Federal judge gives new life to Nevada pot petition

LAS VEGAS - A federal judge ruled Friday that the Nevada Secretary of State was wrong to disqualify a petition to legalize marijuana possession, giving new life to the initiative and two proposed anti-smoking measures.

Secretary of State Dean Heller said he will comply with the federal court order directing his office to qualify three initiative petitions.

The two anti-smoking petitions and one calling on lawmakers to legalize small amounts of marijuana will be forwarded to the Nevada Legislature when the 2005 session convenes Feb. 7, Heller said.

That will give lawmakers 40 days to act on the initiative proposals. If they fail to do so, then the initiatives will be put on the ballot for the 2006 general election so voters can decide.

U.S. District Court Judge James Mahan's ruling on the Marijuana Policy Project's petition came in a challenge filed with the backing of the American Civil Liberties Union of Nevada.

The ACLU supports letting adults possess up to 1 ounce of marijuana for personal use. But Gary Peck, executive director of the ACLU office in Las Vegas, said the organization filed the federal lawsuit to highlight a "lack of consistency, predictability and fairness in the process."

The judge ruled Heller violated the marijuana petition-gatherers' First Amendment, due process and equal protection constitutional rights, ACLU lawyer Allen Lichtenstein said.

In deciding Heller set the criteria for the number of required signatures too high, Mahan referred to a precedent established when Heller qualified a medical malpractice petition for the ballot in 2002, and to a petition guide Heller's office gave to signature-gatherers this year.

"Both by precedent and governmental pronouncement, they were given the information that they would need to get 10 percent of the 2002 total," Lichtenstein said. "The judge ruled they can't change the rules in the middle of the game."

Similar arguments were raised by Robert Crowell, lawyer for the Nevada Clean Air initiative petition. Supported by the American Cancer Society, the American Heart Association and the American Lung Association, it seeks to limit smoking in public buildings.

A third petition, with less restrictive anti-smoking rules, is supported by casinos and bars.

The petition guide said backers needed to submit 51,337 signatures, based on 10 percent of the voter turnout in the 2002 election.

Proponents of the clean air petition submitted 64,871 valid signatures on Nov. 9 - a week after the 2004 election. Advocates of the marijuana proposal submitted 69,261 signatures, and the casinos' smoking petition had 74,348 signatures.

Heller, acting on state Attorney General Brian Sandoval's advice, decided the Nov. 2, 2004, general election had become the yardstick for signatures, and said the petitions needed 83,156 valid signatures.

Crowell welcomed word that a Feb. 9 hearing on the Cancer Society smoking petition may not be necessary in Carson City District Court.

"I would say it's over," he said.