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.
S. Chin, Attorney General; James E. Halverson and Maria Cook,
Deputy Attorneys General, for petitioner Rosalyn Baker.
K. MacKintosh and Michael J. Green for respondent Mark H.K.
C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
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).
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.
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
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
Circuit Court Proceedings
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).
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
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.
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.
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
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.
the IIED claim is the only remaining claim against Baker. All
three claims remain against the State.
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 order granting in part and denying in part
Baker's motion to dismiss.
court denied Baker's motion for leave, ruling that the
interlocutory appeal would not result in the speedy
termination of the litigation for " all parties."
filed a statement of jurisdiction with the ICA, asserting
that the December 24, 2014 interlocutory order was an
appealable final order to the extent it denied her defense of
legislative immunity based on Abercrombie, 54 Haw.
at 380-81, 507 P.2d at 721-22 (denial of motion for summary
judgment based on legislative immunity was final and
appealable). Baker noted that " cases from around the
country show that a denial of legislative immunity . . . is
immediately appealable[.]" A number of Baker's cited
cases relied on the collateral order doctrine.
jurisdictional statement argued that his Complaint alleged
behavior outside the exercise of Baker's legislative
functions and, therefore, the actions alleged in the
Complaint are not afforded the protection of immediate
appellate review established by Abercrombie. Greer did not
argue that Abercrombie was overruled or did not apply.
the opening brief was filed but before the answering and
reply briefs, the ICA, by a 2-1 majority, dismissed the
appeal for lack of appellate jurisdiction. Greer v.
Baker, No. CAAP-15-34 (App. May 26, 2015) (Order). The
majority noted that Abercrombie did not cite any statutory
authority to support its holding regarding appellate
jurisdiction, thereby suggesting that the Hawai'i Supreme
Court may ...