Tomorrow (April 27, 2011), the U.S. Supreme Court will hear oral arguments in Comm'n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011). In that case, the Court is considering whether a state statute that requires elected officials to recuse themselves from considering matters on which they appear to have conflicts of interest impermissibly infringes upon a city councilman's First Amendment rights.
The Court will confront the issue of whether an elected official's vote in a quasi-judicial matter is protected "speech," and what standards courts should apply when ethics laws are challenged under the First Amendment. The Nevada Supreme Court invalidated its state's ethics law which required a Sparks, Nevada city councilmember to recuse himself from considering an application to develop a hotel/casino because the developer's "consultant" was a "longtime professional and personal friend" of the councilmember, and had been his campaign manager. The councilman disclosed the relationship, but voted on the application.
We've been following the case closely (see this Zoning & Planning Law Report article for a summary), because the Court's decision could have a broad impact on the land use process and the ground rules for conflicts of interest in development and other applications at the state and local levels. The Washington Post also has the background on the case here. Hawaii readers should check out Ian Lind's view of how this case might impact locally here.
We've posted all of the merits and amicus briefs on our resource page, and will post the transcript of the arguments when it is available.
Predictions? This one is hard to call. The lower courts have taken at least three approaches to the issue. Some courts, like Nevada's, view an official's vote as "speech," and review restrictions on that right under the "strict scrutiny" standard (which is most often "fatal" scrutiny since ethics codes are not closely tailored even though the state's interest is compelling). Other courts apply an intermediate level of scrutiny, and view an official's vote through the same lens as speech by unelected government employees, which can be regulated and severely curtailed. Other courts take a hands-off approach, view an official's vote as conduct, and see speech-as-voting as an "analogy gone wild" that implicates no First Amendment concerns at all, and is thus reviewed under the highly deferential "rational basis" test.
The Ethics Commission argues for the rational basis test, but also carefully threads a needle for the Court's fulcrum, Justice Anthony Kennedy, who often favors "intermediate" and case-by-case analysis. Its brief doesn't so much argue what the standard should be, only that it's not strict scrutiny, and we're guessing that if the majority doesn't buy into the rational basis approach, the Commission would concede an intermediate standard in order to get Justice Kennedy's vote, since the Nevada statute would most likely pass under that standard of review. That would leave only the First Amendment hawks such as Justices Scalia and Thomas to argue for the application of strict scrutiny.
We'll see if our predictions are accurate after tomorrow's arguments.
