NO. 29414
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
ANDY MARTIN,
Petitioner,
vs.
LINDA LINGLE, Governor, State of
Hawai‘i;
DR. CHIYOME FUKINO, in her capacity as Director
of the Department of Health, State of Hawai‘i; and
THE HONORABLE BERT I. AYABE, JUDGE OF THE CIRCUIT COURT
OF THE FIRST CIRCUIT, STATE OF HAWAI‘I, Respondents.
ORIGINAL PROCEEDING
(CIV.
NO. 08-1-2147)
ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon consideration of the petition for a writ of mandamus filed by
petitioner Andy Martin and the papers in support, it
appears that the issuance by the Department of Health of a certified
copy of a vital statistics record to petitioner was not
mandatory, but involved the exercise of discretion and judgment. See HRS § 338-18(b)
(Supp. 2007) (The department
shall disclose vital statistics records to those persons enumerated in
HRS § 338-18(b)(1) through (13); otherwise, "[t]he
department shall not permit inspection of public health statistics
records, or issue a certified copy of any such record or part
thereof, unless it is satisfied that the applicant has a direct and
tangible interest in the record."). Therefore, petitioner is not
entitled to mandamus relief against the respondent public officials. See In Re Disciplinary Bd. of Hawaii
Supreme Court, 91 Hawai‘i 363, 368, 984 P.2d 688, 693 (1999)
(Mandamus relief is
available to compel an official to perform a duty allegedly owed to an
individual
only if the individual's claim is clear and certain, the official's
duty is
ministerial and so plainly prescribed as to be free from doubt, and no
other
remedy is available.); Salling
v. Moon, 76 Hawai‘i 273, 274 n. 3, 874 P.2d 1098,
1099 n.3 (1994) ("A duty is ministerial where the law prescribes and
defines the
duty to be performed with such precision and certainty as to leave
nothing to the
exercise of discretion and judgment.").
It further appears
that the Hawai‘i Rules of Civil Procedure and the Rules of the
Circuit Courts of the State of Hawai‘i do not provide petitioner with a
clear and
indisputable right to a telephonic hearing or an expedited hearing in
Civil No.
08-1-2147. Scheduling a hearing for November 7, 2008 and requiring
petitioner to
personally appear at the hearing was within the discretion of the
respondent judge
and was not a flagrant and manifest abuse of discretion. Therefore,
petitioner is
not entitled to mandamus relief against the respondent judge. See Kema v. Gaddis,
91 Hawai‘i 200, 204-05, 982 P.2d 334, 338-39 (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, October 22, 2008.