Electronically Filed
Supreme Court
SCPW-13-0000038
06-MAR-2013
08:43 AM
SCPW-13-0000038
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
ANTOINETTE SMITH, Petitioner-Respondent,
vs.
THE HONORABLE KEITH E. TANAKA, Judge of the Family Court of the
Second Circuit of the State of Hawai#i, Respondent,
and
KENT SMITH, PAULA SMITH, TIFFANY SMITH and ALEXANDRIA HOECK,
Respondents-Petitioners.
ORIGINAL PROCEEDING
ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND/OR PROHIBITION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)
On January 22, 2013, petitioner Antoinette Smith filed
a petition for a writ of mandamus and/or prohibition seeking an
order directing the respondent judge to dismiss the petition for
third-party visitation filed in FC-M No. 12-1-0146 on the grounds
that the family court lacks subject matter jurisdiction and
Hawai#i Revised Statutes § 571-46(a)(7) is unconstitutional.
Petitioner also seeks an order staying the family court
proceedings pending disposition of this original proceeding.
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. Kema v. Gaddis, 91 Hawai#i 200, 204, 982 P.2d 334, 338
(1999). Such writs are not intended to supercede the legal
discretionary authority of the lower courts, nor are they
intended to serve as legal remedies in lieu of normal appellate
procedures. Id. 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. Id. at 204-05, 982 P.2d
at 338-39.
Similarly, a writ of prohibition “is an extraordinary
remedy the object of which is not to cure a mere legal error or
to serve as a substitute for appeal, but to restrain a judge of
an inferior court from acting beyond or in excess of his
jurisdiction.” Honolulu Adv., Inc. v. Takao, 59 Haw. 237, 241,
580 P.2d 58, 62 (1978).
Upon consideration of the petition, the supporting
documents, and the record, it appears that petitioner can seek
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relief by way of an appropriate appeal. Moreover, petitioner
fails to demonstrate that the respondent judge exceeded his
jurisdiction, committed a flagrant and manifest abuse of
discretion, or refused to act on a subject properly before him
under circumstances in which he has a legal duty to act
sufficient to fall within the scope of mandamus and/or
prohibition relief. Accordingly,
IT IS HEREBY ORDERED that the petition for a writ of
mandamus and/or prohibition is denied.
DATED: Honolulu, Hawai#i, March 6, 2013.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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