Roy v. Government Employees Insurance Co. ( 2022 )


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  •                                          Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    24-AUG-2022
    08:02 AM
    Dkt. 137 ORD
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STEPHEN KEAWE ROY and REBECCA ROY,
    Plaintiffs-Appellees,
    v.
    GOVERNMENT EMPLOYEES INSURANCE CO.,
    GEICO INSURANCE AGENCY, INC., Defendants-Appellants
    and
    TIMOTHY DAYTON, RICHARD DWYER, and JOHN DORNAN,
    Defendants-Appellees,
    and
    DOE ENTITIES 1-10, Defendants
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (CIVIL NO. 13-1-2053-07 (KKH))
    ORDER GRANTING IN PART AND DENYING IN PART MOTION
    TO SUBSTITUTE AND TO DISMISS FOR LACK OF APPELLATE JURISDICTION
    (By: Ginoza, Chief Judge, and Leonard and Wadsworth, JJ.)
    Upon consideration of the "Motion to Substitute Civil
    Beat Law Center for the Public Interest for Ed Wagner and to
    Dismiss for lack of Appellate Jurisdiction" (Motion), filed by
    Non-Party Ed Wagner (Wagner) on March 10, 2022, the papers in
    support and in opposition, and the record, it appears that:
    1.   On August 6, 2018, Defendants-Appellants
    Government Employees Insurance Co. and Geico Insurance Agency,
    Inc. (collectively, GEICO) filed a notice of appeal from the July
    6, 2018 "Order on Motion to Unseal (Filed May 22, 2016 [sic])"
    and the July 31, 2018 "Findings of Fact, Conclusions of Law and
    Order Denying GEICO's Motion to Reseal Filed Documents"
    (collectively, "Unsealing Orders"), both entered by the Circuit
    Court of the First Circuit (Circuit Court).
    2.   Wagner now moves to dismiss GEICO's appeal for
    lack of appellate jurisdiction (motion to dismiss). Wagner
    contends that this court lacks jurisdiction because the Unsealing
    Orders are not appealable under the collateral order doctrine,
    which is the sole basis for appellate jurisdiction asserted by
    GEICO.
    3.   GEICO contends that appellate jurisdiction exists
    because the collateral order doctrine applies to the Unsealing
    Orders.
    4.   An order is appealable under the collateral order
    doctrine if it: "(1) conclusively determines a disputed
    question, (2) resolves an important issue completely separate
    from the merits of the action, and (3) is effectively
    unreviewable on appeal from a final judgment." Greer v. Baker,
    137 Hawai#i 249, 253, 
    369 P.3d 832
    , 836 (2016) (citing Abrams v.
    Cades, Schutte, Fleming & Wright, 88 Hawai#i 319, 322, 
    966 P.2d 631
    , 634 (1998)).
    5.   Wagner argues that GEICO cannot meet the third
    prong of the collateral order doctrine. There appears to be no
    dispute that the underlying case settled and no final judgment
    was entered, rendering appeal from such judgment impossible.
    Wagner asserts, however, that "[a] circuit court's order granting
    a motion to unseal court records is not 'effectively
    unreviewable' because there is a specific procedure set forth in
    rules for review of such decisions[,]" referring to Hawai#i Court
    Records Rules (HCRR) Rule 10.15.
    6.    HCRR Rule 10.15 states:
    Review of Action on Request for Record. A person or entity
    may seek review of a denial or grant of access to a record
    by petitioning the supreme court, in accordance with Rule 21
    of the Hawai#i Rules of Appellate Procedure. If the record
    is confidential, the Clerk of the trial court or ADLRO, upon
    notice of the petition, shall provide notice of the petition
    to all parties to the case, shall file a copy of the Clerk’s
    certificate of service on each party, and shall designate
    the certificate of service as confidential in the record of
    proceeding before the supreme court.
    2
    7.   In turn, Hawai#i Rules of Appellate Procedure
    (HRAP) Rule 21 provides, in relevant part:
    (a) Writs of Mandamus or Prohibition Directed to a Judge .
    Application for a writ directed to a judge shall be made by
    filing a petition with the appellate clerk with proof of
    service on the respondent judge, all parties to the action
    in the trial court, and the attorney general. The petition
    shall contain: (i) a statement of facts necessary to an
    understanding of the issues presented; (ii) a statement of
    issues presented and of the relief sought; and (iii) a
    statement of reasons for issuing the writ.
    . . . .
    Upon receipt of the prescribed filing fee, the appellate
    clerk shall docket the petition and submit it to the supreme
    court for determination as to whether the writ will be
    entertained.
    8.   For purposes of the motion to dismiss, we assume
    without deciding that the Unsealing Orders qualify as "a . . .
    grant of access to a record" within the meaning of HCRR Rule
    10.15. Obtaining review of such a grant of access under HCRR
    Rule 10.15 requires petitioning the supreme court for a writ of
    mandamus or prohibition pursuant to HRAP Rule 21. The supreme
    court has repeatedly stated:
    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 the relief
    requested and a lack of other means to redress adequately
    the alleged wrong or to obtain the requested action. Such
    writs are not meant to supersede the legal discretionary
    authority of the lower court, nor are they meant to serve as
    legal remedies in lieu of normal appellate procedures.
    Where a trial 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.
    State v. Tui, 138 Hawai#i 462, 467, 
    382 P.3d 274
    , 279 (2016)
    (quoting Kema v. Gaddis, 91 Hawai#i 200, 204-05, 
    982 P.2d 334
    ,
    338-39 (1999)).
    9.    Thus, review of a denial or grant of access to a
    record under HCRR Rule 10.15 is not review on appeal from a final
    judgment, but review pursuant to the extraordinary writ process.
    Wagner has not cited any Hawai#i authority supporting his
    3
    argument that GEICO must show the unavailability of that
    extraordinary process in order to obtain appellate relief under
    the collateral order doctrine, if otherwise applicable in these
    circumstances.
    10. Additionally, we take judicial notice that on
    August 27, 2018, Wagner filed a Petition for Writ of Prohibition
    and Writ of Mandamus (Petition) in the supreme court, seeking,
    among other things, a writ of mandamus ordering the Circuit Court
    to unseal the underlying case. See Petition at 1, 21, Wagner v.
    Hiraoka, No. SCPW-XX-XXXXXXX, 
    2018 WL 5044355
     (Haw. Oct. 17,
    2018). The supreme court subsequently denied the Petition.
    Wagner, 
    2018 WL 5044355
    , at *1. In denying the Petition, the
    supreme court stated, in relevant part:
    Upon consideration of . . . Wagner's [P]etition . . . , it
    appears that the respondent judge complied with the
    procedure set forth in Grube v. Trader, 142 Hawai #i 412, 
    420 P.3d 343
     (2018) in addressing the sealing issue, an appeal
    is pending in the Intermediate Court of Appeals
    (CAAP-XX-XXXXXXX), and petitioner fails to demonstrate that
    he is entitled to the requested extraordinary writ. 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); Gannett Pac. Corp. v. Richardson, 
    59 Haw. 224
    , 226, 
    580 P.2d 49
    , 53 (1978) (a petition for writ of
    prohibition is not meant to serve as a legal remedy in lieu
    of normal appellate procedures).
    Id.
    11. We conclude that the Unsealing Orders meet the
    requirements of, and are appealable under, the collateral order
    doctrine; we therefore have jurisdiction over this appeal.
    12. Wagner also moves this court to substitute Civil
    Beat Law Center for the Public Interest (the Law Center) in
    Wagner's place in this case (motion to substitute).           The motion
    to substitute is supported by declarations of Wagner and R. Brian
    Black (Black), as President and Executive Director of the Law
    Center. Wagner contends that the requested substitution is
    necessary; he states in his declaration that he is 78 years old,
    "is unable to continue [his] current role in this case[,]" and
    would like the Law Center to be substituted for him. Black
    4
    states, among other things, that "the Law Center has advocated on
    behalf of clients for public access to court records in [other]
    cases" and "the Law Center is willing to substitute for . . .
    Wagner in this case."
    13.   HRAP Rule 43 provides, in relevant part:
    (b) Substitution for Other Causes. If substitution of a
    party in the Hawai#i appellate courts is necessary for any
    reason other than death, substitution shall be effected in
    accordance with the procedure prescribed in subsection
    (a).1/
    (Footnote added).
    14. It is undisputed that Wagner is not a party in the
    underlying case. Nevertheless, Wagner contends that this court
    should grant the requested substitution pursuant to the court's
    "inherent supervisory authority." Wagner further argues that if
    Wagner were a party, substitution would be permitted by HRAP Rule
    43(b) if "necessary for any reason," and although Wagner is not a
    party, substitution is necessary because Wagner is unable to
    continue in his role.
    15. GEICO opposes the requested substitution. GEICO
    contends that there is no mechanism for substitution of a non-
    party. GEICO further contends that, "even applying [HRAP] Rule
    43(b) by analogy," Wagner's declaration "makes only a conclusory
    1/
    HRAP Rule 43(a) provides:
    (a) Death of a Party. If a party dies after the notice
    of appeal is filed, or while the proceeding is otherwise
    pending in a Hawai#i appellate court, that court may
    substitute the personal representative of the deceased party
    as a party on motion filed by the representative or by any
    party. The motion shall be served upon the representative
    in accordance with the provisions of Rule 25. If the
    deceased party has no representative, any party may suggest
    the death on the record, and proceedings shall then be had
    as that court shall direct. If an appellee dies after entry
    of the judgment or order in the court or agency appealed
    from but before a notice of appeal is filed, an appellant
    may proceed as if the death had not occurred. After the
    notice of appeal is filed, substitution shall be effected in
    the Hawai#i appellate courts in accordance with this
    subsection. If a party entitled to appeal shall die before
    filing a notice of appeal, the notice of appeal may be filed
    by the party's personal representative, or, if the party has
    no representative, by the party's attorney of record within
    the time prescribed by these rules. After the notice of
    appeal is filed substitution shall be effected in the
    Hawai#i appellate courts in accordance with this subsection.
    5
    statement" that he is unable to continue in his current role, but
    "provides no compelling explanation why he is unable to continue
    and why substitution is necessary."
    16. This court has "inherent equity, supervisory, and
    administrative powers as well as inherent power to control the
    litigation process before [it]. Inherent powers of the court are
    derived from the state Constitution and are not confined by or
    dependent on statute." Enos v. Pac. Transfer & Warehouse, Inc.,
    79 Hawai#i 452, 457-58, 
    903 P.2d 1273
    , 1278-79 (1995).
    17. Although Wagner is not a party in the underlying
    case, he had a right to move to unseal sealed court documents in
    the case. See Grube v. Trader, 142 Hawai#i 412, 428, 
    420 P.3d 343
    , 359 (2018) ("Any member of the public may assert a personal
    right to access judicial proceedings and records."); see also In
    re Schweitzer, No. CAAP-XX-XXXXXXX, 
    2021 WL 2433478
    , at *3 (Haw.
    App. June 15, 2021) (SDO) (concluding that the circuit court
    erred in imposing sanctions against a non-party "based on the
    erroneous view that non-parties lack standing to move to unseal
    court documents"). In furtherance of that right, on February 21,
    2019, Wagner also filed an answering brief in this appeal,
    disputing GEICO's points of error and urging this court to affirm
    the Circuit Court's Unsealing Orders. With the continued
    pendency of this appeal, Wagner now submits that he is 78 years
    old, is unable to continue his current role in this case, and
    would like the Law Center to be substituted for him. The Law
    Center has represented Wagner as counsel in this case, has
    advocated for public access to court records in other cases,
    appears to share the same interest as Wagner in accessing the
    court records at issue, and confirms that it is willing to serve
    in Wagner's role in this case. Under these circumstances, we
    will grant the requested relief.
    Therefore, IT IS HEREBY ORDERED that the Motion is
    granted in part and denied in part as follows:
    (1) The motion to dismiss for lack of appellate
    jurisdiction is denied.
    6
    (2) The motion to substitute is granted. The
    appellate clerk shall substitute Civil Beat Law Center for the
    Public Interest for non-party Ed Wagner.
    DATED:   Honolulu, Hawai#i, August 24, 2022.
    /s/ Lisa M. Ginoza
    Presiding Judge
    /s/ Katherine G. Leonard
    Associate Judge
    /s/ Clyde J. Wadsworth
    Associate Judge
    7