to clean-up efforts was not

necessary.

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With respect to the third factor (the governmental

interest, including the burden that additional procedural

safeguards would entail), the County argues it had a substantial

and compelling interest in being able to keep its property clean

and safe without excessive and duplicative administrative

hurdles. The County points out that, had it not undertaken the

sweep, it could have exposed itself to potential liability for

failing to police the activity taking place on its property.

The County also argued it needed to clear out the encampment so

it could fix fencing around the Kanahā Pond Sanctuary in order

to protect rare native water birds from predators. The County

argued it should not have been required to hold about 40

contested case hearings for the approximately 40 houseless

individuals who were encamped on its property. Such a process,

the County argues, would have taken weeks or months to complete,

under the procedures set forth in HRS chapter 91 for contested

case hearings. The procedures include drafting a notice under

HRS § 91-9 (2012 & Supp. 2021); providing notice via registered

or certified mail or via publication under HRS § 91-9.5 (2012);

holding a trial-type hearing; and rendering findings of fact,

conclusions of law, and a decision and order, pursuant to HRS §

91-12 (2012). The County also points out that, if the contested

case hearing is presided over by a hearings officer, under HRS §

91-11 (2012), the parties would be afforded an additional

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opportunity to file exceptions and present arguments regarding

the hearings officer’s proposed decision.

The County therefore asks this court to reverse the circuit

court’s order.

B. Plaintiffs’ arguments

As to the County’s argument that a contested case hearing

was not necessary, the plaintiffs counter-argue that protection

of their chattels automatically required a contested case;

moreover, the plaintiffs had submitted written requests for

contested case hearings.

The plaintiffs also argue that, even assuming a contested

case hearing was not automatically required, the circumstances

of this case warranted holding one. They agree with the County

that the test for the “precise procedures” the government is

required to follow to comply with constitutional due process

involve the balancing of the following three Flores factors:

(1) the private interest that will be affected; (2) the risk of

an erroneous deprivation of such interest through the procedures

actually used, and the probable value, if any, of additional or

safeguards would entail.

The plaintiffs argue the private interest affected is

significant and weighty: the chattels they use for shelter and

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survival. They next argue the procedures the County used

presented a serious risk of erroneous deprivation. There was a

serious risk that their belongings would be erroneously seized

as abandoned property. They also assert their property was

destroyed so that the County could not feasibly reverse its

decision if it was found to be in error. The plaintiffs note

the cases the County relies on (Sullivan and De-Occupy Honolulu)

involved situations in which the government entities actually

stored belongings and provided notice of procedures to retrieve

belongings. No similar safeguards were in place for plaintiffs’

non-vehicle chattels.

The plaintiffs further argue additional safeguards could

have prevented an erroneous deprivation. They argue they should

have received written notice reasonably calculated to more

precisely apprise them of the pending sweep and that such notice

should have informed them of procedures available for

challenging the government’s planned action. The press release,

they argue, did not precisely describe the area subject to the

sweep and did not inform the houseless community of the manner

in which the sweep could be challenged. The “community

outreach” efforts, the plaintiffs argue, were oral and not

written; thus, they too failed to provide adequate notice. The

Notice to Vacate also failed to provide adequate notice, because

it was distributed by police officers on a single day to

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houseless individuals residing along Amala Place. The

plaintiffs point out that the sweep encompassed a broader area

than just one street. Moreover, the Notice to Vacate contained

no information as to how houseless individuals might challenge

the sweep.

The plaintiffs also argue they could have been given more

time. For example, there were only five days between the date

Davis received notice of the sweep and the commencement of the

sweep. The ultimate safeguard, plaintiffs argue, would have

been a hearing so that they could have explained their

individual circumstances, agreed to be relocated without the

threat of criminal prosecution, asked for more time or other

accommodations, challenged the legality of the sweep, requested

assistance from the County, or simply have had the opportunity

to be heard.

Lastly, the plaintiffs argue the County overstates the

strength of its governmental interest and the burdens that

additional safeguards would create. They argue the County’s

health and safety interests should be placed in proper

perspective and balanced against their need for survival. They

also point out the County’s interests are only vaguely asserted

and appear to scapegoat the houseless community for damaging

County infrastructure, interrupting wastewater operations,

degrading the environment, vandalizing County fencing, and

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jeopardizing endangered water bird habitat. A contested case

hearing, plaintiffs argue, would have afforded both sides a

chance to examine and probe each other’s interests. The

plaintiffs lastly point out the burden on the County would have

been slight to (1) add a line on the Notice to Vacate informing

them who to contact to challenge the sweep or request an

accommodation; and (2) hold a contested case hearing, which is

“not identical to a full-blown trial in court.”

The plaintiffs ask this court to affirm the circuit court’s

order.

V. Discussion

Plaintiffs argue deprivation of their due process rights

under both the state and federal constitutions. In State v.

Wilson, __ Hawaiʻi __, __ P.3d __, SCAP-XX-XXXXXXX, 2024 WL

466105 (Feb. 7, 2024), we adopted the “state-constitution first

approach” to constitutional interpretation, under which we

interpret the Hawaiʻi constitutional provision before its federal

analogue. Wilson, SCAP-XX-XXXXXXX, 2024 WL 466105, at *4.

“Only if the Hawaiʻi Constitution does not reach the minimum

protection provided by a parallel federal constitutional right

should this court construe the federal analogue.” Id.

Hence, at the outset, we address Article I, Section 5 of

the Hawaiʻi State Constitution, which states, “No person shall be

deprived of life, liberty or property without due process of

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law. . . .” The Fifth Amendment to the United States

Constitution similarly states, “No person shall be . . .

deprived of life, liberty, or property, without due process of

law. . . .” A claim of due process requires a two-step inquiry:

“(1) is the particular interest which the claimant seeks to

protect by a hearing ‘property’ within the meaning of the due

process clauses of the federal and state constitutions, and (2)

if the interest is ‘property,’ what specific procedures are

required to protect it.” Aguiar v. Hawaii Hous. Auth., 55 Haw.

478, 495, 522 P.2d 1255, 1266.

The plaintiffs’ chattels are a classic form of property

over which they have a constitutionally protected interest.

See, e.g., In re Application of Maui Elec. Co., 141 Hawaiʻi 249,

260, 408 P.3d 2, 12 (2017) (“These interests – property

interests – may take many forms” because courts have long

recognized that “property interests protected by procedural due

process extend well beyond actual ownership of real estate,

chattels, or money.”) (citation omitted, emphasis added)).

“Chattels” are undoubtedly property interests under the Hawaiʻi

Constitution Article I, Section 5’s due process clause. See

Kekoa v. Sup. Ct. of Hawaiʻi, 55 Haw. 104, 108, 516 P.2d 1239,

1243 (1973) (per curiam), citing Fuentes v. Shevin, 407 U.S. 67

(1971).

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For example, this court in Brown v. Thompson held that the

vessel an individual was living aboard in Keʻehi Harbor was

“property” under the due process clause. Brown, 91 Hawaiʻi 1,

979 P.2d 586 (1999). In that case, while the individual (Duncan

Brown) was absent from the state, the vessel began sinking and

coming apart. 91 Hawaiʻi at 4-5, 979 P.2d at 589-90. The harbor

authority therefore impounded it. 91 Hawaiʻi at 5, 979 P.2d at

590. At issue in Brown was whether the vessel was “property”

under the state (and federal) constitutions, thereby entitling

the vessel’s owner to the due process protections of notice and

an opportunity to be heard regarding his boat’s impoundment. 91

Hawaiʻi at 3, 979 P.2d at 588. This court held the vessel was

“unquestionably” property under the state (and federal)

constitutions. 91 Hawaiʻi at 10-11, 979 P.2d at 595-96. In this

case, the tents and vehicles in which the plaintiffs lived were

similarly constitutionally protected property. Their chattels

were as well.

Although we are not bound by federal court interpretations

of federal constitutional analogs when interpreting our state

constitution, we can consider federal interpretations of similar

language “with reference to the wisdom of adopting those

interpretations for our state.” State v. Texeira, 50 Haw. 138,

142 n.2, 433 P.2d 593, 597 n.2 (1967). We note that multiple

courts within the United States Court of Appeals for the Ninth 29 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

Circuit’s geographical jurisdiction have specifically held that,

where chattels are vital to the survival of houseless

individuals, they are undoubtedly “property” within the meaning

of the federal due process clause. The plaintiffs cite to

Lavan, a factually similar case involving sweeps of houseless

individuals’ encampments. Lavan v. City of Los Angeles, 693

F.3d 1022 (9th Cir. 2012). At issue in Lavan was a City of Los

Angeles Municipal Code section (section 56.11) providing, “No

person shall leave or permit to remain any merchandise, baggage

or any article of personal property upon any parkway or

sidewalk.” Lavan, 693 F.3d at 1026. Nine houseless individuals

sued the City under 42 U.S.C. § 1983 alleging that the City’s

practice of summarily seizing and destroying the unabandoned

property of houseless persons living on Skid Row violated the

Fourth, Fifth, and Fourteenth Amendments to the United States

Constitution. Id. The houseless individuals filed an ex parte

application for a temporary restraining order to enjoin the City

from seizing and destroying their property without notice. Id.

The United States District Court for the Central District of

California granted the application and later issued a

preliminary injunction barring the City from (1) seizing

property on Skid Row absent an objectively reasonable belief

that it is abandoned or presents an immediate threat to public

health or safety, or is evidence of a crime, or contraband; (2)

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destroying said property without maintaining it in a secure

location for 90 days first. Id. The City was also ordered to

leave a notice in a prominent place for any property taken,

advising where the property is being kept and when it may be

claimed by the rightful owner. Id.

The City appealed, arguing the seizure and destruction of

houseless individuals’ property does not implicate the

Fourteenth Amendment. 693 F.3d at 1027. The Ninth Circuit

Court of Appeals disagreed and affirmed the district court. Id.

It held, “Because homeless persons’ unabandoned possessions are

‘property’ within the meaning of the Fourteenth Amendment, the

City must comport with the requirements of the Fourteenth

Amendment’s due process clause if it wishes to take and destroy

them.” 693 F.3d at 1032. The court went on to state the appeal

did not “concern any purported right to use public sidewalks as

personal storage facilities.” 693 F.3d at 1033. Rather, the

Ninth Circuit characterized the City’s appeal as asking it “to

declare that the unattended property of homeless persons is

uniquely beyond the reach of the Constitution, so that the

government may seize and destroy with impunity the worldly

possessions of a vulnerable group in our society.” Id. The

Lavan court stated, “[T]he government may not take property like

a thief in the night; rather, it must announce its intentions

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and give the property owner a chance to argue against the

taking.” 693 F.3d at 1032.3

Today, we hold that unabandoned possessions of houseless

persons constitute property protected by the due process clause

of Article I, Section 5 of the Hawaiʻi Constitution.

Once a constitutionally protected property interest has

been established, the next question becomes, “what specific

procedures are required to protect it.” Aguiar, 55 Haw. at 495,

522 P.2d at 1266. This court has stated due process is “not a

fixed concept requiring a specific procedural course in every

situation.” Sandy Beach Def. Fund v. City Council of the City

& Cnty. of Honolulu, 70 Haw. 361, 378, 773 P.2d 250, 261 (1989).

Rather, due process “calls for such procedural protections as

the particular situation demands,” but its basic elements are

3 Post-Lavan, various federal district courts within the Ninth Circuit have held that the chattels houseless individuals rely on for their survival constitute “property interests” within the federal due process clause. See Mitchell v. City of Los Angeles, No. CV 16-01750 SJO (GJSx), 2016 WL 11519288, at *5 (“After the decision in Lavan, several district courts in this Circuit have echoed its reasoning, concluding that homeless individuals have a property interest in possessions, such as tents, tarps, blankets, and medications, even when these possessions are kept in a public space. See, e.g., Sanchez v. City of Fresno, 914 F. Supp. 2d 1079, 1103 (E.D. Cal. 2012) (“If there has ever been any doubt in this Circuit that a homeless person’s unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, that doubt was put to rest by the Ninth Circuit’s September 2021 Decision in Lavan v. City of Los Angeles. . . .”); Carr v. Oregon Dep’t of Transp., No. 3:13-CV-02218-MO, 2014 WL 3741934, at *4 (D. Or. July 29, 2014) (“Within this most basic scope of the due process guarantee is a homeless person’s ownership interest in property that she has left unattended but not abandoned.”)).

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notice and an opportunity to be heard at a meaningful time and

in a meaningful manner. Id.

First, with respect to notice, “Adequate notice under the

Due Process Clause has two components. It must inform affected

parties of the action about to be taken against them as well as

of procedures available for challenging that action.” Brown, 91

Hawaiʻi at 10, 979 P.2d at 595. The Brown case is instructive on

the point of adequate notice. As stated earlier, in Brown, the

owner of a boat (a merchant marine) was absent from the state

when the boat began breaking apart and sinking where it was

moored at Keʻehi Harbor. Brown, 91 Hawaiʻi at 4-5, 979 P.2d at

589-90. Pursuant to statute, the harbormaster and harbor

manager declared the vessel derelict and impounded it. 91

Hawaiʻi at 5, 979 P.2d at 590. The boat owner was orally

informed of the boat’s impoundment upon his return but went out

to sea again for another month. Id. In the meantime, and also

pursuant to statute, the harbor manager mailed notice of the

impoundment to the boat’s owner via certified mail (which was

returned unclaimed), posted a notice on the vessel, and

published notice in the Honolulu Star-Bulletin. Id. When the

boat’s owner returned again, he examined the boat in the impound

area and found it had already been cut in half. 91 Hawaiʻi at 6,

979 P.2d at 591. The harbor authority later gave the remnants

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of the vessel, free of charge, to the company producing the

movie Waterworld. Id.

Brown filed a complaint requesting, inter alia, a

declaration that his boat had been impounded in violation of his

procedural due process rights. 91 Hawaiʻi at 7, 979 P.2d at 592.

This court agreed, holding that the letter informing Brown of

his boat’s impoundment “made no mention of ‘procedures available

for challenging that action,’ administrative or otherwise.” 91

Hawaiʻi at 10, 979 P.2d at 595. Accordingly, this court held

that Brown “did not receive adequate notice regarding the

impoundment” of his vessel. Id. Similarly, in this case, the

Notice to Vacate contained no information as to how its

recipients could challenge the proposed action. Therefore, the

plaintiffs received deficient notice.

Further, this court held that Brown “was never provided

with an opportunity to be heard on the matter of [his] vessel’s

impoundment.” Id. This court thus vacated the circuit court’s

judgment and remanded the case to the circuit court for entry of

a judgment in Brown’s favor and against the defendants, as well

as a declaration that Brown’s right to procedural due process

was violated with respect to the impoundment and disposal of his

vessel. 91 Hawaiʻi at 18-19, 979 P.2d at 603-04.

Similarly, in this case, the plaintiffs were never provided

with an opportunity to be heard on the matter of the seizure of

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their chattels. Their contested case requests went completely

ignored. Even though some plaintiffs were able to meet with

Mayor Victorino in person before the sweep, they were unable to

stop or postpone the sweep. This was despite the mayor’s

publicly (and privately) conveyed promises that the sweep would

not occur until all individuals were relocated. They were not.

This was also despite the mayor’s privately conveyed reassurance

to Lau that property wrapped in duct tape or caution tape would

not be seized by police. It was. The plaintiffs were not given

a meaningful opportunity to be heard prior to the seizure and

disposal of their property. Therefore, their right to

procedural due process was violated.

With respect to whether a contested case hearing was

required in order for the plaintiffs to be heard, the applicable

test is the following:

[In] determining the specific procedures required to comply with constitutional due process we consider and balance three factors: (1) the private interest which will be affected; (2) the risk of an erroneous deprivation of such interest through the procedures actually used, and the probable value, if any, of additional or alternative procedural safeguards; and (3) the governmental interest, including the burden that additional procedural safeguards would entail.

Flores, 143 Hawaiʻi at 126-27, 424 P.3d at 481-82 (quoting Sandy

Beach Def. Fund, 70 Haw. at 378, 773 P.2d at 261).

Brown is instructive on these factors as well. In that

case, after this court determined that Brown possessed a

property interest in his live-aboard vessel, we then weighed the

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other three factors to determine that Brown was entitled to at

least a post-impoundment hearing before losing his vessel.

Brown, 91 Hawaiʻi at 11, 979 P.2d at 596.

First, Brown noted that the private interest at stake was

“significant” because Brown’s boat was his home, and “an

individual’s ‘right to maintain control over his home, and to be

free from governmental interference, is a private interest of

historic and continuing importance.’” Id. Similarly, in this

case, there is a “significant” privacy interest in the

plaintiffs’ right to maintain control over the tents and

vehicles that served as their homes.

Second, in Brown, we held that “the risk created by

erroneous deprivation of property through ex parte impoundment

cannot be ignored.” Id. The impoundment statutes required only

that the vessel be determined to be unattended for 24 hours or

more, and sinking or in immediate danger of sinking in a manner

that obstructs a waterway or endangers life or property. Id.

We noted the government was not required to adduce the evidence

it had in making that determination, nor was it required to

examine any potential defenses the vessel’s owner may have had.

Id. Similarly, in this case, the County’s unchecked decision to

seize and destroy the plaintiffs’ personal property posed a high

risk of erroneous deprivation of property.

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Third, Brown acknowledged that the government had a “great

interest in keeping state waters open for public use.” Id.

Nevertheless, we pointed out, “What may have constituted an

emergency at the time the vessel was sinking in state waters

simply becomes a matter of temporary storage once the vessel has

been impounded.” 91 Hawaiʻi at 12, 979 P.2d at 597. We did not

consider post-impoundment hearings as posing significant fiscal

or administrative burdens upon the state. Id. Therefore, Brown

was entitled to the additional safeguard of a hearing. Id.

Similarly, in this case, once the vehicles and chattel were

removed from the Kanahā area, they posed no further danger to

public health or safety, the work of the wastewater treatment

employees, or the endangered birds at Kanahā pond. Thus, a

post-seizure hearing would not have significantly burdened the

County. The problem, however, was that the County appears to

have destroyed the personal property seized; unlike the vehicles

(which were stored then disposed of), the personal property does

not appear to have been stored for any time.

In fact, the circuit court made specific and unchallenged

factual findings that the plaintiffs’ chattels appear to have

been summarily destroyed. The fact of destruction is

significant in this case. In order to counter the plaintiffs’

argument that their due process rights were violated, the County

relies on cases that are readily distinguishable because they

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involved notice and an opportunity to be heard concerning seized

property that was later stored, not destroyed. For example, in

Sullivan, the United States District Court for the Northern

District of California denied houseless plaintiffs’ motion for a

preliminary injunction against the City of San Francisco and its

Bay Area Rapid Transit (“BART”) District. 2017 WL 4922614, at

*1. BART police distributed notices to houseless individuals

encamped on BART property. 2017 WL 4922614, at *2. The first

notice informed houseless individuals they were trespassing on

BART property in violation of the California Penal Code and gave

them 72 hours’ notice to permanently vacate the property with

their belongings. Id. A second notice posted days later

informed the houseless individuals they were trespassing,

ordered them to leave immediately, and provided contact

information for two city programs that assist the homeless and

provide free meals. Id. Once houseless individuals were

removed from the property, a third notice explained where their

property was stored and how to contact the storage facility to

retrieve it. Id.

The district court denied the houseless plaintiffs’ motion

for a preliminary injunction, stating that there was “no

likelihood of success or serious questions going to the merits”

of their claim that BART’s actions deprived them of due process

of law under the Fourteenth Amendment to the United States

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Constitution. 2017 WL 4922614, at *5. The district court noted

“the right to be free from trespass is one of the oldest, and

most universally recognized features of the law.” 2017 WL

4922614, at *4. It characterized the relief houseless

plaintiffs sought as “court approval to settle indefinitely on

the land of a municipal transportation district.” 2017 WL

4922614, at *5.

The district court distinguished the Lavan case, upon which

the houseless plaintiffs had extensively relied. Id. It

explained that Lavan involved police seizure and immediate

destruction of the personal property of houseless individuals

without notice to them or an opportunity to object. Id. By

contrast, the district court explained, BART police had given

the affected houseless individuals notice that their property

would be seized, 72 hours to make arrangements to move their

property, and notice of the whereabouts and manner of retrieving

property the BART police had seized and stored. 2017 WL

4922614, at *6. In balancing the equities, the district court

further concluded, “To force BART to host the encampment would

open BART to potential liability for failing to police the

activities in the encampment.” Id.

The County cites approvingly to Sullivan for the

proposition that 72 hours’ notice prior to a sweep was

sufficient. The County completely ignores, however, that the

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property seized in Sullivan was later stored, and the houseless

individuals affected were given information on the property’s

whereabouts and how to retrieve it. Id.

By contrast, the plaintiffs’ property in this case was

destroyed. In this case, if the County’s plan was to destroy

(instead of store4) seized property, then the due process clause

4 The County cites to De-Occupy Honolulu for the proposition that 24 hours’ notice prior to a sweep was sufficient. 2013 WL 2285100. De-Occupy Honolulu, however, also involved seized chattels that were later stored, with procedures in place for the affected houseless individuals to retrieve their property. In that case, the United States District Court for the District of Hawaiʻi addressed whether a Revised Ordinance of Honolulu was facially unconstitutional under, inter alia, the due process clauses of the United States Constitution. 2013 WL 2285100, at *1. The ordinance prohibited the storage of personal property on public land. Id. It allowed the City and County of Honolulu to impound personal property 24 hours after serving written notice on the person storing the property or posting notice conspicuously upon the property. 2013 WL 2285100, at *2. The notice had to include the location where the removed property would be stored, as well as a statement that the impounded property would be sold or otherwise disposed of if not claimed within 30 days of impoundment, with the property owner responsible for all costs of removal, storage, and disposal. Id. The district court noted “there is no dispute” the personal property of the houseless individuals constituted a protected property interest. 2013 WL 2285100, at *6. The court recognized “that a strong private interest exists in Plaintiffs’ continued ownership of their possessions, especially given that the possessions impounded under Article 19 may be everything that a homeless individual owns.” Id. Nevertheless, the court determined the houseless plaintiffs were not entitled to a pre-deprivation or post- deprivation hearing because there were safeguards in place to prevent the erroneous deprivation of their property. Id. Among those safeguards were (1) the pre-seizure written notice provided 24 hours in advance; (2) the post-seizure notice informing houseless individuals of the property taken and the location where it may be retrieved, and (3) storage of the items for at least 30 days before destruction. Id. The district court continued that a hearing would not have added any additional value to prevent the erroneous deprivation of personal property. Id. Further, the district court noted the City and County’s “substantial interest” in ensuring that public property was clean, safe, and accessible for use by everyone. Id. As the issue is not before us, we do not decide whether a contested case hearing is necessary under the due process clause of Article I, Section 5 of the Hawaiʻi Constitution where there are procedures in place to (1) notify houseless individuals of an upcoming sweep and whom to contact to challenge such a sweep; (2) inventory and temporarily store the houseless individuals’ personal property seized during a sweep; and (3) notify

40 *** FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER ***

of the Hawaiʻi Constitution required a pre-deprivation hearing of

some sort for Davis and Lau, who lost property in the sweep.

Under the circumstances of this case, a pre-deprivation

contested case hearing would have provided the process due.

Thus, the circuit court properly denied the County’s motion to

dismiss as to Davis and Lau.

VI. Conclusion

We therefore affirm the circuit court’s order.

Bradley Sova /s/ Mark E. Recktenwald for defendants-appellants /s/ Sabrina S. McKenna Jongwook Kim for plaintiffs-appellees /s/ Todd W. Eddins

/s/ James S. Kawashima

/s/ Shanlyn A. Park

houseless individuals of where their personal property is stored and how to reclaim their property.