The Kansas Supreme Court released their ruling this morning in the case of Schmidt versus the City of Wichita that challenged the validity of the City of Wichita’s April 2015 ballot initiative to reduce the penalty for first-offense conviction for possession of small amounts of marijuana and/or related paraphernalia. The justices ruled the ballot initiative invalid saying the petitioners failed to technically follow all steps in the recall petition process. The justices avoided ruling on the more substantive constitutional issue of whether the City of Wichita had the right to adopt a law that was in conflict with a similar state statute. A ruling on the later would have had statewide consequences.

The technicality identified by Schmidt and ruled on by the justices was the failure of the petition drive organizers to turn in a copy of the proposed ordinance when they submitted the petitions to the City Clerk. This part of the process is important, and required, said the justices, because it gives citizens and the city council a way to review all of the changes proposed by the ballot initiative. Only a summary statement of the ordinance changes was included on the circulated petitions.

After the justices ruled the process outline in the statute was not followed fully, the justice refused to consider the major constitutional issue. In their opinion, they said ruling on the constitutional issue, after the petition was found lacking would mean issuing an advisory opinion, something the court does not do.

The justices wrote, “to instead consider the substantive constitutional issue first—followed by a decision for the State on procedural grounds—could result in a mere advisory opinion on constitutionality, i.e., because the procedural issue alone would have been determinative of the case. Kansas courts do not issue advisory opinions.”

On April 7, the citizens of Wichita approved the ballot initiative, 54% to 45%, and according to the statute, the City Council would have to adopt the ordinance as approved. However, Kansas Attorney General Dereck Schmidt immediately moved to prohibit the City from implementing or enforcing the ordinance. In his case filing, Schmidt pointed out several issues of concern. Initially the City and representatives of MRI-ICT were concerned by what they thought was the heart of the challenge, whether the Home Rule Amendment to the Kansas Constitution preempts the City of Wichita from passing an ordinance in conflict with state law. The procedural issue was seen as a secondary and minor challenge. However in the end, the procedural challenge became the only issue the justices considered.

Two justices, Dan Biles and Lee Johnson wrote dissenting opinions. While both agreed the petition drive was flawed technically, Biles was particularly upset by the justice’s in action on the constitutional issue.

“Both the Attorney General and the City of Wichita have compelling interests in knowing much more than this court is telling them about how this proposed ordinance squares with our constitution and statutes. Likewise, Wichita voters should know whether the results of any future efforts on this topic may be carried out by their city officials through a local ordinance or if they must redeploy to the legislature to pursue a change in state law. With today’s result they are instead left with a judicial version of Blind Man’s Bluff,” wrote Biles.

Janice Bradley, a member of MRI-ICT the group that spearheaded the petition drive, agrees. The group is left wondering how to move forward. Bradley said the group will meet to consider their next steps. However, with the citizen’s support for a reduction in the penalties, she hopes MRI-ICT and the citizens of Wichita can count on the Wichita City Council to actively pursue ways to implement the will of the citizens.

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