Kansas Supreme Court weighs Wichita’s attempt to reduce marijuana penalties

Wichita residents shouldn’t get too relaxed just yet about the reduced penalties they approved last spring for possessing small amounts of marijuana.

The new law, the result of a citizen initiative, got a grilling Thursday at the Kansas Supreme Court.

The state’s seven justices heard the attorney general’s stern argument that the ordinance should be “null and void.”

Not only does the law suffer from an array of technical mistakes, it sets out different, lesser penalties than required by Kansas law, said Jeff Chanay, chief deputy attorney general.

The ordinance, which was put on hold, “conflicts with state law in at least eight ways,” Chanay said.

Wichita residents approved the proposal in April with 54 percent of the vote. It would reduce the penalty for first-time marijuana possession for those 21 and older to a $50 fine, if the amount of marijuana is less than 32 grams.

Voters in Wichita may disagree with state laws, Chanay said, but they have no authority “to exempt themselves from them.”

Sharon Dickgrafe, the city’s attorney, conceded that parts of the ordinance conflict with state law but not the main section that reduces the penalty in certain circumstances.

State law sets a penalty of up to one year in jail and a $2,500 fine, she said, but it doesn’t set a minimum penalty.

“We’re not required to mirror state law,” Dickgrafe said.

Chanay said he preferred a “null and void” decision based on the conflict between the city and state laws, but justices asked Dickgrafe pointed questions about possible procedural mistakes, especially in the way signatures were collected for the initiative and what signers were told.

Justice Carol Beier said some of those mistakes were “pretty glaring.” The initiative group didn’t attach the ordinance to the petitions when presenting them to the city, which called into question what petition-signers knew about the proosal, she said.

Justice Lee Johnson questioned Dickgrafe’s suggestion that the chief part of the ordinance could be retained even if other parts aren’t.

In that case, he said, the altered law would no longer be the same as the proposal signed by petitioners, so shouldn’t the process start over?

“If it’s me, you need to come back and get my signature again,” he said.

Justice Caleb Stegall noted that the city of Overland Park has lower penalties than the state on several crimes, such as lewd and lascivious behavior.

The state constitution’s home-rule section says powers and authority granted to cities, Stegall said, should be “liberally construed” to give them “the largest measure of self-government.”

“Is that just aspirational fluff?” he asked Chanay.

Not fluff, said Chanay, but the procedures set out to enact ordinances still needed to be followed.

Esau Freeman with Kansas for Change, which led the petition drive, said afterward he hoped the justices in making their decision don’t focus heavily on possible missteps in the petition process.

“We’re not lawyers, we’re not experts,” Freeman said. “We did our best. We displayed this in front of God and everybody numerous times.”

If the ordinance doesn’t survive the legal challenge, and knowing it passed with 54 percent of the vote, the group will come back with another proposal, he said.

“If you get knocked down, you get up again,” Freeman said. “That’s how you make changes.”

After the hearing, Attorney General Derek Schmidt said he hoped the justices would not strike parts of the ordinance and keep the penalty reduction provision.

“I think it’s going to be difficult to line-item parts of this ordinance out,” Schmidt said.

The court will announce its decision later, which could include sending the matter to a lower court.

This story was originally published September 17, 2015 at 12:08 PM with the headline "Kansas Supreme Court weighs Wichita’s attempt to reduce marijuana penalties."