In re Judiciary’s Response to COVID-19 Outbreak

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The Supreme Court extended an August 27, 2020 order for first circuit criminal matters, which was extended pursuant to a September 11, 2020 order, until November 16, 2020, determining that changing conditions wrought by the COVID-19 pandemic required flexibility and vigilance regarding the need to protect the health and safety of court users and Judiciary personnel.

In July 2020, there was a surge of COVID-19 cases in Hawaii, included cases in community correctional centers and facilities, particularly at the O'ahu Community Correctional Center. As a result, the time requirements for preliminary hearings under Haw. R. Pen. P. (HRPP) 5(c)(3) was impacted. In August 2020, the Supreme Court entered an order providing that the first circuit may temporarily extend the time requirements for preliminary hearings no longer than reasonably necessary to protect public health and safety. In September, the order was extended. Because the transports of custody defendants from all O'ahu correctional facilities remained suspended and the exponential number of citations issued for Haw. Rev. Stat. ch. 127A violations remained high, the Supreme Court extended the August order for first circuit criminal matters until November 16, 2020.

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Electronically Filed Supreme Court SCMF-20-0000152 05-OCT-2020 12:03 PM SCMF-20-0000152 IN THE SUPREME COURT OF THE STATE OF HAWAI I 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 HAWAI I 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. 1 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 2 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 Hawai i 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. 3 Accordingly, pursuant to article VI, section 7 of the Hawai i 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, Hawai i, October 5, 2020. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Lisa M. Ginoza 4

Primary Holding

The Supreme Court extended an August 27, 2020 order for first circuit criminal matters, which was extended pursuant to a September 11, 2020 order, until November 16, 2020, concluding that changing conditions wrought by the COVID-19 pandemic required flexibility and vigilance regarding the need to protect the health and safety of court users and Judiciary personnel.

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