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Nevada Ethics Commission v. Carrigan
by Jake Highton
Mar 13, 2011 | 1290 views | 0 0 comments | 6 6 recommendations | email to a friend | print
“Caesar’s wife must be above suspicion.”

— Julius Caesar

quoted by Plutarch

Rarely does a legal case start in Nevada and reach the U.S. Supreme Court for a decision that determines the law of the land.

But just such a case concerns Mike Carrigan, a Sparks city councilman from the Fourth Ward. He has been elected four times. In his last race he won with a fantastic 80 percent of the vote.

The legal question arose when the Nevada Ethics Commission ruled that Carrigan should  have abstained in 2006 from voting on an application for a casino license. It did so because the casino was represented by Carrigan’s good friend and manager of his re-election campaign.

The Carson City District Court upheld the commission, declaring that “the state has a strong interest in having an ethical government.”

But in 2010 the Nevada Supreme Court reversed the lower court. It ruled that Carrigan’s First Amendment right was violated. It quoted from the U.S. Supreme Court decision in Citizens United (2010): “Voting by an elected public officer on public issues is protected speech.”

Judge Michael Douglas wrote the 5-1 decision for Nevada’s highest court.

The dissenter, Judge Kristina Pickering, said “the justification for requiring recusal on matters involving conflict of interest on the part of elected officials is strong,” enhancing “people’s faith in the integrity and impartiality” of officeholders.

The Nevada Ethics Commission appealed to the U.S. Supreme Court. It said the decision by the Nevada Supreme Court “calls into question a century of common-law recusal restrictions and casts doubt on the validity of widely adopted recusal statutes.”

The U.S. Supreme Court granted certiorari. It will hear oral arguments April 27.

Carrigan’s view

“Of course I agree with the Nevada Supreme Court,” Carrigan said. He cited with approval the portion of its ruling that said “the recusal statute is overbroad and unconstitutional.”

Moreover, Carrigan said the “First Amendment subjects state restrictions on voting to strict scrutiny.”

A Nevada Revised Statute declares that an elected official must have a good reason to abstain. “Neither I nor my attorney could find one,” Carrigan said.

Jefferson’s view

The House of Representatives, meeting in the first Congress April 7, 1789, adopted rules for lawmakers. One of the most important was a proviso that “no member shall vote on any question” he has an interest in.

And the great intellect Jefferson argued that recusal rules were necessary for decency and the fundamentals of the social compact which denied “any man to be a judge in his own cause.”

The Founders’ recusal rule has been a mainstay of state legislatures ever since.

Highton’s view

I have known Mike since 1991 when he was a student of mine in a reporting class at the University of Nevada, Reno. He was a “second career” student who had spent 24 years in the Navy after graduating from the Naval Academy.

Mike, after becoming a newspaperman in Fallon, began teaching parttime at UNR in 1996. We often talked “shop” about the newspaper business and the teaching of journalism. We have been friends ever since.

I contributed to Mike’s first run for political office in 1999, the first and last Republican I have ever supported financially and politically. I would have voted for him if I lived in Sparks.

Mike, blunt and gruff, is a man of unquestioned integrity. He is as honest as the day is long, as the folk saying has it. My trust and belief in him is absolute.

But all of that is beside the point. He should not have voted in an obvious case of conflict of interest.

The side he voted for lost 3-2. But that is too is beside the point. The principle is all.

Appearances are everything in politics. A politician should be like Caesar’s wife: above suspicion.

Laws requiring abstention in conflict-of-interest cases are hardly restrictions of speech.

The First Amendment defense in this case is bizarre, sounding like something lawyers dredge up to file a brief and argue for their clients. States have a compelling interest in making sure ethics prevails in government.

Whatever the Supreme Court decides it is a profound ethical question rather than a legal question.

Jake Highton teaches journalism at the University of Nevada, Reno. He can be contacted at jake@unr.edu.
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