As more Kansas municipalities weigh the merits of decriminalizing or reducing penalties for marijuana possession, legislators in Topeka will be left with a choice of how to handle the issue amid a broader debate over whether the state should legalize cannabis.
Wichita became the first city in Kansas to repeal local laws on marijuana possession after a vote by the city council last month, though other cities have reduced penalties for possessing the drug.
The move underscores a conundrum faced by state and local governments across the country, with many cities opting to decriminalize or decline to prosecute marijuana possession even if as the drug remains illegal federally and in many states.
That is the case in Kansas, even as lawmakers have attempted to broker a deal on legalizing edible and topical forms of medical marijuana. Legislators are returning to Topeka for hearings on a potential way forward on the issue, though little has changed since an effort to legalize medical cannabis died in the 2022 session.
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The Wichita example, however, adds a new wrinkle to the debate.
The city was already handling minor marijuana cases in municipal court, but local officials said the hundreds of prosecutions per year was taxing resources and resulted in discrimination against residents of color.
“No one deserves a criminal record that follows them for their entire lives because they decided to use marijuana or THC products that are legal in every state that surrounds us,” Mayor Brandon Whipple told the Wichita Eagle.
Local enforcement could still arrest a person for possessing marijuana or use it as reason to search their property. But Sedgwick County District Attorney Marc Bennett said his office would not have the resources to prosecute most marijuana cases, though he did not take a position on the larger policy change.
At the state level, Attorney General Derek Schmidt’s office could step in and prosecute these cases, though he has not indicated if he will do so. Schmidt also could go to court to attempt to overturn the policy, something his office has done previously.
In 2015, voters in the city passed a ballot initiative to make possessing one gram of marijuana or less subject to a criminal infraction and a $50 fine, dramatically ramping down penalties.
Schmidt challenged the measure, arguing it conflicted with state law on controlled substances. And while the Kansas Supreme Court did not rule on that argument, they still tossed out the policy, saying the ballot initiative was not properly filed with the city clerk.
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But Wichita Councilmember Brandon Johnson said he hoped the city’s policy would nudge state lawmakers to take action.
“I haven’t had many people reach out in opposition,” Johnson said in an interview. “The majority of what I’ve heard was, ‘That’s a great step and we appreciate you all doing that and hope that the legislature will finally take some steps to at least to legalize medicinal marijuana.'”
Could other Kansas cities decriminalize marijuana?
It is likely too soon to say whether other local governments will follow Wichita’s lead but there appears to be some interest.
Spencer Duncan, a lobbyist for the Kansas League of Municipalities, said the group has heard from a few cities concerned about the impact of the Wichita vote, as well as those looking to duplicate it in their neck of the woods.
“Has it been some overwhelming (number)? No, it has not,” Duncan said.
Others have already taken action.
Lawrence in 2019 opted to reduce penalties for marijuana possession to a $1 ticket and a spokesperson for Douglas County District Attorney Suzanne Valdez said her office has continued a prior policy where criminal charges are not filed in simple possession cases.
And more could follow that lead.
“I think you’re going to start seeing more and more cities, maybe in the Johnson County area, Kansas City, Kan., maybe more progressive cities try to copy maybe either what the city of Lawrence did or the city of Wichita did,” said Rep. Nick Hoheisel, R-Wichita.
That conversation has already begun in the Unified Government of Wyandotte County/Kansas City, Kan. Local lawmakers there last week approved a resolution paving the way for a debate over limiting penalties for marijuana possession or, potentially, decriminalization.
Could lawmakers push back on Wichita marijuana decriminalization?
State lawmakers in the past have pushed back in the past when local governments have gone out on a limb by contradicting state or federal law.
In April, Gov. Laura Kelly signed legislation banning sanctuary cities in Kansas, a move targeted at blocking the implementation of a Wyandotte County ordinance that prohibits some local authorities from working with Immigrations and Customs Enforcement.
It is possible lawmakers could consider a similar measure on marijuana to pre-empt local changes, though Johnson argued it would set a bad precedent.
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He pointed to other municipalities across the state that had municipal codes conflicting with state law, such as allowing golf carts to be driven on public streets.
But Johnson acknowledged the Legislature could elect to step in or that a legal challenge might ensue.
“With the Legislature, you never know,” Johnson said.
Sen. Rob Olson, R-Olathe, chair of the Federal and State Affairs Committee, said Wednesday he was pleased with developments in figuring out a solution on medical marijuana.
Olson added he needed to do more research on the Wichita policy but said he had concerns.
Residents of Wichita, he said, could grow accustomed to the local policies and travel elsewhere in south-central Kansas and unwittingly be arrested for violating state law.
“That’s the stuff that always worries me when you don’t have uniformity,” Olson said.
Hoheisel echoed that he would like to see uniform state policy but didn’t want that to come at the expense of Wichita being able to pass the measures it wanted at a local level.
“I’m not a big fan of patchwork legislation throughout the state,” he said. “But I also understand that the City of Wichita has a right to create their own city ordinances and enforce them the way they see fit.”
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