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Showing posts from April, 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 insu…

HSC Delivers Death knell to Extrinsic facts--Again!

State v. Jess (HSC March 31, 2008)

Background.
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…