State of Louisiana v. Ulises Gomez

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1357

STATE OF LOUISIANA

VERSUS

ULISES GOMEZ

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 137,796
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Colin Clark
Assistant Attorney General
Louisiana Attorney General’s Office
Post Office Box 94005
Baton Rouge, Louisiana 70804-9095
(225) 326-6200
Counsel for Appellee:
State of Louisiana

Jay N. Prather, Jr.
Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502
(337) 262-8648
Counsel for Appellee:
State of Louisiana

Chad Ikerd
Attorney at Law
Post Office Box 3622
Lafayette, Louisiana 70502
(337) 232-9345
Counsel for Defendant/Appellant:
Ulises Gomez

KEATY, Judge.

Defendant, Ulises Gomez, appeals the trial court‟s judgment denying his

Writ of Habeas Corpus Ad Subjiciendum. For the following reasons, we reverse

and remand with instructions.

PROCEDURAL BACKGROUND

On May 12, 2012, Defendant, admittedly an alien student and/or a

nonresident alien, operated a vehicle in Lafayette Parish without documentation

showing he was lawfully present in the United States. Defendant was subsequently

charged by bill of information with operation of a vehicle without documentation

demonstrating a lawful presence in the United States, a violation of La.R.S.

14:100.13. He filed a writ of habeas corpus alleging his detention was illegal and

based on an unconstitutional statute pursuant to Arizona v. United States, __ U.S.

__, 132 S.Ct. 2492 (2012). The trial court denied the writ “on the basis that

charges were previously filed in this matter.”

Minutes of the trial court indicate Defendant next filed a motion to recognize

his writ of habeas corpus as a motion to quash. That motion, however, is not

contained in the record on appeal. The trial court denied the motion on

September 4, 2012, finding “the State does have power to regulate the driving in

the State.”

On September 6, 2012, the trial court accepted Defendant‟s plea of no

contest to the charge but preserved his right to appeal the constitutionality of the

statute. The trial court sentenced Defendant to three months in the parish jail with

credit for time served.

Defendant now appeals the denial of his writ of habeas corpus, claiming that

La.R.S. 14:100.13 is unconstitutional.

DISCUSSION

On appeal, Defendant alleges that the trial court erred in denying his writ of

habeas corpus when it held that La.R.S. 14:100.13 is a proper exercise of state

police powers and not preempted by federal immigration laws.

ASSIGNMENT OF ERROR

Defendant argues the trial court erred in denying his writ of habeas corpus

when it held La.R.S. 14:100.13 is a proper exercise of state police powers and not

preempted by federal immigration laws. Subparagraph (A) of the statute provides:

“No alien student or nonresident alien shall operate a motor vehicle in the state

without documentation demonstrating that the person is lawfully present in the

United States.” The penalty for violation is a fine of up to $1,000.00 and/or

imprisonment for up to one year, with or without hard labor, making the offense a

felony. La.R.S. 14:100.13(C); La.R.S. 14:2(A)(4).

In Arizona, 132 S.Ct. 2492, the United States Supreme Court reviewed the

validity of four provisions of Arizona statute S.B. 1070, a statute enacted to

address the issues relating to the large number of unlawful aliens in that state. One

provision, Section 3, “forbids the „willful failure to complete or carry an alien

registration document . . . in violation of 8 United States Code section 1304(e) or

1306(a)‟” and effectively “adds a state-law penalty for conduct proscribed by

federal law.” Id. at 2501.

“Congress has the” constitutional “power to preempt state law.” Id. at 2500.

Where Congress has determined certain conduct must be regulated exclusively by

federal law, state statutes attempting to regulate that conduct are field preempted.

State statutes that conflict with federal law are conflict preempted. In Arizona, the

United States contended Section 3 intruded on the field of alien registration and,

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thus, was preempted. The State of Arizona contended Section 3 “has the same aim

as federal law and adopts its substantive standards.” Id. at 2502. The Supreme

Court held Section 3 was preempted by federal law. Arizona, 132 S.Ct. 2492.

The Supreme Court noted federal law requires aliens to carry proof of

registration and concluded “the Federal Government has occupied the field of alien

registration.” Id. Field preemption forecloses any state regulation, even when it

parallels federal standards, so that “even complementary state regulation is

impermissible.” Id. The Supreme Court further noted that “[e]ven if a State may

make violation of federal law a crime in some instances, it cannot do so in a field

(like the field of alien registration) that has been occupied by federal law.” Id.

The Supreme Court held Arizona‟s argument “ignore[d] the basic premise of

field preemption” and “conflict[ed] with the careful framework Congress adopted”

by imposing its own penalties for federal offenses. Id. The Supreme Court also

noted a problem with the inconsistency between federal law, where “failure to

carry registration papers is a misdemeanor that may be punished by a fine,

imprisonment, or a term of probation,” and Arizona‟s law, which “rul[ed] out

probation as a possible sentence (and also eliminate[d] the possibility of a

pardon).” Id. at 2503. The Supreme Court found this inconsistency “creates a

conflict with the plan Congress put in place[,]” and that such conflict, amongst

others, “underscore[d] the reason for field preemption.” Id.

We find that Louisiana‟s statute, La.R.S. 14:100.13(A), is similar to Section

3 of Arizona‟s statute. Both forbid the willful failure to carry documentation

demonstrating a lawful presence in the United States. Both provide a penalty in

excess of the penalty provided by federal law.

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The first circuit recently denied a defendant‟s writ application on the issue of

the constitutionality of La.R.S. 14:100.13 in State v. Lopez, 12-2043 (La.App. 1

Cir. 3/21/13), __ So.3d __. The defendant sought to quash his bill of information

because La.R.S. 14:100.13 is unconstitutional and is preempted by federal law

because it attempts to regulate immigration. The first circuit held that the statute

withstands constitutional, conflict, and field preemption and, thus, “is not a

constitutionally impermissible regulation of immigration.” Id. at ___. Particularly

discussing field preemption, the first circuit stated that “La.R.S. 14:100.13 is not a

regulation of immigration, a field that Congress, acting within its proper authority,

has determined must be regulated by its exclusive governance.” Id.

In its discussion of Arizona, the Lopez court did not consider Section 3 of

the Arizona statute. Rather, it reviewed Section 2(B), which required state officers

“to make a „reasonable attempt . . . to determine the immigration status‟ of any

person they stop, detain, or arrest on some other legitimate basis if „reasonable

suspicion exists that the person is an alien and is unlawfully present in the United

States.‟” Lopez, ___ So.3d at ___. The Supreme Court refused to enjoin Section

2(B) because suit was filed before the law went into effect. The Supreme Court

commented, “without the benefit of a definitive interpretation from the state courts,

it would be inappropriate to assume § 2(B) will be construed in a way that creates a

conflict with federal law.” Arizona, 132 S.Ct. at 2510. We believe, however, that

the first circuit‟s failure to consider Section 3 in Lopez led to an improper result.

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Prior to Arizona, this court considered the issue in two writ applications.1

See State v. Marquez, an unpublished writ decision bearing docket number 12-

1316 (La.App. 3 Cir. 1/7/13) and State v. Ramirez, an unpublished writ decision

bearing docket number 12-1245 (La.App. 3 Cir. 1/7/13). In both instances, this

court found no error in the trial court‟s ruling that La.R.S. 14:100.13 is

constitutional.

Despite the first circuit‟s recent opinion in Lopez, ___ So.3d ___, and the

previous writ rulings of this court, we find that La.R.S. 14:100.13 is

unconstitutional because it is field preempted. Like Arizona‟s statute, Louisiana

requires aliens to carry registration documents. The Supreme Court has held in

Arizona, 132 S.Ct. 2492, that such a requirement intrudes on the field of alien

registration that federal law has already occupied. Accordingly, we hold that

Louisiana‟s statute is field preempted.

Further, we find that La.R.S. 14:100.13 is also conflict preempted.

Louisiana‟s statute makes a felony of an offense federal law considers a

misdemeanor. 8 USC 1304(e); 8 USC 1306(a). The Supreme Court found fault

with a similar provision in Arizona‟s statute. Accordingly, we hold that La.R.S.

14:100.13 is unconstitutional, and the trial court erred by denying Defendant‟s writ

of habeas corpus.

1
The issue was also raised in State v. Balico-Calderon, an unpublished writ decision
bearing docket number 12-1078 (La.App. 3 Cir. 10/23/12). However, the writ application was
dismissed as moot after the defendant pled guilty.

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DECREE

The trial court‟s ruling denying Defendant‟s writ of habeas corpus is

reversed. This matter is remanded, and the trial court is directed to enter a

judgment consistent with this ruling.

REVERSED; REMANDED WITH INSTRUCTIONS.

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