MARK H. K. GREER, Respondent/Plaintiff-Appellee,
ROSALYN H. BAKER, Petitioner/Defendant-Appellant, and STATE OF HAWAI'I, Respondent/Defendant-Appellee.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-15-0000034; CIV. NO. 14-1-2004-09)
Douglas S. Chin, Attorney General; James E. Halverson and Maria Cook, Deputy Attorneys General, for petitioner Rosalyn Baker.
Brian K. MacKintosh and Michael J. Green for respondent Mark H.K. Greer.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
This case arises from a lawsuit filed by Mark H. K. Greer, the former Chief of the General Medical & Preventative Services Division at the Hawai'i State Department of Health (DOH). On September 23, 2014, Greer filed a non-vehicle tort complaint in the Circuit Court of the First Circuit against the State of Hawai'i and Senator Rosalyn H. Baker. Greer's complaint alleged that Baker eliminated his position in retaliation for whistleblowing activities. Greer raised three claims for relief: Count I--violation of the Hawai'i Whistleblowers Protection Act (HWPA) (Hawai'i Revised Statutes (HRS) § 378-61 to 378-70); Count II-intentional infliction of emotional distress (IIED); and Count III-negligent infliction of emotional distress (NIED).
Baker moved to dismiss the Complaint on the grounds that: (1) she is immune from suit based on legislative immunity; (2) the claims were untimely under the applicable statute of limitations; and (3) the Complaint failed to state a claim upon which relief can be granted. Following a hearing,  the circuit court denied the motion to dismiss based on legislative immunity. The court granted Baker's motion as to the HWPA and NIED claims, but denied it as to the IIED claim.
Baker appealed to the Intermediate Court of Appeals from the circuit court's order granting in part and denying in part her motion to dismiss. Baker asserted that, based on Abercrombie v. McClung, 54 Haw. 376, 507 P.2d 719 (1973), the order was an immediately appealable final order to the extent it denied her defense of legislative immunity. The ICA dismissed the appeal for lack of appellate jurisdiction, concluding that the final judgment requirement set forth in Jenkins v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 869 P.2d 1334 (1994), overruled Abercrombie, and that no exceptions for appealability were satisfied. Baker timely petitioned this court for a writ of certiorari to review the ICA's judgment.
We conclude that the ICA has jurisdiction to hear Baker's appeal because the circuit court's order is an immediately appealable collateral order. The denial of Baker's absolute legislative immunity claim conclusively determined the disputed question, resolved an important issue separate from the merits of the action, and would be effectively unreviewable on appeal. See Abrams v. Cades, Schutte, Fleming & Wright, 88 Hawai'i 319, 322, 966 P.2d 631, 634 (1998). We therefore vacate the ICA's order dismissing Baker's appeal for lack of jurisdiction, and remand to the ICA for determination of the appeal on the merits.
A. Circuit Court Proceedings
On September 23, 2014, Greer, the former Chief of the General Medical & Preventative Services Division at DOH, filed a non-vehicle tort complaint in the circuit court against the State and Baker. Baker is the Senator for the Sixth State Senate District (South and West Maui).
The Complaint alleged that Baker introduced a budget amendment to eliminate Greer's position in retaliation for his whistleblowing activities regarding Medicaid fraud. The Complaint further alleged that Baker, outside her legislative capacity, colluded with the head of the DOH to have him fired.
Greer's Complaint raised three claims for relief: Count I--violation of the HWPA (Hawai'i Revised Statutes (HRS) § 378-61 to 378-70); Count II-IIED; and Count III-NIED.
Baker subsequently filed a Motion to Dismiss the Complaint based primarily on legislative immunity. Baker also moved to dismiss the HWPA claim on statute of limitations grounds and because Baker was not Greer's employer. Further, Baker moved to dismiss the IIED and NIED claims based on the applicable statute of limitations and the lack of an underlying cognizable claim.
By order entered on December 24, 2014, the circuit court granted in part and denied in part the motion to dismiss. As pertinent to the issue before this court, the circuit court denied Baker's motion to dismiss based on legislative immunity. The circuit court ruled as follows:
1. Defendant Baker's claim of legislative immunity is denied.
2. Defendant Baker's claim that the statute of limitations has expired is denied.
3. Count I based on violation of HRS § 378-62, the Hawai'i Whistleblowers Protection Act ("HWPA"), is dismissed as against Defendant Baker because Defendant Baker was not Plaintiff's employer. Count I remains against the State.
4. Count II based on intentional infliction of emotional distress ("IIED") is not dismissed against either Defendant Baker and the State.
5. Count III based on NIED is dismissed as against Defendant Baker, but remains against the State. Plaintiff has alleged an underlying cognizable claim against the State in Count I, based on the violation of the HWPA.
In sum, the IIED claim is the only remaining claim against Baker. All three claims remain against the State.
In response to the court's ruling, Baker filed a motion for leave to file interlocutory appeal and for stay pending appeal pursuant to HRS § 641-1(b). While Baker's motion was pending, Baker filed a notice of appeal from the court's ...