What level of scrutiny should a reviewing court apply to a state’s ethics provision regarding when an elected official must recuse himself from a vote?
The Nevada Commission on Ethics (“Commission”) censured Michael Carrigan, a city council member, for voting to issue a permit to a company employing his friend and campaign manager as a consultant. The Commission alleges that Carrigan violated a catch-all recusal provision requiring an official to disqualify himself when faced with a personal interest in a matter “substantially similar” to several enumerated interests. Carrigan argues that the provision is an impermissible burden on his First Amendment rights of expression and association and must be subject to strict scrutiny. The Commission contends that any infringement on the First Amendment is incidental, and therefore the United States Supreme Court should eschew strict scrutiny in favor of a lower standard of review. The Supreme Court of Nevada applied strict scrutiny and struck down the provision as unconstitutional. The United States Supreme Court’s decision could affect the level of scrutiny at which recusal provisions are reviewed nationwide and the freedom of states to establish independent legislator voting restrictions.
Questions as Framed for the Court by the Parties
Whether the First Amendment subjects state restrictions on voting by elected officials to (i) strict scrutiny, as held by the Nevada Supreme Court and the Fifth Circuit, (ii) the balancing test of Pickering v. Board of Education, 391 U.S. 563 (1968), for government-employee speech, as held by the First, Second, and Ninth Circuits, or (iii) rational-basis review, as held by the Seventh and Eighth Circuits.
In 1999, Respondent Michael Carrigan was elected to the Sparks City Council and has since been re-elected twice. See Carrigan v. Commission on Ethics of the State of Nevada, 236 P.3d 616, 618 (2010). Carlos Vasquez managed each of Carrigan’s election campaigns and also served as a consultant to the Red Hawk Land Company regarding its Lazy 8 hotel development project. See id. In 2005, an application from the Lazy 8 project came before the Sparks City Council. See Id. Given his history with Vasquez and Vasquez’s affiliation with the Lazy 8 project, Carrigan asked the Sparks City Attorney for advice on how he should proceed regarding the upcoming vote. See Id. Following the city attorney’s recommendation andbefore voting on the proposal, Carrigan announced that Vasquez was his personal friend and had been his campaign manager, but that he, Carrigan, did not have a financial stake in the outcome of the vote. See Id.After making this disclosure on the record, Carrigan participated in the vote. See Id.
Subsequently, complaints were made to the Nevada Commission on Ethics (“Commission”), which, after an investigation, censured Carrigan on the ground that he should have known that his relationship with Vasquez prohibited him from voting on the Lazy 8 proposal under a Nevada ethics law. See Carrigan, 236 P.3d at 619. That law states that “a public officer shall not . . . act upon a matter . . . [w]hich would reasonably be affected by the public officer’s . . . commitment in a private capacity to the interest of others.” See Nev. Rev. Stat. 281A.420(1)(c). While the law explicitly defines certain relationships that are deemed to affect a public official’s position, the Commission found that Carrigan and Velasquez’s relationship was not of a type explicitly enumerated as forbidden. See Nev. Rev. Stat. 281A.420(8)(a)(1)–(4); Carrigan, 236 P.3d at 619. However, the Commission determined, Carrigan was prohibited from voting by a catch-all provision that was meant to encompass relationships like his and Velasquez’s. See Nev. Rev. Stat. 281A.420(8)(a)(5); Carrigan, 236 P.3d at 619.
Carrigan brought an action in Nevada state court challenging the Commission’s finding. See Carrigan, 236 P.3d 616, 619. The district court dismissed the petition and the case came before the Supreme Court of Nevada. See Brief for Petitioner, Nevada Commission on Ethics at 1. The Supreme Court found that the vote of an elected official is protected under the First Amendment and that any provision regulating an elected official’s vote must be subjected to strict scrutiny. See Carrigan, 236 P.3d 616, 621. Applying that standard, the court found that the prohibited relationship definitions were overly broad and therefore invalid restrictions on Carrigan’s First Amendment rights. See Id. at 624.
The United States Supreme Court granted certiorari on January 7, 2011 to decide whether the Nevada ethics provision governing recusal should be subjected to strict scrutiny because of its First Amendment implications. See Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 857 (2011).
The Commission argues that because the recusal provision at issue does not impermissibly violate Carrigan’s First Amendment rights, the provision is an acceptable restriction subject only to a review for reasonableness. See Brief for Petitioner at 19, 31. Carrigan argues that because the restriction on his vote violated his First Amendment freedoms of expression and association, the Court should apply strict scrutiny and invalidate the provision as unconstitutional. See Brief for Respondent at 22, 36.
Does the act of casting a legislative vote implicate First Amendment protections?
The Commission argues that the Nevada recusal provision does not improperly infringe on Carrigan’s First Amendment rights, because the provision neither regulates speech nor targets the “expressive content of voting.” See Brief for Petitioner at 19, 33. Rather, the Commission contends that the provision determines whether the legislator is eligible to vote, regardless of how he or she intended to vote, and therefore remains a step away from any expressive quality in the vote. See Id. at 38. The Commission claims that the provision deals only with objective facts about legislators—their relationships with interested parties—and does not hinge on the subjective expressive content of a vote. See Id. at 37. Therefore, the Commission argues that the provision is content-neutral and does not unacceptably infringe on the First Amendment freedoms of speech, expression, or association. See Id. at 36–37.
Carrigan claims that the Nevada law impermissibly burdens the First Amendment “expressive and associational aspects” of his right to vote. See Brief for Respondent at 22. He argues that his vote on the Lazy 8 project was an expression of his political point of view, and asserts that the recusal requirement improperly impacts his relationship with his campaign volunteers. See Id. at 23–24, 29. According to Carrigan, his political association with Vasquez led to his censure. See Id. at 29–30. He contends that the recusal provision impermissibly burdened his First Amendment freedom to politically associate with Vasquez because it turned his political alliance into a grounds for a voting disqualification. See Id. at 32.
What is the proper level of scrutiny with which to review a state restriction on the ability of elected officials to cast legislative votes?
The Commission claims that any infringement on legislators’ First Amendment rights are incidental and therefore that the Nevada recusal provision should not be subject to strict scrutiny. See Brief for Petitioner at 31–32. The Commission asserts that the Court only uses strict scrutiny when a First Amendment restriction is directly targeted. See Id. at 31. In this case, the Commission contends that because the recusal provision does not “directly and substantially burden” the communicative element of a legislator’s vote, the Court should subject the provision to a “review for reasonableness” or uphold the statute as a reasonable regulation of legislative voting. See Id. at 36. Both of these standards of review, the Commission reasons, are more appropriate than strict scrutiny in this instance. See Id. at 41.
Carrigan contends that the Court should review the burden the recusal provision places on his First Amendment rights under strict scrutiny. See Brief for Respondent at 36. He claims that strict scrutiny is required when a law “imposes severe burdens” on First Amendment rights. See Id. at 39. In this case, he argues, the combination of expressive and associational burdens on him and his campaign volunteers, directly and indirectly, is sufficiently severe to warrant strict scrutiny. See Id. at 38–40.
Is the recusal provision constitutional?
The Commission argues that the provision at issue is constitutional. See Brief for Petitioner at 32, 41. The Commission states the provision will be upheld under a review for reasonableness because it is “reasonable and nondiscriminatory, advance[s] important governmental interests unrelated to expression, and [does] not burden substantially more speech than necessary to further the government’s interests.” See Id. at 32. Specifically, the Commission reasons that the provision advances the important government interests of limiting private influence on and protecting the integrity and efficiency of the government. See Id. at 33. The Commission also asserts that a State can constitutionally establish reasonable regulations over a municipal council. See Id. at 41–42. According to the Commission, requiring legislators with private interests in a matter to recuse themselves from a vote on that matter is reasonable. See Id. at 42–43. Finally, the Commission claims that the “substantially similar” language from the provision is not overly broad, because there have been no situations in which the provision improperly punished activity protected by the First Amendment. See Id. at 49–50. On the contrary, the Commission argues that “substantially similar” defines the catch-all provision based on the other categories of the statute. See Id. at 53. Rather than overbroad, the Commission asserts that the provision is narrowly tailored because it burdens First Amendment rights less than disclosure, the proposed alternative. See Id. at 56. The Commission warns that although disclosure might bring potential personal conflicts to light, such disclosure, unlike the recusal provision, would not prevent a legislator from voting even with a clear personal interest in a matter. See Id. at 57–58.
Carrigan claims that the recusal provision is unconstitutional on several grounds. See Brief for Respondent at 41–42. First, he asserts that the catch-all provision is unconstitutionally vague because it does not provide fair warning of the rule to people of ordinary intelligence. See Id. at 42. He argues that the provision’s “substantially similar” language did not fairly indicate that his relationship with his volunteer campaign manager required his recusal from a matter in which Vasquez was involved. See Id. at 43. Second, Carrigan contends that the provision fails any standard of review because the state has neither a compelling nor legitimate reason to proscribe a vote because of political loyalty. See id. at 50. Carrigan accepts that integrity of the voting process is important, but argues that the recusal provision denies the right to vote based on political interests. See Id. He argues that the government has no legitimate interest in banning politics under the guise of banning corruption. See Id. at 51. Finally, in addition to asserting the provision is both over- and under-inclusive, Carrigan maintains that it is not narrowly tailored because disclosure is a less restrictive alternative. See Id. at 55–57. Disclosure, Carrigan alleges, would inform the public of any possible improper loyalties and give the public a chance to vote the legislator out of office. See Id. at 57–58.
Each state has enacted laws to guide an elected official’s actions when presented with a matter in which he or she may have either a potential or actual bias. See Brief of Amici Curiae the States of Florida et al. (“the States”) in Support of Petitioner at 3. The determination of what level of scrutiny to apply to these provisions implicates both federalism and First Amendment concerns. See id.; see Brief for Respondent, Michael Carrigan at 2.
Arguing that the application of strict scrutiny to state ethics statutes will infringe upon state sovereignty, Florida and other states (“States”) contend that these ethics statutes are one means through which they can ensure a fair and democratic governmental process. See Brief of the States at 5–6. They maintain that these ethics provisions are a fundamental part of the structuring of the state government and that the federal government should accord them deference. See Id. at 8. The States also emphasize that they can serve as important laboratories for experimentation in testing governmental structure. See Id. at 18. They warn that applying strict scrutiny will essentially force all states to conform to a homogenous standard for ethics statutes, thereby depriving the states of the ability to respond to the particular needs of their populace. See Id.
In contrast, Carrigan maintains that although ethics provisions are part of a state government’s structure, the provision in question places significant limitations on the elected official’s fundamental First Amendment rights. See Brief for Respondent at 23. Because of this, Carrigan contends that applying strict scrutiny maintains the proper balance between the roles of the state and federal governments. See Id. at 27–28. He insists that because the provisions in question can infringe fundamental rights, the states must ensure those rights are still protected. See Id.Carrigan argues that failing to apply strict scrutiny to these ethics provisions will have the effect of preventing legislators from exercising their First Amendment rights. See Id. at 24–25.
The States contend that the use of strict scrutiny in this case will undermine the validity of all state recusal statutes. See Brief of the States at 19–20. They argue that permitting strict scrutiny to apply to a neutral ethics provision, like the one at issue here, will mean that a state cannot prevent an elected official from voting in a matter in which he or she is far from disinterested. See Id. at 19. The States contend that this will foster corruption in the public government. See Id. at 19–20. The Reporters Committee for Freedom of the Press and other news organizations (“the Press”) argue that applying strict scrutiny to these and other ethics provisions works against promoting honest government. See Brief of Amici Curie the Reporters Committee for Freedom of the Press, et al.in Support of Petitioner at 4. The Press contends that these ethics rules promote a compelling government interest, but that under the strict scrutiny analysis these rules may be invalidated because they are too broad. See Id. at 5. The Press maintains that because ethical decisions are seldom black and white, the laws that regulate standards of ethical conduct need not be overly precise. See Id. at 5–6. However, the Press argues that even if these ethics laws may be broad, they are important to creating an honest and accountable government. See Id. at 4, 9.
In contrast, Carrigan argues that applying strict scrutiny here will not have a widespread effect on other states’ ethics statutes because the provision at issue is unique to Nevada, and “literally unprecedented” elsewhere. See Brief for Respondent at 19–21. He maintains that although nearly all states have ethics laws regarding conflicts of interest due to personal and business relationships, Nevada is the only state that has a provision that calls for disqualification based on the enumerated relationships as well as relationships that are “substantially similar” to those listed. See Id. at 20. Similarly, Carrigan argues that no other state has an ethics provision that permits disqualification on the basis of political relationships. See Id. He maintains that the Court could hold that this particular ethics provision is subject to strict scrutiny because of its singularity, without holding that all recusal provisions should be subjected to such scrutiny. See id. at 21.
In this case, the Court is faced with determining the proper level of review that must be undertaken when examining a recusal statute enacted by Nevada. The Court will need to strike a balance between the federalism concerns advocated by the state and the First Amendment rights that may be involved in the vote of an elected official. The Nevada Commission on Ethics argues that strict scrutiny is inappropriate here because the statute in question was neutral and that the application of such scrutiny here will call many states recusal provisions into question. In contrast, Carrigan argues that the provision at issue affects the elected official’s First Amendment rights and that it does not further a legitimate state interest.
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
• New York Times, Adam Liptak: Justices to Hear Case on Recusal Laws (Jan. 7, 2011)
• First Amendment Center, David L. Hudson, Jr.: Garcetti Would Be Unwelcome Element in Nevada Case (Jan. 11, 2011)