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NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-OCT-2025
07:50 AM
Dkt. 35 MO
NO. CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX
(consolidated)

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

LINDA S. MARTELL, Petitioner/Appellant-Appellee, v.
EMPLOYEE RETIREMENT SYSTEM, STATE OF HAWAI I and
BOARD OF TRUSTEES OF THE EMPLOYEE RETIREMENT SYSTEM,
STATE OF HAWAI I, Respondents/Appellees-Appellants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Wadsworth and McCullen, JJ.)
In this secondary agency appeal, Respondent/Appellee-

Appellant Employee Retirement System, State of Hawai i (the ERS),

and Appellee-Appellant Board of Trustees of the Employee

Retirement System, State of Hawai i (the ERS Board)

(collectively, the ERS Parties), appeal from the August 10, 2022

Final Judgment (Judgment), and the September 9, 2022 Amended

Final Judgment (Amended Judgment), both entered by the Circuit

Court of the First Circuit (Circuit Court) in favor of

Petitioner/Appellant-Appellee Linda S. Martell (Martell).1 The

ERS Parties also challenge the Circuit Court's August 10, 2022

1
The Honorable James S. Ashford presided.
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Order Resolving Appeal (Order Resolving Appeal) and September 9,

2022 Order Granting Appellant's Motion to Amend and Correct Final

Judgment (Order to Amend Judgment).

I. BRIEF SUMMARY OF PROCEEDINGS

On January 16, 2018, this case was initiated by Martell

with a Petition for Contested Case Hearing (Petition) alleging

that the ERS improperly stopped crediting her service as a per

diem judge toward her retirement benefits, as stated in a

November 16, 2017 letter from the ERS to Martell (2017 ERS

Letter). Martell sought continued ERS membership and services

and alleged, inter alia, that the ERS engaged in illegal rule-

making. On October 26, 2020, Martell filed an Amended Petition

for Contested Case Hearing (Amended Petition), which added a

breach of contract claim. After various filings by the parties,

and a hearing before an Administrative Hearings Officer (Hearings

Officer), the Hearings Officer issued a decision on January 7,

2021, mostly in favor of the ERS, which was sent to the ERS Board

for review and determination.

The ERS Board issued a Proposed Decision on August 2,

2021 (Proposed Decision), Martell filed exceptions, ERS filed

objections to the exceptions, and a hearing was held. On

November 17, 2021, the ERS Board entered a Final Decision that,

inter alia, denied and dismissed the Amended Petition (Final

Decision).

Martell timely appealed the Final Decision to the

Circuit Court. After briefing by the parties, and a hearing, on

May 27, 2022, the Circuit Court entered a minute order, ruling

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that Martell was entitled to relief from the Final Decision, but

requesting further briefing on the remedy. After further

briefing and a hearing, the Circuit Court entered the Order

Resolving Appeal, which reversed the Final Decision and remanded

the case to the ERS Board with instructions, and the Judgment.

The Circuit Court subsequently entered a further order and the

Amended Judgment, correcting the date range of Martell's further

creditable service.

On September 7 and 12, 2022, the ERS Parties timely

appealed to this court from the Judgment and the Amended

Judgment, respectively. Martell did not cross-appeal from the

Circuit Court's ruling that the ERS did not err in rejecting

Martell's claims for contractual and/or equitable relief.

II. POINTS OF ERROR

The ERS Parties raise two points of error on appeal,

contending that: (1) the Circuit Court erred in ruling that the

ERS's March 6, 1990 Memorandum (1990 Memorandum) and the ERS's

October 20, 2017 Memorandum (2017 Memorandum) are rules; and (2)

assuming, arguendo, that the 1990 and 2017 Memoranda are rules,

the Circuit Court erred in reversing the ERS Board's Final

Decision and awarding further service credit to Martell.

III. APPLICABLE STANDARDS OF REVIEW

"Review of a decision made by the circuit court upon

its review of an agency's decision is a secondary appeal. The

standard of review is one in which this court must determine

whether the circuit court was right or wrong in its decision,

applying the standards set forth in Hawaii Revised Statutes (HRS)

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§ 91-14(g) [1993] to the agency's decision." Flores v. Bd. of

Land & Nat. Res., 143 Hawai i 114, 120, 424 P.3d 469, 475 (2018)

(citing Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai i 412,

416, 91 P.3d 494, 498 (2004)). Pursuant to HRS § 91-14(g) (Supp.

2024),2 an agency's conclusions of law are reviewed de novo,

while under HRS § 91-14(g)(5), an agency's factual findings are

reviewed for clear error. Paul's Elec. Serv., 104 Hawai i at

420, 91 P.3d at 502 (internal citation omitted).
In order to preserve the function of administrative agencies
in discharging their delegated duties and the function of
this court in reviewing agency determinations, a presumption
of validity is accorded to decisions of administrative
bodies acting within their sphere of expertise and one
seeking to upset the order bears "the heavy burden of making
a convincing showing that it is invalid because it is unjust
and unreasonable in its consequences."

Sierra Club v. D.R. Horton-Schuler Homes, LLC, 136 Hawai i 505,

2
HRS § 91-14 provides in relevant part:

§ 91-14 Judicial review of contested cases.

. . . .

(g) Upon review of the record, the court may affirm
the decision of the agency or remand the case with
instructions for further proceedings; or it may reverse or
modify the decision and order if the substantial rights of
the petitioners may have been prejudiced because the
administrative findings, conclusions, decisions, or orders
are:

(1) In violation of constitutional or statutory
provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record; or

(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly unwarranted exercise
of discretion.

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516, 364 P.3d 213, 224 (2015) (quoting In re Haw. Elec. Light

Co., 60 Haw. 625, 630, 594 P.2d 612, 617 (1979)). "'[I]n

deference to the administrative agency's expertise and experience

in its particular field, the courts should not substitute their

own judgment for that of the administrative agency where mixed

questions of fact and law are presented. This is particularly

true where the law to be applied is not a statute but an

administrative rule promulgated by the same agency interpreting

it.'" Fratinardo v. Emps.' Ret. Sys., 129 Hawai i 107, 111, 295

P.3d 977, 981 (App. 2013) (quoting Camara v. Agsalud, 67 Haw.

212, 216, 685 P.2d 794, 797 (1984)). Accordingly, appellate

courts review findings of fact and mixed questions of law and

fact under the "clearly erroneous" standard, BCI Coca-Cola

Bottling Co. of L.A., Inc. v. Murakami, 145 Hawai i 38, 43, 445

P.3d 710, 715 (2019), because the conclusion is dependent upon

the facts and circumstances of the particular case. Yoshii v.

State, 137 Hawai i 437, 447, 375 P.3d 216, 226 (2016).

Statutory interpretation is a question of law

reviewable de novo. Stout v. Bd. of Trustees of the Emps. Ret.

Sys., 140 Hawai i 177, 185, 398 P.3d 766, 774 (2017) (citation

omitted).

IV. DISCUSSION

A. Exclusion From ERS Membership

The overarching issue in this case is whether the ERS

was wrong in concluding that, as a per diem judge, Martell was

excluded from ERS membership as of October 1, 2017.

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As stated above, on November 16, 2017, the ERS wrote to

Martell and informed her that the ERS would no longer credit her

part-time per diem judge service toward her ERS retirement

benefits, effective October 1, 2017. Specifically, the ERS

stated:
As of October 1, 2017, the ERS will no longer credit
membership service as per diem judge as the position is
based on 20% full time equivalence (FTE) which does not meet
the ERS requirement of membership service. The ERS
revisited the Hawaii Administrative Rules, specifically,
Section 6-21-14, Employees excluded from membership, which
states in part

"(5) Persons in any position requiring less than
one-half or full time employment, including but not
limited to, lecturers . . . "
Prior to September 30, 2017, the ERS credited your per diem
judge service which you have accrued provided you worked at
least 10 days per month and retirement contributions at 7.8%
was deducted from your salary. Any retirement contributions
deducted after October 1, 20l7 will be refunded to you via
Judiciary payroll and interest earned will be refunded by
the ERS.

In the Final Decision, the ERS Board also concluded

that under HRS § 88-43 (2012) and Hawaii Administrative Rules

(HAR) §§ 6-21-14(5) and 6-21-15(a), Martell was not eligible for

ERS membership and/or credit for her part-time service as a per

diem judge, effective October 1, 2017. In the Order Resolving

Appeal, the Circuit Court concluded that the ERS Board did not

err in its interpretation of HAR § 6-21-14. The Circuit Court

nevertheless concluded that Martell could not be excluded from

ERS membership beginning on October 1, 2017, because the ERS's

October 20, 2017 Memorandum constituted illegal rule-making.

We begin with the statutes applicable to ERS membership

here. HRS § 88-42 provides, in part:
§ 88-42 Membership generally. Except as otherwise
provided in this part, all employees of the Territory or any
county on July 1, 1945, shall be members of the system on
that date, and all persons who thereafter enter or reenter
the service of the State or any county shall become members
at the time of their entry or reentry. Per diem workers
shall become eligible for membership on January 1, 1952, and

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all persons who are employed as per diem workers after
December 31, 1951, shall become members of the system. Any
person who was a per diem worker before January 1, 1952, so
long as the person is employed as a per diem worker, shall
not be required to become a member or to remain a member if
the person has elected before October 2, 1953, to withdraw
as a member.

HRS § 88-43 provides:

§ 88-43 Persons ineligible for membership. Except
with respect to faculty members or lecturers employed on one
or more campuses of the University of Hawaii who hold
multiple part-time appointments or positions, in such
capacities, any of which may be less than one-half of a
full-time equivalent but all of which, when added together,
aggregate to at least one-half of a full-time equivalent
position, the board may deny membership to any class of
part-time employees or persons engaged in temporary
employment of three months or less; provided that no officer
or employee entering service after January 1, 1928, who is
entitled to become a member of any pension system under part
III shall be entitled to become a member of the system.

We also consider its implementing administrative rule,

HAR § 6-21-4, which provides in relevant part:
§ 6-21-14 Employees excluded from membership. The
following classes of employees shall be excluded from
membership in the system:

. . . .

(5) Persons in any position requiring less than
one-half or full-time employment, including but
not limited to, [certain] lecturers . . .

In Vail v. [ERS], 75 Haw. 42, 43, 856 P.2d 1227, 1230

(1993) (syllabus),3 the Hawai i Supreme Court held, inter alia,

that:
11. HRS § 88–43 clearly gives the ERS the power to deny
membership to any class of part-time employees, and is
therefore a specific qualification of HRS § 88–42's blanket
admission of all employees to the system.

12. Per diem employees are included in the class of part-
time employees to whom the agency may deny membership in the
system under HRS § 88–43 and its implementing administrative
rule.

3
See Vail, 75 Haw. at 63-65, 856 P.2d at 1238-40, for the supreme
court's more detailed analysis.

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Thus, the ERS clearly has the power to deny per diem

judges membership in the system. However, HAR § 6-21-14(5)

arguably provides limited detail concerning how the ERS

determines whether a per diem judge's position "requir[es] less

than one-half [of] full-time employment." That is why the 1990

and 2017 Memoranda became central to this dispute.

B. The 1990 and 2017 Memoranda

In response to an inquiry from the Judiciary, the ERS

sent the Judiciary the 1990 Memorandum, which stated, inter alia:
Based on [an AG memorandum], per diem judges will be
eligible for membership provided the following requirements
are met:

1. Work more than 3 consecutive months, and

2. Work more than 20 hours per week (80 hrs. = 50%
FTE)

If the per diem judge serves more than 3 consecutive months
for the initial term with a minimum of 80 hours per month,
the Judiciary must enroll the per diem judge into the
Retirement System. . . .

The 1990 Memorandum also stated, inter alia:
ADMINISTRATIVE PROCEDURES FOR PER DIEM JUDGES WHO BECOME
[ERS] MEMBERS

1. Once membership is established, the current
procedure of enrolling new members should be
followed. Please note that the SF-5 should
indicate the FTE at least 50%. The per diem
judge's subsequent service will be determined by
the number of hours worked each month.

Thereafter, the Judiciary enrolled per diem judges as

ERS members, deducted contributions for per diem judges, and

provided the ERS payroll records reflecting hours of work for per

diem judges. However, it appears that the Judiciary did not

change the form SF-5 designation for per diem judges from 20% FTE

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to 50% FTE.4 Apparently, in 2017, the ERS learned that the per

diem judges' SF-5 forms still stated that the position was 20%

FTE. The ERS then issued the 2017 Memorandum, which stated:
The purpose of this memorandum is to rescind the [1990
Memorandum], regarding the ERS membership enrollment of per
diem judges.

Effective October 1, 2017, the ERS no longer credits per
diem judge service, nor will we enroll per diem judges for
ERS membership. Our prior administrative directive allowed
the enrollment in the ERS of per diem judges if they worked
(1) more than 3 consecutive months and (2) more than 10 days
of the month. As the per diem judge positions are
designated by the Judiciary at 20% full-time equivalence
(FTE), such positions are ineligible for ERS membership
pursuant to our Hawaii Administrative Rules, Section 6-21-
14(5). Enclosed is our Administrative Directive 2017-02 for
your internal use only.

In ruling on Martell's petition for a contested case

hearing on the issue of whether the ERS improperly stopped

crediting her service as a per diem judge toward her retirement

benefits, the ERS Board determined, inter alia, that neither the

1990 Memorandum nor the 2017 Memorandum were rules, subject to

the rule-making procedure set forth in HRS § 91-1 (2012), et seq.

In the Circuit Court proceedings, Martell argued, inter

alia, that the ERS Board reversibly erred in concluding that the

1990 and 2017 Memoranda did not constitute rules within the

meaning of HRS § 91-1 and that the 1990 and 2017 Memoranda were

unlawful rules. The Circuit Court found and concluded that both

the 1990 Memorandum and the 2017 Memorandum were improper rule-

making. The ERS Parties argue to this court that the Circuit

Court erred in so doing.

4
While not clearly stated in the record, it appears that the SF-5
is a form used by human resources to describe positions and process certain
personnel actions, and the use of the term was not a source of ambiguity. FTE
means full-time equivalence.

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C. Invalid Rule-making

HRS § 91-1 defines a rule as follows:
"Rule" means each agency statement of general or
particular applicability and future effect that implements,
interprets, or prescribes law or policy, or describes the
organization, procedure, or practice requirements of any
agency. The term does not include regulations concerning
only the internal management of an agency and not affecting
private rights of or procedures available to the public, nor
does the term include declaratory rulings issued pursuant to
section 91-8, nor intra-agency memoranda.

If a regulation is determined to be a rule under HRS

chapter 91, the agency must follow the rule-making procedure

under HRS § 91-3 in order to adopt, amend, or repeal the rule.

Kawashima v. State, 140 Hawai i 139, 149, 398 P.3d 728, 738

(2017). If the regulation is not a rule, then the regulation may

be amended at any time. Id.

The internal management exception applies to

"regulations concerning only the internal management of an agency

and not affecting private rights of or procedures available to

the public." HRS § 91-1. The internal management exception was

intended to have a "limited scope," and courts should "foreclose

any tendencies that agencies might exhibit to avoid the rule-

making requirements by casting regulations in terms of internal

management." Green Party of Haw. v. Nago, 138 Hawai i 228, 238,

378 P.3d 944, 954 (2016). Appellate courts determining whether

the internal management exception applies should consider "to

whom the regulations are directed. If the regulation is

principally directed to its staff, then it is generally

considered to be a matter of internal management." Kawashima,

140 Hawai i at 150, 398 P.3d at 739 (citation omitted). This

approach is consistent with the legislative history of HRS

§ 91-1:

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It is intended by this definition of "rule" that regulations
and policy prescribed and used by an agency principally
directed to its staff and its operations are excluded from
the definition. In this connection your Committee considers
matters relating to the operation and management of state
and county penal, correctional, welfare, educational, public
health and mental health institutions, operation of the
National Guard, the custodial management of the property of
the state or county or of any agency primarily a matter of
"internal management" as used in this definition.

Id. (quoting H. Stand. Comm. Report No. 8, in 1961 House Journal,

at 656).

Here, the 1990 Memorandum and the 2017 Memorandum were

agency statements – from the ERS to the Judiciary, not just its

own staff – of general or particular applicability and future

effect – of general applicability to and future effect concerning

ERS membership eligibility for per diem judges – that prescribe

policy – the ERS's policy concerning the ERS's exercise of its

power to deny per diem judges membership in the ERS retirement

system. Both Memoranda affect the private rights of or

procedures available to per diem judges, who are members of the

public who are potentially served by the ERS, not employees of

the agency needing guidance. Both Memoranda also describe the

administrative procedures for ERS's determination of ERS

membership eligibility for per diem judges. Absent the 1990

Memorandum there was no rule in place defining the criteria and

procedures to be used for determining whether a person was in a

position requiring less than one-half of full-time employment,

other than HAR § 6-21-14. The 2017 Memorandum amended the 1990

statement of criteria and procedures by rescinding the 1990

Memorandum, and in effect stating new criteria, i.e., that the

1990 "Please note" concerning the SF-5 designation was a

determinative requirement for eligibility, regardless of an

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employee's actual service hours. The Circuit Court did not err

in concluding that the 1990 Memorandum and the 2017 Memorandum

constituted rules. It is undisputed that ERS did not follow the

statutory requirements for rule-making. Therefore, the Circuit

Court did not err in concluding that ERS engaged in improper

rule-making with respect to both Memoranda.

D. The Circuit Court's Remedy

The ERS Parties raise numerous arguments challenging

the relief that the Circuit Court granted to Martell, which is as

follows. First, the Circuit Court reversed the ERS Board's

denial and dismissal of the Amended Petition. Second, the

Circuit Court ordered that the case be remanded to the ERS Board

to take further action consistent with the court's decision, with

instructions for Martell to be credited for service from

October 1, 2017, to December 31, 2021, for months meeting the

requirements of the 1990 Memorandum, as previously interpreted,

and to adjust Martell's pension accordingly.

As ERS argues in part, even if both the 1990 Memorandum

and 2017 Memorandum are improper rules, the Circuit Court's

rationale in ordering service credit to Martell from October 1,

2017, to December 31, 2021, is unclear. The Circuit Court found

that the 1990 Memorandum was improper rulemaking.

Because the 1990 and 2017 Memoranda were improper, per

diem judges were members by default under HRS § 88-42, unless

they were excluded by the ERS under HRS § 88-43.

The ERS stated that it relied on its "revisited"

interpretation of HAR § 6-21-14(5) – and the assertion that

Martell's per diem judge service did not meet the ERS requirement

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of membership service because the position was based on 20% FTE.

In the Order Resolving Appeal (at page 4), the Circuit Court

determined that the ERS Board correctly interpreted ERS rules for

membership exclusion, specifically HAR § 6-21-14(5). In its

Final Decision, the ERS Board determined, inter alia, that HAR 6-

21-14(5) excluded judges designated as 20% FTE from membership: 5
22. HAR § 6-21-14(5) excludes from membership,
persons in any position requiring less than one-half of
full-time employment, except for certain faculty and
lecturers employed by the University of Hawaii expressly
identified at HRS § 88-43.

a. The exclusion from membership set forth at
HAR § 6-21-14(5) is not limited to persons in lecturer
positions.

b. The exclusion from membership set forth at
HAR § 6-21-14(5), by its plain language, applies to
persons in "any" position requiring less than one-half
of full-time employment, "including but not limited
to" persons in lecturer positions.

c. HAR § 6-21-14(5) excludes from membership,
persons in per diem judge positions which the
Judiciary has designated part-time and 20% FTE.

. . . .

23. Therefore, under HRS § 88-43 and HAR § 6-21-
14(5), persons in any part-time position requiring less than
50% full-time equivalence are precluded from membership,
except for certain faculty and lecturers employed by the
University of Hawaii expressly identified at HRS § 88-43.

. . . .

25. HAR § 6-21-l5(a) provides "[a] member shall not
be eligible for service credit for any period of service as
an employee excluded from membership in the system."

26. Thus, service credit may only be provided to a
member for service rendered in the position both meeting
membership eligibility requirements and upon which
membership is based, and for which required contributions
are made.

27. Therefore, under HRS § 88-42.5 and HAR § 6-21-
15(a), persons in any position precluded form [sic]
membership pursuant to HRS § 88-43 and HAR § 6-21-14(5),
including but not limited to any part-time position
requiring less than 50% FTE (except for certain faculty and
lecturers expressly identified at HRS § 88-43), are also

5
In the Final Decision, the ERS Board re-affirmed the findings of
fact and conclusions of law (COLs) set forth in the Proposed Decision, with
some modifications. COLs 22 to 27 are contained in the Final Decision, and
COLs 28 and 30 are contained in the Proposed Decision.

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precluded from being provided with service credit for
service rendered in such position.

. . . .

28. Petitioner is not eligible for membership and/or
credit on and after October 1, 2017, for her employment in
the position of a part-time per diem judge (designated 20%
FTE).

. . . .

30. The Judiciary's enrollment of Petitioner as an
ERS member, and delivery of Petitioner's member
contributions and payroll records to the ERS, constitutes a
false representation by the Judiciary to the ERS that the
Judiciary caused Petitioner to meet the conditions of
eligibility for enrollment as an ERS member by designating
Petitioner's part-time per diem judge position 50% FTE, for
which false representation the ERS shall not be liable.

. . . .

The Circuit Court determined that "[o]nce an employee

is excepted pursuant to subsection 6-21-15(5), that exception

stands." As noted above, Martell did not appeal from or

otherwise challenge the Circuit Court's determination that the

ERS Board correctly interpreted ERS rules for membership

exclusion.

Accordingly, we cannot reconcile the Circuit Court's

rulings that the ERS Board correctly interpreted ERS rules for

membership and that the HAR § 6-12-14(5) exception stands with

the Circuit Court's conclusion that Martell was entitled to

additional service credits. Therefore, we conclude that the

Circuit Court erred in reversing the ERS Board's Final Decision

and awarding further service credit to Martell based on its

stated rationale. However, we take no position on whether a

clarification or alternative rationale might support this remedy.

For these reasons, the Circuit Court's August 10, 2022

Order Resolving Appeal and Judgment, as well as September 9, 2022

Order to Amend Judgment and Amended Judgment, are vacated. This

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case is remanded to the Circuit Court for further proceedings

consistent with this Memorandum Opinion.

DATED: Honolulu, Hawai i, October 29, 2025.

On the briefs: /s/ Katherine G. Leonard
Presiding Judge
Patricia Ohara,
Diane W. Wong, /s/ Clyde J. Wadsworth
Deputy Attorneys General, Associate Judge
for Respondents/Appellees-
Appellants. /s/ Sonja M.P. McCullen
Associate Judge
John Barkai,
Lance D. Collins
(Law Office of Lance D.
Collins),
Bianca Isaki
(Law Office of Bianca Isaki),
for Petitioner/Appellant-
Appellee.