Wichita marijuana ballot issue could face challenge by state

Even if Wichita voters approve a proposal to lessen first-time penalties for marijuana possession, it might not become law.

Some city officials expect a potential challenge by the state over the proposed ordinance, which was sought by petition. Voters will consider it April 7.

State law says possession of marijuana and drug paraphernalia are criminal offenses with up to a $2,500 fine and one year in jail. The ballot issue would make a first-offense marijuana possession a criminal infraction with a $50 fine for those over 21.

It’s difficult to say exactly what will happen if the proposal passes. Neither Attorney General Derek Schmidt or interim City Attorney Sharon Dickgrafe would talk about that.

A representative of Schmidt’s office said they are “aware of this situation and are reviewing it.”

But others voiced doubt that the proposed ordinance could become law.

Rep. Steve Brunk, R- Wichita, has asked Schmidt to issue an opinion on the matter.

He also asked the Office of Revisor of Statutes – which drafts legislation, research and legal information for Kansas lawmakers – for an opinion on the proposed measure.

In response, senior assistant revisor Jason Long wrote that the Kansas Supreme Court has “consistently held that a city cannot adopt a criminal ordinance that is in conflict with uniform state law.” The proposed measure would change the first offense from a misdemeanor to an infraction, like a traffic violation.

“Based on prior case law if the proposed amendment set out in the Petition were to become part of the Wichita municipal code, then the Wichita municipal court would no longer have jurisdiction over marijuana possession offenses because the local ordinance would be in conflict with state criminal law. … The proposed amendments appear to go beyond the parameters established by the general rule and in doing so would likely nullify the local ordinance,” Long wrote.

“No matter what they do in Wichita, it’s not going to change state law,” Brunk said. “That’s what we were trying to point out to (the council), was you’re not changing state law by doing this, so you’re kind of wasting your time.”

City Manager Bob Layton said he could not speculate on what the state would do and that he has had no formal communication with state officials on the matter.

“It will be interesting, and I just don’t know if it will be an issue that will be resolved prior to the election,” Layton said.

Dickgrafe did say in an -mail that the proposed ordinance states that people found in possession of marijuana would be given a notice to appear in municipal court on a misdemeanor charge. If the person did not have more than 32 grams – about 1.1 ounces – and had no prior convictions within a year, the person would have an infraction and be fined $50.

Additionally, Dickgrafe wrote, the measure would direct the municipal court to not report the convictions to the Kansas Bureau of Investigation.

City Council member Janet Miller said there’s “not a play-by-play in any playbook that says this will happen and this will happen.”

“But what I believe will happen is that unless there’s some action filed on the part of the state to prohibit this item from going on the ballot – and I suppose that’s a possibility – I think the issue will go on the ballot as prescribed by state law, and then if it doesn’t pass, then the issue is really moot. It’s over,” Miller said.

“If it does pass, then the council still would need to vote to amend city code to incorporate that ordinance. Before it does that, I think that one of two parties, either the city or the attorney general, would file a court action to determine the legality of the ordinance being in conflict with state law.

“I doubt the city will do it, but I don’t know that because I don’t know what council will be in place at that time. But I would assume that the state attorney general would, that’s really what I would expect to happen is to file with the district court to have it declared null since it’s in conflict in state law.”

The Wichita City Council voted 6-1 Tuesday to put the measure on the ballot after backers presented a petition with thousands of signatures supporting it. Council member Pete Meitzner voted no.

Council members said they wanted to be clear they would not support spending money on a legal fight with the state if the issue passed and were challenged. The future of the proposed ordinance is further complicated by the prospect of turnover in city government. Several council members face re-election April 7, and Mayor Carl Brewer can not run again after two four-year terms.

Miller says that state statute does not address what to do if a proposed ordinance conflicts with state law, which left city council members few options when the petition was presented.

“Now it will go onto a ballot and the next party to be involved would be the state, whose statute it is.... The next thing they might want to avail themselves of is changing the statute to address what to do if a proposed ordinance is in conflict with state statute.”

This was the second attempt by petitioners to get a marijuana issue on the ballot in Wichita.

Last August, petitioners fell 36 signatures short of the required 2,928 needed to put a measure decriminalizing pot on the November ballot. After that, the City Council directed city legal staff to help the petitioners redraft the ballot language, resulting in the petition to lessen the penalty for first-time offenders.

The issue comes at the same time the state House Corrections and Juvenile Justice Committee considers a bill that would drop first- and second-time marijuana possession offenses below the felony level.

Last week, the committee heard testimony from supporters of the bill, which would make offenders less likely to see prison time, and the Kansas Sentencing Commission’s director said the move would save the state about $800,000 a year.

This story was originally published February 2, 2015 at 7:24 AM with the headline "Wichita marijuana ballot issue could face challenge by state."