NO. 28860
IN THE
SUPREME COURT OF THE STATE OF HAWAI‘I
ANDREA
BROWER, Petitioner,
vs.
THE HONORABLE
JOSEPH E. CARDOZA, JUDGE OF THE CIRCUIT COURT
OF THE SECOND
CIRCUIT, STATE OF HAWAI‘I, Respondent.
THE SIERRA
CLUB, a California non-profit corporation
registered to
do business in the State of Hawai‘i;
MAUI
TOMORROW, INC., a Hawaiian non-profit corporation;
KAHULUI
HARBOR COALITION, an unincorporated association;
THE
DEPARTMENT OF TRANSPORTATION OF THE STATE OF HAWAI‘I;
BARRY
FUKUNAGA, in his capacity as Director of the
Department of
Transportation of the State of Hawai‘i;
MICHAEL FORMBY, in his capacity as
the Director of
Harbors
of the Department of Transportation of the State
of Hawai‘i;
and HAWAII SUPERFERRY, INC., Respondents,
Real Parties
in Interest.
ORIGINAL PROCEEDING
(CIV. NO.
05-1-0114)
ORDER
(By: Moon,
C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of petitioner Andrea Brower's petition for a
writ of mandamus and the papers in support, it appears that (1) the
setting of the December 14, 2007 hearing date on petitioner's motion to
intervene in Civil No. 05-1-0114 was within the discretion of the
respondent judge and was not a flagrant and manifest abuse of
discretion, and (2) petitioner's
challenges to Civil No. 05-1-0114 may be raised in the circuit court if
petitioner is granted intervention. Therefore, petitioner is not
entitled to mandamus
relief. See Kema v. Gaddis, 91 Hawai‘i
200, 204, 982 P.2d 334, 338 (1999) (A writ of mandamus is an
extraordinary remedy that will not issue unless the
petitioner demonstrates a clear and indisputable right to relief and a
lack of alternative means to redress adequately the alleged wrong or
obtain the requested
action. Such writs are not intended to supersede the legal
discretionary authority of the lower courts, nor are they intended to
serve as legal remedies in lieu of
normal appellate procedures. Where a court has discretion to act,
mandamus 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 properly before the court under circumstances in
which it has a legal duty to act.). Accordingly,
IT IS HEREBY
ORDERED that the petition for a writ of mandamus is denied.
DATED: Honolulu,
Hawai‘i, December 7, 2007.