Who's in charge?
When voters lay down the law, some officials balk
It was midday at Casale’s Halfway Club on East Fourth Street. Though lunch is not always a big thing here, today there was a group of 10 people around a single table. Tom Case had bid in a silent auction on lunch for 10 with the mayors of Reno and Sparks at Casale’s. He won, and this was the gathering.
It was a fairly affluent group gathered around the table, so it was perhaps surprising that one of the first questions was about medical marijuana, directed at Reno Mayor Bob Cashell, who had recently endorsed its health care use. Seated under a poster for Birra Peroni lager, Cashell explained again the evolution of his thinking on the matter, which involves his hearing neurosurgeon Sanjay Gupta explain the issue on CNN.
Medical marijuana, approved by voters in Nevada 13 years ago, was accepted reluctantly by state legislators, who approved measures requiring patients to produce their own medicine. Not until last year did they provide for dispensaries, and they handed administration of the dispensaries over to local governments—which, in turn, was accepted reluctantly by many city and county officials. In a couple of jurisdictions, dispensaries have been outlawed instead of licensed.
While not as dilatory as some local governments, Reno took its time moving on cannabis medication by using “stay ordinances” that delayed the issue. It was one of several local governments that waited on the state to draft regulation and did not begin preparations until then. Washoe and Clark counties, by contrast, were moving much faster.
In Lyon County, Sheriff Allen Veil opposed dispensaries. “Where there’s marijuana, organized crime has a finger in it, if it’s not controlled by them,” Veil said. “The potential is great for abuse and money laundering and there’s absolutely no reason Lyon County should want to be a part of that.” Those issues, however, involve policy judgments, and the voters had set the policy. Sheriffs are not policymakers—it’s their job to carry out the policies made by legislators or voters, and in this case the voters were pretty clear what they wanted.
Cashell and Sparks Mayor Geno Martini are both local politicians, and after their lunch broke up they lingered. If voter approval doesn’t give politicians cover, what does?
“It was something voted on by the people and so on and so forth,” Martini said. “It shouldn’t need political cover, really. You know, they [voters] want to do it. It’s legalized now. We’re going to control it. I don’t see a big problem with it. I’m not a proponent of recreational, but medical marijuana, I think, can help people that have certain diseases, and I think it’s the right thing to do.”
Cashell said, “It’s got to be controlled and run right and everything else, but the voters voted for it. You know, I’ve noticed a town in Colorado refused to do it. I heard its sheriff talk on TV the other night. Citizens over there really upset with the old boy, so I think they’ll probably do it.”
Those are safe answers, but not all local officials around Nevada have the same attitude. Should officials regard passage of an initiative petition as instructions from the voters?
Martini: “I would think it is, yes. I think an initiative petition, especially the way it passed—it passed pretty good, it wasn’t a close vote, I don’t believe. It passed with a pretty good percentage—that’s a mandate from the people that they want to do it. It’s something that we should look at and do.”
Cashell: “It’s proven that alcohol and stuff like that causes many problems, and I think we can regulate medical marijuana also.”Brains or robotics?
For political scientist Fred Lokken, initiative petitions raise more complicated questions. Laws enacted by the legislature ideally go through scrutiny and processing that seeks problems and anticipates difficulties. It doesn’t always work out that way, but in many cases it does (See feature story, page 13). Initiative petitions, on the other hand, present the public with an up-or-down vote on a measure drafted by a special interest group and its language is locked in. In addition, there are limits on the ability of the Nevada Legislature to change laws approved by the public.
“Public policy initiatives that become law through voter approval do not reflect the vetting that takes place in the legislative process,” Lokken said. “The legislators make mistakes and they spend a nice long time on legislation.”
So what chance is there that initiatives will be flawless? In some cases, legislators immerse themselves in subjects, learning a good deal about the topics of legislation. That’s not a process that voters go through.
“Increasingly, initiatives begin outside the state,” Lokken said. “They are foisted on the voters of Nevada.” Initiative petitions have become an industry, one that involves big money. It’s a long way from the Progressive Era intent of a tool that would let ordinary voters overcome money and power. But more than that, initiatives are rarely prepared with the care given to measures passed by legislatures, where both supporters and opponents scrutinize measures and have their say.
And local officials now trying to implement the marijuana law also lack familiarity with the issues, which raises the question of whether they should try to block it by indirection. That was indicated by one exchange after the two mayors’ luncheon. When it was pointed out that the discussion took place under the beer poster, and that the number of deaths known to be caused by marijuana consumption—zero—is outnumbered by those caused by alcohol consumption—about 88,000 deaths annually, according to the Centers for Disease Control—both mayors indicated surprise.
“Are you sure that there’s never been something that’s proven that was marijuana-related deaths?” Martini asked. “Then that’s even something that says more towards something we need to do, then, if there’s never been a death that was caused by marijuana. I didn’t realize that.”
“I didn’t either,” Cashell said.
“That’s very new to me,” Martini added.
Should local officials in some areas be substituting their own policy judgment for that of the voters?
“That’s pretty hallowed ground,” Lokken said of public votes. But what if there actually is a flaw in the law approved by the public after it was drafted by one or a few people? A lot of initiatives contain what Lokken called “muddy language” whose meaning is up for grabs. In Nevada, some initiatives can’t be touched for three years after they are approved by voters. Even then, there is some reluctance by legislators to change it, though they overcame their reluctance when casino lobbyists last year pressured them to water down an anti-smoking law passed by voters.
But if there is a real problem with a law—and political pressure is not the issue—then what should legislators do? Lokken said voters should ask themselves a question.
“What kind of legislators do you want? Do you want them to have a brain and an opinion or do you want them to be a robot and take orders?”