Nevada Attorney General Opinion Re: MPP Complaint

April 23, 2003

Dear Chief Parker:

You have asked whether Nevada's campaign contribution and expenditure reporting laws apply to the national drug czar's advocacy against Question 9.

Background

Question 9 on the 2002 State of Nevada general election ballot addressed the decriminalization of the possession of up to three ounces of marijuana. During the campaign on Question 9, John Walters, the director of the White House Office of National Drug Control Policy (ONDCP), visited Nevada to speak against the ballot question, and ONDCP ran television advertisements warning of the dangers of marijuana use.

The ONDCP 2002 National Drug Control Policy, as part of its effort to prevent drug abuse at the community level, specifically targeted efforts to legalize drug use. See ONDCP 2002 National Drug Control Strategy, National Priorities 1: Stopping Use Before It Starts: Education and Community Action.

Question

Is the director of the White House Office of National Drug Control Policy subject to Nevada's campaign and expenditure reporting laws?

Analysis

NRS 294A.150 and 294A.220 require a person or group of persons advocating the passage or defeat of a question on the ballot to report contributions received and expenditures made.

While it is unclear if Mr. Walters received any contributions, it is reasonably certain that expenditures were made in bringing him to Nevada to advocate against Question 9 and to run television ads opposing marijuana use. However, both of these activities, advocacy against legalization of drugs and opposition to drug use, are clearly within the exercise of his role as director of ONDCP and consistent with the stated policy of that office.

Federal courts have regularly held that a federal officer is immune from state action when exercising the function of his office. In re Neagle, 135 U.S. 1 (1890); Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982); Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977). The test in Neagle is that the federal officer be in the performance of an act which he is authorized to do as part of his duty and that what he did was no more than was necessary and proper for him to do. In re Neagle, 135 U.S. at 75.

After reviewing the facts presented in this manner, this office believes that it is extremely likely that a court would find Mr. Walters' actions in Nevada in regard to Question 9 are within the scope of the Neagle test. As a result, a court would likely summarily dismiss such a case if it were brought against Mr. Walters.

It is unfortunate that a representative of the federal government substantially intervened in a manner that was clearly a State of Nevada issue. The excessive federal intervention that was exhibited in this instance is particularly disturbing because it sought to influence the outcome of a Nevada election. However, because Mr. Walters' actions in regard to Question 9 were within the scope of his function as director of ONDCP this office believes that a court would find him to be immune from Nevada's campaign and expenditure reporting laws.

Answer

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.