TOPEKA – (September 14, 2017) – The State of Kansas will ask the U.S. Supreme Court to review three recent Kansas Supreme Court decisions that in some situations prohibit Kansas from prosecuting undocumented aliens for identity theft, Kansas Attorney General Derek Schmidt said today.
“We are not convinced the Kansas court’s application of the federal immigration statute is correct, so we are requesting review of all three cases by the U.S. Supreme Court,” Schmidt said. “The Kansas court reasoned that the state cannot prosecute a defendant for falsifying state or private legal documents if the defendant also put the same false information on federal forms for employment verification. I doubt Congress intended that peculiar result.”
On September 8, the Kansas Supreme Court overturned the convictions of three individuals for crimes including identity theft and making false information on state tax forms or private legal documents. In a 5-2 ruling, the Kansas Supreme Court’s majority concluded that federal immigration law preempts Kansas from enforcing state criminal law in these cases.
By law, the attorney general’s office represents Kansas in matters before the U.S. Supreme Court. Schmidt said his office is working closely with Johnson County District Attorney Steve Howe, whose office prosecuted the three cases.
“I appreciate Attorney General Schmidt’s willingness to ask the United States Supreme Court to review these decisions,” Howe said. “I am also unconvinced that this is a proper application of federal law. We are committed to continuing the fight to protect our citizens from identity theft and to hold all offenders accountable.”
The attorney general today formally notified the Kansas Supreme Court of his decision to appeal, putting further proceedings in all three cases on hold until the U.S. Supreme Court decides whether to review them. The U.S. Supreme Court grants only a small number of requests to review lower court cases.
A decision by the U.S. Supreme Court whether to hear the state’s appeal in any or all these three cases could come later this year or early next year. The three cases are State v. Garcia, State v. Morales, and State v. Ochoa-Lara.