A voter-approved ballot initiative lessening marijuana penalties in Wichita was struck down Friday by the Kansas Supreme Court on a technicality.
The court did not address the state’s argument that the proposal conflicted with state marijuana possession laws. Instead, it decided that petitioners did not follow state law in filing the proposed ordinance with the city clerk.
“If the only way they can beat us is on a technicality, it really says something about their argument,” said Esau Freeman, one of the organizers for Marijuana Reform Initiative-ICT, which organized the ballot petition.
The issue, which pitted the city against the state, would have made possession of one ounce of marijuana a criminal infraction with a $50 fine for first-time offenders over 21.
The ruling leaves the proposal’s future in doubt.
Backers could seek to place another question on the ballot but would need far more signatures this time, based on 2015 voter turnout.
Wichita City Council members could adopt a charter ordinance to change the law themselves. Mayor Jeff Longwell said he didn’t want to speculate about that but said, “We had that option before and we didn’t take it.”
Both the city and the state lamented that the court did not unanswer the deeper underlying question of how far cities can go in overruling state law.
Defending the voter-approved ordinance, Wichita had argued that the city could preempt state law in marijuana cases handled through municipal police and courts. The state disagreed and argued that state law, with its harsher penalties for marijuana possession, should prevail.
Attorney General Derek Schmidt, who handled the case for the state, called on the Legislature to clarify state law before the issue arises again in Wichita or some other city.
“Perhaps they (state lawmakers) either want to fix state law or acknowledge that there’s a gap in it,” he said in a speech to the Wichita Pachyderm Republican Club on Friday.
“I don’t think there’s a gap in it, but it seems to me it would be much more efficient for everybody involved if the Legislature would just say here’s what we intend the law to be and who can decide these things, rather than putting us all in a position where we don’t have any choice but to litigate this again for another year or two or so on down the road and everybody’s confused in the interim.”
The state challenged the initiative after 54 percent of Wichita voters approved it last spring.
Supporters said it would help people who make a one-time mistake not have to pay for the offense for a lifetime, especially when it comes to getting or keeping a job.
MRI-ICT organizers Freeman and Janice Bradley said they don’t want to rule out seeking yet another ballot petition.
But they would need to collect 9,523 signatures – more than three times the 2,928 signatures needed before. The number is based on 25 percent of the last election’s turnout, which was higher in 2015 because of the mayoral race and the ballot measure.
Freeman said he hopes city leaders will instead adopt a charter ordinance since they now know that the majority of Wichitans support the measure.
“The people of the city of Wichita have voted and we think the city has an opportunity here to fulfill the will of the people,” Freeman said.
However, he said, he isn’t sure city leaders have the “political muster” to do that.
‘Playing on the fringes’
Longwell said he didn’t know that the marijuana proposal is “an agenda item anyone is going to push to place on our immediate list of things we need to address for our citizens.”
“If we do, I think we’re going to fight the whole battle over again with the Kansas Supreme Court,” he said. “I’m not sure we’re ready for that. There’s a lot of other issues that need to be addressed.”
Longwell said he wishes the court had ruled on whether the ordinance conflicted with state marijuana possession laws.
“It would have been nice had they maybe looked at the issue more in depth versus playing on the fringes,” he said.
“But it does bring a little more clarity to the process and I would add this is probably a fair example of why people sometimes get frustrated with the bureaucracy of government. We’re all a little more educated now on crossing the t’s and dotting the i’s.”
The Wichita City Council voted 6-1 in January 2015 to put the measure on the ballot after backers presented a petition with 2,928 signatures supporting it. Council members could have adopted the change outright, done nothing or put it on the ballot. Council member Pete Meitzner voted no.
It wasn’t the first time supporters have tried to get a marijuana issue on the city ballot. In August 2014, petitioners fell 36 signatures short of placing a measure decriminalizing pot on the November ballot.
After that, the City Council directed city legal staff members to help the petitioners redraft the ballot language, resulting in the petition to lessen the penalty for first-time offenders.
State law says possession of marijuana and drug paraphernalia are criminal offenses with up to a $2,500 fine and one year in jail, which is a Class A misdemeanor, according to state statute. Another offense with the same classification is assault of a police officer.
MRI-ICT is pursuing a marijuana-related bill in the state Legislature. Bradley said that bill doesn’t go as far as the Wichita ballot measure did with reducing penalties for possession.
She said the group is considering pursuing ballot initiatives in smaller cities in Kansas.
“We got the vote, and that’s the significant thing that we wanted to do regardless – to show that measurement of how much people have changed and how people want these issues of incarceration and the drug war to be resolved,” Bradley said.
“That’s what this vote was all about.”
Contributing: Dion Lefler of The Eagle
First-time marijuana possession law enforcement
An Eagle analysis of Wichita Police Department, Wichita Municipal Court and Sedgwick County District Court records last spring showed that there has been less enforcement of laws related to first-time marijuana possession in recent years.
Here were key findings:
▪ Charges for first-time marijuana possession in Wichita Municipal Court have dropped nearly 40 percent – from 912 to 558 – from 2010 to 2014.
▪ A disproportionate number of first-time marijuana offenders in municipal court in the last five years have been black.
▪ People arrested for marijuana in Wichita also faced other charges in 78 to 88 percent of cases since 2010, according to the Wichita Police Department.
▪ An average 57 percent of overall marijuana arrests were for felonies and 43 percent were for misdemeanors from 2010 to 2014, according to WPD data.