City of Wichita responds to lawsuit over marijuana initiative

The city of Wichita says it thinks the initiative voters passed last month to reduce marijuana penalties is legally valid, but agreed with the state’s attorney general that it should be put on hold while it’s tested in court.

Those are the key points in the city’s answer to a lawsuit by Attorney General Derek Schmidt, who has sued the city to try to block the initiative. Schmidt contends the initiative conflicts with state law and that procedures for putting it on the ballot weren’t properly followed.

The city’s answer to Schmidt’s lawsuit was released by the Kansas Supreme Court on Thursday. It disputes paragraph by paragraph most of the key arguments that Schmidt made in his filing.

“Kansas Statutes provide a mechanism for the people to exert their will over the rules that govern their community,” Interim City Attorney Sharon Dickgrafe wrote in a memorandum supporting the city’s response. “If the people follow the … rules set forth and garner enough support in an election, then it is the city’s duty to enact the will of the people.”

Wichita voters approved the initiative in the general municipal election April 7.

It lowers the penalty for first-time marijuana conviction to $25 for defendants age 21 and older, in cases prosecuted in Wichita’s Municipal Court.

Under state law, first-time marijuana possession is a Class A misdemeanor carrying up to a $2,500 fine and a year in jail. Legally, that puts it on par with violent offenses including assaulting a police officer.

Esau Freeman, a leader of the residents who circulated the petition, said he was pleased with Dickgrafe’s response.

“That looks kind of like what we hoped that they would do,” Freeman said. “I feel like they’ve done a good job of standing up for the citizens of Wichita.”

In the city’s filing, Dickgrafe argued that the initiative doesn’t conflict with the state law that specifies harsher penalties for possession of marijuana.

Dickgrafe wrote that the state law empowering voters to bring the local initiative “creates a direct grant of state authority for voters to adopt measures varying from state law if they are not excluded from referendum.”

In addition, she said “the state statutes on marijuana possession and paraphernalia, in particular, are not preemptive of local measures with lesser penalties because they are not designated as ‘uniform’” in state law.

Dickgrafe also asked the Supreme Court to send the case to trial in Sedgwick County District Court, arguing that Schmidt had not shown he could not obtain adequate relief there if he wins.

She also contested Schmidt’s contention that the initiative was invalid because a copy of the ordinance was not filed with the city clerk along with the petition signatures required to put it on the ballot.

“The statute states, ‘Such ordinance and petition shall be filed with the city clerk,’” Dickgrafe wrote. “It does not state that they must be filed concurrently, nor does it state any definitive time period within which the ordinance must be filed.”

She pointed out that Schmidt easily obtained copies of the initiative online and said the citizens who filed the initiative had followed the instructions they were given by then-Sedgwick County Counselor Rich Euson “in separating the form of ordinance from the referendum petition.”

State law requires county counselors to review proposed initiatives for legality before petitioners start gathering signatures.

Dickgrafe also argued that the City Council had no choice under state law except to adopt the initiative or submit it to voters, once Euson ruled it was a legal petition and county Election Commissioner Tabitha Lehman certified that a sufficient number of valid signatures had been collected.

The city response agreed with the attorney general that the initiative should be stayed until a court rules on its validity, saying that “is in the best interest of justice and the public.”

Freeman said he’d rather the ordinance take effect immediately, but added, “I understand that is how our system works. I think that they (city officials) are doing what they can.”

This story was originally published May 6, 2015 at 7:27 PM with the headline "City of Wichita responds to lawsuit over marijuana initiative."