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Justices rule on when lawmakers should recuse from issues

By Bill Mears, CNN Supreme Court Producer
  • A city councilman should not have voted on a development project, the high court says
  • The Nevada official has a friend involved in the project
  • A legislator's vote is not his personal speech but a function of government, Scalia says

Washington (CNN) -- The Supreme Court has ruled against a Nevada lawmaker whose public vote on a pending development project put him at odds with a state ethics commission.

In a unanimous decision Monday, the justices said the state panel was right to conclude Sparks City Councilman Michael Carrigan should have stepped aside on issues where conflicts of interest could arise. Carrigan's longtime friend and campaign manager was a paid consultant to a company trying to build a local hotel and casino in Sparks.

The free-speech case hit close to home for members of the high court, who also face questions about recusal and the independence of public officials to decide matters where public confidence might be compromised. It comes amid a period of increasing national debate over Supreme Court recusal in hot-button political matters like health care reform.

At issue in the Monday ruling was whether an elected state or local legislator's vote is considered "free speech" that would shield them from a level of enforceable oversight from ethics laws.

Carrigan argued his vote should have been protected speech, since lawmakers often must make politically unpopular or deeply held personal decisions.

But writing for the 9-0 court, Justice Antonin Scalia said the lawmaker's vote was really not his own.

"When a legislator votes, however, he does so not as an individual but as a political representative engaged in the legislative process," Scalia said from the bench. "Acting in that capacity, his vote is not his own speech but a mechanical function of government, the commitment of his apportioned share of the legislature's power to the passage or defeat of a particular proposal."

The high court was debating whether the state's ethics law in question was both overly vague and burdensome when applied to the discretionary actions of a single legislator. The justices turned aside any desire to create sweeping new First Amendment protection for legislators when they cast their votes.

Carrigan was first elected to the city council in Sparks, just down the road from Reno, Nevada, in 1999. His close friend, Carlos Vasquez, had from the beginning served as a volunteer "campaign manager."

Vasquez later began working for a land company seeking to develop a casino project called the Lazy 8. Carrigan represented the ward where the facility would be built, and it became a top campaign issue during the 2006 elections.

The councilman asked the city attorney to see whether he could vote on the project, or if he would be barred by conflict-of-interest rules because of his relationship with Vasquez. Carrigan was told that so long as he publicly disclosed the friendship with the project consultant, he was cleared to vote. He did all those things, but the project was ultimately defeated 3-2. The Lazy 8 to this day remains undeveloped.

After receiving several public complaints, the Nevada Ethics Commission reprimanded Carrigan, a former Navy aviator and journalist. The unelected commission concluded the lawmaker should have consulted its staff for an advisory opinion, in addition to the city attorney. Carrigan's loyalties to Vasquez, said the panel, had the appearance at least of affecting his judgment.

State law says public officials should not vote when their "independent judgment" may be compromised by a relationship or commitment to a family member or other relative; or to an employee, employer, or business partner.

Carrigan sued over the sanction, and the state supreme court ultimately ruled in his favor. Local officials then took the case to the U.S. Supreme Court.

His attorney had told the court the Nevada law "places an impossible drag on the associational rights" of lawmakers, making "political loyalty" alone subject to recusal or disqualification.

But the high court concluded, "It is reasonable to restrict legislative debate to those who have a right to vote."

Ethics and recusal rules have always been a thorny, uncomfortable issue for politicians and judges, when officials must police themselves and their colleagues, especially in the face of any public skepticism over someone's integrity.

The high court in 2009 ruled an elected state judge in West Virginia should have pulled out of considering a case dealing with a high-stakes lawsuit against a major campaign donor.

Scalia and Justice Clarence Thomas have recently been attacked by progressive groups over public legal symposiums they attended, sponsored by Republican political donors David and Charles Koch.

Some Democrats, including embattled Rep. Anthony Weiner of New York, have said the two justices should recuse themselves from taking on an expected high court challenge to the health reform bill approved by Congress last year, because of a perceived conflict of interest relating to those symposiums.

On the other side, conservative activists have demanded newest Justice Elena Kagan stay out of the health care appeals. They cite recently released internal government memos from last year, suggesting she may have been involved in the issue while serving as the Obama administration's solicitor general. The 51-year-old justice was nominated to the court in May 2010, just weeks after the president signed the reform legislation.

The free-speech case is Nevada Commission on Ethics v. Carrigan (10-568).