Austin v. Browning ( 2020 )

Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
08-MAY-2020
02:14 PM
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
DAVID E. AUSTIN, Petitioner,
vs.
THE HONORABLE R. MARK BROWNING, Judge of the Circuit Court of the
First Circuit, State of Hawai#i, Respondent Judge,
and
GERDA KOSCHWITZ, Respondent.
ORIGINAL PROCEEDING
(T. NO. 19-1-0047)
ORDER DENYING PETITION FOR WRIT OF PROHIBITION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
Upon consideration of petitioner David Eric Austin’s
petition for writ of mandamus, filed on February 28, 2020, the
documents attached thereto and submitted in support thereof, and
the record, it appears that, the record presented to this court
does not demonstrate that the respondent judge committed a
flagrant and manifest abuse of discretion in denying the motion
to disqualify. Petitioner, therefore, is not entitled to the
requested extraordinary writ. See Kema v. Gaddis, 91 Hawai#i
200, 204-05, 982 P.2d 334, 338-39 (1999) (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 he or she has a legal duty
to act); TSA Int’l Ltd. v. Shimizu Corp., 92 Hawai#i 243, 252,
990 P.2d 713, 722 (1999) (“Decisions on recusal or
disqualification present perhaps the ultimate test of judicial
discretion and should thus lie undisturbed absent a showing of
abuse of that discretion.”).
Accordingly,
IT IS HEREBY ORDERED that the petition for writ of
mandamus is denied.
DATED: Honolulu, Hawai#i, May 8, 2020.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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