(Sean Whaley/Nevada News Bureau) – The U.S. Supreme Court today upheld Nevada’s ethics law in a case involving a Sparks city councilman. The opinion reversed a ruling by the Nevada Supreme Court.
The court, in an 11-page opinion written by Justice Antonin Scalia, said Nevada’s ethics law does not infringe on elected officials’ free speech rights by imposing limits on when they can vote on public matters because of conflicts of interest.
How can it be that a restriction on a public official’s right to vote is not a restriction on free speech? Scalia asked in the opinion.
“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,” he said. “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”
The case is called Nevada Commission on Ethics v. Carrigan. In 2006, Sparks city councilman Michael Carrigan had disclosed that his former campaign manager, Carlos Vasquez, was also a consultant with a business seeking to develop a hotel-casino in Sparks. Carrigan later voted for approval of this casino in a land-use vote.
The Nevada Commission on Ethics ruled the vote improper and censured Carrigan, who appealed the ruling.
The Nevada Supreme Court, however, reversed the decision on the basis that Nevada’s ethics laws were over-broad and impinged on Carrigan’s ability to vote on public matters, a matter the court characterized as free speech.
The high court in January agreed to hear the case.
The case took on national importance. Eight other states had implored the court to take up the issue, and a high-powered team at the University of Virginia School of Law that helped petition the court to hear the case agreed to argue the case before the court.
Caren Jenkins, executive director of the Nevada Ethics Commission, said the court’s decision has made for “an extraordinarily exciting day” at the agency’s office.
“Any time the highest court in the country confirms that the acts of your agency did not infringe on the United States Constitution is a good day,” she said.
“Two important things, at least, came out of this opinion,” Jenkins said. “One is the Nevada Commission on Ethics statute about requiring abstention by a public officer when there is a conflict of interest is not over broad, and that is terrific to learn. Secondly, legislative voting is not speech and therefore it is not protected by the First Amendment to the Constitution.”
The commission is now looking forward to the reconsideration of the Carrigan case by the Nevada Supreme Court, she said.
“Without the shield, if you will, the defense of the infringement on the First Amendment, Mr. Carrigan’s arguments are going to be limited,” Jenkins said. “His attorneys are going to need to argue that there was some other wrongdoing, if you will, or some other act undertaken by the Commission on Ethics, that was impermissible. And we look forward to knowing what that might be.”