State v. Nilsawit.

***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-15-0000372
10-NOV-2016
03:08 PM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,

vs.

SIRIPORN NILSAWIT,
Respondent/Defendant-Appellee,

and

HAWAII NEWS NOW,
Petitioner/Applicant-Appellant.

SCWC-15-0000372

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000372; CASE NO. 1DCW-14-0001187)

NOVEMBER 10, 2016

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

The issue we resolve in this case is the manner in

which a district court’s decision regarding a request for
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

extended coverage can be appealed. We hold that where the

request for extended coverage originates from a member of the

media, review of a district court’s decision regarding that

request is limited to the procedure set forth in the Rules of

the Supreme Court of the State of Hawaii (RSCH) Rule 5.1(f)(8).

Relatedly, there is also no independent statutory authority that

would allow the Intermediate Court of Appeals (ICA) to review

the district court’s decision.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. District Court Proceedings

On April 29, 2014, Hawaii News Now (HNN) submitted an

application for extended coverage1 to the District Court of the

First Circuit (district court) for the criminal case, State v.

Nilsawit, No. 1DCW–14–0001187 (Application for Extended

Coverage). The district court granted HNN’s Application for

Extended Coverage on the same day.2 Among the circumstances

surrounding the criminal case was the controversy regarding the

Honolulu Police Department’s then practice of allowing

undercover police officers to engage in sexual conduct with

1
“‘Extended coverage’ means any recording or broadcasting of
proceedings through the use of television, radio, photographic, or recording
equipment by the media or on behalf of educational institutions.” RSCH Rule
5.1(c)(2) (2014).
2
The Honorable Russel S. Nagata presided.

2
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

persons selling sexual services during sting operations. On May

16, 2014, the State submitted its objection to HNN’s Application

for Extended Coverage (First Objection), which sought to

prohibit HNN from televising or publishing a picture of the face

or likeness of Officer Paul Goo, the officer involved in the

events that culminated in the arrest of Siriporn Nilsawit. HNN

thereafter submitted a Renewed Application for Extended Coverage

(Renewed Application) on October 20, 2014. HNN requested that

the district court deny any objection from a party in the

criminal case and affirm the previously issued order that

allowed HNN the right to full and complete coverage of the

criminal proceeding, including the filming, televising, and

photographing of Officer Goo and Nilsawit.

Nilsawit filed a Reply to the Renewed Application,

which sought to preclude coverage of Nilsawit’s face.

Nilsawit’s Reply did not object to HNN’s request to televise and

publish Officer Goo’s face. The State filed its Objection to

the Renewed Application (Second Objection), which expanded upon

the First Objection and requested that the faces of Officers

Goo, Caesar Lazaro, Ilso Pratt, Herbert Soria, and Zachary

Plevel be excluded from HNN’s coverage. HNN submitted its Reply

in Support of the Renewed Application, contending that neither

3
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

the State and Nilsawit provided no evidence in support of their

objections to HNN’s Renewed Application.

A hearing on HNN’s Renewed Application took place on

November 14, 2014, and on that day, the district court issued

its Findings of Fact and Conclusions of Law for Hawaii News

Now’s Application for Extended Coverage and Order (FOF/COL).

The court cited RSCH Rule 5.1(f)(3) and (5),3 which enumerates

3
RSCH Rule 5.1(f)(3) provides the following:

(3) A judge shall grant requests for extended coverage
or extended audio coverage of a proceeding unless, by a
preponderance of the evidence, good cause is found to
prohibit such coverage. In situations where the judge has
found good cause to prohibit extended coverage or extended
audio coverage, the judge may permit extended coverage or
extended audio coverage of only a portion or portions of
the proceeding.

RSCH Rule 5.1(f)(3) (2014).

RSCH Rule 5.1(f)(5) states as follows:

(5) A presumption of good cause shall exist in the following
circumstances:

(i) the proceeding is for the purpose of determining
the admissibility of evidence; or

(ii) testimony regarding trade secrets is being
received; or

(iii) testimony of child witnesses is being received;
or

(iv) testimony of a complaining witness in a
prosecution for any sexual offense under Part V of the
Hawaii Penal Code is being received; or

(v) a witness would be put in substantial jeopardy of
serious bodily injury; or

(continued . . .)

4
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

instances in which a presumption of good cause exists for not

allowing extended coverage. The district court found that

Officers Goo, Lazaro and Plevel were involved in ongoing

undercover investigations such that, by a preponderance of the

evidence, good cause existed to prohibit the extended coverage

requested. Consequently, the court prohibited HNN from

televising or publishing the faces or likenesses of Officers

Goo, Lazaro, and Plevel, unless the faces of the officers were

blurred or otherwise made indistinguishable. Finally, the

district court determined that HNN could publish the names of

witnesses in the criminal case, including the names of Officers

Goo, Lazaro, and Plevel.

On January 21, 2015, relying on RSCH Rule 5.1(f)(9),4

HNN filed a motion for leave to appeal the district court’s

FOF/COL to the ICA. The district court denied HNN’s motion

(Order Denying Leave to Appeal), reasoning that HNN exceeded the

(. . . continued)
(vi) testimony of undercover law enforcement agents
who are involved in other ongoing undercover
investigations is being received.

RSCH Rule 5.1(f)(5) (2014).
4
“A party may seek appellate review of an order regarding extended
coverage, including any such order issued by the administrative judge,
pursuant to the procedures available for review of other interlocutory
orders, but immediate appellate review of such an order shall not be
available as a matter of right.” RSCH Rule 5.1(f)(9) (2014).

5
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

five-day period within which a motion for review of an order

regarding coverage must be filed under RSCH Rule 5.1(f)(8).5 The

district court entered its Notice of Entry of Judgment And/Or

Order in the criminal case on April 1, 2015.

B. Appellate Proceedings

HNN appealed to the ICA from the FOF/COL and the Order

Denying Leave to Appeal. In its opening brief, HNN contended

that the district court’s factual findings provided an

insufficient basis for limiting HNN’s extended coverage “because

they include no basis from which the State could have overcome

the presumption in favor of extended coverage contained in RSCH

Rule 5.1(f)(3).” HNN also asserted that the Order Denying Leave

to Appeal was erroneous because it was based on HNN’s decision

not to seek administrative review of the FOF/COL, a course of

5
RSCH Rule 5.1(f)(8) provides as follows:

The media or educational institution or any party may
obtain review of an order regarding extended coverage by
filing a motion for review addressed to the appropriate
administrative judge, who shall have full power to vacate
and modify the order. A motion for review shall be filed
no later than 5 days after the filing of the order
regarding coverage. In disposing of the motion for review
the administrative judge shall comply with subdivision
(f)(2) of this Rule. The record of the proceeding before
the administrative judge shall be made part of the record
of the underlying proceeding for which coverage is sought.
Where a request for extended coverage is initially referred
to an administrative judge and ruled upon, there shall be
no further review.

RSCH Rule 5.1(f)(8) (2014).

6
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

action that HNN argued did not affect its right to appeal

pursuant to RSCH Rule 5.1(f)(9).

The State, in its answering brief, contended that the

appeal was already moot because Nilsawit pleaded no contest to

the charge, and consequently, there was not and there never will

be a trial for which HNN could provide extended coverage. The

State argued that the issue does not fall under the “capable of

repetition, yet evading review” exception to the mootness

doctrine because HNN could have filed (as it did in a previous

case) a petition for a writ of prohibition and/or mandamus to

this court if it wanted to appeal the FOF/COL. On the merits,

the State contended that the evidence it adduced showed that a

presumption of good cause pursuant to RSCH Rule 5.1(f)(5)

existed to prohibit the publication of the pictures of the

undercover officers. In its reply brief, HNN contended that its

appeal satisfied the requirements of both the “capable of

repetition, yet evading review” and public interest exceptions

to the mootness doctrine.

The ICA resolved the appeal on jurisdictional grounds,

concluding that RSCH Rule 5.1(f)(8) is the exclusive procedure

through which “[t]he media or educational institution” could

seek “review of a court’s order regarding a request for extended

7
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

coverage.” State v. Nilsawit, 137 Hawaii 214, 216, 367 P.3d

708, 710 (App. 2016) (quoting RSCH Rule 5.1(f)(8)). The ICA

held that the alternative avenue provided by RSCH Rule 5.1(f)(9)

was not available to HNN because it is not a “party” pursuant to

RSCH Rule 5.1(c)(7), which defines “party” as “a named litigant

of record who has appeared in the case.” Id. (quoting RSCH Rule

5.1(c)(7)). Hence, the ICA concluded that “HNN was required to

comply with the procedures under RSCH Rule 5.1(f)(8) in order to

appeal a court’s order on extended coverage.” Id. Because HNN

failed to file its motion for review within the five-day period

to the administrative judge of the district court as required

under RSCH Rule 5.1(f)(8), the ICA dismissed HNN’s appeal for

lack of jurisdiction. Id.

In its application for writ of certiorari to this

court, HNN contends that it was not bound by RSCH Rule 5.1(f)(8)

because it is a “party” to this case, thereby allowing HNN to

proceed under RSCH Rule 5.1(f)(9).6 In support of its assertion

that it is a party, HNN maintains that it litigated its

Application for Extended Coverage and the Renewed Application

against the State and Nilsawit, it participated in the district

6
We note that HNN’s application exceeds the twelve-page limit
prescribed by Hawaii Rules of Appellate Procedure (HRAP) Rule 40.1(d).
Counsel is cautioned that violations of the HRAP may result in sanctions.

8
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

court proceedings through its counsel, and it was frequently

identified as a party in various documents in the record and in

notices filed by the district court. As an additional basis for

appellate review, HNN argues that the ICA has jurisdiction over

its appeal pursuant to HRS § 641-1 (1993 & Supp. 2004) and that

the ICA erred by completely ignoring HRS § 641-1 as a basis for

its jurisdiction. On the merits, HNN makes the same arguments

it made in the ICA.

II. STANDARDS OF REVIEW

“The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard.” Lingle

v. Haw. Gov’t Emps. Ass’n, 107 Hawaii 178, 182—83, 111 P.3d 587,

591—92 (2005). Construction of rules promulgated by this court

is also reviewed de novo. Barcai v. Betwee, 98 Hawaii 470, 479,

50 P.3d 946, 955 (2002).

III. DISCUSSION

The central issue on certiorari is whether the ICA has

jurisdiction over HNN’s appeal. HNN proffers two alternate

theories supporting the ICA’s jurisdiction: (1) HNN has the

right to appeal pursuant to RSCH Rule 5.1(f)(9), and (2) HRS §

641-1 provides an independent source of jurisdiction to the ICA.

9
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

A. Appellate Rights Pursuant to RSCH Rule 5.1

HNN argues that it was not limited to the procedure

provided by RSCH Rule 5.1(f)(8) in seeking appellate review of

the FOF/COL and that RSCH Rule 5.1(f)(9) is an available

alternative in obtaining appellate review. RSCH Rule 5.1(f)(9)

provides as follows:

A party may seek appellate review of an order regarding
extended coverage, including any such order issued by the
administrative judge, pursuant to the procedures available
for review of other interlocutory orders, but immediate
appellate review of such an order shall not be available as
a matter of right.

RSCH Rule 5.1(f)(9) (emphasis added). The plain language of

RSCH Rule 5.1(f)(9) limits the availability of interlocutory

appeal to parties. Hence, HNN could utilize the procedure

contained in RSCH Rule 5.1(f)(9) only if it is a party. RSCH

Rule 5.1(c)(7) defines a “party” as “a named litigant of record

who has appeared in the case.” Contrary to HNN’s assertion, HNN

is not a named litigant of record; only the State and Nilsawit

are. The fact that HNN’s attorney appeared on its behalf for

the limited purpose of litigating HNN’s Application for Extended

Coverage; that HNN was identified in several pleadings, orders,

and notices; that HNN was served online filing notices; and that

the record referred to HNN as a “party” numerous times did not

transform HNN into a named litigant of record because,

essentially, this is a criminal case by the State against

10
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Nilsawit, the only two named litigants of record under RSCH Rule

5.1(c)(7). Indeed, the caption of the case for the two orders

that HNN appealed to the ICA includes only the State and

Nilsawit.7

This conclusion is supported by the fact that “media”

is defined separately by the RSCH as “any news gathering or

reporting agencies and the individual persons involved, and

includes newspapers, radio, television, radio and television

networks, news services, magazines, trade papers, in-house

publications, professional journals, or other news reporting or

news gathering agencies whose function it is to inform the

public or some segment thereof.” RSCH Rule 5.1(c)(10) (2014).

Based on this definition, it is clear that HNN fits the

definition of “media” and not the definition of a “party,” as

HNN is a news gathering or reporting agency. Hence, because HNN

is not a party under RSCH Rule 5.1(c)(7), it was not authorized

to utilize the procedure provided by RSCH Rule 5.1(f)(9) in

seeking an interlocutory appeal.

7
Although RSCH Rule 5.1(f)(4) provides that members of the media
have “standing to be heard and . . . present evidence” in instances where a
hearing is necessitated by an order of the court or a party’s objection to an
application for extended coverage, even in such instances the members of the
media are not granted party status. RSCH Rule 5.1(f)(4) (2014).

11
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

HNN, as a member of the media, could have timely

sought administrative review of the FOF/COL pursuant to RSCH

Rule 5.1(f)(8), which states as follows:

The media or educational institution or any party may
obtain review of an order regarding extended coverage by
filing a motion for review addressed to the appropriate
administrative judge, who shall have full power to vacate
and modify the order. A motion for review shall be filed
no later than 5 days after the filing of the order
regarding coverage. In disposing of the motion for review
the administrative judge shall comply with subdivision
(f)(2) of this Rule. The record of the proceeding before
the administrative judge shall be made part of the record
of the underlying proceeding for which coverage is sought.
Where a request for extended coverage is initially referred
to an administrative judge and ruled upon, there shall be
no further review.

RSCH Rule 5.1(f)(8) (emphases added). However, HNN did not

utilize the procedure prescribed by RSCH Rule 5.1(f)(8) for

obtaining administrative review of the FOF/COL. Instead, HNN

filed a motion for leave to appeal the FOF/COL pursuant to RSCH

Rule 5.1(f)(9), which, as discussed, HNN was not authorized to

do.

B. Jurisdiction Under HRS § 641-1

HNN also contends that the ICA has jurisdiction over

this appeal pursuant to HRS § 641-1.8 The relevant portions of

this statute provide as follows:

8
The ICA concluded that it lacked jurisdiction without discussing
HNN’s assertion, in its statement of jurisdiction, that HRS § 641-1 provides
the ICA with jurisdiction to review the FOF/COL and the Order Denying Leave
to Appeal.

12
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

(a) Appeals shall be allowed in civil matters from
all final judgments, orders, or decrees of circuit and
district courts and the land court to the intermediate
appellate court, subject to chapter 602.

(b) Upon application made within the time provided by
the rules of court, an appeal in a civil matter may be
allowed by a circuit court in its discretion from an order
denying a motion to dismiss or from any interlocutory
judgment, order, or decree whenever the circuit court may
think the same advisable for the speedy termination of
litigation before it. The refusal of the circuit court to
allow an appeal from an interlocutory judgment, order, or
decree shall not be reviewable by any other court.

HRS § 641-1 (emphases added). HNN’s argument fails for three

reasons: (1) it is not clear whether HNN’s appeal involves a

“civil matter” within the meaning of HRS § 641-1; (2) even

assuming that HNN’s appeal is a “civil matter,” the FOF/COL is

not a final appealable judgment, order, or decree under this

provision as required by HRS § 641-1(a); and (3) HRS § 641-1(b)

does not allow interlocutory appeals of civil matters

originating from the district court.

As a general matter, HRS § 641-1 applies only if an

appeal involves a civil matter. This court has previously

construed “civil” to mean “noncriminal” unless there is an

indication that the legislature has given that word a different

meaning. See Application of Sanborn, 57 Haw. 585, 588 n.1, 562

P.2d 771, 773 n.1 (1977). Black’s Law Dictionary defines

“civil” as “[o]f, relating to, or involving private rights and

remedies that are sought by action or suit, as distinct from

13
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

criminal proceedings.” Civil, Black’s Law Dictionary (10th ed.

2014). Black’s defines “civil action” as “[a]n action brought

to enforce, redress, or protect a private or civil right; a

noncriminal litigation.” Action, Black’s, supra.

Whether HNN’s request for extended coverage--the

subject of the appeal to the ICA--is a civil matter raises a

significant question. On the one hand, the dispute in this

appeal is between HNN and the parties in the underlying criminal

case, and the subject matter of the dispute--the scope of HNN’s

extended coverage--is noncriminal; to this extent, it is

arguably a civil matter. On the other hand, the matter raised

by this appeal is part and parcel of the underlying criminal

case on which HNN wishes to gain extended coverage, and the

extended coverage has at least the potential to affect matters

in the criminal action. In this way, this case may not be

entirely “civil” in character. See Civil, Black’s, supra. In

any event, whether HNN’s request for extended coverage is a

“civil matter” need not be resolved because, even assuming that

it is, HNN still cannot appeal from the FOF/COL under any of the

subsections of HRS § 641-1.

The FOF/COL cannot be appealed under HRS § 641-1(a)

because it is not “final” as required by that subsection. RSCH

Rule 5.1(f)(9) specifies that “an order regarding extended

14
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

coverage” is an interlocutory order. See RSCH Rule 5.1(f)(9)

(stating that “[a] party may seek appellate review of an order

regarding extended coverage, including any such order issued by

the administrative judge, pursuant to the procedures available

for review of other interlocutory orders” (emphasis added)).

Therefore, even assuming that HNN’s request for extended

coverage is a civil matter, the FOF/COL that resolved the case

cannot be appealed to the ICA as a matter of right pursuant to

HRS § 641-1(a).

In addition, assuming that HNN’s request for extended

coverage is a civil matter, the FOF/COL, which, as discussed, is

interlocutory in nature, is not appealable under HRS § 641-1(b).

The plain language of HRS § 641-1(b) does not appear to permit

an appeal from a district court’s interlocutory order arising

from a civil matter; the statute specifically limits appeals

from a civil interlocutory judgment, order, or decree to those

rendered by the circuit court. HRS § 641-1(b) (“[A]n appeal in

a civil matter may be allowed by a circuit court in its

discretion from an order denying a motion to dismiss or from any

interlocutory judgment, order, or decree whenever the circuit

court may think the same advisable for the speedy termination of

litigation before it.” (Emphases added)). Hence, assuming that

this appeal involves a district court civil matter under HRS §

15
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

641-1(b), the ICA would still not have jurisdiction over HNN’s

appeal because, at the outset, the FOF/COL in this case does not

qualify for interlocutory appeal pursuant to HRS § 641-1(b).9

C. The Jurisdictional Analysis of the ICA and the District
Court is Based on an Incorrect Reading of RSCH Rule 5.1

On appeal, the ICA held that it lacked appellate

jurisdiction over the case because HNN did not follow RSCH Rule

5.1(f)(8). This holding implies that, had HNN complied with

RSCH Rule 5.1(f)(8), the ICA would have had jurisdiction to

review the FOF/COL and the Order Denying Leave to Appeal.

Nilsawit, 137 Hawaii at 216, 367 P.3d at 710 (“HNN was required

9
The same is true if it were assumed that this case is criminal in
nature because “there is no analogous statute authorizing interlocutory
appeals from the district courts in criminal matters.” State v. Ontiveros,
82 Hawaii 446, 449, 923 P.2d 388, 391 (1996)); State v. Valiani, 57 Haw. 133,
134-35, 552 P.2d 75, 76 (1976) (“There is, however, no statutory warrant for
interlocutory appeals in criminal cases from district courts.”). These cases
involved the interpretation of HRS § 641-17, which, at the time when the
cases were decided, provided as follows:

Upon application made within the time provided by the rules
of court, an appeal in a criminal matter may be allowed to
a defendant from the circuit court to the supreme court
from a decision denying a motion to dismiss or from other
interlocutory orders, decisions or judgments, whenever the
judge in his discretion may think the same advisable for a
more speedy termination of the case. The refusal of the
judge to allow an interlocutory appeal to the supreme court
shall not be reviewable by any other court.

HRS § 641-17 (Supp. 1975) (emphasis added). It is noted that the State, in a
district court criminal case, is authorized to file an interlocutory appeal
in specified instances that do not include an appeal from an order involving
extended coverage. HRS § 641-13 (Supp. 2006).

16
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

to comply with the procedures under RSCH Rule 5.1(f)(8) in order

to appeal a court’s order on extended coverage.”). However,

RSCH Rule 5.1(f)(8) does not by its own terms provide an avenue

for appeal following the administrative judge’s review, and in

fact it provides that if the extended coverage decision was

initially referred to and ruled upon by the administrative

judge, then “there shall be no further review” of that decision.

RSCH Rule 5.1(f)(8). The limitation that inheres in RSCH Rule

5.1(f)(8) is qualified only to the extent that RSCH Rule

5.1(f)(9) allows a party to file a motion for leave to appeal

from an order issued by an administrative judge. RSCH Rule

5.1(f)(9). Thus, in cases where a member of the media requests

administrative review, the plain language of subsections (f)(8)

and (f)(9) of RSCH Rule 5.1 does not allow further appeal to the

ICA or to this court of the administrative judge’s ruling. See

Kahoohanohano v. Dep’t of Human Servs., 117 Hawaii 262, 288, 178

P.3d 538, 564 (2008) (stating that the fundamental starting

point in statutory interpretation is the language of the statute

itself). Accordingly, while the ICA was correct in holding that

it lacked appellate jurisdiction, it erred in implying that its

lack of jurisdiction stems from HNN’s failure to follow the

procedure under RSCH Rule 5.1(f)(8). The ICA would still have

17
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

had no jurisdiction over HNN’s appeal even if HNN strictly

complied with RSCH Rule 5.1(f)(8) because this subsection does

not provide an independent authority to appeal an administrative

judge’s decision and categorically proscribes nonparties from

seeking further review of such a decision. Thus, in that

situation, HNN would be precluded from seeking leave to appeal

pursuant to RSCH Rule 5.1(f)(9) as it is not a party and

because, as discussed supra, there is no statutory authority

that would have allowed HNN to appeal to the ICA from an

interlocutory order issued by the district court.

The ICA’s pronouncement that it had no appellate

jurisdiction, and its underlying reasoning, appears to encompass

the Order Denying Leave to Appeal. However, the reason for the

ICA’s lack of jurisdiction over the Order Denying Leave to

Appeal is not because of HNN's noncompliance with RSCH Rule

5.1(f)(8); it is simply because such an order is not appealable.

See generally HRS § 641-1(b) (“The refusal of the circuit court

to allow an appeal from an interlocutory judgment, order, or

decree shall not be reviewable by any other court.”); HRS § 641-

17 (“The refusal of the judge to allow an interlocutory appeal

to the appellate court shall not be reviewable by any other

court.”). Hence, even if HNN followed RSCH Rule 5.1(f)(8), the

Order Denying Leave to Appeal would still not be appealable.

18
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

The district court also erred in the reasons it

provided in denying HNN’s motion for leave to appeal filed

pursuant to RSCH Rule 5.1(f)(9). Contrary to the district

court’s reasoning, HNN’s motion for leave to appeal should have

been denied not because “HNN exceeded the five (5) day period to

file a motion for review of an order regarding coverage in

violation of Rule 5.1(f)(8).” Instead, HNN was precluded from

proceeding under RSCH 5.1(f)(9) because it was not a party and

there is no statutory right to appeal from an interlocutory

judgment, order, or decree entered by the district court in

civil cases, see HRS § 641-1(b), and, similarly, in criminal

cases (except by the State in prescribed instances), see supra

note 9; HRS §§ 641-13, 641-17. Thus, even assuming that HNN had

adhered to the administrative review process outlined in RSCH

Rule 5.1(f)(8), the district court would still have had to deny

HNN’s motion for leave to appeal filed pursuant to RSCH Rule

5.1(f)(9).

Based on the foregoing, HNN does not have a right to

appeal, pursuant to HRS § 641-1(a), from the district court’s

FOF/COL. Nor can HNN seek leave to appeal to the ICA pursuant

to RSCH Rule 5.1(f)(9) because it is not a party and, under HRS

§§ 641-1(b), 641-13, and 641-17, appeals from all civil

interlocutory orders and from criminal interlocutory orders

19
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

entered by the district court are not permitted, except as noted

supra. Thus, HNN’s only opportunity for review of the FOF/COL

would have been to seek administrative review pursuant to RSCH

Rule 5.1(f)(8).10

D. Media Entities Have Alternative Avenues to Seek Redress

HNN and the media, under circumstances similar to this

case, may commence an original proceeding in this court by

filing an application for a writ of mandamus and/or prohibition.

In cases where a court enters an order that “is not immediately

appealable or related to the merits” of the underlying

proceeding--circumstances that appear to be present in this

case--this court has intimated that “mandamus is the appropriate

remedy.” Kema v. Gaddis, 91 Hawaii 200, 204—05, 982 P.2d 334,

338—39 (1999); see State v. Hamili, 87 Hawaii 102, 104, 952 P.2d

390, 392 (1998) (stating that where there is no right to appeal,

a mandamus petition is the appropriate vehicle for challenging a

10
Notably, HRS § 602-4 (1993) establishes this court’s inherent
authority to control litigation before it. HRS § 602-4 states that “[t]he
supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where
no other remedy is expressly provided by law.” HRS § 602-4; see State v. Ui,
66 Haw. 366, 370, 663 P.2d 630, 633 (1983) (stating that the court may
exercise its supervisory power under HRS § 602-4 but declining to do so
because the circuit court did not err in interpreting the statute involved);
see, e.g., Gannett Pac. Corp. v. Richardson, 59 Haw. 224, 227, 580 P.2d 49,
53 (1978) (trial court’s closure of hearing to public necessitated this
court’s exercise of its supervisory power). HNN does not request this court
to exercise its supervisory power in this case, and thus, the potential
application of this statute need not be reached.

20
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

trial court’s actions alleged to have been made without

statutory authority); e.g., Oahu Publ’ns Inc. v. Ahn, 133 Hawaii

482, 488, 331 P.3d 460, 466 (2014) (using writs of mandamus and

prohibition as vehicles to challenge the circuit court’s order

sealing portions of court proceedings and closing the courtroom

to the public). Accordingly, HNN and the media at large are not

deprived of means to obtain redress, as they may apply for a

writ of prohibition and/or mandamus in challenging a trial

court’s order regarding extended coverage.11

IV. CONCLUSION

We hold that, other than by applying for an

extraordinary writ to this court, the only avenue through which

HNN could have sought review of the district court’s FOF/COL was

by filing a motion for review addressed to the appropriate

administrative judge, as prescribed by RSCH Rule 5.1(f)(8). In

addition, RSCH Rule 5.1(f)(9) does not authorize HNN to move for

an interlocutory appeal to the ICA as HNN is not a party in this

case, and HRS § 641-1, under the facts of this case, does not

provide an independent source of appellate jurisdiction to the

ICA. Therefore, the ICA was correct in dismissing HNN’s appeal

for lack of jurisdiction, but it erred in its reasoning.

11
The merits of HNN’s appeal need not be reached in light of our
disposition of this case.

21
 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

Accordingly, the ICA Judgment on Appeal is affirmed for the

reasons presented in this opinion.

Bruce D. Voss and /s/ Mark E. Recktenwald
David R. Major
for petitioner /s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson

22