NO. 29594
IN THE
SUPREME COURT OF THE STATE OF HAWAI‘I
MICHAEL C. TIERNEY, Petitioner,
vs.
THE HONORABLE
RICHARD K. PERKINS, JUDGE OF THE CIRCUIT
COURT OF THE
FIRST CIRCUIT, STATE OF HAWAI‘I, Respondent.
ORIGINAL PROCEEDING
(CR. NO.
08-1-0869)
ORDER
(By: Moon,
C.J., Nakayama, Acoba, and Duffy, JJ., and
Intermediate Court of Appeals Chief Judge Recktenwald,
assigned by reason of vacancy)
Upon consideration of the petition for a writ of mandamus filed by
petitioner Michael C. Tierney and the papers in support,
it appears that the denial of the motion to disqualify the respondent
judge is reviewable on appeal from the judgment
entered in Cr. No. 08-1-0869. Petitioner can appeal from the judgment
pursuant to HRS § 641-11 (Supp. 2008) and
petitioner can seek review of the denial of the motion to disqualify on
appeal from the judgment. Consequently,
petitioner's case is not one in which the question of disqualification
cannot
otherwise be reviewed and immediate review by way of mandamus and/or
prohibition
is not warranted. See
Kema v. Gaddis, 91
Hawai‘i 200, 204, 982 P.2d 334, 338
(1999) (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
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.); Peters v. Jamieson, 48
Haw. 247, 257, 397 P.2d 575, 582 (1964) ("[A] writ of prohibition will
lie to compel a trial
judge to recuse him[ ] or [her]self because of bias or prejudice which
appears from
the record, where . . . the case is one in which the question of
disqualification
cannot otherwise be reviewed."). Disqualification of a first circuit
court judge
is governed by HRS § 601-7 (1993 and Supp. 2008), not 28 U.S.C.
§ 455, and petitioner is not entitled to
mandamus review pursuant to federal law. Therefore,
IT IS HEREBY
ORDERED that the petition for a writ of mandamus is denied without
prejudice to seeking relief by way of
appeal.
DATED: Honolulu,
Hawai‘i, February 2, 2009.