State v. Hoshijo ex rel. White

• Citation: 102 Haw. 307,76 P.3d 550
• Decision Date: 12 September 2003
• Docket Number: No. 22379.,22379.
• Parties: STATE of Hawai'i, University of Hawai'i; and Rob Wallace, Appellants-Appellants/Cross-Appellees, v. William D. HOSHIJO, Executive Director, on behalf of the complaint filed by Eric WHITE, and the Civil Rights Commission, State of Hawai'i, Appellees-Appellees/Cross-Appellants.
• Court: Supreme Court of Hawai'i

76 P.3d 550

102 Haw. 307

STATE of Hawai'i, University of Hawai'i; and Rob Wallace, Appellants-Appellants/Cross-Appellees, v. William D. HOSHIJO, Executive Director, on behalf of the complaint filed by Eric WHITE, and the Civil Rights Commission, State of Hawai'i, Appellees-Appellees/Cross-Appellants.

No. 22379.

Supreme Court of Hawaii.

September 12, 2003.

Russell A. Suzuki, Deputy Attorney General, State of Hawai`i, on the briefs, for Appellant-Appellant State of Hawai'i University of Hawai`i.

John Ishihara (Hawai'i Civil Rights Commission), Honolulu, on the briefs, for Appellees-Appellees/Cross-Appellants William D. Hoshijo and Hawai'i Civil Rights Commission.

Edward C. Kemper (Kemper & Watts), Honolulu, on the briefs, for Amicus Curiae The American Civil Liberties Union of Hawai'i Foundation.

LEVINSON, ACOBA, JJ., and Circuit Judge AUGUST, Assigned by Reason of Vacancy; and NAKAYAMA, J., Dissenting, with whom MOON, C.J., Joins.

Opinion of the Court by ACOBA, J.

We hold that when reviewing a decision of the Hawai'i Civil Rights Commission (HCRC) the standard of review, pursuant to Hawai'i Revised Statutes (HRS) § 368-16(a) (1993), for the circuit court to apply, is de novo review. On appeal from the circuit court's decision, pursuant to HRS § 368-16(d) (1993), this court applies the same standard of review applicable to all other appeals from the circuit court. Accordingly, the circuit court's findings of fact are to be reviewed upon a clearly erroneous standard, and its conclusions of law are to be reviewed de novo under the right or wrong standard. Inasmuch as the findings of fact of the Circuit Court of the First Circuit¹ (the court) are supported by the record and are not clearly erroneous, and the conclusions of law are not wrong, we hold that (1) Rob Wallace (Wallace) was acting as an agent of the University of Hawai'i (UH), (2) Wallace was acting within the scope of his authority when he directed a racial slur at Eric White (Complainant), and (3) Wallace's utterances were not protected by the First Amendment. Accordingly, the court's February 24, 1999 order affirming in part and reversing in part the final decision of the HCRC, and its February 26, 1999 judgment are affirmed.

I.

Appellant — Appellant/Cross — Appellee² State of Hawai'i, UH, (Appellant), seeks review of the court's February 24, 1999 order,³ affirming in part and reversing in part the final decision of the HCRC.⁴ Both the HCRC⁵ and the court, on appeal from the HCRC, held Appellant liable to Appellees-Appellees/Cross-Appellants William D. Hoshijo, the Executive Director of the HCRC appearing on behalf of Complainant, and the HCRC (collectively Appellees) for discrimination in public accommodations pursuant to HRS §§ 489-3 (1993) and 489-9 (1993). The court reversed the HCRC's finding that Wallace was an employee of UH, but affirmed the finding that he was an agent of that institution.

On appeal to this court, Appellant contends that the court erred in holding that (1) Wallace was acting within the scope of his agency relationship when dealing with spectators, and (2) Wallace did not enjoy First Amendment⁶ rights protective of the words which were the subject matter of the alleged discrimination.⁷ Appellees cross-appealed, claiming that the court erred in ruling that Wallace was only acting as an agent and not as an employee. Because we affirm the court's decision, we need not address Appellees' argument on cross-appeal.⁸

II.

The following relevant facts are not in dispute. Coach Riley Wallace (Coach) is the head coach of the UH basketball team. The UH Special Events Arena (Arena) is owned by UH and managed by its Department of Intercollegiate Athletics (Athletic Department). Wallace was a student manager of the basketball team. Wallace is Coach's son.

The basketball team had two student managers who performed various functions for the basketball team. Student managers are selected by the coach of the basketball team and are supervised by the team's coaches. These student managers receive athletic scholarships, which include tuition waivers, book loans, and money for housing and meals. The scholarship funds are held in UH's general scholarship account and are administered by the Athletic Department. The university considers student managers to be student athletes and requires that they be full-time students, carry at least twelve credits of course work, and maintain a grade point average of at least 2.0.

Student managers are not paid a salary. As such, student managers are not given employee identification numbers and are not included on UH's payroll. They are also not provided benefits such as annual leave, workers' compensation, or health insurance. Taxes are not withheld from the scholarship monies awarded.

Student managers perform various functions for the basketball team. They assist coaches, prepare the gym for practice, and issue equipment. During the regular season they set up drinking water and equipment in the Arena, maintain the equipment and locker rooms, wipe the basketball floor during games, pack the players' travel bags, and accompany the team to off campus games. Post-season duties include gathering equipment and attending post-season workouts.

Student athletes and student managers are also required to attend and participate in various fund raising events, such as golf tournaments and dinner auctions and to socialize with the public at these functions. The Athletic Department permits student managers to speak to spectators and members of the public at team practices and games.⁹ The court found that "[t]he express language in the [UH Student-Athlete Handbook (Handbook)] and the facts under de novo review demonstrate that it was anticipated that during a [UH] basketball game, Wallace would have contact with the public and that such contact would be within the scope of his authority as an agent."¹⁰

A student manager's conduct is regulated by the Handbook, which is given to each student manager at the beginning of the school year, and reviewed with them by the then-Director of the Athletics Department, Hugh Yoshida (Yoshida). The Handbook explains that student athletes and student managers "have special interests and responsibilities that do not apply to other students." It declares that such students "represent[ ] the University of Hawai'i and all the people of Hawai'i[,]" and, as such, they "will be in the `public eye' and [their] personal conduct should reflect favorably upon ... [themselves, their] team and the University." The Handbook requires "sportsmanlike" conduct and declares that "[u]sing obscene or inappropriate language or gestures to officials, opponents, team members or spectators" will not be tolerated. Student managers are required to abide by the Code of Conduct (Code) outlined in the Handbook.

A violation of the Code may be considered a minor or major violation. For example, directing a racial slur toward a spectator is prohibited by the Code and is punishable as a minor violation. Minor violations are disciplined by the head coach and may include temporary suspension from the team. Violent behavior, criminal activity, and drug use are considered major violations, and, as such, the head coach must immediately suspend the student athlete or student manager and refer the matter to the Athletic Director for further disciplinary action. However, a scholarship can only be rescinded if a student quits, becomes academically ineligible, or commits major misconduct.

III.

On or about February 18, 1995, Complainant attended a UH basketball game at the Arena. An avid fan, Complainant sat near the team and yelled comments about the referees and opposing players during the first half of the game. The game's score was very close, and in the second half, Complainant became frustrated as he believed that the coaches were mistaken in their decisions.

Complainant yelled the following at the coaching staff: "You're a dinosaur coach!" "You're blowing it!" "You don't know what you are doing!" "Stupid move!" "Play your bench!" "Put Woody [Woodrow Moore] in!" "You gotta use Woody, Woody can do it!" "You can't coach talented players!" "Play your best players!" Complainant's statements irritated Wallace. At one point, Wallace notified Rich Sheriff (Sheriff), the Arena manager, about Complainant, but Sheriff did nothing because in his opinion Complainant's remarks were not offensive.

During the last two minutes of the game, Complainant yelled something like, "You should pack your bags and go already!" Wallace became enraged and turned toward Complainant and yelled, "Shut up you f[* *]king nigger! I'm tired of hearing your shit! Shut your mouth or I'll kick your ass!" Complainant responded, "Oh yeah, punk, come over and try it! You see me all the time, what's the problem?" Wallace then moved to within a few feet of Complainant and shouted, "Just shut up, nigger or I'll kick your ass!" Complainant retorted, "Oh yeah, you and who else!" At this point, the assistant Arena manager, Adam Primas, intervened, and Wallace left for the locker room.

After Wallace left, Complainant turned to the boosters¹¹ and security personnel around him and shouted, "Did you hear what he called me? Did you hear that?" Coach did not personally hear the exchange, but was informed that Complainant and Wallace were arguing. Coach went to where Complainant was sitting and with his back to Complainant, stated, "Eric, could you please take it easy on my son?" Complainant, only then realizing that Wallace was Coach's son, responded, "Coach, when your son uses the `N' word, he's no longer your son. I'm going to break his punk ass." Coach did not respond. The game ended shortly thereafter.

Someone notified Sheriff of the incident and he went to Complainant and demanded, "[W]hat the hell were you doing?" Complainant then told Sheriff and a security guard that Wallace had called him a "nigger"¹² (hereinafter "racial slur," unless contained...