RULING REVIVES CHANCES OF PROPOSAL TO LEGALIZE MARIJUANA

Judge Says Improper Procedure Was Used in Rejecting Petition

A federal judge granted an injunction Friday that will force the 2005
Legislature to consider a petition calling for the legalization of marijuana.

U.S. District Judge James Mahan said Secretary of State Dean Heller
followed an unconstitutional procedure when he rejected the initiative
petition in December.

In light of the ruling, Heller also plans to send the Legislature two other
petitions he previously rejected, spokesman Steve George said. Both
measures seek to increase limitations on smoking in public places.

Matthew Brinckerhoff, a New York attorney representing supporters of the
marijuana petition, said Mahan "ruled in a way that protects all Nevadans
from an unfair and arbitrary procedure."

Mahan granted the injunction in response to a request by the Committee to
Regulate and Control Marijuana, the Marijuana Policy Project and the
American Civil Liberties Union of Nevada.

"This was about the integrity and fairness of the process," said Gary Peck,
executive director of the ACLU of Nevada.

Those who circulated the three petitions relied on information in an
initiative guide published last year by the secretary of state's office.
The guide indicated that they needed 51,337 signatures to qualify, and each
petition exceeded that number.

Under the state constitution, petitions must secure a total number of
signatures equivalent to at least 10 percent of the voters in the "last
preceding general election."

While the guide based the number of required signatures on the 2002 general
election, Heller later determined that the number should have been based on
the 2004 general election.

"We feel like we did the appropriate thing," George said.

"We followed the advice of our legal counsel, the attorney general's
office, and followed the (state) constitution."

The deadline for the petitions fell one week after the Nov. 2 general
election, which drew a record number of voters. None of the three measures
had enough signatures based on the new, higher number.

"It's like you changed the rules in midstream," Mahan said.

The judge said Heller's actions violated provisions of the U.S.
Constitution that guarantee free speech, due process and equal protection
under the law.

Mahan also noted that Heller qualified the "Keep Our Doctors in Nevada"
initiative in 2002 based on voter turnout from the 2000 general election.

Senior Deputy Attorney General Joshua Hicks said the wrong standard was
used to qualify the earlier petition, but he characterized the mistake as
"harmless error."

He said the petition would have qualified even if the secretary of state
had relied on the 2002 election numbers.

Hicks also said last year's initiative guide had a disclaimer in boldface
type stating: It is important to note that this publication is for general
information only and does not have the force and effect of Nevada law,
regulation, or rule.

Mahan called the guide "misleading."

"The point is: What does the guide say? What does it tell these people?"
the judge said.

He ordered Heller to follow the procedure outlined in the guide and rely on
the 2002 election numbers in evaluating the marijuana petition.

Mahan said he has sentenced defendants to prison for selling marijuana and
sympathizes with the Nevada Sheriffs' and Chiefs' Association, which joined
Heller in opposing the injunction.

"I personally don't have any use for marijuana, but that's not the issue
here," the judge said.

Allen Lichtenstein, a Las Vegas attorney representing supporters of the
marijuana initiative, said Heller must forward the petition to the Nevada
Legislature by Feb. 7. The Legislature then will have 40 days to enact or
reject it.

Should the Legislature reject the measure, it will appear on the general
election ballot in November 2006.

"Whether it's passed by the Legislature or goes before the voters in 2006,
this ruling ensures that this initiative will get its fair hearing,"
Lichtenstein said.

Last year, Mahan struck down two rules governing Nevada's initiative
process in response to another case filed by supporters of the marijuana
petition. He declared both rules unconstitutional.

"The reason for all this litigation is because the state laws and the way
in which they are enforced are a mess," said Peck, whose organization
participated in both cases.

Peck said he hopes state officials will fix the problems "in a manner that
enhances democracy."

"I'm not looking for fixes that actually are designed to make the jobs of
bureaucrats easier at the expense of a genuinely democratic, participatory
process," he said.

Assemblywoman Chris Giunchigliani, D-Las Vegas, said the marijuana
initiative "should have a fairly decent reception" at the Legislature.

"It's time that we have the discussion on drug policy," she said.

Giunchigliani was a paid consultant to Nevadans for Responsible Law
Enforcement, the organization that in 2002 unsuccessfully pushed a ballot
question calling for the legalization of possession of up to 3 ounces of
marijuana.

Giunchigliani also was a sponsor of legislation that made it a misdemeanor,
rather than a felony, to possess an ounce or less of marijuana.

The new proposal seeks to legalize the possession of an ounce of marijuana
for anyone age 21 or older. It also seeks to increase penalties for adults
who provide marijuana to minors and for those who drive under the influence
of marijuana or alcohol.

"I'd rather regulate it properly," said Giunchigliani, who supports the
proposal.

"I don't believe government has any business being involved in the personal
lives of adults."

Buffy Martin, government relations director for the American Cancer Society
of Nevada, said she was pleased to learn about Heller's change of heart
Friday regarding the anti-smoking petition supported by her organization.

"We regret that we had to go through this whole legal mess, but we really
felt that we had to defend our right to the initiative petition process,"
Martin said.

"We owed it to the citizens of Nevada who signed our petition."

A case involving all three petitions is pending before District Judge Bill
Maddox in Carson City, but George said Friday's ruling rendered that case moot.

The petition supported by the American Cancer Society seeks to ban smoking
in most public places. It would not apply to the gaming areas of casinos.

"I don't think there's much of a possibility that the Legislature will pass
it, and I'm basing that on previous Legislative sessions where we were not
able to pass meaningful tobacco-control laws," Martin said.

She said she expects the issue to go before voters, and gain approval, in
November 2006.

A second petition to restrict smoking in public places would permit smoking
in most bars and in casino restaurants.