State ex rel. Schmidt v. City of Wichita

• Decision Date: 22 January 2016
• Docket Number: No. 113,528.,113,528.
• Citation: 367 P.3d 282
• Parties: STATE of Kansas ex rel. Derek SCHMIDT, Attorney General, Petitioner, v. CITY OF WICHITA, Kansas, a Municipal Corporation, Respondent.
• Court: Kansas Supreme Court

367 P.3d 282

STATE of Kansas ex rel. Derek SCHMIDT, Attorney General, Petitioner,

v.CITY OF WICHITA, Kansas, a Municipal Corporation, Respondent.

No. 113,528.

Supreme Court of Kansas.

Jan. 22, 2016.

Jeffrey A. Chanay, chief deputy attorney general, argued the cause, and Derek Schmidt, attorney general, Dennis D. Depew, deputy attorney general, Lisa A. Mendoza, assistant attorney general, and Dwight R. Carswell, assistant solicitor general, were with him on the briefs for petitioner.

Sharon L. Dickgrafe, chief deputy city attorney, argued the cause and was on the brief for respondent.

The opinion of the court was delivered by NUSS

, C.J.:

This is an original action in quo warranto brought by the State on relation of the Attorney General for a writ declaring an ordinance of the City of Wichita (City) to be null and void. Relying upon the Kansas initiative and referendum statute, K.S.A. 12–3013

, the city council had submitted a general description of the proposed ordinance as a ballot question, which was approved by city electors during the April 2015 general election.

At the ordinance's core is a provision appearing to reduce the severity level of a first-offense conviction for possession of 32 grams or less of marijuana and/or related drug paraphernalia from a misdemeanor to an "infraction" when the offender is 21 years of age or older. A related provision substantially reduces the accompanying penalties.

The State asks this court to permanently prohibit the City from publishing, implementing, and enforcing the ordinance because the ordinance: (1) impermissibly conflicts with and is therefore preempted by uniform state law under the Home Rule Amendment to the Kansas Constitution, Article 12, § 5

(b); (2) was not adopted in accordance with procedures set out in K.S.A. 12–3013(a) ; (3) does not contain an ordaining clause as required by K.S.A. 12–3005 ; and (4) is essentially administrative in nature, which excludes it from the scope of the referendum and initiative process under K.S.A. 12–3013(e)(1).

We agree the ordinance was not enacted in accordance with procedures set out by K.S.A. 12–3013(a)

. Because this ruling effectively disposes of the case, we need not consider the State's remaining arguments. See Elkins v. Moreno, 435 U.S. 647, 661, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978) (courts avoid making unnecessary constitutional decisions). The writ of quo warranto is issued; the ordinance is null and void.

FACTS AND PROCEDURAL HISTORY

The principal facts are undisputed. Under the city's municipal code, Section 5.26.040(a) (2010) possession of marijuana and/or related drug paraphernalia has been classified as a misdemeanor punishable by a fine not to exceed $2,500 and/or up to 12 months' imprisonment in the Sedgwick County Jail. This version of the code has been consistent with state criminal statutes. See, e.g., K.S.A. 2014 Supp. 21–5706(c)(2)(A)

; 21–5709(e)(2)(B), (3); 21–6602(a)(1); 21–6611(b)(1).

On January 7, 2015, a group known as the Marijuana Reform Initiative (the Initiative) filed with the Wichita city clerk petitions containing thousands of signatures of purportedly qualified electors and proposing a change to the municipal code. The Initiative's proposal amends Section 5.26.040 of the code by repealing that entire section and adopting substitute provisions.

Subsection (a) of the proposed ordinance reestablishes the general rule, e.g., possession is a misdemeanor:

"(a) Except as provided at Subsections (b) and (c) herein, a violation of the provisions of this Chapter is a misdemeanor and, upon conviction, the sentence shall be a fine not to exceed two thousand five hundred dollars ($2,500.00), and/or imprisonment of up to twelve (12) months in the Sedgwick County Jail."

Subsections (b) and (c) purport to describe a reduced severity level and accompanying penalties for certain first-time possessors of marijuana and marijuana-related drug paraphernalia:

"(b) A conviction of any person twenty-one (21) years of age or older of Section 5.26.010 for possession of ... (32) grams or less of cannabis sativa L., or otherwise known as marijuana, as defined by Section 5.25.005(i), for the first offense, is an infraction and the sentence shall be a fine not to exceed fifty dollars ($50.00) and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed. For convictions under this Subsection for offenses in the Old Town Entertainment District, as defined by Section 5.05.020, the sentence shall be the mandatory minimum fine set forth at Section 5.05.030 and no incarceration, probation, nor any other punitive or rehabilitative measure, shall be imposed; however, pursuant [to] Section 5.05.030(b), the Court may order community service in lieu of mandatory minimum fine in accordance with the provisions thereof. Nothing in this Subsection shall be construed to restrict eligibility for diversion in lieu of further proceeding or deferred judgment pursuant Section 1.06.010 et seq.

"(c) A conviction of any person twenty-one (21) years of age or older of Section 5.26.030 for possession of drug paraphernalia, as defined by Section 5.25.005(f), for the first offense, involving cannabis sativa L., or otherwise known as marijuana, as defined by Section 5.25.005(i), is an infraction and the sentence shall be a fine not to exceed fifty dollars ($50.00) and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed. For convictions under this Subsection for offenses in the Old Town Entertainment District, as defined by Section 5.05.020, the sentence shall be the mandatory minimum fine set forth at Section 5.05.030 and no incarceration, probation, nor any other punitive or rehabilitative measure shall be imposed; however, pursuant [to] Section 5.05.030(b), the Court may order community service in lieu of mandatory minimum fine in accordance with the provisions thereof. Nothing in this Subsection shall be construed to restrict eligibility for diversion in lieu of further proceeding or deferred judgment pursuant Section 1.06.010 et seq. " (Emphasis added.)

Subsection (d) describes the intent of subsections (b) and (c):

"(d) The intent of Subsections (b) and (c) of this Chapter is to reduce first offense convictions pursuant Sections 5.26.010 and 5.26.030 for cannabis sativa L., or otherwise known as marijuana, as defined by Section 5.25.005(i), to be an infraction, and not a misdemeanor. For the purpose of determining whether a conviction is a first or subsequent offense under Subsections (b) and/or (c), any conviction or convictions resulting from the same incident occurring after July 1, 2015, shall constitute a first offense and any subsequent conviction or convictions occurring within one (1) year thereafter shall constitute a subsequent offense." (Emphasis added.)

Subsection (d) also describes other matters relating to these particular first-time offenders, especially limiting the referral of such charges by city law enforcement and city prosecutors. The subsection further redefines convictions of these first offenses for purposes of reporting to those law enforcement agencies maintaining criminal records and for later calculation of criminal histories for sentencing offenders:

"Nothing herein shall be construed to restrict law enforcement officers of the City of Wichita, Kansas, to complain of violations of offenses other than Subsections (b) and (c) of this Chapter. No law enforcement officer of the City of Wichita, Kansas, or his or her agent, shall complain of violations of these Subsections [b and c] to any other authority except the City Attorney of the City of Wichita, Kansas; and, furthermore, the City Attorney of the City of Wichita, Kansas, or any of his or her authorized assistants, shall not refer any said complaint to any other authority for prosecution. No convictions pursuant Subsections (b) and/or (c) of this Chapter shall be recorded as a misdemeanor to the Kansas Bureau of Investigation Central Repository or any other state or federal law enforcement reporting agency. " (Emphasis added.)

Subsection (e) provides that should the State ever reduce the penalties below what the City dictates for possession of marijuana and drug paraphernalia as described in subsections (b) and (c), the State's lower penalties shall prevail:

"(e) Should the State of Kansas enact lesser penalties than that set forth in Subsections (b) and (c) of this Chapter for possession of cannabis sativa L., or otherwise known as marijuana, as described therein, or possession of drug paraphernalia, as further described therein, then these Subsections, or relevant portions thereof, shall be null and void. The invalidity or unenforceability of any provisions of Subsections (b) and (c) shall not affect the validity or enforceability of other provisions thereof, which shall remain in full force and effect."

And subsection (f) provides for a mandatory evaluation of offenders under 21 years of age:

"(f) In addition to any other sentence authorized by this Chapter, any person convicted of having violated the terms of this Chapter, while under twenty-one (21) years of age, shall be ordered to submit to and complete a community-based alcohol and drug safety action program certified pursuant to K.S.A. 8–1008

and amendments thereto and to pay a fee for such evaluation. If the judge finds that the person is indigent, the fee may be waived."

The Initiative did not include a copy of this proposed ordinance when it filed its signed petition with the city clerk on January 7. Nor was the proposed ordinance fully set forth in the signed petition, which stated in relevant part:

"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 [by] the electors pursuant to the provisions of Chapter 25–3801 of the Kansas Statutes:

"Shall the following be adopted?

"AN ORDINANCE REDUCING THE PENALTY FOR FIRST OFFENSE

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