Electronically Filed
Supreme Court
SCPW-15-0000098
07-JUL-2015
03:29 PM
SCPW-15-0000098
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Petitioner,
vs.
THE HONORABLE RANDAL K.O. LEE, Judge of the Circuit Court of the
First Circuit, State of Hawai#i, Respondent Judge,
and
TRACY T. YOSHIMURA, EUGENE M. SIMEONA, JR., MICHAEL D.
MILLER, MICHAEL A. MADALI, JR., CLAYTON SIMEONA,
DESIREE U. HAINA, QUENTIN D.R. CANENCIA, GARY G. DANLEY, JR.,
and ALEXANDER R. ALEJANDRO, Respondents.
ORIGINAL PROCEEDING
(CR. NO. 14-1-0717)
ORDER GRANTING IN PART PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., and Pollack, J., with McKenna, J.,
concurring, with whom Wilson, J., joins,
and with Nakayama, J., concurring separately)
Upon consideration of Petitioner State of Hawai#i’s
petition for a writ of mandamus, filed on February 25, 2015
(“Petition”), the Respondents’ answers of no position, the
respective supporting documents, and the record, it appears that
based on the case law adduced by the circuit court in favor of
disqualification, the circuit court’s finding that Deputy
Prosecuting Attorneys Katherine Kealoha and Jacob Delaplane
committed prosecutorial misconduct but that the misconduct “was
not done intentionally or maliciously, but was based on a lack of
experience” does not support the disqualification ordered by the
circuit court in its December 1, 2014 Findings of Fact,
Conclusions of Law, and Order Denying Defendant Yoshimura’s
Motion to Reconsider Order Granting State of Hawaii’s Ex Parte
Motion to Nolle Prosequi Without Prejudice; Granting in Part and
Denying in Part Defendant Simeona’s Oral Motion to Disqualify;
and Denying Defendant Yoshimura’s Oral Motion to Establish a
Deadline to Reindict (“Disqualification Order”). It further
appears that Petitioner has made a showing of irreparable and
immediate harm that has not been contradicted by Respondents.
Thus, under the specific facts and circumstances of this
matter, an extraordinary writ is warranted inasmuch as the basis
upon which the circuit court grounded the disqualification is
insufficient and Petitioner has made a showing of irreparable and
immediate harm as a result of the disqualification. See Chuck v.
St. Paul Fire and Marine Ins. Co., 61 Haw. 552, 558, 606 P.2d
1320, 1324 (1980) (“[W]here the basis upon which the trial court
has rested its order of disqualification is clearly insufficient,
and a convincing showing is made in the petition that irreparable
and immediate harm would otherwise be the necessary consequence,
the petitioner’s application for a writ of mandamus will be
granted.”). Accordingly,
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IT IS HEREBY ORDERED that the Petition is granted in
part. The Disqualification Order is vacated to the extent it
disqualifies Deputy Prosecuting Attorney Katherine Kealoha and
Deputy Prosecuting Attorney Jacob Delaplane “from further
prosecution of this matter.”
DATED: Honolulu, Hawai#i, July 7, 2015.
/s/ Mark E. Recktenwald
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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