Electronically Filed
Supreme Court
SCPW-12-0000799
09-OCT-2012
01:37 PM
NO. SCPW-12-0000799
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
MICHAEL C. TIERNEY, Petitioner,
vs.
TED SAKAI, INTERIM DIRECTOR, DEPARTMENT OF PUBLIC SAFETY, STATE
OF HAWAI'I; SHARI KIMOTO; and JEANETTE BALTERO, Respondents.
ORIGINAL PROCEEDING
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, McKenna, and Pollack, JJ.,
with Acoba, J. dissenting)
Upon consideration of Michael C. Tierney’s September
19, 2012 petition for a writ of mandamus and the document
submitted in support thereof and attached thereto, it appears
that petitioner fails to demonstrate a clear and indisputable
right to return to Hawai'i to serve the remainder of his
sentence. See Malahoff v. Saito, 111 Hawai'i 168, 191, 140 P.3d
401, 424 (2006) (the term “shall” in a statute may be construed
as directory rather than mandatory); Jack Endo Elec., Inc. v.
Lear Siegler, Inc., 59 Haw. 612, 617, 585 P.2d 1265, 1269 (1978)
(same). Petitioner, therefore, is not entitled to mandamus
relief. 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). Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus is denied.
DATED: Honolulu, Hawai'i, October 9, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
DISSENT BY ACOBA, J.
I dissent to the denial of Petitioner Michael C.
Tierney’s petition for a writ of mandamus (Petition). I would
require Respondents Ted Sakai, Director of the Department of
Public Safety (DPS), Shari Kimoto, the mainland branch manager
for DPS, and Jeanette Baltero, the contract monitor for DPS to
file an answer to the Petition.
/s/ Simeon R. Acoba, Jr.
-2