                                                    Electronically Filed
                                                    Supreme Court
                                                    SCPW-11-0000640
                                                    27-SEP-2011
                                                    08:23 AM



                       NO. SCPW-11-0000640

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


         HAWAII STATE TEACHERS ASSOCIATION, Petitioner,

                               vs.

         HAWAII LABOR RELATIONS BOARD; JAMES B. NICHOLSON,
     Chairperson, Hawaii Labor Relations Board; SESNITA A.D.
        MOEPONO, Member, Hawaii Labor Relations Board; and
        ROCK B. LEY, Member, Hawaii Labor Relations Board,
                            Respondents.


                       ORIGINAL PROCEEDING
                      (Case No. CE-05-781)

                              ORDER
     (By: Recktenwald, C.J., Nakayama, Acoba, and Duffy, JJ.
  and Circuit Judge Trader, in place of McKenna, J., recused.)

          Upon consideration of the petition for a writ of

mandamus filed by petitioner Hawaii State Teachers Association

and the papers in support, it appears that: (1) no statute or

rule prescribes a time in which respondent Hawaii Labor Relations

Board (HLRB) must resolve a motion for interlocutory relief and

absent such prescribed time, the "timely" resolution under HRS §

89-5(i)(10) (Supp. 2010) of petitioner's motion for interlocutory

relief is within the discretion and judgment of respondent HLRB
and is not a ministerial duty subject to mandamus; (2) HRS § 377-

9(d) (Supp. 2010) requires "prompt" filing of a final order, not

an interlocutory order; and (3) there is no evidence that

respondent HLRB's ruling on petitioner's motion for interlocutory

relief, when issued, will not be supported by "findings of fact

and conclusions" pursuant to HRS § 89-5(e) (Supp. 2010).

           It further appears that: (1) there is no evidence that

respondent HLRB has not made full and complete disclosure of

communications received from the parties in Case No. CE-05-781;

(2) the hearing on petitioner's complaint in Case No. CE-05-781

commenced on August 30, 2011; and (3) HRS § 89-12(b)(2) (Supp.

2010) requires resolution only of Case No. CE-05-781 before

petitioner may exercise its right to strike.

           Therefore, petitioner is not entitled to mandamus

relief.   See HRS § 602-5(3) (Supp. 2010) (“The supreme court

shall have jurisdiction and power . . . [t]o exercise original

jurisdiction in all questions . . . arising under writs of

mandamus directed to public officers to compel them to fulfill

the duties of their offices[.];” In re Disciplinary Bd. of Hawaii

Supreme Court, 91 Hawai#i 363, 368, 984 P.2d 688, 693 (1999)

(Mandamus relief is available to compel an official to perform a

duty allegedly owed to an individual only if the individual’s

claim is clear and certain, the official’s duty is ministerial

and so plainly prescribed as to be free from doubt, and no other


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remedy is available; Salling v. Moon, 76 Hawai#i 273, 274 n.3,

874 P.2d 1098, 1099 n.3 (1994) (“A duty is ministerial where the

law prescribes and defines the duty to be performed with such

precision and certainty as to leave nothing to the exercise of

discretion and judgment.”).   Accordingly,

          IT IS HEREBY ORDERED that the petition for a writ of

mandamus is denied.

          DATED: Honolulu, Hawai#i, September 27, 2011.

                               /s/ Mark E. Recktenwald

                               /s/ Paula A. Nakayama

                               /s/ Simeon R. Acoba, Jr.

                               /s/ James E. Duffy, Jr.

                               /s/ Rom A. Trader




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