QUIT BLOWING SMOKE

Pot group urges Nevada's attorney general to get some guts

Let's get the obligatory pot joke out of the way: The Marijuana Policy
Project folks sure aren't being mellow about this one.

The Washington-based group, big backers of November's failed Question 9
initiative in Nevada, are still fuming over what they characterize as
arrogant state-stomping by federal drug czar John Walters. Earlier this year
the group filed a complaint with Secretary of State Dean Heller saying that
Walters should have filed three reports listing his contribution and
expenditures for the anti-Question 9 campaign. The price for not complying:
$5,000 for each failure.

Few dispute that Walters, a federal official, campaigned vigorously against
the Question 9 initiative. The question is whether Walters is legally bound
to file a campaign finance report, which would reveal who bankrolled his
anti-Q9 stumping. A dust-up has risen among the Nevada attorney general's
office, the Marijuana Policy Project and the drug czar's office. The
MPP--seemingly spoiling for a publicity-generating battle with the
feds--wants the AG's office office to press the feds to comply with state
law. Walters has balked, saying he's immune as a federal official. Attorney
General Brian Sandoval's office, while recently lambasting Walters for
meddling in state affairs, reluctantly has concurred.

Dusting off its Supreme Court casebooks, the MPP is now engaged in a sort of
lawbook-slinging wrangle with the AG's office--in hope of convincing it to
go after Walters with a bit more gusto.

It began last week when Sandoval sent an opinion to the secretary of state's
office, chastising Walters for "excessive" and "disturbing" interference in
the state's marijuana initiative campaign. In the same breath,
Sandoval--citing an 1890 Supreme Court case called "In re Neagle"--said it
was unlikely, however, that Walters could be busted for breaking state
election laws.

Wrong answer, say MPP legal hounds. They're questioning the AG's choice of
precedent and urging the office to take a second crack at that stack of law
books. As the MPPers tell it, Sandoval and Co. should've looked further down
the road and used a case from 1971, Perez vs. Campbell, which basically says
that state law applies to federal employees as long as it doesn't interfere
with their purpose.

"If the cases they cited were the only cases that existed, I'd maybe say
they're right," says Steve Fox, director of government relations for the
MPP. "But they ignored an entire line of cases more directly on point. This
is like having the secretary of state asking the attorney general for an
opinion on abortion, and the AG not talking about Roe vs. Wade. It's
nonsensical."

The AG's office says it's looked at the cases pointed out by the MPP, but
it's sticking to its story. "Just because we've cited a case with some age
on it doesn't mean it's not valid law," says Tom Sargent, spokesman for the
AG's office.

But isn't that kind of, well, wimpy? Considering Nevada's history of getting
stomped on by the federal government (Exhibit A: Yucca Mountain), MPP's Fox
says this is a defining moment for Nevada to seize. "This is a chance for
the state to hold the federal government accountable for walking all over
them," says Fox. "Walters sent a dismissive letter in response to the
state's request for information. The AG said, 'Fine.'"

But Sargent says it's sound legal grounds, not yellowness, that led to the
decision. "This is the bottom line: We're not weak-kneed at this office. We
fight in many venues during the course of the year for state's rights, Yucca
Mountain being the most obvious. In this case, the drug czar was acting in
the scope of his duties, and according to our legal opinion, he enjoys a
certain amount of immunity with regard to Nevada election law."

But not immunity from some tenacious MPPers: Fox says the group may take
Walters to court to force him to file campaign finance reports.