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Showing posts from May, 2010

State can tax Boat's Business (but not the Boat)

In re Tax Appeal of Reel Hooker Sportfishing (ICA May 28, 2010)Background. Reel Hooker Sportfishing, Exact Game Fishing, Inc., and Finest Kind, Inc. are corporations that run charter boats around Maui, Lanai, and Molokai. They had federal permits allowing them to travel through the navigable waters between the islands. They are in the charter fishing business and allow passengers to seek pelagic game fish like marlin, ono, ahi, and mahimahi. Their source of earnings come from the fares charged to passengers. These fares include the state's general excise tax, the GET. The boat companies filed complaints against the State in the Tax Appeal Court alleging that the GET tax was preempted by federal law. The Tax Appeal Court granted the State's motion for summary judgment. The boat companies appealed.The Three Faces of Federal Preemption. The ICA addressed a single issue, whether the federal statute, 33 U.S.C. § 5(b) preempts Hawai'i's GET tax, HRS § 237-13(6)(A). …

Prosecutor's Comments on Defendant's Presence in Courtroom Cost State the Conviction

AFFIRMED BY HSC.State v. Walsh (ICA May 26, 2010)Background.Walsh was charged with assault in the second degree.HRS § 707-711(1)(b).Walsh was arguing with his sister outside Ocean's Bar and Grill in Kihei, Maui at around 1:30 in the morning, when a group of four or five men interrupted.The men yelled at Walsh and started fighting with him.They kicked, pushed, and punched Walsh in the parking lot until he was down on the ground.Walsh crawled away from them and stumbled as he stood up.At his trial, Walsh testified that he swung blindly upon standing up and punched Kapena Kramer in the face.The manager at Oceans, however, testified that Walsh was cool and collected when he punched Kramer.The punch fractured Kramer's jaw in two places and knocked him unconscious.At closing argument, the prosecutor argued that before he testified, Walshbenefitted from seeing all these witnesses, heard what they were going to say.What's important about that is not only that, he heard the voir-di…

Prostitution Requires a Sexual Favor, a fee, and a Nexus Between the fee and the Favor.

State v. Xiao (HSC May 25, 2010)Background.Xiao was charged with prostitution, i.e. sexual conduct with another for a fee.HRS § 712-1200(1).At her trial, Officer Wagner testified.He was undercover and went to Club Sara Lee, a bar in HNL.There he saw Xiao as he did on previous occasions.He was in a karaoke room with others.Xiao approached him and asked him for a drink.Officer Wagner asked her if there was anything other than the $20.00 drinks.She said, yes, there were $40.00 drinks.Officer Wagner told her to buy herself one and gave her $40.When she came back, she put the drink down and they started dancing.They were dancing slow and close.According to Officer Wagner, Xiao rubbed her pelvis against his erect penis.When they were done dancing they sat together.She rubbed his thigh while they made "small talk."He bought her another $40 drink.She came back and they danced again in the same way, but for a longer period of time.At one point, she "squatted and rubbed her breas…

Breach-of-Contract Claims not Covered by Commercial General Liability Insurance Contracts (but we don't know why).

Group Builders, Inc. v. Admiral Ins. Co. (ICA May 19, 2010)Background.Group Builders installed exterior insulation finishing system and sealant, fireproofing, and other exterior finishing on the hotel tower at the Hilton Hawaiian Village in Waikiki.Group's insurance carrier for commercial general liability was Admiral.After the tower was finished and opened to the public, mold and other structural defects were found.The Hilton sued alleging breach of contract, negligence, breach of warranty, and negligent misrepresentation.Admiral refused to defend or otherwise provide insurance for Group Builders.Group Builders sued Admiral for its refusal.The circuit court dismissed the claims for lack of jurisdiction.Group Builders appealed.The Issue: Interpreting the Insurance Policy.Under the insurance policy, Admiral must pay for sums that Group Builders "becomes legally obligated to pay as damages because of 'bodily injury' and 'property damage.'"Bodily injury and …

HSC Strikes down Concept of Perpetual EIS

Unite Here! v. City and County of Honolulu (HSC April 8, 2010)Background.In the 1980s Kuilima proposed to expand its 487-room hotel and 18-hole golf course by constructing three additional hotels, renovating the existing golf course, building another golf course, erecting a condominium unit, a commercial complex, clubhouse, tennis courts, and equestrian center on the North Shore of Oahu.The project called for a new wastewater treatment plant, water wells, reservoirs, water lines, highway improvements, a wildlife preserve, and public and private parks.In 1985, Kuilima prepared and filed an environmental impact statement with the Office of Environmental Quality Center.After public commentary and revisions, the 1985 EIS studied changes and projections going up to the year 2000.No major construction for the project occurred for more than 20 years.In 2005, Kuilima applied at the City and County's Department of Planning and Permitting for a subdivision of 744 acres of the 804-acre prope…

Former Clients and Phantom Jury Instructions

State v. Mark (HSC May 12, 2010)Background.Mark, with others present, met with Paikai and Piko in a parking lot.There was a dispute over a camera.Paikai had a box which supposedly had the camera.At that point, Mark produced a gun and fired shots above Piko's head.Mark also fired a shot at Paikai and hit her in the leg.Mark later testified that he intended on shooting her in the leg and did not aim for her head or body.About a month later, two plain-clothes officers responded to a tip that Mark was at a Baskin Robbins in Kapolei.Officers Gaspar and Sung were going to arrest Mark pursuant to a warrant.When they got there, Mark was there with his girlfriend and his daughter; he struggled with the officers and Mark fired three shots.Officer Gaspar died from the gunshot wounds.Two indictments came down against Mark.They were consolidated for trial.Mark raised self-defense and defense of others in both cases.A defense-of-others instruction was given for the Baskin Robbins case.The jury …