Kansas attorney general asks Supreme Court to block Wichita marijuana measure

Wichitans voted April 7 in favor of a proposal to lessen first-time penalties for adults caught with an ounce or less of marijuana.
Wichitans voted April 7 in favor of a proposal to lessen first-time penalties for adults caught with an ounce or less of marijuana. Associated Press

Attorney General Derek Schmidt is asking the state Supreme Court to strike down the ballot initiative Wichita voters passed Tuesday to reduce penalties for marijuana possession.

“There are no facts in dispute – only the legal question of whether the City of Wichita acted outside its authority by purporting to adopt this ordinance in conflict with state law,” Schmidt said in a news release Thursday accompanying his filing. “A quick, authoritative and final resolution in the Supreme Court will provide the clarity needed to guide everyone involved.”

A lawyer for the marijuana activists who forced Tuesday’s vote said he finds it funny that Schmidt is moving on the case only after his side lost.

“I guess if the wrong people win an election in Wichita, Kansas, the attorney general is going to want a do-over,” said Scott Poor, a lawyer for the Wichita Marijuana Reform Initiative group.

The initiative – approved by voters 54 percent to 46 percent – seeks to reduce the penalty for first-time marijuana possession to a $50 fine for adults over 21. Violations would be an infraction that wouldn’t have to be disclosed on most job or scholarship applications.

The state law defines pot possession a Class A misdemeanor, on par with violent offenses such as assaulting a police officer. The maximum penalty is a year in jail and a $2,500 fine.

In his court filing released late Thursday, Schmidt cited several reasons why he thinks the initiative should be intercepted by the court before it takes effect.

Foremost, Schmidt wrote in the court filing, “The Kansas Constitution prohibits cities from adopting ordinances that conflict with uniform state law.”

Not only does state law treat marijuana possession as a much more serious crime, the Wichita initiative could keep marijuana convictions from being counted as prior offenses in sentencing for other crimes, Schmidt argued.

He also alleged the initiative tries to give unlawful directions to city police and municipal judges And he claimed it was not properly filed because the city clerk didn’t have a copy and the wording didn’t include a “be it ordained” clause required by state law.

Poor disputed the attorney general’s opinion that the Wichita initiative conflicts with state law.

“We passed a city ordinance,” he said. “We didn’t change state law in the city of Wichita. We changed the ordinance as enforced by the city of Wichita.”

The district attorney, a state official, remains free to pursue state marijuana charges in state courts, he said.

“Our ordinance only related to city cops, city prosecutors and city courts,” he said.

On the technical complaints, he said the petitioners complied with everything that the city clerk, the city law department, the Sedgwick County counsel and the county election commissioner told them they had to do.

In fact, they circulated the petition twice after falling a few signatures short of the number they needed in August. The second effort was done with direct advice from city staff.

Poor said Schmidt’s procedural challenges “are not a particularly relevant argument after the election,” because the attorney general had plenty of time to challenge that earlier in the process.

“It’s just interesting they only decide to raise these issues after they figure out they don’t like the outcome,” Poor said.

Schmidt requested that the Supreme Court issue an order “declaring the Wichita Marijuana Ordinance null and void, and permanently prohibiting the city of Wichita from publishing, implementing and enforcing the same.”

In addition, Schmidt asked the Supreme Court to stay proceedings in a district court action where the city has sued marijuana activist Janice Bradley, seeking a court ruling on the initiative’s legality.

Schmidt also asked the Supreme Court to issue a temporary restraining order blocking implementation of the ordinance until his court case is decided.

The city of Wichita is the only named defendant in Schmidt’s filing.

The petitioners who forced the city to put the measure to a vote will have to file for permission to intervene, Poor said. He said intervention will likely be granted, especially because part of the issue has to do with how petitions were filed.

Reach Dion Lefler at 316-268-6527 or dlefler@wichitaeagle.com.

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