In re: Judiciary's Response to the COVID-19 Outbreak ( 2021 )

Electronically Filed
Supreme Court
SCMF-XX-XXXXXXX
29-NOV-2021
02:36 PM
Dkt. 163 ORD
SCMF-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
In the Matter of the Judiciary’s Response
to the COVID-19 Outbreak
SECOND EXTENSION OF ORDER REGARDING TEMPORARY SUSPENSION
OF THE TIME REQUIREMENTS UNDER HAWAIʻI RULES OF PENAL PROCEDURE
RULE 5(c)(3)
(THIRD CIRCUIT)
(By: Recktenwald, C.J., Nakayama, McKenna, and Eddins, JJ.,
and Wilson, J., dissenting1)
The COVID-19 pandemic has caused a public health
emergency. In response to the declared state of emergency, the
Judiciary postponed non-urgent court business and limited in-
person proceedings in an effort to ensure the health and safety
of court users and Judiciary personnel, and to minimize the risk
1 See Dissent to Amended Order Re: Felony Defendants (Filed August 18,
2020); Order Re: Petty Misdemeanor, Misdemeanor, and Felony Defendants at
Maui Community Correctional Center, Hawai‘i Community Correctional Center, and
Kaua‘i Community Correctional Center (Filed August 24, 2020); Order Re: Petty
Misdemeanor, Misdemeanor, and Felony Defendants (Filed August 27, 2020); and
Order Denying Petitioner’s “Motion to Compel Compliance with This Court’s
Orders” (Filed September 1, 2020). The Dissent was filed on February 18,
2021, in SCPW-XX-XXXXXXX. See also Dissent Re: Order Regarding Temporary
Extension of the Time Requirements Under Hawai‘i Rules of Penal Procedure Rule
10(a), (b), and (c) (Circuit Court of the Third Circuit), filed on June 1,
2021.
of spreading COVID-19 in the courts. As COVID-19 cases remained
low, court operations resumed in accordance with public health
safety guidance, and to the extent possible with available
resources. Criminal proceedings have proceeded in-person and by
video conference in accordance with court rules and as feasible.
In late May 2021, there was an increase in COVID-19
positive cases being reported at the Hawai‘i Community
Correctional Center (“HCCC”). As a result, HCCC was in lockdown
and the transport of custody defendants was suspended. In early
August 2021, statewide infection and hospitalization rates
surged, with record numbers of positive cases and rapidly
increasing hospitalizations being reported. Additionally, HCCC
remained in lockdown with no transports occurring. It was
therefore necessary to temporarily suspend the time requirements
set forth under HRPP Rule 5(c)(3) 2 for Third Circuit criminal
matters.
2 HRPP Rule 5(c)(3) provides the following time requirements for a
preliminary hearing:
The court shall conduct the preliminary hearing
within 30 days of initial appearance if the defendant
is not in custody; however, if the defendant is held
in custody for a period of more than 2 days after
initial appearance without commencement of a
defendant’s preliminary hearing, the court, on motion
of the defendant, shall release the defendant to
appear on the defendant’s own recognizance, unless
failure of such determination or commencement is
caused by the request, action or condition of the
defendant, or occurred with the defendant's consent,
or is attributable to such compelling fact or
circumstance which would preclude such determination
2
On August 19, 2021, this court entered the “Order
Regarding Temporary Suspension of the Time Requirements Under
Hawai‘i Rules of Penal Procedure Rule 5(c)(3) (Third Circuit),”
which provided that the Third Circuit may temporarily extend the
time requirements for preliminary hearings no longer than
reasonably necessary to protect public health and safety, while
encouraging judges to follow the time requirements under HRPP
Rule 5(c)(3) to the extent possible and to utilize remote
technology as feasible. As pandemic-related restrictions and
conditions remained in place, this court extended the provisions
of the August 19, 2021 order. Currently, the August 19, 2021
order expires on November 30, 2021.
As the pandemic conditions continue to evolve and
impact our community, health and safety precautions continue to
remain in place. It is also understood that HCCC continues to
remain in lockdown. Given the fluidity of these conditions,
flexibility and vigilance in adapting to these extraordinary
circumstances is vital, and the continued need to protect court
users and Judiciary personnel during this unprecedented time
remains paramount. Thus, an extension of the August 19, 2021
order for Third Circuit criminal matters is necessary.
or commencement within the prescribed period, or
unless such compelling fact or circumstance would
render such release to be against the interest of
justice.
3
Accordingly, pursuant to article VI, section 7 of the
Hawaiʻi Constitution and Hawaiʻi Revised Statutes §§ 601-1.5 and
602-5(a)(6), and Governor David Y. Ige’s Emergency
Proclamations,
IT IS HEREBY ORDERED that the August 19, 2021 “Order
Regarding Temporary Suspension of the Time Requirements Under
Hawai‘i Rules of Penal Procedure Rule 5(c)(3) (Third Circuit),”
for Third Circuit criminal matters, is extended until January
28, 2022, unless otherwise modified or extended.
Dated: Honolulu, Hawaiʻi, November 29, 2021.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Todd W. Eddins
4