                                                       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.





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