SCOTUS Ethics Case Resource Page: Do Elected Officials With Conflicts Of Interest Have A First Amendment Right To Vote?

In Comm'n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011), the U.S. Supreme Court is considering whether a state statute which 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.

In that case, the Nevada Supreme Court invalidated a Nevada 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. We've been following the case closely, since 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 Court accepted this Question Presented for review:

The Nevada Supreme Court held that the vote of an elected official is protected speech under the First Amendment and that the recusal provision of the Nevada Ethics in Government Law is subject to strict scrutiny. Under that standard of review, the court concluded that a portion of the recusal statute was overbroad and facially unconstitutional. The question presented is: 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.

The Court's docket page for the case is here.

Here are the key documents and briefs:

• Supreme Court Preview: Voting as Speech When a Government Official Has a Conflict of Interest -- "Analogy Gone Wild" Or First Amendment Right?, 34 Zoning & Planning L. Rptr (Apr. 2011)

• Brief of the Petitioner Nevada Commission on Ethics

• Brief of Respondent Michael Carrigan

• Reply Brief for the Petitioner

• Amicus Brief by 14 States in Support of Petitioner

• Amicus Brief for Public Citizen, Inc. in Support of Petitioner

• Amicus Brief for the Nevada Legislature in Support of Reversal

• Amicus Brief for the Reporter's Committee for Freedom of the Press, the Student Press Law Center and 14 Other News Organizations in Support of Petitioner

• Brief of Amicus Curiae International Municipal Lawyers Association, In Support Of Respondent

• Brief Amicus Curiae of the James Madison Center and the Center for Competitive Politics Supporting Respondent

• Cert stage briefs

• Nevada Supreme Court opinion, Carrigan v. Comm'n on Ethics, 236 P.3d 616 (Nev. 2010).

• New York Times: Justices to Hear Case on Recusal Laws