The United States Supreme Court (SCOTUS) has again overturned the Kansas Supreme Court, after vacating a decision that would have made prosecuting illegal aliens for identity theft much more difficult.

In 2017 the Kansas Supreme Court overturned the convictions of three men in Johnson County who listed other people’s social security numbers on their tax withholding forms.  The court determined that, because federal law disallows using any information “contained” in an I-9 (a work eligibility form) for a criminal prosecution, the same information on a W-4 or K-4 tax withholding form likewise could not be used — something about which Justice Samuel Alito, writing for the majority, seemed incredulous.

“The theory that no information placed on an I-9 could ever be used by any entity or person for any reason … is contrary to standard English usage,” he wrote. “A tangible object can be ‘contained in’ only one place at any point in time, but information may be ‘contained in’ many different places.”

All nine justices agreed that Kansas law did not bar the prosecutions for identity theft, but four, Justices Stephen Bryer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg, dissented on an issue of preemption — making the decision technically 5-4.  In their dissent, they said the policing of work authorization comes under federal jurisdiction.

This is not the first high-profile case the Kansas Supreme Court has had overturned in recent years.

In 2006, 2013 — and most notably in 2016 — SCOTUS overturned cases in which the Kansas Court had set aside death sentences. The 2016 case involved the Carr brothers who went on a shooting spree in Wichita in 2002, killing five people and a dog, and severely injuring two others, and were eventually sentenced to death.

The Kansas Supreme Court is unique in the nation in that it’s members are not confirmed by the state Senate but are effectively chosen by members of the state bar association.  As Governor Sam Brownback said in his 2016 State of the State address, “Kansas is the only state in the country where the selection of supreme court justices is controlled by a handful of lawyers.” 

In Kansas, a nine-member commission, consisting of five attorneys and four citizens sends three names to the governor, who then appoints one of the three — with no confirmation vote by the senate required.

Most states follow the federal model, in which the chief executive appoints a justice and the senate gives “advice and consent.”

In recent years, the Kansas Legislature changed that process for appellate court judges, following the federal model. But because the appointment process for the high court is set in the Kansas Constitution, the process is much more difficult.

However, with the retirement of Justice Lee Johnson, Kansas Legislators say the time for a constitutional amendment to bring Kansas in line with the federal procedure is nigh.

State Senator Caryn Tyson, (R-Parker), said last year the Senate voted to pull such an amendment out of committee.

“The last day of the 2019 session, 28 senators voted to pull SCR 1610 out of committee, bypassing the committee process,” Tyson said. “The SCR would allow Kansas voters a chance to amend our State Constitution to provide senate oversight on supreme court justices.  The senate needs to debate and pass SCR 1610 so that the House can take action.

“It was demonstrated last year how important this step is when the Governor’s nominee for appellate court judge did not receive one ‘Yes’ from the senate during the appointment process.  If Senate oversight had not been changed in statute a few years prior, the person would have been appointed a judge based on the Governor’s recommendation.  This change needs to be made for supreme court justice appointments also.”

Senator Richard Hilderbrand, (R-Baxter Springs) agreed.

“This recent case where the Kansas State Supreme Court was overturned by SCOTUS only confirms that Senate confirmation needs to be added to the process of appointing (judges) to a lifetime appointment,” he said.

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