Las Vegas Sun ^ | April 24, 2003 | Cy Ryan
Drug Czar is Cleared of Campaign Violation
Carson City -- The state attorney general's office says Nevada can't discipline federal drug czar John Walters for failing to file campaign expense reports in his successful effort to defeat a proposed state constitutional amendment to legalize possession small amounts of marijuana.
But the Marijuana Policy Project of Washington says the attorney general's "legal analysis is incorrect," Steve Fox, its director of government relations for the project, said.
Fox said the opinion from the office of Attorney General Brian Sandoval, a Republican, seemed to be looking for a way to avoid disciplining a member of the GOP Bush administration.
Jennifer De Vallance, a spokeswoman for the Office of National Drug Control Policy, said the A.G.'s opinion affirms the "right of the director (Walters) to act in a capacity to educate the people of the dangers of marijuana."
She said this was "another victory for the citizens of Nevada." Jonathan L. Andrews, special assistant attorney general, issued a legal opinion Wednesday to the secretary of state's office that Walters is immune from filing campaign and expense reports because he was acting within the scope of his duties.
The marijuana group had asked Secretary of State Dean Heller to require Walters to file campaign reports in connection with his visits to Las Vegas and Reno to campaign against Question 9 on the ballot and to fine Walters if he failed.
Fox said he hoped Heller would not follow the advice of the attorney general's office. But Heller said the attorney general's office is his legal adviser and he must take his counsel.
Andrews wrote that federal courts have regularly held a federal officer immune from state action when exercising the function of his office. He cited an 1890 U.S. Supreme Court opinion that talks about the duties a federal official is authorized to perform.
"The director of the White House office of National Drug Control Policy is immune from Nevada's campaign and expenditure reporting laws when acting within the scope of his official function," Andrews wrote.
The opinion complained about Walters' "excessive federal intervention in his effort to influence a Nevada election" But he said a court would find Walters immune from Nevada's campaign and expenditure reporting laws.
Fox said he was happy to hear the criticism of Walters but he challenged the Andrews' opinion, saying it relied on an 1890 U.S. Supreme Court case. He said his research shows there are cases in the last 30 years that take a different view.
More recent Supreme Court and other federal court decisions say federal officials must follow state laws "as long as it doesn't frustrate their performance," Fox said. Filing a campaign report doesn't "frustrate the performance" of Walters in his duty, he said.
"He (Walters) should be expected to follow the law."
The marijuana group complained Walters spent money traveling from Washington to Las Vegas and Reno campaigning against Question 9. He also authorized and approved a series of anti-marijuana commercials.
He should have submitted campaign expense and contribution reports to comply with Nevada law, the group contends.
But Edward Jurith, general counsel for the Office of National Drug Control Policy, successfully argued that Walters was acting within the scope of his duties and was immune from enforcement of Nevada election laws.