The case arose when Carrigan, a Fourth Ward councilman, voted in 2006 in favor of a casino license for the Lazy 8 in Spanish Springs. Carlos Vasquez, a good friend of Carrigan and his campaign manager, represented the casino.
The ethics commission, calling this a conflict of interest, declared that Carrigan should have abstained from voting on the matter. It censured him for not recusing himself.
The commission was upheld by the Carson City District Court. It declared that “the state has a strong interest in having an ethical government.”
But the Nevada Supreme Court reversed the lower court on First Amendment grounds. (Nevada does not have an intermediate appeals court.)
Nevada’s highest court cited the decision in Citizens United by the U.S. Supreme Court in 2010 that said “voting by an elected official is protected speech.” The majority said Carrigan was entitled to have the commission’s censure overturned.
Judge Michael Douglas wrote for the 5-1 Nevada Supreme Court majority.
The dissenter, Judge Kristina Pickering, said “the justification for recusal on matters involving conflict of interest on the part of public officials is strong,” enhancing “people’s faith in the integrity and impartiality of officeholders.”
Disgruntled with the Nevada high court decision, the ethics panel took its case to the U.S. Supreme Court. It argued that ethics was essential to honest and fair government and that recusal was demanded in a case of conflict of interest.
But Carrigan and his lawyers agreed that there was no reason for him to abstain from voting.
Carrigan was first elected to city council in 1999. He has been re-elected three times since, winning 80 percent of the vote in his 2010 race.
A Supreme Court decision is expected within the next four weeks.
Joshua Rosenkranz, lead counsel for Carrigan, is a New York lawyer who has frequently argued cases before the Supreme Court. He is one of the best appellate attorneys in the country. A law journal, Chambers USA, last year called him a mastermind.
Rosenkrantz has been a law clerk to Justice William Brennan and Justice Antonin Scalia when Scalia was a judge on the U.S. Circuit Court of Appeals for the District of Columbia.
The Rosenkrantz team filed a brief for Carrigan.
It declared that the Ethics Commission “aspires to a sterile political utopia” while presenting a “parade of horribles” against Carrigan, seeking “to take the politics out of democracy.”
Carrigan voted for the Lazy 8 because it was “right for his ward,” done at the behest of his constituents, his lawyers argued. The Lazy 8 casino was the major issue in Carrigan’s ward in the 2006 campaign.
“Carrigan knocked on 2,500 doors and asked his constitutents face-to-face what they thought about his plan for the Lazy 8,” the brief said. “These conversations convinced him that at least 70 percent of his constituents supported his vision of the project.”
“This case is not about Carrigan’s ‘personal economic interests,’ ” the brief declared. “It is about political interests.”
Carrigan put his relationship with Vasquez on the record so voters were well aware of the connection.
“His political enemies and the press played up the disclosure,” the brief said.
Nevertheless Carrigan retained his council seat by a landslide.
Carrigan lawyers cited what it called the vagueness of the Ethics Commission ruling, declaring that such overbroadness allowed the commission “to be played as a pawn in a larger political game between rival casinos.”
It argued that “Nevada’s catch-all disqualification provision fails any appropriate level of scrutiny.”
The brief concluded by urging the Supreme Court to sustain the decision of the Nevada Supreme Court.
Carrigan’s argument is persuasive. But so is the brief filed by the Ethics Commission. (Lawyers are skilled in making any case look good.)
The lead counsel for the commission is John Elwood, a Washington, D.C., attorney. Yvonne Nevarez-Goodson is the Nevada commission counsel.
The commission brief argued that the decision by the Nevada Supreme Court has no support in U.S. Supreme Court precedents, “which stand against the claimed First Amendment right to cast a legislative vote.”
“Recusal rules have been widely used since the earliest days of the Republic and long been understood to embody fundamental principles of governance wholly unrelated to the suppression of ideas or expression,” the brief said.
“The premise that the First Amendment entitles local legislators to cast votes on any matter, particularly one on which private interests would materially affect their independent judgment, is alien to the American constitutional tradition and to first principles of self-government.”
The brief said that the Nevada Supreme Court had misapplied “First Amendment overbreadth doctrine.”
It added: were the Supreme Court to embrace the conclusion that votes are protected political speech it would “render presumptively unconstitutional bedrock conflict-of-interest rules in virtually every state.”
The commission brief argued that the Nevada Supreme Court “erred from the outset,” not giving a single instance where the recusal statute has punished protected speech.
Recusal in no way burdens Carrigan’s rights, the brief said.
“He remains free to communicate his views to his constituents and the public through public speaking, television appearances, newsletters, pamphlets, advertisements, telephone calls, personal visits and emails,” commission lawyers argued.
As for missing a vote because of recusal, the brief noted that citizens are often temporarily without a voice because of “death, resignation, illness, scheduling conflicts or failure to vote.”
Recusal is simply a rule to maintain “integrity in the discharge of official duties” and prevent the misuse of office for private ends,” the brief declared.
The commission attorneys concluded by asking the U.S. Supreme Court to reverse the Nevada Supreme Court.