On January 23, 2013, HAWSCT Justice Sabrina McKenna and HAWSCT Staff Attorney Shellie Park-Hoapili joined the HSBA Appellate Section at their monthly meeting to discuss the topic “Writs of Mandamus and other Extraordinary Writs in the Hawaii Supreme Court.” Justice McKenna and Shellie provided an extremely informative presentation.
Currently, Justice McKenna is the lead judge at the court assigned to consider extraordinary writs (Justice Pollack is her back up if she is out of town). Shellie is the Staff Attorney assigned to assist her. Procedurally, after a writ is filed with the court, the Staff Attorney prepares a memorandum to the lead judge. The lead judge reviews the memo, talks with the Staff Attorney, finalizes the memo, and then circulates it to the other judges. After receiving back comments from the other judges, a final order is prepared and issued.
- Mandamus is difficult to obtain because the standard that must be met is high
- To qualify for mandamus relief, the petitioner must establish (1) a clear and indisputable right to relief, and (2) that no alternative remedies are available to seek relief
- Mandamus is not granted where the party can seek remedy through the ordinary appeal process
- For Writs of Habeas Corpus, the HAWSCT has concurrent jurisdiction with the trial court and thus will not grant mandamus relief until the defendant has first sought relief with the trial court (this results in a denial without prejudice in the HAWSCT)
- PRACTICE TIP: attach all relevant/helpful documents from the record to your petition
- Types of cases in which the HAWSCT has granted mandamus: lawyer/law firm disqualification, violation of constitutional rights (release of confidential information; trial communication with media; production of third-party records, due process); flagrant and manifest abuse of discretion by trial judge (refusal to bifurcate in divorced); election, election contest, and reapportionment issues
- Mandamus against a trial judgment will issue if the judge had refused to act when required, or does acts that are not allowed
- Mandamus against a pubic official is usually related to the failure to do something that the law requires (but there must be a clear and certain right in the law that is being ignored); excessive bail
- “per curiam” mandamus opinions means that the bulk of the work on the opinion was by a Staff Attorney
- 100-150 writs of mandamus are filed per year
- 75-80 writs of habeas corpus are filed per year
- the grant rate is less than 5-10%
- all of the judges read all of the filings (not just the lead judge)
- PRACTICE TIP: file a motion for temporary stay contemporaneously with the writ if you need the trial court proceedings stayed during the resolution of the writ
- PRACTICE TIP: when the HAWSCT requests an “answer” under the rule, this does not necessarily mean “answer” in the manner filed in the trial court. Rather, consider filing a document more akin to an appellate filing and including all an appendix of all relevant documents – because there may not be a later opportunity to file another document or attachments to support your case
Mahalo to Justice McKenna and Shellie for attending and providing the Section with this valuable information and practice tips!
For more on writs of mandamus, visit our prior post for a primer here.