State ex rel. Schmidt v. City of Wichita

367 P.3d 282, 303 Kan. 650, 2016 Kan. LEXIS 6
CourtSupreme Court of Kansas
DecidedJanuary 22, 2016
Docket113528
StatusPublished
Cited by91 cases

This text of 367 P.3d 282 (State ex rel. Schmidt v. City of Wichita) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Schmidt v. City of Wichita, 367 P.3d 282, 303 Kan. 650, 2016 Kan. LEXIS 6 (kan 2016).

Opinions

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)(l).

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.

[652]*652Facts 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)(l); 21-6611(b)(l).

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 afine 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 5.26.030for possession of drug paraphernalia, as defined by Section 5.25.005(f), [653]*653for 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 afine 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 tírese 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:

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Cite This Page — Counsel Stack

Bluebook (online)
367 P.3d 282, 303 Kan. 650, 2016 Kan. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-schmidt-v-city-of-wichita-kan-2016.