                                                      Electronically Filed
                                                      Supreme Court
                                                      SCPW-15-0000098
                                                      07-JUL-2015
                                                      03:29 PM



                         SCPW-15-0000098

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                  STATE OF HAWAI#I, Petitioner,

                               vs.

THE HONORABLE RANDAL K.O. LEE, Judge of the Circuit Court of the
       First Circuit, State of Hawai#i, Respondent Judge,

                               and

     TRACY T. YOSHIMURA, EUGENE M. SIMEONA, JR., MICHAEL D.
        MILLER, MICHAEL A. MADALI, JR., CLAYTON SIMEONA,
 DESIREE U. HAINA, QUENTIN D.R. CANENCIA, GARY G. DANLEY, JR.,
             and ALEXANDER R. ALEJANDRO, Respondents.


                       ORIGINAL PROCEEDING
                       (CR. NO. 14-1-0717)

      ORDER GRANTING IN PART PETITION FOR WRIT OF MANDAMUS
    (By: Recktenwald, C.J., and Pollack, J., with McKenna, J.,
             concurring, with whom Wilson, J., joins,
           and with Nakayama, J., concurring separately)

          Upon consideration of Petitioner State of Hawai#i’s

petition for a writ of mandamus, filed on February 25, 2015

(“Petition”), the Respondents’ answers of no position, the

respective supporting documents, and the record, it appears that

based on the case law adduced by the circuit court in favor of

disqualification, the circuit court’s finding that Deputy
Prosecuting Attorneys Katherine Kealoha and Jacob Delaplane

committed prosecutorial misconduct but that the misconduct “was

not done intentionally or maliciously, but was based on a lack of

experience” does not support the disqualification ordered by the

circuit court in its December 1, 2014 Findings of Fact,

Conclusions of Law, and Order Denying Defendant Yoshimura’s

Motion to Reconsider Order Granting State of Hawaii’s Ex Parte

Motion to Nolle Prosequi Without Prejudice; Granting in Part and

Denying in Part Defendant Simeona’s Oral Motion to Disqualify;

and Denying Defendant Yoshimura’s Oral Motion to Establish a

Deadline to Reindict (“Disqualification Order”).   It further

appears that Petitioner has made a showing of irreparable and

immediate harm that has not been contradicted by Respondents.

     Thus, under the specific facts and circumstances of this

matter, an extraordinary writ is warranted inasmuch as the basis

upon which the circuit court grounded the disqualification is

insufficient and Petitioner has made a showing of irreparable and

immediate harm as a result of the disqualification.   See Chuck v.

St. Paul Fire and Marine Ins. Co., 61 Haw. 552, 558, 606 P.2d

1320, 1324 (1980) (“[W]here the basis upon which the trial court

has rested its order of disqualification is clearly insufficient,

and a convincing showing is made in the petition that irreparable

and immediate harm would otherwise be the necessary consequence,

the petitioner’s application for a writ of mandamus will be

granted.”).   Accordingly,

                                2
           IT IS HEREBY ORDERED that the Petition is granted in

part.   The Disqualification Order is vacated to the extent it

disqualifies Deputy Prosecuting Attorney Katherine Kealoha and

Deputy Prosecuting Attorney Jacob Delaplane “from further

prosecution of this matter.”

           DATED: Honolulu, Hawai#i, July 7, 2015.

                               /s/ Mark E. Recktenwald

                               /s/ Sabrina S. McKenna

                               /s/ Richard W. Pollack

                               /s/ Michael D. Wilson




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