Thursday, March 5, 2020

"Toto . . . we're not in Kansas anymore"

About 30 months ago, I published Kansas Cannot Prosecute Identity Theft. The crux of the piece regards a decision by the Kansas Supreme Court that held any information that is ever inserted into an I-9 form receives therefore complete immunity from the application of any state law. In the case being discussed, a worker applied for a job with someone else's social security number (what some states consider to be fraud or identity theft). The police arrested this gentleman and he was prosecuted for using someone else's information on a W-2 form, but that information was also on the I-9 form. 

The gentleman was convicted, and appealed. His contention was that the Immigration Reform and Control Act of 1986 (IRCA) meant that any information placed on an I-9 form could not be used to prosecute for identity theft. He contended that placing the "borrowed" information on an I-9 immunized any other use of that same information. Thus, when he placed the same information on the W-2 form, he contended that state prosecution for that W-2 (and on a similar state tax form, the K-2) statement was forbidden by federal law. The Kansas appeals court did not buy that argument. However, the Kansas Supreme Court did

It was not unanimous. Justice Biles dissented (Joined by Justice Stegall). He noted that:
"The majority's rationale sets up a sweeping prohibition against identity theft prosecutions for such crimes generally occurring in the employment process." 
He perceived that I-9 prohibition as a "narrow area controlled by Congress through" IRCA. He lamented the Court's conclusion that use of some piece of information in the I-9 immunized other uses of the same purloined data when used in other contexts. 

Justice Biles contended that the prohibition on use of "any information contained in the form" really only means that the "contents of the completed form could not be used to prosecute." Therefore, he argued that when such identical information was used in any context outside the actual I-9 form then the IRCA prohibition carried no weight. But, again, this was the dissent rather than the Court's holding. 

Kansas brought the case to the Supreme Court of the United States (SCOTUS). Notably, the SCOTUS only reviews about 100 cases each year. It is an exceptional achievement for a lawyer to have a case reviewed (the SCOTUS actually reviewed three cases here with the same legal question; the other criminal defendants were Morales and Ochoa-Lara).

on March 3, 2020 the SCOTUS handed down its decision regarding the interaction of state and federal law, specifically the IRCA. Justice Alito wrote the opinion, joined by Justices Roberts, Thomas, Gorsuch, and Kavanaugh. Justice Breyer wrote a dissent, joined by Justices Ginsberg, Sotomayor, and Kagan. Court watchers will note this is a 5/4 decision, a close win for Kansas but a win nonetheless.

The SCOTUS majority concluded that the IRCA does not preempt state law prosecution for using someone else's identity on various employment forms. The preemption instead is limited to the use of the completed I-9 form, much as Justice Biles suggested in 2017. The Court noted that it has previously decided that state laws which criminalize working without appropriate authorization and documents are preempted by IRCA. Justice Alito explained that IRCA does not similarly "address the use of other documents, such as federal and state tax-withholding forms."

Justice Alito noted that IRCA thus specifically creates certain criminal penalties. And, it's plain language "expressly 'preempt[s] any State or local law imposing civil or criminal sanctions'" on employers and recruiters for failures to comply with that law. But, the Congress did not similarly include such penalties regarding the employee or worker. This specific inclusion of certain penalty, but not others, demonstrates the intention of Congress as to the law's meaning. 

The opinion provides an in depth discussion of federal supremacy (which is nonetheless questionable to some in the age of decriminalized pot), and the analysis by which the courts will determine if federal action preempts state regulation. There is some suggestion that preemption really should only be founded upon "express terms," rather than being "inferred from statutory law." (slip opinion at 9). The decision is illuminating on foundations of express preemption, field preemption, and conflict preemption. It is a worthy discussion, but exceeds the scope of this post. 

Justice Alito was critical of the Kansas Court majority analysis. He noted that the idea of any information being placed on an I-9 therefore being immunized for any and all other expression of that information:
"would mean that no information placed on an I–9 - including an employee’s name, residence address, date of birth, telephone number, and e-mail address - could ever be used by any entity or person for any reason."
He concluded that "This interpretation is flatly contrary to standard English usage." It is true that "tangible objects" can be "contained," he explained. But, "information is different." Information may exist in "many different places" simultaneously. The inclusion of information on one form does not isolate or sequester that particular information. Furthermore:
"it is not customary to say that a person uses information that is contained in a particular source unless the person makes use of that source." 
Through a series of examples regarding email addresses and school reports, Justice Alito highlights the fallacy of the broad immunization of information theory relied upon by the Kansas Court. 

Next, Justice Alito highlighted some absurd results that might flow from the Kansas Court's immunization theory. For example, the Kansas Court interpretation could preclude the federal government itself from prosecuting the provision of false information on its own form, the W-2. According to the Kansas Court, according to Justice Alito's opinion, an employee truthfully inserting her/his name on an I-9 would thus preclude anyone, anywhere, from using that employee's "name for any purpose." (Slip Opinion at 13). 

The IRCA, concluded the majority, "certainly does not bar all state regulation regarding the “use of false documents." Though various forms may be completed near the same time, that does not mean that the information used to complete the I-9 in that overall process is somehow rendered special, immune, and untouchable. In short, the Court concluded that the regulation of the IRCA is not sufficient to conclude Congress' intended to regulate the entire "field," and thus it denied the argument for "field preemption." 

Justice Thomas specifically concurred with a separate opinion (Joined by Justice Gorsuch). He advocates a broader abandonment of decisional jurisprudence regarding the analysis of "'purposes and objectives' preemption." He is thus critical of stare decisis in this setting. He contends that for preemption to apply, state and federal law must be in "logical contradiction." This requirement, he contends, eliminates "judicial guesswork" and analysis of "policy objectives, legislative history, or generalized notions of congressional purposes not contained within the text of federal law." This opinion is thus a notable textualist expression and illumination. 

Justice Breyer (and the other three dissenting justices) agrees that nothing in IRCA "expressly preempts Kansas’ criminal laws as they were applied." The disagreement of the dissent is focused instead on the "implied preemption." In that regard, the dissent argues that "the words of the statute are especially unlikely to determine the answer by themselves." This is seemingly a broadly phrased antithesis of textualist thought, a seeming argument that the words chosen by legislative bodies cannot themselves convey the meaning intended. Thus this view is seemingly focused always upon implication and motivation, rather than the expression itself. 

The dissent's analysis of "text, . . . structure, context, and purpose" leads inescapably to the “‘clear and manifest' conclusion that the federal government," in IRCA, "has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization." Justice Breyer concludes that "that the States thus may not make criminal what Congress did not." (Citation omitted). In that, he perhaps ignores that federal law prohibits the use of false information on the W-2; thus, that Congress has in fact made illegal precisely that for which the defendants were prosecuted. Furthermore, the dissent does not, in that "narrow field" analysis credibly distinguish the majority opinion, which concedes the narrow preclusion of the use of the I-9 form itself. 

Justice Breyer relies heavily on the purpose of misrepresentation. He contends that if an employee lies on the W-2 form for another purpose than those related to immigration, that then "IRCA would permit prosecution." Thus, the dissent contends that it is not the making of false statements that is relevant, but the reason or intent of the person making the false representations; this is perhaps an invitation into extended and subjective analysis of honesty and intent. The dissent accuses the Court of "opening a colossal loophole," as various forms have to be completed for employment. In the dissent's view, lying on one form should immunize the applicant's lies on any other forms. The dissent simply views the criminalization of identity theft as precluded by federal law. 

It is a curious position previously adopted by the Kansas Supreme Court, shared now by the SCOTUS dissent. I concluded in 2017 that identity theft was no longer illegal in Kansas. Well, apparently "Toto, I've a feeling we're not in Kansas anymore." The SCOTUS has concluded that states can criminalize identity theft in the general sense, but merely cannot use the I-9 form itself. That seemed logical in 2017 when Justice Biles suggested it, and it seems logical now. Justice Alito's opinion explains that logic clearly and this straightforward distinction is now the law in Kansas and elsewhere.

The decision highlights two schools of thought. One that the actual words of a statute should be read and used to determine the meaning of law. The other, that such words cannot convey meaning and all interpretation must therefore rely upon subjective explorations of intent and context. An intriguing conflict of judicial ideology indeed.