Greer v. Baker.

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Electronically Filed
Supreme Court
SCWC-15-0000034
22-FEB-2016
09:58 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
MARK H. K. GREER, Respondent/Plaintiff-Appellee,
vs.
ROSALYN H. BAKER, Petitioner/Defendant-Appellant,
and
STATE OF HAWAI#I, Respondent/Defendant-Appellee.
SCWC-15-0000034
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-15-0000034; CIV. NO. 14-1-2004-09)
FEBRUARY 22, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. Introduction
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
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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,1 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
1
The Honorable Rhonda A. Nishimura presided.
2
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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.
II. Background
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
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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:
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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).2 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.
2
HRS § 641-1(b) (Supp. 2014) provides:
Upon application made within the time provided by the
rules of court, an appeal in a civil matter may be
allowed by a circuit court in its discretion from an
order denying a motion to dismiss or from any
interlocutory judgment, order, or decree whenever the
circuit court may think the same advisable for the
speedy termination of litigation before it. The
refusal of the circuit court to allow an appeal from
an interlocutory judgment, order, or decree shall not
be reviewable by any other court.
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The 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.”
B. ICA Appeal
Baker 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.
Greer’s 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.
After 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
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that Abercrombie did not cite any statutory authority to support
its holding regarding appellate jurisdiction, thereby suggesting
that the Hawai#i Supreme Court may have invoked jurisdiction
through the court’s supervisory powers, which does not confer
jurisdiction on the ICA.
The majority then went on address the final judgment
requirement set forth in Jenkins, 76 Hawai#i 115, 869 P.2d 1334,
suggesting that it overruled Abercrombie. It concluded that under
Jenkins, absent an appealable final judgment, HRS § 641-1(a)3 did
not entitle Baker to appellate review of the order denying her
legislative immunity claim. Greer, Order at 7-8. The majority
also concluded that the order did not qualify as an appealable
final order under any of the exceptions to the separate judgment
rule: the Forgay doctrine, under Forgay v. Conrad, 47 U.S. 201(1848), the collateral order doctrine, or HRS § 641-1(b). Greer,
Order at 8-9.
In her dissent, Associate Judge Katherine Leonard opined
that the Abercrombie case was on point and binding on the ICA, and
therefore she would allow the appeal to proceed. Greer, Order at
10.
3
HRS § 641-1(a) (Supp. 2014) provides that “[a]ppeals shall be
allowed in civil matters from all final judgments, orders, or decrees . . . .”
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III. Standard of Review
“The existence of jurisdiction is a question of law that
[the appellate court reviews] de novo under the right/wrong
standard.” Captain Andy’s Sailing, Inc., v. Dep’t of Land &
Natural Res., State of Hawai#i, 113 Hawai#i 184, 192, 150 P.3d 833,
841 (2006) (internal quotation marks and citation omitted).
IV. Discussion
The issue before this court is whether a denial of a
motion to dismiss on grounds of absolute legislative immunity is
immediately appealable. We hold that it is.4
A. Framework for Filing an Appeal
There is no common law right to appeal. “The right to
appeal is purely statutory, and exists only when given by some
constitutional or statutory provision.” Lingle v. Haw. Gov’t
Employees Ass’n, 107 Hawai#i 178, 184, 111 P.3d 587, 593 (2005).
To avoid piecemeal litigation of every ruling, statutory rights to
appeal generally require a final disposition of the action. See
Mitchell v. State Dep’t of Educ., 77 Hawai#i 305, 308, 884 P.2d
368, 371 (1994). There are specific exceptions, including certain
judgments, orders, and decrees that are deemed final and
4
Baker argues in the alternative that this court should exercise
supervisory jurisdiction pursuant to HRS §§ 602-4 and 602-5. In view of our
disposition of this appeal, we do not address this argument.
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appealable when they are entered, and interlocutory appeals as
provided by statute.
1. The separate judgment rule
HRS § 641-1(a) authorizes appeals to the Hawai#i
Intermediate Court of Appeals from “final judgments, orders or
decrees of circuit and district courts[.]” (Emphasis added).
Appeals under HRS § 641-1(a) “shall be taken in the manner . . .
provided by the rules of court.” HRS § 641-1(c) (Supp. 2014).
Hawai#i Rules of Civil Procedure (HRCP) Rule 54(a) (2000) defines
“judgment” as follows: “‘Judgment’ as used in these rules
includes a decree and any order from which an appeal lies. A
judgment shall not contain a recital of pleadings, the report of a
master, or the record of prior proceedings.” HRCP Rule 58 (2010),
the so called “separate judgment rule,” provides in part that,
“[e]very judgment shall be set forth on a separate document.”
In Jenkins, this court explained that “[t]he separate
document provision was added to HRCP [Rule] 58 . . . and has been
generally ignored by practitioners and circuit courts alike.” 76
Hawai#i at 118, 869 P.2d at 1337. We held that “[a]n appeal may
be taken from circuit court orders resolving claims against
parties only after the orders have been reduced to a judgment and
the judgment has been entered in favor of and against the
appropriate parties pursuant to HRCP [Rule] 58[.]” Id. at 119,
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869 P.2d at 1338. The requirement that a judgment be memorialized
in a separate document cannot be waived. Id. “Thus, based on
Jenkins and HRCP Rule 58, an order is not appealable, even if it
resolves all claims against the parties, until it has been reduced
to a separate judgment.” Carlisle v. One (1) Boat, 119 Hawai#i
245, 254, 195 P.3d 1177, 1186 (2008).
2. Exceptions to the separate judgment rule
There are a number of exceptions to the separate
judgment rule that permit an appeal prior to the final resolution
of all of the issues in the case. Many of these exceptions are
statutory, such as HRS § 641-1(b) (Supp. 2014), which authorizes
an appeal from an interlocutory order if the appellant obtains the
express permission of the circuit court “whenever the circuit
court may think the same advisable for the speedy termination of
the litigation before it.” A refusal to grant an application for
interlocutory appeal is not reviewable by any other court. HRS §
641-1(b).
There are two common law exceptions to the separate
judgment rule. First, the collateral order doctrine authorizes an
appeal from an order that (1) conclusively determines a disputed
question, (2) resolves an important issue completely separate from
the merits of the action, and (3) is effectively unreviewable on
appeal from a final judgment. See Abrams, 88 Hawai#i at 322, 966
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P.2d at 634. Second, the Forgay doctrine authorizes an appeal
from (1) a judgment for immediate execution against an interest in
real property that is (2) effectively unreviewable on appeal from
a final judgment, even if all other claims of the parties have not
been finally resolved. See, e.g., Ciesla v. Reddish, 78 Hawai#i
18, 20, 889 P.2d 702, 704 (1995) (allowing an appeal based on
Forgay).
B. The Collateral Order Doctrine
The ICA majority, citing to Abrams and Brown v. Wong,
71 Haw. 519, 523, 795 P.2d 283, 285 (1990), concluded that the
circuit court’s order did not satisfy the requirements for
appealability under the collateral order doctrine. We disagree,
and conclude that denials of absolute legislative immunity meet
the three-part collateral order test as described by this court in
Abrams, 88 Hawai#i at 322, 966 P.2d at 634. Consequently, the ICA
has jurisdiction to hear Baker’s appeal.
In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541(1949), the United States Supreme Court explained an
interpretation of the finality requirement in 28 U.S.C. § 129155
28 U.S.C. § 1291 provides:
The courts of appeals (other than the United States
Court of Appeals for the Federal Circuit) shall have
jurisdiction of appeals from all final decisions of
the district courts of the United States, the United
States District Court for the District of the Canal
(continued...)
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that has come to be known as the collateral order doctrine.
Appeals are allowed from orders characterized as final under this
doctrine even though it may be clear that they do not terminate
the action or any part of it. See 15A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3911 (2d ed.
1987).
This court first applied the collateral order doctrine
in MDG Supply, Inc. v. Diversified Invs., Inc., 51 Haw. 480, 481-
82, 463 P.2d 530, 531-32 (1969). Since then, we have continued to
rely on the doctrine to exercise appellate jurisdiction over
certain appeals that are neither a final judgment nor have been
allowed by the circuit court as interlocutory appeals under HRS
§ 641(b). See, e.g., Ass’n of Owners of Kukui Plaza v. Swinerton
& Walberg Co., 68 Haw. 98, 107, 705 P.2d 28, 35 (1985) (orders
compelling or denying arbitration); Knauer v. Foote, 101 Hawai#i
81, 85, 63 P.3d 389, 393 (2003) (orders expunging a lis pendens).
We have explicitly recognized the collateral order doctrine as an
exception to the separate judgment rule. See Jenkins, 76 Hawai#i
5
(...continued)
Zone, the District Court of Guam, and the District
Court of the Virgin Islands, except where a direct
review may be had in the Supreme Court. The
jurisdiction of the United States Court of Appeals for
the Federal Circuit shall be limited to the
jurisdiction described in sections 1292(c) and (d) and
1295 of this title.
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at 117 n.1, 869 P.2d at 1336 n.1 (“This opinion is not intended to
apply to . . . appealable collateral orders.”); Lambert v.
Teisina, 131 Hawai#i 457, 461 n.8, 319 P.3d 376, 380 n.8 (2014)
(noting that the Forgay doctrine, the collateral order doctrine,
and HRS § 641-1(b) are “[e]xceptions to the separate, final
judgment requirement”).
1. The denial of Baker’s absolute immunity claim is an
immediately appealable collateral order
“The collateral order doctrine involves a three-part
test, all elements of which must be met in order to invoke
appellate jurisdiction.” Abrams, 88 Hawai#i at 322, 966 P.2d at
634. The order must “(1) conclusively determine the disputed
question, (2) resolve an important issue completely separate from
the merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment.” Id. (quoting Siangco v. Kasadate,
77 Hawai#i 157, 161, 883 P.2d 78, 82 (1994)).
Hawai#i appellate courts will “construe the collateral
order doctrine narrowly and be parsimonious in its application.”
Siangco, 77 Hawai#i at 162, 883 P.2d at 83. As we observed in
Abrams, the majority of cases in this jurisdiction regarding the
collateral order doctrine “have determined that the interlocutory
order is not appealable.” 88 Hawai#i at 321 n.4, 966 P.2d at 634
n.4 (emphasis in original). In addition, the appeal of a
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collateral order brings up for review only that order or the
orders that collectively led to entry of the collateral order
appealed. Cook v. Surety Life Ins. Co., 79 Hawai#i 403, 409, 903
P.2d 708, 714 (App. 1995).
Notably, Baker’s defense is one of absolute immunity.6
The nearly unanimous view across the nation is that a denial of
absolute immunity falls squarely under the collateral order
doctrine. See 15A Wright & Miller, Federal Practice and Procedure
§ 3911.3 n.6 (collecting cases). Hawai#i state legislators enjoy
legislative immunity under article III, section 7 of the Hawai#i
Constitution, which provides: “No member of the legislature shall
be held to answer before any other tribunal for any statement made
or action taken in the exercise of the member’s legislative
functions . . . .” We have held that this legislative immunity is
absolute. See Seibel v. Kemble, 63 Haw. 516, 521-22, 631 P.2d
173, 177 (1981) (“Legislators also have been accorded absolute
immunity for actions taken within the scope of their duties.”)
6
Compare Black’s Law Dictionary 867 (10th ed. 2014) (Absolute
immunity is “[a] complete exemption from civil liability, usu. afforded to
officials while performing particularly important functions, such as a
representative enacting legislation and a judge presiding over a lawsuit”),
with id. at 868 (Qualified immunity is “[i]mmunity from civil liability for a
public official who is performing a discretionary function, as long as the
conduct does not violate clearly established constitutional or statutory
rights.”). “The nature of qualified immunity doctrine bears on the
difficulties of the problem, because [qualified] immunity frequently depends
on the specific facts of a particular case.” 15A Wright & Miller, Federal
Practice and Procedure § 3914.10.
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(emphasis added); Abercrombie, 54 Haw. at 380, 507 P.2d at 721
(“[A]ppellant’s statements . . . can be construed as an exercise
of [his] legislative function and thus [are] absolutely
privileged.”). In this case, the ICA did not make any finding
otherwise; rather, it simply held that it did not have
jurisdiction to hear Baker’s appeal. Greer, Order at 3.
The first requirement of the collateral order doctrine,
whether the circuit court’s ruling conclusively decided a disputed
question, is met in this case. “The most basic element of
collateral order finality is that the [court] must have decided
the matter offered for appeal.” 15A Wright & Miller, Federal
Practice and Procedure § 3911.1.
This is not a case in which the circuit court would need
to “revisit the issue” of Baker’s claim. Cf. Siangco, 77 Hawai#i
at 161, 883 P.2d at 82; S. Ute Indian Tribe v. Amoco Prod. Co., 2
F.3d 1023, 1028-29 (10th Cir. 1993) (holding that the issue in
question was not conclusively determined because the court
declared that its order was preliminary). In denying the motion
to dismiss and thereby requiring Baker to defend the litigation,
the circuit court “conclusively determined” her claim of immunity:
“Defendant Baker’s claim of legislative immunity is denied.
Defendant Baker is not protected by legislative immunity[.]” For
the purposes of dismissal, the circuit court’s order was the
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“final word on the subject.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 869 (1994) (citation omitted).
The second requirement, that the order resolve an
important issue completely separate from the merits of the action,
is also met. The legislative immunity issue is conceptually
distinct from the merits of Greer’s claims. Absolute legislative
immunity is available to Baker if her action was “taken in the
exercise of [her] legislative functions[.]” Haw. Const. art. III,
§ 7. Whether an act is “legislative” generally “turns on the
nature of the act itself, rather than on the motive or intent of
the official performing it.” Bogan v. Scott-Harris, 523 U.S. 44,
45 (1998). That determination would be separate from a decision
on the merits of a HWPA,7 NIED, or IIED claim. See Doe Parents
7
Specifically, HRS § 378-62 (Supp. 2012) provides:
An employer shall not discharge, threaten, or
otherwise discriminate against an employee regarding the
employee’s compensation, terms, conditions, location, or
privileges of employment because:
(1) The employee, or a person acting on behalf
of the employee, reports or is about to
report to the employer, or reports or is
about to report to a public body, verbally
or in writing, a violation or a suspected
violation of:
(A) A law, rule, ordinance, or
regulation, adopted pursuant to law
of this State, a political
subdivision of this State, or the
United States; or
(B) A contract executed by the State, a
political subdivision of the State,
(continued...)
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No. 1 v. State Dep’t Of Educ., 100 Hawai#i 34, 69-70, 58 P.3d 545,
580-81 (2002) (describing the elements of an NIED claim); Young v.
Allstate Ins., Co., 119 Hawai#i 403, 429, 198 P.3d 666, 692 (2008)
(describing the elements of an IIED claim).
The third factor, whether the ruling would be
“effectively unreviewable” if appellate review is deferred until
there is a final judgment in the trial court, is also satisfied in
this case. In Kukui Plaza, we held that an order denying
arbitration fell under the collateral order doctrine because “it
will be too late effectively to review the present order when
final judgment is entered; for the rights conferred by HRS Chapter
658, if it is applicable, will have been lost, probably
irreparably.” 68 Haw. at 105-06, 705 P.2d at 34 (citations and
quotation marks omitted). And in Knauer v. Foote, this court held
that an order expunging a lis pendens meets the collateral order
criteria because “if the movant had to wait until final judgment
on the underlying claim, the realty could be sold before the issue
7
(...continued)
or the United States,
unless the employee knows that the
report is false; or
(2) An employee is requested by a public body
to participate in an investigation,
hearing, or inquiry held by that public
body, or a court action.
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was resolved, thereby rendering the order unreviewable.” 101
Hawai#i at 85, 63 P.3d at 393.
The concern in those cases–-that an appellant’s right
might be irreparably lost–-is present here. Legislative immunity
is an immunity from suit, rather than a mere defense to liability.
By requiring the legislator to proceed as a party until a final
judgment, the entitlement not to stand trial or face the other
burdens of litigation would be lost. See Abercrombie, 54 Haw. at
381, 507 P.2d at 722 (“[I]t is ridiculous to resolve the question
of law as to whether the appellant can be held answerable before
‘any other tribunal’ after he has been subjected to trial.”); see
also State v. Ontiveros, 82 Hawai#i 446, 451, 923 P.2d 388, 393
(1996) (noting that the district court’s denial of a motion to
dismiss was dissimilar from “denials of motions to dismiss based
on arguments that . . . would establish that the defendant has a
right not to be tried[,]” which “are collateral orders immediately
appealable as final decisions”) (citing Abney v. United States,
431 U.S. 651 (1977)).
That absolute immunity is intended to protect against
the burdens of trial was made explicit in Mitchell v. Forsyth, 472
U.S. 511 (1985), which allowed a collateral order appeal from a
pretrial denial of a defense of official immunity. The Supreme
Court, in ruling that the appeal was proper, noted that, “the
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denial of a substantial claim of absolute immunity is an order
appealable before final judgment, for the essence of absolute
immunity is its possessor’s entitlement not to have to answer for
his conduct in a civil damages action.” Id. at 525 (citations and
quotation marks omitted); see Nixon v. Fitzgerald, 457 U.S. 731,
742 (1982).
Indeed, denial of absolute immunity has been considered
the embodiment of a ruling that is unreviewable from a final
judgment, as it is “intended to protect against the burdens
imposed by the trial process as well as the burden of adverse
judgment.” 15A Wright & Miller, Federal Practice and Procedure
§ 3911.3; see id. at § 3914.1 (stating that the best illustration
of “rights intended to protect against the burden of trial rather
than simply to protect against the entry of judgment” is provided
by appeals based on claims of official immunity); Flanagan v.
United States, 465 U.S. 259, 267 (1984).
In the instant case, the circuit court’s order denying
Baker’s motion to dismiss based on legislative immunity
conclusively determined whether Baker would need to undergo the
burdens imposed by the trial process. Baker’s immunity claim was
completely separate from the underlying action in which Greer
sought relief under the HWPA and for his claims of NIED and IIED.
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Once Baker is required to go to trial, the entitlement not to
stand trial or face the other burdens of litigation would be lost.
We therefore conclude the order denying Baker’s absolute
immunity claim was an immediately appealable collateral order.
2. The ICA erred in concluding that the circuit court’s
order did not qualify as a collateral order
The ICA concluded, without conducting the three-part
test in Abrams, that the circuit court’s order did not satisfy the
requirements of the collateral order doctrine, and did so in part
by relying upon Brown v. Wong, 71 Haw. at 522, 795 P.2d at 285.
Greer, Order at 8.
In Brown, we held that “a pre-trial order denying a
motion to dismiss or for judgment on the pleadings or for summary
judgment, on the basis of sovereign immunity, is not a collateral
order, final in nature, and appealable in actions brought against
the State under HRS Chapters 661 and 662.” 71 Haw. at 522, 795
P.2d at 285 (emphasis added). Our reasoning was that in addition
to our “long standing policy against piecemeal appeals[,]” there
was no reason why the State, like any other party, “should not be
required to establish, by summary judgment, the non-existence of
genuine issues of material fact, or be required, failing that, to
proceed to trial.” Id.20
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Brown is distinguishable, insofar as the immunity
protected under sovereign immunity is not the same as legislative
immunity. Under HRS § 662-2 (1993), the waiver of sovereign
immunity is limited to “immunity from liability[.]” (Emphasis
added). Immunity from liability is not necessarily “effectively
unreviewable,” as a party could have an adverse denial of summary
judgment reversed on appeal. On the other hand, legislative
immunity involves immunity from suit: “No member of the
legislature shall be held to answer before any other tribunal[.]”
Haw. Const. art. III, § 7; see also Abercrombie, 54 Haw. at 381,
507 P.2d at 722. Once Baker is required to go to trial, the
entitlement not to stand trial would be irreparably lost.
In addition, the Brown court was concerned with the
State, “in every case, . . . us[ing] the claim of sovereign
immunity as a vehicle for having numerous genuine material factual
issues reviewed on appeal[.]” Brown, 71 Haw. at 522, 795 P.2d at
284. In other words, on appeal the State would be able to
“bundle” its sovereign immunity claim with the other issues in the
case, effectively bypassing the requirement of a final judgment.
That concern is not present here. An appeal of a denial of
legislative immunity could not bring with it the other claims at
issue, otherwise it would fail the second requirement of the
collateral order doctrine--that the order resolve an important
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issue completely separate from the merits of the action. Thus,
Brown is not dispositive of the issue, and the ICA has
jurisdiction to hear Baker’s appeal.
C. Jenkins has Not Overruled Abercrombie
The ICA held that if Abercrombie assumed jurisdiction
pursuant to HRS § 641-1(a), the subsequent holding in Jenkins has
overruled it. Greer, Order at 5-7. HRS § 641-1(a) allows appeals
“from all final judgments, orders, or decrees of circuit and
district courts and the land court to the intermediate appellate
court, subject to chapter 602.”
Jenkins did not overrule the holding in Abercrombie. In
short, based on the Abercrombie majority’s reasoning and the case
it cited, Gillespie v. U.S. Steel Corp., 379 U.S. 148 (1964), the
Abercrombie court treated the denial of legislative immunity as an
immediately appealable collateral order. Since Jenkins does not
apply to collateral orders, it did not overrule Abercrombie.
In Abercrombie, the plaintiff sued a state senator for
slander. 54 Haw. at 376-77, 507 P.2d at 719-20. The senator
filed a motion to dismiss based on legislative immunity. The
circuit court treated the motion to dismiss as a motion for
summary judgment and denied the motion. Id. Thereafter, the
senator filed a “Motion for Summary Judgment or to Reserve
Questions of Law to Supreme Court[,]” claiming that “there is no
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genuine issue as to any material fact and that defendant is
entitled to judgment as a matter of law[.]” Id. at 377, 507 P.2d
at 720. The circuit court denied the state senator’s motion. Id.
On appeal, the supreme court concluded that the order
denying the senator’s motion for summary judgment based on
legislative immunity was an immediately appealable final order:
It is well established that under usual circumstances a
denial of a motion for summary judgment would be
interlocutory; however, it does not necessarily mean
that denial of the motion for summary judgment in this
case is therefore interlocutory. This court has
repeatedly stated that a final decision for the purpose
of appeal is not necessarily the last decision in the
case, and that the nature and effect of the decision
rather than the stage at which it is rendered is the
true test.
. . . .
Here, the trial court’s denial of the motion for
summary judgment is final as to appellant’s right to
raise the issue whether the trial court lacked
jurisdiction to try him for statements made by him as a
member or our legislature, in the light of our
constitutional provision reading “no member of the
legislature shall be held to answer before any other
tribunal.”
. . . .
In seeking a just and expeditious resolve and to meet
the need of sparing the litigants unnecessary
expenditure of time, effort and money, we conclude that
the trial court’s order denying appellant’s motion for
summary judgment is an appealable final order.
Id. at 380-81, 507 P.2d at 721-22 (quotation marks omitted;
emphases added).8
8
In a later opinion, the supreme court ruled on the merits of the
senator’s appeal and held that allegedly slanderous statements made by a
legislator in the exercise of his or her legislative function are absolutely
privileged. See Abercrombie v. McClung, 55 Haw. 595, 600, 525 P.2d 594, 597
(1974).
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While the court used the general phrase “appealable
final order,” the majority’s reasoning and cited cases indicate
that the denial of legislative immunity was a specific type of
appealable final order–-a collateral order.
In support of its holding regarding appellate
jurisdiction, Abercrombie cited, and used nearly identical
language to, the United States Supreme Court’s opinion in
Gillespie. Importantly, Gillespie cited extensively to Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the case that
served as the basis for the collateral order doctrine.
That the Abercrombie court did not explicitly reference
the collateral order doctrine is less significant because that
phrase was not yet widely used. Though Cohen set the groundwork,
the Supreme Court did not use the term “collateral order” until
1977, see Abney, 431 U.S. at 657, and did not use the term
“collateral order doctrine” until 1978, see United States v.
MacDonald, 435 U.S. 850, 855 (1978). Before that, the Supreme
Court was engaging in the same type of “finality analysis” present
in Abercrombie. Compare Abercrombie, 54 Haw. at 380, 507 P.2d at
721 (“[A] final decision for the purpose of appeal is not
necessarily the last decision in the case[.]”), with Gillespie,
379 U.S. at 152 (“[A] decision ‘final’ within the meaning of [the
statute governing appeals] does not necessarily mean the last
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order possible to be made in a case.”); see also Cohen, 337 U.S.
at 546-47 (“We hold this order appealable because it is a final
disposition of a claimed right which is not an ingredient of the
cause of action and does not require consideration with it.”).
Moreover, the Abercrombie court’s holding that the trial
court’s denial was “final” was based on reasons similar to that of
the modern-day collateral order doctrine. Compare Abercrombie, 54
Haw. at 381, 507 P.2d at 722 (“[T]he trial court’s denial . . . is
final as to appellant’s right to raise the issue [of
jurisdiction.]”), with Kukui Plaza, 68 Haw. at 106, 705 P.2d at 34(Arbitration denial was an appealable collateral order because “it
[would] be too late effectively to review the present order when
final judgment is entered[.]”) (quotations omitted). In short,
the senator in Abercrombie had a constitutional right not to stand
trial, and the trial court’s denial of summary judgment was final
as to that right. The Abercrombie court’s conclusion that the
denial was “an appealable final order” was based on principles
akin to a collateral order.
Since Abercrombie is most accurately construed as a
collateral order, Jenkins does not apply to it. See Jenkins, 76
Hawai#i at 117 n.1, 869 P.2d at 1336 n.1 (“This opinion is not
intended to apply to . . . appealable collateral orders.”);
Lambert, 131 Hawai#i at 461 n.8, 319 P.3d at 380 n.8 (“Exceptions
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to the separate, final judgment requirement include . . . the
collateral order doctrine[.]”). The ICA was therefore incorrect
in holding that if Abercrombie assumed appellate jurisdiction
pursuant to HRS § 641-1(a), the subsequent holding in Jenkins has
overruled it.
V. Conclusion
For the forgoing reasons, we vacate the ICA’s May 26,
2015 order dismissing Baker’s appeal for lack of jurisdiction and
remand this case to the ICA for determination of the appeal on its
merits.
Douglas S. Chin, Attorney /s/ Mark E. Recktenwald
General; James E. Halverson
and Maria Cook, Deputy /s/ Paula A. Nakayama
Attorneys General, for
petitioner Rosalyn Baker. /s/ Sabrina S. McKenna
Brian K. MacKintosh and /s/ Richard W. Pollack
Michael J. Green for
respondent Mark H.K. Greer. /s/ Michael D. Wilson
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