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Nevada Commission on Ethics v. Carrigan

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Nevada Comm. on Ethics v. Carrigan
Supreme Court of the United States
Argued April 27, 2011
Decided June 13, 2011
Full case nameNevada Comm. on Ethics v. Carrigan
Docket no.10-568
ArgumentOral argument
Opinion announcementOpinion announcement
Holding
The Nevada Ethics in Government Law is not unconstitutionally overbroad.
Court membership
Chief Justice
John Roberts
Associate Justices
Antonin Scalia · Anthony Kennedy
Clarence Thomas · Ruth Bader Ginsburg
Stephen Breyer · Samuel Alito
Sonia Sotomayor · Elena Kagan
Case opinions
MajorityScalia, joined by Roberts, Kennedy, Thomas, Ginsburg, Breyer, Sotomayor, Kagan
ConcurrenceKennedy
ConcurrenceAlito

Nevada Comm. on Ethics v. Carrigan, No. 10-568 (2011), was a recent case in which the Supreme Court of the United States held that the Nevada Ethics in Government Law is not unconstitutionally overbroad. The law requires government officials to recuse themselves from advocating for and voting on the passage of legislation if private commitments to the interests of others materially affect the official's judgment. Under this law, the Nevada Commission on Ethics censured city councilman Michael Carrigan for voting on a land project for which his campaign manager was a paid consultant. Carrigan challenged his censure in court and the Nevada Supreme Court ruled in his favor, holding that voting is protected speech. The Supreme Court reversed, ruling that voting is not First Amendment speech.

Background

Sparks, Nevada. Where Michael Carrigan was elected City Councilman.

Nevada's Ethics in Government Law

Nevada's Ethics in Government law states that "a public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in the public officer’s situation would be materially affected by... the public officer’s commitment in a private capacity to the interests of others."[1] The law defines commitment in a private capacity to the interests of others as a "a commitment to a person who is a member of the public officer’s or employee’s household; is related to the public officer or employee by blood, adoption or marriage within the third degree of consanguinity or affinity; employs the public officer or employee or a member of the public officer’s or employee’s household; whom the public officer or employee has a substantial and continuing business relationship; or any other commitment or relationship that is substantially similar to a commitment or relationship described."[2]

Investigation of Michael Carrigan

The Nevada Commission on Ethics is the body responsible for administering and enforcing the Ethics in Government law.[3] In 2007, the Commission found that Michael Carrigan, an elected member of the City Council of Sparks, Nevada, had violated the law for not abstaining from voting on a hotel/casino project known as the Lazy 8 project.[4] The Commission held that Carrigan's relationship with Carlos Vasquez-- Carrigan's friend, former political advisor, and a paid consultant on the Lazy 8 project-- was significant enough to warrant recusal under the ethics law.[5] However, the Commission found that Carrigan's violation was not willful[6] and that Carrigan did not use his position to secure or grant unwarranted privileges for Vasquez.[7] Carrigan petitioned for judicial review of the decision, which was denied by a district court but granted by the Supreme Court of Nevada.[8]

Nevada Supreme Court Ruling

In 2010, the Nevada Supreme Court determined in a split decision that voting by public officers on public issues is protected speech under the First Amendment and that the ethics law was unconstitutionally overbroad in violation of the First Amendment.[9]. The dissent argued that there was no previous decision that held that a public official voting was core political speech.[10] The Supreme Court of the United States granted certiorari in January 2011.[11]

Opinion of the Court

Justice Scalia delivered the opinion for a unanimous Court.

Delivering the opinion for a unanimous Court, Justice Scalia wrote that "a universal and long-established traditional of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional"[12](citing Republican Party of Minnesota v. White) and that "the Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest recusal rule-- and such rules and have been commonplace for over 200 years".[13] The Court held that the Nevada Supreme Court's belief that recusal rules violate legislators' First Amendment rights is inconsistent with long-standing traditions of Congress[14], the judiciary[15], and the States[16]

Further, the Court found that a legislator's vote is representative of the legislator's power, but rather belongs to the legislator's constituants.[17] Therefore, restrictions on legislators' voting cannot infringe on the legislator's individual right to speech. The Court held that even if a vote could express personal views, the ethics law would still not be a violation of Carrigan's First Amendment rights because "this Court has rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message." [18]

Kennedy's Concurrence

Alito's Concurrence

Notes

  1. ^ §281A.420(3)
  2. ^ §281A.420(8)(a)-(e)
  3. ^ §281A.280(1)
  4. ^ "Councilman Carrigan violated NRS 281.501, subsection 2, by not abstaining from voting on the Lazy 8 matter at the August 23, 2006 Council meeting." p. 5
  5. ^ "The independence of judgement of a reasonable person in Councilman Carrigan's position would be affected by the commitment and relationship Councilman Carrigan shares with Mr. Vasquez. Therefore, during the August 23, 2006 Council meeting when the Lazy 8 matter was heard, Councilman Carrigan had a commitment in a private capacity to the interest of Mr. Vasquez" p. 8
  6. ^ "Councilman Carrigan's violation… was not willful" p. 5
  7. ^ "[Councilman Carrigan] did not use his position in the government to secure or grant unwarranted privileges, preferences, exemptions or advantages for Carlos Vasquez" p. 4
  8. ^ "Appeal from a district court order denying a petition for judicial review… reversed." Opinion p. 1
  9. ^ "we first conclude that voting by public officers on public issues is protected speech under the First Amendment… we conclude that NRS 281A.420(8)(e) is unconstitutionally overbroad in violation of the First Amendment" Opinion p. 3
  10. ^ "Before today, no published decision has held that an elected local official engages in core political speech when he or she votes" Dissent p. 1
  11. ^ "Petition GRANTED." Entry for Jan 7 2011
  12. ^ p. 4
  13. ^ p. 4
  14. ^ "Within 15 years of the founding, both the House of Representatives and the Senate adopted recusal rules. " p. 4
  15. ^ "Federal conflict-of-interest rules applicable to judges also date back to the founding." p. 5
  16. ^ "The Nevada Supreme Court’s belief that recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States". p. 6
  17. ^ "The answer is that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it." p. 8
  18. ^ p. 9

References

  • Supreme Court of the United States (2011). "Nevada Commission on Ethics v. Carrigan (Syllabus)". {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Supreme Court of the United States (2011). "Nevada Commission on Ethics v. Carrigan (Opinion)". {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Supreme Court of the United States (2011). "Nevada Commission on Ethics v. Carrigan (Kennedy Concurrence)". {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Supreme Court of the United States (2011). "Nevada Commission on Ethics v. Carrigan (Alito Concurrence)". {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Supreme Court of the United States (2011). "Nevada Commission on Ethics v. Carrigan (Docket Notes)". {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Nevada Revised Statutes. "Ethics In Government". {{cite journal}}: Cite journal requires |journal= (help)
  • Nevada Commission on Ethics (2007). "Carrigan Opinion"" (PDF). {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
  • Supreme Court of the State of Nevada (2010). "Carrigan v. Comm. On Ethics of the State of Nevada (Opinion and Dissent)" (PDF). {{cite journal}}: Cite journal requires |journal= (help); Unknown parameter |month= ignored (help)
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