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

Electronically Filed
Supreme Court
SCMF-XX-XXXXXXX
29-NOV-2021
02:34 PM
Dkt. 161 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)
(FIRST 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
of spreading COVID-19 in the courts. As COVID-19 cases remained
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.
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 mid-July 2020, there was a surge of COVID-19 cases
in Hawai‘i, and particularly within our community correctional
centers and facilities, including at the O‘ahu Community
Correctional Center (“OCCC”), where inmates were being held in
quarantine and the transport to court of custody defendants was
suspended. At the time, in a letter to the court, the Office of
the Public Defender requested the temporary suspension of, inter
alia, Hawai‘i Rules of Penal Procedure Rule 5(c)(3), 2 noting that
defendants released from OCCC on bail or otherwise may need to
quarantine and comply with isolation requirements, and that
allowing the courts to continue matters for non-custody
defendants would assist in those endeavors.
On August 27, 2020, this court entered an order
temporarily suspending the time requirements set forth under
HRPP Rule 5(c)(3) for First Circuit criminal matters. The order
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
or commencement within the prescribed period, or
unless such compelling fact or circumstance would
render such release to be against the interest of
justice.
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was extended as conditions required. The order expired on May
31, 2021, when the statewide positivity rate and
hospitalizations had stabilized, and there was reported to be no
active COVID-19 cases at OCCC.
Since then, the rate of positive COVID-19 cases and
hospitalizations on O‘ahu, and within our community correctional
facilities, have continued to fluctuate. In early August 2021,
statewide infection and hospitalization rates surged, with
record numbers of positive cases and rapidly increasing
hospitalizations being reported. It was therefore necessary to
temporarily suspend the time requirements set forth under HRPP
Rule 5(c)(3) for First Circuit criminal matters.
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) (First Circuit),”
which provided that the First 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. 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
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remains paramount. Thus, an extension of the August 19, 2021
order for First Circuit criminal matters is necessary.
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) (First Circuit)”
for First 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
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