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.
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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
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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
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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.
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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.
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(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
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