Greer v. Baker.

***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

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.

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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. § 12915

5

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.

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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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