Thursday, April 9, 2015

Kansas asks state Supreme Court to review new Wichita marijuana ordinance

TOPEKA, KAN. – The State of Kansas today asked the Kansas Supreme Court to declare a new Wichita ordinance that purports to reduce marijuana penalties to be in conflict with state law and to order the city not to enforce it.

Attorney General Derek Schmidt filed the lawsuit in the Supreme Court on behalf of the state. In early March, Schmidt told two Wichita legislators in a legal opinion that the proposed ordinance would violate state law and be unenforceable. In a separate letter conveying the legal opinion to the interim city attorney, Schmidt requested that city officials remove the proposal from the ballot and told the city that if the ordinance were enacted, he would be obligated to file suit to enforce state law by seeking to declare it unenforceable. The city allowed the election to proceed, and on Tuesday local voters approved the ordinance.

“The backers of this local ordinance took their complaint to the wrong governing body,” Schmidt said. “If they want to act contrary to state law, they need to convince the Legislature to change state law. Asking the City of Wichita to override state law is not a lawful option.”

In the lawsuit, Schmidt argues the local ordinance violates state law in at least four ways:

First, it reclassifies marijuana and paraphernalia possession as infractions, sets a maximum fine of $50 and disallows the possibility of jail time. State law makes those crimes misdemeanors with a maximum fine of $2,500 and up to a year in the county jail.

Second, it redefines “first offense” in a manner that allows many previous drug convictions not to be counted for sentencing purposes. The effect is that certain repeat offenders who would be guilty of a felony under state law would instead be subject only to a $50 fine for an “infraction” or to a misdemeanor even in a state-court prosecution.

Third, it prohibits Wichita police officers from presenting marijuana or paraphernalia violations to state authorities for prosecution under state law. This “gag rule” violates the statutory duty of police officers to enforce state law.

Fourth, it prohibits the Wichita Police Department and the judges of the Wichita Municipal Court from reporting convictions under the new ordinance to the Kansas Bureau of Investigation. This prohibition violates requirements in state law that such information be reported for inclusion in state criminal records databases and ultimately will interfere with certain criminal sentencings in state courts throughout Kansas, not only in Wichita.

The state’s lawsuit also notes that the procedure used to put the proposed ordinance on the ballot violated state law in several ways by "inexplicably" failing to comply with the plain requirements of the initiative and referendum statute.

The City of Wichita yesterday filed a lawsuit in Sedgwick County District Court seeking a declaratory judgment as to whether the new ordinance is valid and enforceable.

The state lawsuit filed today asks the Supreme Court to put that district-court lawsuit on hold and instead to resolve the questions directly in the Supreme Court.

“The longer this ordinance stands alongside state law without a determination of its validity, the more confusion there will be for Wichita authorities, state authorities, criminal defendants, and law enforcement officials,” Schmidt said. “Starting in the district court will only prolong the uncertainty through an almost-certain appeal. There are no facts in dispute – only the legal question of whether the City of Wichita acted outside its authority by purporting to adopt this ordinance in conflict with state law. A quick, authoritative and final resolution in the Supreme Court will provide the clarity needed to guide everyone involved.”

A copy of the state’s lawsuit is available at .