Electronically Filed
Supreme Court
SCMF-XX-XXXXXXX
05-OCT-2020
12:03 PM
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 EXTENSION OF THE TIME REQUIREMENTS UNDER
HAWAIʻI RULES OF PENAL PROCEDURE RULE 5(c)(3)
(By: Recktenwald, C.J., Nakayama, and McKenna, JJ.,
and Chief Judge Ginoza, assigned by reason of vacancy,
with Wilson, J., concurring and dissenting 1)
The COVID-19 pandemic has caused a public health
emergency. In response to the pandemic, 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 low, court
operations resumed in accordance with public health safety
guidance, and to the extent possible with available resources.
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A concurrence and dissent by Wilson, J., is forthcoming.
Criminal proceedings have proceeded in-person and by video
conference in accordance with court rules and as feasible.
In July 2020, there was a surge of COVID-19 cases in
Hawai‘i, with record numbers of positive cases and increased
hospitalizations being reported. There was also a surge of
COVID-19 cases in our community correctional centers and
facilities, particularly at the O‘ahu Community Correctional
Center (“OCCC”). As a result, inmates were being held in
quarantine and the transport of custody defendants was
suspended, thus impacting the time requirements for preliminary
hearings under Hawai‘i Rules of Penal Procedure (“HRPP”) Rule
5(c)(3). Further, in a letter to the court dated August 18,
2020, the Office of the Public Defender requested the temporary
suspension of, inter alia, HRPP Rule 5(c)(3), 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.
Thus, on August 27, 2020, this court entered the
“Order Regarding Temporary Extension of the Time Requirements
Under Hawai‘i Rules of Penal Procedure Rule 5(c)(3),” which
provided that the first circuit may temporarily extend the time
requirements for preliminary hearings no longer than reasonably
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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 the COVID-19 cases continued to remain high, this
court extended the provisions of the August 27, 2020 order
pursuant to the September 11, 2020 “Order Extending Order
Regarding Temporary Extension of the Time Requirements Under
Hawai‘i Rules of Penal Procedure Rule 5(c)(3).” The order
expires on October 16, 2020.
Since the September 11, 2020 order was filed, the rate
of positive COVID-19 cases and hospitalizations on O‘ahu,
including at OCCC, continues to fluctuate, transports of custody
defendants from all O‘ahu correctional facilities remain
suspended, and the exponential number of citations issued for
Hawaiʻi Revised Statutes (“HRS”) ch. 127A violations has been
unparalleled. These changing conditions require flexibility and
vigilance, and the continued need to protect the health and
safety of court users and Judiciary personnel during this
unprecedented time remains paramount. Thus, a further extension
of the August 27, 2020 order for first circuit criminal matters
is necessary.
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Accordingly, pursuant to article VI, section 7 of the
Hawaiʻi Constitution, HRS §§ 601-1.5 and 602-5(a)(6), and
Governor David Y. Ige’s Emergency Proclamations,
IT IS HEREBY ORDERED that the August 27, 2020 “Order
Regarding Temporary Extension of the Time Requirements Under
Hawai‘i Rules of Penal Procedure Rule 5(c)(3)” for first circuit
criminal matters, which was extended pursuant to the September
11, 2020 “Order Extending Order Regarding Temporary Extension of
the Time Requirements Under Hawai‘i Rules of Penal Procedure Rule
5(c)(3),” is further extended until November 16, 2020, unless
otherwise further modified or extended.
Dated: Honolulu, Hawaiʻi, October 5, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Lisa M. Ginoza
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