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            The COVID-19 pandemic significantly impacted Hawaiʻi’s economy. Over 50,000 people filed for unemployment insurance in Hawai‘i this time last year—the beginning of the COVID-19 shutdown.[1] Although the State unemployment rate appears to be improving, the effects of the economic shutdown are still being felt today. The State of Hawaiʻi initially responded to the economic hardship that renters were facing by implementing an eviction moratorium.[2] In its current form, the moratorium blocks evictions by landlords for non-payment of rent by tenants. However, issues have arisen regarding the dissemination of information and enforcement of the moratorium. Editors of the Asian-Pacific Law and Policy Journal[3] (“APLPJ”) spoke with Representative Linda Ichiyama[4] to discuss wrongful evictions, housing discrimination, and potential solutions to the Landlord-Tenant issues that the people of Hawaiʻi are experiencing today.

            Generally, access to information during the pandemic has been a significant source of concern. Due to a constantly changing pandemic policy, disseminating information to various populations quickly became a complex issue. Representative Ichiyama summarized the problem, stating, “Last year there was a lot of information that we had to get out quickly to a broad range of people and we have never really had to do that on that scale and level before. And so, [one issue was that] there are a lot of challenges around language access . . . for example, applying for Unemployment Benefits, when people had to go online and apply, all of it was in English. Another challenge has been access for those with disabilities. How do you reach the community to make sure that they are getting the information that they need to protect themselves, stay safe, and follow safe practices?”

            Representative Ichiyama stated that “[she thinks] there was [also] a lot of confusion over the eviction moratorium itself. At first it was a limited scope, and it did not cover non-payment of rent, and then it was broadened at the State level to include non-payment of rent. But you also have this overlapping of [Centers for Disease Control and Prevention (“CDC”)] eviction moratoriums and confusion of what is covered under either.”

            Other than the barriers to communicating with the community, another concern is the lack of enforcement of the eviction moratorium by the Honolulu Police Department (“HPD”).[5] A Civil Beat article published in August 2020 provides, “Michelle Yu, a spokeswoman for the Honolulu Police Department, told Civil Beat in July that HPD does not keep track of violations of the eviction moratorium, and she knows of no warnings, citations or arrests.”[6] Yu commented that “Evictions are generally civil matters, not criminal. You may want to refer to the Landlord-Tenant Code.”[7] Representative Ichiyama was able to shed some light on the issue, stating, “Technically right now, under [Hawaii Revised Statute (“H.R.S.”)] 127(a), any violation of [the] emergency order is a full misdemeanor that can be subject up to a year in prison for a violation. We are actually trying to look into that now, in creating a spectrum of penalties, and this is kind of one of the issues. HPD was cracking down on people for mask wearing violations and we ended up with something like 60,000 citations misdemeanors that like 90% of them got dismissed mostly for people not wearing their masks.” 

            Due to lack of enforcement and misinformed constituents, among other potential factors, there have been wrongful evictions and cases of discriminatory practices by landlords in evicting their tenants. For example, Representative Ichiyama shared that she had learned of discriminatory practices in her capacity as a Co-convener of the Women’s Legislative Caucus.[8] She stated “It has not necessarily come up in [her] constituents, but [she has] heard in other communities about tenants who feel like they are being pressured by their landlord to move out. Very early on in the pandemic, [she] heard from the Commission on the Status of Women that there were landlords demanding sexual favors from tenants in order to allow them to stay. [In terms of wrongful evictions], [t]he nonprofits Lawyers for Equal Justice, Legal Aid Society of Hawaii, and Medical-Legal Partnership for Children in Hawaii said in a press conference . . . that they have been inundated with calls about the state’s eviction moratorium and have been frustrated with the lack of enforcement.”[9] 

            Regardless of the effectiveness of the moratorium in protecting tenants, it is currently set to expire on April 13th.[10] Representative Ichiyama is also the Chair of the Pandemic and Disaster Preparedness (“PDP”) Committee and was able to share some potential solutions that legislators are working on to address the significant amount of landlord-tenant disputes that have been on hold during the moratorium.[11] 

            First, Representative Ichiyama noted that PDP itself “was formed last November, and it was because House Leadership wanted to take a more holistic look at how [they] were handling the pandemic and to be prepared for disasters overall. You know, the way [the Legislature] are traditionally structured is with committees [like] State departments: agriculture, labor, higher ed[ucation], transpo[rtation] and so it is very easy to kind of be in these subject matters and not necessarily see the broader picture or how things kind of connect and work together, so that is one part of it. The other part of it is that [the Legislature] is looking at, as a committee, how can [they], as [a] State government, respond better to disasters? Particularly the lessons learned from going through this pandemic but also through natural disasters [Hawaiʻi is] experiencing now, with heavy rains and flooding, and so [she] does not know if that is necessarily things [sic] that will result in legislation, or having to make statutory changes, but [if done] right, it could just be a matter of bringing stakeholders together and following up on some of the challenges we experience.”

            Second, in order to fix enforcement, Representative Ichiyama explained, “the Legislature [is] . . . trying to amend H.R.S. 127(a) to create more varying types of penalties because [. . .] if you are not wearing your face mask [she] does not know if you should be subject to a year in jail, and that situation never really came to mind when [the Legislature] previously wrote the H.R.S. 127(a). So, that is another important lesson that the pandemic has taught […] is that we need to create varying penalties. So, [Senate Bill (“SB 540”)], which is going to be coming to the PDP committee next, is to create an infraction, violation, petty misdemeanor and full misdemeanor. There [are] four different levels for violations under 127(a) and the emergency order would spell out, okay if you violate this it is a fine, if you violate this it is a petty misdemeanor, and they would kind of set out that in the emergency order. To [her] that is also good for the [theory that the] punishment should fit the crime, but also good for enforcement because with the mask citations it was kind of like there is no enforcement and all these cases got dismissed because it was not worth going to a full misdemeanor and jury trial on it . . . And so, people who may or may not have actually broken the law have no penalty at all because it is just too hard to enforce.” 

            For landlords and tenants specifically, there is currently a bill for mediation and potential rent relief in the works. Representative Ichiyama commented how under normal circumstances, mediation is not always effective. A Civil Beat article published in February 2021 provides, “Tracey Wiltgen, who leads the Mediation Center of the Pacific, said eviction cases mediated at court had a 52% rate of agreement, with about 22% of tenants allowed to stay housed and others getting more time to leave.”[12] Representative Ichiyama thinks the legislature has “been working with the Department of Commerce and Consumer Affairs (“DCCA”), Office of Consumer Protection Executive Director Steven Levins and his office on getting more information out to tenants about their rights and where they can go for help if they feel like they are being wrongfully evicted. [They have] also been working closely with the Housing chair Representative Nadine Nakamura [and] she pulled together a group of stakeholders including Legal Aid, the Mediation Center of the Pacific, several circuit court judges, and attorneys for landlords to try and come up with solutions for once the moratorium is lifted so there is a bill that is being moved forward and discussed on doing some kind of mediation program to divert cases before they get to court so that [the Judiciary does] not get completely overrun with eviction cases once the moratorium is lifted.” 

            Representative Ichiyama “[thinks] mediation is always a good alternative to having to go through an eviction process because it is a workout between the parties. If the two parties can reach some kind of settlement, then it is always the quickest and cheapest solution. [She] practiced law as a condo attorney for a while, so sometimes the association had to step in the shoes of the apartment owner to evict a tenant who was dangerous or violent towards other condominium residents or created an unsanitary living condition. And so, [she] sometimes had to do eviction cases and nobody ever wanted to go to trial that takes a long time. Even now the courts have started to reopen, they are still backlogged, and you could be waiting a long time.” However, Representative Ichiyama stated that there may be some barriers to mediation agreements because some landlords are unwilling to come to a solution, as almost 20% reported that they were not “willing to waive or discount rent,” “willing to lower rent,” nor “willing to defer rent or give payment plans,” in a survey in August.[13] 

            Representative Ichiyama described ways the Legislature discussed incentivizing settlements: “[The Legislature] had some discussions about tying the rent relief to the landlords’ participation in mediation so that there is a financial incentive and [she thinks] the landlord would be more willing to participate if they know that there is a pot of money available. It is not just going to be forgiven, but [the parties] have to go through this process. So there has been [sic] discussions about that. Unfortunately, [she does not] think that made it into the Bill, but [she thinks] that the rent relief program that the counties are going to launch soon will be very helpful. [She does not] know whether or not they will be retroactive, but [she thinks] that it would help people who are struggling.”

            Further, Representative Ichiyama said that an underlying issue that should be addressed is the lack of access to legal counsel for landlords and tenants. These implementations, however, are not solutions that will be coming out of the current legislative session, “but [in her own opinion, thinks] it is part of a question that [Hawaiʻi has] dealt with for many years and that is access to justice. Our court system is the one form of government where you need to hire someone to interact with that form of government for you. [For] pretty much anything else you need a permit. [For example, if] you want to go camping, you need your driver’s license, you go and take care of it and deal with the government yourself. But in the court system it is difficult to be a pro [se] party and so [she thinks there is] more we can do to help those who do not qualify for Legal Aid, because they just take the lowest most indigent population ­— and that is who they take care of. But there is a group of middle-class people who do not qualify for their services but cannot afford a $5,000 retainer. So how [does the State] make sure that, whether they are a landlord or a tenant, [they have access to legal counsel?] . . . Sometimes it is the attorney who tells their client, ‘No, we really should settle.’ It helps put that additional information in front of the client to make an informed decision, but if you do not have somebody like that it can drag things on longer than they need to be. [She thinks] we [need to figure out how to] make sure that legal services are available to both landlords and tenants so that situations and disputes can be resolved more efficiently.” 

            Representative Ichiyama continued that “[mediation will not address the issue of legal counsel since a] mediator has to stay neutral, and they are not an attorney for either . . . There is a group, [Volunteer Legal Services Hawaii], that helps people find legal representation. It is a non-profit. They have a list of pro bono attorneys who are willing to provide services. This organization will screen the requests and if they find somebody that has a particular legal need it can connect them with an attorney that does that type of work.”[14] 

            In terms of exacerbating the affordable housing problem in Hawai‘i, Representative Ichiyama says that it is a developing issue. “[She thinks] it is possible and [she thinks] it is happening now,” meaning that housing discrimination has become exacerbated due to the disinclination by landlords to rent to low-income residents who may not be able to offer proof of steady high pay. Representative Ichiyama “heard of landlords who for one reason or another, their units are empty, but they do not want to rent them while the moratorium is in place because they do not want to take on the chance of having a bad apple or somebody who says ‘yes, I have a job’ and then they lose it and then they have somebody not paying rent. So, they are just letting their unit stay vacant, which is really tough. There are some things that the legislature can do. [They] are trying to figure out ways to look at our tax structure, and this has come up before. For example, [taxing] investment properties differently. If you are owner-occupant, living in your house, you would be taxed differently versus if you had an apartment that you rented. So [the Government] would give you a break on your own house, but [since] the apartment that you rent [out] is an investment property, [the Legislature] should tax it at a higher rate. And so that then creates the incentive for the owner to say it is in [the owner’s] best interest to rent it out and get income from it or, for example, providing incentive to landlords to rent to tenants who are a certain percentage of area median income.” Representative Ichiyama is unsure whether any of these potential solutions have been addressed for the unique situation that the Hawai‘i community is in right now “because it is so recent.” However, in time, hopefully these and other solutions may be adapted to meet the diverse needs and interests of Hawai‘i’s communities.

  

[1] COVID-19 & Hawaii’s Economy, Dep’t Bus., Econ. Dev. & Tourism, https://dbedt.hawaii.gov/economic/covid19/ (last visited Apr. 3, 2021).

[2] Press Release, Office of the Governor, State of Haw., Governor Ige Extends Eviction Moratorium, Addresses Future Quarantine Exceptions in 18th COVID-19 Emergency Proclamation (Feb. 12, 2021), https://governor.hawaii.gov/newsroom/office-of-the-governor-news-release-governor-ige-extends-eviction-moratorium-addresses-future-quarantine-exceptions-in-18th-covid-19-emergency-proclamation/.

[3] Staff Editors Emily Walker (‘22) and Cole Moore (‘22) with the Asian-Pacific Law & Policy Journal conducted the interview with Representative Linda Ichiyama and were the leads in facilitating the efforts to write this column article. 

[4] Representative Linda Ichiyama is a member of the Hawaiʻi House of Representatives, representing Moanalua, Aliamanu, and Salt Lake. Representing District 32. She serves as the Chair on the Pandemic and Disaster Preparedness Committee and is a member of the Committee on Government Reform and the Committee on Judiciary and Hawaiʻi Affairs. She is also one of the four co-conveners of the bipartisan Women’s Legislative Caucus. Representative Ichiyama is a graduate of Moanalua High School, Georgetown University, and the William S. Richardson School of Law. Prior to assuming office, Representative Ichiyama was an associate attorney at Porter McGuire Kiakona & Chow, LLP. She was also a staff member of Judge Gary W.B. Chang’s Chambers. Representative Ichiyama is active in several community organizations, including the Moanalua Lions Club, the Japanese American Citizens League, the Hawaiʻi Jaycees, and the Honolulu Community Action Program.

[5] See Anita Hofschneider, Hawaii’s Eviction Moratorium Isn’t Saving These Tenants, Civil Beat (Aug. 4, 2020), https://www.civilbeat.org/2020/08/hawaiis-eviction-moratorium-isnt-saving-these-tenants/.

[6] Id.

[7] Id.

[8] See Representative Linda Ichiyama, Haw. State Legislature, https://www.capitol.hawaii.gov/memberpage.aspx?member=ichiyama (last visited Apr. 3, 2021).

[9] Id.

[10] Press Release, supra note 2.

[11] See House Committee on Pandemic & Disaster Preparedness, Haw. State Legislature, https://www.capitol.hawaii.gov/committeepage.aspx?comm=PDP (last visited Apr. 3, 2021).

[12] Anita Hofschneider, Hawaii Lawmakers Mull Mediation to Prevent Mass Evictions after Moratorium, Civil Beat (Feb. 26, 2021), https://www.civilbeat.org/2021/02/hawaii-lawmakers-mull-mediation-to-prevent-mass-evictions-after-moratorium-lifted/.

[13] Philip Garboden, November Rental Market: Troubling Signs Remain as State Prepares for an Uncertain 2021, UHERO (Jan. 14, 2021), https://uhero.hawaii.edu/november-rental-market-troubling-signs-remain-as-state-prepares-for-an-uncertain-2021/.

[14] See Volunteer Legal Servs. Haw., https://www.vlsh.org/ (last visited Mar. 20, 2021).