Breaking News: Supreme Court Decides Nevada Commission on Ethics v. Carrigan

See the Supreme Court’s opinion, the SCOTUSBlog page and this early AP report.[Disclosure: I was one of the lawyers for Mr. Carrigan.]

The opinion generally means that garden-variety conflict of interest rules for legislators may not be questioned on First Amendment grounds unless there can be another claim made with it, for example, that the conflict rules were being applied in a viewpoint discriminatory manner, that the conflict rules are unconstitutionally vague, or that conflict rules impinge on the rights of association between an elected official/candidate and her supporters.

The most significant aspect of this case is likely what the Court, and particularly Justice Kennedy in his separate concurrence, says about judicial recusal rules. The Court leaves room for special judicial recusal rules that are stricter than the rules which would apply to legislators.  (“There are of course differences between a legislator’s vote and a judge’s, and thus between legislative and judicial recusal rules…”)  Justice Kennedy’s concurring opinion is more expansive on this point:

The Court has held that due process may require recusal in the context of certain judicial determinations, see Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009); but as the foregoing indicates, it is not at all clear that a statute of this breadth can be enacted to extend principles of judicial impartiality to a quite different context. The differences between the role of political bodies in formulating and enforcing public policy, on the one hand, and the role of courts in adjudicating individual disputes according to law, on the other, see ante, at 6, may call for a different understanding of the responsibilities attendant upon holders of those respective offices and of the legitimate restrictions that may be imposed upon them.

I expect this language to be very helpful in defending judicial recusal rules against First Amendment challenge, even as the Court acknowledged in a footnote that “that restrictions on judges’ speech during elections are a different matter. See Republican Party of Minn. v. White, 536 U. S. 765, 788 (2002) (holding that it violated the First Amendment to prohibit announcement of views on disputed legal and political issuesby candidates for judicial election).”

More details after the jump.

The Court was unanimous (though Justice Alito’s concurrence was more like a dissent) but the ruling is relatively narrow, and the case will go back to the Nevada Supreme Court where Mr. Carrigan may still prevail.

In an opinion by Justice Scalia, the Court holds that legislators have no personal First Amendment right in a legislative vote.  The Court relies heavily on the history of conflict of interest and recusal rules during the time of the Founders, and a history of such rules in the states.

The opinion then explains: “But how can it be that restrictions upon legislators’ voting are not restrictions upon legislators’ protected speech? The answer is that 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.The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”

Further, “Even if it were true that the vote itself could “express deeply held and highly unpopular views,” the argument would still miss the mark. This Court has rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.”  Here, the Court cited Timmons and Burdick.  The Court also distinguished the First Amendment right to sign a petition recognized in Doe v. Reed: “It is one thing to say that an inherently expressive act remains so despite its having governmental effect, but it is altogether another thing to say that a governmental act becomes expressive simply because the governmental actor wishes it to be so. We have never said the latter is true.”

After so holding, the Court did not reach Mr. Carrigan’s two main other arguments: that the application of the particular recusal provision under the facts of this case violates the First Amendment associational rights of candidates and their supporters and that the statute was unconstitutionally vague (the latter being a main focus of the oral argument in the case).  Presumably the Nevada Supreme Court on remand can consider these issues.

Justice Kennedy’s opinion in particular gives the Nevada Supreme Court a strong basis to hold that the application of the recusal provision to Mr. Carrigan violated the First Amendment associational rights of Mr. Carrigan and his supporters. an issue the majority did not reach.

Assume a citizen has strong and carefully considered positions on family life; the environment; economic principles; criminal justice; religious values; or the rights of persons. Assume, too, that based on those beliefs, he or she has personal ties with others who share those views. The occasion may arise when, to promote and protect these beliefs, close friends and associates, perhaps in concert with organized groups with whom the citizen also has close ties, urge the citizen to run for office. These persons and entities may offer strong support in an election campaign, support which itself can be expression in its classic form. The question then arises what application the Nevada statute has if a legislator who was elected with that support were to vote upon legislation central to the shared cause, or, for that matter, any other cause supported by those friends and affiliates….For these reasons, the possibility that Carrigan was censured because he was thought to be beholden to a person who helped him win an election raises constitutional concerns of the first magnitude.

Once again, Justice Alito has set out his own First Amendment analysis, in which he has spoken for himself alone.  I’ve noted before the sharp contrast in his First Amendment analysis between what he’s said in the campaign finance context and in other types of First Amendment cases.

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