U.S. Supreme Court upholds Nevada ethics law

By David McGrath Schwartz

Published Monday, June 13, 2011 | 8:29 a.m.

Updated Monday, June 13, 2011 | 8:53 p.m.

CARSON CITY — The U.S. Supreme Court has rescued Nevada’s ethics oversight of politicians from the brink of irrelevancy.

The ruling, handed down Monday, overturned a 2010 Nevada Supreme Court decision that laws restricting politicians from voting because of conflicts of interest violate their First Amendment right to free speech.

The 2010 state Supreme Court ruling had left the Ethics Commission with an uncertain role, coming after a series of rulings overturning its decisions and undercutting its powers.

An unrelated state Supreme Court decision in 2009 found the commission had little oversight of lawmakers performing duties such as voting because of the separation of powers. (The commission is part of the executive branch, while lawmakers inhabit the legislative branch.)

In addition, District Courts have, for years, had a habit of overturning Ethics Commission rulings against elected officials, most notably one against Las Vegas Mayor Oscar Goodman.

Had the U.S. Supreme Court not overturned the state court ruling, the commission would have been stripped of almost all oversight of elected officials’ votes.

“It’s a great victory,” said Caren Jenkins, commission executive director.

The unanimous Supreme Court decision involves an ethics slap on the wrist of Sparks Councilman Michael Carrigan and his 2005 vote on a casino project, called Lazy 8. The case involves Carrigan’s longtime friend and campaign manager, who was also a consultant on the project.

The Ethics Commission found Carrigan unintentionally violated ethics law by voting on the project, even though he had disclosed the relationship. Carrigan appealed the case to court. The case will now head back to the Nevada Supreme Court.

In an interview, Carrigan said he hopes the state Supreme Court will dismiss the case under parts of the decision that were not considered by the top U.S. court.

But some legal experts warned that the strong wording of the case hurt the chances of the case getting overturned on other grounds.

“You’d risk facing another U.S. Supreme Court decision that says you’re running against the grain of their opinion,” said Jeff Stempel, a UNLV law professor. He said the majority Nevada Supreme Court decision, which was opposed by Justice Kris Pickering, “kind of caught me by surprise. I was at a loss to understand the majority to go out on a limb.”

The decision, written by Justice Antonin Scalia, overturned the Nevada Supreme Court’s contention that legislators’ votes are an expression of speech.

“A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal,” he wrote. “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

Scalia also appeared to mock the idea that lawmakers’ votes express a deeply held belief of lawmakers. He even suggested a checklist.

“How do they express those deeply held views, one wonders? Do ballots contain a check-one-of-the-boxes attachment that will be displayed to the public, reading something like ‘( ) I have a deeply held view about this; ( ) this is probably desirable; ( ) this is the least of the available evils; ( ) my personal view is the other way, but my constituents want this; ( ) my personal view is the other way, but my big contributors want this; ( ) I don’t have the slightest idea what this legislation does, but on my way in to vote the party Whip said vote ‘aye’?”

David McGrath Schwartz can be reached at [email protected] or 775-687-4597. Follow David on Twitter at twitter.com/schwartznews.