SCMF-20-0000152 

 

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

 

In the Matter of the Judiciary’s Response 

to the COVID-19 Outbreak 

THIRD 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 inperson 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-20-0000509. 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.

Electronically Filed

Supreme Court

SCMF-20-0000152

27-JAN-2022

09:00 AM

Dkt. 183 ORD
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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. 

Thus, 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 January 28, 2022. 

The rate of positive COVID-19 cases and 

hospitalizations on O‘ahu, and within our community correctional 

centers, continues to fluctuate. In the last month, with the 

emergence of the Omicron variant, Hawai‘i saw a surge in 

statewide positive case numbers and hospitalizations, with 

record numbers of positive cases and rapidly increasing 

hospitalizations being reported. Additionally, with the grand 
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jury in recess and the suspension of the annual initial 

impaneling of a grand jury as set forth under HRS § 612-16(a) 

through early March 2022, the number of preliminary hearings 

increases significantly. 

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 and the 

current trajectory of the pandemic, 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 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 March 25, 

2022, unless otherwise modified or extended. 

 Dated: Honolulu, Hawaiʻi, January 27, 2022. 

 /s/ Mark E. Recktenwald 

 /s/ Paula A. Nakayama 

 /s/ Sabrina S. McKenna 

 /s/ Todd W. Eddins