Hawaii Supreme Court Appointment of Special Master

Electronically Filed
Supreme Court
SCPW-20-0000200
02-APR-2020
10:31 AM
SCPW-20-0000200 and SCPW-20-0000213
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
SCPW-20-0000200
OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
CLARE E. CONNORS, Attorney General of the State of Hawaiʻi;

DONALD S. GUZMAN, Prosecuting Attorney, County of Maui;
MITCHELL D. ROTH, Prosecuting Attorney, County of Hawaiʻi;
JUSTIN F. KOLLAR, Prosecuting Attorney, County of Kauaʻi;
DWIGHT K. NADAMOTO, Acting Prosecuting Attorney, City and County
of Honolulu, Respondents.
----------------------------------------------------------
SCPW-20-0000213
STATE OF HAWAIʻI OFFICE OF THE PUBLIC DEFENDER, Petitioner,
vs.
DAVID Y. IGE, Governor, State of Hawaiʻi; NOLAN P. ESPINDA,

Director, State of Hawaiʻi Department of Public Safety;
EDMUND (FRED) K.B. HYUN, Chairperson, Hawaiʻi Paroling Authority,
Respondents.
ORIGINAL PROCEEDING
ORDER OF CONSOLIDATION AND FOR APPOINTMENT OF SPECIAL MASTER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson JJ.)
On March 23, 2020, the Office of the Public Defender

(“Petitioner”) submitted a letter to this court, which was filed
as a petition for writ of mandamus in SCPW-20-0000200, pursuant
to a March 24, 2020 order. The following were named as
respondents: Clare E. Connors, Attorney General of the State of
Hawaiʻi; Donald S. Guzman, Prosecuting Attorney, County of Maui;
Mitchell D. Roth, Prosecuting Attorney, County of Hawaiʻi; Justin
F. Kollar, Prosecuting Attorney, County of Kauaʻi; and Dwight K.
Nadamoto, Acting Prosecuting Attorney, City and County of
Honolulu.
On March 26, 2020, Petitioner filed a petition for
extraordinary writ in SCPW-20-0000213. The following were named
as respondents: David Y. Ige, Governor, State of Hawai‘i; Nolan
P. Espinda, Director, State of Hawai‘i Department of Public
Safety; and Edmund (Fred) K.B. Hyun, Chairperson, Hawaiʻi
Paroling Authority.1
The petitions seek a reduction of inmates held within
correctional centers and facilities housing Hawaiʻi prisoners to
prevent loss of life and other public health impacts that would
result from the introduction and spread of COVID-19 within those
facilities.
The COVID-19 pandemic has caused a public health
emergency that is impacting Hawaiʻi’s community correctional
centers and facilities. Responding to these petitions requires
a careful consideration of interests, both for public health and
public safety.
1 The respondents in both petitions will collectively be

referred to as “Respondents.”
2
There is a significant interest in reducing inmate
populations to protect those who work at or are incarcerated in
these overcrowded facilities. COVID-19 outbreaks within
overcrowded facilities or facilities in which appropriate
physical distancing is not possible will not only place inmates
at risk of death or serious illness, but will also endanger the
lives and well-being of staff and service providers who work in
the facilities, their families, and members of the community at
large. Also, outbreaks within these facilities will severely
tax the limited resources of community health care providers,
including hospital beds, ventilators, and personal protective
equipment because of virulent spread within close quarters, and
will also require the utilization of additional resources to
provide constitutionally mandated medical care.
This court also recognizes, however, the significant
public safety concerns regarding the release of inmates.
With respect to the petition in SCPW-20-0000200,
Petitioner requests the release of inmates with short term
sentences incarcerated at Hawaiʻi’s community correctional
centers -- (1) inmates serving a sentence (not to exceed one
year or eighteen months) as a condition of felony probation; and
(2) inmates serving district court sentences who were convicted
of a petty misdemeanor or misdemeanor. A specific category of
inmates–-those serving intermittent sentences--was brought to
this court’s attention by the materials submitted in response to
the March 27, 2020 Interim Order in SCPW-20-0000200. These
sentences involve defendants serving a sentence that requires
them to repeatedly come in and go 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.
3
With respect to the petition in SCPW-20-0000213,
Petitioner requests the release of additional categories of
inmates, including pretrial detainees, but also seeks the
release of inmates from prisons housing State prisoners.
Petitioner further seeks, among other relief, the release of
“high risk” inmates (e.g., based on age or medical conditions)
and an order directing district, family, and circuit courts to
vacate all bench warrants and cease the issuance of new bench
warrants for failure to appear.
At this time, this court declines to enter a blanket
order releasing large numbers of inmates. Rather, to address
competing public health and safety concerns and to ensure that
social distancing measures are being or can be effectuated
within the State’s jails and prisons for the safety of the
inmates, the staff, and the public, a collaborative effort
should first be undertaken.
Thus, as suggested by Petitioner and agreed to by
Respondents and the amicus Hawaiʻi Correctional Systems Oversight
Commission, this court appoints a Special Master to assist in
this collaborative effort. With the appointment of a Special
Master and pursuant to the provisions set forth in this order,
this court establishes a process for the expedited but
appropriate consideration of the request to reduce inmate
populations within correctional centers and facilities, while
preserving Respondents’ ability to object to the release of
specific inmates or to suggest alternative measures, some of
which are discussed below.
Accordingly, upon consideration of the submissions and
records in SCPW-20-0000200 and SCPW-20-0000213, and pursuant to
this court’s authority under Hawai‘i Revised Statutes (“HRS”) §§
4
602-5(3) & (6),2 the authority of the circuit, district, and
family courts pursuant to HRS § 706-625,3 Governor David Y. Ige’s
March 16, 2020 Supplemental Emergency Proclamation, and HRS §
601-1.5(a),4
IT IS HEREBY ORDERED that:
1. SCPW-20-0000200 and SCPW-20-0000213 are
consolidated.
2. To the extent there are individuals serving
intermittent sentences, the custodial portion of such
2 HRS § 602-5 provides that this court shall have jurisdiction and
powers, as follows:
. . . .
(3) To exercise original jurisdiction . . . arising

under writs of mandamus directed to public officers to
compel them to fulfill the duties of their offices . . .;
. . . .
(6) To 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.
3 HRS § 706-625 provides, in relevant part:
§ 706-625 Revocation, modification of probation

conditions. (1) The court, on application of . . . the
defendant, or on its own motion, after a hearing, may . . .
reduce or enlarge the conditions of a sentence of
probation, pursuant to the provisions applicable to the
initial setting of the conditions . . . .
4 HRS § 601-1.5(a) provides, in relevant part:
§ 601-1.5 Emergency period; suspension of deadlines.

(a) During an emergency period proclaimed by the governor
under chapter 127A, the chief justice shall be authorized
to order the suspension, tolling, extension, or granting of
relief from deadlines, time schedules, or filing
requirements imposed by otherwise applicable statutes,
rules, or court orders, in civil or criminal cases or
administrative matters, in any judicial circuit affected by
the governor’s proclamation. The chief justice shall
determine the judicial circuits so affected.
5
defendants’ intermittent sentence shall be suspended until the
conclusion of the COVID-19 pandemic or deemed satisfied, at the
discretion of the sentencing judge.
3. This court appoints the Honorable Daniel R. Foley
(ret.) as Special Master to immediately begin assisting the
parties in this consolidated proceeding.
a. Compensation. The court will fix the
Special Master’s compensation.
b. Term of Service. The Special Master’s term
of service will be effective upon the filing of this order of
appointment and will end when his duties are completed or upon
termination by this court, whichever comes first.
c. Diligence. The Special Master shall proceed
with all reasonable diligence and as expeditiously as possible
to perform his duties.
d. Scope of Work. 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.).
e. Meetings/Discussions. 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. The Special Master shall
facilitate meetings and discussions by adhering to social
6
distancing mandates. Meetings and discussions with the Special
Master should be held remotely, by telephone, video
conferencing, or other electronic means. The parties shall
utilize their best efforts to make themselves available upon
reasonable request of the Special Master.
f. Authority. The Special Master shall have
the authority to take appropriate measures to perform his duties
fairly and efficiently, consistent with this order and
understanding the urgency of the issues involved in this matter.
g. Ex Parte Communications. The Special
Master shall serve as a neutral and unbiased Special Master.
The Special Master may engage in ex parte communications for the
purposes of gathering documents and information, and to
facilitate the collaborative effort.
h. Report/Recommendation. The Special Master
may file periodic reports regarding progress in his efforts, but
shall file an initial summary report by April 9, 2020. The
Special Master may also provide periodic recommendations to this
court proposing orders to effectuate the goals of these
consolidated proceedings, even without agreement of all parties,
but shall file initial recommendations for orders by April 9,
2020. In his discretion, the Special Master may file
confidential documents under seal.
i. Other Matters. The Special Master shall
enjoy the same protections from being compelled to give
testimony and from liability for damages as those enjoyed by
judicial officers performing similar functions. The Special
Master will preserve records relating to his work as Special
Master until relieved of this obligation by order of the court.
4. The appointment of the Special Master does not
limit the ability of the parties or others to request, or of the
trial courts to grant, modifications of sentences or bail.
7
This order also does not affect the Department of Public
Safety’s authority under the law to release inmates.
5. This court reserves its authority to take
emergency measures based on changed circumstances.
DATED: Honolulu, Hawai‘i, April 2, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson

Hawaii Supreme Court Appointment of Special Master

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Hawaii Supreme Court Appointment of Special Master

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Electronically Filed

SCPW-20-0000200 and SCPW-20-0000213

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

OFFICE OF THE PUBLIC DEFENDER, Petitioner,

CLARE E. CONNORS, Attorney General of the State of Hawaiʻi;

STATE OF HAWAIʻI OFFICE OF THE PUBLIC DEFENDER, Petitioner,

DAVID Y. IGE, Governor, State of Hawaiʻi; NOLAN P. ESPINDA,

On March 23, 2020, the Office of the Public Defender

1 The respondents in both petitions will collectively be

(3) To exercise original jurisdiction . . . arising

(6) To make and award such judgments, decrees, orders

3 HRS § 706-625 provides, in relevant part:

§ 706-625 Revocation, modification of probation

4 HRS § 601-1.5(a) provides, in relevant part:

§ 601-1.5 Emergency period; suspension of deadlines.

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