In re: Individuals in Custody of the State of Hawai'i

Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
12-OCT-2021
08:57 AM
Dkt. 45 ORD

SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
________________________________________________________________

IN THE MATTER OF INDIVIDUALS IN CUSTODY
OF THE STATE OF HAWAIʻI
________________________________________________________________
ORIGINAL PROCEEDING
ORDER GRANTING IN PART AND DENYING IN PART
PETITION FOR EXTRAORDINARY WRIT PURSUANT TO HRS §§ 602-4,
602-5(5), AND 602-5(6) AND/OR FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ. 1)

The COVID-19 pandemic has created an unprecedented

public health emergency of global impact. Throughout the

pandemic, the Office of the Public Defender (“OPD”) has

initiated three original proceedings seeking relief related to

certain categories of inmates as well as pandemic-related

conditions at Hawai‘i’s community correctional centers and

facilities. This order disposes of the third proceeding filed

on August 27, 2021.

1 Chief Justice Recktenwald and Justices Nakayama, McKenna, and Eddins
join in Part One, with Justice McKenna also concurring and dissenting
separately, in which Justice Wilson joins as to Sections I and III.A.,
Justice Wilson concurring and dissenting separately, and Justice Eddins also
concurring separately. Chief Justice Recktenwald and Justices Nakayama,
McKenna, and Wilson join in Part Two, with Justice Eddins dissenting.
 PART ONE
(By: Recktenwald, C.J., Nakayama, McKenna, and Eddins, JJ.,
with McKenna, J., also concurring in part and dissenting
in part separately, in which Wilson, J., joins as to Sections I
and III.A., Wilson, J., concurring and dissenting separately,
and Eddins, J., also concurring separately)

In 2020, on two separate occasions, OPD filed

petitions for an extraordinary writ seeking, among other things,

the expedited release of certain categories of inmates at

Hawaiʻi’s community correctional centers and facilities. When

the first petitions were filed in late March 2020, 2 the potential

catastrophic impact of the pandemic on our State, the community,

our citizens, and our correctional centers and facilities was

not determinable. There were lockdowns across the nation and

the death toll was rising. When the second petition was filed

in early August 2020, the Oʻahu Community Correctional Center, in

particular, was experiencing a concerning surge in COVID-19

positive cases.

At the time these petitions were filed, the pandemic’s

trajectory remained uncertain and vaccinations were not

available. Given the virulent transmission of the virus within

close quarters and the likelihood that an outbreak and spread of

the virus in Hawaiʻi’s community correctional centers and

facilities had the potential to tax the capacities of the health

2 The first petition was filed on March 24, 2020 in SCPW-XX-XXXXXXX. A
second petition was filed on March 26, 2020 in SCPW-XX-XXXXXXX. The two
proceedings were thereafter consolidated.

2
care systems and the limited resources of the community health

providers on each of the islands as the State continued to

navigate this unprecedented pandemic, this court provided

multiple forms of relief, including, among other things, setting

forth procedures and processes for consideration by the courts

for the release of inmates and pretrial detainees who met

certain criteria, which included an opportunity for objection to

the release. With respect to the first petition, this court

also appointed a Special Master to work with the parties in a

collaborative and expeditious manner to address the issues and

facilitate a resolution, while protecting public health and

public safety.

Since these petitions were filed, three different

vaccines have been made available to the public including every

inmate and staff at Hawaiʻi’s community correctional centers and

facilities. Inmates have been prioritized for vaccination and

are encouraged to get vaccinated.

In addition, a class of inmates filed a federal court

lawsuit (Chatman v. et al. v. Otani et al., Civil No. 21-00268-

JAO-KJM (D. Haw.)) alleging that the Department of Public Safety

(“DPS”) mishandled the pandemic and failed to implement its

Pandemic Response Plan (“PRP”) in violation of their

constitutional rights. On September 2, 2021, the parties

reached a settlement, which includes the establishment of a

3
five-member panel of experts to provide advice and

recommendations to assist DPS in its pandemic response. 3

On August 27, 2021, shortly before the settlement was

executed in Chatman v. Otani, OPD filed another petition for an

extraordinary writ pursuant to HRS §§ 602-4, 602-5(5), and 602-

5(6) and/or for writ of mandamus. The petition seeks the

following relief:

1) Order the Circuit, Family and District courts
that when adjudicating motions for release:
(a) release shall be presumed unless the court
finds that the release of the individual would
pose a significant risk to the safety of the
individual or the public; (b) design capacity
(as opposed to operational capacity) of the
correctional facility shall be taken into
consideration; (c) the health risk posed by the
COVID-19 pandemic should be taken into

3 As part of the settlement, DPS agreed, among other conditions, to:

• screen and quarantine people newly admitted to
a correctional facility as provided in its PRP,
and subject to any conditions, modifications
and/or exceptions set forth therein;

• immediately isolate those who exhibit COVID-19
symptoms and those who test positive for COVID-
19 infection as medically appropriate and in
accordance with the PRP, taking into account
available space, structural limitations, and
staffing and other resources within each
facility;

• provide reasonably sufficient cleaning supplies
to allow all inmates in its custody in
correctional facilities to wipe down phones
before they use them;

• provide a minimum of two cloth or other
appropriate face masks per person, as provided
in the PRP; and

• require staff to wear appropriate face masks
where necessary within the correctional
facilities as provided for in the PRP.

4
consideration. Motions for release based on
the foregoing are for the following categories
of incarcerated persons:

a. Individuals serving a sentence (not to
exceed eighteen months) as a condition of
felony deferral or probation, except for:
(i) individuals serving a term of
imprisonment for a sexual assault
conviction or an attempted sexual assault
conviction; or (ii) individuals serving a
term of imprisonment for any felony
offense set forth in HRS Chapter 707,
burglary in the first degree (HRS §§ 708-
810, 708-811), robbery in the first or
second degree (HRS §§ 708-840, 708-841),
abuse of family or household members (HRS
§§ 709-906(7) and (8), and unauthorized
entry in a dwelling in the first degree
and in the second degree as a class C
felony (HRS §§ 708-812.55, 708-812.6(1)
and (2), including attempt to commit
those specific offenses (HRS §§ 705-500,
705- 501).

b. Individuals serving sentences for
misdemeanor or petty misdemeanor
convictions, except those convicted of
abuse of family or household members (HRS
§ 709-906), violation of a temporary
restraining order (HRS § 586-4),
violation of an order for protection (HRS
§ 586-11), or violation of a restraining
order or injunction (HRS § 604-10.5).

c. All pretrial detainees charged with a
petty misdemeanor or a misdemeanor
offense, except those charged with abuse
of family or household members (HRS §
709-906), violation of a temporary
restraining order (HRS § 586-4),
violation of an order for protection (HRS
§ 586-11), or violation of a restraining
order or injunction (HRS § 604-10.5).

d. All pretrial detainees charged with a
felony, except those charged with a
sexual assault or an attempted sexual
assault, any felony offense set forth in
HRS Chapter 707, burglary in the first
degree (HRS §§ 708-810, 708-811), robbery
in the first or second degree (HRS §§
708-840, 708-841), abuse of family or
household members (HRS §§ 709-906(7) and
(8), and unauthorized entry in a dwelling
in the first degree and in the second
degree as a class C felony (HRS §§ 708-

5
 812.55, 708-812.6(1), including attempt
to commit those specific offenses (HRS §§
705-500, 705-501).

2) Order the Circuit, Family and District courts,
DPS, and the HPA to reduce the population of
Hawai‘i’s correctional facilities to allow for
the social separation and other measures
recommended by the CDC to prevent the spread of
COVID-19 by taking immediate steps to reduce
the population those facilities to their design
capacity and/or Infectious Disease Emergency
Capacity as recommended by the Hawaiʻi
Correctional System Oversight Commission.

3) Appoint a public health expert to enter into
all of Hawaiʻi correctional facilities and
review protocols, the ability to social
distance and make recommendations.

4) Order testing for COVID-19 for all incarcerated
persons and staff at Hawaiʻi correctional
facilities and to notify all parties of any
positive or presumptive-positive test results
for any incarcerated person. The information
released to the parties should include the
individual’s name, date of test and date of
test result.

5) Order the Circuit, Family and District courts
to suspend the custodial portions of such
sentence until the conclusion of the COVID-19
pandemic or until deemed satisfied for
individuals serving intermittent sentences.

6) Order that the practice of no cash bail,
including the release of individuals on their
own recognizance, on signature bonds, or on
supervised release, should be regularly
employed, and pretrial detainees who are not a
risk to public safety or a flight risk should
not be held simply because they do not have the
means to post cash bail.

7) Order the HPA to expeditiously address requests
for early parole consideration, including
conducting hearings using remote technology.
The HPA should also consider release of
incarcerated persons who are most vulnerable to
the virus, which includes individuals who are
65 years old and older, have underlying health
conditions, who are pregnant, and those
individuals being held on technical parole
violations (i.e. curfew violations, failure to
report as directed, etc.) or who have been
designated as having “minimum” or “community”

6
 security classifications and are near the
maximum term of their sentences. The HPA shall
prepare and provide periodic progress reports
to the parties of their efforts and progress in
the aforementioned areas. The reports should
include a list of the names of individuals who
have been granted release, the names of the
individuals who are under consideration for
release, and the names of the individuals who
were considered for release but for whom
release was denied.

8) Order DPS to adhere to the CDC’s Interim
Guidance on Management of Coronavirus Disease
2019 (COVID-19) in Correctional and Detention
Facilities in all Hawaiʻi correctional
facilities.

9) Order DPS to adhere to its Pandemic Response
Plan – COVID-19 (May 28, 2021 rev.)

10) Order DPS to comply with the requirements of
HRS § 353-6.2 and conduct periodic reviews to
determine whether pretrial detainees should
remain in custody or whether new information or
a change in circumstances warrants
reconsideration of a detainee’s pretrial
release or supervision.

Answers to the petition were filed by respondents

(1) Max N. Otani, DPS Director and Edmund (Fred) K.B. Hyun,

Chairperson of the Hawai‘i Paroling Authority, (2) Steven S. Alm,

Prosecuting Attorney, City and County of Honolulu,

(3) Andrew H. Martin, Prosecuting Attorney, County of Maui,

(4) Kelden B.A. Waltjen, Prosecuting Attorney, County of Hawaiʻi,

and (5) Justin F. Kollar, Prosecuting Attorney, County of Kauaʻi.

A hearing was held before this court on September 22,

2021.

Based upon consideration of the petition, the

respective answers, and the arguments presented at the September

7
22, 2021 hearing, the record is insufficient to warrant the

extraordinary relief requested except as it relates to DPS’s

compliance with the requirements of HRS § 353-6.2. 4

Unlike when OPD filed its August 2020 petition, the

total number of active positive COVID-19 cases among inmates in

all Hawaiʻi community correctional centers and facilities as of

October 8, 2021 is 34. Vaccines are now widely available to all

inmates, and it has been reported that statewide, as of

September 14, 2021, 66% of inmates are fully vaccinated.

Additionally, as this court has stated in the prior proceedings,

OPD or defense counsel are not precluded from filing individual

motions seeking the release of any inmate or pretrial detainee,

and the State continues to have the option of filing individual

4 HRS § 353-6.2 provides as follows:
Community correctional centers; periodic reviews of
pretrial detainees.
(a) The relevant community correctional centers, on
a periodic basis but no less frequently than every
three months, shall conduct reviews of pretrial
detainees to reassess whether a detainee should
remain in custody or whether new information or a
change in circumstances warrants reconsideration of a
detainee’s pretrial release or supervision.

(b) For each review conducted pursuant to
subsection (a), the relevant community correctional
center shall transmit its findings and
recommendations by correspondence or electronically
to the appropriate court, prosecuting attorney, and
defense counsel.

(c) If a motion to modify bail is filed pursuant to
a recommendation made pursuant to subsection (b), a
hearing shall be scheduled at which the court shall
consider the motion.

8
motions seeking to modify the release status of any defendant.

OPD has not shown that they have been precluded from using this

procedural mechanism, or substantiate why this procedure is an

inadequate remedy. Moreover, the trial courts have full

discretion whether to set bail and to impose conditions of

release.5 Further, the relief that is being requested regarding

adherence to public health standards and compliance with the PRP

within the correctional centers and facilities are currently

being reviewed by the five-member panel established under the

settlement agreement in Chatman v. Otani. And, finally, issues

regarding inmate populations may be addressed through

alternative means, including by the Hawai‘i Correctional Systems

Oversight Commission.

As to OPD’s request for relief regarding compliance

with HRS § 353-6.2, there is dispute as to whether DPS has

conducted the periodic reviews and provided the required

information. At the hearing, DPS acknowledged that this action

is a “ministerial” duty and indicated that it “intends” and

“plans” to conduct the review and transmit the information as

statutorily required.

Accordingly,

5 This court notes Hawai‘i’s constitutional protection prohibiting the
imposition of “punishment” pending trial as well as the setting of excessive
bail. See Haw. Const. art. I, § 12. These constitutional principles should
serve as guidance in determining whether to impose bail, particularly in
light of the impact of the pandemic.

9
 It is ordered that the petition is granted in part and

denied in part as follows:

1. DPS shall comply with the requirements of HRS

§ 353-6.2, including timely transmitting its findings and

recommendations by correspondence or electronically to the

appropriate court, prosecuting attorney, and defense counsel.

2. In all other respects, the petition is denied.

This original proceeding is concluded.

DATED: Honolulu, Hawaiʻi, October 12, 2021.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Todd W. Eddins

PART TWO
(By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
with Eddins, J., dissenting)

I. This Court Has the Authority to Grant Relief Similar to
That Ordered in the Two Prior Original Proceedings.

Justice Eddins’s concurrence questions this court’s

authority to grant additional relief beyond ordering DPS to

comply with HRS § 353-6.2. Although a majority of the court

determined in Part One that OPD has failed to demonstrate

entitlement to such additional relief, we nevertheless take this

opportunity to address this court’s inherent, constitutional and

10
statutory authority to grant extraordinary relief in unique

circumstances. Specifically, we reaffirm this court’s authority

to provide the relief the court granted with respect to the

prior OPD petitions (e.g., the March 2020 and August 2020

petitions).

OPD sought a wide range of relief in the prior

proceedings, some of which was granted, and much of which was

denied without discussion. In separate filings, Justice Wilson

dissented from the court’s denial of those items of relief. The

relief that was granted generally focused on expedited decision

making with regard to whether certain lower-risk inmates in

custody should be released, consistent with protecting public

safety. The premise of that relief was that ordinary mechanisms

for determining individualized requests for release could not

work quickly enough to meet the extraordinary circumstances that

were presented (1) in the very early days of the COVID-19

pandemic in March-April 2020, and (2) when COVID cases

“erupt[ed]” at the Oahu Community Correctional Center (“OCCC”)

in August 2020.6 The court also appointed a Special Master, the

Honorable Daniel R. Foley (ret.), to work with interested

6 Kevin Dayton, COVID-19 Cases Erupt at OCCC – 70 more inmates, 7 ACOs
Test Positive, Civil Beat (Aug. 13, 2020).
https://www.civilbeat.org/2020/08/covid-19-cases-erupt-at-occc-70-more-
inmates-7-acos-test-positive/.

11
parties during the course of the first proceeding. The court’s

April 2020 order provided:

The role of the Special Master is to work with
the parties in a collaborative and expeditious manner
to address the issues raised in the two petitions and
to facilitate a resolution while protecting public
health and public safety. The Special Master may
include, as part of these efforts and discussions,
members of the public health community and other
affected agencies.
Safety of the inmates, staff, and the public are
imperative. The parties shall consider viable
options to keep inmates and the public safe (e.g.,
bracelet monitoring, alternative locations to house
inmates, inmate categories such as age or medical
condition, etc.).

. . .

The Special Master shall convene and conduct
meetings with the parties and any community agency
that the Special Master deems important, in his
discretion, to carrying out his role.

Order of Consolidation and for Appointment of Special

Master, Office of the Public Defender v. Connors, SCPW-20-

0000200 at 3 (April 2, 2020). Special Master Foley

conducted extensive discussions, elicited position

statements from the parties, and filed five detailed

reports with this court documenting those efforts. 7 Thanks

to extraordinary work by the trial courts, and the efforts

of the parties to the proceedings, inmate populations at

correctional centers were “significanty reduced.” See

7 Initial Summary Report and Initial Recommendations of the Special
Master (Apr. 9, 2020); Second Summary Report and Recommendations of the
Special Master (Apr. 23, 2020); Third Summary Report and Recommendations of
the Special Master (Apr. 30, 2020); Fourth Summary Report and Recommendations
of the Special Master (May 15, 2020); and Fifth Summary Report and
Recommendations of the Special Master (May 28, 2020).

12
Fifth Summary Report and Recommendations of the Special

Master (May 28, 2020) at page 3. 8

As set forth below, this court has the authority under

the constitution, the court’s inherent powers, and various

statutes, to provide extraordinary relief when circumstances

warrant. This court has previously stated that such power

should be used sparingly, such as when existing remedies are

inadequate, or would take too long to implement. We reaffirm

those principles now, as well as the court’s determination that

the circumstances that existed in March-April and August 2020,

justified the use of those extraordinary powers. We reject the

suggestion that the court’s authority to provide such relief was

restricted by its rule-making authority. Finally, we note that

courts in other jurisdictions relied on similar powers to

provide relief in the face of the pandemic.

II. This Court Has Both Explicit and Inherent Authority to
Grant Extraordinary Relief in Extraordinary
Circumstances.

Our constitution vests the “judicial power of the

State” in the courts. Haw. Const. art. VI, section 1. “Nowhere

in [the constitution] is the exact nature of the ‘judicial

8 The Fifth Summary Report noted, “The parties and stakeholders have
acted admirably under difficult circumstances in carrying out this Court’s
orders. Differences among them have been great at times, but all have done
their best to work in a collaborative fashion as encouraged by this Court,
despite their differences.” Fifth Summary Report and Recommendations of the
Special Master (May 28, 2020) at 12.

13
power’ defined.” State v. Moriwake, 65 Haw. 47, 55, 647 P.2d

705, 711-12 (1982) (citations omitted). But “speaking

generally, the ‘inherent power of the court is the power to

protect itself; the power to administer justice whether any

previous form of remedy has been granted or not; the power to

promulgate rules for its practice; and the power to provide

process where none exists.’” Id. at 55, 647 P.2d 712 (quoting

In re Bruen, 172 P.1152, 1153 (Wash. 1918)) (emphasis added).

This court has held that the “essentially inherent or implied

powers of the court are by their nature impracticable if not

impossible of all-inclusive enumeration.” 9 Id.

Our legislature has enumerated the inherent powers

conferred on our courts by the constitution in several

provisions of HRS ch. 602.10 These include this court’s power

9 In Moriwake, the court interpreted the trial court’s inherent power
to “administer justice” pursuant to HRS § 603-21.9(6) (1976) — a provision
nearly identical to HRS § 602-5(a)(6) — to include the power to sua sponte
dismiss a manslaughter indictment with prejudice after two mistrials. The
court held that in deciding when to exercise this power, courts must consider
the interest of the public in the proper administration of justice as well as
the fundamental fairness owed to a defendant, “with the added ingredient of
the orderly functioning of the court system.” Moriwake, 65 Haw. at 56, 647
P.2d at 712 (citation omitted).

10 See id. at 55 n.13, 647 P.2d at 712 n.13 (“In HRS § 603-21.9 (1976),
our legislature has undertaken the enumeration of the inherent powers
conferred on our circuit courts by the constitution.”); Farmer v. Admin. Dir.
of Ct., State of Haw., 94 Hawai i 232, 241, 11 P.3d 457, 466 (2000) (“[T]he
inherent power of the supreme court is codified in HRS § 602-5(7) [presently
§ 602-5(a)(6)], which acknowledge[s] this court’s jurisdiction and power
‘[t]o make and award such judgments, decrees, orders and mandates, issue such
executions and other processes, and do such other acts and take such other
steps as may be necessary to carry into full effect the powers which are or
shall be given to it by law or for the promotion of justice in matters
pending before it.’”).

14
“[t]o make or issue any order or writ necessary or appropriate

in aid of its jurisdiction,” HRS § 602-5(a)(5), and “[t]o make

and award such judgments, decrees, orders and mandates, issue

such executions and other processes, and do such other acts and

take such other steps as may be necessary to carry into full

effect the powers which are or shall be given to it by law or

for the promotion of justice in matters pending before it.” HRS

§ 602-5(a)(6). Pursuant to HRS § 602-4, this court also has the

power of “general superintendence of all courts of inferior

jurisdiction to prevent and correct errors and abuses therein

where no other remedy is expressly provided by law.”

In recognizing that the inherent powers vested in our

courts are broad and not susceptible to precise enumeration, the

court has invoked those powers with restraint, in circumstances

where existing remedies were either inadequate or would take too

long to implement. See, e.g., State v. Moniz, 69 Haw. 370, 373,

742 P.2d 373, 376 (1987) (“[A] strong commitment to the

prudential rules shaping the exercise of our jurisdiction has

resulted in a sparing use of this extraordinary power.” (citing

State v. Fields, 67 Haw. 268, 276, 686 P.2d 1379, 1386 (1978)).

Similarly, in Gannett Pac. Corp. v. Richardson, the

court held that “[o]nly where there is urgent reason . . . for

the invocation of this court’s supervisory jurisdiction over the

lower courts, under both HRS §§ 602-4 and 602-5, will this court

15
consider departing from [the doctrine of res judicata].” 59

Haw. 224, 226-27, 580 P.2d 49, 53 (1978). There, the court

noted that “we have deviated from this rule only in rare and

exigent circumstances,” where “allow[ing] the matter to wend its

way through the appellate process would not be in the public

interest and would work upon the public irreparable harm.” Id.

at 227, 580 P.2d at 53 (citing Sapienza v. Hayashi, 57 Haw. 289,

554 P.2d 1131 (1976)).

In Gannett, the court considered a petition for a writ

of prohibition by representatives of the news media who sought

to prohibit the respondent district judge from closing a

preliminary hearing from the public. Id. at 226, 580 P.2d at

52. The court held that exercise of the court’s supervisory

jurisdiction and discretionary power was appropriate because the

case presented a question “of grave import . . . involv[ing] not

only the right of the accused to be tried by an impartial jury,

but . . . also . . . the right of the public to attend and to be

present at judicial proceedings.” Id. at 227, 580 P.2d at 53.

The court noted:

[B]ecause of the relative frequency with which
preliminary hearings are being conducted in the
district courts, thus enhancing the probability of
collisions between established and fundamental
rights, and because it appears to us only too clear
that the district courts are in immediate need of
direction from this court on a procedural and
substantive matter of public importance, we deem it
necessary to entertain the petition for writ of
prohibition.

16
Id. (emphasis added); see also Moniz, 69 Haw. at 374, 742 P.2d

at 376 (holding that “a classic example of when this court

should exercise its supervisory power” is when the lower courts

have differed in their interpretations of a statute).

Similar but even more serious concerns were presented

by the March 2020 and August 2020 petitions that were granted in

part by this court. The premise of the relief granted was that

ordinary mechanisms for determining individualized requests for

release could not work quickly enough to meet the extraordinary

circumstances that were presented (1) in the very early days of

the COVID-19 pandemic in April 2020, and (2) when COVID cases

“erupt[ed]” at OCCC in August 2020. In an effort to prevent

irreparable harms and provide direction to the trial courts, the

court invoked its supervisory jurisdiction and discretionary

power.

Such action, though rare, is far from unprecedented.

In several cases, this court and the ICA have relied on HRS §

602–5(a)(6) [previously HRS § 602–5(7)] to modify trial court

judgments to prevent unfair results. In State v. Arlt, 9 Haw.

App. 263, 277, 833 P.2d 902, 910 (1992), the ICA vacated a

defendant’s conviction as to First Degree Robbery and remanded

to the circuit court with instructions to enter a judgment

convicting and resentencing the defendant for Theft in the

Fourth Degree. The ICA stated that “[s]ince there is no statute

17
or constitutional provision in Hawaii which specifically vests

in the appellate courts the express authority to affirm,

reverse, remand, vacate, or set aside any judgment, decree, or

order of a court brought before them, such authority presumably

derives from [HRS § 602-5(a)(6)].” Id. The ICA thus

interpreted HRS § 602-5(6) to allow an appellate court to modify

a trial court’s judgment of conviction if the interests of

justice would be thereby promoted. Similarly, in Farmer v.

Admin. Dir. of the Court, 94 Hawai‘i 232, 241, 11 P.3d 457, 466

(2000), this court relied on its inherent powers under article

VI, section 1 of the constitution and the statutory

authorization under HRS § 602-5(6) in unanimously holding that

“justice require[d]” that the defendant be given an opportunity

to challenge the lifetime revocation of his driver’s license

after one of the three predicate convictions on which his

revocation was based was set aside, even though the district

court’s rules specifically precluded such a remedy. 11

As noted by the concurrence, this court has not

previously provided relief of the type provided in response to

11 See also Hawaii Pub. Emp. Rels. Bd. v. Hawaii State Tchrs. Ass’n, 55
Haw. 386, 520 P.2d 422 (1974) (reducing the fines imposed for civil contempt
from $190,000 to $100,000 because, pursuant to HRS § 602-5(7) [presently HRS
§ 602-5(a)(6)], “the promotion of justice would be better enhanced.”); CARL
Corp. v. State, Dep’t of Educ., 85 Hawai‘i 431, 460, 946 P.2d 1, 30 (1997)
(recognizing and awarding attorneys’ fees based on court’s inherent powers
“to create a remedy for a wrong even in the absence of specific statutory
remedies, and to prevent unfair results”).

18
the March 2020 and August 2020 petitions. 12 Thankfully, the

court has never before been faced with circumstances such as the

global COVID pandemic. The deadly implications of the pandemic

— particularly in light of the overcrowding in our state’s

correctional facilities — were largely unknown in March 2020.

Moreover, the rapid spread of COVID in our prisons and jails in

August 2020 presented an immediate threat that the virus would

spread from the correctional system into our community, and

strain already overtaxed health resources.

These unknown and potentially catastrophic

circumstances required a coordinated response from the

judiciary. The work done by Special Master Foley on behalf of

this court during the March 2020 petition was invaluable: he

facilitated extensive discussion and problem-solving between the

parties, and collected essential information for use by the

court. That work was done at remarkable speed: his first

report, with detailed submissions from the parties and others

with relevant information, was submitted on April 9, 2020, only

one week after he was appointed. This report, and the four that

followed, provided the basis for prompt, informed, and

12 However, this court’s cases recognize that courts can use their
inherent powers to promote justice even when it implicates authority
typically exercised by the executive branch. For example, Moriwake
recognized that courts can dismiss cases with prejudice after two mistrials
resulting from a hung jury, even though decisions about whether to initiate
prosecutions are generally entrusted to the executive branch. 65 Haw. at 48,
647 P.2d at 707.

19
coordinated decision-making by this court. It simply would not

have been feasible for individual trial courts to replicate that

effort on a case-by-case basis. 13

These extraordinary circumstances justified the use of

the court’s supervisory power to ensure that decisions about the

release of inmates due to COVID concerns were made in a prompt,

coordinated manner that minimized risks to inmates and the

public as a whole, and promoted a fair and efficient judicial

process. This court’s orders established presumptions, provided

discretion to the trial judges where appropriate, and made

system-wide determinations when necessary. The alternative —

waiting for trial court decisions relating to the release of

specific inmates to be appealed to this court — would have taken

too long under the circumstances, with different trial courts

taking different approaches in the meantime. That piecemeal

approach would have increased the risk to our community. 14 As

13 Special Master Foley’s work also provided the background that
enabled this court to act promptly when COVID “erupt[ed]” in our prisons and
jails in August 2020. When the OPD filed its petition on August 12, 2020, it
was reported that there were 23 positive cases in OCCC (16 inmates and 7
staff), with the number rising to over 200 positive cases in just a few days.
The court held a hearing within 48 hours, and issued its first order
addressing the situation that evening.

14 In addition to permitting delay, the narrow interpretation of this
court’s powers advanced by the concurrence would have precluded action even
where no reasonable dispute existed about the need for a prompt, uniform
response. For example, information submitted to this court early in the
March proceedings indicated that some prisoners were still serving
“intermittent” sentences. See Order of Consolidation and for Appointment of
Special Master, Office of the Public Defender v. Connors, SCPW-XX-XXXXXXX at
3 (April 2, 2020). As the court noted then, “[t]hese sentences involve
defendants serving a sentence that requires them to repeatedly come in and go

20
the court has previously recognized, providing relief when delay

will result in harm is a legitimate use of our supervisory

power. See, e.g., Gannett, 59 Haw. at 226-27, 580 P.2d at 53

(1978). And, as set forth below, other state supreme courts and

chief justices came to the same conclusion and, likewise,

identified categories of lower-risk offenders who could be

released, if certain conditions were met, to alleviate

overcrowding and reduce the risk of COVID spreading in

correctional facilities and then into the community. 15

Inasmuch as the “inherent power of the court is . . .

the power to provide process where none exists,” our grants of

partial relief in the previous OPD petitions were appropriate

under HRS §§ 602-4 and 602-5. Moriwake, 65 Haw. at 55, 647 P.2d

at 712. The provision of such remedies was consistent with the

purpose of our constitution and statutes to ensure a fair and

efficient judicial process.

out of correctional centers, which appear to directly contravene the intent
of the current Department of Public Safety Policy of disallowing visits from
those in the community in an effort to prevent the introduction of COVID-19
into correctional centers.” The court directed that the custodial portion of
such sentences be suspended until the conclusion of the pandemic, or deemed
satisfied at the discretion of the sentencing judge. Id. at 5-6.

15 See Comm. for Pub. Couns. Servs. v. Chief Just. of Trial Ct., 142
N.E.3d 525, 543-44 (Mass. 2020); Kentucky Court of Justice Emergency Release
Schedule for Pretrial Defendants and Emergency Pretrial Drug Testing
Standards in Response to COVID-19 Emergency, 2020-27 (April 23, 2020),
https://www.kacdl.net/Files/COVID19%20updates/week%20of%204.20/order%202020-
27.pdf [hereinafter, Kentucky 2020-27 Order].

21
 This analysis is not affected by the fact that this

court has rule-making authority under article VI, section 7 of

the constitution. That provision provides that the “[t]he

supreme court shall have power to promulgate rules and

regulations in all civil and criminal cases for all courts

relating to process, practice, procedure and appeals, which

shall have the force and effect of law.” The court’s orders in

the prior proceedings did not purport to be rules or

regulations: the court did not invoke its rule-making power in

adopting them, and none of the parties ever suggested that the

orders should have been subject to the court’s rule-making

process, or limited by the provisions of HRS § 602-11. 16

Moreover, nothing in the language of article VI, section 7

suggests that it was intended to restrict this court’s inherent

judicial powers, which, as noted above, are incorporated into

the constitution via article VI, section 1 (“the judicial power

of the State shall be vested in one supreme court . . .”), and

codified in HRS § 602-5(a)(6).

16 HRS § 602-11 provides, in part:

The supreme court shall have power to promulgate
rules in all civil and criminal cases for all courts
relating to process, practices, procedure and
appeals, which shall have the force and effect of
law. Such rules shall not abridge, enlarge, or
modify the substantive rights of any litigant, nor
the jurisdiction of any of the courts, nor affect any
statute of limitations.

22
 III. Other Jurisdictions’ Highest Courts Have Also Exercised
Their Supervisory Powers to Provide Relief in
Circumstances Similar to Those Here.

The court’s actions on the March 2020 and August 2020

petitions are supported by the response of other state supreme

courts to the exigent circumstances caused by the pandemic. In

Massachusetts, for example, the supreme judicial court ruled

that in order to reduce the exposure of the virus in

correctional facilities, COVID-19 shall constitute a “changed

circumstance” under Massachusetts law. 17 Comm. for Pub. Couns.

Servs. v. Chief Just. of Trial Ct., 142 N.E.3d 525, 530, aff'd

as modified, 143 N.E.3d 408 (Mass. 2020). To that end, the

court concluded that with certain exclusions, 18 defendants who

were pending trial are “entitled to a rebuttable presumption of

release. The individual shall be ordered released pending trial

on his or her own recognizance, without surety, unless an

unreasonable danger to the community would result, or the

individual presents a very high risk of flight.” Id.

17 The Supreme Judicial Court of Massachusetts cited to two statutes.
Mass. Gen. Laws. Ch. 276 § 57 outlines the factors to take into consideration
for bail, and § 58 sets forth the court’s discretion to consider “changed
circumstances or other factors not previously known” in issuing or revoking
bail. Mass. Gen. Laws. Ch. 276 §§ 57 and 58.

18 The exclusions were defendants who were being held without bail
under Mass. Gen. Laws. § 58(A), or who were charged with an “excluded offense
(i.e., a violent or serious offense enumerated in Appendix A to this
opinion).”

23
 In support of its actions, the Massachusetts court

cited to the broad language in Mass. Gen. Laws. 211 § 3, which in

relevant part, states that “[t]he supreme judicial court shall

have general superintendence of all courts of inferior

jurisdiction to correct and prevent errors therein if no other

remedy is expressly provided[.]” Id. at 538.

According to the Massachusetts Supreme Judicial Court,

for “those individuals who are currently serving sentences of

incarceration, absent a finding of a constitutional violation,

our superintendence power is limited.” Id. at 530. The court

therefore urged the Department of Corrections and the parole

board to work with the special master to expedite hearings, and

“to determine which individuals nearing completion of their

sentences could be released on time served, and to identify

other classes of inmates who might be able to be released by

agreement of the parties, as well as expediting petitions for

compassionate release.” Id.

A significant number of incarcerated individuals were

released as a result of the Massachusetts Supreme Judicial

Court’s decision. In fact, the number of inmates in various

counties dropped, in some cases as high as 27 percent, just one

month after the court’s ruling. 19

19 Scott Souza, Plymouth County Jail Population Down 20 Percent Since
Court Order, Patch (May 20, 2020), https://patch.com/massachusetts/hingham/

24
 In a subsequent case, the Massachusetts Supreme

Judicial Court also expanded the factors a judge is required to

consider when evaluating a defendant’s motion to stay a sentence

pending an appeal. Commonwealth v. Nash, 159 N.E.3d 91, 99

(Mass. 2020). Prior to the pandemic, there were two factors:

(1) the defendant’s likelihood of success on appeal; and (2)

certain security factors. Id. In Christie v. Commonwealth, 142

N.E.3d 55 (Mass. 2020), a third consideration, known as the

COVID-19 factor, was included in the calculus. Id. at 59 (“In

these extraordinary times, a judge deciding whether to grant a

stay should consider not only the risk to others if the

defendant were to be released and reoffend, but also the health

risk to the defendant if the defendant were to remain in

custody.”) (emphasis in original). The court in Nash reinforced

the COVID-19 factor and emphasized the objective “to reduce

temporarily the prison and jail populations, in a safe and

responsible manner, through the judicious use of stays of

executions of sentences pending appeal.” 20 Nash, 159 N.E.3d at

101-02.

plymouth-county-jail-population-down-20-percent-court-order; Jimmy Bentley,
Norfolk County Jail Population Down 27 Percent Since Court Order, Patch (May
20, 2020), https://patch.com/massachusetts/foxborough/norfolk-county-jail-
population-down-27-percent-court-order; Scott Souza, Bristol County Jail
Population Down 11 Percent Since Ruling, Patch (May 20, 2020),
https://patch.com/massachusetts/attleboro/bristol-county-jail-population-
down-11-percent-ruling.

20 The Washington Supreme Court took a similar action as Massachusetts.
There, the court relied on its broad “authority to administer justice and to

25
 Other state supreme courts and chief justices have

used their inherent and supervisory authority to grant relief to

inmates due to the COVID pandemic. In South Carolina, for

example, Chief Justice Donald W. Beatty issued a March 16, 2020,

order requiring that “[a]ny person charged with a non-capital

crime shall be ordered released pending trial on his own

recognizance without surety, unless an unreasonable danger to

the community will result or the accused is an extreme flight

risk.”21 Chief Justice Beatty also required that in bond

hearings, “[i]f a defendant has been in jail as a pre-trial

detainee for the maximum possible sentence, the court shall

convert the bond to a personal recognizance bond and release the

defendant.”22

In Maryland, Chief Judge Mary Ellen Barbera issued an

order on April 14, 2020. Citing to the judiciary’s authority

under the Maryland Constitution 23 and the emergency powers

ensure the safety of court personnel, litigants, and the public” and issued
an order that provided “a uniform, coordinated response from Washington
courts to prevent further outbreak and to maintain consistent and equitable
access to justice[.]” In the Matter of Statewide Response By Washington
State Courts to the COVID-19 Public Health Emergency, Amended Order No.
25700-B-607 (March 20, 2020), http://www.courts.wa.gov/content/publicUpload/
Supreme%20Court%20Orders/Supreme%20Court%20Emergency%20Order%20re%20CV19%2003
1820.pdf. The Washington Supreme Court ordered, inter alia, that COVID-19
may constitute a “material change in circumstances” as a factor for judges to
consider in motions for pre-trial release. Id.

21 Memorandum (March 16, 2020), https://www.sccourts.org/whatsnew/
displayWhatsNew.cfm?indexId=2461.

22 Id.

23 Maryland Const. art. IV, section 18.

26
granted by the Maryland Rules of Practice and Procedure, 24 Chief

Judge Barbera required judges to consider a variety of factors

in determining whether to release adult defendants from pretrial

detention, including, inter alia, whether the defendant suffers

from pre-existing conditions that render the defendant more

vulnerable to COVID-19 or whether the release of the defendant

during the pandemic is in the interest of justice. 25

Furthermore, Chief Judge Barbera also ordered that “judges

should consider the risk that COVID-19 poses to people confined

in correctional facilities when taking into account all

statutory requirements and relevant Maryland Rules in

determining release conditions and the status of defendants

pending sentencing and appeal[.]” 26

Similar to some of this court’s orders, the Kentucky

Supreme Court ordered the emergency administrative release of

any defendant charged with a non-sexual/non-violent misdemeanor

who had not been classified as high risk for new criminal

24 Maryland Rules of Practice and Procedure Rule 16-1001.

25 Administrative Order Guiding the Response of the Trial Courts of
Maryland to the COVID-19 Emergency As It Relates to Those Persons Who Are
Incarcerated Or Imprisoned (April 14, 2020), https://mdcourts.gov/sites/
default/files/admin-orders/20200414guidingresponseoftrialcourts.pdf.

26 Id.

27
activity.27 Those charged with a non-sexual/non-violent Class D

felony were also eligible for release. 28 As a result, according

to Kentucky’s Administrative Office of the Courts, more than

35,000 inmates were released since the start of the pandemic

either from a judge’s order or on administrative release up

through October 3, 2020.29 While the Governor of Kentucky also

ordered additional releases utilizing his executive power under

27 Kentucky 2020-27 Order at 2.
In its 2020-27 Order, the Kentucky Supreme Court did not cite its
statutory or constitutional authority. Justice Eddins’ concurrence refers to
Kentucky’s 2020-45 Amended Order in which the Kentucky Supreme Court
referenced Section 116 of the Kentucky Constitution and its own Supreme Court
Rule 1.010 as authority to issue its order. In Re: Kentucky Court of Justice
Response to COVID-19 Emergency: Amended Release Schedule and Pretrial Drug
Testing Standards, 2020-45 (May 29, 2020), https://kycourts.gov/Courts/
Supreme-Court/Supreme%20Court%20Orders/202045.pdf.
According to Section 116, “The Supreme Court shall have the power to
prescribe rules governing its appellate jurisdiction, rules for appointment
of commissioners and other court personnel, and rules of practice and
procedure for the Court of Justice. The Supreme Court shall, by rule, govern
admission to the bar and the discipline of members of the bar.” Ky. Const.,
section 116.
In Rule 1.010, “The policy-making and administrative authority of the
Court of Justice is vested in the Supreme Court and the Chief Justice. All
fiscal management, personnel actions and policies, development and
distribution of statistical information, and pretrial release services come
with that authority.” Ky. R. Sup. Ct. 1.010.
Both authorities cited by the Kentucky Supreme Court align with this
court’s own constitutional mandates. See Haw. Const. Art. VI, sections 6 and
7. Like Kentucky, our court “shall have power to promulgate rules and
regulations” and the chief justice “shall be the administrative head of the
courts.” Haw. Const. Art. VI, sections 6 and 7.

28 Id.

29 James Mayse, Data Show Most Inmates Released Haven’t Committed New
Offense, Messenger-Inquirer (Oct. 3, 2020), https://www.messenger-
inquirer.com/news/local/data-show-most-inmates-released-havent-committed-new-
offense/article_dce5925b-7ff4-5df1-a40e-975aaffef440.html.

28
the Kentucky Constitution,30 each executive order reduced the

sentences of specific incarcerated individuals based on the

recommendations by the Justice and Public Safety Cabinet. 31 The

Kentucky Supreme Court, however, utilized its supervisory powers

to order the lower courts to follow the broad emergency

administrative release schedule to “further protect the health

and safety of our criminal justice partners--peace officers,

county jails, and pretrial drug testing providers--and to

protect the health and safety of all pretrial defendants and any

defendants housed in county jails[.]” 2020-27 Order at 1.

IV. Conclusion

This court has the authority to grant the relief that

was ordered in the March 2020 and August 2020 petitions,

pursuant to explicit and inherent authority under the

constitution and state statutes. While this court uses that

power with restraint, the circumstances that existed when the

30 According to the Kentucky Constitution, the governor shall have the
power to “commute sentences . . . and he shall file with each application
therefor a statement of the reasons for his decision thereon, which
application and statement shall always be open to public inspection.” Ky.
Const., section 77.

31 Exec. Order No. 2020-699 (Aug 25, 2020), https://governor.ky.gov/
attachments/20200825_Executive-Order_2020-699_Commutations.pdf (reducing the
sentences of 646 identified inmates); Exec. Order No. 2020-293 (April 24,
2020), https://governor.ky.gov/attachments/20200424_Executive-Order_2020-
293_Conditional-Commutation.pdf (reducing the sentences of 352 identified
inmates); Exec. Order No. 2020-267 (April 2, 2020), https://governor.ky.gov/
attachments/20200402_Executive-Order_2020-267_Conditional-Commutation-of-
Sentence.pdf (reducing the sentences of 186 identified inmates).

29
March 2020 and August 2020 petitions were adjudicated justified

its use.

DATED: Honolulu, Hawaiʻi, October 12, 2021.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

30