                                                      Electronically Filed
                                                      Supreme Court
                                                      SCPW-13-0001153
                                                      29-JAN-2013
                                                      08:34 AM




                           SCPW-13-0001153

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


               KAPONO KANIELA TUMALE, Petitioner,

                                 vs.

       Acting in Their Official Capacity as Agents of the
     State of Hawai#i, KEITH TAGUMA, LYLE KEANINI, LAWRENCE
  TILLEY, JOHN KIM, DAVID LOUIE, ADRIANNE HEELY, and Appellate
        Judges FUJISE, REIFURTH, and GINOZA, Respondents.


                       ORIGINAL PROCEEDING

           ORDER DENYING PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

          Upon consideration of petitioner Kapono Kaniela
Tumale’s petition for a writ of mandamus, filed on January 3,
2013, the documents attached thereto and submitted in support
thereof, and the record, it appears that petitioner is not
entitled to mandamus relief.   Petitioner does not have a clear
and indisputable right to proceed with his appeal without paying
the required filing fee.   See HRAP Rule 24.   Moreover, petitioner
fails to demonstrate that the ICA judges exceeded their
jurisdiction in denying his motion to proceed in forma pauperis
and dismissing his appeal for failing to pay the filing fee, that
the ICA judges committed a flagrant and manifest abuse of
discretion in doing so, or that the ICA judges have refused to
act on a subject properly before them under circumstances in
which they have a legal duty to act.    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; 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,
           IT IS HEREBY ORDERED that the clerk of the appellate
court shall process the petition for a writ mandamus without
payment of the filing fee.
           IT IS HEREBY FURTHER ORDERED that the petition for a
writ of mandamus is denied.
           DATED:   Honolulu, Hawai#i, January 29, 2013.
                                /s/ Mark E. Recktenwald
                                /s/ Paula A. Nakayama
                                /s/ Simeon R. Acoba, Jr.
                                /s/ Sabrina S. McKenna
                                /s/ Richard W. Pollack
