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Posted June 13, 2011

Supreme Court Rules for Clinic's Client in First Amendment Case

Clinic
Members of the Supreme Court Litigation Clinic work with Professor Dan Ortiz, standing.

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Rob Seal

The U.S. Supreme Court today released a unanimous decision in favor of a client of the Law School’s Supreme Court Litigation Clinic.

The case, Nevada Commission on Ethics v. Carrigan, centered on whether elected legislators have a First Amendment right to vote on a matter even when they have a disqualifying conflict of interest.

“The Supreme Court decisively agreed with the clinic’s position that government officials’ legislative power does not belong to them personally but to the people they represent, and that accordingly, legislative recusal rules do not infringe personal free speech rights under the First Amendment,” said John Elwood, a clinic instructor who argued the case April 27.

Elwood said the Supreme Court relied extensively on historical research contained in the clinic’s briefs.

“For example, it quoted extensively from the recusal rule that Vice President Thomas Jefferson adopted in 1801 as president of the Senate, and relied on early cases and treatises cited in the clinic’s briefs,” he said.

The case is one of four from the past term in which the clinic was involved, and is the third to be decided. The Supreme Court receives about 10,000 case petitions each year, and grants and hears about 75 to 80 cases. Last week, the court ruled partially in favor of the clinic’s client in Fox v. Vice.

Harrell

Wells Harrell

“This is our biggest win of the term so far,” said former clinic student Wells Harrell ’11. “The court's judgment in our favor was unanimous, but what delighted me most was seeing our own arguments reflected in the court's analysis. I remember how many of those arguments became part of our position.”

The central proposition that a legislator's vote is not protected speech was advanced only after much internal debate in the clinic, Harrell said.

“One student extensively researched common-law recusal decisions, and another investigated the waiver issue,” he said. “We all took part in a 50-state survey of recusal provisions. Our discussions helped us develop and refine our core arguments, while the large number of team members allowed us to sweep broadly in our research. In this sense, being a clinic served our clients well.”

The case centered on how strictly courts should scrutinize state laws requiring elected officials to recuse themselves from possible conflicts of interest.

John Elwood

John Elwood

Michael Carrigan was on the city council in Sparks, Nev., when a proposed casino development came before the council for a vote. Carrigan disclosed that his friend and campaign manager worked for the casino, but did not recuse himself and voted in favor of the project, Elwood said.

The Nevada Commission on Ethics later ruled that Carrigan violated the state recusal law, which lists specific relationships under which an elected official must abstain from voting because of a conflict, such as when a relative or employer of the public official is involved in the transaction, and also includes a provision that covers “other relationships that are substantially similar,” Elwood said.

The commission ruled that Carrigan’s vote ran afoul of the “substantially similar” portion of the law. However, the Nevada Supreme Court overturned that decision, ruling that voting was political speech protected by the First Amendment, and that restrictions on it required strict scrutiny that the recusal law did not satisfy.

“Today's real winners are our clients, the members and staff of the Nevada Commission on Ethics,” Harrell said.

The clinic students who attended the oral argument in April were able to eat lunch with their clients afterwards, Harrell said.

“Appellate advocacy involves so much solitary work that putting a human face on a given case can be difficult sometimes,” he said. “But seeing our clients face-to-face and hearing them express praise and appreciation for our work underscored that what we do has real consequences for real people, and that our clients deserve the best of our efforts. I'm glad we were able to deliver for them.”