GRAND CHUTE, Wis. (WTAQ) - A Wisconsin appeals court has overturned an Outagamie County man's conviction of marijuana possession because the Town of Grand Chute misapplied its own law.
The town cited Michael Kettner for marijuana possession, which he appealed. Kettner turned over a prescription from a California doctor as a defense, arguing that made it legal. The appeals court says state law requires a prescription to come from a state practicitoner.
However, the decision issued Tuesday notes the conviction was based on a misreading of the town's own ordinance, and thus overturned it.
According to the decision:
"However, we reverse the judgment as to the marijuana possession forfeiture because Kettner was charged under neither Wis. Stat. § 961.41(3g), nor an ordinance adopting that section. At the conclusion of the bench trial, the circuit court found Kettner guilty, as follows:
The Court: I’m going to find Mr. Kettner guilty of possessing marijuana in the State of Wisconsin – or the Town of Grand Chute in violation of the Grand Chute ordinance which incorporates the state statute; correct, Mr. Rossmeissl?
Mr. Rossmeissl [(the Town’s attorney)]: That’s correct.
However, that was not correct. Rather, the Town drafted its own marijuana possession ordinance. Town of Grand Chute, Wis. Ordinance 7.23 (Mar. 2005), which Kettner was cited for violating, provides:
No person shall possess any amount of marijuana ... unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a license[d] physician ... for a valid medical purpose. Their marijuana in possession should be consistent with the amount needed for personal use only, and not in an amount that is intended for distribution.
Thus, not only did counsel incorrectly advise the court as to the language of the ordinance, but the ordinance contained a medical use exception that would be central to the case.[8] Indeed, Kettner presented a signed order from a licensed medical doctor authorizing the use of marijuana, and the circuit court accepted it as a “genuine document issued by Dr. Ironside.”
Further, Kettner was charged with possessing only two grams, or approximately seven-hundredths of an ounce, of marijuana. We doubt the Town could prove that was an amount suggesting an intent to distribute. Because Kettner was not afforded a proper trial based on the marijuana possession ordinance’s actual language, we reverse the judgment as to that forfeiture. The real controversy was not tried," the court wrote.
The appeals court continued in its ruling, admonishing the town's attorney for how it mishandled the case by misrepresenting the record.
"We are astonished by the Town’s brazen misrepresentations, which are not supported by record citations, excepting citation to the misrepresented “prescription” in the brief’s appendix. While the Town objected to the typewritten medical authorization on hearsay grounds, the circuit court overruled that objection and admitted the document.
Further, the same law firm represented the Town at trial and on appeal, with the trial attorney’s name appearing on the appellate brief. Thus, the misrepresentations of the hearsay ruling and, more importantly, the substituted document, were knowing.
This appeal presented an additional burden due to the pro se appellant’s failure to fully comply with the rules of appellate procedure. In these circumstances we often rely on the represented governmental party to assist the court in understanding the procedural history and legal issues presented. Instead, here the Town exacerbated the problem, grossly misrepresenting the record, omitting record citations, and citing a document not made part of the record. Kettner’s rule violations pale in comparison to the Town’s."
The court ordered the town's attorney to pay $200 penalty as a sanction
