In a case with implications for elected school board members as well as other local officials, the U.S. Supreme Court on Wednesday took up a tough Nevada ethics law that has been challenged as impinging on the First Amendment rights of policymakers.
The case involves Michael A. Carrigan, a member of the Sparks, Nev., city council who was censured by the the state’s Commission on Ethics for voting to approve a casino that had been lobbied for by an influential political confidante of Carrigan’s.
The state’s ethics laws for local officials requires them to abstain from voting on matters implicating their own financial interests or those of a household member, relative, an employer, or anyone else with whom they have a substantial and continuing business relationship. But the law also has a “catch-all” provision that requires recusal for any relationship that is “substantially similar” to the listed ones.
Carrigan challenged the catchall provision, and the Nevada Supreme Court ruled that voting by an elected official was core political speech under the First Amendment, triggering strict legal scrutiny of restrictions. The court went on to rule that the state law provision was substantially overbroad in the amount of speech it regulated.
During the April 27 oral arguments in Nevada Commission on Ethics v. Carrigan (Case No. 10-568), some justices questioned the idea that voting by a city council member or other local lawmaker was speech protected by the First Amendment.
“It’s a considerable question whether the vote of a legislature is ... speech at all,” Scalia said. “It’s a vote.”
Justice Samuel A. Alito Jr. wondered whether, under Nevada’s law, a city council member would have to recuse himself from voting to raise property taxes if his second cousin would be affected.
“If I were a public officer, I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin’s property taxes would ... materially affect my judgment,” Alito told the lawyer defending the state law. “But it’s even worse than that because of the ‘substantially similar’ [provision]. So the public officer not only has to think about second cousins; the person has to think about everybody who is like a second cousin to him or her. I have no idea how you go about that.”
Justice Anthony M. Kennedy wondered whether a lawmaker would have to recuse on matters involving someone from his book club, or because “they have coffee together every morning.”
“It only covers the very closest personal relationships,” said John P. Elwood, the lawyer representing the state ethics commission. “So your most intimate and closest relationships on earth would be covered.”
“Neutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator’s vote, however expressive, is not protected speech,” Elwood said. “It is, rather, a legally binding exercise of state power that he wields as an incident of public office.”
But Joshua E. Rosenkranz, the lawyer for Carrigan, said the ethics commission was acting as the “police of political purity.”
“This takes one particular legislator and says, you cannot vote.” Rosenkranz said. “And those rules are completely fine in certain circumstances, but not when the effect is to tell someone that the rationale, the reason that you are being isolated is because you associated with someone politically who helped you win an election.”
The case was the last oral argument of the court’s 2010-11 term, and a decision is expected by late June.
The Nevada ethics commission’s rules apply to school boards in the state, as reflected by one case it handled last year involving the president of the Clark County board of education. The commission received an allegation that the school board president failed to recuse herself from deliberations over a superintendent search despite the fact that her husband worked for a company owned in part by a person interested in the job.
The commission’s staff concluded that the board member did disclose the relationship at a key point and that the state law did not require her to recuse herself from all aspects of the superintendent search. The case was not part of the one before the U.S. Supreme Court.
A version of this news article first appeared in The School Law Blog.