The Supreme Court today upheld Nevada’s ethics law in the case of Nevada Commission on Ethics v. Carrigan, which challenged a state conflict of interest law on 1st Amendment grounds.
I haven’t had a chance to read the whole opinion, but the Supreme Court held that the law was not unconstitutionally overbroad.
Now we’ll have to get to the fine print and find out whether there are down sides to the opinion.
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Ian, I read the case a few days ago. It is neither long nor complex, thankfully. I have not reviewed the case again, but this is what I recall. Carrigan was an elected city council member who claimed he had a First Amendment right to vote despite a conflict of interest recusal law that barred him from doing so. The U.S. Supreme Court ruled that voting did not involve a First Amendment Right, but was merely “conduct”. Hence, conflicts of interests laws or rules cannot be struck down per se on a First Amendment claim. There were concurring opinions, but no dissents. The opinion was very narrow. It did not deal with any claim that the statute in question was unconstitutionally overbroad–so that issue was not considered. The opinion did not deal either with the constitutional right of association. I think that all that can be said at the moment is that a recusal law (conflict of interest law) cannot be struck down on the theory that the elected official has a First Amendment right to vote. That means recusal laws survive a First Amendment challenge. My gut feeling (and reading between the lines of the opinion) tells me that recusal laws that are properly enacted (and without other problems like overbreadth) will always be okay and restrict elected officials. Overbreadth was not argued in the case, and I do not know why Carrigan did not (apparently) raise it. I am no constitutional expert, and don’t know any more about the case than was presented in the opinion. The issue, again, was narrow–a claim that an elected official could not be stopped from voting based on a recusal law because of First Amendment rights. Not so, says the Court. I believe Justice Alito in a concurring opinion stated that voting did involve the First Amendment, but agreed with the court for other reasons. Again, it seems to me that recusal laws for elected officials will be okay, unless they have other problems, like being overbroad. If I have missed or misstated anything, I hope others will chime in. Thanks, Ian, for your blog–it is always worth reading.
But the first part of the SC opinion holds that the Nevada law is not unconstitutionally overbroad, does it not??
No, the opinion does not say (or “hold”) that at all–that (overbreadth) was never addressed in the opinion as an issue. In order to say that a statute is “overbroad”, you first have to have a First Amendment right (here, speech) in the matter. The Nevada Supreme Court thought there was one–a First Amendment right, and thus went on to the issue of whether the statute was overbroad. The whole point of the U.S. Supreme Court opinion was to say that there is no First Amendment right of speech for an elected official to vote–it is conduct, not speech. Thus the U.S. Supreme Court never addressed overbreadth, because you have to have a First Amendment right in the matter in the first place in order to argue that. There is another doctrine relating to void-for-vagueness under the due process clause, but the U.S. Supreme Court stated on the last page of its opinion that it would not address that because Carrigan and nobody else had raised the issue. Sometimes the terms “overbreadth” and “overbroad” and “void-for-vagueness” are used sort of interchangeably when discussing statutes and the constitutional right to due process. In my comment above, I should have been more careful in distinguishing “overbroad” as it relates to the First Amendment, and “overbroad” (i.e., void-for-vagueness as to due process) when discussing the Court opinion. I assume Carrigan thought he had a better argument as to overbroad in terms of the First Amendment, than “unconstitutionally vague” for purposes of due process. Just guessing here. Also, if one has a First Amendment right to speech, one has more protections in terms of statutes curtailing “speech”–thus making statutes dealing with speech more easily assailable. Anyway, I think the opinion is a good one for ethics and proper recusal statutes or rules for recusal for elected officials and conflicts of interests.
Quote from the opinion:
“Held: The Nevada Ethics in Government Law is not unconstitutionally overbroad. Pp. 3–11.”
http://www.supremecourt.gov/opinions/10pdf/10-568.pdf
Ian, you are merely quoting from the “syllabus” to the opinion, which is meant to be descriptive of the opinion as a help to others and lawyers, but as the caveat to the syllabus says, “the syllabus constitutes no part of the opinion of the Court.” Lawyers cannot quote from a syllabus to a court because it simply is not law, and is not a court opinion. It is just a guide. As a guide, all it says is that the statute is not overbroad, but that is just incidental to the fact that Carrigan had no First Amendment right which one needs to then discuss overbreadth of a statute. Quote me something from the opinion that says the statute is not overbroad. The holding in the opinion is that Carrigan had no First Amendment right–thus no need to examine whether the statute was proper in terms of the First Amendment. Again, the syllabus is a guide, and does not necessarily always accurately reflect the holding of an opinion. You say in your reply that you are quoting from the opinion, but you are not. You are quoting from the syllabus.
Ian, I wrote a reply to your reply above (dated “June 17, 2011 at 9:20 pm”) as a good faith effort at explaining the importance of the U.S. Supreme Court opinion. My reply or comment does not appear as a reply in your comments section to your reply I have mentioned above. Can you tell me what happened to it?
My hosting service was having trouble yesterday, and iLind.net was not available much of the day. After getting this last comment, I went searching and found that several people’s comments submitted yesterday were not handled properly. I’ve salvaged several, including yours, which should now appear properly. Thanks.
Ian, I think you miss his point.
Luckily, Dan’s recent post clarified the difference between the syllabus and the opinion it summarizes, and the court’s reasoning in overturning the Nevada court’s earlier ruling that the ethics law was constitutionally overbroad. Thanks, Dan, for your assist on this.
Carrigan’s First Amendment argument was that the “catch-all” provision in the Nevada ethics statute infringed on his right to free speech by prohibiting him from voting.
The “overbroad” language in the Scalia opinion came from the Nevada Supreme Court, which concluded that the statute was overbroad and thus violated the First Amendment. “Overbreadth” for First Amendment purposes means that a restriction on speech is not narrowly drawn, and thus might prohibit protected speech as well as speech that is ok to regulate or limit.
Scalia’s opinion did not address that issue, because it concluded that the First Amendment was not applicable since legislative voting is not protected “speech.” Having decided the threshold issue that voting is not speech, the Court did not need to address whether the Nevada law limited it impermissibly.
The majority opinion left open two questions that seemed to take up much of the Court’s attention at oral arguments. First, whether the Nevada statute’s catch-all provision impermissibly burdened Carrigan’s right to political association (a separate First Amendment right) by in effect penalizing him after the fact for his relationship with the developer’s consultant. Second, whether as a matter of due process, the catch-all provision was too vague to provide notice of what relationships will result in recusal. The Court addressed neither, concluding that Carrigan waived them.
Ian, Thanks for the clarification. I am glad to read the other comments, and that of Mr. Thomas, who has been writing about this case before and after the decision for Civil Beat, and providing much clarity. The opinion is a very important one for ethics, and around 14 ethics commissions from other states wrote amicus briefs in support of the position of the Nevada Ethics Commission. The syllabus in front of this opinion was confusing–it looked like the start of the opinion, and it took me awhile to figure out where the opinion actually started. I did not read the syllabus because they can be so clipped as to be misleading. Still, I was shocked to see how the syllabus described the holding. Maybe there is some method to what is done in writing a syllabus, such as to highlight common key words. There were many editorials across the land in papers extolling the holding in the opinion. With all the talk here in Hawaii about conflicts, I did not see any coverage in the Honolulu Star-Advertiser–but maybe I just missed it. It seems a worthy topic, and of course the opinion is just as important here as anywhere else. Thanks for focusing on the opinion.