ERIC J. MINTON and RICHARD M. STANLEY, Petitioners/Plaintiffs-Appellants,
SIDNEY A. QUINTAL, JOHN C. FUHRMANN, CITY and COUNTY OF HONOLULU, Respondents/Defendants-Appellees.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000317; CIV. NO. 07-1-2354).
Charles S. Lotsof and Jack F. Schweigert for petitioners.
Curtis E. Sherwood for respondents.
RECKTENWALD, C.J., NAKAYAMA, AND POLLACK, JJ., CIRCUIT JUDGE CASTAGNETTI, IN PLACE OF ACOBA, J., RECUSED, AND CIRCUIT JUDGE KIM, IN PLACE OF McKENNA, J., RECUSED.
This appeal arises from the actions of Respondents/Defendants-Appellees Sidney A. Quintal, John C. Fuhrmann, and the City and County of Honolulu (City) (collectively, "Respondents") to ban two stagehands, Petitioners/Plaintiffs-Appellants Eric J. Minton and Richard M. Stanley (collectively, "Petitioners"), from working at certain City-owned facilities based on their involvement in a charitable concert featuring the City's mayor. Petitioners challenged the ban as an abuse of Respondents' authority, a violation of due process, and as tortious interference with their prospective business advantage. Following a jury-waived trial, the Circuit Court of the First Circuit (circuit court) entered a final judgment in favor of Respondents on all claims, holding that the ban was rationally related to the City's interest in leasing the City's venues, that Petitioners had shown no constitutionally-protected right to engage in their chosen profession at such venues, and alternatively that Petitioners failed to present credible evidence supporting their tort claim. The Intermediate Court of Appeals (ICA) affirmed, determining that Respondents had inherent authority to institute the ban as part of the operations and management of the City's facilities, and Petitioners asserted no cognizable property or liberty interest.
For the reasons stated herein, we hold that the City's ban interfered with Petitioners' liberty interests under article I, section 5 of the Hawai'i Constitution, and the City failed to satisfy due process by instituting the ban without affording Petitioners notice and an opportunity to be heard. Accordingly, we vacate the ICA and circuit court judgments and remand the case for proceedings consistent with this opinion.
The Department of Enterprise Services (DES) is a City department that manages and leases certain City facilities, including the Neal S. Blaisdell Center (NBC) and the Waikiki Shell Amphitheater (Waikiki Shell). Respondent Quintal was the Director of the DES at the time of the pertinent events, and reported directly to Honolulu Mayor Muliufi "Mufi" Hannemann (Mayor). Respondent Fuhrmann was the Auditoriums Events and Services Manager for the DES. He was responsible for managing the daily operations of the DES facilities and reported directly to Quintal.
The DES generates revenue for the City by leasing its venues. The City does not provide the personnel required for events but refers event promoters to the Local 665 Union, which is the Honolulu chapter of the International Association of Theatrical Stage Employees (IATSE), a union representing theater and stage workers. The union functions "as a business agent" that "receive[s] and fill[s] requests for qualified theatrical and stage professionals from its union membership" for events held in Hawai'i. The City does not have a formal contractual agreement with the IATSE.
At the time of the underlying events in this case, Minton had about fifty years of stage and theater experience. He has been a member of the Local 665 union since 1972. Minton worked primarily as a stagehand, a worker who shifts scenery, adjusts lighting, and performs other tasks required in theatrical productions, shows, and events. He also routinely worked as a crew chief, the person that "the construction company will deal with to coordinate the actions of all the crew."
Stanley had about twenty-three years of experience. He worked primarily as a sound technician, responsible for recording, transmitting or amplifying sound.
In 2007, the Aloha Medical Mission (AMM), a charitable organization, entered into a standard lease with the DES to rent the NBC concert hall for a fundraiser event on August 18, 2007, entitled "Four Doctors, A Patient and the Mayor." The event was a concert with musical performances, including a solo singing performance by the Mayor.
The NBC concert hall is equipped with a City-owned public address sound system, as well as stage, lighting and other specialized equipment. The City offers lessees the option of utilizing the City's equipment or bringing in outside equipment. The AMM contracted to use the City's house sound system.
The house sound system was at least twenty years old at that time. Stanley testified that the sound system was "lacking." He explained that the mixing board that came with the house sound system was "[e]xtremely limited, " and he "lived in fear that every time [he used it], that it would break down before the job was over."
The AMM hired J.P. Orias, an event promoter, as the production manager for the event. The AMM had hired him as a production manager for two prior events. He had worked with Minton on both prior shows and found Minton's services to be satisfactory.
Minton and Stanley were both hired to work on the August 18 show through the Local 665 referral system. Minton had worked as the crew chief at the prior AMM shows, and he was again hired in that capacity. Stanley was hired as a sound technician.
Orias testified that because this was a fundraiser for a medical mission "and not a high-powered mega show, " he was limited to a strict budget and everything he did was required to be approved by an AMM committee. Both Minton and Stanley were aware of AMM's limited budget. In order to save money, the AMM employed a "short crew" of six stagehands for a production that normally would have involved about sixteen to twenty stagehands.
The AMM scheduled three rehearsals with the stage crew to take place on August 13 and 14, as well as on the day of the show. According to Minton, "[f]or a show of this size and complexity, " normally "at least five rehearsals" with the stage crew would have been held.
The Mayor attended the second rehearsal on August 14, 2007. At that point, the plan was for the Mayor to be accompanied by a pianist, bass player and drum set player. During the rehearsal, the stage crew had several encounters with the Mayor's brother, Nephi Hannemann. In one incident, Nephi wanted the stage crew to move the theater's cyclorama, which is a white screen on which images are projected. Minton testified that the cyclorama "probably weighs 2000 pounds, " and he "very politely" informed Nephi that the screen could not be moved because only two men were available to move it and moving the screen would require seven men. According to Minton, Nephi responded by commenting that Minton "didn't want to do any work[.]"
In addition, Nephi was "unhappy with the sound system being used, " and expressed that "he wanted a sound system comparable to that used by the Society of Seven."
Minton testified that it was Orias' decision to use the City's wireless microphones for the AMM event. Minton "strongly recommended that if the producer insisted on using cordless microphones, they not use the Sony microphones" provided by the City because the equipment "was low-quality and unsuitable." Orias confirmed that Minton cautioned him not to use the City's wireless microphones. Based on Minton's advice, Orias rented four wireless microphones from an independent source.
The night before the concert the Mayor held an unscheduled rehearsal at the NBC. Orias had no prior warning about the rehearsal and was not present. In addition, no one on the stage crew, including Minton and Stanley, was present at the rehearsal or aware that the rehearsal took place.
The final scheduled rehearsal took place on the morning of the show. That day, Orias found out that a five-piece band had been added to the show at the last minute to accompany the Mayor during his solo performance. Minton and Stanley were informed of the band's addition when they arrived for the rehearsal. The new instruments were two guitars, a bass player, keyboard, and second drum set.
Minton testified that the last-minute addition of the band was "[t]otally overwhelming" because the crew had planned the number of microphones that would be necessary, the size of the system console that would handle all of the microphones, and how the stage would be set up based on the information that had been provided previously. Stanley also testified that the band caused problems because the additional instruments required extra inputs for the microphones. Because of the addition of the Mayor's band, Stanley had to switch the inputs during the show for each particular music group as opposed to having everything set up beforehand. Due to the addition of the Mayor's band, the AMM used the City's wireless microphones, although Orias had not wanted to use them based on Minton's recommendation.
During the last rehearsal, the stage crew again encountered several problems with Nephi. Minton testified that Nephi expressed that he wanted the on-stage piano to be moved during the show. Minton responded that this was not possible because the piano had been specially placed on the stage and moving it would cause the piano to fall out of tune. Minton testified that Nephi made "a very nasty comment to me that I just didn't want to do any work."
In addition, Minton testified that Nephi "wasn't satisfied with how [the] rehearsal was going, " and at one point Nephi approached him to "order [him] to bring the sound man down to the floor." Minton explained that this "would have been foolish, risky, " because "[i]f the system went into feedback . . . it could damage the gear[.]" Moreover, Stanley would have been able to hear what the sound was like in the auditorium "by extending his head out of the [sound] booth" rather than coming down to the stage. Minton told Nephi that Stanley "was working with it, give him a chance to get it done, " and Nephi responded by "storming off." Minton related that he was courteous during all of his interactions with Nephi, saying, "Yes, sir. No, sir."
Stanley testified that he came out of the sound booth several times during the rehearsals. He had discussions with Nephi down at the stage in which he explained the limitations of the house sound system. Stanley stated that the best place in the auditorium to conduct a sound check was the upper balcony. Additionally, Stanley echoed Minton's concern that leaving the sound board unattended while it was turned on (in order to hear the sound from the stage, as Nephi wanted) would create the risk of a "massive feedback, which could mount to the point where it . . . hurt the equipment."
Matthew K. Lyons, a stagehand who had been a member of the Local 665 Union for thirty years, testified that he worked on the AMM show as a "fly man, " a person who moves the drops in the concert hall. During the Mayor's rehearsal, Nephi approached him and another stagehand and told them to move the microphones around on the stage for the Mayor. Lyons and the second stagehand responded, "[W]e already got it under control." According to Lyons, Nephi "came back at me like I was trying to pick a fight with him or something, " and Nephi "wanted to actually take me outside and fight me[.]" Lyons responded, "[Y]ou need to go outside and take a breath." Nephi then left to wait for the Mayor to finish rehearsing.
Minton also testified that he observed Nephi "hassling" Lyons: "I heard a comment about let's go outside, and I thought . . . he also intended to pick a fight. I heard [Lyon's] comment about, you know, you need to cool off, and he just stayed put."
The concert was held as scheduled later that day. Gary Sprinkle and Pamela Young, local TV personalities, served as the emcees.
There were some problems during the concert related to sound, including feedback from the wireless microphones, a "drop out" of sound from the Mayor' s City-owned wireless microphone during the Mayor's performance, and a faulty connection for the guitar in the Mayor's backup band. Regarding the feedback, Stanley testified that during the speaking portions of the show, "a wireless condenser type of mike of not the best quality was used, " which was susceptible to causing feedback. Stanley also explained that it had not been mentioned that the doctors would be speaking between their musical performances, until he read the script on the day of the show. Thus, at that rehearsal "[t]here was pretty much an on-the-fly training program with [Minton]" trying to get the doctors to enunciate and be audible to the audience. Stanley testified that "it was obvious that these doctors were not professional speakers at all, they were practically whispering . . . into the microphones, and that made it very difficult to make them audible." At the concert, none of the feedback occurred during a musical piece. Stanley testified that there was "a very short burst of feedback" between musical performances when "inexperienced speakers" were "whispering into the mike, " and Stanley was attempting to make them more audible.
In regard to the "drop out" of sound, during the Mayor's singing performance, "the City-owned wireless microphone experienced a momentary though noticeable loss of signal or , drop out' where the Mayor's voice was not audible." Minton believed that this "drop out" was caused when the Mayor walked beyond the maximum range of the wireless microphone's transmitter.
Also during the Mayor's song, a single guitar input failed due to a defective wall-jack connection caused by the additional input demands from the Mayor's back-up band. Stanley testified that as soon as he noticed that he was not hearing the guitar in the sound booth, he communicated that to the stage crew, which was all he could have done. Minton received Stanley's communication regarding the loss of signal, and immediately told Lyons that there was a problem. Lyons walked on stage to check the problem, came back to get an extra cable, and replaced one of the circuits. Minton explained that it would have been "disastrous" to allow the act to go forward without fixing the faulty signal for the guitar because "[y]ou have a missing performer that the audience is not hearing[.]"
Lyons testified that he was wearing black clothing, as stagehands typically do in order to blend into the backdrop. Minton and Orias confirmed that Orias had asked all of the crew members on the floor to wear a t-shirt with the show logo on it.
Minton testified that the show was of "appropriate quality" for a "community amateur show." After the concert, the Mayor approached him, shook his hand "and said thank you very much, job well done." The Mayor acknowledged that his custom was to "always thank everyone involved." The Mayor also stated that the "glitch" causing the drop-out from his microphone "was the only thing that I was aware of that did not go as perfectly as I would [have] liked it to have gone, " but despite the glitch, "everyone was happy[.]"
On August 21, 2007, Orias sent an email to Fuhrmann and Donovan Ahuna, Local 665's business agent. As the business agent, Ahuna was responsible for representing the union members' "interests in discussions and negotiations with employers."
In the email, Orias wrote that the sound at the AMM show was "Very Bad, " explaining that there was a high-pitched "hissing sound . . . that the sound crew was not able to correct to the end, " and a "feedback almost everytime [sic] the center mic was used by the pianists to speak." The same center microphone also "cut off and on" several times during a mandolin performance. Orias noted that except for the four microphones that the AMM rented from an outside source, all of the equipment used for the event belonged to the City.
In addition, Orias stated that he was "reassured by the crew that the house equipment would be sufficient" and that "[t]he hissing and feedback did not happen during the afternoon test." Minton later testified that although he did assure Orias that the house equipment was sufficient, he made that statement prior to the addition of the Mayor's back-up band and was not referencing the City's wireless microphones, as he clearly informed Orias that the microphones were "not the caliber [Orias] needed."
Orias concluded his August 21, 2007 email by asking for an explanation of what had happened "from anyone who could lend some light" and stating that he had received "a lot of unfavorable comments" about the show. Orias did not mention Minton or Stanley or any member of the stage crew in his email. Orias also did not mention any allegations that members of the stage crew were rude or unprofessional.
Orias later explained that he sent the email although he "knew more or less what was causing" the "glitches" because he wanted an official explanation to give the AMM committee, which "was asking what happened." Orias testified that no complaints regarding unprofessional conduct involving Minton, Stanley, or any member of the stage crew were brought to his attention.
Ahuna responded to Orias by email that same day, with Furhmann copied on the email. The email attached what appeared to be brief oral statements made by Minton, Stanley, and Ahuna, explaining what had happened with the sound during the concert. Petitioners testified that they were made aware of Orias' email but did not consider the email to be a personal criticism of their work. They both believed that they were only being asked to comment on the technical problems with the equipment to prevent the same problems from reoccurring.
Orias replied by email on August 23, 2007, questioning whether it would have been possible for the crew to fix the "humming" sound during the show's intermission by changing the wireless microphone to a wire setup. Ahuna responded that "maybe it could have been possible, " but "all 16 channel wire-mics [were] in use due to the additional band gear."
Orias was satisfied with the explanations that were given. It was his belief that the stage crew was not responsible for the sound problems. Rather, Orias believed that the stress on the house sound system was "just too much, because we ha[d] so many mikes open and the set was old." Despite the sound problems, Orias considered the event "a good show, . . . people enjoyed it, there was some standing ovation."
On August 24, 2007, the Mayor called Fuhrmann and Quintal for a meeting about the show. Fuhrmann explained that he and Quintal "were called to the mayor's office, . . . and the mayor made a complaint, " saying that "he was very unhappy with what had happened at the show." According to Furhmann, the Mayor specifically had a problem with Minton and Stanley, mentioning that Minton "kept giving him excuses" about the feedback and refused to "talk to the sound man and get [the feedback] to be stopped." The Mayor also stated that Minton was "rude and . . . improperly dressed" because "he was in a T-shirt on stage in a public arena when people could see him[.]" Additionally, the Mayor specified that Stanley had remained in the sound booth "and wasn't even hearing what was going on[.]"
The Mayor confirmed that he "did voice concern of the lack of professionalism that occurred during rehearsal as well as the performance, " particularly with regard to Minton. According to the Mayor, however, this was "a very manini thing in the things that I do as mayor" and the discussion of the concert "probably took two minutes."
Quintal assigned Fuhrmann to "investigate" the matter, instructing Fuhrmann, "I need to find out as many of the facts surrounding the incident and the complaints." At this point, neither Minton nor Stanley were aware that the Mayor was involved or that the City was conducting an investigation into their work at the concert.
On August 30, 2007, the City held an event involving the Mayor, called "The Employees Recognition Program, " at the NBC concert hall. On August 28, 2007, Fuhrmann emailed Ahuna to have Al Omo, the President of the Local 665 Union, assigned to the event in place of Minton and to have another union member assigned in place of Stanley. This change was confirmed by an August 29, 2007 letter from the City's Department of Human Resources to Ahuna.
On August 30, 2007, Quintal and Fuhrmann met with Ahuna and Omo. At the conclusion of the meeting, Quintal informed Ahuna and Omo that Stanley and Minton were no longer permitted to work at the NBC facilities. Fuhrmann testified that "Mr. Quintal went through and explained to them what the issues were, what he was concerned about, and what his decision had been on the matter. That's basically what was discussed at the meeting." After Quintal explained that Minton and Stanley "would be suspended for a while, Mr. Ahuna and Mr. Omo asked how long, and Mr. Quintal said he would get back to them on that." Fuhrmann testified that "it wasn't a very long meeting" and "It wasn't a real discussion on the situation."
On August 31, 2007, Quintal sent a letter to Ahuna "to confirm our discussion yesterday about complaints received from the promoter [Orias]." Quintal explained that "the promoter was extremely unhappy" with Minton's and Stanley's actions and that based on his "findings, " they "showed a complete disregard" for "customer service and professionalism." Consequently, Minton and Stanley were prohibited from working "at any events" at the NBC concert hall, exhibition hall and arena, and the Waikiki Shell:
As I conveyed, the promoter was extremely unhappy with the way he and his event staff and performers were treated by your personnel (Eric Minton and Rick Stanley). I have completed an investigation of these allegations and thank you for your response to John Furmann's request for information from I.A.T.S.E. You also have a copy of the promoter's email.
One of the most important areas that we at the Blaisdell Center concentrate on is customer service and professionalism. If you will recall, I have mentioned this in previous meeting between myself, John Furmann and your Board. Based on my findings, the actions of Mr. Minton and Mr. Stanley on the night of August 18, 2007 showed a complete disregard in these areas. Consequently, both Mr. Minton and Mr. Stanley will no longer be allowed to work at any events at the Neal Blaisdell Concert Hall, Exhibition Hall, Arena, and the Waikiki Shell.
No hearing or meeting with Petitioners was held prior to Quintal's decision.
Fuhrmann testified that the "investigation" he conducted at Quintal's direction consisted of speaking to Orias once on the phone, reviewing Orias' email, and sending a letter to the Local 665 union and reviewing their response. Furhmann testified that he did not realize, until informed at his July 6, 2009 deposition, that the stage crew's attire, specifically the t-shirts, were provided by Orias. Additionally, Fuhrmann testified that he was not present at the AMM concert, and as of the date of his deposition, he had never listened to or viewed a reproduction of the show. Quintal testified that he was not aware that Fuhrmann did not, as part of his investigation, review the DVD of the performance.
Fuhrmann did not make a written report of his "investigation." Quintal testified that he did not think it was strange to not have a written report because he and Fuhrmann "sat down and we discussed all of the aspects of the situation." Fuhrmann, on the other hand, stated that "there was no real discussion about that issue. Did we discuss back and forth whether this [ban] should happen? No." Fuhrmann reiterated that Quintal ...