                                                      Electronically Filed
                                                      Supreme Court
                                                      SCPW-12-0000633
                                                      27-SEP-2012
                                                      03:37 PM



                       NO. SCPW-12-0000633

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


           MAUI RADIOLOGY ASSOCIATES, LLP, Petitioner,

                               vs.

        THE HONORABLE KELSEY T. KAWANO, Respondent Judge,

                               and

     HAWAI#I HEALTH SYSTEMS CORPORATION; BOARD OF DIRECTORS,
  MAUI REGIONAL HEALTH CARE SYSTEM OF THE HAWAI#I HEALTH SYSTEM
             CORPORATION; WESLEY P. LO, Respondents.


                        ORIGINAL PROCEEDING
                     (CIVIL NO. 12-1-0660(2))

        ORDER DENYING PETITION FOR WRIT OF MANDAMUS OR,
             IN THE ALTERNATIVE, WRIT OF DIRECTION
     (By: Recktenwald, C.J., Nakayama, and McKenna, JJ., with
    Acoba, J., dissenting, with whom Circuit Judge Kim in place
                  of Pollack, J. recused, joins)

          Upon consideration of petitioner Maui Radiology

Associates, LLP’s petition for an emergency writ of mandamus or,

in the alternative, a writ of direction, filed on July 12, 2012,

the respondent judge’s answer, filed on August 28, 2012, and

respondent Hawai#i Health Systems Corporation and Wesley P. Lo’s

answer, filed on August 28, 2012, the respective documents
submitted in support thereof and in response thereto, and the

record, it appears that petitioner is not entitled to mandamus

relief inasmuch as it cannot be said 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 in which he has a legal duty to act in ruling as he

did, and petitioner can obtain appellate review of the respondent

judge’s jurisdictional determination once final judgment is

entered.    See Kema v. Gaddis, 91 Hawai#i 200, 204-05, 982 P.2d

334, 338-39 (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.    Such writs are not intended to supersede the legal

discretionary authority of the lower courts, nor are they

intended to serve as legal remedies in lieu of normal appellate

procedure.    Moreover, 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).

Therefore,


                                 -2-
          IT IS HEREBY ORDERED that the petition for a writ of

mandamus or, in the alternative, for a writ of direction is

denied.

          DATED:    Honolulu, Hawai#i, September 27, 2012.

                              /s/ Mark E. Recktenwald

                              /s/ Paula A. Nakayama

                              /s/ Sabrina S. McKenna




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