Kansas Attorney General Opinion 2015-004

March 5, 2015
ATTORNEY GENERAL OPINION NO. 2015- 4
The Honorable Mark Kahrs
State Representative, 87th District
State Capitol, Room 286-N
300 S.W. 10th Avenue
Topeka, Kansas 66612
The Honorable Steven R. Brunk
State Representative, 85th District
State Capitol, Room 285-N
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Constitution of the State of Kansas—Corporations—Cities’ Powers of
Home Rule.
Cities 	and 	Municipalities—Ordinances 	of 	Cities—Initiative 	and
Referendum 	Ordinances—Petition 	for 	Proposed 	Ordinances;
Requirements; 	Passage 	or 	Election; 	Form 	of 	Ballot 	Approval, 	effect;
Amendment or Repeal; Publication
Synopsis: 	A city would exceed the city’s home rule powers by adopting an ordinance
that is preempted because it conflicts with a uniform state criminal statute.
Thus, the ordinance would be void. 	Cited herein: K.S.A. 12-3013; 	K.S.A.
2014 Supp. 12-4106; K.S.A. 12-4111; 21-2501a; K.S.A. 2014 Supp. 21-
5102; 21-5705; 21-5706; 21-5709; 21-6602; 21-6611; 21-6810; K.S.A. 22-
2202; K.S.A. 2014 Supp. 65-4105; Kan. Const. Art. 2, § 17 and Kan.
Const. Art 12 § 5; 18 U.S.C. § 922; 27 C.F.R. § 478.11.
* 	* 	*

Representatives Kahrs and Brunk
Page 2
Dear Representatives Kahrs and Brunk:
As State Representatives for the 87 th and 85th Districts, respectively, you ask our
opinion whether the proposed amendments to Section 5.26.040 of the Code of the City
of Wichita, Kansas, would be preempted by state law because the amendments would
conflict with uniform state statutes. In our opinion, the answer is yes.
Background
K.S.A. 12-3013 prescribes the procedure that city electors may, by petition, initiate to
directly propose and enact local legislation independent of the local governing body. 	If
the petition is signed by the requisite number of qualified electors, the governing body
must either enact the ordinance without alteration or hold an election. 	If an election is
held and the majority of the electorate votes in favor of the proposed ordinance, the
ordinance becomes valid and binding without alteration. 1 	Such ordinance shall not be
repealed or amended except by a vote of the electors at a subsequent election or by the
governing body after passage of 10 years from the effective date. 2 	The initiative and
referendum process is not available for proposed ordinances that are administrative
ordinances, ordinances relating to a public improvement to be paid wholly or in part by
the levy of special assessments, or ordinances subject to referendum or election under
another statute.3
Attorney General opinions rely on the facts presented in the opinion request or obtained
from interested parties. 4 	You provided us a copy of a blank petition that included what
appears to be a copy of amendments proposed by the Marijuana Reform Initiative to
Section 5.26.040 of the Code of the City of Wichita, Kansas (hereafter, “proposed
ordinance”), which is file-stamped October 15, 2014. The petition was filed with the City
Clerk on January 7, 2015. 5 	The proposed ordinance was not included in or attached to
the petition filed with the City Clerk. 6 	On January 27, 2015, the City Council adopted
1 K.S.A. 12-3013(b) and (c).
2 K.S.A. 12-3013(c).
3 K.S.A. 12-3013(e)(1), (2), and (3).
4 We do not opine on whether the petition and proposed ordinance comply with the requirements of
K.S.A. 12-3013 and thus, whether the question may properly be placed on the ballot. However, because
the proposed ordinance was not filed with the petition, as required by K.S.A. 12-3013, we are unable to
confirm what ordinance language, if any, would be on the ballot. 	This filing deficiency suggests a
threshold procedural infirmity from the facts that are known to us. 	It also is unclear to us whether the
subject matter within the proposed ordinance is a legislative matter that may be proposed by initiative or
whether the process used was legally impermissible for the ordinance proposed. If the proposed
ordinance is determined to be administrative, it is not subject to initiative and referendum pursuant to
K.S.A. 12-3013(e)(1). 	We note that the proposed ordinance contains elements that appear to be
administrative in nature, such as the provisions regarding the reporting and handling of criminal justice
information.
5 Minutes, City of Wichita City Council Meeting, January 27, 2015.
6 Id.

Representatives Kahrs and Brunk
Page 3
Ordinance No. 49-936 to submit the ballot question to a vote of the citizens of the City of
Wichita. 7
The language presented to us from the petition circulated by the Marijuana Reform
Initiative and from Ordinance No. 49-936 adopted by the City is as follows:
SHALL THE FOLLOWING BE ADOPTED?
An ordinance reducing the penalty for first offense conviction for
possession of thirty-two (32) grams or less of criminal sativa l,
otherwise known as marijuana, and/or drug paraphernalia related
thereto, by persons twenty-one (21) years of age or older, to an
infraction with a fine not to exceed fifty dollars ($50.00).
YES 	NO
The language from the proposed ordinance is as follows: 8
SECTION 	5.26.040 	OF 	THE 	MUNICIPAL 	CODE 	OF 	THE 	CITY 	OF
WICHITA, KANSAS, SHALL BE REPEALED IN ITS ENTIRETY AND THE
SUBSTITUTE 	PROVISIONS 	SET 	FORTH 	BELOW 	SHALL 	BE
ADOPTED.
(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.
(b) 	A conviction of any person twenty-one (21) years of age or older of
Section 	5.26.010 	for 	possession 	of 	one 	[sic] 	(32) 	grams 	or 	less 	of
cannabis sativa L., or otherwise known as marijuana, as defined by
Section 5.25.005(i) [sic], 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
7 Id.
8 This language was provided to us with the opinion request, and we have compared it with language
provided to us at our request by the City of Wichita and also with language posted on the website for the
Marijuana Reform Initiative. 	All three versions appear to be identical; thus, we presume this is the
language that is in fact proposed for adoption by Wichita electors. However, we cannot confirm that as a
matter of law because no ordinance was filed with the petition as required by K.S.A. 12-3013.

Representatives Kahrs and Brunk
Page 4
rehabilitative measure, shall be imposed; however, pursuant [sic] 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 [sic] 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) [sic], 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. 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 [sic] 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 [sic] Section 1.06.010 et
seq.
(d) 	The intent of Subsections (b) and (c) of this Chapter is to reduce
first offense convictions pursuant [sic] 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) [sic], 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. 	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 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 [sic] 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.

Representatives Kahrs and Brunk
Page 5
(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.
(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.
Currently, Section 5.26.040 of the Code of the City of Wichita, Kansas, provides that a
conviction for possession of marijuana or of drug paraphernalia related to marijuana is a
misdemeanor punishable by a fine not to exceed $2,500 and/or imprisonment in the
county jail for up to 12 months. These crimes and penalties are parallel to those crimes
and penalties provided for in state statute.9
Preemption
The principle that cities cannot enact laws that contradict state law is found in the Home
Rule Amendment to the Kansas Constitution. 10 	The Home Rule Amendment grants
cities the power to enact legislation to govern local affairs, “subject only to enactments
of the legislature of statewide concern applicable uniformly to all cities [and] to other
enactments of the legislature applicable uniformly to all cities . . . .”11 	In addition, the
Home Rule Amendment states that city home rule powers “shall be liberally construed
for the purpose of giving to cities the largest measure of self-government.”12
Cities’ home rule power is not unlimited. “[H]ome rule power does not authorize cities to
act where the state legislature has precluded municipal action by clearly preempting the
field with a uniformly applicable enactment.” 13 Kansas courts have identified two means
by which a state statute may overrule a city’s home rule power: (1) if there is a conflict
9 K.S.A. 2014 Supp. 21-5706 and 21-5709.
10 Kan. Const. Art. 12, § 5.
11 Kan. Const. Art. 12, § 5(b).
12 Kan. Const. Art. 12, § 5(d).
13 Kansas City Renaissance Festival Corp. v. City of Bonner Springs, 269 Kan. 670, 673 (2000).

Representatives Kahrs and Brunk
Page 6
between the local regulation and a state statute; or (2) if the state legislature has
preempted the field of regulation. 14
An “[e]nabling act is uniformly applicable to all cities or counties if it authorizes all cities
or counties to perform certain acts. Such statutes are state law and preempt the field of
their 	application 	without 	use 	of 	preemptive 	language, 	unless 	there 	are 	express
exceptions in the statutes or unless the statutes pertain to police power regulations.” 15
By court-imposed exception to constitutional and statutory home rule, a “[m]unicipality
has the right to legislate by ordinary ordinance or resolution nonconflicting local police
power laws even though there are state laws on the subject uniformly applicable to all
municipalities.”16 The issue at the core of your question, therefore, is whether the
proposed ordinance, which relates to the city’s exercise of its police power, would
conflict with state law. 	If the proposed ordinance would be in conflict with state law,
then it is preempted and the city lacks power or authority to enact it.
A local ordinance is conflict preempted where it permits what the state statute forbids or
prohibits what the statute authorizes. 17 	The Kansas Supreme Court has found there is
no conflict between the provisions of a local ordinance and state law when the
ordinance is parallel or identical to the state law, 18 the ordinance supplements or adds
to the state law, 19 or the ordinance provides for standards of performance that are
higher than those set by state law. 20 In contrast, the Supreme Court has held that a city
cannot classify a crime as a misdemeanor in an ordinance when the Kansas Legislature
has classified the crime in state statute as a felony. 21
What is apparent from these cases is that uniform state law establishes a minimum
standard that must be met by the local ordinance if the city intends to use its police
power to exercise concurrent jurisdiction with the state. 	Where a city ordinance
provides a standard below the minimum standard set by the state, the ordinance is in
conflict with the state law and is invalid.
Drug laws, statutory powers and duties of law enforcement officers and criminal
information reporting statutes are plainly enactments of the legislature that are of
14 State ex rel. Kline v. Bd. of Comm’rs of Unified Gov’t of Wyandotte County/Kansas City, 277 Kan. 516,
526-27 (2004), citing City of Junction City v. Lee, 216 Kan. 495, 498-499 (1975) (superseded by statute
as stated in Blevins v. Hiebert, 247 Kan. 1 (1990)).
15 Blevins v. Hiebert, 247 Kan. 1, 11 (1990).
16 247 Kan. at 8 (emphasis added).
17 216 Kan. at Syl. ¶ 6.
18 City of Garden City v. Miller, 181 Kan. 360 (1957).
19 Hutchinson Human Relations Commission v. Midland Credit Management, Inc., 213 Kan. 308 (1973).
20 Leavenworth Club Owners Association v. Atchison, 208 Kan. 318 (1971).
21 See State v. Jenkins, 295 Kan. 431, 442 (2012) (a city cannot classify third and subsequent offenses
for theft as a misdemeanor where a state statute classifies such offenses as a felony) and City of Junction
City v. Cadoret, 263 Kan. 164, 170 (1997) (a city cannot classify third and subsequent offenses for driving
under the influence as a misdemeanor where a state statute classifies such offenses as a felony).

Representatives Kahrs and Brunk
Page 7
statewide concern and that apply uniformly to all cities. 22 	In our view, the proposed
ordinance would impermissibly conflict with uniform state law as discussed below.
I. 	Possession of Marijuana
K.S.A. 2014 Supp. 21-5706(b)(3) provides that it is unlawful for any person to possess a
controlled substance, including “any hallucinogenic drug designated in subsection (d) of
K.S.A. 65-4105.” 	Marijuana is such a controlled substance. 23 	The first conviction for
possession of marijuana is a class A nonperson misdemeanor offense. 24 	A class A
nonperson 	misdemeanor 	is 	punishable 	by 	a 	fine 	not 	to 	exceed 	$2,500 25 	and/or
imprisonment in the county jail for up to 12 months.26
In its current form, Section 5.26.040(a) is parallel to K.S.A. 2014 Supp. 21-5706 and
thus is valid. However, Section (b) of the proposed ordinance would eliminate the
parallel between state law and the city ordinance by decreasing the penalty for the first
offense conviction for possession of 32 grams or less of Cannabis sativa L. by any
person 21 years or older and by changing the penalty from a misdemeanor to “an
infraction” punishable only by “a fine not to exceed fifty dollars ($50.00),” an amount
less than what is authorized by state statute. 	Section (b) of the proposed ordinance
would conflict with state law in at least four ways.
First, the proposed ordinance impermissibly attempts to lower the penalty established
by state law for certain illegal conduct. The Kansas Supreme Court in State v. Jenkins27
held that cities can adopt an ordinance relating to a local police power, even though
there is a state law on the subject uniformly applicable to all municipalities, as long as
the ordinance does not conflict with the state statute. 	In Jenkins, the Court found a
conflict when a city ordinance classified the offense as a misdemeanor, but the
legislature had classified the crime as a felony. 28
The permissible classifications of crimes are established by state law. 	Under the
Kansas Criminal Code, a crime is defined as:
An act or omission defined by law and for which, upon conviction, a
sentence of death, imprisonment or fine, or both imprisonment and fine, is
22 See Kan. Const. Art. 2, § 17 which provides that all laws of a general nature shall have a uniform
operation throughout the state; Blevins v. Hiebert, 247 Kan. 1, 11 (1990).
23 K.S.A. 2014 Supp. 65-4105(d)(16).
24 K.S.A. 2014 Supp. 21-5706(c)(2)(A).
25 K.S.A. 2014 Supp. 21-6611(b)(1).
26 K.S.A. 2014 Supp. 21-6602(a)(1).
27 295 Kan. 432, 442 (2012).
28 Whether the Jenkins opinion relied on the fact that the city did not have jurisdiction over the felony
offense is irrelevant here. 	The municipal court has jurisdiction to hear and determine cases involving
violations of ordinances of a city, including concurrent jurisdiction over felony possession of marijuana.
See K.S.A. 2014 Supp. 12-4104.

Representatives Kahrs and Brunk
Page 8
authorized or, in the case of a traffic infraction or a cigarette or tobacco
infraction, 	a 	fine 	is 	authorized. 	Crimes 	are 	classified 	as 	felonies,
misdemeanors, traffic infractions and cigarette or tobacco infractions. 29
The criminal code does not recognize the general term “infraction” as a classification,
only “traffic infraction” and “tobacco infraction.” Thus, the conflict between the proposed
ordinance and state law is even more acute than the conflict found impermissible by the
Supreme Court in Jenkins. 	In Jenkins, the Supreme Court rejected a city’s attempt to
reclassify certain criminal conduct from one category recognized by state law, a felony,
to a lesser category recognized by state law, a misdemeanor. But here, not only would
the proposed ordinance recategorize certain criminal conduct to a lesser category, but
the lesser category it proposes – “an infraction” – is not recognized by state law.
Because Kansas does not authorize the classification of “an infraction” generally, nor
specifically for the crime of possession of marijuana, the proposed amendment to
Section 5.26.040 would conflict with Kansas law.
That conclusion is buttressed because the proposed reclassification would reduce the
available penalty by eliminating the potential for jail time and lowering the amount of the
fine to less than what is established by state law. 	The elimination of jail time as a
sentencing option and the reduction in the potential fine would not supplement or add to
the state law but instead would lower the standard established by state law. Thus, we
believe 	that 	where 	the 	legislature 	classified 	certain 	criminal 	acts 	as 	felonies 	or
misdemeanors, a city ordinance conflicts with state law when it attempts to reclassify
the same acts to be infractions subject to lesser penalties.
Further, because the proposed ordinance does not treat a first offense conviction as a
misdemeanor, it would have the effect in many cases of indirectly reclassifying conduct
that currently is a felony under state law – subsequent convictions for possession of
marijuana – as a lesser offense. 	This effect results from the requirement in the
proposed ordinance that a first conviction for marijuana possession may be counted as
a prior conviction in fewer circumstances than under state law. 	The effect is that at
least 	one 	additional 	conviction, 	beyond 	the 	requirements 	of 	state 	law, 	would 	be
necessary before an individual could be convicted of felony possession of marijuana. In
this manner, the reclassification in the proposed ordinance undermines the state felony
statute by causing certain repeat conduct that currently is punishable as a felony to
instead be punishable only as a lesser offense, even under state law. This provision is
not parallel to but instead is below the standard set by the state, and thus there is a
conflict that precludes municipal action.
Second, to the extent subsection (d) of the proposed ordinance attempts to create a
one-year decay period that would redefine a second conviction one year or more after
the first offense conviction so that it is counted only as another first conviction, such
attempt would be impermissible as conflicting with K.S.A. 2014 Supp. 21-6810(d)(3)(A).
State law recognizes no such decay factor for prior convictions. 	Because the provision
29 K.S.A. 2014 Supp. 21-5102.

Representatives Kahrs and Brunk
Page 9
would make it possible to have numerous “first convictions” for possession of marijuana,
as long as each conviction is spaced more than one year apart from the prior conviction,
an 	individual’s 	criminal 	history 	potentially 	would 	never 	accumulate. 	This 	would
undermine the provisions of state law that provide for increasing penalties for repeat
offenses for the crime of possession of marijuana, and ultimately would undermine
felony provisions of state law that would attach (without the decay period) to subsequent
convictions for possession of marijuana, regardless of the timing.
Third, the ordinance proposes to establish an amount of marijuana as the demarcation
for classification as an “infraction” rather than a misdemeanor, effectively adding an
additional factual element the prosecution must prove. 	Currently, possession of a
specific amount of marijuana is not required to be alleged or proven by the prosecution
because it is not an element of the crime in either the current ordinance or in state law.
Whereas possession of a small amount of marijuana is a misdemeanor under state law
and must be considered and scored in criminal history pursuant to K.S.A. 2014 Supp.
21-6810(d)(5), the proposed ordinance would reclassify the possession of that same
amount of marijuana, up to 32 grams, as an infraction.
The statute and the ordinance would no longer be parallel, and the ordinance would
conflict with state law since the ordinance is seeking to remove a crime that must be
considered and scored for criminal history purposes. 	It would undermine the city’s
jurisdiction over the prosecution of felony possession of marijuana under K.S.A. 2015
Supp. 12-4104(a)(5) or the state’s prosecution for the same under K.S.A. 2014 Supp.
21-5706(b)(3) because the criminal history score would be inaccurate in the event of
any subsequent convictions for possession of marijuana.
Fourth, the ordinance proposes to impose an age restriction by allowing persons 21
years or older to receive a more lenient sentence. Under state law, adult convictions do
not require a specific age to be alleged or proven in a prosecution for possession of
marijuana. 	The addition of this age factor appears to be another way to prevent the
attachment of criminal history as stated above. 	Again, the statute and ordinance would
no longer be parallel, and the ordinance would allow conduct that state law prohibits
and undermine the state system of collecting accurate criminal history in order to
enhance the penalties for recidivist marijuana possession convictions accordingly.
In our opinion, any one or more of the above conflicts between the proposed ordinance
and state law would result in conflict preemption of the proposed ordinance, rendering it
void.
II. 	Possession of Drug Paraphernalia related to Marijuana
K.S.A. 2014 Supp. 21-5709(b)(2) makes it unlawful for any person to use or possess
with intent to use any drug paraphernalia to “store, contain, conceal, inject, ingest,
inhale or otherwise introduce a controlled substance into the human body.” 	The first

Representatives Kahrs and Brunk
Page 10
and subsequent convictions of possession of paraphernalia are class A nonperson
misdemeanor offenses. 30
In its current form, Section 5.26.040(a) of the Code of the City of Wichita, Kansas, is
parallel to K.S.A. 2014 Supp. 21-5709 and thus is valid. 	However, Section (c) of the
proposed 	ordinance 	would 	eliminate 	the 	parallel 	between 	state 	law 	and 	the 	city
ordinance by decreasing the penalty for the first offense conviction for possession of
drug paraphernalia involving Cannabis sativa L. by any person 21 years or older. If the
proposed ordinance were adopted by the electors in Wichita, Section 5.26.040 would be
amended so that a first conviction of the offense as redefined by the proposed
ordinance would be “an infraction” punishable by “a fine not to exceed fifty dollars
($50.00).” Section (c) of the ordinance would conflict with state law in at least two ways.
First, the proposed ordinance impermissibly attempts to lower the penalty established
by state law from a class A misdemeanor to an infraction. 	In accord with the analysis
above, the Kansas Criminal Code does not 	recognize the term “infraction” as a
classification in this context. 	An ordinance that purports to lower the classification of a
crime below that set by the state law is in conflict with state law and is void.
Additionally, such classification conflicts with state law because it lessens the potential
penalty from the standard that is provided for by state law.
Second, the proposed ordinance singles out persons 21 years or older to receive a
lesser penalty for a conviction, which would render the ordinance no longer parallel to
state law. 	As stated above, a city ordinance cannot classify the same acts to be a
lesser offense than provided for in state law without causing a conflict. 	This proposed
reclassification appears to be another way to prevent attachment of criminal history
which is required to be considered and scored pursuant to K.S.A. 2014 Supp. 21-
6810(d)(5).
Either one of the above conflicts between the proposed ordinance and state law would
result in conflict preemption of the proposed ordinance, rendering it void.
III. Duties of Law Enforcement Officers to Enforce State Law
Section 	(d) 	of 	the 	proposed 	ordinance 	proposes 	to 	prohibit 	City 	of 	Wichita 	law
enforcement officers from complaining “of violations of these Subsections to any other
authority except the City Attorney of the City of Wichita, Kansas.” That de facto gag rule
for Wichita police officers, if enacted, would directly conflict with the duties of all Kansas
law enforcement officers, including those employed by the City of Wichita, as set forth in
state statute.
30 K.S.A. 2014 Supp. 21-5709(e)(3).

Representatives Kahrs and Brunk
Page 11
K.S.A. 12-4111 provides:
The governing body [of a city] may employ law enforcement officers who
shall have power to execute all process issued by any municipal judge
within the state and delivered to him or her for that purpose, to detain
persons, to place them in custody, and to arrest them, pursuant to the
terms of this act.
The powers of law enforcement officers with respect to the code of
criminal procedure shall not be reduced by this code. 31
The very definition of a "law enforcement officer" under Kansas law is, inter alia, a
person who "make[s] arrests for violation of the laws of the state of Kansas . . . ." A city
ordinance that purports to prohibit a "law enforcement officer" from enforcing state law
would be in clear conflict with the K.S.A. 22-2202(13), which defines "law enforcement
officer" as follows:
“Law enforcement officer” means any person who by virtue of office or
public employment is vested by law with a duty to maintain public order or
to make arrests for violation of the laws of the state of Kansas or
ordinances of any municipality thereof or with a duty to maintain or assert
custody or supervision over persons accused or convicted of crime, and
includes court services officers, parole officers and directors, security
personnel and keepers of correctional institutions, jails or other institutions
for the detention of persons accused or convicted of crime, while acting
within the scope of their authority.32
Kansas law enforcement officers, including those employed by the City of Wichita, have
a legal duty to enforce state law, which necessarily includes the authority to present
cases for prosecution when appropriate to state authorities. 	A local ordinance, such as
the proposed ordinance, that proposes to direct law enforcement officers to abandon
that statutory duty is in conflict with state law and void.
IV. Offense Recording and Reporting by City Police
Section 	(d) 	of 	the 	proposed 	ordinance 	also 	would 	prohibit 	City 	of 	Wichita 	law
enforcement officers from recording a misdemeanor for a conviction of section (b) or (c)
with any state or federal law enforcement reporting agency.
An ordinance which purports to prohibit a law enforcement officer from recording or
reporting a misdemeanor for a conviction of section (b) or (c) of the proposed ordinance
31 Emphasis added.
32 Emphasis added.

Representatives Kahrs and Brunk
Page 12
to any state or federal law enforcement reporting agency would be in clear conflict with
K.S.A 21-2501a which provides:
(a) All law enforcement agencies having responsibility for law enforcement
in any political subdivision of this state, on forms approved by the attorney
general, shall maintain a permanent record of all felony and misdemeanor
offenses reported or known to have been committed within their respective
jurisdictions.
(b) All law enforcement agencies having the responsibility of maintaining a
permanent 	record 	of 	offenses 	shall 	file 	with 	the 	Kansas 	bureau 	of
investigation, on a form approved by the attorney general, a report on
each offense for which a permanent record is required within 72 hours
after such offense is reported or known to have been committed.
By prohibiting City of Wichita law enforcement officers, and/or the Wichita Police
Department, from fulfilling statutory obligations to report crimes committed in the city,
the proposed ordinance would undermine the purpose of the state statute described
above, which is to ensure the accurate compilation of criminal justice information in
Kansas. 	The resulting inaccuracy injected into criminal history record information
because of the reporting ban would cause other significant problems in addition to
future sentencing inaccuracies. 	We do not attempt to discern them all here, but one
example would be the effect on prosecutions under 18 U.S.C. § 922(g)(3), the federal
law 	prohibiting 	certain 	marijuana 	users 	from 	possession 	of 	any 	firearms 	or
ammunition. 33
The proposed ordinance would conflict with and undermine state law and, thus, would
be void.
V. Reporting of Offenses by Municipal Judge
Additionally, the municipal judge is under a separate duty, pursuant to K.S.A. 12-
4106(e), to ensure that “information concerning dispositions of city ordinance violations
that result in convictions comparable to convictions for offenses under Kansas criminal
statutes is forwarded to the Kansas bureau of investigation central repository. This
information shall be transmitted, on a form or in a format approved by the attorney
general, within 30 days of final disposition.”
33 18 U.S.C. § 922(g)(3) provides, 	“It shall be unlawful for any person 	who is an unlawful user of or
addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21
U.S.C. 802) to ship or transport in interstate or foreign commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.” 	See also 27 C.F.R. § 478.11, which describes the
meaning of “unlawful user of or addicted to any controlled substance.”

Representatives Kahrs and Brunk
Page 13
Subsection (d) of the proposed ordinance states, in pertinent part:
No convictions pursuant [sic] 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.
The proposed ordinance would improperly redefine conduct made criminal by state law
so that it is no longer “comparable to convictions for offenses under Kansas criminal
statutes.” 	In so doing, it would undermine the purpose of the state statutory system of
reporting, which is to ensure the accurate compilation of criminal justice information in
Kansas. A city ordinance that purports to prohibit, either directly or by such redefinition,
a municipal judge from making a report as required by K.S.A. 2014 Supp. 12-4106(e)
would be in clear conflict with the state law and would be void.
Conclusion
Based upon the above analysis, we conclude that a court would find the proposed
ordinance void because it would conflict with uniform state laws in numerous ways. 	In
our opinion, even if the ordinance has been properly placed upon the April ballot – and
we are unsure that it has been 34 – a public vote to adopt it would have no legal force or
effect.
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
34 See footnote 4 above.