Tierney v. Perkins ( 2011 )

Electronically Filed
Supreme Court
SCPW-11-0000042
08-FEB-2011
02:40 PM
NO. SCPW-11-0000042
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. NOS. 88-2209 and 89-0024)
ORDER
(By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ.
and Circuit Judge Crandall, assigned by reason of vacancy)
Upon consideration of petitioner Michael C. Tierney's
petition for a writ of mandamus, it appears that petitioner's
notice of appeal, dated January 3, 2011, was not "denied" by the
respondent judge, but was filed by the circuit court on January
10, 2011 and is being processed in the intermediate court of
appeals as appeal No. CAAP-11-0000016. It further appears that a
motion for waiver of appellate fees for No. CAAP-11-0000016 must
be made in the appellate court, not the circuit court. See HRAP
24(a) ("A party to an action in the circuit . . . court who
desires to proceed on appeal in forma pauperis shall file in the
appellate court a motion for leave to so proceed[.]").
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.). Accordingly,
IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for a writ of mandamus without
payment of the filing fee.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is denied without prejudice to petitioner filing, in the
intermediate court of appeals, in No. CAAP-11-0000016, a motion
to proceed on appeal in forma pauperis pursuant to HRAP 24(a).
DATED: Honolulu, Hawai'i, February 8, 2011.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ James E. Duffy, Jr.
/s/ Virginia L. Crandall
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