Real Estate & Property Law

U.S. Supreme Court To Decide Whether A Councilmember With A Conflict Of Interest Has a First Amendment Right To Vote Anyway

By Robert Thomas (inversecondemnation.com)

The U.S. Supreme Court has agreed to decide a case about whether state laws which require elected officials to recuse themselves from considering matters on which they appear to have conflicts of interest, impermissibly infringe upon the officials' First Amendment rights.

This issue has wide-ranging importance to the players in the land use arena since the Court's ruling has the potential of invalidating (or subjecting to serious challenge) state and local regulations nationwide which govern conduct of members of city and county councils and boards of supervisors, planning commissions, zoning boards of appeals, and similar state and local government bodies. 

In Comm'n on Ethics of the State of Nevada v. Carrigan, No. 10-568 (cert. granted Jan 7, 2011), the Nevada Supreme Court invalidated a Nevada law which required a Sparks, Nevada city councilmember to recuse himself from considering an application to develop a hotel/casino because the developer's "consultant" was a "longtime professional and personal friend" of the councilmember, and had been his campaign manager.

Nevada law requires recusal when a matter involves members of the official's household, her relatives or employers, people with whom the official has a business relationship, or "any other commitment or relationship that is substantially similar to a [prohibited] commitment or relationship." The councilmember disclosed his relationship with the consultant, but refused to disqualify himself. He voted to approve the casino project, which failed by a single vote. The Commission on Ethics, a statewide body charged with enforcing Nevada's ethics laws, censured the councilmember, concluding that he should have recused himself since his relationship with the developer's consultant was "substantially similar" to the enumerated prohibited relationships.

Although the trial court upheld the Commission's decision by applying a test balancing the interests of the official in exercising his First Amendment rights against the state's interest in securing the integrity of public processes, the Nevada Supreme Court applied a "strict scrutiny" test and invalidated the ethics law. Applying strict scrutiny, the court held that the law was facially unconstitutional, and although the governmental interest in protecting the integrity of the process is "compelling," the recusal statute was not "narrowly tailored" because it lacked standards to inform officials what relationships would require recusal.

The U.S. Supreme Court will address this Question Presented:

The Nevada Supreme Court held that the vote of an elected official is protected speech under the First Amendment and that the recusal provision of the Nevada Ethics in Government Law is subject to strict scrutiny. Under that standard of review, the court concluded that a portion of the recusal statute was overbroad and facially unconstitutional. The question presented is:

Whether the First Amendment subjects state restrictions on voting by elected officials (i) strict scrutiny, as held by the Nevada Supreme Court and the Fifth Circuit, (ii) the balancing test of Pickering v. Board of Education, 391 U.S. 563 (1968), for government-employee speech, as held by the First, Second, and Ninth Circuits, or (iii) rational-basis review, as held by the Seventh and Eighth Circuits.

SCOTUSblog posted the cert stage briefs here. The Court's docket entry is here. The New York Times posted "Justices to Hear Case on Recusal Laws" about the case.

Stay tuned. We will post the briefs as they are filed. As we noted above, this case could have a broad impact on the land use process, so we will be following it closely.

Full post as published by inversecondemnation on February 11, 2011 (boomark / email).