The Nevada Supreme Court took a bite out of the state ethics law Thursday, ruling part of the language barring elected officials from voting in certain cases unconstitutional.
The ruling came in the case of Sparks Councilman Michael Carrigan who sued after he was censured by the Ethics Commission for voting on the Red Hawk Land Company's Lazy 8 casino project. Critics charged his vote was unethical because consultant Carlos Vasquez was also Carrigan's friend and campaign manager.
Carrigan lost in district court and appealed to the Nevada Supreme Court arguing the law was too broad and vague, violating his First Amendment free-speech rights.
The opinion by Justice Michael Douglas agreed with Carrigan, ruling part of the law limiting when public officials can vote unconstitutional "because the Legislature failed to establish the appropriate circumstances under which recusal can be required."
The court ruled that voting by an elected public officer is protected speech under the First Amendment and can only be prohibited when that restriction "furthers a compelling interest and is narrowly tailored to achieve that interest."
The statute in question requires a public officer not vote in several specific instances including when his independence of judgment would be materially affected by his "commitment in a private capacity to the interest of others."
But the specific relationships where not voting would be mandatory aren't spelled out in the law which, instead, refers to any relationship "substantially similar" to the short list of specific relationships such as when a spouse is involved.
Chief Justice Ron Parraguirre did not participate in the case. The only dissent was by Justice Kris Pickering who argued the majority opinion went too far. She quoted U.S. Supreme court Justice William Brennan as saying the argument that a vote is protected by the First Amendment was unpersuasive since a vote is "quintessentially one of governance," which can be regulated.
She also argued against the majority's decision that, as a First Amendment issue, any restrictions on a public official's vote must pass the tough legal test of "strict scrutiny."
Legislative Counsel Bureau Director Lorne Malkiewich said the decision will require lawmakers to change that portion of the law by fixing "that catchall provision." He said the law was written with the "substantially similar" language to avoid having to create a laundry list of specific relationships which would require elected officials to abstain from voting.
"We'll have to come up with a list or come up with a better way to describe it," he said.
Malkiewich said the portion of the ruling putting the whole ethics standard under "strict scrutiny" is more troublesome. That will require the Legislature to show that any restriction on an elected official's vote is necessary to further a compelling state interest and that the language is "narrowly tailored" to that interest.
"That's a very difficult test to meet," he said.
