Suit filed to put pot initiative before lawmakers

Thursday, Jan. 13, 2005 | 10:59 a.m.

CARSON CITY -- Backers of an initiative petition to allow adults in Nevada to legally possess up to one ounce of marijuana on Wednesday filed a federal lawsuit in Las Vegas asking for emergency action to place the issue before the 2005 Legislature.

The Marijuana Policy Project and the American Civil Liberties Union of Nevada seek a preliminary injunction to force Secretary of State Dean Heller to send the petition to the Legislature, which goes into session on Feb. 7.

The lawsuit alleges Heller illegally disqualified the petition based on a ruling that it did not have enough signatures.

"This motion is filed as an emergency motion in order to prevent the irreparable harm that is already ongoing, but will accrue with particular force on Feb. 7," the lawsuit notes.

The complaint is signed by New York lawyers Matthew Brinkerhoff and Sarah Nethburn for the policy project and Allen Lichtenstein for the ACLU of Nevada.

A lawsuit has also been filed in state district court in Carson City by a group that supports an initiative petition to limit smoking in public places. And that suit makes the same allegations, that Heller was wrong in refusing to send that petition to the Legislature.

Supporters of the marijuana petition gathered 69,261 signatures, the American Cancer petition had 64,871 and another petition on smoking supported by casinos and bars collected 74,348 signatures of registered voters.

They said they were told they needed 51,337 valid signatures, based on the requirement of 10 percent of the voters in the 2002 election. But after the petitions were submitted to Heller, the state Attorney General's Office said they needed 83,156 signatures based on the results of the 2004 election.

Neal Levine, the Washington, D.C.-based director of state policies for the marijuana project, said "We followed all the state's rules from day one. Then, without warning, they changed the rules after we turned in the petition.

"It's not fair and we expect to win in federal court," Levine said.

Gary Peck, executive director of the ACLU in Nevada, said the decision by the attorney general's office "disenfranchises tens of thousands of voters and deprives the petitioners of their due process rights under the 14th Amendment."

The complaint asks that the marijuana petition be sent to the Legislature as soon as it convenes. The Nevada Constitution, said the suit, requires these initiatives to take precedent over other issues and the Legislature must act within 40 days.

Failure of the Legislature to approve the measures within the time limit would put them on the 2006 ballot for voters to decide.

The attorneys ask for an expedited briefing schedule so the case can be resolved by Feb. 7.

The suit said there is "no rational basis" for Heller treating these initiative petitions different than one involving medical malpractice in 2002. At that time, Heller qualified the malpractice petition based on the 2000 election figures.

There is nothing "that justifies the secretary of state's unequal and different treatment," of the marijuana petition, the complaint said. And Heller's "arbitrary conduct violates the equal protection clause" of the U.S. Constitution, says the suit.

Heller has said he is bound to follow the advice of his legal counsel, the state Attorney General's Office.