ACLU hopes Supreme Court homeless win helps Honolulu case
The American Civil Liberties Union of Hawaii hopes its victory before the Hawaii Supreme Court over Maui County homeless sweeps will bolster its case against Honolulu when its lawsuit over Oahu’s homeless policies goes to trial in October.
In July the ACLU — and the civil rights law firm of Goldstein, Borgen, Dardarian &Ho — 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.
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The ACLU particularly wants Honolulu’s sit-lie ban, park closure rules, camping prohibition in city parks and the 12-year-old sidewalk nuisance and stored property ordinances ruled illegal and unconstitutional in Circuit Court.
In an earlier, separate lawsuit against Maui County filed by the ACLU, the Hawaii Supreme Court wrote last month that the due process clauses of both the U.S. and Hawaii Constitutions required Maui County to hold a hearing before seizing — and immediately destroying — homeless property in September 2021.
Taylor Brack, staff attorney for the ACLU of Hawaii, told the Honolulu Star-Advertiser on Monday that the Hawaii Supreme Court’s ruling over its Maui lawsuit likely will help its case against Honolulu.
While the issues are different — the Maui case focused on violations of due process and the Honolulu case alleges cruel and unusual punishment — Brack said both lawsuits focus on “the constitutional rights of houseless people. So I do think there is a connection.”
City spokesperson Scott Humber told the Star-Advertiser in an email that the “ACLU Hawaii filed a motion for interlocutory appeal, asking the Court to allow them to immediately appeal the decision on the preliminary injunction. The Court denied this request, so the parties are proceeding to prepare for the permanent injunction proceeding. The City anticipates that Plaintiffs will file a motion to certify the case as a “class action” shortly, which the City will vigorously oppose.”
Asked for comment about the Supreme Court’s ruling regarding the Maui sweep, Humber said that “The Hawaii Supreme Court in its recent ‘homeless’ decision involving the County of Maui recognized that the City and County of Honolulu has a constitutionally sound pre-and post-deprivation process that addresses the concerns raised by ACLU Hawaii against the County of Maui’s ‘take and destroy’ process. The City is confident that a similar challenge to Honolulu’s ordinances on the grounds presented in the Maui County case would not succeed and will continue to pass constitutional scrutiny as decided by Circuit Court and recognized by the Supreme Court.”
On Monday the ACLU celebrated its Hawaii Supreme Court victory over the 2021 Maui County sweep. County officials had ignored multiple requests for contested case hearings before destroying property belonging to the homeless.
Maui County had 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,” according to the Supreme Court’s ruling.
But the court wrote that Hawaii’s Constitution states, “No person shall be deprived of life, liberty or property without due process of 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 …’”
“Today, we hold that unabandoned possessions of houseless persons constitute property protected by the due process clause of Article I, Section 5 of the Hawai ‘i Constitution,” the court wrote in its decision.
Destroying homeless possessions immediately also represented “a decision the County cannot reverse,” the court said.
The court’s decision upheld an earlier ACLU win on behalf of its plaintiffs in Maui’s Second Circuit Court, which Maui County then appealed to the Supreme Court.
