TOPEKA — The Kansas Supreme Court waded into the legally cloudy national debate about marijuana Thursday in argument on the state’s motion to snuff a new Wichita ordinance diminishing the punishment for possession of small amounts of marijuana to a $50 fine.
The state’s high court absorbed clashing perspectives offered by Jeffrey Chanay, chief deputy attorney general, and Sharon Dickgrafe, chief deputy city attorney for Wichita, regarding constitutionality of an ordinance endorsed by a majority of Wichita voters in April.
The duo fought over whether Wichita can treat the offense as the legal equivalent of a traffic ticket or if state law should prevail to maintain a maximum $2,500 fine and one-year jail sentence.
“It conflicts with state law in at least eight different ways,” Chanay said. “The voters of Wichita who supported this ordinance, they may disagree with those laws, but they have no authority under the Kansas Constitution or statutes to exempt themselves.”
Dickgrafe said for 80 years Kansas has allowed cities to initiate legislation of the sort championed by the Marijuana Reform Initiative in Wichita.
“It’s important that these changes that were before the city council do not legalize marijuana,” she said. “They do not decriminalize marijuana. They create a new infraction for a certain group of people. The ordinance that was passed does not change the maximum penalty.”
The measure passed with backing by 54 percent of participating voters would diminish the criminal penalty for first-time offenders who are at least 21 years of age and discovered in possession of less than 32 grams of marijuana. Implementation of the approach was suspended pending outcome of Attorney General Derek Schmidt’s quick-strike attempt to void the ordinance.
In terms of federal law, marijuana is considered the equivalent of cocaine or heroin under the Controlled Substances Act. More than 20 states have adopted some form of marijuana consumption for medicinal purposes, but Colorado, Oregon, Washington and Alaska legalized recreational use of pot.
In addition to the baseline constitutional issue in Kansas, the Supreme Court justices delved into procedural matters that could prove fatal to the Wichita ordinance.
There is controversy about whether unconstitutionality of a single element of the ordinance renders the entire framework inoperable. Severability language in the ordinance suggested to Justices Lee Johnson and Marla Luckert that pulling out a lone troublesome element — a gag order on law enforcement officers performing reporting duties for these offenses — would compromise the entire ordinance.
Johnson said a reasonable person would assume any modification to the ordinance would send the measure back to the starting point.
“If you’re going to collect signatures from the public to propose something and you want to change that proposal, if it’s me, you come back and get my signature again,” Johnson said.
Dickgrafe argued special deference ought be given to citizen-led initiatives that were in substantial compliance with state law. If the courts were to find a couple of provisions of the ordinance to be in conflict with state law, she said, that shouldn’t undercut the clear will of local voters.
“That’s asking us to read an awful lot into that,” said Luckert. “We usually go with plain language. That’s not the plain language.”
Chanay said if one piece of the wall were to fall, the entire ordinance should be allowed to crumble.
“Everything has a nexus together,” Chanay argued. “We don’t think ... that this is severable. The entire ordinance needs to be found null and void.”
Justice Carol Beier said lack of evidence the ordinance was attached to petitions circulated and signed by Wichita residents stands as a “pretty glaring” violation of the process established in state law.
“How do we tell a technicality from a rule that needs to be abided by when they all look the same? Lawyers like to use the term technicality when they are confronted with a rule they don’t like or don’t like to apply,” Beier said.
Justice Dan Biles said there should be some “play in the joints” in regard to compliance because the legal system shouldn’t be eager to throw out work of “citizens mobilizing in order to move their government in certain directions.”
Chanay urged justices to decide the case based on core areas of constitutional conflict rather than technical matters because those flaws could be corrected and the question of sentencing in Wichita marijuana cases could promptly return to the Supreme Court.
In legal briefs, the state maintained Wichita voters had no wiggle room under the Kansas Constitution to undermine a criminal statute adopted by the Kansas Legislature and signed into law by a governor.
Advocates of the city ordinance contended possession of marijuana would remain illegal and punishable by sanctions that fell within the boundary established by state lawmakers.
Justice Caleb Stegall, the newest member of the state court, jumped on this point by noting local government home rule power authorized by state lawmakers had to be construed to give cities the greatest measure of self-determination.
“Is that sort of aspirational fluff or does it have an actual binding meaning on this court?” Stegall said.
Nick Schwien is managing editor at The Hays Daily News. firstname.lastname@example.org