Sunday, September 17, 2017

Kansas Cannot Prosecute Identity Theft

The Kansas Supreme Court recently rendered an intriguing decision in State v. Garcia. A companion decision was simultaneously rendered in State v. Morales. The decision written by Justice Bieir, despite two dissenting opinions, essentially legalizes identity theft in Kansas. 

Ramiro Garcia was prosecuted "for identity theft for using another person's Social Security number to obtain employment." Mr. Garcia used "the Social Security number of Felisha Munguia." obtain restaurant employment." He was convicted, but the Kansas Supreme Court concluded that Kansas may not prosecute identity theft because its statute is "expressly preempted" by "the federal Immigration Reform and Control Act of 1986 (IRCA)." 

Mr. Garcia was involved in a traffic stop. Based upon a "routine records check," the police contacted his employer and obtained his "[e]mployment application documents, possibly the W-2, the I-9 documents." The investigation led them to charge Garcia. In Kansas, it was illegal to "use, sell or purchase any personal identifying information, or document containing the same, . . . with the intent to defraud that person, or anyone else, in order to receive any benefit. K.S.A. 21-6107, K.S.A. 21-6804 and K.S.A. 21-6807." 

The investigation revealed that Mr. Garcia completed an I-9 form in obtaining employment, and the information from that form "was transferred to a W-4 form." Mr. Garcia also completed digital W-4 and K-4 tax forms. These both "contained a Social Security number," and were "digitally signed." These were admitted as evidence by the trial court. The Social Security number did not belong to Mr. Garcia. Based upon IRCA preemption, the trial court excluded the I-9 from evidence, but admitted the W-4. 

Mr. Garcia appealed his conviction alleging that criminalizing identity theft is unconstitutional "based upon the Supremacy Clause of the United States Constitution." The constitution has been interpreted as allowing the Congress to "preempt state law." Preemption is a complex legal issue. The Court discusssed "eight possible ways a party may challenge" state law through preemption. 

The Kansas Supreme Court made it a point to remind that its decision was based upon Mr. Garcia's challenge of "the use of law of general application to himself alone." The challenge was thus an "an as-applied claim." This distinction has been discussed previously in this blog. Other courts have been less definitive in their discussion of constitutional challenges, and have left considerable doubt and chaos in their wakes as a result. But, the Kansas Court was clear, "The relief provided in this case will flow solely to Garcia." 

Of course, others may mount similar challenges regarding the application of the law to themselves. As the court explained, Mr. Garcia "does not seek to prevent all prosecutions under the state law." Therefore, this "challenge can fairly be characterized as 'facial' in the traditional sense only insofar that its holding will apply to other aliens," specifically, other aliens who "use the Social Security card or other document listed in federal law of another for purposes of establishing employment eligibility."

The Kansas Court recited various preemption maxims. First that courts "presume no preemption." (Citations omitted). And, that courts "read federal statutes whenever possible not to [preempt] state law." (Citations omitted). Essentially, if a federal law is "susceptible to more than one plausible reading, courts ordinarily accept reading disfavoring preemption." Despite these, the Kansas Court concluded that preemption precludes the prosecution of Mr. Garcia not because of his I-9 form, which was not evidence, but because other forms that included the same information found on the I-9 form were evidence.  

The Court noted that "Congress included an express preemption clause" regarding forms required by IRCA, such as the I-9. That preemption says "A form designated or established by the Attorney General under this subsection and any information contained in or appended to such form, may not be used for purposes other than for enforcement of this chapter . . .." But, the Kansas Court extended that prohibition markedly by banning any evidence, in whatever form, that is coincidentally on the I-9 form. Its logic bans fraud involving a person's name, date of birth and more.

The Kansas Court conceded that Mr. Garcia was not prosecuted for violating federal law, but "under a generally applicable statute prohibiting identity theft." However, the Court held that 
Congress clearly and manifestly intended to prohibit the use of the Form I-9, documents attached to the Form I-9, and documents submitted as part of the I-9 employment verification process, whether attached to the form or not, for state law enforcement purposes . . . . 
Thus, the I-9 form, Social Security card or copy, and other documents attached to or required in verification of the I-9 form may not be used in the enforcement of state laws. The Court conceded that some information was also used in the "W-4 and K-4," but concluded that this information was effectively "part of the I-9," and therefore not usable to enforce state laws. 

Justice Biles dissented from the Court's holding. The justice noted this decision and its "rationale sets up a sweeping prohibition against identity theft prosecutions." And that "The statute does not make it illegal to attempt to secure employment as an unauthorized alien." Factually, "immigration status was not relevant to whether this conduct was unlawful." What was relevant under the law was whether the applicant was providing false information or not, on forms like the withholding form (W-2 and K-2). 

Justice Biles concluded that the Court in Garcia held that "federal law effectively prevents any prosecution under the Kansas identity theft crime occurring in the employment context if it relies on information that also just happens to be on or attached to a Form I-9." Justice Biles noted that this interpretation of "information contained in" applied by the court to that information "wherever else it might be found" such as the other forms, is too expansive. 

Justice Biles clarified that Mr. Garcia was 
not convicted for using someone else's identity on Form I-9 to deceive his employer as to his work authorization. Instead, Garcia was convicted for using another person's Social Security number on tax withholding forms.
Justice Biles concludes that the Court's analysis "stretches statutory interpretation past the breaking point," and inappropriately ignores other appellate decisions in Arizona, Iowa, and Minnesota. 

Justice Stegall joined Justice Biles' dissent and also wrote to explain. Justice Stegall said that the Court's decision "appears to wipe numerous criminal laws off the books in Kansas—starting with, but not necessarily ending with, laws prohibiting identity theft."

Justice Stegall expressed doubt that the logic of Garcia would "be extended beyond the narrow facts before us. However, concern that the decision could have more far-reaching impact, Justice Stegall explained preemption, concluding that even if 
Congress intended to expressly preempt state use of all information contained in a person's I-9 form, it is doubtful Congress has such sweeping powers to interfere with the legitimate government of the states.
Justice Stegall pointed out the absurd extent to which the Court's logic could be stretched, asking "Can it really be true that the state of Kansas is or could be expressly preempted from using—for any purpose—the name of any citizen who has completed an I-9 form?" Justice Stegall expresses dismay that this simple question is not sufficient to end the debate in Garcia. Justice Stegall concludes that if Congress were empowered to so restrict the use of information, then our "delicate federal-state balance achieved by our system of federalism would not merely be disturbed, it would be obliterated."

These are all intriguing arguments. The justices were unanimous in one point, however. None of them noted the implications of another important constitutional clause, the equal protection clause found in the 14th Amendment. The 14th amplifies the due process clause of the 5th Amendment, and clarifies that "no state shall" deny due process or equal protection of laws. This requires that the laws be equally applied to all without regard to citizenship, race, color or creed. The law equally protects all. 

That perhaps suggests a fallacy in the Garcia Court's logic. The Court held that this "challenge can fairly be characterized as 'facial' in the traditional sense only insofar that its holding will apply to other aliens," specifically, other aliens who "use the Social Security card or other document listed in federal law of another for purposes of establishing employment eligibility." But that is simply not true. The law in Kansas requires that all employees complete the W4 and K4 forms. 

Therefore, if a tenth-generation American of unquestionable citizenship is hired in Kansas, she/he will complete an I-9 and both the W4 and K4 forms. And, if that employee lies on those forms, using your social security number, then that person has in fact stolen your identity. However, according to the Kansas Supreme Court's logic, that action can not be forbidden by or prosecuted under Kansas law. As Justice Stegall illuminates, this citizen could freely lie about their name, following the Court's logic.

That is equal protection, and the Court's attempt to limit the application of its decision to "other aliens" would violate the Fourteenth Amendment to the U.S. Constitution. In applying the regulation of this information, coincidentally provided in employment applications or withholding forms, on the basis that the same information is on the "protected" I-9, the courts are bound to equally apply the law. 

Thus, because the Social Security number is required on the I-9, and because that inclusion renders the false use of that number exclusively, preemptively, within the purview of federal law regarding immigrants, then that preemption likewise precludes state law enforcement in the similar circumstance of a U.S. citizen lying about a Social Security number. 

Justice Stegall's conclusions regarding name and other information included in an I-9 is as intriguing. Likewise, the Kansas Court's decision thus seems to preclude state law enforcement regarding misrepresentations of (1) address, (2) email address, (3) telephone number, and (4) date of birth, each of which is coincidentally required on the I-9 form. If these were falsely represented in an employment application or other document (as unrelated to immigration as the W4 and K4 forms), prosecution would be preempted, in the Kansas Court's logic, because those data points are likewise included in the I-9 form. 

Kansans appear therefore to be free today to lie about any of these during the employment process. State law may not preclude these misrepresentations, because of the Court's broad application of federal preemption.  Kurt Vonnegut, Jr. might encourage "forgive the court, it knows not what it does." Be that as it may, the law in Kansas now facilitates identity theft for procuring employment. A curious, and some will say strained, analysis. 

Effectively, if someone steals your identity, that is your problem. to paraphrase Dorothy, some may be glad they "aren't in Kansas anymore" Toto. 

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