                                                       Electronically Filed
                                                       Supreme Court
                                                       SCPW-13-0000017
                                                       08-MAY-2013
                                                       01:51 PM



                         SCPW-13-0000017

           IN THE SUPREME COURT OF THE STATE OF HAWAI#I


            KALYN GOWAN, CORRINNA GOWAN, Petitioners,

                               vs.

              JUDGE EDWARD KUBO, Circuit Court Judge
             of the First Circuit, Respondent Judge,

                               and

                 STATE OF HAWAI#I, Respondent.


                       ORIGINAL PROCEEDING
                       (CR. NO. 12-1-1189)

           ORDER GRANTING IN PART AND DENYING IN PART
                APPLICATION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)

          On January 9, 2013, petitioners Kalyn Gowan (“Kalyn”)
and Corrinna Gowan (“Corrinna”) filed a petition for a writ of
mandamus directing the respondent judge to set aside their
convictions for summary contempt in Cr. No. 12-1-1189.     Kalyn
also seeks an order directing the respondent judge to recuse
himself from presiding further over his criminal case.
          By order entered on January 24, 2013, we directed the
respondent judge and the respondent State of Hawai#i (the
“State”) to answer the petition.   The respondent judge and the
State timely answered the petition.
          Upon consideration of the petition, the answers, the
respective supporting documents, and the record, we find that:
          (1)   As to Kalyn’s request for an order setting aside
his conviction for summary contempt, it appears that the findings
and conclusions set forth in the January 16, 2013 “Order Finding
Defendant in Contempt of Court Under 710-1077(1)(a) and (3)(a)
Hawai[#]i Revised Statutes” are inconsistent and not supported by
the record.   For example, the order states that Kalyn was given
“every opportunity to justify himself in this case, and he did
not produce any justification or mitigating facts to support his
disrespectful statement made to the Court.”      The record, however,
does not support this statement.       Nevertheless, at a December 17,
2012 hearing, Kalyn apologized to the respondent judge and the
respondent judge ruled that he would take no further action on
his contempt conviction.
          (2)   As to Corrinna’s request for an order setting
aside her conviction for summary contempt, it appears that the
circuit court had jurisdiction over Corrinna, see Peterson v.
Highland Music, 140 F.3d 1313, 1323 (9th Cir. 1998) (the court’s
contempt power extends to a non-party who either aids a party in
violating a court order or is legally identified with a party and
has notice of the order); Washington v. Washington State
Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 692 n.32
(1979) (anyone who takes steps deliberately to thwart the
enforcement of a judicial decree can be hauled into court and
dealt with summarily, even though he or she is not named in the

                                   2
decree, acting in concert with someone that is, or violating any
source of legal obligations other than the decree itself), but
should have addressed her alleged contemptuous conduct as
indirect constructive criminal contempt.   Based on the record,
Corrinna’s alleged contemptuous conduct was committed outside the
court’s view and the court lacked knowledge of all of the facts
constituting the alleged offense.    Corrinna’s conduct, therefore,
cannot constitute summary contempt and must be charged as
indirect constructive criminal contempt, which can only be
adjudicated by notice, a hearing, and other procedural
safeguards.   See HRS § 710-1077(3)(b) (1993).   In addition, for
indirect constructive criminal contempt, the hearing must be
before a different judge.   See State v. Brown, 70 Haw. 459, 467,
776 P.2d 1182, 1187-88 (1989).
          (3)   As to Kalyn’s request for the disqualification of
the respondent judge, mandamus relief is not warranted.
Adjudication of a motion to disqualify a judge is a discretionary
matter and Kalyn can seek further review of the denial of his
motions to disqualify by way of an appeal from a final judgment
entered in the case.   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; such a writ is not intended to supersede the
legal discretionary authority of the trial courts, cure a mere
legal error or serve as a legal remedy in lieu of normal

                                 3
appellate procedure); Honolulu Advertiser, Inc. v. Takao, 59 Haw.
237, 241, 580 P.2d 58, 62 (1978) (same).   Accordingly,
           IT IS HEREBY ORDERED that the application for a writ of
mandamus is granted in part and denied in part, as follows:
           A.   As to Kalyn, his request for mandamus relief is
granted to the extent that the “Order Finding Defendant in
Contempt of Court Under 710-1077(1)(a) and (3)(a) Hawai[#]i
Revised Statutes”, filed on January 16, 2013, is vacated.
Because the respondent judge has indicated that he would take no
further action on Kalyn’s contempt conviction after Kalyn
apologized, no further proceedings on the contempt matter are
necessary in the trial court.   Kalyn’s request for an order
directing the respondent judge to recuse himself from further
presiding over his criminal case is denied.
           B.   As to Corrinna, her request for mandamus relief is
granted to the extent that the “Order Finding Corrin[n]a Gowan in
Contempt of Court Under 710-1077(1)(g) and (3)(a) Hawai[#]i
Revised Statutes”, filed on January 10, 2013, is vacated and the
matter is remanded for proceedings not inconsistent with this
order.   The subsequent proceedings, if any, must be before a
different judge.
           DATED: Honolulu, Hawai#i, May 8, 2013.
                                /s/ Mark E. Recktenwald
                                /s/ Paula A. Nakayama
                                /s/ Simeon R. Acoba, Jr.
                                /s/ Sabrina S. McKenna
                                /s/ Richard W. Pollack



                                  4
