State considers appeal of ruling on petitions

David Kihara and Cy Ryan

Monday, Jan. 31, 2005 | 8:59 a.m.

The state attorney general may file an appeal to overturn the recent federal court ruling that allows the backers of a marijuana petition to present their initiative to the 2005 Legislature, the lead attorney said Friday.

Joshua Hicks, senior deputy attorney general, said that the state will review the order and decide this week if they can go forward with an appeal.

"We are obviously disappointed that the judge chose to deny the motion," Hicks said. "We still need to decide what we are going to do with it."

Tom Sargent, spokesman for Attorney General Brian Sandoval, said on Friday that the attorney general's office had not yet seen the decision and couldn't comment on what their next step would be.

U.S. District Judge James Mahan on Friday ruled in favor of the Committee to Regulate and Control Marijuana, the American Civil Liberties Union and the Marijuana Project, paving the way for the committee to Regulate and Control Marijuana to present their petition to the 2005 Legislature.

The Legislature convenes on Feb. 7.

After the federal court ruling on the marijuana petition, Secretary of State Dean Heller said Friday he would forward all three initiative petitions to the Legislature when it opens Feb. 7.

He said he would follow the court ruling and not appeal any more.

The Legislature then has 40 days to approve the petitions, and if it doesn't, they go on the 2006 election ballot.

"We are heartened by the judge's decision," said Gary Peck, executive director of the ACLU Nevada.

In granting the preliminary injunction, Mahan reversed a previous decision by the secretary of state, based on an attorney general's opinion, that disqualified the marijuana petition on the grounds that the petition gatherers essentially did not have enough signatures to push their petition forward.

The petition asks, among other things, that adults can possess an ounce or less of marijuana.

The petition backers gathered 69,261 signatures for their petition -- at least 18,000 more signatures than the 51,337 that was believed to be needed. That calculation was based on 10 percent of the registered voters in 2002.

However, on Dec. 20, the secretary of state, relying on the attorney general's opinion, ruled that the Committee to Regulate and Control Marijuana, and two petitions limiting smoking in some public areas, did not have enough signatures because they needed 10 percent of the registered voters for the 2004 election -- or 83,156 signatures.

Mahan, however, reversed that opinion, calling it "unconstitutional."

"The attorney general's opinions are not law," Mahan said when rending his decision.

"It's a change of rules in midstream" and could lead to "chaos" in the future, he said.

The state was joined in the case by Joe Cain, an attorney with McMullen & Cain, who was representing the Nevada Association of Sheriffs and Chiefs Association.

Cain said he had not conferred with the Nevada Association of Sheriffs and Chiefs Association on Friday about whether or not he would go forward with an appeal.

"We could consider it, but we need to look at what our options are," Cain said.

A group of health organizations -- including the American Cancer society, the American Heart Association and the American Lung Association -- have filed a suit before District Judge Bill Maddox of Carson City asking that the judge overrule Heller, who decided that the two health-related petitions do not have enough signatures.

The issue is similar to the one facing the marijuana petition.

One smoking ban petition backed by the health coalition gathered 64,871 signatures, while the petition backed by casinos and bars collected 74,348 signatures.

Bob Crowell, spokesman for the Nevada Cancer Society, said its suit filed in District Court would be dismissed since the federal ruling permits its smoking petition to go forward to the legislature.