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Ethics, free speech at center of high court case on legislative votes

By Bill Mears, CNN Supreme Court Producer
  • An elected town official in Nevada was reprimanded by a state ethics commission
  • That came after the official voted for a casino project that involved a campaign volunteer
  • The official sued over the sanction, and the state supreme court sided with him
  • Local officials then took the ethics case to the U.S.Supreme Court

Washington (CNN) -- Michael Carrigan was on the losing side of a public vote that put him at odds with a state ethics commission, but now the Nevada city councilman hopes to win on a larger stage at the U.S. Supreme Court.

The justices Wednesday cautiously debated an unusual free-speech case over the responsibility of public officials to step aside from issues where conflicts of interest may arise. Members of the high court themselves may be directly affected by the outcome, amid a period of increasing national debate over recusal in hot-button political matters.

"Is the vote of a judge in a case like the vote of a legislator? Is that speech?" asked Justice Antonin Scalia. "Because judges are subject to ethical rules which prohibit their participating if there would be, quote, 'an appearance of impropriety.' If there's anything vaguer than that, I can't imagine what it might be. Can I get out of all that stuff?"

At issue is a whether a state or local legislator's vote is considered "free speech" that would shield them from a level of enforceable oversight from conflict-of-interest laws.

In the last argument of the current term, the high court was debating whether the state law in question was both overly vague and burdensome, when applied to the discretionary actions of a single legislator.

Carrigan was first elected to the city council in Sparks, Nevada Sparks -- just down the road from Reno -- in 1999. His close friend, Carlos Vasquez, had from the beginning served as a volunteer "campaign manager."

Vasquez later began working for a land company seeking to develop a casino project called the Lazy 8. Carrigan represented the ward where the facility would be built, and it became a top campaign issue during the 2006 elections.

The councilman asked the city attorney to see whether he could vote on the project, or if he would be barred by conflict-of-interest rules because of his relationship with Vasquez. Carrigan was told that as long as he publicly disclosed the friendship with the project consultant, he was cleared to vote. He did all those things, but the project was ultimately defeated 3-2. The Lazy 8 to this day remains undeveloped.

After receiving several public complaints, the Nevada Ethics Commission reprimanded Carrigan, a former Navy aviator and journalist. The unelected commission concluded the lawmaker should have consulted its staff for an advisory opinion, in addition to the city attorney. Carrigan's loyalties to Vasquez, said the panel, had the appearance at least of affecting his judgment. State law says public officials should not vote when their "independent judgment" may be compromised by a relationship or commitment to a family member or other relative; or to an employee, employer, or business partner.

Carrigan sued over the sanction, and the state supreme court ultimately ruled in his favor. Local officials then took the case to the U.S. Supreme Court.

The justices seemed to be searching for a narrow way to rule on this dispute, with many clearly uncomfortable about telling other branches of government -- through a broad, binding set of guidelines -- how to conduct their ethics polices.

"As I understand the objection, it's not to the recusal rules in general, but it's to the vagueness of this particular one," said Justice Ruth Bader Ginsburg. "So we're dealing not with -- can you have recusal rules. Everybody believes, yes, you can. It's the degree of specificity."

Justice Samuel Alito was even more blunt. "I found this statute very difficult to understand" he told the lawyer representing the ethics commission. Alito called the laws "puzzling," saying it was unclear whether "emotional commitments" a councilman may have -- as opposed to a financial one -- would be covered under the law.

He offered another example. "If I were a public officer I would find it very difficult to figure out whether a reasonable person would think that an effect on my second cousin's property taxes would materially affect my judgment," Alito said. "I have no idea how you go about that."

Justice Anthony Kennedy took that line of questioning to another level. "Suppose that you spent your life in the civil rights movement or the right to bear arms movement or one or the other sides of the abortion debate, and these are your acquaintances, this has been one of your principal activities, not for pay, but just because of your civic commitment. And then you are elected to the legislature and under this Nevada statute that controls, must you recess whenever an officer of that association is paid?"

John Elwood, speaking for state officials, said it would not affect that situaton since it was not a "close personal" relationship.

Some on the court appeared to back the intent behind the law, as least as it applied to Carrigan.

"What the commission says is Mr. Vasquez has been a close personal friend, confidante, and political advisor throughout the years. So that doesn't sound like any volunteer. It sounds like somebody sitting on a case where his best friend is likely to gain millions of dollars," said Justice Stephen Breyer. "They're thinking all these things combined is what causes this to fall within the category of a reasonable person might have doubts about the independence of judgment."

Carrigan's attorney Joshua Rosenkranz said the Nevada laws "places an impossible drag on the associational rights" of lawmakers, making "political loyalty" alone subject to recusal or disqualification.

While Scalia focused his attention on the effect the court's ruling would have on judges like him on when to recuse, Justice Elena Kagan went in another direction.

"What about officials in the executive branch?" she asked. "When the secretary of defense gives a speech and the president doesn't like it, and the president fires the secretary of defense, does the secretary of defense have a First Amendment action?"

Ethics and recusal rules have always been a thorny, uncomfortable issue for politicians and judges, when officials must police themselves and their colleagues, especially in the face of any public skepticism over someone's integrity.

The high court in 2009 ruled an elected state judge in West Virginia should have pulled out of considering a case dealing with a high-stakes lawsuit against a major campaign donor.

Scalia and Justice Clarence Thomas have recently been attacked by progressive groups over public legal symposiums they attended, sponsored by Republican political donors David and Charles Koch.

Some Democrats, including Rep. Anthony Weiner of New York have said the two justices should recuse themselves from taking on an expected high court challenge to the health reform bill approved by Congress last year, because of a perceived conflict of interest relating to those symposiums.

The free-speech case is Nevada Commission on Ethics v. Carrigan (10-568). A ruling is due in about two months.