Supreme Court Decides Nevada Commission on Ethics v. Carrigan
On June 13, 2011, the Supreme Court decided Nevada Commission on Ethics v. Carrigan, No. 10-568, holding that states constitutionally can require public officials to recuse themselves from voting on, or advocating for or against, a matter relating to the official's or a related person's private interests.
Nevada's Ethics in Government Law provides 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 his situation would be materially affected by … [h]is commitment in a private capacity to the interests of others," Nev. Rev. Stat. §281A.420(2) (2007), including persons who are related by blood, adoption, or marriage to the officer, who employ the officer or a member of his household; or who have a substantial and continuing business relationship with the officer, or who have any other substantially similar commitment or relationship.
The Nevada Commission on Ethics censured Michael Carrigan, an elected member of a city council, because he voted (in the minority) to approve an application for a hotel/casino project on which his longtime friend and campaign manager had worked as a paid consultant. The Commission did not fine Carrigan, because his violation was not willful; prior to his vote, the city attorney had advised him that disclosing his relationship with his friend before voting, which he did, would satisfy his obligations under the ethics law.
Carrigan challenged his censure, and a divided Nevada Supreme Court reversed the censure, holding that voting was protected by the First Amendment. In that context and applying a strict scrutiny standard of review, the Nevada Supreme Court held that the catchall "substantially similar" provision was unconstitutionally overbroad because it "fails to adequately limit the statute's potential reach and does not inform or guide public officers as to what relationships require recusal."
The Supreme Court reversed. A unanimous Court held that legislative recusal rules are constitutional because they have been regarded as permissible restrictions on members of the legislative branch since the country's founding. The Court continued (in an opinion joined by eight Justices) that the act of voting "is not personal to the legislator but belongs to the people; the legislator has no personal right to it," and therefore the act of voting itself "symbolizes nothing" and is not speech protected by the First Amendment. "[A] legislator has no right to use official powers for expressive purposes."
Regarding Carrigan's argument that the catch-all provision was unconstitutionally vague, the Court noted that Carrigan's brief in opposition to the petition for writ of certiorari had failed to argue that the provision was unconstitutionally vague even if his voting was not protected speech, and therefore held that Carrigan had waived that argument.
The Court commented on two other situations. First, it noted that a legislator "simply discussing a bill or expressing an opinion for or against it … is exercising personal First Amendment rights" (thereby indicating that recusal rules might not apply to such general expression). This case, however, did not involve that situation.
The Court also commented that there are "differences between a legislator's vote and a judge's, and thus between legislative and judicial recusal rules." Justice Kennedy's concurring opinion expanded on this observation. After noting that the "Court has held that due process may require recusal in the context of certain judicial determinations," he stated his view that "differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, … may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them."
Justice Scalia delivered the opinion of the Court, in which all Justices joined except Justice Alito. Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Kennedy filed a concurring opinion.