Judge asked to settle feud over initiative petitions

Tuesday, Jan. 4, 2005 | 9:24 a.m.

CARSON CITY -- A coalition of health groups and the state attorney general's office today were to file a court document to determine if anti-smoking and marijuana initiative petitions qualified to be presented to the 2005 Legislature.

Bob Crowell, the American Cancer Society's lawyer, and Senior Deputy Attorney General Josh Hicks prepared what is called a "submission of controversy without action" to District Judge Bill Maddox of Carson City. It was to be filed today.

Crowell called the action the "most expeditious way" to get a court ruling on the controversy over the number of signatures required on initiative petitions.

Hicks wrote a legal opinion last month that the initiative petitions to limit smoking in public places and to permit adults to have one ounce of marijuana failed to qualify because they did not have the required 83,156 valid signatures.

Based on this legal opinion, Secretary of State Dean Heller rejected the three petitions. The Cancer Society, the American Heart Association and the American Lung Association gathered 64,871 signatures; the anti-smoking petition supported by casinos and bars submitted 74,348 signatures and the Regulation of Marijuana initiative had 69,261 signatures.

A schedule for submitting briefs to the judge has been set and arguments are expected during the week of Feb. 7.

Meanwhile the National Marijuana Policy Project intends to file suit in federal court by the end of this week challenging the state's ruling. Bruce Mirken, director of communications for the group, said it also submitted a letter to Heller on Monday asking him to reconsider his decision.

Mirken also said his group is coordinating with Crowell, who thinks Maddox may allow the petitions to be submitted to the Legislature.

The groups circulating their petitions believed they had to submit only 51,337 valid signatures. That was based on the requirement of 10 percent of the voter turnout in the preceding election. They felt that meant the 2002 election when an estimated 512,000 voters turned out.

They submitted their petitions after the election last month. The attorney general's office said the most recent election had to be used on calculating the 10 percent of the turnout. More than 830,000 voters went to the polls last month.

The attorney general's opinion relied in part on a 1994 decision by the Nevada Supreme Court that the most recent election figures must be used, meaning the three groups needed 83,156 signatures of voters.

In its petition to Heller to reconsider his decision, the marijuana organization and the American Civil Liberties Union said Heller's own publication on initiatives "expressly provides that the number of signatures needed in each county and statewide is 10 percent of the votes case in the 2002 election."

Those groups and Crowell also point out that in 2002 Heller used the 2000 election figures in qualifying the initiative petition on medical malpractice to be presented to the Legislature.

"The secretary's prior conduct constitutes official policy and cannot be reversed arbitrarily and without notice," said Matthew D. Brinckerhoff, the lawyer representing the Committee to Regulate and Control Marijuana and Allen Lichtenstein, an attorney for the ACLU of Nevada.

Brinckerhoff and Lichtenstein each said the 1994 decision of the Nevada Supreme Court does not apply to this case. And they said the county election officials asked that the petition not be filed before the election because they were too busy with setting up the 2004 election.

Crowell said his first brief to Maddox is due Jan. 18; the attorney general's office will submit its argument on Jan. 28 and Crowell will submit his final brief Feb. 4.

If Maddox rules that any or all of the initiatives should be submitted to the Legislature, the Legislature has 40 days to approve them or the initiatives go on the 2006 election ballot.

If Maddox rules in favor of the initiatives, Hicks may appeal such a decision to the state Supreme Court. That court had issued the 1994 decision, which Hicks relied upon.