Kansas AG: Wichita’s marijuana ballot question ‘unlawful’

In a letter to the city of Wichita, Kansas Attorney General Derek Schmidt said if the marijuana proposal is on the Wichita ballot and it passes, it would not be legal and he would be required to file a lawsuit, presumably against the city, to enforce state law.
In a letter to the city of Wichita, Kansas Attorney General Derek Schmidt said if the marijuana proposal is on the Wichita ballot and it passes, it would not be legal and he would be required to file a lawsuit, presumably against the city, to enforce state law. File photo

Wichita’s marijuana ballot question “may not lawfully be adopted” and should not be presented to voters, Kansas Attorney General Derek Schmidt says in a letter to the city.

But residents may still end up voting on the measure April 7.

If it passes, Schmidt’s office will file a lawsuit – presumably against the city – to enforce state law, he wrote in the letter.

“I therefore respectfully request that the City take the necessary steps to prevent this unlawful proposal from presentation at the April Ballot,” he wrote. He also issued a legal opinion about the ballot issue.

The proposal, which aims to reduce penalties for first-time marijuana possession, would make a first offense a criminal infraction with a $50 fine for those over 21. Supporters say 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.

State law says possession of marijuana is a Class A misdemeanor with up to a $2,500 fine and one year in jail. Another offense with the same classification is assault of a police officer.

Schmidt concluded that the proposal is unlawful for several reasons:

▪ A copy of the ordinance was not filed with the city clerk along with the petition as required by state law.

▪ The proposal contains administrative material – “provisions that purport to bind law enforcement officers and municipal judges to certain processes for the administrative reporting of various types of criminal justice information” – that cannot be placed on the ballot, according to state statute.

▪ The proposal, if passed, would “conflict with uniform state law in numerous ways and would be void,” and the city has no legal authority to adopt an ordinance that conflicts with state law or to change state law.

Schmidt said that although residents have a right to petition, petitioners have gone through the wrong governing body. They should have gone to the Legislature, Schmidt said.

‘Up in the air’

Sedgwick County Election Commissioner Tabitha Lehman said she is waiting on the city for direction on whether to put the question on the ballot after the attorney general’s opinion.

At this point, “it’s up in the air” as to whether it will be on the ballot, Lehman said.

However, Mayor Carl Brewer said that as far as he’s concerned, the City Council has already voted to put the measure on the ballot.

“What do you do? Do you go against what the citizens here say they want and let the state figure it out? Or do you go against the citizens here?” he said.

“Primarily, they’re saying that we’re not authorized to change the law and I don’t think that we’re saying we want to change the law, we’re saying we should give citizens an opportunity to vote on it. Our form of government allows us to be able to do that. When you have thousands of signatures that say this is what they’d like to do and they’d like it on the ballot, certainly there’s nothing wrong with that.”

The Wichita City Council voted 6-1 in January to put the measure on the ballot after backers presented a petition with thousands of 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.

Previous efforts

It wasn’t the first time supporters tried to get a marijuana issue on the city ballot.

Last August, petitioners fell 36 signatures short of the required 2,928 needed to put 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.

The council would face a time crunch between now and the election if it decides to take the measure off the ballot. It has only two meetings left this month.

“There’s not enough time for the City Council to respond or to do anything with the exception of continuing to move forward in the direction we’re already moving,” Brewer said. “I don’t see how it can be done.”

Esau Freeman, organizer of the Marijuana Reform Initiative (MRI)-ICT – the group supporting the proposal – said he and others will continue to get the word out on the ballot issue.

“I think the will of the people still needs to be done,” Freeman said. “I don’t quite understand the moves by people of interest to push against this, just using their authority and power to basically squelch the will of the people in the city, and I would question how he would expect the federal government to respect states’ rights when he is in turn not respecting the rights of a city.”

“Win or lose, the most important thing is people use the electoral system to prove or disprove whether voting really counts. If we can have a local election and people vote it in and the attorney general says ‘We’re not going to have that’ and just sweeps it right off the table, that really isn’t a government run ‘for and by the people.’”

Freeman said he hopes Schmidt will not “waste taxpayer money” by filing the suit against the city if the measure passes.

“This is a real reason to get out and vote and test the system, because if the system is broken, what are we going to do?” Freeman said.

Reach Kelsey Ryan at 316-269-6752 or kryan@wichitaeagle.com. Follow her on Twitter: @kelsey_ryan.

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