January 11, 2011

Nevada ethics case heads to Supreme Court

In 2006, Sparks City Councilman Michael Carrigan voted to approve a land-use deal for a hotel-casino development in Sparks. Prior to the vote, he disclosed that his former campaign manager, Carlos Vasquez, was a consultant for a business with ties to the hotel-casino.

Following the vote, the Nevada Commission on Ethics found Carrigan violated Nevada's ethics rules by not recusing himself entirely. Carrigan appealed the decision to the Nevada Supreme Court.

The Nevada Supreme Court ruled in favor of Carrigan. The Court ruled that when a politician casts a vote, they are exercising their First Amendment right of free speech and any attempt by the government to regulate free speech must be narrowly tailored to meet a compelling governmental interest in the least restrictive means possible. The Court found that the provision used by the Ethics Commission against Carrigan was not strictly enough defined and therefore ruled it unconstitutional.

The Ethics Commission appealed this ruling to the Supreme Court of the United States. The US Supreme Court accepted their petition last Friday and arguments for the case will be heard later this year.

The question the Supreme Court will consider is: "What level of scrutiny is appropriate when judging restrictions placed upon a politician's right to cast votes?"

Should it be "strict scrutiny" -- as the Nevada Supreme Court found -- where the state government must show how their recusal law is "narrowly tailored" to meet a "compelling" governmental interest? Or should it be "rational basis," where the recusal law only needs to be "rationally related" to a "legitimate" governmental interest? Or should it be another standard of review, such as Pickering's "balancing test" for government employees?

We'll be sure to let you know what happens.

(H/T Nevada News Bureau)