Friday, September 04, 2015


Supreme Court to take up case involving alleged retaliation by powerful state senator

by Larry Geller

bakerThe Hawaii Supreme Court granted a writ of certiorari on Friday in a case of potentially great public interest. Mark H. K. Greer v. Rosalyn H. Baker and State of Hawaii seeks to establish if state senator Rosalyn Baker retaliated against a Department of Health whistleblower by eliminating his position. This means that the Supreme Court will schedule a hearing on the matter.

A summary of the allegations is just below, and anyone concerned with ethics in government might be interested in following this case to its conclusion.

But things got complicated, and it may or may not go forward.

Whether or not the public will learn the outcome of this charge, that is, whether Senator Baker was, indeed, motivated by retaliation in eliminating the whistleblower’s job, will hinge on the question of legislative immunity under Hawaii’s state constitution. If motivation is irrelevant and the senator has absolute immunity, then the public may learn nothing.

Let’s look at the allegations and quick summary, which is snipped from the first document that you can download (below). This is edited from the original. It’s my edit, and so is not a complete description of the case. Do not rely on it for any purpose.

As the Chief of the Dental Health Division and Chief of the General Medical and Preventive Services, Greer claims he uncovered what he believed to be systematic fraud and corruption among dental health providers on the island of Maui. The fraud Greer alleges included a dentist on Maui who Greer believed billed Medicaid for examinations but who failed to render treatment.

Greer alleges Senator Baker continued to promote the financial and professional interests of the Maui dentist.

Greer alleges he testified as an expert witness for the State resulting in the indictment of the Maui dentist for Medicaid fraud.

Greer acknowledges Senator Baker was never his employer.  Greer, however, alleges in retaliation for his whistleblowing activities, and in order to prevent more whistleblowing, Senator Baker attempted to use her power as Chair of the Senate Ways & Means Committee to eliminate his position from the 2008 State Budget. Greer contends Senator Baker eliminated the wrong position in 2008, but finally succeeded in eliminating his position in 2011 under the guise of fiscal necessity.

Greer alleges Senator Baker colluded with the then Department of Health Director, Loretta J. Fuddy, who issued an announcement on August 24,2011, stating two filled positions would be eliminated based on budget reduction requiring the need to implement a reduction in

The two positions that were eliminated were the Dental Health Administrator, Position Number 9606, EM 08, BU 35, occupied by Greer, and Secretary III, Position Number 09999, SR 16, BU 63, occupied by Caroline Albano, Greer's secretary.

Greer alleges he was laid off from his position on January 13,2012, and was laterally transferred into the Dental Health Program Manager position due to his seniority.

Greer alleges the elimination of his position through budget legislation was not based on fiscal necessity but based on Senator Baker's personal vendetta to support a friend or constituent and to retaliate against him. In support of his position, Greer claims only two positions were eliminated and the elimination of his position did not significantly affect the State of Hawaii's budget, because the person he displaced transferred to a vacant position with a reduction in salary of $3,000.  Greer contends the $3,000 reduction in salary of that employee represents the only savings to the State of Hawaii from the elimination of his position.

On September 23,2014, Greer filed a complaint in the circuit court, naming as defendants Senator Baker and the State of Hawaii ("State").

Greer alleges that the defendants' actions in abolishing his position violated the Hawaii Whistleblower Protection Act (HWPA) and caused him emotional distress. He alleges the following counts against the defendants in his complaint: HWPA (Count I); Intentional Infliction of Emotional Distress (IIED) (Count II); and Negligent Infliction of Emotional Distress (NIED) (Count III).

On October 15,2014, Senator Baker filed a motion to dismiss the complaint based on absolute legislative immunity.  Senator Baker also moved to dismiss the HWPA claim on statute of limitations grounds and because Senator Baker was not Greer's employer. Further, Senator Baker moved to dismiss the IIED and NIED claims based on the statute of limitations and the lack of an underlying cognizable claim.

On December 24,2014, the circuit court issued its order granting in part and denying in part Senator Baker's motion to dismiss. The circuit court denied Senator Baker's legislative immunity defense entirely.

Judge Rhonda A. Nishimura granted in part and denied in part Baker's motion to dismiss Greer's complaint. Baker appealed to the Intermediate Court of Appeals.

But the ICA said that it lacks appellate jurisdiction over the appeal basically because the lower court was not done with it.

A 1973 case, Abercrombie v. McClung figures in at this point: Abercrombie was a UH faculty member suing state senator McClung for slander, McClung appealed the denial of legislative immunity, Supreme Court granted him legislative immunity. Since then there have been significant changes in the rules for appeals.

The Supreme Court of Hawaii has subsequently noted that "the circuit courts are now governed by the Hawai'i Rules of Civil Procedure."

We won’t know until the Supreme Court hears oral arguments whether they intend to clarify the questions of legislative immunity or simply rule on whether the lower court must proceed, or whether the ICA does, indeed, have jurisdiction. Perhaps attorneys who can grasp the complexity of this issue might comment more, but as a non-attorney, I can only unscramble so much. I wish these cases came with Cliff Notes.

Oh, and you’ll need this definition of the term Interlocutory.

Here are three documents as your homework assignment for further reading. Two are OCR documents and may contain errors. Do not rely on these copies for any purpose—if you need official copies you can get them from the court website. In chronological order:


in the 1980s, Kinau Kamalii did not get David McClung's blanket immunity for identical off-floor statements. That was a more recent case than McClung's case. will be interesting to see if the Supreme Court sticks to what was done in Kamalii's case or if they go back to what they gave McClung. i always felt they didn't give Kamalii immunity because she was a woman, Hawaiian and a Republican. so it would be interesting to see how Baker's case unfolds. don't think in this day and age, what they did for McClung should be allowed but not sure if the facts in Baker's case are the same. Kamalii had a much stronger case for immunity than McClung did.

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