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Bill 106 threatens private property owners

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This is a reprint from the Star Advertiser published February 15, 2023. The limit for Star Advertiser was 600 words. For educational purposes, we’re adding more info through links and photos.

EDITORIAL | ISLAND VOICES

Column: Bill threatens private property owners

  • By Choon James and Natalie Iwasa
  • Today 
  • Updated 7:19 pm

As part of the 2022 county package to state legislators, Honolulu Mayor Rick Blangiardi requested “nonjudicial foreclosure” powers, i.e., the power to seize private property without going to court. Fortunately, House Bill 1434 did not pass last year.

This year’s package includes another request for “nonjudicial foreclosure,” aka “power of sale.” 2023 HB 106 BELOW represents an alarming threat to property owners and is prevalent in totalitarian regimes.

This year’s HB 106 offers weak assurance that “a county may, after all notices, orders, and appeal proceedings are exhausted, satisfy all unpaid civil fines through the power of sale on the real property subject to a recorded lien.”

Unfortunately, our years of civic participation at Honolulu Hale show that due process has not always been fair and equitable to ordinary residents.

Furthermore, recent federal indictments and guilty pleas continue to show the troubled Honolulu Department of Planning and Permitting (DPP) has no consistent record of fair play or efficient management. Written testimonies reveal alarming threats toward private property rights.

Dawn Takeuchi Apana, DPP director designate, stated: “Specifically, this bill would authorize the city to bring closure to pending civil fines imposed on landowners who are in violation of the city’s land use ordinances and building codes, through a nonjudicial or administrative process.”

Honolulu City Councilman Calvin Say also submitted testimony for a quicker seizure: “Our city corporation counsel is currently able to initiate a Judicial Foreclosure process, which has been successful in similar instances, however this is a long process that takes valuable resources away from other pressing legal matters.”

In other words, give us the authorization to hurry it up by bypassing the regular court method of foreclosure.

The House Committee on Judiciary & Hawaiian Affairs, whose members include Chairman David Tarnas and Vice Chair Gregg Takayama, approved HB 106 on Jan. 31. Its report states in part:

“Your committee finds that authorizing the counties to collect on liens filed on properties through a nonjudicial foreclosure process provides some leverage over property owners to comply or lose their property. If a property owner fails to comply and the property is foreclosed upon, this measure would enable the property to be put to productive use, allow liens attached to the property to be satisfied, and stop the accrual of additional debt or taxes on the property.”

Chairman David Tarnas and Vice Chair Gregg Takayama, approved HB 106 on Jan. 31. 2023

Hawaii’s state legislators should recognize that most ordinary residents sacrifice and work their tails off to achieve real property ownership. Each county’s goal should be to help property owners comply with the law and correct their violations, not summarily seize their properties.

HB 106 invites corruption and exposes residents, especially those who have fewer financial resources available to them, as easy casualties of this potential power of sale. All Hawaii counties would be affected.

It should be noted the U.S. Supreme Court ruled unanimously on Feb. 20, 2019 (Timbs vs Indiana), that the Constitution’s ban on excessive fines — civil asset forfeitures are a type of fine — applies to state and local governments, thus limiting their ability to use fines to raise revenue.

The late Justice Ruth Bader Ginsburg also astutely argued fines could be used to retaliate against political enemies and had been used as a source to raise revenue.

RBG was a tireless and resolute champion of justice.

Hawaii has a few egregious property owners, but this tyrannical bill is not the solution. We urge our legislators to vote “no” on HB 106.

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AUTHORS: Natalie Iwasa is a CPA and certified fraud examiner; Choon James is a residential Realtor and farmer. They have spent combined decades of civic participation at Honolulu Hale as community advocates for good governance.

REJECT HB 106: Authorizes a county to proceed with a power of sale on real property subject to city fines.

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The City and County of Honolulu is asking to have POWER of SALE on Oahu’s property owners based on DPP liens. Bill 106 will affect ALL Counties.

JHA 1/31/23 2:00 PM Tuesday
325 VIA VIDEOCONFERENCE

BILL 106 and companion SB 216 may sound harmless in an ideal world with perfect fairness and equity and justice for all.

But in real life, these bills are too over-reaching and will further marginalize Private Property Rights. 

Bill 106 slams Due Process for ordinary citizens. There are systemic failures of discrimination, inequity, and entrenched bureaucracy at Honolulu Hale. This Power of Sale will expose every property owner to the possible whim of politicians, government officials and its powerful political machine. 

Although there is supposedly a fair “process” in place, our decades of participating at Honolulu Hale and the records have shown otherwise. Repeatedly we have witnessed that this same “process” has been unfair and inequitable to ordinary citizens. No matter how thin the cheese is sliced, there are always two sides to it. But the government almost always wins because it has the upper-hand, resources and a legal corporate team to ignore or fight ordinary citizens.

Most ordinary citizens are not born with a silver spoon in their mouth. They work their tails off to achieve real property ownership. The County’s role ought to be helping property owners correct their violations and be in compliance; not be too eager to seize private properties through fines. 

Unfortunately, the Honolulu Department of Planning and Permitting (DPP) does not have a consistent and good record. This is no way to live in a Democracy where Big Brother and its long arm of government continues to become more powerful and subvert Due Process due its citizen.

This POWER of SALE is NOT about a mortgage company foreclosing based on non-payments of a borrower. This is about the government seizing properties, based on DPP fines.

There is an alleged reason or justification that this Power of Sale is needed to enforce “monster homes” or “illegal vacation rentals”.

The isolated problems with monster homes and illegal vacation rentals are not compelling enough to provide counties with this unfettered powers. DPP needs to examine why monster homes are approved for permits in the first place. There was a time when a property owner could only build up to 50% of its land area. Incrementally, the city has approved regulations and ordinances that allow increased density in its land-use legislation.

As a matter of public policy making and with a bigger picture, providing all counties with this Power of Sale for the above alleged reason is akin to tearing down a Cathedral to fry an egg.

Ordinary citizens cannot afford expensive legal representation to make sure their side of the story is heard and fairly considered in the legislative decision-making.

Affluent and well-connected citizens have the means to circumvent DPP. Ordinary citizens will become the casualties of this powerful and overreaching legislation.

This Power of Sale (aka Non-judicial Foreclosure) is overreaching and tyrannical. This Power of Sale authority makes every property owner a sitting duck at the whim of the city.

Basing a POWER of SALE ( aka NON-Judicial Foreclosure) through DPP fines and recorded liens is the worst possible exposure for more corruption and possible political retaliation.  

The City and County of Honolulu requested this same power aka “non-judicial foreclosure” in 2022. 

Please read the 2022 written testimonies that provide a very brief summary of this issue. This far-reaching governmental power will affect all Counties but it was one of the best-kept secrets in 2022. It is the same in 2023.

Please protect Due Process and protect private property rights. As if Eminent Domain is insufficient for the government, the Honolulu County is again asking for a quick Power of Sale aka non-judicial foreclosure.

This governmental power is too much to bear in a democratic society. Private Property Rights must be revered as one of Democracy’s foundational pillars. The counties have other options.

Extraordinary 2022 protests in China

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It’s not too often that Chinese citizens are made so angry to the point of staging public protests. There is a lot of private chit chat. But people appear to be so programed or fearful to go against the huge and powerful political machine that can literally make one disappear without a trace.

I was in Tiananmen Square in 2007 when my husband was participating in an academic Conference. The image of the lone student standing in front of the military tank was imprinted in my consciousness.

Where I was at this 109 acres “public” square, you could see tourists and hawkers selling kites, souvenirs, including the upcoming 2008 Beijing Olympics Game. There were also a few troops of soldiers marching in formation.

I saw a woman far away across the Square who quickly held up a small sign. It was too small to see but I could see how quickly a marching troop reached her. Her sign was taken and she was taken away.

I wanted to go over and check it out but my husband said if I went, I would probably end up in jail too. He was probably correct.

Currently, the ongoing protests in China is probably as bothersome to the authorities as the Tiananmen Square. Covid lockdowns have brought crushing problems for many Chinese nationals. The lockdowns are harsh and inhumane, especially for ordinary citizens who have to work to survive. Friends in China have also reported that college students are quarantined for months in their dormitories. Sanitation facilities including showering are regulated. There had been suicides as the living conditions were unbearable to some.

Excerpts from The New York Times:


By Li Yuan

“We want food, not Covid tests, We want reform, not Cultural Revolution. We want freedom, not lockdowns. We want votes, not a ruler. We want dignity, not lies. We are citizens, not slaves.” In Shanghai, some even shouted the banners’ most radical demand: “Remove the despotic traitor Xi Jinping!”

Submerged mosque in Phulwaria Dam resurfaced for a short while due to drought

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This is a poignant read of a little peaceful and quiet village of Chiraila, Bihar, India that was displaced to build a dam about 30 years ago. Its mosque Noori Masjid resurfaced this year.

Excerpts from https://www.aljazeera.com

Rifat Fareed wrote this fascinating report on so many levels. But I find these excerpts most poignant:

‘No one would go hungry’

Chiraila was a quiet village where Muslims and Hindus lived side by side. Some villagers owned land while others made a living by farming it, cultivating mostly maize and rice paddy, recalled Hussain. Chiraila was surrounded by low mountains and at the stream nearby, people would fetch water and perform ablution before prayers.

“People were able to earn and eat, as well. That was the speciality of the village. No one would go hungry. People did not care about your religion,” said Hanief, referring to the interfaith tension seen in parts of India in recent years.

Chiraila consisted mostly of mud huts with thatched roofs but the small mosque at the centre of the village stood apart with its plastered surface, which was cool in the summer, cemented courtyard and arched gates.

Former Chiraila residents believed the structure to be more than 100 years old.

“The mosque was there when I was born. It was there even when my father was born,” said Hanief, who has a soft voice and a flowing white beard.

“The masons who designed it knew the work of ‘surkhi chuna’ [made from burned ground bricks mixed with lime mortar to use in construction] to make them [structures] resilient, and last long. It was hard work and required special skill,” said Hussain, who works as a daily wage labourer including on building sites.“

Theranos Scammer Elizabeth Holmes sentenced to 11.25 years

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This high profile case represents the best and the worst in corporate America. The integrity and courage of whistle blower heroes Tyler Schultz and Erika Cheung are inspirational and remarkable. These two young whistle-blowers were challenged, intimidated, threatened, and endangered by the powerful villains but they did not cave in.

On the other hand, the start-up Silicon Valley scam of Elizabeth Holmes and her associates are ruthless and unconscionable.

I didn’t follow this case closely but the fact that Holmes was found NOT GUILTY of defrauding patients is despicable. I thought that was her worst crime – her faulty testing could cause havoc in a patient’s life. Instead, Holmes crime was related to defrauding her rich investors.

Excerpt from The Straits Times:

“ SAN JOSE – A California judge sentenced Theranos founder Elizabeth Holmes to 11 years and three months in prison for defrauding investors in her now-defunct blood testing startup that was once valued at US$9 billion (S$12.38 billion).

US District Judge Edward Davila in San Jose, Calif., sentenced Holmes on three counts of investor fraud and one count of conspiracy. A jury convicted Holmes, 38, in January following a trial that spanned three months.

The judge set Holmes’ surrender date for April. Her lawyers are expected to ask the judge to allow her to remain free on bail during her appeal.

Assistant US Attorney Jeff Schenk told the judge before he handed down the sentence that a 15-year sentence would be “making a statement that the ends don’t justify the means.”

But Holmes’ attorney Kevin Downey urged leniency for Holmes at the hearing, saying that unlike someone who committed a “great crime” she was not motivated by greed.

Holmes had asked in court papers for a more lenient sentence of 18 months of home confinement, followed by community service, urging the judge not to make her a “martyr to public passion.”

UPDATE: December 7, 2022

From NPR:

” A federal judge in California sentenced former Theranos executive Ramesh “Sunny” Balwani to nearly 13 years in prison for his role in a multimillion-dollar fraud involving Theranos and its now-disgraced CEO, Elizabeth Holmes, who received an 11-year sentence in a separate trial.

In July, a jury found Balwani guilty on all 12 felony counts of defrauding Theranos investors and the patients that used the company’s unreliable blood tests.

U.S. District Judge Edward Davila’s sentence for Balwani is less than federal prosecutors’ demand for at least 15 years in prison, but far more than Balwani’s attorney’s request for a few months in prison, sentencing memos sent to the court last month show.

In comparison, Holmes was convicted of four wire-fraud related counts and sentenced to a little over 11 years in prison last month.

His attorneys said in court Wednesday, as well as in court documents, that Balwani should be judged differently from Holmes. Balwani invested nearly $5 million of his own money into Theranos and lost it all.”

Elections 2022 November 8, Tuesday

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It appears like status quo will continue.

The local TV News Station reported about 33% of ballots collected as of yesterday. This is a bad sign. I don’t think 63% of our registered voters is going to show up today. Do you?

This has been an awful election season.

Candidates with huge campaign chests prefer to bombard the airwaves and social media rather than participate in debates in the town square.