The Honorable Paul Wright Municipal Judge P.O. Box 117, 427 Court Clay Center, Kansas 67432

Dear Judge Wright:

You request our opinion concerning whether municipal courts have jurisdiction over juveniles who are charged with cigarette or tobacco infraction ordinances.

A cigarette or tobacco infraction ordinance is an ordinance that proscribes the same behavior as proscribed by subsection (m) and (n) of K.S.A. 79-3321. K.S.A. 12-4113, as amended by L. 1996, ch 214, § 18. Those subsections make it unlawful for any person under 18 to possess or purchase or attempt to possess or purchase cigarette or tobacco products. K.S.A. 79-3321, as amended by L. 1996, ch. 214, § 7. A city may enact an ordinance which prohibits this conduct and any violations are prosecuted in municipal court. K.S.A. 12-4113; 12-4209; 12-4212; 12-4214, as amended by L. 1996, ch. 214, §§ 18-21; K.S.A. 1995 Supp. 12-4305, as amended by L. 1996, ch. 214, § 22. According to the statute, only juveniles may be prosecuted for violating cigarette or tobacco infraction ordinances. Consequently, it is our opinion that municipal courts have jurisdiction over juveniles who are charged with violating cigarette or tobacco infraction ordinances. While it is true that the district court has exclusive jurisdiction over juvenile offenders, a juvenile offender is defined as "a person who does an act while a juvenile which if done by an adult would constitute the commission of a felony or misdemeanor as defined by K.S.A. 21-3105." K.S.A. 1995 Supp. 38-1602, as amended by L. 1996, ch. 229, § 40.

K.S.A. 21-3105, as amended by L. 1996, ch. 214, § 24, provides, in part, as follows:

"Crimes are classified as felonies, misdemeanors and traffic infractions.

"(1) A felony is a crime punishable by death or by imprisonment in any state correctional institution or a crime which is defined as a felony by law.

"(2) A traffic infraction is a violation of any of the statutory provisions listed in subsection (c) of K.S.A. 8-2118 and amendments thereto.

"(3) A cigarette or tobacco infraction is a violation of subsection (m) or (n) of K.S.A. 79-3321 and amendments thereto.

"(4) All other crimes are misdemeanors." (Emphasis in original.)

Clearly, a cigarette or tobacco infraction is not a felony or misdemeanor so a juvenile charged with violating an ordinance which proscribes the same conduct prohibited by K.S.A. 79-3321 is not a juvenile offender and may be prosecuted in municipal court.

Very truly yours,

CARLA J. STOVALL Attorney General of Kansas

Mary Feighny Assistant Attorney General

CJS:JLM:MF:jm