As part of the Fall Meeting of the ABA's Section of State & Local Government Law in Tucson, on Thursday, September 22, I was on a panel discussing the Supreme Court's recent decision in Nevada Commission on Ethics v. Carrigan, "Ethical Considerations for Municipal Attorneys: Caught in the Crosshairs Reconciling the Rules of Professional Conduct with Government Ethics Laws."
Joining me in the discussion were Yvonne M. Nevarez-Goodson (Commission Counsel and one of the lawyers for the Nevada Commission on Ethics in the Supreme Court), J. Scott Rhodes (an expert in ethics and professional responsibility issues), and Professor Keith Swisher (Phoenix School of Law - his scholarship includes ethics and he produces the Judicial Ethics Forum blog). Michael Donaldson moderated.
I started us off by providing a short summary of the Carrigan case, touching on the Nevada Supreme Court's conclusion that vote by a legislator is a "core legislative function" and therefore is "speech" protected by the First Amendment. When the Nevada court reviewed the Ethics in Government Law (which requires an official such as Carrigan to recuse himself if his objectivity might reasonably be questioned) under strict scrutiny, it concluded that although the law furthered a compelling government interest, it was not narrowly tailored and did not provide sufficient notice to officials of in what relationships might call their objectivity in question.
The U.S. Supreme Court agreed that legislative voting is a core legislative function, but disagreed about what that meant. The Court held that when a legislator votes, he is acting as a trustee for the people, and is not speaking at all. Having determined that Carrigan's vote was not "speech," the Court held it did not warrant First Amendment protection. But the opinion left open the possibility that ethical restrictions on legislative voting might run into other constitutional problems, such as the right to associate. But the Court took the Scarlett O'Hara approach ("I'll think about that tomorrow") and left those issues for another day.
More on the case here: I previewed the Carrigan case in this article, and summarized the opinion here.
Ms. Nevarez-Goodson, counsel to the Nevada Commission on Ethics, provided a first-hand account of the case and the Supreme Court arguments, and gave us a preview of the arguments and issues the Court left for another day. She also reported on the status of the case after remand to the Nevada Supreme Court and the issues the court is currently considering, including waiver, exhaustion of administrative remedies, and whether the ethics law infringes upon Carrigan's associational rights. The case seems to be on an arc to return to the U.S. Supreme Court.
Mr. Rhodes elaborated on that theme, focusing on Justice Kennedy's concurring opinion which noted that ethics laws might impose burdens on speech rights if they restrict actions other than voting. He also asked whether there were any problems with the city attorney advising Carrigan about his ethical obligations under the Nevada law: who is the client, the city or the councilmember? He also noted that the Court focused on the fact that ethical restrictions on legislators have been around literally since the formation of the republic, and that this played a large part in the Court's willingness to uphold the Nevada law.
Professor Swisher, an expert on judicial ethics, tied the Carrigan case to those issues. Even though Carrigan involved an elected municipal legislator, much of the Court's attention in oral arguments was drawn to the issue of appointed and elected judges, and whether the Nevada conflicts of interest law imposed similar restrictions.
Mr. Donaldson, the Chair of the Ethics Law practice group in the State and Local Government Law Section asked us questions and responded to audience input. The session was recorded on video for re-broadcast, so if you were not able to join us in person, the State and Local Section is making it available. Stay tuned for more information.
