Monday, Jan. 3, 2005 | 11:06 a.m.
CARSON CITY -- The state attorney general's office said Sunday it doesn't intend to change its legal opinion that disqualified three initiative petitions to limit smoking in public places and to allow one ounce of marijuana for adults.
It rejected the request of Secretary of State Dean Heller, who asked that the attorney general's office take another look at its legal opinion to see if it would change its view.
Tom Sargent, spokesman for Attorney General Brian Sandoval, said the Nevada Supreme Court in a 1994 decision ruled in a case that "the facts are so close to those in this instance that we would be making law if we were to defy the precedent set by the court."
It now appears the dispute is headed for court.
Heller asked for the review after receiving an appeal from Robert Crowell, attorney for the Nevada Clean Air initiative petition, that seeks to limit smoking in public buildings.
Crowell said Heller in the past has approved initiative petitions contrary to the advice of the attorney general.
Backers of the clean air petition submitted 64,871 valid signatures Nov. 9 after the 2004 election and they maintain they 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.
The National Marijuana Policy Act had 69,261 valid signatures and another initiative supported by the casinos to impose smoking limits gathered 74,348 valid signatures.
Heller said he has talked with Crowell about the possibility of seeking judicial relief in a non-litigious way. The backers of the marijuana petition have already said they intend to file suit to challenge Heller's decision.
Crowell, in his appeal, said that two years ago Heller made a different decision involving an initiative petition to change the medical malpractice laws. That petition was submitted after the 2002 November election but Heller determined it qualified based on 10 percent of the 2000 election.
But Heller, through a spokesman, said there were enough signatures to qualify the malpractice petition based on 10 percent of the voter turnout in both the 2000 and 2002 elections.
Crowell said the health coalition relied on the advice of the secretary of state in its initiative petition guide that only 51,337 signatures were needed and then agreed to the request by county officials 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."
Trying to satisfy both sides, Heller on Thursday said he had "great confidence" in the opinion issued by the attorney general's office, but he added, "a thoughtful review by that office is a fair request."
Heller said the attorney general's office is the legal adviser for the secretary of state and "to not follow their legal guidance would open this office and the state to litigation."
The secretary of state said it was unfortunate he is faced with defending himself for abiding by the Nevada Constitution and following the legal advice of the attorney general's office.
If these petitions are deemed qualified, they must be submitted to the Legislature and the Legislature must act to approve them within 40 days or they go on the 2006 election ballot.
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