Tuesday, April 15, 2008

The Taxman Cometh--well, sort of.

Hawaii Insurers Council v. Lingle (ICA April 14, 2008)

Vacated in Part by HSC.

Background. The Insurance Regulation Fund (IRF) was established by the legislature, but controlled by the executive branch, to collect monies from Hawai'i insurers in order to support the overhead of the Insurance Commissioner, Dept. of Budget and Finance, the DCCA, and the Insurance Division. Over the years the IRF collected from the insurers and had $2 million in excess. The State therefore prepared to transfer the funds to the General Fund. The Hawaii Insurers Council (HIC) sued the State alleging that the monies collected from the insurers were illegal and unconstitutional taxes. The circuit court enjoined the State from transferring the money.

A Regulatory fee is still an Unconstitutional Tax. The executive branch of government cannot tax. Only the legislature and "political subdivisions" have the constitutional power to tax. Haw. Const. Art. III § 3. The State argued that the charge to insurers is a regulatory fee and does not implicate an illegal tax under San Juan Cellular Tel. Co. v. Public Service Com'n of Puerto Rico, 967 F.2d 683 (1st Cir. 1992). The ICA rejected this argument.

In Hawai'i the question turns not whether this is a regulatory or user fee, but whether a charge from the government is an illegal tax or a mere administrative fee. Whether a charge is a fee or a tax depends on whether the charge (1) applies to a direct beneficiary of a particular service; (2) is allocated directly to defraying costs of providing that service; and (3) is reasonably proportionate to the benefit received. State v. Mederios, 89 Hawai'i 361, 370, 973 P.2d 736, 742 (1999). Here, the regulation of the insurance industry benefits the public-at large, not the persons paying the charges. The insurers are merely incidental beneficiaries, which, for the ICA, is too tenuous a connection for the first prong under Medeiros. The ICA also held that the charge does not meet the other two prongs either. Thus, the charge is an unconstitutional delegation of the State's taxation powers to the executive. The ICA noted that even if the San Juan Cellular test may be a better approach, it is not the law of Hawai'i. The ICA is bound by the holding of the Hawai'i Supreme Court in Medeiros and it will not depart from it.

Joe Feepayer asks: What's in it for me? The ICA has made it clear that if the charge is not coming from the legislature or a "political subdivision" it may arise to an unconstitutional delegation of the taxation power. This is particularly true if it heads toward the General Fund. Whether something is a tax is to be determined by Medeiros. There are countless instances in which the State charges people for things.

Could all of these charges challenged by Medeiros? What about those fees charged to the criminal defendant when he or she is found guilty? Does this mean that criminal defense attorneys should argue that payments to the victim's compensation fund and all the other fees stacked up against a criminal defendant are unconstitutional delegations of the taxation power to the courts? Medeiros, after all, began when the HNL prosecutor and the Dept. of Finance appealed from the circuit court enjoining it from charging convicted defendants for services provided by the City in connection with the arrest, processing, and prosecution. The Hawai'i Supreme Court applied the three-prong test, and found that the charge was, in fact, an unconstitutional tax and upheld the injunction. Id.

Judge Watanabe's Concurrence. Then again, does this mean that the only time an agency can charge a person is when the agency provides some kind of direct service to the payer? Would this strip the government operations to almost nothing? Judge Watanabe was concerned about this and wrote separately. According to a 2001 report from the State Auditor, there were over 200 special and revolving funds that are likely to be compromised as they would fail to be considered "fees" under the Medeiros test. According to Judge Watanabe, the Medeiros test "overlooks" the nature of regulatory fees, which are typically imposed to offset the burdens on the government rather than benefit the "fee-payer." Judge Watanabe believes the Medeiros test should be reexamined to avoid "dire consequences" on the government's ability to maintain its fiscal infrastructure and funding. Note that this is a concurrence. Judge Watanabe recognizes that the law in Hawai'i is based on a tax-fee distinction; even if it might be dismissive over other ways in which the government keeps itself financially afloat.

The Other Issues. The ICA majority briefly reviewed issues pertaining to the separation of powers, equal protection, due process, sovereign immunity, circuit court jurisdiction, and other things. The main question, however, had to do with Medeiros.

Tuesday, April 1, 2008

HSC Delivers Death knell to Extrinsic facts--Again!

State v. Jess (HSC March 31, 2008)

Jess was sentenced by the state circuit court under the extended sentencing laws as a "multiple offender" and a "persistent offender." (HRS §§ 706-661 and 706-662(4)(a)). Jess petitioned under the federal habeas corpus statute (28 U.S.C. § 2254), and argued that in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, the sentence was unconstitutional. The U.S. Dist. Ct. agreed and ordered the circuit court to re-sentence Jess. At the re-sentencing, the State sought an extended term by empanelling a jury to find beyond a reasonable doubt those facts that would warrant the extended term. Jess objected on the grounds that the statutes did not provide for a jury and the State was precluded from asking for a jury. The circuit court reserved the question for the HSC. Since then, the US Supreme Court came down with Cunningham v. California, 127 S.Ct. 856 (2007). The HSC requested supplemental briefing on whether Cunningham affected the fact that Jess's indictment failed to notify the defendant that the State would be seeking extended sentences as a persistent and multiple offender.

A Spectre haunts Criminal Procedure. Due process requires the charging instrument to contain all of the essential elements of the offense. State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303, 310 (1995). This includes facts that would bump the offense up to an aggravated one. State v. Estrada, 69 Haw. 204, 738 P.2d 812 (1987). However, "historical facts," that is, those facts that are extrinsic to the circumstances of the offense have no bearing to the issue of guilt and needn't be included in the charging document. State v. Huelsman, 60 Haw. 71, 588 P.2d 394 (1978). This was the extrinsic-intrinsic distinction.

Before 2007, the HSC also held that this distinction applied with equal force to sentencing; extrinsic facts that are not included in the charging instrument needn't be found by a jury beyond a reasonable doubt at sentencing either. That all changed with State v. Maugaotega, 115 Hawai'i 432, 168 P.3d 562 (2007), in which the HSC, by order of the US Sup. Ct., abandoned the extrinsic-intrinsic distinction for sentencing. The HSC saw this as an inconsistency because while Maugaotega killed off the extrinsic-intrinsic distinction at sentencing, and the issue for Jess was whether the distinction could still be maintained in charging documents. The HSC answered in the negative and killed off the distinction. Again.

They're all Elements now. The HSC retraced its steps during the extrinsic-intrinsic cases. It was clear, according to the HSC, that back then it viewed intrinsic facts--those facts that must be proven beyond a reasonable doubt and must be alleged in the charging document--as essential elements. In the wake of Cunningham and Maugaotega, the HSC has held that all facts that can enhance a sentence, whether as an aggravated crime or under the enhanced sentencing laws, are "elements" and must be found beyond a reasonable doubt by a jury before it does so. Because they're all elements, the State must express its intention to bring enhanced sentences in the "charging instrument, be it an indictment, complaint, or information[.]"

Should the jurors who found guilt also Determine an Enhanced Sentence? The HSC appears to view facts used to enhance a defendant's sentence as an essential elements. Thus, they must be found beyond a reasonable doubt by a jury and be alleged in the charging document. At first it sounds like nothing different happened. But a sentencing jury or rather a jury that sits at the sentencing phase is not finding facts that would lead to a defendant's guilt. The statutes do not preclude bifurcated proceedings for finding the offense and then the sentence. This may be no different than one jury to determine liability in a civil trial and another jury to determine damages. This doesn't mean the same jury has to hear both, does it? Would it prejudice the defendant to have the same jury? Wouldn't a defendant want a new jury to determine whether the facts going toward an enhanced sentence instead of the same jurors that sat through his criminal trial? A reading of the enhanced sentencing statutes does not foreclose this possibility. In fact, a creative defendant may want to waive his or her jury right at trial and preserve it for sentencing--should the State seek an enhanced sentence. The proceedings seem ripe for experimentation.

Prospective Applicants only, Please. The HSC held that its holding about charging documents is a new rule that applies prospectively, that is, it does not apply to Jess. In determining whether to apply the new rule prospectively (i.e. to all future cases and excluding the parties here), partially prospectively (i.e. all future cases, the parties, and cases not yet final), or retroactively, the HSC weighs the pros and cons of retroactive application with primary consideration to the purpose of the new rule. Other considerations include the reliance of law enforcement authorities on old standards and the effect on the administration of justice of a retro. application of new rules. State v. Peralto, 95 Hawai'i 1, 6, 18 P.3d 203, 208 (2001). The HSC added that a retroactive rule is generally afforded to rules that protect the integrity of the fact-finding process. State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971). Retroactivity also is designed to overcome a substantial impairment to the "truth-finding" function of the criminal trial that raise serious questions about the accuracy of past verdicts. Williams v. U.S., 101 U.S. 646, 653 (1971). This new rule--which is a procedural requirement for the State--does not, according to the HSC, share the same general characteristics of a retroactively applying rule. In fact, retro application would prejudice the State.

But what about Jess? Turning to Jess's case, the HSC applied the old extrinsic-intrinsic distinction to Jess's case. It found no error. As for whether Jess's sentencing factors would be heard by a jury or not, the HSC held that on remand the circuit court should exercise its inherent power to reform a statute in order to preserve its constitutionality and empanel a jury on remand--that same inherent power discussed by the HSC, but not exercised initially in Maugaotega. Why the change of heart? After all, when confronted with the same question for Maugaotega, the HSC declined to exercise its inherent power (but it aptly described and outlined its power for another time). The change came from the Legislature's adoption of the newly-amended enhanced sentencing guidelines in October. True, they did not apply to Jess's case, but they expressed the "recent seachange in the legislature's clearly expressed intent regarding the wisdom of employing juries[.]" Hence, the sentencing jury for Jess, and a remand limited to non-enhanced sentencing.

And Finally . . . The HSC majority held that the retroactive provisions of the newly amended sentencing laws were not in violation of the ex post facto clause in the U.S. Constitution. Thus, it did not have to overturn State v. Cutsinger, an ICA opinion that came to the same result earlier this year.

Justice Nakayama's Concurrence and Dissent. Jess never raised the issue of whether the charging instrument was constitutionally infirm because it failed to allege the enhanced sentencing facts. Thus, Justice Nakayama would not have addressed the issue, and if she did, she would disagree with the majority's position that the complaint or other charging instrument must allege the sentencing facts. Justice Nakayama examined Almendarez-Torres v. U.S., 523 U.S. 224 (1998), in which the US Sup. Ct. observed that prior convictions used to enhance a sentence were not considered elements of the offense. This initial observation evolved into the prior-conviction exception to the now-well-known Apprendi rule (any fact--other than a prior conviction--used to increase the penalty of an offense above the statutory maximum must be found by a jury beyond a reasonable doubt). Almendarez-Torres and its progeny, believed Justice Nakayama, does not transform the statutory language to elements of the offense.

Justice Acoba's Dissent. Justice Acoba believed that the majority decided nothing of consequence. Jess's case, according to Justice Acoba, was disposed by the USDC's mandate to the circuit court that it comply with Apprendi and any issues for the HSC were already answered in Maugaotega. Because, as pointed out by Justice Nakayama, Jess didn't even argue that the charging instrument was unconstitutional, and because the majority declined to apply the new rule to him, Jess's case is a "foray by the majority into the legislative area" and "is merely the vehicle by which the majority proclaims propositions it seeks to advance that are not pertinent to or applied to his situation." This renders the entire decision to more or less an advisory opinion that shouldn't have answered the reserved question. Justice Acoba also believed that if it must be answered, Jess's case should have been remanded without the possibility of enhanced sentencing, just like Maugaotega. He also disagreed with the majority's holding of the constitutionality of the retroactive effect of the new legislation because it was, according to him, decided in a vacuum. Finally, if the "new rule" regarding the charging document must be reached, then it should apply to Jess as a matter of fundamental fairness to similarly situated defendants. Justice Acoba pointed out that the HSC, "unlike a legislature, [does] not promulgate broad rules outside of specific cases[.]"