Austin v. Browning

• Court: Hawaii Supreme Court
• Decided: May 8, 2020
• Docket: SCPW-20-0000106
• Status: Published

Opinion

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