NO. 26492



IN THE SUPREME COURT OF THE STATE OF HAWAI`I


EDITH M. CARLSMITH, Petitioner


vs.



HONORABLE KAREN M. RADIUS, Judge of the Family
Court of the First Circuit, CYNTHIA CARLSMITH-CRESPI,
ANNALIESE CARLSMITH, TIMOTHY LURIA, Guardian Ad Litem,
and JOSEPH L. KRAHULIK, Respondents

ORIGINAL PROCEEDING
(FC-G NO. 03-1-0350)



ORDER DENYING PETITION FOR WRIT OF
PROHIBITION OR, IN THE ALTERNATIVE, FOR WRIT OF
MANDAMUS, DIRECTED TO THE HONORABLE KAREN M. RADIUS
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)

Upon consideration of Petitioner Edith M. Carlsmith's petition for a writ of prohibition, or in the alternative, for a writ of mandamus directed to Judge Karen M. Radius, the papers in support, and the records and files herein, it appears that:

1.     Petitioner Edith M. Carlsmith seeks review of orders entered in In the Matter of the Guardianship of Edith M. Carlsmith, FC-G No. 03-1-0350, presently pending in the Family Court of the First Circuit.

2.     A writ of mandamus and/or prohibition is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of other means to adequately redress the alleged wrong or obtain the requested action. State v. Hamili, 87 Hawai`i 102, 104, 952 P.2d 390, 392 (1998) (citing Straub Clinic & Hospital v. Kochi, 81 Hawai`i 410, 414, 917 P.2d 1284, 1288 (1996)).

3.     Such writs are not meant to supersede the legal discretionary authority of the lower courts, nor are they meant to serve as legal remedies in lieu of normal appellate procedures. Id.

4.     Where a trial judge has discretion to act, mandamus clearly will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject that is properly before the court under circumstances in which it has a legal duty to act. Id.

5.     Petitioner Edith M. Carlsmith fails to demonstrate that she is entitled to a writ of prohibition or mandamus.

Therefore,

IT IS HEREBY ORDERED that the petition for a writ of prohibition and/or mandamus is denied without prejudice to Petitioner Edith M. Carlsmith presenting any arguments in the pending family court case and without prejudice to any eventual remedy Petitioner may have by way of appeal.

DATED: Honolulu, Hawai`i, August 27, 2004.

Michael Jay Green and
Howard Glickstein for
petitioner on the writ