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

Electronically Filed

Supreme Court

SCPW-13-0000017

08-MAY-2013

01:51 PM
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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
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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
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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