State v. Nilsawit. ( 2016 )

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Electronically Filed
Supreme Court
SCWC-15-0000372
10-NOV-2016
03:08 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
SIRIPORN NILSAWIT,
Respondent/Defendant-Appellee,
and
HAWAII NEWS NOW,
Petitioner/Applicant-Appellant.
SCWC-15-0000372
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000372; CASE NO. 1DCW-14-0001187)
NOVEMBER 10, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
The issue we resolve in this case is the manner in
which a district court’s decision regarding a request for
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extended coverage can be appealed. We hold that where the
request for extended coverage originates from a member of the
media, review of a district court’s decision regarding that
request is limited to the procedure set forth in the Rules of
the Supreme Court of the State of Hawaii (RSCH) Rule 5.1(f)(8).
Relatedly, there is also no independent statutory authority that
would allow the Intermediate Court of Appeals (ICA) to review
the district court’s decision.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. District Court Proceedings
On April 29, 2014, Hawaii News Now (HNN) submitted an
application for extended coverage1 to the District Court of the
First Circuit (district court) for the criminal case, State v.
Nilsawit, No. 1DCW–14–0001187 (Application for Extended
Coverage). The district court granted HNN’s Application for
Extended Coverage on the same day.2 Among the circumstances
surrounding the criminal case was the controversy regarding the
Honolulu Police Department’s then practice of allowing
undercover police officers to engage in sexual conduct with
1
“‘Extended coverage’ means any recording or broadcasting of
proceedings through the use of television, radio, photographic, or recording
equipment by the media or on behalf of educational institutions.” RSCH Rule
5.1(c)(2) (2014).
2
The Honorable Russel S. Nagata presided.
2
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persons selling sexual services during sting operations. On May
16, 2014, the State submitted its objection to HNN’s Application
for Extended Coverage (First Objection), which sought to
prohibit HNN from televising or publishing a picture of the face
or likeness of Officer Paul Goo, the officer involved in the
events that culminated in the arrest of Siriporn Nilsawit. HNN
thereafter submitted a Renewed Application for Extended Coverage
(Renewed Application) on October 20, 2014. HNN requested that
the district court deny any objection from a party in the
criminal case and affirm the previously issued order that
allowed HNN the right to full and complete coverage of the
criminal proceeding, including the filming, televising, and
photographing of Officer Goo and Nilsawit.
Nilsawit filed a Reply to the Renewed Application,
which sought to preclude coverage of Nilsawit’s face.
Nilsawit’s Reply did not object to HNN’s request to televise and
publish Officer Goo’s face. The State filed its Objection to
the Renewed Application (Second Objection), which expanded upon
the First Objection and requested that the faces of Officers
Goo, Caesar Lazaro, Ilso Pratt, Herbert Soria, and Zachary
Plevel be excluded from HNN’s coverage. HNN submitted its Reply
in Support of the Renewed Application, contending that neither
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the State and Nilsawit provided no evidence in support of their
objections to HNN’s Renewed Application.
A hearing on HNN’s Renewed Application took place on
November 14, 2014, and on that day, the district court issued
its Findings of Fact and Conclusions of Law for Hawaii News
Now’s Application for Extended Coverage and Order (FOF/COL).
The court cited RSCH Rule 5.1(f)(3) and (5),3 which enumerates
3
RSCH Rule 5.1(f)(3) provides the following:
(3) A judge shall grant requests for extended coverage
or extended audio coverage of a proceeding unless, by a
preponderance of the evidence, good cause is found to
prohibit such coverage. In situations where the judge has
found good cause to prohibit extended coverage or extended
audio coverage, the judge may permit extended coverage or
extended audio coverage of only a portion or portions of
the proceeding.
RSCH Rule 5.1(f)(3) (2014).
RSCH Rule 5.1(f)(5) states as follows:
(5) A presumption of good cause shall exist in the following
circumstances:
(i) the proceeding is for the purpose of determining
the admissibility of evidence; or
(ii) testimony regarding trade secrets is being
received; or
(iii) testimony of child witnesses is being received;
or
(iv) testimony of a complaining witness in a
prosecution for any sexual offense under Part V of the
Hawaii Penal Code is being received; or
(v) a witness would be put in substantial jeopardy of
serious bodily injury; or
(continued . . .)
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instances in which a presumption of good cause exists for not
allowing extended coverage. The district court found that
Officers Goo, Lazaro and Plevel were involved in ongoing
undercover investigations such that, by a preponderance of the
evidence, good cause existed to prohibit the extended coverage
requested. Consequently, the court prohibited HNN from
televising or publishing the faces or likenesses of Officers
Goo, Lazaro, and Plevel, unless the faces of the officers were
blurred or otherwise made indistinguishable. Finally, the
district court determined that HNN could publish the names of
witnesses in the criminal case, including the names of Officers
Goo, Lazaro, and Plevel.
On January 21, 2015, relying on RSCH Rule 5.1(f)(9),4
HNN filed a motion for leave to appeal the district court’s
FOF/COL to the ICA. The district court denied HNN’s motion
(Order Denying Leave to Appeal), reasoning that HNN exceeded the
(. . . continued)
(vi) testimony of undercover law enforcement agents
who are involved in other ongoing undercover
investigations is being received.
RSCH Rule 5.1(f)(5) (2014).
4
“A party may seek appellate review of an order regarding extended
coverage, including any such order issued by the administrative judge,
pursuant to the procedures available for review of other interlocutory
orders, but immediate appellate review of such an order shall not be
available as a matter of right.” RSCH Rule 5.1(f)(9) (2014).
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five-day period within which a motion for review of an order
regarding coverage must be filed under RSCH Rule 5.1(f)(8).5 The
district court entered its Notice of Entry of Judgment And/Or
Order in the criminal case on April 1, 2015.
B. Appellate Proceedings
HNN appealed to the ICA from the FOF/COL and the Order
Denying Leave to Appeal. In its opening brief, HNN contended
that the district court’s factual findings provided an
insufficient basis for limiting HNN’s extended coverage “because
they include no basis from which the State could have overcome
the presumption in favor of extended coverage contained in RSCH
Rule 5.1(f)(3).” HNN also asserted that the Order Denying Leave
to Appeal was erroneous because it was based on HNN’s decision
not to seek administrative review of the FOF/COL, a course of
5
RSCH Rule 5.1(f)(8) provides as follows:
The media or educational institution or any party may
obtain review of an order regarding extended coverage by
filing a motion for review addressed to the appropriate
administrative judge, who shall have full power to vacate
and modify the order. A motion for review shall be filed
no later than 5 days after the filing of the order
regarding coverage. In disposing of the motion for review
the administrative judge shall comply with subdivision
(f)(2) of this Rule. The record of the proceeding before
the administrative judge shall be made part of the record
of the underlying proceeding for which coverage is sought.
Where a request for extended coverage is initially referred
to an administrative judge and ruled upon, there shall be
no further review.
RSCH Rule 5.1(f)(8) (2014).
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action that HNN argued did not affect its right to appeal
pursuant to RSCH Rule 5.1(f)(9).
The State, in its answering brief, contended that the
appeal was already moot because Nilsawit pleaded no contest to
the charge, and consequently, there was not and there never will
be a trial for which HNN could provide extended coverage. The
State argued that the issue does not fall under the “capable of
repetition, yet evading review” exception to the mootness
doctrine because HNN could have filed (as it did in a previous
case) a petition for a writ of prohibition and/or mandamus to
this court if it wanted to appeal the FOF/COL. On the merits,
the State contended that the evidence it adduced showed that a
presumption of good cause pursuant to RSCH Rule 5.1(f)(5)
existed to prohibit the publication of the pictures of the
undercover officers. In its reply brief, HNN contended that its
appeal satisfied the requirements of both the “capable of
repetition, yet evading review” and public interest exceptions
to the mootness doctrine.
The ICA resolved the appeal on jurisdictional grounds,
concluding that RSCH Rule 5.1(f)(8) is the exclusive procedure
through which “[t]he media or educational institution” could
seek “review of a court’s order regarding a request for extended
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coverage.” State v. Nilsawit, 137 Hawaii 214, 216, 367 P.3d
708, 710 (App. 2016) (quoting RSCH Rule 5.1(f)(8)). The ICA
held that the alternative avenue provided by RSCH Rule 5.1(f)(9)
was not available to HNN because it is not a “party” pursuant to
RSCH Rule 5.1(c)(7), which defines “party” as “a named litigant
of record who has appeared in the case.” Id. (quoting RSCH Rule
5.1(c)(7)). Hence, the ICA concluded that “HNN was required to
comply with the procedures under RSCH Rule 5.1(f)(8) in order to
appeal a court’s order on extended coverage.” Id. Because HNN
failed to file its motion for review within the five-day period
to the administrative judge of the district court as required
under RSCH Rule 5.1(f)(8), the ICA dismissed HNN’s appeal for
lack of jurisdiction. Id.
In its application for writ of certiorari to this
court, HNN contends that it was not bound by RSCH Rule 5.1(f)(8)
because it is a “party” to this case, thereby allowing HNN to
proceed under RSCH Rule 5.1(f)(9).6 In support of its assertion
that it is a party, HNN maintains that it litigated its
Application for Extended Coverage and the Renewed Application
against the State and Nilsawit, it participated in the district
6
We note that HNN’s application exceeds the twelve-page limit
prescribed by Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d).
Counsel is cautioned that violations of the HRAP may result in sanctions.
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court proceedings through its counsel, and it was frequently
identified as a party in various documents in the record and in
notices filed by the district court. As an additional basis for
appellate review, HNN argues that the ICA has jurisdiction over
its appeal pursuant to HRS § 641-1 (1993 & Supp. 2004) and that
the ICA erred by completely ignoring HRS § 641-1 as a basis for
its jurisdiction. On the merits, HNN makes the same arguments
it made in the ICA.
II. STANDARDS OF REVIEW
“The existence of jurisdiction is a question of law
that we review de novo under the right/wrong standard.” Lingle
v. Haw. Gov’t Emps. Ass’n, 107 Hawaii 178, 182—83, 111 P.3d 587,
591—92 (2005). Construction of rules promulgated by this court
is also reviewed de novo. Barcai v. Betwee, 98 Hawaii 470, 479,
50 P.3d 946, 955 (2002).
III. DISCUSSION
The central issue on certiorari is whether the ICA has
jurisdiction over HNN’s appeal. HNN proffers two alternate
theories supporting the ICA’s jurisdiction: (1) HNN has the
right to appeal pursuant to RSCH Rule 5.1(f)(9), and (2) HRS §
641-1 provides an independent source of jurisdiction to the ICA.
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A. Appellate Rights Pursuant to RSCH Rule 5.1
HNN argues that it was not limited to the procedure
provided by RSCH Rule 5.1(f)(8) in seeking appellate review of
the FOF/COL and that RSCH Rule 5.1(f)(9) is an available
alternative in obtaining appellate review. RSCH Rule 5.1(f)(9)
provides as follows:
A party may seek appellate review of an order regarding
extended coverage, including any such order issued by the
administrative judge, pursuant to the procedures available
for review of other interlocutory orders, but immediate
appellate review of such an order shall not be available as
a matter of right.
RSCH Rule 5.1(f)(9) (emphasis added). The plain language of
RSCH Rule 5.1(f)(9) limits the availability of interlocutory
appeal to parties. Hence, HNN could utilize the procedure
contained in RSCH Rule 5.1(f)(9) only if it is a party. RSCH
Rule 5.1(c)(7) defines a “party” as “a named litigant of record
who has appeared in the case.” Contrary to HNN’s assertion, HNN
is not a named litigant of record; only the State and Nilsawit
are. The fact that HNN’s attorney appeared on its behalf for
the limited purpose of litigating HNN’s Application for Extended
Coverage; that HNN was identified in several pleadings, orders,
and notices; that HNN was served online filing notices; and that
the record referred to HNN as a “party” numerous times did not
transform HNN into a named litigant of record because,
essentially, this is a criminal case by the State against
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Nilsawit, the only two named litigants of record under RSCH Rule
5.1(c)(7). Indeed, the caption of the case for the two orders
that HNN appealed to the ICA includes only the State and
Nilsawit.7
This conclusion is supported by the fact that “media”
is defined separately by the RSCH as “any news gathering or
reporting agencies and the individual persons involved, and
includes newspapers, radio, television, radio and television
networks, news services, magazines, trade papers, in-house
publications, professional journals, or other news reporting or
news gathering agencies whose function it is to inform the
public or some segment thereof.” RSCH Rule 5.1(c)(10) (2014).
Based on this definition, it is clear that HNN fits the
definition of “media” and not the definition of a “party,” as
HNN is a news gathering or reporting agency. Hence, because HNN
is not a party under RSCH Rule 5.1(c)(7), it was not authorized
to utilize the procedure provided by RSCH Rule 5.1(f)(9) in
seeking an interlocutory appeal.
7
Although RSCH Rule 5.1(f)(4) provides that members of the media
have “standing to be heard and . . . present evidence” in instances where a
hearing is necessitated by an order of the court or a party’s objection to an
application for extended coverage, even in such instances the members of the
media are not granted party status. RSCH Rule 5.1(f)(4) (2014).
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HNN, as a member of the media, could have timely
sought administrative review of the FOF/COL pursuant to RSCH
Rule 5.1(f)(8), which states as follows:
The media or educational institution or any party may
obtain review of an order regarding extended coverage by
filing a motion for review addressed to the appropriate
administrative judge, who shall have full power to vacate
and modify the order. A motion for review shall be filed
no later than 5 days after the filing of the order
regarding coverage. In disposing of the motion for review
the administrative judge shall comply with subdivision
(f)(2) of this Rule. The record of the proceeding before
the administrative judge shall be made part of the record
of the underlying proceeding for which coverage is sought.
Where a request for extended coverage is initially referred
to an administrative judge and ruled upon, there shall be
no further review.
RSCH Rule 5.1(f)(8) (emphases added). However, HNN did not
utilize the procedure prescribed by RSCH Rule 5.1(f)(8) for
obtaining administrative review of the FOF/COL. Instead, HNN
filed a motion for leave to appeal the FOF/COL pursuant to RSCH
Rule 5.1(f)(9), which, as discussed, HNN was not authorized to
do.
B. Jurisdiction Under HRS § 641-1
HNN also contends that the ICA has jurisdiction over
this appeal pursuant to HRS § 641-1.8 The relevant portions of
this statute provide as follows:
8
The ICA concluded that it lacked jurisdiction without discussing
HNN’s assertion, in its statement of jurisdiction, that HRS § 641-1 provides
the ICA with jurisdiction to review the FOF/COL and the Order Denying Leave
to Appeal.
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(a) Appeals shall be allowed in civil matters from
all final judgments, orders, or decrees of circuit and
district courts and the land court to the intermediate
appellate court, subject to chapter 602.
(b) Upon application made within the time provided by
the rules of court, an appeal in a civil matter may be
allowed by a circuit court in its discretion from an order
denying a motion to dismiss or from any interlocutory
judgment, order, or decree whenever the circuit court may
think the same advisable for the speedy termination of
litigation before it. The refusal of the circuit court to
allow an appeal from an interlocutory judgment, order, or
decree shall not be reviewable by any other court.
HRS § 641-1 (emphases added). HNN’s argument fails for three
reasons: (1) it is not clear whether HNN’s appeal involves a
“civil matter” within the meaning of HRS § 641-1; (2) even
assuming that HNN’s appeal is a “civil matter,” the FOF/COL is
not a final appealable judgment, order, or decree under this
provision as required by HRS § 641-1(a); and (3) HRS § 641-1(b)
does not allow interlocutory appeals of civil matters
originating from the district court.
As a general matter, HRS § 641-1 applies only if an
appeal involves a civil matter. This court has previously
construed “civil” to mean “noncriminal” unless there is an
indication that the legislature has given that word a different
meaning. See Application of Sanborn, 57 Haw. 585, 588 n.1, 562
P.2d 771, 773 n.1 (1977). Black’s Law Dictionary defines
“civil” as “[o]f, relating to, or involving private rights and
remedies that are sought by action or suit, as distinct from
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criminal proceedings.” Civil, Black’s Law Dictionary (10th ed.
2014). Black’s defines “civil action” as “[a]n action brought
to enforce, redress, or protect a private or civil right; a
noncriminal litigation.” Action, Black’s, supra.
Whether HNN’s request for extended coverage--the
subject of the appeal to the ICA--is a civil matter raises a
significant question. On the one hand, the dispute in this
appeal is between HNN and the parties in the underlying criminal
case, and the subject matter of the dispute--the scope of HNN’s
extended coverage--is noncriminal; to this extent, it is
arguably a civil matter. On the other hand, the matter raised
by this appeal is part and parcel of the underlying criminal
case on which HNN wishes to gain extended coverage, and the
extended coverage has at least the potential to affect matters
in the criminal action. In this way, this case may not be
entirely “civil” in character. See Civil, Black’s, supra. In
any event, whether HNN’s request for extended coverage is a
“civil matter” need not be resolved because, even assuming that
it is, HNN still cannot appeal from the FOF/COL under any of the
subsections of HRS § 641-1.
The FOF/COL cannot be appealed under HRS § 641-1(a)
because it is not “final” as required by that subsection. RSCH
Rule 5.1(f)(9) specifies that “an order regarding extended
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coverage” is an interlocutory order. See RSCH Rule 5.1(f)(9)
(stating that “[a] party may seek appellate review of an order
regarding extended coverage, including any such order issued by
the administrative judge, pursuant to the procedures available
for review of other interlocutory orders” (emphasis added)).
Therefore, even assuming that HNN’s request for extended
coverage is a civil matter, the FOF/COL that resolved the case
cannot be appealed to the ICA as a matter of right pursuant to
HRS § 641-1(a).
In addition, assuming that HNN’s request for extended
coverage is a civil matter, the FOF/COL, which, as discussed, is
interlocutory in nature, is not appealable under HRS § 641-1(b).
The plain language of HRS § 641-1(b) does not appear to permit
an appeal from a district court’s interlocutory order arising
from a civil matter; the statute specifically limits appeals
from a civil interlocutory judgment, order, or decree to those
rendered by the circuit court. HRS § 641-1(b) (“[A]n appeal in
a civil matter may be allowed by a circuit court in its
discretion from an order denying a motion to dismiss or from any
interlocutory judgment, order, or decree whenever the circuit
court may think the same advisable for the speedy termination of
litigation before it.” (Emphases added)). Hence, assuming that
this appeal involves a district court civil matter under HRS §
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641-1(b), the ICA would still not have jurisdiction over HNN’s
appeal because, at the outset, the FOF/COL in this case does not
qualify for interlocutory appeal pursuant to HRS § 641-1(b).9
C. The Jurisdictional Analysis of the ICA and the District
Court is Based on an Incorrect Reading of RSCH Rule 5.1
On appeal, the ICA held that it lacked appellate
jurisdiction over the case because HNN did not follow RSCH Rule
5.1(f)(8). This holding implies that, had HNN complied with
RSCH Rule 5.1(f)(8), the ICA would have had jurisdiction to
review the FOF/COL and the Order Denying Leave to Appeal.
Nilsawit, 137 Hawaii at 216, 367 P.3d at 710 (“HNN was required
9
The same is true if it were assumed that this case is criminal in
nature because “there is no analogous statute authorizing interlocutory
appeals from the district courts in criminal matters.” State v. Ontiveros,
82 Hawaii 446, 449, 923 P.2d 388, 391 (1996)); State v. Valiani, 57 Haw. 133,
134-35, 552 P.2d 75, 76 (1976) (“There is, however, no statutory warrant for
interlocutory appeals in criminal cases from district courts.”). These cases
involved the interpretation of HRS § 641-17, which, at the time when the
cases were decided, provided as follows:
Upon application made within the time provided by the rules
of court, an appeal in a criminal matter may be allowed to
a defendant from the circuit court to the supreme court
from a decision denying a motion to dismiss or from other
interlocutory orders, decisions or judgments, whenever the
judge in his discretion may think the same advisable for a
more speedy termination of the case. The refusal of the
judge to allow an interlocutory appeal to the supreme court
shall not be reviewable by any other court.
HRS § 641-17 (Supp. 1975) (emphasis added). It is noted that the State, in a
district court criminal case, is authorized to file an interlocutory appeal
in specified instances that do not include an appeal from an order involving
extended coverage. HRS § 641-13 (Supp. 2006).
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to comply with the procedures under RSCH Rule 5.1(f)(8) in order
to appeal a court’s order on extended coverage.”). However,
RSCH Rule 5.1(f)(8) does not by its own terms provide an avenue
for appeal following the administrative judge’s review, and in
fact it provides that if the extended coverage decision was
initially referred to and ruled upon by the administrative
judge, then “there shall be no further review” of that decision.
RSCH Rule 5.1(f)(8). The limitation that inheres in RSCH Rule
5.1(f)(8) is qualified only to the extent that RSCH Rule
5.1(f)(9) allows a party to file a motion for leave to appeal
from an order issued by an administrative judge. RSCH Rule
5.1(f)(9). Thus, in cases where a member of the media requests
administrative review, the plain language of subsections (f)(8)
and (f)(9) of RSCH Rule 5.1 does not allow further appeal to the
ICA or to this court of the administrative judge’s ruling. See
Kahoohanohano v. Dep’t of Human Servs., 117 Hawaii 262, 288, 178
P.3d 538, 564 (2008) (stating that the fundamental starting
point in statutory interpretation is the language of the statute
itself). Accordingly, while the ICA was correct in holding that
it lacked appellate jurisdiction, it erred in implying that its
lack of jurisdiction stems from HNN’s failure to follow the
procedure under RSCH Rule 5.1(f)(8). The ICA would still have
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had no jurisdiction over HNN’s appeal even if HNN strictly
complied with RSCH Rule 5.1(f)(8) because this subsection does
not provide an independent authority to appeal an administrative
judge’s decision and categorically proscribes nonparties from
seeking further review of such a decision. Thus, in that
situation, HNN would be precluded from seeking leave to appeal
pursuant to RSCH Rule 5.1(f)(9) as it is not a party and
because, as discussed supra, there is no statutory authority
that would have allowed HNN to appeal to the ICA from an
interlocutory order issued by the district court.
The ICA’s pronouncement that it had no appellate
jurisdiction, and its underlying reasoning, appears to encompass
the Order Denying Leave to Appeal. However, the reason for the
ICA’s lack of jurisdiction over the Order Denying Leave to
Appeal is not because of HNN's noncompliance with RSCH Rule
5.1(f)(8); it is simply because such an order is not appealable.
See generally HRS § 641-1(b) (“The refusal of the circuit court
to allow an appeal from an interlocutory judgment, order, or
decree shall not be reviewable by any other court.”); HRS § 641-
17 (“The refusal of the judge to allow an interlocutory appeal
to the appellate court shall not be reviewable by any other
court.”). Hence, even if HNN followed RSCH Rule 5.1(f)(8), the
Order Denying Leave to Appeal would still not be appealable.
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The district court also erred in the reasons it
provided in denying HNN’s motion for leave to appeal filed
pursuant to RSCH Rule 5.1(f)(9). Contrary to the district
court’s reasoning, HNN’s motion for leave to appeal should have
been denied not because “HNN exceeded the five (5) day period to
file a motion for review of an order regarding coverage in
violation of Rule 5.1(f)(8).” Instead, HNN was precluded from
proceeding under RSCH 5.1(f)(9) because it was not a party and
there is no statutory right to appeal from an interlocutory
judgment, order, or decree entered by the district court in
civil cases, see HRS § 641-1(b), and, similarly, in criminal
cases (except by the State in prescribed instances), see supra
note 9; HRS §§ 641-13, 641-17. Thus, even assuming that HNN had
adhered to the administrative review process outlined in RSCH
Rule 5.1(f)(8), the district court would still have had to deny
HNN’s motion for leave to appeal filed pursuant to RSCH Rule
5.1(f)(9).
Based on the foregoing, HNN does not have a right to
appeal, pursuant to HRS § 641-1(a), from the district court’s
FOF/COL. Nor can HNN seek leave to appeal to the ICA pursuant
to RSCH Rule 5.1(f)(9) because it is not a party and, under HRS
§§ 641-1(b), 641-13, and 641-17, appeals from all civil
interlocutory orders and from criminal interlocutory orders
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entered by the district court are not permitted, except as noted
supra. Thus, HNN’s only opportunity for review of the FOF/COL
would have been to seek administrative review pursuant to RSCH
Rule 5.1(f)(8).10
D. Media Entities Have Alternative Avenues to Seek Redress
HNN and the media, under circumstances similar to this
case, may commence an original proceeding in this court by
filing an application for a writ of mandamus and/or prohibition.
In cases where a court enters an order that “is not immediately
appealable or related to the merits” of the underlying
proceeding--circumstances that appear to be present in this
case--this court has intimated that “mandamus is the appropriate
remedy.” Kema v. Gaddis, 91 Hawaii 200, 204—05, 982 P.2d 334,
338—39 (1999); see State v. Hamili, 87 Hawaii 102, 104, 952 P.2d
390, 392 (1998) (stating that where there is no right to appeal,
a mandamus petition is the appropriate vehicle for challenging a
10
Notably, HRS § 602-4 (1993) establishes this court’s inherent
authority to control litigation before it. HRS § 602-4 states that “[t]he
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.” HRS § 602-4; see State v. Ui,
66 Haw. 366, 370, 663 P.2d 630, 633 (1983) (stating that the court may
exercise its supervisory power under HRS § 602-4 but declining to do so
because the circuit court did not err in interpreting the statute involved);
see, e.g., Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49,
53 (1978) (trial court’s closure of hearing to public necessitated this
court’s exercise of its supervisory power). HNN does not request this court
to exercise its supervisory power in this case, and thus, the potential
application of this statute need not be reached.
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trial court’s actions alleged to have been made without
statutory authority); e.g., Oahu Publ’ns Inc. v. Ahn, 133 Hawaii
482, 488, 331 P.3d 460, 466 (2014) (using writs of mandamus and
prohibition as vehicles to challenge the circuit court’s order
sealing portions of court proceedings and closing the courtroom
to the public). Accordingly, HNN and the media at large are not
deprived of means to obtain redress, as they may apply for a
writ of prohibition and/or mandamus in challenging a trial
court’s order regarding extended coverage.11
IV. CONCLUSION
We hold that, other than by applying for an
extraordinary writ to this court, the only avenue through which
HNN could have sought review of the district court’s FOF/COL was
by filing a motion for review addressed to the appropriate
administrative judge, as prescribed by RSCH Rule 5.1(f)(8). In
addition, RSCH Rule 5.1(f)(9) does not authorize HNN to move for
an interlocutory appeal to the ICA as HNN is not a party in this
case, and HRS § 641-1, under the facts of this case, does not
provide an independent source of appellate jurisdiction to the
ICA. Therefore, the ICA was correct in dismissing HNN’s appeal
for lack of jurisdiction, but it erred in its reasoning.
11
The merits of HNN’s appeal need not be reached in light of our
disposition of this case.
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Accordingly, the ICA Judgment on Appeal is affirmed for the
reasons presented in this opinion.
Bruce D. Voss and /s/ Mark E. Recktenwald
David R. Major
for petitioner /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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