Electronically Filed

Supreme Court

SCPW-12-0000616

06-JUL-2012

08:10 AM

NO. SCPW-12-0000616

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

MYLES D. SAPUTO,

Petitioner,

vs.

THE HONORABLE BARCLAY MACDONALD, PER DIEM JUDGE OF THE DISTRICT COURT OF THE SECOND CIRCUIT, STATE OF HAWAI'I,

Respondent.

ORIGINAL PROCEEDING

ORDER DENYING PETITION (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ., and

Circuit Judge Pollack, assigned by reason of vacancy)

By letters dated June 25, 2012, Myles D. Saputo seeks review of the actions of Second Circuit District Per Diem Judge Barclay MacDonald in Case No. 2RC10-1-004119, Citibank (South Dakota), N.A. v. Myles D. Saputo. We view the letters as a petition for writ of mandamus.

A writ of mandamus and/or prohibition is

an extraordinary remedy that will not issue

unless the petitioner demonstrates a clear

and indisputable right to the relief

requested and a lack of other means to

redress adequately the alleged wrong or to

obtain the requested action. Straub Clinic &

Hospital v. Kochi, 81 Hawai'i 410, 414, 917 P.2d 1284, 1288 (1996). Such writs are not

meant to supersede the legal discretionary

authority of the lower court, nor are they

meant to serve as legal remedies in lieu of

normal appellate procedures. Id. Where a

trial 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 it has a legal duty to

act. Kema v. Gaddis, 91 Hawai'i 200, 204-205, 982 P.2d 334, 338-339 (1999).

Petitioner Saputo’s letters make a number of allegations, but provide nothing from the court record to support the allegations, and review of the public docket for case number 2RC10-1-004119 reveals the case is pending in the district court. Petitioner will have the opportunity to seek review by way of appeal after judgment is entered in case number 2RC10-1-004119. Therefore,

IT IS HEREBY ORDERED that the Clerk shall file Petitioner Saputo’s letters as a petition for writ of mandamus, without payment of the filing fee.

IT IS FURTHER ORDERED that the Petition is denied. This denial is without prejudice to any timely appeal, complaint

-2­ to the Commission on Judicial Conduct, or other lawful means of seeking redress.

DATED: Honolulu, Hawai'i, July 6, 2012.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

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