Federal "drug czar" John P. Walters campaigned against a Nevada ballot proposal
to legalize possession of up to 3 ounces of marijuana, but he refuses on
constitutional grounds to file a campaign spending report.

Nevada officials aren't happy about it.

"It is unfortunate that a representative of the federal government
substantially
intervened in a manner [sic] that was clearly a State of Nevada issue," said a
recent legal opinion signed by state Attorney General Brian Sandoval and filed
with the Nevada secretary of state's office.

"The excessive federal intervention that was exhibited in this instance is
particularly disturbing because it sought to influence the outcome of a Nevada
election," the opinion stated.

There's not much Nevada can do about it, the opinion said.

Special Assistant Attorney General Jonathan L. Andrews wrote that it is
"extremely likely" the courts would find Walters immune from compliance with
state law. The opinion cited an 1890 decision immunizing federal officers
operating within the normal scope of their duties. In re Neagle, 135 U.S. 1
(1890).

But a marijuana advocacy group is pressing the case and has filed a complaint
with federal officials alleging that Walters has violated the Hatch Act.

PRICKLY RELATIONS

Andrews said the rebuke reflected Nevada's prickly relations with the federal
government.

"Approximately 85 percent of Nevada is federally controlled," Andrews said. "We
have six lawsuits going currently fighting the storage of high-level nuclear
waste at Yucca Mountain. We are probably a bit sensitive, but it's important to
voice our concerns about the federal government inserting itself into our
election process."

In January, Nevada Secretary of State Dean Heller wrote to Walters -- whose
title is director of the White House Office of National Drug Control Policy --
noting that Nevada law requires "the reporting of contributions and
expenses for
every person or group of persons organized formally or informally who advocates
the passage or defeat of a question or group of questions on the ballot at any
election." The referendum was defeated in November 2002.

Edward H. Jurith, general counsel to Walters, responded that "speaking out
about
the dangers of illegal drugs" is a specific obligation of Walters' job and he
had no obligation to comply with the state reporting requirements.

"This is law that goes back to the beginnings of our country," Jurith said.
"This was an attempt to force the director to explain his actions to a third
party. He doesn't have to, because he was clearly operating within the
authority
Congress delegated to him."

The Nevada secretary of state asked Walters to file spending disclosures after
receiving a complaint from the Marijuana Policy Project, an advocacy
organization based in Washington, D.C., which argued that Walters made public
appearances and authorized television commercials intended to influence the
outcome of the referendum.

Steve Fox, director of government relations for the Marijuana Policy Project,
said Walters also campaigned against marijuana decriminalization measures in
Ohio and Arizona but only Nevada has a relevant disclosure law.

He contends that the Nevada campaign reporting statute is binding on Walters by
the terms of the U.S. Supreme Court's Johnson v. Maryland, 254 U.S. 51, which
says federal employees must obey all state regulations, such as building codes
or traffic laws, that do not "frustrate the full effectiveness of federal
law."

"Requiring the drug czar to file campaign finance forms does not frustrate his
purpose. He is free to campaign to his heart's content," Fox said. "John
Walters
has to face up to the fact that he campaigned in Nevada and there are laws he
has to follow."

The Marijuana Policy Project cited the quote in a complaint to the office of
special counsel, an independent federal investigative unit, alleging that
Walters' activities in Nevada violated the Hatch Act prohibitions on the use of
"official authority and influence for the purpose of affecting the result of an
election."

Jurith, counsel to the drug czar, said he has not seen the Hatch Act complaint
and he could not discuss it.


Source: National Law Journal (US)
Contact rambrogi@amlaw.com
Website: http://www.nlj.com/
Address: 105 Madison Avenue, New York, N.Y. 10016
Copyright: 2003 NLP IP Company
Author: Peter Page
Pubdate: May 9, 2003