No. SCAP-15-0000582, Thursday, September 1, 2016, 8:45 a.m.

ROSEMARY H. STOUT, Petitioner/Appellant-Appellant, vs. BOARD OF TRUSTEES OF THE EMPLOYEES’ RETIREMENT SYSTEM, STATE OF HAWAI`I, Respondent/Appellee-Appellee.

The above-captioned case was set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Arthur Y. Park, Patricia Kim Park, and John C. McLaren

Attorneys for Respondent:

Patricia Ohara, Brian P. Aburano, and Elmira K.L. Tsang, Deputy Attorneys General

NOTE: Order accepting Application for Transfer, filed 05/05/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

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Brief Description:

On August 3, 2004, Petitioner/Appellant-Appellant, Rosemary H. Stout (“Stout”), a former tenured teacher with the Department of Education (“DOE”) and member of the Employees’ Retirement System (“ERS”), had applied under Hawai`i Revised Statutes § 88-79 (2002) for service-connected disability retirement benefits. She asserted her disability resulted from being shot in the chest by a student on June 30, 1988 while she taught a DOE summer school English class. The Board of Trustees of the ERS (“Board”) had denied her application on the threshold basis that Stout’s ERS membership did not entitle her to claim service-connected disability benefits associated with her performance of duties at summer school.

On July 28, 2015, the Circuit Court of the First Circuit (“circuit court”) entered Final Judgment in favor of the Board pursuant to its July 28, 2015 “Decision and Order Affirming the Final Decision of Appellee [Board] and Dismissing Appellant [Stout’s] Appeal.” Stout appealed to the Intermediate Court of Appeals (“ICA”). The case was transferred to this court from the ICA on May 5, 2016.

In her opening brief, Stout asserts five points of error, stating that the circuit court erred by (1) failing to determine that Stout was injured in the “actual performance of duty,” (2) disregarding the application to her case of Kikuta v. Board of Trustees of the Employees’ Retirement System, State of Hawai`i, 66 Haw. 111, 657 P.2d 1030 (1983), and Hua v. Board of Trustees of the Employees’ Retirement System, State of Hawai`i, 112 Hawai`i 292, 145 P.3d 835 (App. 2006), (3)-(4) failing to determine the Board erred by considering improperly admitted evidence and DOE Regulation 5105, and (5) improperly considering HRS §§ 88-42.5, 88-43, and Hawai`i Administrative Rule § 6-21-14 in determining that Stout was not covered by ERS membership and benefits when she was shot on June 30, 1988.