Petition group formally appeals Heller’s ruling

Wednesday, Dec. 29, 2004 | 9:33 a.m.

CARSON CITY -- A formal appeal was filed Tuesday with Secretary of State Dean Heller, asking him to allow an anti-smoking petition be presented to the 2005 Legislature.

Robert Crowell, attorney for the Cancer Society of Nevada, said that fairness and equal application of the law require Heller to certify that the initiative petition has the required number of signatures to qualify.

If Heller refuses to approve the petition, the cancer society is going to court, said Buffy Martin, its executive director in Nevada.

Heller could not be reached for comment Tuesday but his spokesman, Steve George, said the secretary is obligated to follow the advice of the state Attorney General's Office, which held that the petition failed because it did not have 83,156 signatures.

The cancer society, the American Heart Association and the American Lung Association joined in gathering signatures to limit smoking in public buildings. It was submitted Nov. 9 after the general election this year.

It contained 64,871 valid signatures and the coalition said it needed only 51,337 based on 10 percent of the voter turnout in the 2002 election. But Heller, acting on the advice of the attorney general's office, said the petition needed 83,156 signatures of voters based on 10 percent of the turnout in this November's election.

Crowell said Heller handled an initiative petition differently in 2002. He said an initiative petition dealing with medical malpractice was submitted and certified after the 2002 general election and the required signatures were based on the 2000 election turnout.

George said the situation in 2002 and 2000 was different. He said the signatures gathered medical malpractice petition in 2002 was based the 10 percent turnout of 596,205 voters in 2000. To qualify, it needed more than 59,205 signatures, which it had.

George said the turnout in the 2002 election was 512,433 so the malpractice petition qualified against a higher number. So it would have needed only 51,243 valid signatures, he said.

Crowell said, "The initiative process represents core political speech where First Amendment rights are at their zenith. The secretary of state seeks to disqualify the petition based in a manner that nullifies the spirit, intent and letter of the initiative petition law."

Crowell said the health coalition relied on the advice of the secretary of state in its initiative petition guide and then relied upon requests by the county clerks not to file the petition before the election because they had too much work facing them.

He said the coalition should not be penalized for relying on the advice of the secretary of state and it should not be penalized for heeding "the exhortation of the county clerks."

Bruce Mirken, director of communications for the National Marijuana Policy Act, said Tuesday his organization is going forward with legal action.

The petition to allow adults to have one ounce of marijuana had 69,261 valid signatures and another initiative petition backed by casinos to impose smoking limitations had 74,348 names.

They were both disqualified because of the opinion by the attorney general's office.

There's a second anti-tobacco petition that was also disqualified, although supporters didn't expect to challenge the secretary of state's opinion.

Both petitions would allow smoking in casinos. The health group, composed of cancer, lung and heart organizations want to permit smoking only in areas where minors are prohibited. The casinos complain that would make smoking would be prohibited in hotel rooms.

Smoking would be allowed in taverns. The health groups wants to permit smoking in bars only where there is incidental food service such as peanuts, popcorn, chips, pretzels and other items that are not subject to health licensing.

The two groups agree smoking should be prohibited in movie theaters, video arcades and government buildings. Both would permit smoking in strip clubs, brothels and retail tobacco stores.

If Heller changes his stance, then the petitions will be presented to the Legislature. If the Legislature does not approve the petitions within 40 days, then the initiatives go on the 2006 election ballot.