Nev. Comm'n on Ethics v. Carrigan

• Decision Date: 13 June 2011
• Docket Number: No. 10–568.,10–568.
• Citation: 564 U.S. 117,131 S.Ct. 2343,180 L.Ed.2d 150
• Parties: NEVADA COMMISSION ON ETHICS, Petitioner, v. Michael A. CARRIGAN.
• Court: U.S. Supreme Court

564 U.S. 117

131 S.Ct. 2343

180 L.Ed.2d 150

NEVADA COMMISSION ON ETHICS, Petitioner,

v.Michael A. CARRIGAN.

No. 10–568.

Supreme Court of the United States

Argued April 27, 2011.

Decided June 13, 2011.

John P. Elwood, Washington, DC, for Petitioner.

Joshua E. Rosenkranz, New York City, for Respondent.

Yvonne M. Nevarez-Goodson, Carson City, NV, John P. Elwood, Vinson & Elkins LLP, Washington, DC, David T. Goldberg, Donahue & Goldberg, LLP, New York, NY, Mark T. Stancil, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, Daniel R. Ortiz, Toby J. Heytens, Charlottesville, VA, for Petitioner.

Richard L. Hasen, Los Angeles, CA, E. Joshua Rosenkranz, Mark S. Davies, Rachel M. McKenzie, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Respondent.

Justice SCALIA delivered the opinion of the Court.

The Nevada Supreme Court invalidated a recusal provision of the State's Ethics in Government Law as unconstitutionally overbroad in violation of the First Amendment. We consider whether legislators have a personal, First Amendment right to vote on any given matter.

I

Nevada's Ethics in Government Law provides that "a public officer shall not vote upon or advocate the passage or failure of, but may otherwise participate in the consideration of, a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by," inter alia, "[h]is commitment in a private capacity to the interests of others." Nev.Rev.Stat. § 281A.420(2) (2007).¹ Section 281A.420(8)(a)-(d) of the law defines the term "commitment in a private capacity to the interests of others" to mean a "commitment to a person" who is a member of the officer's household; is related by blood, adoption, or marriage to the officer; employs the officer or a member of his household; or has a substantial and continuing business relationship with the officer. Paragraph (e) of the same subsection adds a catchall to that definition: "[a]ny other commitment or relationship that is substantially similar" to one of those listed in paragraphs (a)-(d).

The Ethics in Government Law is administered and enforced by the petitioner in this litigation, the Nevada Commission on Ethics. In 2005, the Commission initiated an investigation of Michael Carrigan, an elected member of the City Council of Sparks, Nevada, in response to complaints that Carrigan had violated § 281A.420(2) by voting to approve an application for a hotel/casino project known as the "Lazy 8." Carrigan, the complaints asserted, had a disabling conflict in the matter because his long-time friend and campaign manager, Carlos Vasquez, worked as a paid consultant for the Red Hawk Land Company, which had proposed the Lazy 8 project and would benefit from its approval.

Upon completion of its investigation, the Commission concluded that Carrigan had a disqualifying conflict of interest under § 281A.420(8)(e)'s catchall provision because his relationship with Vasquez was "substantially similar" to the prohibited relationships listed in § 281A.420(8)(a)-(d). Its written decision censured Carrigan for failing to abstain from voting on the Lazy 8 matter, but did not impose a civil penalty because his violation was not willful, see § 281A.480. (Before the hearing, Carrigan had consulted the Sparks city attorney, who advised him that disclosing his relationship with Vasquez before voting on the Lazy 8 project, which he did, would satisfy his obligations under the Ethics in Government Law.)

Carrigan filed a petition for judicial review in the First Judicial District Court of the State of Nevada, arguing that the provisions of the Ethics in Government Law that he was found to have violated were unconstitutional under the First Amendment. The District Court denied the petition, but a divided Nevada Supreme Court reversed. The majority held that voting was protected by the First Amendment, and, applying strict scrutiny, found that § 281A.420(8)(e)'s catchall definition was unconstitutionally overbroad. 126 Nev. 28, ––––-––––, 236 P.3d 616, 621–624 (2010).

We granted certiorari, 562 U.S. ––––, 131 S.Ct. 857, 178 L.Ed.2d 622 (2011).

II

The First Amendment prohibits laws "abridging the freedom of speech," which, " ‘as a general matter ... means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ " Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) ). But the Amendment has no application when what is restricted is not protected speech. See, e.g., Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (obscenity not protected speech). The Nevada Supreme Court thought a legislator's vote to be protected speech because voting "is a core legislative function." 126 Nev., at ––––, 236 P.3d, at 621 (internal quotation marks omitted).

We disagree, for the same reason. But before discussing that issue, we must address a preliminary detail: The challenged law not only prohibits the legislator who has a conflict from voting on the proposal in question, but also forbids him to "advocate the passage or failure" of the proposal—evidently meaning advocating its passage or failure during the legislative debate. Neither Carrigan nor any of his amici contend that the prohibition on advocating can be unconstitutional if the prohibition on voting is not. And with good reason. Legislative sessions would become massive town-hall meetings if those who had a right to speak were not limited to those who had a right to vote. If Carrigan was constitutionally excluded from voting, his exclusion from "advocat[ing]" at the legislative session was a reasonable time, place and manner limitation. See Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

III

"[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness." Republican Party of Minn. v. White, 536 U.S. 765, 785, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (internal quotation marks omitted). Laws punishing libel and obscenity are not thought to violate "the freedom of speech" to which the First Amendment refers because such laws existed in 1791 and have been in place ever since. The same is true of legislative recusal rules. The Nevada Supreme Court and Carrigan have not cited a single decision invalidating a generally applicable conflict-of-interest recusal rule—and such rules have been commonplace for over 200 years.

"[E]arly congressional enactments ‘provid[e] contemporaneous and weighty evidence of the Constitution's meaning,’ " Printz v. United States, 521 U.S. 898, 905, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (quoting Bowsher v. Synar, 478 U.S. 714, 723–724, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) ). That evidence is dispositive here. Within 15 years of the founding, both the House of Representatives and the Senate adopted recusal rules. The House rule—to which no one is recorded as having objected, on constitutional or other grounds, see D. Currie, The Constitution in Congress: The Federalist Period 1789–1801, p. 10 (1997)—was adopted within a week of that chamber's first achieving a quorum.² The rule read: "No member shall vote on any question, in the event of which he is immediately and particularly interested." 1 Annals of Cong. 99 (1789). Members of the House would have been subject to this recusal rule when they voted to submit the First Amendment for ratification; their failure to note any inconsistency between the two suggests that there was none.

The first Senate rules did not include a recusal requirement, but Thomas Jefferson adopted one when he was President of the Senate. His rule provided as follows:

"Where the private interests of a member are concerned in a bill or question, he is to withdraw. And where such an interest has appeared, his voice [is] disallowed, even after a division. In a case so contrary not only to the laws of decency, but to the fundamental principles of the social compact, which denies to any man to be a judge in his own case, it is for the honor of the house that this rule, of immemorial observance, should be strictly adhered to." A Manual of Parliamentary Practice for the Use of the Senate of the United States 31 (1801).

Contemporaneous treatises on parliamentary procedure track parts of Jefferson's formulation. See, e.g., A. Clark, Manual, Compiled and Prepared for the Use of the [New York] Assembly 99 (1816); L. Cushing, Manual of Parliamentary Practice, Rules of Proceeding and Debate in Deliberative Assemblies 30 (7th ed. 1854).

Federal conflict-of-interest rules applicable to judges also date back to the founding. In 1792, Congress passed a law requiring district court judges to recuse themselves if they had a personal interest in a suit or had been counsel to a party appearing before them. Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278–279. In 1821, Congress expanded these bases for recusal to include situations in which "the judge ... is so related to, or connected with, either party, as to render it improper for him, in his opinion, to sit on the trial of such suit." Act of Mar. 3, 1821, ch. 51, 3 Stat. 643. The statute was again expanded in 1911, to make any "personal bias or prejudice" a basis for recusal. Act of Mar. 3, 1911, § 21, 36 Stat. 1090. The current version, which retains much of the 1911 version's language, is codified at 28 U.S.C. § 144. See generally Liteky v. United States, 510 U.S. 540, 544, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) ; Frank, Disqualification of Judges, 56 Yale L.J. 605, 626–630 (1947) (hereinafter Frank). There are of course differences between a...