                                                        Electronically Filed
                                                        Supreme Court
                                                        SCPW-XX-XXXXXXX
                                                        26-AUG-2020
                                                        09:18 AM




                           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
          MOTION FOR CLARIFICATION AND/OR RECONSIDERATION
   (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ.,
      and Chief Judge Ginoza, assigned by reason of vacancy)

           On August 19, 2020, Nolan P. Espinda, Director of the

Department of Public Safety, State of Hawaiʻi (“DPS”), filed a

motion (“Motion”) seeking clarification and/or reconsideration

of the following orders:

     (1)   Amended Order Re: Petty Misdemeanor and Misdemeanor
           Defendants, filed on August 17, 2020 (“Misdemeanor
           Order”); and

     (2)   Amended Order Re: Felony Defendants, filed on August
           18, 2020 (“Felony Order”).

     By order entered on August 20, 2020, this court directed

responses to the Motion.
          Upon consideration of the Motion, the responses or

opposition filed by the Office of the Public Defender (“OPD”),

Dwight Nadamoto, Prosecuting Attorney for the City and County of

Honolulu (“Prosecuting Attorney Nadamoto”), the State of Hawai‘i,

Department of Health (“DOH”), and Mitchell Roth, Prosecuting

Attorney for the County of Hawai‘i, and the record herein,

          IT IS HEREBY ORDERED that the Motion is granted in

part and denied in part as follows:

          1.   As to the request for clarification of whether

district court orders transferring inmates to the custody of DOH

for HRS § 704-404 fitness examinations remain valid, the request

is denied in that the Misdemeanor Order did not affect the

validity of district court orders transferring such inmates to

the custody of DOH.

          2.   As to the request for clarification of the term

“[a]dditional inmates” as provided under Paragraph 1.b. of the

Misdemeanor Order, the request is denied in that the Misdemeanor

Order governs inmates that were in the O‘ahu Community

Correctional Center at the time the Misdemeanor Order was filed

and does not apply to newly arrested individuals or individuals

arrested for new offenses.

          3.   As to the request for reconsideration that

individuals arrested for violating any COVID-19 quarantine

proclamations or orders are not required to be released, the

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request is denied but subsequent arrestees may be addressed by a

future order.

          4.    As to the request for reconsideration of

Paragraphs 1-3 of the Felony Order to exclude from release those

defendants charged with Class A felony offenses, the request is

denied in that the release of an “eligible inmate” as defined in

the Felony Order was subject to the process for court review set

forth in the Felony Order.

          5.    As to the request for reconsideration of

Paragraphs 1 and 2 of the Misdemeanor Order and Paragraph 3 of

the Felony Order regarding inmates who re-offend after release

or violate any condition of the orders, the request is denied

but may be addressed in a future order.

          6.    As to the request for clarification of whether an

inmate is required to be re-tested after receiving a positive

COVID-19 test result, the request is granted such that an inmate

may be released without a re-test so long as the inmate is

determined to no longer be infectious pursuant to the guidelines

of the Centers for Disease Control and Prevention.

          IT IS HEREBY FURTHER ORDERED that with respect to the

OPD’s request in its response, identified as a “Motion to Compel

Compliance with this Court’s Orders”, no later than Thursday,

August 27, 2020, at 4:30 p.m., a response shall be filed by DPS




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and Prosecuting Attorney Nadamoto.   The remaining respondents

may file a response within the same time.

          DATED: Honolulu, Hawai‘i, August 26, 2020.

                                     /s/ Mark E. Recktenwald

                                     /s/ Paula A. Nakayama

                                     /s/ Sabrina S. McKenna

                                     /s/ Michael D. Wilson

                                     /s/ Lisa M. Ginoza




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