Kansas Supreme Court hears Wichita marijuana case

TOPEKA — Kansas Supreme Court justices raised numerous concerns with Wichita’s marijuana ballot measure Thursday when the state and city sparred off in court.

The state is challenging the ballot measure that Wichita voters approved with a 54 percent majority in April. Passage of the ballot measure was a major victory for marijuana reform efforts in Kansas. It would lessen the penalty for first-time marijuana possession to a $50 fine in Wichita.

The court has yet to rule on the case, which hinges on whether the ordinance conflicts with statewide laws prohibiting marijuana possession and whether activists complied with the requirements for ballot initiatives.

The Marijuana Reform Initiative failed to attach the proposed ordinance to the signatures when it submitted it to the city for first review. Justice Carol Beier called this procedural error “pretty glaring” and said the court had no way of knowing what citizens saw, if anything, when asked to sign the petition.

Esau Freeman, the activist who led the initiative, said in the hallway afterward that activists carried a copy of the proposed ordinance with them as they gathered signatures and encouraged people to visit the group’s website, where the full language of the initiative was available.

“The city was well-informed because there were conversations with the City Council, this was on the news. I mean we displayed this in front of God and everybody several times. I really don’t think they have a good point with this,” Freeman said. “We are citizens, we’re not lawyers, we’re not experts. We did the best we could to run a ballot-led initiative. … It’s kind of a gotcha.”

The city’s attorney, Sharon Dickgrafe, said to use that technicality to rule against the ordinance “would be an injustice to the whole statute process.”

Beier quipped that lawyers like to use the word “technicality” when confronted with rules they don’t like.

Assistant Attorney General Jeff Chaney argued that the proposed ordinance, which reduces the penalty for a first-time marijuana conviction to a $50 fine if the defendant is 21 years old and possesses less than 32 grams, conflicts with state laws prohibiting marijuana possession.

“The city can’t permit what the state forbids,” Chaney said.

Justice Caleb Stegall, who was appointed to the court last year by Gov. Sam Brownback, was skeptical of this argument.

“What has the city permitted?” Stegall asked. He pointed out that a judge would have the right to give a sentence of $50 under current state law, which has no mandatory minimum sentence for marijuana possession.

Stegall also said that the home rule principle for cities is meant to be construed liberally to allow “the greatest level of self determination.” He pointed out that the city of Overland Park has several ordinances instructing lesser penalties than the state for such crimes as harassment and lewd and lascivious behavior.

Dickgrafe argued that the city was not required to mirror state law. She also repeatedly said that the ordinance does not decriminalize marijuana, but rather sets a lesser penalty for people who meet certain criteria.

“These changes do not legalize marijuana. They do not decriminalize marijuana. They create an infraction,” she said.

Marijuana infractions would not have to be disclosed on most job or college applications.

Justice Eric Rosen asked her if that meant the city could carve out an exception for any crime, even rape.

“No, because rape’s a felony,” Dickgrafe responded.

Stegall noted that the ordinance would not forbid the Sedgwick County District Attorney’s Office from prosecuting marijuana arrests in the city. He raised concern that this could set up dramatically different scenarios depending on whether a person was arrested by a Wichita police officer or a Sedgwick County sheriff deputy.

Dickgrafe conceded that part of the ordinance barring Wichita police officers from reporting these marijuana cases to agencies other than the city attorney would have to be struck.

Justice Lee Johnson suggested that if the city concedes there are legal problems with the ordinance, a possible remedy would be to restart the ballot initiative process from the beginning.

Chaney encouraged the court to rule against the ordinance on the basis that it conflicts with state law rather than on a procedural technicality in order to prevent the court from having to return to the issue in the future.

Freeman said that if the court does strike down the ordinance on a technicality, his group is prepared to start over. He also said that the Kansas Legislature should consider some of the reforms passed by voters in its largest city and enact them statewide.

Rep. Gail Finney, D-Wichita, who joined Freeman in Topeka, agreed.

“It’s been time for the Legislature to take up (marijuana reform). You know they always talk about smaller government, but here we have large government, big government at work here,” Finney said. “And the people have spoken.”

Rep. Steve Brunk, R-Wichita, an outspoken critic of the ordinance, said in a phone call that “obeying the constitution is not a technicality” and that there were numerous violations with the way the initiative was placed on the ballot.

This story was originally published September 17, 2015 at 8:30 AM with the headline "Kansas Supreme Court hears Wichita marijuana case."