HomeMy WebLinkAbout29. 17-584 REVISED
NOVEMBER 28, 2017 17-584 RESOLUTION
(CARRIED 7-0 LOST LAID OVER WITHDRAWN )
PURPOSE: RECEIVE & FILE A PETITION FOR DIRECT LEGISLATION TO
REDUCE THE FORFEITURE FOR POSSESSION OF MARIJUANA
TO $25
INITIATED BY: CITY ADMINISTRATION
WHEREAS, a petition for direct legislation seeking to reduce the forfeiture for
possession of marijuana to $25 was received by the Office of the City Clerk on Monday,
November 6, 2017; and
• WHEREAS, the City Clerk has reviewed the petition and determined that the
petition filed is seeking to reduce the forfeiture amount for first offense possession
of marijuana to $25 and that the petition contained a total of 4,520 signatures; 609 were
disqualified;246 signatures are correctable;leaving a valid total number of 3,778 signatures;
WHEREAS, State statutes require 3643 valid signatures for a direct legislation
petition; and
WHEREAS, the petition seeks to repeal an existing ordinance in the City of Oshkosh
Municipal Code already regulating first offense possession of marijuana and establishing
the forfeiture for such offense and is therefore not a proper subject for direct legislation.
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh that the proper City officials are authorized and directed to receive and place the
petition for direct legislation on file and to take no further action thereon.
• Indicates Revision
TO: Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: November 20, 2017
RE: Resolution to Receive and File a Petition for Direct Legislation Creating Section
17-48 of the Oshkosh Municipal Code Regarding Marijuana Possession
SUMMARY
At the November 2811, Council meeting, Council will consider a resolution to receive and file a
petition for direct legislation which seeks to reduce the forfeiture for first offense marijuana
possession. Staff has reviewed the petition and at this time is recommending that the Council
simply receive and file the petition because the petition seeks to repeal/amend an existing city
ordinance which is not a permitted subject for direct legislation.
Although I am recommending that the Council neither adopt the ordinance in the form
submitted nor submit it to the electors as a direct legislation on the spring election, if the Council
would like to consider the reduction of the forfeiture amount, the Council could direct staff to
pursue one of the following options:
• draft an appropriate ordinance for future Council consideration to reduce the forfeiture
for first offense marijuana possession
• prepare an advisory referendum question regarding reducing the forfeiture for first
offense marijuana possession
Should the Council wish to pursue either of these options it would be appropriate to either
request that an item be placed on a future agenda for these purposes or to move to amend the
proposed resolution to direct staff to take one of those actions in addition to receiving and filing
the petition. If anyone has questions about the procedure or wording for such an amendment,
please feel free to contact our office and we will work with you on an appropriate motion.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
BACKGROUND
A petition for direct legislation pertaining to the forfeiture for first offense marijuana possession
was submitted to the City Clerk's office on Monday, November 6�11. By statute, the City Clerk
must within fifteen (15) days of the submittal of the petition determine whether the petition is
sufficient and whether the proposed ordinance or resolution is in proper form. These
determinations relate primarily to the form and format of the petition and the validity and
sufficiency in number of the signatures. In addition to those items that fall within the review of
the City Clerk, the City Attorney's office reviews the petition for compliance with the law.
A petition seeking to reduce the forfeiture for first offense marijuana possession was submitted
by the same or a similar group last year. In that case, the Council received and filed the petition
but took no further action because of deficiencies in its form, format, and compliance with the
law. The problems included that several different versions of the petition were submitted, issues
with regard to the drafting of the petition and the clear intention of the petition to repeal an
existing ordinance making the petition an improper subject for direct legislation. Although we
discussed the direct legislation requirements at that time, I will again briefly review them below.
ANALYSIS AND RECOMMENDATION
Legal Requirements for Direct Legislation
In Wisconsin direct legislation petitions are governed by section 9.20 of the Wisconsin Statutes
which provides that a number of electors equal to at least 15 percent of the votes cast for
governor at the last general election within a city may petition requesting that an attached
ordinance or resolution, without alteration, either be adopted by the common council or be
referred to a vote of the electors. When the original or amended petition is found to be sufficient
and in proper form, the city clerk shall state such upon a certificate attached to the petition and
forward the petition to the common council. Section 9.20(4) directs that the common council
"shall, without alteration, either pass the ordinance or resolution within 30 days following the
date of the clerk's final certificate, or submit it to the electors at the next spring or general
election, if the election is more than 6 weeks after the date of the council's ... action on the
petition or the expiration of the 30 -day period, whichever first occurs." Measures adopted by
direct legislation may not be repealed or amended for a period of two (2) year after their
adoption.
City Hall, 215 Church Avenue P.O. Box 1 130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
While this section of the statutes is written so that the Council is apparently faced with only two
choices, to adopt the ordinance/resolution or forward it to the voters, the Wisconsin Supreme
Court has carved out certain exceptions to this duty. The Court has concluded that, under some
circumstances, a city council may properly refuse to either pass the requested legislation or
submit it to the electors. Direct legislation, in addition to the requirements of the statutes: 1)
must be legislative as opposed to administrative or executive in character; 2) cannot repeal an
existing ordinance; 3) may not exceed the legislative powers conferred upon the governing
municipal body; and 4) may not modify statutorily prescribed procedures or standards. If the
proposal fails to meet one or more of these criteria, the common council may properly refuse to
act upon the petition.
Analysis of the Current Petition(s)
The City Clerk has calculated that 3643 valid signatures would be required under the statutes to
require action on a petition for direct legislation.
The City Clerk's office has determined that there are 3532 valid signatures on the petition. The
Clerk has also determined that there are 379 correctable signatures. The City Clerk has provided
her certification and petitioners have until Monday, November 27f, to make corrections. Staff
will update Council prior to Tuesday's meeting on the status of the corrections.
Sufficiency of the Petition(s) / Recommendation for Non -action
As noted above while the Statute directs that a Council presented with a valid petition shall do
one of two things, adopt the ordinance/resolution or forward it to the voters, the Wisconsin
Supreme Court has carved out certain exceptions to this duty. Direct legislation, in addition to
the requirements of the statutes: 1) must be legislative as opposed to administrative or executive
in character; 2) cannot repeal or amend an existing ordinance; 3) may not exceed the legislative
powers conferred upon the governing municipal body; and 4) may not modify statutorily
prescribed procedures or standards. If the proposal fails to meet one or more of these criteria,
the common council may properly refuse to act upon the petition.
Similar to the petitions submitted last year, the current petition indicates a broader attempt "to
decriminalize marijuana possession" and attempts to repeal and replace an existing ordinance.
The determination whether or not to "decriminalize marijuana possession" is not within the
authority of a municipality and would be more properly directed to the State
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
legislature. The City of Oshkosh already has in place an ordinance regulating marijuana
possession that is non -criminal in nature. Further, the adoption of any ordinance relating to a
criminal charge doesn't require law enforcement to write offenses as ordinance violations.
Officers may also refer such offenses for criminal charges. In addition, the ordinances do not
apply to offenses occurring on University of Wisconsin property which may fall under the
jurisdiction of the University Police Department.
With regard to changing the penalty amount, the petitioners appear to be attempting to avoid a
determination that this is an improper subject for direct legislation because it is repealing an
existing ordinance by creating a separate penalty section in addition to the already existing
section without specifically saying that they are repealing the existing ordinance.
Adoption of the ordinance as proposed would create a situation where the municipal code
would contain two conflicting penalties for the same violation. While the petitioners may be
attempting to argue that they are not in fact repealing the existing code section because they are
simply creating a second (conflicting) section, the clear intention of the petition is to repeal the
current code section.
The intent of the petition is to reduce the current forfeiture amount for a first violation of the
ordinance prohibiting the possession of marijuana from the current $325 plus costs to $25 plus
costs. The proposed ordinance creates a new section within Article VI of Chapter 17, the
penalties article of that chapter.
In Section 2 of the proposed ordinance petitioners state "Except as specifically modified by this
ordinance, the Oshkosh Municipal Code shall remain in force and effect as originally adopted
and previously amended." The petitioners, therefore, admit that they are changing an existing
ordinance. The petition then modifies the ordinance by stating: "Notwithstanding penalties
contained elsewhere in Article VI, any person who possesses 25 grams or less of marijuana, in
violation of Section 17-1 or Section 17-2, shall be fined no more than twenty-five dollars ($25.00)
for the first offense ..." In other words, notwithstanding the current penalties specified in the
existing 17-46 and 17-47 of the Municipal Code for the possession of marijuana, a person
convicted of a first offense for possession of marijuana would be subject to a new forfeiture
amount of twenty-five dollars ($25.00). The petitioners are pretending not to repeal the existing
forfeitures when they, in fact, are doing just that. The proposed ordinance will change the
existing penalties sections as they relate to first offenses for marijuana possession.
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
While petitioners attempt to circumvent the limitations on direct legislation, the proposed
ordinance would effectively repeal existing legislation and therefore is not a proper subject for
direct legislation.
Because the petition for direct legislation repeals/amends an existing municipal ordinance which
is not permitted by state law, I recommend that the Council adopt the proposed resolution
simply receiving and filing the petition. As noted above, should the Council wish to amend the
ordinance or set this matter for an advisory referendum, it would be appropriate to either amend
the resolution or request the matter be placed on a future council agenda for consideration.
Res e;Lorenson
ully Sub ' ted,
City Attorney
Approved:
Mark A. Rohloff
City Manager
City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us
VIA IN-PERSON
STATE OF WISCONSIN }
COUNTY OF WINNEBAGO) SS
CITY OF OSHKOSH )
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, WI 54903-1130
PAMELA R. UBRIG
Clty Clerk
ANGELA J. JOECKEL
Deputy City Clerk
EMILY E. KARL
Election Aide
I, Pamela R. Ubrig, City Clerk for the City of Oshkosh, Winnebago County,
Wisconsin, do hereby certify that I have examined the attached petition and to the
best of my ability and knowledge have determined the following:
1. A minimum of 3,643 signatures are required to meet 15% of the 2014
Governor's Election. A total of 4,520 signatures were filed on
November 6, 2017; 609 signatures were disqualified; 379 signatures
are correctable; leaving an insufficient total number of 3,532 signatures.
2. One hundred and twenty one (121) pages of the said petition were
returned to Mark Kelderman on November 17, 2017. These pages
reflect the necessary corrections (signatures/dates) that can be
corrected. Corrections made on said pages of petition along with
affidavits must be submitted to Clerk within 10 days for the petition to
be further considered.
3. The Petition for Direct Legislation used the proper form, the City Clerk's
Office makes no interpretation as to whether the subject matter of the
petition is proper for direct legislation.
Witness my hand and the corporate seal of the City of Oshkosh this 17th day of
November, 2017.-- -, 1
PAMELA R. UBRIG, City Clerk
City of Oshkosh, Winnebago County
City of Oshkosh Ordinance No.
AN ORDINANCE CREATING SECTION 17-48 OF THE OSHKOSH MUNICIPAL
CODE REGARDING MARIJUANA POSSESSION
WHEREAS, Section. 17-46(F) of the Oshkosh Municipal Code currently siibjects any person
who is convicted for possessing 25 gravis or less of marijuana to a fine that is trot less than Three
Hundred Twenty -Five Dollars ($325.00) and not more thaft Five Hundred Dollars ($5.00.00).
WHEREAS, as a result of a petition signed by local conitnunity members and residents, the
Common Councilfinds it necessary to create Section 17-48 to decriminalize marijuana
possession.
NOW, THEREFORE';, the Common Council of Oshkosh DO HEREgy ORDAIN AS
FOLLOWS:
Section 1. "Sec. 17-48 — Penalty for First Offense Possession of Marijnaua" is created to
read as follows:
"Notwithstanding penalties contained elsewhere in Article VI, any person who possesses
25 grams or less of marijuana, in violation of Section 17-1 or Section 17-2, shall be .fined
no snore than twenty-five dollars ($25.00) for the first offense, together with the costs of
prosecution, and in default of payment thereof by suspension of operator's license for a
period not exceeding 60 months or imprisonment not exceeding six (6) months,"
Section 2. E�ccept as specifically modified by this ordinance, the Oshkosh Municipal Code
shall remain in force and effect exactly as originally adopted and previously amended.
Section 3. This ordinance shall take effect and be in frill force and effect from and after its
passage and publication,
Section 4. SEVERABILITY, If a court of competent jurisdiction adjudges any section,
clause, provision, or portion of this ordinance unconstitutional or invalid, the remainder of
this ordinance shall not be affected thereby.
CITY OF OSHKOSH
{07346469.DOCX.2}
PETITION FOR DmECT LF GisLA.TioN �r
I ie� el.e.cfior of the (city or v(Iiage) of O Sh �� O SN-*)
, request that the attached proposed (ordin4nce or resolution),
elther be adopted by the (c.o.rhmon council -or Village: board) or referred to a vote of�he:electors p,ursuant to the provisions of§_9.20, Wis. Stats.
POST OFFICE.ADDRES5 WHEN DIFFERENT THAN MUNICIPALITY IS NOT SUFFICIENT. THE.NA,ME OF THE MUNICIPALITY OF R.'ESiDENCE MUST ALWAYS Sl= LISTED'.
SIGNA-rURES'QF ELECTORS PRINTED NAME OF ELECTORS
STREET & NUMBER OR RURAL ROUTE
Rural address must also include box or fire no.
MUNICIPALITY OF RE51DENCE
Indicate City -or Village
DATE OF
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.Certification of Circulator
certify: I reside at j N. Qi n S-�• AP - P- - A
(Name of cirdulator) (CItculato.r's,residehce-Include number, street, and municipality)
I further certify l am either a qualified elector of Wisconsin, ora U.S. pltizeq, age•Sa or'older who,9f I were a resident ofth(s state, would not be disquBllfled from voting under Wis, Stat. § 6.03. 1 personally circulated tt
petition for difect legis(atlon and personaliy dbtalned *each. oftlie'signatutes an this petltton, i know -that thesigners are e(ectors,of the municipality listed above, I knowthat each person sighed the paperwlth full knowled'[
of its content on the date lndreated opposite his -or: her name. I know their respective reslden"ces given. 1 intend to•suppartthis;petitlon. I am aware that fdlsifyingthl5,certiflcation is pun ishable•ujider §.12.2(3)(a), Wis. Stat
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(Date) (Signature of 61rculatbr)•
EL472.(Rev. (,2044=04) The information on this form Is•requlred by.§,9;20,.Wls. Stats.
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.Certification of Circulator
certify: I reside at j N. Qi n S-�• AP - P- - A
(Name of cirdulator) (CItculato.r's,residehce-Include number, street, and municipality)
I further certify l am either a qualified elector of Wisconsin, ora U.S. pltizeq, age•Sa or'older who,9f I were a resident ofth(s state, would not be disquBllfled from voting under Wis, Stat. § 6.03. 1 personally circulated tt
petition for difect legis(atlon and personaliy dbtalned *each. oftlie'signatutes an this petltton, i know -that thesigners are e(ectors,of the municipality listed above, I knowthat each person sighed the paperwlth full knowled'[
of its content on the date lndreated opposite his -or: her name. I know their respective reslden"ces given. 1 intend to•suppartthis;petitlon. I am aware that fdlsifyingthl5,certiflcation is pun ishable•ujider §.12.2(3)(a), Wis. Stat
O C,Ac)�c�r--�—�--
(Date) (Signature of 61rculatbr)•
EL472.(Rev. (,2044=04) The information on this form Is•requlred by.§,9;20,.Wls. Stats.
This'form is prescribed 6ylhe•Wlsconsln EleptionsCommisslon,-P.O. Box 7964, Madison, WI 53707-79Q4., 608-'266=8005, ht! //e ertioris.Wl.go� emall: F'S.@4ov
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City of Oshkosh Ordinance No.
AN ORDIKAXQE CREATING SLCTION I7»48 OF TIME 08W<OSH MUNICIPAL
CODE REGARDING MARIJUANA POSSESSION
VMA -EAS, Section, 17-46(F) of the Oshkosh Municipal Code currently subjects any person
who is cotAlieted �orpossessing 25 gravis or less of marijuana to a fine that is iiot less thatt Three
Hundred Twenty :Five Dollars ($325.00) and riot more tbari Five Hundred Dollars ($500.00).
'WWH + REAS, as a result of a petition signed by loeal community met>�bers and residents, the
Common Counbil finds it necessary to r Bate Section 17-48 to dect minalize 4a4 iguana
possession.
NOW, THCREFOU2 , the Common Council of Oshkosh DQ HE' RKBY ORDAIN AS
FOLLOWS:
Section 1. "Sec. 17-48 — Penalty. for First Offense Possession of Marijuane is created to
read as follows:
`°NoWthstanding pengltles contained elsawhere in Article Vl, any person who possesses
25 grams or less of m4ua4a, in violation of Section 17-1 or Section 17-2, sliall be fined
no shore than twenty-five dollars ($25.00) for the first offense, together with the costs of
prosecution, and iii default of payment thereof by suspension of operator's license for a
period no# ex6eeding 60 months or imprisonment not ekededing six (6) months."
Section 2, Except as speolflcally modified by this ordinance, the Qshkosh Municipal Code
shall seinain iu farce and effect exactly as originally adopted and previously amended.
Section 3. This ordinance shall take ecQt and be in Rill force and effect from and after its
passage and publiogtion.
Section 4. SEVERABILITY. If a court of competentimisdiction ad,�udges any see#on,
clause, provision, orportion of this ordinance unctrnstitatlonal or invalid, the remainder of
this ordinance shall not be affected thereby, •
CITY OF OSHKOSH
{07346469.1)OCX.21