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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-11-0000317
                                                              13-DEC-2013
                                                              12:16 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I
                                ---o0o---


              ERIC J. MINTON and RICHARD M. STANLEY,
                 Petitioners/Plaintiffs-Appellants,

                                    vs.

               SIDNEY A. QUINTAL, JOHN C. FUHRMANN,
                   CITY and COUNTY OF HONOLULU,
                 Respondents/Defendants-Appellees.


                            SCWC-11-0000317
         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-11-0000317; CIV. NO. 07-1-2354)

                           December 13, 2013

         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

                OPINION OF THE COURT BY POLLACK, J.

          This appeal arises from the actions of

Respondents/Defendants-Appellees Sidney A. Quintal, John C.

Fuhrmann, and the City and County of Honolulu (City)
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(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



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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.

                                    I.

            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.

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          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.

                                    A.

          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.



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          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

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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.”

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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



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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



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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.

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            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

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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

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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[.]”

                                    B.

                                    1.

          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

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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

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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.”



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                                     2.

            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”1 and the discussion of the concert

“probably took two minutes.”

            Quintal assigned Fuhrmann to “investigate” the matter,



      1
            “Manini” is a slang term meaning “small” or “insignificant.”
Dictionary.com, http://dictionary.reference.com/browse/manini (last accessed
November 7, 2013).

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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.

                                    3.

            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

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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.

(Emphases added).

          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

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to the Local 665 union and reviewing their response.2            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 did not ask for his input before instituting the ban

against Minton and Stanley.

            For his part, Quintal testified that he was also not



      2
            It is unclear from the record whether Fuhrmann was referring to
Ahuna’s responsive email to Orias, which Furhmann received a copy of, or
whether Furhmann was referring to a separate response from the union to his
“letter.” The record, however, does not contain either Furhmann’s letter or
the union’s response to such a letter. Ahuna also did not reference either
document in his emails to Orias and in his letter to Quintal after the ban was
instituted.

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present at the concert.     At the time he sent the August 31

letter, he had watched only a portion of the movie of the

concert, showing Lyons walking on the stage.          He did not consult

anyone other than Fuhrmann on whether it was inappropriate for a

stagehand to walk on the stage to repair a lost connection.

Quintal testified that he was “satisfied that in [Fuhrmann’s]

opinion . . . the action . . . could have been done in a more

subtle manner, perhaps in between the numbers, but certainly not

during an act.”    At the time he wrote the August 31 letter, he

was not aware of Nephi’s interactions with the stage crew at the

rehearsals and the concert.

           On September 3, 2007, Ahuna informed Minton and Stanley

of Quintal’s decision to ban them from working at the NBC and the

Waikiki Shell.    This was the first time that Minton and Stanley

were made aware of the City’s investigation into their conduct at

the concert.

           Stanley was scheduled to begin working at a long-term

position on The Lion King show at the NBC concert hall the next

day.   The Lion King show was planned to run for two to three

months.   Stanley testified that he had “substantiated several

times with the business agent” that he would work on the show for

its entire run.    However, as a result of the ban, Stanley was not

allowed to work on the show.      The president of an employee

leasing company in Honolulu testified that the stagehand who was

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hired to work in the same position as Stanley earned $19,280.63

for working on the show, at an hourly rate of $24.82 for regular

time and $37.23 for overtime.

            On September 4, 2007, Ahuna replied by letter to

Quintal, protesting that Quintal’s “unilateral action to prohibit

two of my members from performing work at City and County of

Honolulu venues is simply wrong.”         He expressed his understanding

that the “quality of the sound system and the movement and

coordination of the sidemen for the Mayor’s portion of the

program appears to be the principle [sic] complaint against my

members.”    He explained that these problems were caused by

several factors, including “the fact that the promoter . . . did

not make the necessary provisions for the type of system which

was needed to accommodate the Mayor’s performance with a back up

band.”   In addition, “the promoter failed to schedule a sound

check prior to the performance[,]” and the union members were not

informed of the Mayor’s rehearsal the night before the show.

            Ahuna also wrote, “One of the critical issues here is

that the Mayor’s brother made mention on several occasions that

he wanted a PA system like that used by the Society of Seven for

their shows.”    However, the City’s sound system “falls way short

of what was being requested.”       The union members “suggested to

the event coordinator that perhaps they should consider

supplementing the City’s system with professional sound equipment

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rental which would accommodate the vision as expressed by the

Mayor’s brother[.]”

            Ahuna’s letter concluded by asking Quintal to consider

“temporarily suspend[ing]” his decision “for a period of at least

2 weeks” and holding an “immediate meeting to discuss this matter

in greater detail,” given the “differing perceptions on what went

wrong[.]”    Ahuna’s letter also attached statements by Stanley,

Lyons and a third stagehand who had worked at the event.

Stanley’s statement explained the reasons for the occasional

feedback during the performance.

            The parties stipulated at trial that there was “no

indication that either of the plaintiffs . . . specifically

authorized or did not authorize Mr. Ahuna or the union to . . .

write the response letter on their behalf.”          Despite Ahuna’s

request that Quintal defer the effective date of the ban pending

a meeting, Quintal’s ban became effective immediately.

            Minton worked at an event for Hawai#i Pacific

University (HPU) on August 16, 2007 at the NBC concert hall,

prior to Quintal’s ban.     HPU’s coordinator sent an email to

Fuhrmann on September 4, 2007, thanking him for the work that had

been done and specifically identifying and thanking Minton for

his “expert advice and consultation.”        Minton testified that




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another HPU event was planned for later in 2007 but that he was

unable to work at the event due to the City’s ban.

          On September 6, 2007, a representative of the Hawai#i

State Teachers Association (HSTA) wrote to Ahuna, requesting

Minton and Stanley to work at an event to be held on October 8,

2007 at the NBC arena.     She wrote that Minton and Stanley “are

excellent workers and know the requirements of the job[.]”             The

representative later told Minton that she was unable to hire him

because of the City’s ban.

          Minton testified that once he discovered that the City

was involved, he attempted to contact City officials himself.               On

September 7, 2007, Minton sent a letter to Quintal regarding

Quintal’s August 31, 2007 letter.         Minton wrote that he was

“extremely aggrieved by statements” in Quintal’s letter.            He

wrote, “I formally state that I performed in a professional

manner to insure, first personnel safety, second protection of

the facility equipment, and then the protection of rented

equipment, to present the best event possible[.]”           Quintal

confirmed that he received the letter, but he did not respond

because he “felt it was best” to communicate with Ahuna.

          On September 11, 2007, Minton and Stanley sent a joint

letter to Quintal objecting to the actions taken.           There is no

indication in the record that Quintal responded to this letter.



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          On October 2, 2007, Quintal wrote a memorandum to file,

explaining the actions that had been taken thus far.            He wrote

that his decision to ban Minton and Stanley was based on their

“demeanor” at the event.      Specifically, they failed to “portray a

level of customer service and professionalism that would be

expected from individuals with over thirty-five years of

experience.”   According to Quintal, the problem with the event

was not “that equipment was not on par or that the act did not

coordinate last minute changes properly.”         Rather, the issue was

“the ‘way’ these two individuals responded to requests for

assistance from the promoter and act participants as well, that

has caused this action to be known.”

          Quintal further wrote that “[t]o date, no apology has

been submitted on behalf of IATSE or the individuals involved.”

Regarding the permanence of his decision, Quintal wrote, “Rather

than a permanent work restriction, I have since indicated that I

would reconsider their participation at Blaisdell or Shell events

after a nine month term.”      The memorandum provided that Fuhrmann

had communicated Quintal’s reconsideration to Ahuna.

          On October 5, 2007, Fuhrmann responded to a request by

the Hawai#i Catholic Schools to have Minton and Stanley work at

an event scheduled for February 1, 2008 at the NBC arena.             After

discussing the request with Fuhrmann, Quintal instructed Fuhrmann



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to inform the organization that Minton and Stanley were not

allowed to work at the NBC facilities.          Fuhrmann complied,

informing Hawai#i Catholic Schools that Minton and Stanley “are

not presently permitted to work in the facilities of the [NBC]”

and advising them to have the union provide “two other qualified

stage hands.”     Hawai#i Catholic Schools responded by asking

Furhmann to reconsider and permit Minton and Stanley to work at

the event, given their history of working together.

            Two months after the ban had been imposed by Quintal,

in a letter to the Mayor dated November 2, 2007 and stamped

received on November 26, 2007, the emcees for the event

complained generally about the technical support and sound

quality at the concert.3

                                     C.

            Petitioners filed their complaint in circuit court on

December 13, 2007.      The complaint alleged that Quintal and

Fuhrman had acted as agents of the City, and had abused their

authority “through their wrongful, tortious and illegal

conduct[.]”    Petitioners also alleged that Respondents denied

them due process by “blacklist[ing]” them from working at the


      3
            The letter was not received into evidence during the trial,
although there was some testimony referencing the letter. Counsel for the
City later represented to the circuit court that despite writing the letter,
Sprinkle “did not want to be involved in the matter.” The emcees did not
specifically identify Minton or Stanley in their letter.

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City’s facilities without “a deprivation hearing . . . and/or the

right to contest” the action.       “In the exercise of reasonable

care, [the City] should have cancelled and overruled . . .

Quintal’s and Fuhrmann’s illegal directives,” but “failed to

correct, rectify and rescind” them.        Petitioners alleged that

“Quintal’s and Furhmann’s illegal directives and Defendants’

failures to rescind them have interfered with Plaintiffs’

prospective advantage, prospective business relationships and

contracts with producers.”      As a result, “Plaintiffs have been

deprived of work for various producers, have lost income and have

lost the intense enjoyment working in their occupation and

profession ordinarily brought them.”

          Petitioners sought “[p]reliminary and permanent

mandatory injunctions, together with other equitable relief,”

requiring the City to immediately “rescind the blacklisting,

[and] notify the producers of its illegality[.]”           In addition,

Petitioners sought a judgment against Respondents, jointly and

severally, for general and special damages, punitive and

exemplary damages, and reasonable attorneys’ fees and costs.

          On December 24, 2007, Petitioners filed a Motion for

Preliminary Injunction against Respondents.          The memorandum in

support of the motion stated that “[b]ecause the vast majority of

theatrical, concert and event productions performed in Honolulu

are situated at the City facilities from which the Plaintiffs

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have been banned, they have essentially been put out of work.”

In addition, the memorandum noted that Petitioners would “suffer

irreparable injury because the extent of their lost income will

not be provable, since it is difficult to project what employment

would have been granted them by different employers but for the

ban” and “producers usually hire the same crews they used for

their last productions.”

          The City filed its Answer to the Complaint on January

3, 2008 and its Memorandum in Opposition to the Motion for

Preliminary Injunction on January 4, 2008.         The City contended in

opposition to the Motion for Preliminary Injunction that

Petitioners were not blacklisted; “[r]ather, the City notified

the Plaintiffs’ union that Plaintiffs would no longer be

permitted to work at City-owned facilities due to unprofessional

behavior which they exhibited while working at a City facility.”

According to the City, “This behavior caused alarm to the

individuals to whom it was directed and the actions taken against

Plaintiffs were taken in order to prevent similar incidents from

occurring again.”    The City emphasized that Petitioners were not

City employees, “so any action allegedly taken against them, was

at the hands of their union, not the City.”

          The hearing on the Motion for Preliminary Injunction




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was held on January 14 and 15, 2008.4         The court considered as

evidence the various correspondence exchanged between Ahuna,

Orias, Quintal, and Minton.5

            Fuhrmann testified on behalf of the City, and stated

that the decision to blacklist Minton and Stanley “was [a]

response not so much to the technical problems of the show as it

was the approach.”      He further explained, “The complaint was

about the individuals not taking action to deal with the show and

to not respond to the tenants.        They [the AMM] were concerned

about their appearance on the show since they were seen in the

public; they were not dressed . . . in what we consider a public

manner.”    According to Fuhrmann, the issue was that Lyons wore a

T-shirt.    He stated that he never spoke directly with Minton or

Stanley during his “investigation” but “had their written side of

the story.”

            Fuhramnn testified that the decision to ban Minton and

Stanley was made by Quintal.        However, in response to questions



      4
            The Honorable Sabrina S. McKenna presided. The transcript of the
hearing was made part of the record of the trial. The circuit court took
judicial notice of the transcript.
      5
            The correspondence included: 1) 8/21/07 emails between Ahuna and
Orias regarding sound problems at the event; 2) 8/31/07 letter from Quintal to
Ahuna informing Ahuna of Quintal’s decision to ban Petitioners; 3) 9/4/07
Ahuna reply letter to Quintal regarding ban, with attachments; 4) 10/26/07
letter from Minton to Mayor; 5) 10/26/07 Counsel for Petitioners’ letter to
Quintal asking for immediate withdrawal of directive; 6) 11/2/07 letter from
emcees to Mayor; 7) 12/10/07 Ahuna letter to Quintal informing Quintal that
Petitioners had retained counsel and the union’s involvement was limited.

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posed by the court, Fuhrmann testified that the Mayor was

“consulted” and agreed with Quintal’s decision.6

            Quintal also testified at the hearing.          Like Fuhrmann,

Quintal testified that the reason for his decision was not

necessarily the “technical aspects” of the show but “the demeanor

and the response from the plaintiffs in dealing with the

customers who were asking them for their professional support[.]”

In regard to Minton’s “demeanor,” Quintal explained that “Minton

did not get off his chair, he did not move, he just sat there.”

Quintal further explained that Minton “responded negatively” to

certain requests and “allowed another employee to work on stage

behind the Mayor to [work] on the alleged technical difficulties,

causing . . . a gap in the sound[.]”

            Quintal acknowledged that he did not have any special

training as a theatrical production expert, and his only

knowledge, particularly with respect to the propriety of

permitting a sound technician to go on stage during a

performance, came from watching performances as an audience

member.   Quintal did not know why Minton sent Lyons on stage and

testified that he did not “feel it was necessary” to know.




      6
            When the Mayor was later asked about Furhmann’s testimony at his
deposition, he testified, “No, I did not approve the action.” Minton
testified at trial that he did not learn of the Mayor’s involvement until the
preliminary injunction hearing.

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               In regard to Stanley, Quintal testified that Stanley

“did not come out of the sound booth or come down to address the

problem during the performance[.]”         Quintal explained that during

his “investigation,” “it was implied and . . . conveyed” to him

that if there were sound problems, either the Mayor or Jeff

Coelho7 “wanted [Stanley] to come down so that he could see

firsthand what the problems were with the sound.”

               At the conclusion of the hearing, the court orally

granted Petitioners’ Motion for Preliminary Injunction.             The

court commented that there were no “threats of violence, or

profanity,” or anything of that nature that prompted the City’s

ban.       Rather, “[t]here were glitches that could have been

avoided” if the union members “had been invited perhaps to the

two full rehearsals[.]”       Additionally, the court stated that it

seemed that the City’s action was “overreaching . . .

particularly when we are talking about the livelihoods [of] many

people.”       Thus, this was “an action that cannot be allowed to

continue.”

               The court’s written order granting the preliminary

injunction was filed on January 23, 2008.




       7
            Fuhrmann testified at the hearing that Coelho was present with the
Mayor backstage and “is a person that’s been in radio and doing shows for
probably 20 something, 30 years.”

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            In June 2008, the City installed a new sound system at

the NBC concert hall.      According to Quintal, the new sound system

had “been in the works for almost six years” prior to that.

            On January 21, 2010, Respondents filed a Motion for

Partial Summary Judgment on the Plaintiffs’ Due Process Claim.

The question to be decided by the motion was whether the City

denied Petitioners due process of law when Quintal barred them

from working at City-owned and operated facilities.8            On March

19, 2010, the circuit court entered its order denying the Motion

for Partial Summary Judgment.9

                                     D.

            A jury-waived trial was held on April 12, 14, 15 and

16, 2010.

            Minton testified that during the period of time between

the City’s ban and the court’s injunction, eighty percent of his

previously available work was no longer available.            Other than

the NBC facilities, the only other “real house” is the Hawai#i

Theater, which is “non-union.”        Thus, he had “just a tiny

percentage of [his] business available[.]”          Minton explained that



      8
            Respondents argued that due process was satisfied because
Petitioners and Ahuna, their union representative, had knowledge of the nature
of the complaints regarding the show and were given an opportunity to respond
in Ahuna’s August 21, 2007 email to Orias and September 4, 2007 letter to
Quintal.
      9
            The Honorable Rom A. Trader presided.

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the other venues the City alleged were available to him during

the ban were not actually available.        For example, several of the

venues were school facilities that for the most part hired

students rather than professionals, and were “insignificant as

far as professional theater.”       He had also never worked at

several of the theaters referenced by the City.

          Minton also testified that he had nearly exhausted his

union pension fund due to his lost income and that he had no

other significant assets.      He had taken any work that was offered

to him through the union since he was blacklisted.           Minton

explained that he did not seek work outside the union’s referral

system because he had taken an oath upon joining the union that

he would not seek any non-union work.

          Stanley testified that prior to the blacklisting, his

reputation was “[e]xcellent.”       However, after Quintal’s August

31, 2007 letter, his reputation was “blown to hell.”            Stanley

further testified that the amount of work he had been able to get

since the blacklisting was “severely reduced,” about “a tenth to

a quarter” of the work he had been able to get before the

blacklisting.

            Orias testified that in his experience, Minton and

Stanley were both always “[p]olite and courteous.”           He had never

received any complaints about either Minton or Stanley.            He



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testified that if he had the opportunity to do another

production, he would choose Minton and Stanley to work for him.

          Sean Christensen, a line technician and member of the

Local 665 Union for approximately twenty years, testified that he

had previously served as vice-president and trustee of the union.

 In his view, the City’s ban “became common knowledge throughout

the industry.”    He estimated that he spoke in-person to twenty to

thirty union members about the ban.

          Christensen testified that Minton was “considered very

highly . . . amongst his peers.”       Minton’s reputation as a union

secretary and treasurer prior to the ban “was outstanding.”

Minton was “widely respected not only within our own local, but

within the international, so he was well thought of and very,

very skilled and knowledgeable in his duties and responsibilities

in that office.”    In Christensen’s opinion, the ban “impacted

[Minton] adversely, because he was not allowed to work, and it

reflected negatively on his capacity and his career.”

          Christensen testified that he had also known Stanley

for about twenty-five years.      Stanley’s reputation as a stagehand

prior to the ban was “exemplary,” and Stanley “used to be known

as the sound guy in that house.”       After the ban, Stanley’s work

calls went to different people and he stopped getting the calls

that he had been given in the past.

          Christensen further testified that although other jobs

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at non-City venues are technically available, “primarily most of

their [Petitioners’] work was done at the City venues, either the

Shell, the arena or the Blaisdell complex.”          He “definitely”

agreed that Minton and Stanley “specialized in events that have

large audiences and large theaters.”        He estimated that although

Minton and Stanley had worked at the Stan Sheriff Center, Aloha

Stadium and other outdoor venues, about ninety percent of their

work came from the NBC facilities and the Shell.           To his

knowledge, no other member of the union had ever been banned from

working by the City.

          Thomas Loudat, Ph.D., testified regarding Minton and

Stanley’s lost income as a result of the ban.          He was originally

retained by the City to evaluate Minton’s and Stanley’s lost

income, but the parties reached a mutual agreement that he would

perform the calculations for both sides.         The parties stipulated

that Dr. Loudat was “an expert in economics” and would be

“permitted to render any and all opinions that would relate to

that expertise.”

          Dr. Loudat explained that his typical procedure was to

gather case-specific information such as tax returns and benefits

information from the union.      He would then use that information

to “specify or show what the nature of the earnings of the

individuals had been historically,” in order to project what the

individuals would have earned “but for the incident.”            He also

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factored in “general economic conditions” and long-term “trends”

for jobs in the relevant sector.       He testified that Petitioners’

income had remained constant over a long period of time, in spite

of a “gradual downtrend” in the “arts and entertainment sector of

the Honolulu economy.”     Dr. Loudat’s calculations did not account

for any specific events, such as The Lion King show, which

Petitioners may have worked at if not for the ban.           The

calculations were based “solely on the historic average,” with

adjustments due to “economic conditions.”

          Based on his analysis, Dr. Loudat produced reports on

Minton’s and Stanley’s projected lifetime loss of earnings.             He

concluded that Stanley’s total pay loss after 2007 amounted to

$405,000, which was comprised of $266,000 in compensation loss,

$109,000 in Federal income tax on that amount, and $30,000 in

State income tax on that amount.       He concluded that between

August 18, 2007 and January 14, 2008, the date of the preliminary

injunction hearing, Stanley’s lost earnings amounted to $2,653.

          Using the same analysis, Dr. Loudat concluded that

Minton’s total pay loss after 2007 amounted to $329,000 ($219,000

compensation loss).     He concluded that between August 18, 2007

and January 14, 2008, Minton’s lost earnings amounted to $4,058.

          In addition to the testimony referenced above, Quintal

testified that after he wrote the letter banning Minton and

Stanley, he “chatted with the Mayor with regards to . . .

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allowing them to return.”      According to Quintal, “I said there’s

a possibility that if we can work things out with the union going

forward, I would reconsider my decision.”

          Quintal testified that he did not communicate to Minton

and Stanley that he would “back off,” or communicate with them at

all during the process of banning them and then reconsidering.

He communicated only with Ahuna, informing Ahuna that he would

reconsider his decision if the union made a “more concerted

effort in educating . . . members” working at the City’s

facilities.

          Quintal reiterated that “the real basis” for his

decision to ban Minton and Stanley was “customer service and

professionalism.”    He stated, “in part of my conducting my

investigation with folks, I was led to believe that there was

some personal feelings about arrogance, some rudeness, some

inconsiderations.”    He attributed these comments to Jeff Coelho,

“statements from Gary Sprinkle,” and “discussions with John

Furhmann over his discussions about what had happened” with

Ahuna.

          Respondents’ counsel confirmed the City’s position that

its legal authority for the ban arose from Section 6-702 of the

Revised Charter of the City and County of Honolulu (RCCCH), which

grants the director of the DES the authority to “operate and



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maintain” DES facilities and to “perform such other duties as may

be required by law.”

                                    E.

          The circuit court entered its Findings of Fact;

Conclusions of Law and Order on October 28, 2010.

          First, the circuit court found that as members of the

IATSE, Petitioners “are for all intents and purposes ‘free

agents’ who engage in their trade without any contractual

obligations or rights relative to the City.”          The court thus

found “the decision to ban Plaintiffs was a legitimate exercise

of the City’s authority to prescribe conditions for the use of .

. . the NBC.”

          In regard to the nature of the City’s investigation,

the court found that “Quintal assigned Furhamnn to investigate

the complaints and concerns raised” by Orias, the Mayor, and the

event emcees, and that this investigation “included input from

Minton and Stanley.”     Although the court acknowledged that

“Fuhrmann at no point had direct contact or communication with

either Minton and Stanley” during the course of his

investigation, the court found that under the circumstances, “it

was reasonable for the City to raise and discuss any concerns

related to the August 18, 2007 show with the union.”




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          The court found that “although [Petitioners] were not

formally provided with an exhaustive list” of the “complaints and

issues raised in connection with the poor quality of the show,”

nevertheless Petitioners, “through their union representatives,

were generally provided with notice.”        The court reasoned that

both Minton and Stanley were aware of Orias’ August 21, 2007

email, and “through their union representatives, were provided

with an opportunity to submit information concerning the

complaints.”   The court therefore found that “[t]he overall

process provided by Quintal, Fuhrmann and the City consisted of

meaningful notice of the complaints against Minton and Stanley;

[and] contained an opportunity for Minton and Stanley, by and

through their business agent and union representatives, to

respond to the complaints against them[.]”         The court further

found that the “overall process” “contained a deliberative

decision-making process that was reasonably based upon

information provided by the parties herein.”

          Regarding Petitioners’ right to work at and access the

City’s facilities, the court entered a finding that “it is clear

that Plaintiffs have no constitutionally-protected right, no

contract-based right, no city, state or federal statutory right,

nor any other cognizable legal right or entitlement to ply their

chosen profession as stage/theater workers at City-owned venues.”



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            As to the effect of the ban on Minton and Stanley’s

ability to continue working, the court found that Petitioners

remained “completely free to perform their respective trades at

City venues (other than the NBC or Waikiki Shell), as well as, at

non-City venues.”    The court found that “[w]hile both Minton and

Stanley certainly have a long history, practice and expectation

of traditionally working certain recurring events or those put on

by certain promoters or groups, neither Minton nor Stanley

provided adequate proof that they had any existing” or

prospective “contract with any party which was interfered with”

due to Respondents’ actions.      As such, the court found that

Petitioners’ claim that the ban “resulted in significant economic

losses to them” was “speculative since it is based largely upon

their expectation that they would have worked many, if not all,

of the events that they either had previously worked or for which

they would have been otherwise eligible and available to do so.”

          Based on the above findings, the court made a series of

“alternative” conclusions.      First, the court concluded that

Petitioners “failed to present credible evidence that a

constitutionally-protected property interest was denied them,”

and therefore Petitioners’ “due process . . . and state

constitutional claims fail.”

          “In the alternative,” the court concluded that Quintal

and Fuhrmann were entitled to qualified immunity regarding the

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federal and constitutional claims and to conditional privilege on

the state law claims.     Thus, judgment on those claims was entered

in their favor.

          “In the second alternative,” the court concluded that

Minton and Stanley failed to prove that they were denied due

process of law.    The court concluded in this regard that Minton

and Stanley received “adequate notice for purposes of due

process,” “both directly and through their union representatives,

as to the complaints stemming from the August 18, 2007 event,”

and Respondents provided “a meaningful process to challenge the

complaints[.]”

          The court further concluded under its “alternative”

ruling that Petitioners “failed to present credible evidence to

establish that they had existing or prospective contractual

rights with Catholic Schools of Hawai#i and/or [HPU].”           “In the

alternative, Plaintiffs failed to present credible evidence that

any Defendant interfered with any existing or prospective

contractual right or any existing or prospective business

advantage.”   The court also concluded that “Plaintiffs had no

contract with the City and thus, have no enforceable contract or

other rights to work at any City-owned venues, including the NBC

and the Waikiki Shell.”     The court consequently entered judgment




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in favor of Respondents “as to claims predicated upon these

theories.”

           The court therefore entered judgment in favor of

Respondents and against Petitioners on all claims in the

complaint and rescinded the order granting Petitioners’ Motion

for Preliminary Injunction.

                                     II.

                                     A.

           On appeal to the ICA, Petitioners raised thirty points

of error challenging the circuit court’s findings of fact and

conclusions of law.      In relevant part, the ICA consolidated

Petitioners’ points of error into two claims that the circuit

court erred in entering its judgment because 1) the ban on

Petitioners was not authorized by statute or regulation; and 2)

the ban was a denial of procedural due process.10

Minton v. Quintal, No. CAAP-11-0000317, 2012 WL 5970950, at *2

(Haw. App. Nov. 29, 2012) (memo.).

           With respect to the first issue, Petitioners argued

that government officials may not interfere with private

employment decisions without explicit statutory authority to do



     10
            Petitioners also argued that the City’s ban was arbitrary and
capricious. The ICA rejected this argument based on its determination that
Petitioners failed to demonstrate a liberty or property interest. Minton,
2012 WL 5970950, at *4. In light of our ruling upon the issue of procedural
due process, we do not further address this point of error.

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so.    In this case, the City relied solely on RCCCH § 6-702, which

Petitioners argued “is far from the explicit grant of authority

to overrule private employers’ staffing decisions” because

“[o]perating and maintaining a building does not normally even

implicitly entail the power to decide whom a lessee may employ.”

In response, Respondents maintained that the Director’s authority

to operate and maintain DES facilities was a sufficient legal

basis for suspending Petitioners’ access to the facilities.

             In regard to the second issue, Petitioners contended

that their rights to procedural due process were violated.

Petitioners argued that a liberty interest was implicated in this

case, where access to publicly-owned facilities was denied,

eligibility for employment was formally denied, the City’s action

interfered with Petitioners’ relationship with third parties, and

finding replacement work was not possible because large shows for

which Petitioners’ services were required were held at the NBC

and Waikiki Shell.       Petitioners asserted that they were denied

procedural due process prior to the deprivation of their liberty

interest, as the “only pre-deprivation notice” they received was

from Orias, which was “extremely misleading” because it “looked

like a simple inquiry.”        They argued that the full extent of the

Respondents’ accusations was never communicated to them.

             Relatedly, Petitioners argued that the circuit court

erred in concluding and finding that they failed to provide

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adequate proof of Respondents’ interference with existing or

prospective contracts, and also erred in finding that any claims

of economic losses as a result of the ban was “speculative.”

             Respondents countered that Petitioners failed to

establish a constitutionally protected liberty interest.               [AB at

15]    Respondents contended that “an employee must have no

capacity to practice his or her career at all” and the employee’s

termination must be accompanied “by stigmatizing charges[.]”

(Quotation marks omitted).         In this case, Petitioners “could

still work at other events at other publicly and privately owned

venues,” and the reasons for banning Petitioners were not

publicized.

             Even assuming that Petitioners established a liberty

interest, Respondents argued that they “provided constitutionally

adequate due process prior to” the decision to institute the ban.

Alternatively, Respondents maintained that due process is not

required in cases involving the termination of an at-will

employee, who is subject to termination without any explanation.

                                       B.

             The ICA affirmed the circuit court’s judgment, holding

that 1) Respondents had inherent authority to suspend Petitioners

from DES facilities; and 2) Petitioners failed to demonstrate a

property or liberty interest in working at the DES facilities.

Minton, 2012 WL 5970950, at *2-4.

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             First, the ICA held that “[t]he authority to suspend

persons from DES’s facilities is inherent and necessarily

incidental to the operation and maintenance of those facilities.”

Id.    The ICA interpreted RCCCH § 6-702 “as conferring upon the

director the ability to exclude persons as necessary to the

operations and management of the DES’s facilities.”11              Id.

             Second, the ICA held that Petitioners failed to

demonstrate that they had “a liberty interest in being allowed to

work at DES’s facilities.”         Id. at *3-4.     A liberty interest was

not implicated when a person “‘is not rehired in one job but

remains as free as before to seek another.’”             Id. at *3 (quoting

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 575

(1972)).     Rather, in order “[t]o prove constitutional injury, one

must show that the government has worked some change in his

status under law, sufficient to implicate a liberty interest.”

Id.

             Applying this standard, the ICA concluded that

Petitioners “did not demonstrate that the government’s action

constrained [their] future employment opportunities to a



       11
             The ICA further held that Quintal’s decision to ban Petitioners
did not constitute rule-making and thus was not subject to the requirements of
the Hawai#i Administrative Procedures Act (HAPA), HRS Chapter 91 and RCCCH §
4-105 (requiring notice and hearing for rules and regulations). Id. The ICA
reasoned that HAPA does not apply to decisions relating to the “internal
management of an agency,” and RCCCH § 4-105 only applies to rules and
regulations affecting the public. Id.

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sufficient degree to constitute a status change of due process

import.”    Id. at *4.   The court reasoned that the City’s ban “in

no way prescribes Appellants’ rights to practice their profession

in the private sector, nor does it impair Appellants’ eligibility

for public employment at any other venue.”         Id.   Thus, the ICA

concluded that the City’s ban did not implicate Petitioners’ due

process interests.    Id.

            The ICA therefore affirmed the circuit court’s

judgment.    Id.

                                   III.

            In their application for writ of certiorari to this

court, Petitioners raised three questions for review: 1) whether

Quintal had “the explicit authority to exercise unbridled

discretion” to prohibit Petitioners from working at City

facilities without affording them due process; 2) whether

Quintal’s action interfered with Petitioners’ property interest

in their employer-employee and union-member relationships; and 3)

whether Quintal’s action abridged Petitioners’ liberty interest

in working in their chosen profession.




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                                   IV.

                                    A.

           “We answer questions of constitutional law by

exercising our own independent judgment based on the facts of the

case.   Thus, we review questions of constitutional law under the

right/wrong standard.”     Brown v. Thompson, 91 Hawai#i 1, 8, 979

P.2d 586, 593 (1999) (quotation marks and citations omitted).

                                    B.

           Findings of fact will not be disturbed unless clearly
           erroneous. A finding of fact is clearly erroneous when,
           despite evidence to support the finding, the appellate court
           is left with the definite and firm conviction in reviewing
           the entire evidence that a mistake has been committed.

           We review the trial court's conclusions of law de novo under
           the right/wrong standard. Under this standard, we examine
           the facts and answer the question without being required to
           give any weight to the trial court's answer to it. Thus, a
           conclusion of law is not binding upon the appellate court
           and is freely reviewable for its correctness.

Brown, 91 Hawai#i at 8, 979 P.2d at 593 (quotation marks,

brackets, ellipses and citations omitted).

                                    V.

           The City’s primary defense to its actions in this case

is that the City’s ban was authorized as a proper exercise of its

power to manage and maintain its facilities.          Accordingly, we

address the issues raised by Petitioners’ application in the

following order: 1) whether the City had the authority to ban

Petitioners in the first instance; 2) assuming the City had such

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authority, whether the ban satisfied the requirements of the

Hawai#i Constitution; and 3) if the ban was not constitutionally

sufficient and therefore cannot be justified as part of the

City’s authority to manage and maintain its facilities, whether

Petitioners’ tortious interference claims were properly decided

by the circuit court.

            The first issue raised by Petitioners’ application is

whether Quintal had the authority to prohibit Petitioners from

working at the City’s facilities without affording them due

process.    RCCCH § 2-101 (2001) provides that the “city shall have

and may exercise all powers necessary for local self-

government.”12    The Director of the DES, pursuant to RCCCH § 6-

702 (2001), is granted the authority to “operate and maintain”

DES facilities, which includes the NBC and the Waikiki Shell.



      12
            The city’s authority under RCCCH § 2-101 is “subject only to the
general laws of this state allocating and reallocating powers and functions
pursuant to Article 8, Section 2” of the Hawai#i Constitution.
            The constitution provides in relevant part:

            Each political subdivision shall have the power to frame and
            adopt a charter for its own self-government within such
            limits and under such procedures as may be provided by
            general law. Such procedures, however, shall not require
            the approval of a charter by a legislative body.

            Charter provisions with respect to a political subdivision's
            executive, legislative and administrative structure and
            organization shall be superior to statutory provisions,
            subject to the authority of the legislature to enact general
            laws allocating and reallocating powers and functions.

Haw. Const. art. VIII, § 2.

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          As the ICA held, the authority to prohibit persons from

DES facilities is an inherent part of the DES Director’s

authority to manage and maintain DES facilities.           Minton, 2012 WL

5970950, at *2.    See Holdman v. Olim, 59 Haw. 346, 355, 581 P.2d

1164, 1170 (1978) (“The State, no less than a private owner of

property, has power to preserve the property under its control

for the use to which it is lawfully dedicated.”) (quotation marks

and citation omitted).     See also Nakamoto v. Fasi, 64 Haw. 17,

22, 635 P.2d 946, 951 (1981) (“The City is free to adopt and

enforce reasonable rules restricting the time and manner of use

of its premises, for members of the public do not have the

absolute and unfettered right to enter to make use of a City-

owned facility.”).

          For example, if an individual poses a security concern

to the DES facilities or to those using such facilities, then the

City has the inherent authority to prohibit the individual from

entering the premises.     However, the City’s authority to prohibit

individuals from entering or using DES facilities is not

unlimited.   Rather, the City must, at a minimum, act within the

limits of the state constitution.         Cf. Nakamoto, 64 Haw. at 25,

635 P.2d at 954 (“The City is entitled to take necessary steps to

prevent the misuse of its premises, and to provide protection for

those whom it invites to its facilities.         It may not, however,

impose conditions for their use which are so unreasonable as to

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be violative of constitutional provisions.”); State v. Bloss, 64

Haw. 148, 637 P.2d 1117 (1981) (city ordinance regulating

peddling in public places was unconstitutional regulation of

protected commercial speech and unconstitutionally vague and

ambiguous).

           Thus, the City is not permitted to exercise its

authority to manage its facilities in a manner that would be in

derogation of an individual’s rights under the Hawai#i

Constitution.

                                    VI.

           The second issue raised by Petitioners in this

application is whether the City’s action implicated Petitioners’

property or liberty interest, thereby invoking the protections of

procedural due process, and if so, whether the City’s action

satisfied the fundamental due process requirements of notice and

an opportunity to be heard.

            The Fourteenth Amendment to the U.S. Constitution and

article I, section 5 of the Hawai#i Constitution provide that no

person shall be deprived of life, liberty or property without due

process of law.    U.S. Const. amend. XIV, § 1; Haw. Const. art. I,

§ 5.   “The requirement of procedural due process exists to

protect individuals against the state’s deprivation of liberty

and property interests.”      Brown, 91 Hawai#i at 9, 979 P.2d at


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594.   Procedural due process claims are addressed in two steps:

“First, we must determine whether a ‘liberty’ or ‘property’

interest has been interfered with by the State; second, we must

determine what specific procedures are required to satisfy due

process.”    State v. Bani, 97 Hawai#i 285, 293, 36 P.3d 1255, 1263

(2001).

                                    A.

            The liberty interest guaranteed by the Due Process

Clause denotes, “[w]ithout doubt, . . . the right of the

individual . . . to engage in any of the common occupations of

life[.]”    Meyer v. Nebraska, 262 U.S. 390, 399 (1923).          “It

requires no argument to show that the right to work for a living

in the common occupations of the community is of the very essence

of the personal freedom and opportunity that it was the purpose

of the [Due Process Clause] to secure.”         Truax v. Raich, 239 U.S.

33, 41 (1915).    See Martin v. Mem’l Hosp., 130 F.3d 1143, 1148

(5th Cir. 1997) (“The Due Process Clause protects an individual’s

liberty interest which is viewed as including an individual’s

freedom to work and earn a living[.]”) (quotation marks, ellipses

and citation omitted).

            Accordingly, courts have held that the right to pursue

one’s chosen profession free from unreasonable government

interference comes within the liberty concept of due process.


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See Greene v. McElroy, 360 U.S. 474, 492 (1959) (“the right to

hold specific private employment and to follow a chosen

profession free from unreasonable governmental interference comes

within the liberty and property concepts of the Fifth Amendment”)

(quotation marks and citations omitted); Truax, 239 U.S. at 38

(at will employee “has manifest interest in the freedom of the

employer to exercise his judgment without illegal interference or

compulsion and, by the weight of authority, the unjustified

interference of third persons is actionable although the

employment is at will”); Mead v. Independence Ass’n, 684 F.3d

226, 232 (1st Cir. 2012) (“The right to hold private employment

and to pursue one’s chosen profession free from unreasonable

government interference is encapsulated in the liberty concept of

the Due Process Clause.”); Stidham v. Texas Comm’n on Private

Sec., 418 F.3d 486, 491 (5th Cir. 2005) (“We have confirmed the

principle that one has a constitutionally protected liberty

interest in pursuing a chosen occupation.”).

            On one hand, merely losing one position in a profession

without being “foreclosed from reentering the field” is generally

not sufficient to demonstrate an infringement of a liberty

interest.   Kartseva v. Dep’t of State, 37 F.3d 1524, 1529 (D.C.

Cir. 1994).    For example, in Board of Regents of State Colleges

v. Roth, the Court held that it would “stretch[] the concept too

far to suggest that a person is deprived of ‘liberty’ when he

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simply is not rehired in one job but remains as free as before to

seek another.”    408 U.S. 564, 575 (1972).       In Roth, a professor

was hired by a public university for a fixed term of one academic

year.   Id. at 566-67.    After the term had expired, the university

informed the professor that he would not be rehired; the

university gave no reason for the decision and no opportunity to

challenge the decision.     Id. at 568.     The professor had no tenure

rights to continued employment, and state law “clearly [left] the

decision whether to rehire a nontenured teacher for another year

to the unfettered discretion of university officials.”            Id. at

566-67.   Based on these facts, the Court held that the

professor’s liberty interest was not implicated and he was not

entitled to procedural due process.        Id. at 575.

           Similarly in Cafeteria & Restaurant Workers Union v.

McElroy, 367 U.S. 886 (1961), the Court found no liberty interest

in continued employment, where the plaintiff lost her employment

at one location but otherwise remained free to pursue her

profession at other locations.       In that case, the plaintiff was a

short-order cook at a cafeteria operated by a private employer on

a military installation engaged in developing highly classified

weapons systems.    Id. at 887.     The commanding officer of the

installation revoked the plaintiff’s identification badge upon

determining that she had failed to meet the security requirements

for that specific installation.       Id. at 888.     Consequently, the

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plaintiff was not permitted to enter the military installation.

Id.    On these facts, the Court found that the plaintiff’s right

to follow a chosen trade or profession was not affected, as she

“remained entirely free to obtain employment as a short-order

cook or to get any other job, either with [her employer] or with

any other employer.        All that was denied her was the opportunity

to work at one isolated and specific military installation.”                   Id.

at 895-96.

             However, “the plaintiff may demonstrate that the

government’s action precludes him-whether formally or informally

from such a broad range of opportunities that it interferes with

his [or her] constitutionally protected right to follow a chosen

trade or profession.”        Taylor v. Resolution Trust Corp., 56 F.3d

1497, 1506 (D.C. Cir. 1995) (emphases added) (quotation marks,

citation and brackets omitted).          “In other words, government

action precluding a litigant from future employment opportunities

will infringe upon his constitutionally protected liberty

interests . . . when that preclusion is . . . sufficiently

broad.”     Id.

             In Greene v. McElroy, 360 U.S. 474, the government

revoked a defense contractor’s security clearance based on

confidential reports that were not made available to the

contractor.       Id. at 477-80.    The contractor was not given an

“opportunity to confront and question persons whose statements

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reflected adversely on him or to confront the government

investigators who took their statements.”          Id. at 479.     Without

his security clearance, the contractor was unable to obtain

comparable employment in the aeronautics field.           Id. at 486-87.

Although the Court ultimately decided the case on statutory

grounds,13 the Court stated that the contractor’s “work

opportunities have been severely limited on the basis of a fact

determination rendered after a hearing which failed to comport

with our traditional ideas of fair procedure,” id. at 508, and

indicated that the case involved “substantial restraints on

employment opportunities[.]”        Id. at 506-07.

            The District of Columbia Circuit has interpreted Greene

to require a plaintiff to show that the government’s action has

“seriously affected, if not destroyed, his [or her] ability to



      13
            The Court held that “in the absence of explicit authorization from
either the President or the Congress the respondents were not empowered to
deprive petitioner of his job in a proceeding in which he was not afforded the
safeguards of confrontation and cross-examination.” Id. at 508. In light of
its conclusion, the Court held that it need not determine whether the
contractor had been “restrained in the enjoyment of constitutionally protected
rights” and if so, whether the contractor “was accorded due process of law.”
Id. at 492-93.
            Nevertheless, Greene has been cited as recognizing a due process
right to pursue a chosen profession free from unreasonable government
interference. See Chernin v. Lyng, 874 F.2d 501, 505 (8th Cir. 1989)
(“Although . . . Greene was decided on statutory grounds, it is clear from the
Court’s opinion that its decision to read a hearing requirement into the
relevant statutes resulted from the ‘serious constitutional problems’ which
arose from the agency’s failure to provide for the due-process rights of those
affected.”); Phillips v. Vandygriff, 711 F.2d 1217, 1223 (5th Cir. 1983)
(citing Greene for proposition that denying a person collateral credentials or
privileges necessary for pursuing an occupation is actionable under due
process).

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obtain employment in [his or her] field.”          Taylor, 56 F.3d at

1506 (quoting Greene, 360 U.S. at 492) (quotation marks and

brackets omitted).      The court compared Greene with Cafeteria &

Restaurant Workers, and held that the “misconduct must

substantially reduce the value of [the plaintiff’s] human

capital, as it would if his skills were highly specialized and

rendered largely unmarketable as a result of the agency’s acts.”

Id. at 1507.

            In terms of informal government preclusion, courts have

also held that foreclosing a person from an occupation by denying

that person “collateral credentials or privileges practically

necessary for pursuing an occupation is . . . actionable” as a

deprivation of a liberty interest.         Phillips v. Vandygriff, 711

F.2d 1217, 1223 (5th Cir. 1983) (citing Greene, 360 U.S. 474)

(emphasis added), reh’g granted in part, 724 F.2d 490 (5th Cir.

1984).14   See Silver v. Castle Mem’l Hosp., 53 Haw. 475, 483-84,

497 P.2d 564, 571 (1972) (doctor applying for staff privileges at

a publicly funded hospital “has an interest in being able to

pursue his profession[,] which requires that the necessary


      14
            The Fifth Circuit granted rehearing in part in Phillips,
clarifying the scope of its original holding “that, at a minimum, due process
guarantees to an applicant facing a licensing process notice and an
opportunity to be heard.” 724 F.2d at 492-93. The court “declined to
determine the precise scope of the due process rights possessed by an
applicant confronting a de facto licensing process” and “[left] it to the
district court . . . to decide” whether the “form of accessibility” provided
in that case “could fulfill the requirements of due process.” Id. at 493.


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facilities be available to him,” and is entitled to procedural

due process); Martin, 130 F.3d at 1149 (“Appellant might be

foreclosed from practicing as a nephrologist in Harrison County .

. . if such foreclosure is the natural consequence of denying

Appellant collateral credentials necessary for pursuing his

occupation[.]”) (quotation marks, brackets, ellipses and

citations omitted).

          In this case, Petitioners’ right to pursue their chosen

professions as stagehands was directly and unambiguously

interfered with by the City’s ban.        Unlike in Roth and Cafeteria

Workers, Petitioners did not merely lose one position as a result

of the City’s ban.    Rather, Minton and Stanley had a history of

being employed as stagehands specializing in large-scale stage

productions, and were categorically prohibited from working for

any employer at the City’s facilities, where the vast majority of

large-scale productions in the city are held.          As a result of the

City’s ban, private employers, such as Orias, The Lion King

production, the HSTA, HPU, and Hawai#i Catholic Schools, were

prevented from freely hiring Minton and Stanley as stagehands for

their events.

          Because of the close connection between Petitioners’

professions and the City’s facilities, prohibiting Petitioners

from accessing those venues effectively foreclosed their ability


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to take advantage of employment opportunities.          The natural

consequence of the City’s ban was that Minton and Stanley were

denied privileges that were “practically necessary” to pursuing

their chosen occupations.      See Phillips, 711 F.2d at 1223;

Silver, 53 Haw. at 484, 497 P.2d at 571.         The City’s ban

“seriously affected, if not destroyed,” Petitioners’ abilities to

obtain employment in their field, and “substantially reduce[d]

the value” of their human capital.        Taylor, 56 F.3d at 1506-07.

          The ICA failed to consider the City’s interference in

the employer-employee relations of Minton and Stanley.            Rather,

the ICA focused largely on the lack of a contract underlying

Minton’s and Stanley’s work at the City’s facilities, in

determining that they had no constitutionally protected liberty

interest in continuing to work at the City’s facilities.            Minton,

2012 WL 5970950, at *3.     However, the lack of a contract is not

dispositive.   At-will employees are protected from “outside

interference in their employment, and this right provides a

constitutional cause of action when a government agent unlawfully

interferes with the employment relation.”         Chernin v. Lyng, 874

F.2d 501, 505 (8th Cir. 1989).

          The adverse effect of the City’s ban on Minton’s and

Stanley’s future employment opportunities was so prevalent and

comprehensive that it implicated a liberty interest under article



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I, section 5 of the Hawai#i Constitution.15         Accordingly, the

circuit court clearly erred by finding that Petitioners remained

“completely free to perform their respective trades,”

and that Petitioners “have no constitutionally-protected right .

. . to ply their chosen profession as stage/theater workers at

City-owned venues.”      The ICA erred in affirming the circuit court

by determining that Petitioners failed to assert a cognizable

liberty interest.     Minton, 2012 WL 5970950, at *4.

                                     B.

            “Once it is determined that due process applies, the

question remains what process is due.”          Morrissey v. Brewer, 408

U.S. 471, 481 (1972).      “‘Due process is flexible and calls for

such procedural protections as the particular situation

demands.’”    Kernan v. Tanaka, 75 Haw. 1, 22, 856 P.2d 1207, 1218

(1993) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976))

(brackets omitted).

            The appropriate process due in a situation requires
            consideration of three distinct factors: (1) the private
            interest that will be affected by the official action; (2)
            the risk of erroneous deprivation of such interest through
            the procedures used, and the probable value, if any, of
            additional procedural safeguards; and (3) the government’s
            interest, including the function involved and the fiscal or
            administrative burdens that the additional procedures would
            entail.




      15
            Given our conclusion that Petitioners demonstrated a cognizable
liberty interest, we do not reach the question of whether the City’s ban also
implicated a property interest under the Hawai#i Constitution.

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In re Herrick, 82 Hawai#i 329, 343, 922 P.2d 942, 956 (1996)

(citing Kernan, 75 Haw. at 22-23, 856 P.2d at 1218-19).

          “At its core, procedural due process of law requires

notice and an opportunity to be heard at a meaningful time and in

a meaningful manner before governmental deprivation of a

significant liberty interest.”       State v. Bani, 97 Hawai#i 285,

293, 36 P.3d 1255, 1263 (2001).       Thus, this court has held that

an “elementary and fundamental requirement of due process” is

“notice reasonably calculated, under all circumstances, to

apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.”            In re

Herrick, 82 Hawai#i at 343, 922 P.2d at 956 (quoting Klinger v.

Kepano, 64 Haw. 4, 10, 635 P.2d 938, 942 (1981)).           See Brown v.

Thompson, 91 Hawai#i 1, 10, 979 P.2d 586, 595 (1999) (notice

“must inform affected parties of the action about to be taken

against them as well as of procedures available for challenging

that action.”) (quotation marks and citation omitted).

Comparatively, in the context of doctors being denied staff

privileges at hospitals, this court held that procedural due

process requires an informal hearing before the deciding board,

timely notice, and a written statement specifying the basis upon

which privileges were being denied.        Silver, 53 Haw. at 484-85,




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497 P.2d at 571.    Thus, the City was required, at a minimum, to

provide notice and opportunity to be heard to Petitioners.

          The City’s ban was imposed through Quintal’s August 31,

2007 letter to Ahuna.     According to Quintal’s letter, the reason

for the ban was that Minton and Stanley “showed a complete

disregard” in the areas of “customer service and

professionalism.”

          However, prior to Quintal’s letter, Petitioners were

not given any notice that the City was considering sanctioning

them in relation to the AMM event, much less that the City was

considering a ban.    Based on their experience at the concert and

based on Orias’ emails after the show, Petitioners were aware of

the technical sound problems at the concert but had no knowledge

that they, rather than the City’s sound system, would be held

responsible for those problems.       Petitioners had no knowledge

that there were additional allegations regarding their demeanor,

response to requests by Nephi, and their attire at the concert.

          There is no dispute that City officials did not speak

to Petitioners as part of their “investigation.”           Adequate notice

of the complaints against Petitioners was also not provided

through the union’s involvement in the matter.          Ahuna’s emails to

Orias contained comments by Minton and Stanley, but were clearly

limited to responding to the technical sound problems raised by

Orias.   Orias’s emails never referenced the stage crew’s demeanor

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or customer service.     Thus, the fact that Minton and Stanley were

aware of Orias’s concerns as to the sound system quality did not

provide them with any notice regarding the complaints of

“customer service and professionalism,” which formed the “real

basis” of the City’s ban.

            Although Quintal and Fuhrmann met with the union

business agent and president the day before the ban was

instituted, the purpose of the meeting was only to inform them of

Quintal’s decision.     The meeting was short and there was no “real

discussion” on the matter.      The union personnel were not present

in a capacity to advocate for Petitioners.         Moreover, based on

Ahuna’s letter in response to Quintal’s letter banning

Petitioners, it is clear that Ahuna was still under the

impression that the “quality of the sound system and the movement

and coordination of the sidemen for the Mayor’s portion of the

program appears to be the princip[al] complaint against my

members.”    His letter consequently did not address undisclosed

allegations that Minton and Stanley were rude or unprofessional.

Thus, the union’s involvement in the process did not provide any

meaningful notice to Minton and Furhmann of the pendency of the

City’s ban or the basis for the ban.

            As a result of the lack of notice, Minton and Stanley

were not given an opportunity to rebut the allegations made

against them.    Cf. Greene, 360 U.S. at 496 (“[W]here governmental

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action seriously injures an individual, and the reasonableness of

the action depends on fact findings, the evidence used to prove

the Government’s case must be disclosed to the individual so that

he has an opportunity to show that it is untrue.”).

          Providing notice and an opportunity to be heard was

especially important in this case, where the key decisions were

made by two individuals, Fuhrmann and Quintal, who were not

present at the AMM concert and who relied upon allegations of

third persons, including the Mayor.        See Herrick, 82 Hawai#i at

343, 922 P.2d at 956 (appropriate process due in a situation

requires consideration of “the risk of erroneous deprivation of

[private] interest through the procedures used”).           Petitioners,

however, were not told of the nature of their “unprofessional”

conduct and who had made these allegations, and they were not

given an opportunity to provide explanations concerning such

matters as their interactions with Nephi, their attire, and their

decisions at the concert.

          Additionally, Petitioners were not given a hearing or

its equivalent, and were not permitted even an informal meeting

with City officials to discuss the allegations against them.

After Quintal’s letter, Ahuna requested that Quintal temporarily

suspend his decision for two weeks and hold an immediate meeting

to discuss the matter in greater detail, given the “differing



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perceptions on what went wrong” at the show.          However, such a

meeting was never held.

            Viewing the record as a whole, it is apparent that

Respondents had no interest in providing Petitioners an

opportunity to be heard, although there appeared to be

appropriate explanations for all of the allegations of

unprofessionalism that purportedly formed the basis of the ban.

Quintal specifically testified that he did not “feel it was

necessary to know” why Minton sent Lyons onto the stage during

the concert.

            Under these circumstances, it is clear that Petitioners

were denied the most “elementary and fundamental requirement of

due process”: notice of the charges against them and an

opportunity to voice their objections in a meaningful time and

manner before governmental deprivation of a significant liberty

interest.    The lack of due process in this case is particularly

egregious when considering that Petitioners’ livelihoods were at

stake.   See id. (due process requires consideration of “private

interest that will be affected by the official action”).

            Accordingly, the circuit court clearly erred by finding

that Petitioners were “generally provided with notice” through

the union, and that the “overall process provided by Quintal,

Fuhrmann and the City consisted of meaningful notice of the

complaints against Minton and Stanley” and “contained an

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opportunity for Minton and Stanley . . . to respond to the

complaints against them[.]”      (Emphases added).

          The circuit court also erred in concluding “in the

second alternative” that Minton and Stanley received “adequate

notice for purposes of due process” and “a meaningful process to

challenge the complaints against them.”         The record in this case

makes it apparent that the City conducted its investigation

without once contacting Petitioners and that regardless of the

union’s involvement, Petitioners were uninformed of the pendency

of the City’s ban and the “real basis” for the ban, and were

denied any meaningful opportunity to rebut the allegations made

against them.

          Consequently, the ICA erred in affirming the circuit

court’s judgment.

                                   VII.

          Based on the foregoing, we hold that Petitioners

established a violation of their protected liberty interests

under article I, section 5 of the Hawai#i Constitution, and

further established that procedural due process was not afforded

prior to the City’s ban.      Thus, the City’s ban cannot be

justified as an exercise of its authority to operate and maintain

its facilities, and Petitioners are entitled to a mandatory

injunction rescinding the City’s ban.


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            Additionally, because the City’s ban was not a proper

use of the City’s authority to manage its facilities, such

authority cannot be raised as a defense to Petitioners’

underlying tort claims.       We thus address Petitioners’ claim that

Respondents tortiously interfered with their “prospective

advantage, prospective business relationships and contracts with

producers.”    See Kahale v. City & Cnty. of Honolulu, 104 Hawai#i

341, 349, 90 P.3d 233, 241 (2004) (“the City is subject to the

state’s tort laws in the same manner as any other private

tortfeasor”).

            The elements of the tort of intentional interference

with prospective business advantage are:

            (1) the existence of a valid business relationship or a
            prospective advantage or expectancy sufficiently definite,
            specific, and capable of acceptance in the sense that there
            is a reasonable probability of it maturing into a future
            economic benefit to the plaintiff; (2) knowledge of the
            relationship, advantage, or expectancy by the defendant; (3)
            a purposeful intent to interfere with the relationship,
            advantage, or expectancy; (4) legal causation between the
            act of interference and the impairment of the relationship,
            advantage, or expectancy; and (5) actual damages.

Haw. Med. Ass'n v. Haw. Med. Serv. Ass'n, Inc., 113 Hawai#i 77,

116, 148 P.3d 1179, 1218 (2006) (quoting Robert’s Haw. Sch. Bus,

Inc. v. Laupahoehoe Transp. Co., 91 Hawai#i 224, 258, 982 P.2d

853, 887 (1999)).16


      16
            This court has previously suggested that the tort of interference
with prospective contractual relations is a sub-species of, or otherwise
distinct from, the broader tort of interference with prospective economic
                                                                (continued...)

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            The first element requires “a colorable economic

relationship between the plaintiff and a third party with the

potential to develop into a full contractual relationship.              The

prospective economic relationship need not take the form of an

offer but there must be specific facts proving the possibility of

future association.”      Haw. Med. Ass’n, 113 Hawai#i at 116, 148

P.3d at 1218 (quoting Locricchio v. Legal Servs. Corp., 833 F.2d

1352, 1357 (9th Cir. 1987)) (quotation marks omitted).             See §

Restatement (Second) of Torts § 766B cmt. c (1979) (“The

relations protected against intentional interference” include

“interferences with the prospect of obtaining employment”).

            In this case, Petitioners alleged tortious interference

with their prospective business advantage with “producers.”              The


      16
        (...continued)
advantage. See Buscher v. Boning, 114 Hawai#i 202, 216 n.8, 159 P.3d 814, 828
n.8 (2007) (“In Kutcher v. Zimmerman, the ICA noted that ‘the tort of
interference with prospective contractual relations is a sub-species of the
broader tort of interference with prospective economic advantage.’”) (quoting
87 Hawai#i 394, 405 n.15, 957 P.2d 1076, 1087 n.15 (App. 1998)); Whitey’s Boat
Cruises, Inc. v. Napali-Kauai Boat Charters, Inc., 110 Hawai#i 302, 317 n.25,
132 P.3d 1213, 1228 n.25 (2006) (“In addition to the elements required to
establish a claim for tortious interference with prospective business
advantage, a plaintiff asserting a claim for tortious interference with
prospective contractual relations must also prove that ‘the defendant acted
without proper justification.’”) (citing Kutcher, 87 Hawai#i at 406, 957 P.2d
at 1088). Inasmuch as Petitioners satisfy the elements of the tort of
“interference with prospective business advantage” as set forth in Hawai#i
Medical Ass’n, we need not address whether “interference with prospective
contractual relations” is a sub-species of, or otherwise distinct from the
tort of “interference with prospective business advantage,” whether their
respective elements differ, or whether Petitioners satisfy the elements of the
former.

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evidence adduced at trial established that Petitioners had

colorable economic relationships with third parties, including

the producers of The Lion King show, Hawai#i Catholic Schools,

the HSTA, and HPU.

            Second, the City had “‘actual knowledge’ of the

expectancy or ‘knowledge of facts which would lead a reasonable

person to believe that such interest exists,’” Haw. Med. Ass’n,

113 Hawai#i at 116, 148 P.3d at 1218 (citation omitted), as

evidenced by the written requests to the City for Minton and

Stanley to work for the HSTA and Hawai#i Catholic Schools, and

the testimony regarding Minton’s inability to work at the HPU

event and Stanley’s inability to work on the Lion King show.

            Third, the City intentionally interfered with such

prospective business advantage by banning Petitioners from

working at the City’s facilities.         The intent element “denotes

purposefully improper interference and requires a state of mind

or motive more culpable than mere intent.”         Id. (quotation marks

and citations omitted).     “In other words, the plaintiff must

prove that the defendant either pursued an improper objective of

harming the plaintiff or used wrongful means that caused injury

in fact.”    Id. (quotation marks and citation omitted).

            In this case, the City’s ban violated Petitioners’ due

process rights and therefore used wrongful means to cause injury


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to Petitioners.    Cf. W.P. Keeton et. al, Prosser and Keeton on

the Law of Torts § 129, at 982 (5th ed. 1984) (defining intent

element of the tort of interference with contract and stating

that once “knowledge of the plaintiff’s contract or interest” is

established, “the defendant may be held liable for an

interference with the plaintiff’s known economic interests if the

defendant invades those interests by . . . unconstitutional

acts”) (footnotes omitted).

           Finally, the City’s interference impaired Petitioners’

economic relationships with the third party producers and caused

actual damages to Petitioners in the form of lost employment and

wages, as demonstrated by Dr. Loudat’s testimony.           Thus,

Petitioners established legal causation and the existence of

actual damages.    See Haw. Med. Ass’n, 113 Hawai#i at 116, 148

P.3d at 1218.

           The circuit court therefore erred in finding that any

claim that Petitioners suffered “significant economic losses” as

a result of the ban was “speculative since it is based largely

upon their expectation that they would have worked many, if not

all, of the events that they either had previously worked or for

which they would have been otherwise eligible and available to do

so.”   The circuit court also clearly erred in finding that

neither Minton nor Stanley “provided adequate proof that they had



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any prospective contract with any party which was interfered with

due to the Defendants’ actions herein.”

          The court thus erred in concluding that Petitioners

“failed to present credible evidence to establish that they had .

. . prospective contractual rights with Catholic Schools of

Hawaii and/or Hawaii Pacific University” and alternatively

“failed to present credible evidence that any Defendant

interfered with any . . . prospective business advantage[.]”

          The evidence was uncontradicted that Furhmann

specifically communicated with Hawai#i Catholic Schools and

informed them that Minton and Stanley were not permitted to work

at the requested event, and further instructed Hawai#i Catholic

Schools to seek other workers from the union.          The evidence was

also undisputed that the City’s ban directly interfered with

Petitioners’ ability to work at other scheduled events, including

the Lion King production and the HPU and HSTA events.

Additionally, the evidence of the financial effect of the ban

upon Minton and Stanley was adduced by an expert agreed upon by

the parties.   The City offered no substantive evidence showing

that the ban did not interfere with Petitioners’ prospective

business advantage; rather, the City’s primary argument was that

the City’s ban was a proper use of its authority to manage and

maintain the City’s facilities.       However, we have rejected this


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contention and concluded that the City’s ban was not proper

because it was imposed without affording due process to

Petitioners and therefore imposed in a manner that derogated

their individual rights under the Hawai#i Constitution.

            Accordingly, we conclude that Petitioners established

the elements of their claim of tortious interference with

prospective business advantage, including the existence of

damages.    We therefore remand to the circuit court for a

determination of the amount of damages to be awarded against the

City.17    See Estate of Klink v. State, 113 Hawai#i 332, 337, 152


      17
            The course of the proceedings in this case indicated that
Petitioners were suing Quintal and Furhmann in their official capacity. See
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (noting in the context of
claims brought under 42 U.S.C. § 1983, “In many cases, the complaint will not
clearly specify whether officials are sued personally, in their official
capacity, or both. The course of proceedings in such cases typically will
indicate the nature of liability sought to be imposed.”) (quotation marks and
citation omitted).
            “Official-capacity suits . . . generally represent only another
way of pleading an action against an entity of which an officer is an agent.”
Id. at 165 (citing Monell v. New York City Dep’t of Social Servs., 436 U.S.
658, 690 n.55 (1978)). Petitioners alleged in their Complaint that Quintal
and Fuhrmann “acted as agents of [the City] within their perception of the
scope of their positions, on account of which [the City] is liable for the
individual defendants’ wrongful, tortious and illegal conduct[.]”
            During closing arguments at trial, the circuit court indicated
that it was its understanding that all of the claims against Quintal and
Fuhrmann were being made in their official capacity. Respondents’ counsel
stated that he had based his case and arguments “[t]o a large degree” on the
understanding that the claims were official-capacity claims, and argued, “[I]f
they’re just suing them in their individual capacity, it would change.”
Petitioners’ counsel did not indicate whether the claims were official-
capacity or personal-capacity claims in his rebuttal.
            In the parties’ briefs to the ICA, the parties raised arguments
regarding whether Quintal and Furhmann were entitled to qualified immunity.
In Respondents’ answering brief to the ICA, however, Respondents noted that
the circuit court had not made a ruling granting the City immunity. In
Petitioners’ reply brief, Petitioners responded that there is “no disagreement
at this time that the City is not immune” and stated that “[t]he immunity
issue has, from a practical point of view, become inconsequential and should
                                                                (continued...)

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P.3d 504, 509 (2007) (vacating judgment and holding based on the

record that State was negligent and liable to the plaintiffs as a

matter of law and remanding on the issue of damages); Brown v.

Thompson, 91 Hawai#i 1, 979 P.2d 586 (1999) (vacating and

deciding several claims as a matter of law and assessing

damages).

                                    VIII.

            Based on the foregoing, the judgments entered by the

circuit court and the ICA are vacated and the case is remanded to

the circuit court for proceedings consistent with this opinion.



Charles S. Lotsof and                    /s/ Mark E. Recktenwald
Jack F. Schweigert
for petitioners                          /s/ Paula A. Nakayama

Curtis E. Sherwood                       /s/ Richard W. Pollack
for respondents
                                         /s/ Jeannette H. Castagnetti

                                         /s/ Glenn J. Kim




      17
        (...continued)
therefore be disregarded.”
             Finally, at oral argument, Petitioners’ counsel indicated that he
was uninterested in pursing claims against Quintal and Fuhrmann if successful
on claims against the City. MP3: Oral Argument, Hawai#i Supreme Court, at
1:01:07 (Jun. 19, 2013), available at
http://state.hi.us/jud/oa/13/SCOA_061913_11317.mp3.
             Accordingly, we treat Petitioners’ suit as an official-capacity
suit and we do not address the question of qualified immunity.


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