City of Wichita, state of Kansas set for court battle on marijuana policy

The city and state will square off Thursday when the Kansas Supreme Court hears arguments on the constitutionality of a ballot measure passed by Wichita voters that lessens penalties for marijuana possession.

The proposal to reduce the penalty for first-time marijuana possession to a $50 fine if the defendant is 21 or older and has less than 32 grams won 54 percent of the vote in a citywide election in April. The violation would be an infraction, meaning that it wouldn’t have to be disclosed on most job applications.

But the policy has been stuck in legal limbo since the state of Kansas sued.

The state argues that the initiative conflicts with state laws governing the possession of marijuana and drug paraphernalia.

“The voters in Wichita who supported the Marijuana Ordinance may disagree with these laws, but they have no authority under the Kansas Constitution or statutes to exempt themselves from them or to direct their City to march off in a different direction in conflict with the course charted by the State,” wrote Attorney General Derek Schmidt in a brief filed in June.

Schmidt’s office had warned the city before the election that the ballot initiative was likely to conflict with state law.

The city, on the other hand, contends that the ordinance would not conflict with state law. Marijuana would continue to be illegal in the city of Wichita.

“The proposed ordinance does not legalize possession of marijuana and continues to make it a crime with criminal penalties,” the city’s attorneys argued in a July brief.

The brief goes on to say that the “ordinance seeks to promote a public purpose to reduce penalties which … the citizens of the City of Wichita believe overburden taxpayers, overcrowd local jails and court systems, and over penalize minor marijuana and paraphernalia offenses.”

State law trumps a local ordinance, so the question before the court is whether the Wichita ordinance directly conflicts with state law or simply supplements it, said Mike Heim, an attorney who works for the Kansas Legislature and teaches as an adjunct professor at Washburn University School of Law.

“If it supplements the uniform state law, it’s OK. If it’s in conflict, it’s not OK. And in my view, it’s in conflict,” Heim said. “In light of prior case law, I think it’s questionable whether or not Wichita could do what they did.”

Esau Freeman, the activist who led the campaign for the initiative, said the case “boils down to the ability for people to control their local level politics.” He noted that Schmidt has spoken in favor of local control on other issues.

Freeman will join Rep. Gail Finney, D-Wichita, in Topeka to observe the arguments Thursday. Finney has unsuccessfully pushed for marijuana reform at the state level.

“Too many people are being locked up, incarcerated and their lives wrecked over a small amount of marijuana,” Finney said.

The attorney general should think about what’s best for the people of Wichita, Finney said. She contended that a criminal record for marijuana keeps some Wichitans out of the work force.

“It can hold you back from getting a job. … In some cases it can keep you from getting financial aid in colleges,” Finney said. “What is that doing to us as an economy? All those people who can’t get a job, keep a job or move forward in life.”

Rep. Steve Brunk, R-Wichita, who campaigned against the initiative, said the issue at stake isn’t the merits of marijuana reform. “The issue was always the fact that the city did it unconstitutionally and illegally,” he said.

“It was always about the difference between home rule and state law,” Brunk said, contending that one city can’t enact a law that conflict with state law. “Substitute any other topic, whether it’s free speech, whether it’s religious liberties, whether it’s gun rights.”

This story was originally published September 15, 2015 at 4:42 PM with the headline "City of Wichita, state of Kansas set for court battle on marijuana policy."