As we watched the current Presidential election campaign this year, a decision popped out of the U.S. Supreme Court that made some of our eyes glaze over. It was about Presidential immunity, and the decision said that the President of our country has the right to do certain things without worrying about civil liability or criminal prosecution for those things later.
It’s become an issue in the Presidential campaign because the Republican nominee, ex-President Trump, was indicted for federal and state crimes, and was convicted by a jury of state law felonies in New York. One of his cases, originating in the District of Columbia where the January 6 riots took place, was appealed to the Supreme Court where Mr. Trump argued that he couldn’t be held to account in criminal court.
The decision didn’t give Mr. Trump everything he wanted, but his team did score quite a few important points. The Court reasoned that many of the responsibilities that a President has come directly from the Constitution. In other words, the Constitution says, “Mr. President, you have the right or duty to do x.” The Constitution is the supreme law of the land, so its statement to the President also means, “…and so any lower ranking sources of law, like the laws Congress passes or any provision in the constitution or laws of any State, can’t interfere with your doing x.” From this reasoning the Court explained that the “official acts” of a President need to be immune from civil liability or criminal prosecution. The Court also explained that the official acts of a President cannot be used as evidence supporting civil liability or criminal prosecution, because that also would result in criminal or civil liability for an official act.
Here in Hawaii, you might not know this, but employees at our State, and the Department of Taxation in particular, have a lot of immunity too. Hawaii Revised Statutes section 662-2 says that the State is liable for the torts of its employees in the same manner as any other employer (except for prejudgment interest or punitive damages). But there are exceptions in section 662-15, including for any claim “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” or “arising in respect of the assessment or collection of any tax.” Thus, in a case called Doe Parents No. 1 v. State Department of Education, 100 Haw. 34 (2002), the court held that a teacher who molested kids in his classroom could not be held to answer in civil court for the harm that his conduct caused, but that the Department of Education could be held liable for negligence or negligent infliction of emotional distress because of its hiring, or refusing to fire, the employee once it became known that the employee had a proclivity to molest kids. Now if the employee in question were a tax collector who punched someone in the nose in trying to collect overdue state taxes, then neither the employee nor the Department of Taxation would be answerable in court.
Unlike the immunity of a sitting President of the United States, the immunity of state employees, in the Department of Taxation or otherwise, is prescribed by state law. If enough of us think that the law needs to change, then our lawmakers do have the power to change it.
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Tom Yamachika is president of the Tax Foundation of Hawai‘i.
