by Cy Ryan, Sun Capital Bureau,                           21 Dec 04

Las Vegas Sun    Nevada

  Technicality Kept Three Measures Off The Ballot

CARSON CITY - Initiative petitions to restrict smoking in public places and to allow adults to possess a small amount of marijuana have failed on a legal technicality according to an opinion issued by the state attorney general's office Monday, and the issue is headed for the courts. 

Buffy Martin of the American Cancer Society said Monday, "We're moving forward with legal action" to challenge the opinion of the state Attorney General's Office that 83,156 signatures of registered voters were needed to present the petitions to the 2005 Legislature. 

Bruce Mirken, director of communications for the National Marijuana Policy Project, said the opinion "is a clear violation of our due process rights." He said, "So we will see them in court."

The groups of three petitions -- two targeting smoking and the marijuana petition -- gathered the signatures before the November general election and turned them in a few days after the election. 

A petition to force the Legislature to consider the issue needs the signature of 10 percent of the registered voters who cast ballots in the last general election. 

The groups thought they to gather only 51,337 signatures -- based on 10 percent of the 2002 election. 

Senior Deputy Attorney General Joshua J.  Hicks issued a legal opinion Monday that the Nevada Constitution requires a petition must have at least 10 percent of the voters who cast ballots at the last preceding general election -- 2004.  "Because none of the petitions meet the minimum signature requirement, each fails to comply with the mandates of Nevada law."

Secretary of State Dean Heller said he "anticipated litigation" to challenge the opinion.  But he said the opinion is backed by previous decisions of the Nevada Supreme Court and Nevada law. 

Martin and Mirken both said that Heller and his office told them after the election last month, they needed only 51,337 signatures to qualify.  Mirken said, "As late as Nov.  19, Secretary of State Heller was telling everybody involved, the 2002 election was the basis for the signature requirement.  The opinion simply doesn't pass the straight-face test."

Martin said her group "Nevada Clean Indoor Air Act" was told after the election by Heller's office that the count would be based on the 2002 election. 

Heller denied his office ever talked with the parties after the election, telling them that only 51,337 signatures were needed.  He said the backers of the initiatives talked with the local election officials who wanted them to delay turning in the petitions because of the work needed to get ready for the balloting. 

"We never had any communications," Heller said.  "They didn't get good counsel."

He said the local election clerks told the supporters of the petition they had "too much on their plate" in getting ready for the election and suggested the initiatives be turned in after the balloting. 

Alise Lee Haney, a spokeswoman for "Responsibly Protect Nevadans From Second Hand Smoke Act" said "It would have been nice to know up front" that the petitions needed 83,156 signatures. 

The petition to allow adults to have one ounce of marijuana had 69,261 valid signatures; the health group coalition gathered 64,871 names and the casino-backed smoking limitations had 74,348 names. 

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