                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 111,904

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                         DONALDO MORALES,
                                             Appellant.



                                   SYLLABUS BY THE COURT


        Defendant's prosecution for identity theft and making false information for using
another person's Social Security number to obtain employment was expressly preempted
by the federal Immigration Reform and Control Act of 1986.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed January 8, 2016.
Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed September 8, 2017.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.


        Randall L. Hodgkinson, of Kansas Appellate Defender Office, was on the brief for appellant.


        Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        BEIER, J.: This companion case to State v. Garcia, 306 Kan. __, __ P.3d __ (No.
112,502, this day decided), and State v. Ochoa-Lara, 306 Kan. __, __ P.3d __ (No.

                                                     1
112,322, this day decided), involves defendant Donaldo Morales' convictions on one
count of identity theft and two counts of making a false information.


      The State's basis for the charges was Morales' use of another person's Social
Security number to obtain restaurant employment. Morales was convicted after a bench
trial. A panel of the Court of Appeals affirmed Morales' convictions in an unpublished
opinion. See State v. Morales, No. 111,904, 2016 WL 97848 (2016).


      Morales successfully petitioned this court for review of two of the three issues he
raised in the Court of Appeals: (1) whether the evidence of his intent to defraud was
sufficient, and (2) whether the Immigration Reform and Control Act of 1986 (IRCA)
preempted the prosecution. Because we decide that Morales' convictions must be
reversed and the case dismissed because the prosecution based on the Social Security
number was expressly preempted, we do not reach Morales' sufficiency issue.


                          FACTUAL AND PROCEDURAL HISTORY

      On October 1, 2010, Morales completed an employment application seeking
employment at a Jose Pepper's restaurant in Johnson County. On the application, Morales
provided a Social Security number. Morales also provided the restaurant with a
permanent resident card and a Social Security card as proof of his identity. The number
on the Social Security card matched the number he provided on the application. As part
of the hiring process, Morales completed a federal I-9 form and W-4 and K-4 forms. He
provided the same Social Security number on each form.


      In 2012, Special Agent Joseph Espinosa of the Social Security Office of the
Inspector General learned that a person might be working at Jose Pepper's under an



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incorrect Social Security number. Espinosa's investigation determined that the Social
Security number Morales had provided belonged to someone else.


       Initially the State charged Morales with four counts—one for identity theft and
one for making a false information through each of the three forms, the I-9, the W-4, and
the K-4.


       Morales filed a motion to dismiss the I-9 and the W-4 counts, arguing that the
State's pursuit of those two counts was preempted by IRCA. At a hearing on the motion,
the State agreed that the I-9 count should be dismissed. Morales' counsel argued that the
W-4 fell under the "same . . . umbrella that [the] I-9 does." The district judge disagreed,
"With respect to the W-4, I think that is more . . . akin to the [S]ocial [S]ecurity number
than it is to something specifically related to immigration as addressed in the State v.
Arizona case."


       Morales testified at trial that he had purchased the Social Security number he used
in the Jose Pepper's hiring process from someone in a park in 2002. He said he obtained
the number so that he could work and never used it for any other purpose. He confirmed
that he completed the I-9, W-4, and K-4 using the number and acknowledged that he was
paid for the work he did at Jose Pepper's.


       Jody Sight, the director of human resources for the restaurant, described the
employment application process. Applicants are required to fill out an application and do
an interview with an on-site manager. If the individual is hired, he or she is brought back
for orientation. During orientation, a new hire is required to complete employment
paperwork, including filling out I-9, W-4, and K-4 forms.




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      Sherri Ann Miller, a risk and payroll manager for Jose Pepper's, provided Morales
with the I-9, W-4, and K-4 forms to fill out. She also photocopied the permanent resident
card and Social Security card Morales provided. Miller testified that an applicant would
not be employed if he or she did not complete the W-4 and K-4 forms. Sight testified that
a person who did not supply a Social Security number could not be entered into the Jose
Pepper's payroll system.


      When the district judge found Morales guilty, he stated:


      "Okay. The Court is going to find that the Defendant did present to Jose Pepper's the five
      exhibits that were received into evidence.


              "The five exhibits are—Three of them are very important, because they're social
      security number, W-4, and the other social security—the employment document.


              "Clearly, he knew that you don’t go to a park to buy government documents.
      That's not where we typically go to find those. He knows that.


              "That's why he didn't file taxes, because he knew that he'd get in trouble.


              "The elements are that he defrauded.


              "It doesn't say who he has to defraud.


              "The Court is going to find . . . the Defendant guilty . . . .


              ....


              "I also think you can defraud your employer, because they think that you're a
      legal citizen.



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        "They could get penalties by hiring people that are not documented individuals.


        "So I mean the elements are met.


        "The crime has been . . . clearly presented.


        "There's absolutely no doubt in my mind that he presented these documents for
the reason that he could get a job.


        "What's always a stretch is when you find somebody who has been here twenty-
four years. He's worked. He's paid taxes. He doesn't get the benefit.


        "I don't know if he would have gotten money back or not.


        "But one thing we do know is that he's putting money into the kitty that will
never be taken out at a time when we need more money in the kitty. He's putting money
into [S]ocial [S]ecurity that he'll never be able to draw out.


        "So it's not like he stole money from the government.


        "He wanted to work.


        "He did work.


        "He has been here twenty-four years.


        "Three of his kids were born here.


        "He has a legal [S]ocial [S]ecurity number now.


        "This isn't a case of equity.


        ". . . I can't find him not guilty.

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              "I'm finding him guilty."


       Morales filed two motions for a new trial. In the first, he again argued that the W-4
count of making a false information should have been dismissed. In the second, he argued
that the State did not present sufficient evidence of his intent to defraud. The district
judge denied Morales' motions, sentenced him to concurrent 7-month sentences on each
count, and granted him 18 months' probation.


                                          DISCUSSION

       Our decision today in Garcia, 306 Kan. at __, slip op. at 19, holds that State
prosecutions such as the one in this case are expressly preempted by IRCA. Section
§1324a(b)(5) of Title 8 of the United States Code (2012) provides that a federal I-9 form
for employment verification "and any information contained in" such a form "may not be
used for purposes other than for enforcement of" federal immigration law and certain
federal criminal statutes. This State prosecution for identity theft and making a false
information relied on the Social Security number Morales included in the I-9, as well as
his employment application and the W-4 and K-4, to ensure employment eligibility under
federal law. Our Garcia holding controls the outcome of this case and compels a decision
in Morales' favor, reversing all of his convictions.


       We pause briefly, however, to address preservation of the preemption issue in the
circumstances of this case.


       Morales advanced an IRCA preemption challenge in the district court through his
pretrial motion to dismiss and his posttrial motion for new trial, although the motions
dealt specifically with the making a false information count based on the Social Security

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number used in Morales' W-4 form and not the identity theft count or the making a false
information count based on the K-4 form.


       As a general matter, a court is not limited in its legal analysis to only the
preemption theories advanced by a party such as Morales. See Garcia, 306 Kan. at __,
slip op. at 10 (citing Hillman v. Maretta, 569 U.S. __, 133 S. Ct. 1943, 1954, 186 L. Ed.
2d 43 [2013] [presence of express preemption clause does not necessarily end court's
preemption inquiry]; Geier v. American Honda Motor Co., 529 U.S. 861, 869, 120 S. Ct.
1913, 146 L. Ed. 2d 914 [2000] [express preemption provision does not bar ordinary
working of conflict preemption principles]; Hughes v. Talen Energy Mktg., LLC, 578
U.S. __, 136 S. Ct. 1288, 1301, 194 L. Ed. 2d 414 [2016] [Thomas, J., concurring in part
and concurring in the judgment] [state law could have been preempted "based on the
statute alone"; majority unnecessarily relies on principles of implied preemption]; United
States v. Supreme Court of New Mexico, 839 F.3d 888, 912, 914-15 [10th Cir. 2016],
petition for cert. filed June 5, 2017 [facial, as-applied preemption claims legal in nature;
judicial estoppel doctrine does not apply to limit party to label first attached to challenge;
labels parties attach to claims are not determinative]). Compare Gade v. Nat'l Solid
Wastes Mgmt. Ass'n, 505 U.S. 88, 109, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992)
(O'Connor, J., plurality) (state law impliedly preempted by Occupational Safety and
Health Act), with Gade, 505 U.S. at 109-14 (Kennedy, J., concurring in part and
concurring in judgment) (would have found state law expressly preempted). In Garcia
itself, for example, defense counsel emphasized field preemption rather than express
preemption at oral argument before this court. But our decision ultimately relied upon
IRCA's express preemption clause. Garcia, 306 Kan. at __, slip op. at 19.


       In addition, and perhaps most pertinent here, this court may look past a weakness
in preservation in certain situations, including when the dispositive issue is one of law
and when justice requires a decision on the merits. See State v. Swint, 302 Kan. 326, 335,
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352 P.3d 1014 (2015). The existence of preemption is an issue of law. See Miami Cty.
Bd. of Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d
1186 (2011). And granting relief to Morales from one conviction based on his use of the
Social Security number covered by 8 U.S.C. § 1324a(b)(5)'s express preemption clause
without granting him the same relief on his two other convictions—for identity theft and
for making a false information based on the K-4—covered by the same clause would
obviously be illogical and unjust.


                                         CONCLUSION

       In reliance on Garcia, 306 Kan. at __, slip op. at 19, we reverse defendant
Donaldo Morales' convictions on one count of identity theft and two counts of making a
false information. His prosecution based on his use of a Social Security number
belonging to another person for employment was expressly preempted by 8 U.S.C.
§ 1324a(b)(5).




       JOHNSON, J., not participating.
       MICHAEL J. MALONE, Senior Judge, assigned.1




                                            ***

       LUCKERT, J., concurring: I concur in the majority's holding that 8 U.S.C.
§ 1324a(b)(5) (2012) preempts the prosecution of Donaldo Morales for identity theft
under the circumstances of this case. But I reach this holding through a different


1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,904
vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 20-2616.
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analytical path than the one used by the majority. I respectfully disagree with the
majority's conclusion that express preemption applies, although I would nevertheless hold
that Kansas' identity theft statute intrudes into a field wholly occupied by federal law. I
would further hold that a conflict exists between the immigration policy established by
Congress and Kansas' identity theft statute when it is applied in a case, as here, that is
dependent upon the use of information derived from the employment verification process
established by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, and
the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (2012). In other words, I
would apply the doctrines of field and conflict preemption, rather than express
preemption for the reasons more fully discussed in my concurring opinion in State v.
Garcia, 306 Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at ___.



                                            ***


       BILES, J., dissenting: Consistent with my position in State v. Garcia, 306
Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at 24, I respectfully
dissent from the majority's result and reasoning.


                                            ***


       STEGALL, J., dissenting: Consistent with my position in State v. Garcia, 306
Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at 26, I respectfully
dissent from the majority's result and reasoning.




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