Memorandum

To:       Mike Wildgen, City Manager

From:   David Corliss, Assistant City Manager

Date:    June 9, 2004

Re:       Charter Ordinance No. 37

Attached for consideration is City of Lawrence Charter Ordinance No. 37.  The proposed ordinance would allow the City of Lawrence to exempt itself from the provisions of K.S.A. 12-4501.  This statute concerns the entrance of a plea for accused persons in Municipal Court and the setting of trials.  The statutory language will be modified as noted below.

The proposed change is needed because there are occasions when a defendant is picked up on a warrant for not appearing in court for trial, and it may be a second, third or fourth time the defendant has failed to appear.  In those cases, the municipal court judge usually requires that the defendant post a bond to appear at another court date, in lieu of just releasing the defendant to appear without posting bond.  However, there are times when the defendant is unable to post any bond, and therefore remains incarcerated pending trial.  Under K.S.A. 12-4501, if the defendant cannot post a bond then the judge must set the case for trial the next court day unless the defendant requests a continuance.  In most cases, it is impossible to have witnesses available for a trial the next day that court convenes, which is the next day unless it falls on a weekend or holiday.

The proposed change will not compromise the constitutional right of a defendant to a speedy trial while in custody since the statutory provisions of the Kansas Code of Criminal Procedure would still apply as it relates to a speedy trial.

Kansas cities under their home rule powers, can exempt themselves from Kansas statutes, if the enactment is non-uniform - that is, it does not apply uniformly to all Kansas cities.  K.S.A. 12-4501 is part of the Kansas Code of Procedure for Municipal Courts.  This enactment has been held to be non-uniform (see City of Junction City v. Griffin, 227 Kan. 332, 607 P.2d 459 (1980)).  Therefore, the City may properly charter out of this portion of the code of procedure for municipal courts by adopting the alternate language in the proposed charter ordinance.  The suggested changes essentially mirror the language found in K.S.A. 22-3401 of the Kansas Code of Criminal Procedure and will alleviate the above problems experienced by the City's municipal court in the adjudication of its cases.

City legal staff therefore recommends adoption of Charter Ordinance No. 37. 

12-4501

Chapter 12.--CITIES AND MUNICIPALITIES

Article 45.--CODE FOR MUNICIPALCOURTS; TRIALS AND PROCEEDINGS INCIDENT THERETO

12-4501. Plea of not guilty; trial; time; continuance. An accused person entering a plea of not guilty, or for whom the court entered a plea of not guilty, shall be tried on the earliest practical day set by the court, unless trial is continued for good cause: Provided, that an accused person in custody shall be tried on the earliest day that the municipal court convenes, unless trial is continued upon motion of either party or at the discretion of the court the accused person and for good cause.

History: L. 1973, ch. 61, § 12-4501; April 1, 1974.