City of Wichita Marijuana Decriminalization Initiative (April 2015)

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A City of Wichita Marijuana Decriminalization Initiative was on the ballot for Wichita voters in Sedgwick County, Kansas, on April 7, 2015. It was approved. On January 22, 2016, however, the Kansas Supreme Court ruled the initiative invalid.

This initiative was designed to change the city law to lessen the first-infraction penalties for possession of up to 32 grams — about 1.13 ounces — of marijuana and any marijuana paraphernalia to a fine of $50 and eliminate all jail time for such first-time violations. Without the approval of this initiative, the default would have been state law, which dictates possession of marijuana be treated as a misdemeanor with the possibility of up to a year of incarceration and $2,500 in fines. The initiative was also designed to make small marijuana infractions a matter of citation and summons, rather than arrest. Since the measure was approved, city law changed, but state law continued to feature the harsher penalties, creating a legal gray area likely to be resolved in court.

In 2015Wichita, which was home to over 13 percent of the entire population of Kansas, was the largest city in the state.

The city council voted to put the measure before voters, but the attorney general sent the city a letter claiming the initiative is unlawful and demanding the council remove the measure from the ballot. The deadline to alter the city's ballot was March 13, 2015. This deadline came and went without the city taking action to remove the initiative. Thus, voters saw the question on their ballots on April 7.

Aftermath

Lawsuit

Lawsuits overview
First lawsuit
Issue: Preemption and procedural issues; whether state law about marijuana prohibition preempted and invalidated the initiative and whether missed deadlines and filing requirements invalidated the initiative
Court: Kansas Supreme Court
Ruling: The court ruled that the initiative was invalid; ultimately the ruling was not based on the preemption argument but on missed deadlines and filing requirements. Thus the preemption question about state vs local authority was not answered in this case.
Plaintiff(s): Kansas Attorney General Derek Schmidt	Defendant(s): City of Wichita, initiative proponents
Plaintiff argument: The city—and therefore the city initiative power—did not have the authority to decriminalize marijuana since state law prescribed certain penalties; initiative petitioners missed certain deadlines and filing requirements that invalidated the initiative	Defendant argument: The will of the voters should be honored
Second lawsuit
Issue: Preemption; declaratory judgment on the legality of the measure
Court: Sedgwick County District Court
Ruling: Unnecessary because of supreme court decision
Plaintiff(s): City of Wichita	Defendant(s): N/A (The request was for declaratory judgment)
Plaintiff arguments: Considering active threats of litigation based on state law preemption, the city requested the court to give declaratory judgment on the legality of the measure.	Defendant arguments: N/A

  Sources: The Cannabist and Raw Story

Just a day after 54 percent of voters approved this marijuana question on April 7, 2015, the city filed a request in Sedgwick County District Court for a declaratory judgment on the legality of the measure. This action was taken largely in response to strong criticism from legislators on the state level and the explicit threat of litigation from Kansas Attorney General Derek Schmidt.

City Council Member Janet Miller explained, “A new ordinance would not actually go into effect until the city council would vote to enact it. The city filed an action with the district court for a ruling on whether or not it would be lawful for us to enact (the referendum).”

While county district court looked at the city's request, Schmidt filed a lawsuit in Kansas Supreme Court seeking to fully invalidate the initiative.

Miller predicted the city would not be able to vote to enact the initiative, saying, “We’re assuming that the court will concur with the Attorney General’s opinion, which is that it would not be lawful for us to enact it."

Neal Allen, a politics professor at Wichita State University, said, “The question is about two powers that are in conflict. The state’s power to make laws involving substances, and the city’s power to have initiatives that can alter the city’s public policy.”

As the lawsuit seeking invalidation of the initiative moved forward, the city made it known that it supported the measure and would defend the voters' decision. Interim City Attorney Sharon Dickgrafe wrote, “Kansas Statutes provide a mechanism for the people to exert their will over the rules that govern their community. If the people follow the … rules set forth and garner enough support in an election, then it is the city’s duty to enact the will of the people.”

On January 22, 2016, the Kansas Supreme Court ruled the city initiative invalid. The court, however, did not answer the question asked by Professor Neal Allen about the struggle between state and local authority. Instead, the court's decision was based on certain technicalities such as missed filing deadlines and reporting requirements. The court ruled that these problems with the petition process impeded the legislators and voters from gaining full knowledge of the measure.

What enactment would have looked like

Allen gave the following explanation of what it would have looked like if the city had enacted the measure in the face of conflicting state law:

“	The city can tell their police officers what to do and what not to do, but they don’t have any power over enforcement of state laws. So, you would still have the Kansas Highway Patrol and the Sedgwick County Sheriff’s Department, who still have jurisdiction within the city of Wichita, to arrest somebody for marijuana and send them through the existing system.	”
—Neal Allen

Election results

Wichita Marijuana Measure
Result		Votes	Percentage
a Yes		20,327	54%
No		17,183	45%

Election results from Sedgwick County Elections Office

Background

The activists behind this initiative tried to put a similar initiative on the city ballot in 2014, but they fell just short of the signature requirement.

Conflict with state law

According to the city attorney's office, the initiative conflicted with state law. Some city officials announced their expectation that the state would invalidate the initiative through a lawsuit upon voter approval in April.

Council Member Janet Miller said she was almost certain the state would take action to invalidate the initiative. Concerning the council's vote to put the initiative on the ballot, Miller said, “A number of us have real divided internal conflicts in ourselves about what to do here because we can read state statute, which tells us what the [petition] process is, so we followed it. … But state statute is unclear, fuzzy, about what to do if there’s an ordinance that is petitioned that is in conflict with state statute.” She also said, “Council members want to be clear they’re not trying to be antagonistic toward the state,” but insisted that putting the initiative on the ballot was a matter of following legal procedures. Looking on the bright side, Miller said, “This could give the state the opportunity to see how Wichita voters feel on the issue.”

Senior assistant revisor Jason Long of the Office of Revisor of State Statutes produced an opinion on the legality of the initiative. He said that the Kansas Supreme Court has “consistently held that a city cannot adopt a criminal ordinance that is in conflict with uniform state law.” Long clarified, “Based on prior case law if the proposed amendment set out in the Petition were to become part of the Wichita municipal code, then the Wichita municipal court would no longer have jurisdiction over marijuana possession offenses because the local ordinance would be in conflict with state criminal law. … The proposed amendments appear to go beyond the parameters established by the general rule and in doing so would likely nullify the local ordinance."

Attorney General's Letter

Kansas Attorney General Derek Schmidt sent a letter to the city verifying all of the council's fears and putting the council members in a difficult position. On the one hand, faced with a valid signature petition signed by thousands of the citizens they represent, they voted to put the measure on the ballot. On the other hand, they faced Schmidt's letter demanding they remove the initiative from the ballot. Schmidt wrote that the initiative was unlawful and implied that his office would proceed with litigation against the city if the initiative were to be enacted. He continued, "I therefore respectfully request that the City take the necessary steps to prevent this unlawful proposal from presentation at the April Ballot."

Schmidt gave three reasons the initiative violated state law:

• The first complaint was a technical one. Schmidt said that a full copy of the ordinance was not submitted to the city clerk along with the petition, as state law required.

• The second complaint concerned the content of the initiative in general. He wrote that the initiative contained “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” and insisted that such provisions violated the subject restrictions on citizen initiatives found in state statutes.

• The third reason was based on the specific penalties prescribed for marijuana possession and use by state law. Schmidt claimed that the initiative was in “conflict with uniform state law in numerous ways and would be void,” insisting that the city has no legal authority to enact such a law.

Despite this letter, voters saw the measure on the ballot in April since the council had already voted to put the initiative before voters and failed to amend the ballot before the deadline.

Mayor Carl Brewer stated that, according to his understanding, the council had already made a decision about the initiative. He also said, “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?”

Concerning the state's position, he continued, "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.”

Days before the election

By Friday, April 3, 2015, no resolution had come to the standoff between the city and the state. A group of state legislators and officials held a press conference at which they asserted the state's position on this initiative remained that it was illegal and non-binding, and they reaffirmed that the attorney general would sue the city to enforce uniform state law if voters approve the measure.

Rep. Steve Brunk (R-85) said, "This is an illegal petition and an illegal referendum."

Supporters, however, said the city voters should approve the initiative anyway in order to send a message to the state. Essau Freeman, who worked to organize the decriminalization initiative petition and campaign, said, "We should still go ahead and vote yes — one of the keystones of our democracy is to vote." He also called the conference by state level officials a "vulgar display of power."

Text of measure

Ballot question

The following question was designed to go on the ballot and to be shown on the petition:

“

Shall the following be adopted? AN ORDINANCE REDUCING THE PENALTY FOR FIRST OFFENSE CONVICTION FOR POSSESSION OF THIRTY-TWO (32) GRAMS OR LESS OF CANNABIS SATIVA L., OTHERWISE KNOWN AS MARIJUANA, AND/OR DRUG PARAPHERNALIA RELATED THERETO, BY PERSONS TWENTY-ONE (21) YEARS OF AGE OR OLDER, TO AN INFRACTION WITH A FINE NOT TO EXCEED FIFTY DOLLARS ($50.00).

”

Initiative petition language

The following statement was circulated with the initiative petition:

“

Whereas the public interest of the City of Wichita, Kansas, is best served in reducing the penalty for first offense conviction for possession of thirty-two (32) grams or less of marijuana, and/or drug paraphernalia related thereto, by persons twenty-one (21) years of age or older, to an infraction with a fine not to exceed fifty dollars ($50.00); and, the public interest of the City of Wichita, Kansas, is best served if persons subject to complaint of the aforementioned are provided with summons or notice to appear, without arrest, and that no subsequent conviction thereto shall be recorded as a misdemeanor; Therefore Section 5.26.040 of the Municipal Code of the City of Wichita, Kansas, shall be repealed in its entirety and the substitute provisions set forth in MARIJUANA REFORM INITIATIVE - ICT, as available, shall be adopted by the City of Wichita, Kansas. To such extent that Charter Ordinance No. 122 must be further revised, repealed, amended or otherwise modified in order to implement said initiative, the City Council of the City of Wichita, Kansas, is requested to take such legislative action as may be necessary, reasonable or prudent. The City Council of the City of Wichita, Kansas, is further requested to take such other policy change or legislative action as may be necessary, reasonable or prudent to implement and codify the purpose and intent hereof. I, the undersigned, a qualified elector of the City of Wichita, Kansas, request that the following proposed ordinance, without alteration, be passed or referred to a vote the electors pursuant to the provisions of Chapter 25-3601 of the Kansas Statutes:

”

Full text

The full text of the ordinance that would be enacted by the approval of this initiative is available here.

Support

Supporters

A group called Kansas for Change was behind the initiative.

The group established a website specifically for its "Wichita Marijuana Reform Initiative" called MRI-ICT.

Arguments in favor

The following statement arguing in support of decriminalization was posted on the MRI-ICT website:

“	60% of all drug arrests in Wichita are for possession of marijuana or possession of paraphernalia. These small, easy arrests for marijuana are driving the drug war, filling our courtrooms, prisons & probation offices at great expense to the tax payer. The costs are huge for court ordered drug treatment and supervision of these nonviolent citizens. Kansans know marijuana is less harmful than alcohol. There are real crimes that demand the attention of law enforcement. These arrests are ruining the lives of taxpayers, their families, friends and loved ones. Penalties are harsher for those arrested who cannot afford an attorney. Drug convictions and forced pleas bring lifelong consequences that often make positive lifestyle changes impossible through the systematic denial of student loans, job opportunities, the right to vote, and housing. It is time to change these outdated laws and end the criminal penalties for marijuana possession.	”
—MRI-ICT

Anthony Johnson, in an article featured by MarijuanaPolitics.Com, wrote:

“	Wichita successfully decriminalizing this year will have positive repercussions not only across Kansas, but across the Midwest and even the South as more conservative states with local initiative power could be motivated to move forward with sensible reforms. While many cannabis law reform advocates and even many in the general population, feel that legalization is inevitable and the nation is ready for change, marijuana doesn’t legalize or even decriminalize itself. Many advocates have to put in long hours and prohibitionists don’t sit idly by, they will continue to trot out old, debunked Reefer Madness propaganda about marijuana decriminalization leading to an increased number of heroin addicts or even Reefer Madness 2.0 claims about “Big Marijuana” pushing marketing marijuana to children.	”
—Anthony Johnson

Opposition

Opponents

Kansas Attorney General Derek Schmidt told the city it must remove the initiative from the ballot or face legal consequences upon voter approval of the measure on April 7.

Arguments against

Schmidt's argument against the initiative was simply that it is illegal. He argued that the measure violates state elections law by containing “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," which are not allowed in citizen initiatives. He also argued that the measure violates uniform state law, which prescribes harsher penalties for marijuana-related violations. Some opposed the measure on these grounds alone, independent of their position on marijuana penalties. They were concerned that the passage of the initiative would result in an expensive lawsuit against the state.

Editorials

• The Wichita Eagle editorial board released an article urging voters to reject the decriminalization initiative on April 7 because of its violation of state law. The article also critiqued the city for putting the initiative on the ballot in the first place and failing to remove it when told to do so by the attorney general. An excerpt of the editorial is below:

“

A Friday deadline came and went without Wichita officials heeding the call of Kansas Attorney General Derek Schmidt and two Wichita lawmakers to yank a marijuana question off the April 7 ballot. But Wichita voters should know that the ordinance, if approved, will be unenforceable at best and lawsuit bait at worst. [...] He warned that if it wins voters’ approval, his office will file a lawsuit to enforce state law. What a mess. [...] Just as the Legislature has crossed a line in recent years in passing bills that clearly violate federal law or the Constitution, Wichita should not be approving ordinances – either by council action or petition-triggered voter ballot – at odds with state law. In this case, the best outcome for Wichita would be a defeat on April 7.

”

Positions of mayoral candidates

See also: Wichita, Kansas municipal elections, 2015

Jeff Longwell

Samuel M. Williams

During a debate, the mayoral runoff election candidates argued about the marijuana initiative. Although neither one explicitly advocated for a "yes" or "no" vote, they had very different positions on whether the initiative should have even been on the ballot.

Jeff Longwell:

Jeff Longwell, a city council member and candidate in mayoral election, stated that he was in favor of the initiative going before voters, despite conflict with state law. He said that it was the right of the thousands of citizens that signed the petition to see it on the ballot. He also said that the city council merely followed the law by voting to put the initiative before voters according to the valid petition. Longwell insisted that a public election on an initiative, even an ultimately illegal and invalid initiative, allows city residents to send a powerful message to the state.

Sam Williams:

Sam Williams, however, said that he would have prevented the initiative from going on the ballot if he had been mayor, avoiding the conflict with the state and the possible lawsuit. He said he would have met with petitioners and worked with them to communicate their demands and concerns over marijuana law enforcement to the state. Williams said, “It’s not our issue It should not have been at the city level. … May I suggest that as a leader, I would have worked with our council to help that not to even happen.”

Jeff Longwell was ultimately elected to the position of Mayor.

Path to the ballot

See also: Laws governing local ballot measures in Kansas

After falling less than 40 valid signatures short of the required threshold in 2014, the group Kansas For Change submitted about 4,500 signatures in the first week of January 2015, with only 2,928 of them required to be valid. The Sedgwick Elections Commission certified that enough submitted signatures were from Wichita registered voters and correctly filed. This gave the city council three options: (1) put the initiative before voters at the April 7 election, (2) enact the initiative directly or (3) pass a resolution to bring a legal challenge against the measure, claiming it to be illegal and requesting judicial relief. The council was set to decide this issue on January 27, 2015. At that meeting, the council voted six against one to put the initiative on the ballot, despite reports of calls from state legislators who said they did not want to see the measure before voters because of its conflict with state law. Short of approving the ordinance directly, however, the council had no other choice but to seek an opinion from the county court. They decided, instead, to let voters have their say and, upon voter approval, let the state decide whether or not to challenge the initiative in court.

After the attorney general sent a letter to the city council demanding the removal the initiative from the ballot, the city had until March 13, 2015, to comply. That date, however, came and went without the city taking action to remove the initiative. Since the city ballot could not be changed after that date, city residents voted on the question at the April 7 election despite the attorney general's warning.

Similar measures

• City of Brownsville Medical and Recreational Marijuana Facilities Advisory Question, Measure 22-134 (May 2015)d
• City of Denver "Limited Social Marijuana Consumption Initiative" (November 2015)
• City of East Lansing Marijuana Decriminalization Proposal (May 2015)a
• City of Manitou Springs Marijuana Sales Tax Revenue Retention TABOR Override Question (November 2015)a
• City of Montrose Marijuana Decriminalization Proposal (February 2015)d
• City of Portage Marijuana Decriminalization Proposal (November 2015)a
• City of Riverside Medical Marijuana Dispensaries Initiative, Measure A (June 2015)d
• City of Sunnyside Recreational Marijuana Production and Sales Advisory Question, Proposition 1 (August 2015)
• City of Vallejo Veto Referendum Targeting City Council Medical Marijuana Ordinance (2015)
• Denver Retention and Continuation of Marijuana Sales Tax, Measure 2B (November 2015)a
• Houston, Alaska, Commercial Marijuana Ban Initiative, Proposition No. H-1 (October 2015)d
• Jackson County Marijuana Producers and Sellers Tax, Measure 15-133 (March 2015)a
• Mendocino County “Mendocino Cannabis Commission” Initiative (November 2015)
• Nashville-Davidson County Metro Marijuana Decriminalization Initiative (August 2015)
• Palmer, Alaska, Commercial Marijuana Ban Initiative, Proposition No. P-1 (October 2015)a
• Toledo, Ohio, Issue 1, Marijuana Decriminalization Initiative (September 2015)a
• Town of Yucca Valley Medical Marijuana Dispensary Authorization and Regulation Act, Measure X (June 2015)d

Recent news

The link below is to the most recent stories in a Google news search for the terms Wichita marijuana decriminalization initiative. These results are automatically generated from Google. Ballotpedia does not curate or endorse these articles.

City of Wichita Marijuana Decriminalization Initiative (April 2015) - Google News

See also

• Local marijuana on the ballot
• April 7, 2015 ballot measures in Kansas
• Sedgwick County, Kansas ballot measures
• City of Wichita Marijuana Decriminalization Initiative (April 2015), full text
• Wichita, Kansas municipal elections, 2015

External links

Suggest a link

• Wichita City Clerk website
• Sedgwick County Elections Office website

Support

• Kansas For Change website, accessed January 26, 2015
• Wichita Marijuana Reform Initiative website, accessed January 26, 2015

Additional reading

• Lawrence Journal-World, "Wichita seeks ruling on legality of marijuana initiative," April 8, 2015
• KMUW News, "Jeff Longwell, Marijuana Initiative Successful In General Election," April 7, 2015
• KWCH 12, "Wichita voters asked to decide on marijuana ballot issue," April 7, 2015
• Lawrence Journal World, "Wichita could face legal action over marijuana initiative," March 10, 2015
• LJWorld.com, "Wichita residents will vote on marijuana proposal in April," January 30, 2015