Supreme Court Upholds Nevada Recusal Statute

The Supreme Court yesterday upheld a Nevada law requiring legislators to recuse themselves from voting on measures in which they have a conflict of interest in Nevada Commission on Ethics v. Carrigan. Ironically, though the Court recognized the importance of recusal standards for legislators and judges, the majority failed to acknowledge the fact that there is no enforceable, reviewable procedure in place to determine whether or not an individual justice must recuse from a case in which he or she is alleged to be biased.

In the Carrigan case, Sparks City Councilmember Michael Carrigan voted in favor of the construction of a hotel-casino. The State Ethics Commission found that Carrigan should have recused under a Nevada recusal statute because Carrigan's longtime friend and campaign manager stood to financially benefit from the development. The Court, in an opinion written by Justice Scalia, held that the recusal statute did not violate Carrigan’s First Amendment rights, because voting was a “core legislative function.”

Justice Scalia focused on the fact that rules requiring judges and legislators to step aside when they have a conflict of interest date back to our country’s foundation. In addition to discussing the evolution of recusal laws for judges, Scalia also cited the recusal rule adopted by Thomas Jefferson in 1801 when he was President of the Senate:

“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.”

While the justices of the Supreme Court operate under recusal standards, there is no process to review decisions, as there is in the Carrigan case. Each justice decides on their own whether a conflict of interest exists, and their individual judgment is final. This violates the longstanding principle embodied in Jefferson’s recusal rule, that no one should be a judge in his or her own case. This rule is particularly important because the judicial recusal standard depends on the appearance of bias as seen by outsiders rather than whether or not the judge is subjectively biased. Judicial integrity depends on how the Court appears to others, not on how the justices feel about themselves.

Alliance for Justice is engaged in an ongoing effort, supported by more than 135 of America's most prominent legal ethicists, to press for mandatory ethical standards and a review process for recusal decisions by Supreme Court justices.

Visit AFJ's website for more information on Supreme Court ethics reform.

Supreme Court Reviews City Councilman’s Recusal Decision Even as Justices Oppose Review of Their Own

Tomorrow, the Supreme Court will hear oral arguments in Nevada Commission on Ethics v. Carrigan. The case will determine the validity of a state statute requiring legislators to recuse themselves from voting on measures in which they have a conflict of interest. Ironically, while accepting a case to evaluate recusal standards for legislators, the justices oppose any oversight of their own recusal decisions.

Michael Carrigan, the respondent in this case, is a member of the City Council of Sparks, Nevada. Carrigan’s vote in favor of the construction of a hotel-casino was challenged on the grounds that the vote occurred after the developer hired Carrigan’s longtime friend and campaign manager. The State Ethics Commission found that Carrigan violated a catch-all provision in the recusal statute by voting on the development because it would financially benefit his close confidant. Carrigan challenged the Commission's finding, claiming that the law violated his First Amendment right to political speech. The Nevada Supreme Court agreed, finding that the catch-all provision was too broad under a strict scrutiny analysis.

In its appeal, the Commission argues that content-neutral legislative recusal rules have a long history in the United States and that there is no personal First Amendment right to vote in a legislature. The Commission also argues that a strict scrutiny standard is too harsh and would "needlessly endanger a wide range of recusal provisions."

The justices of the Supreme Court also operate under recusal standards, but there is no process to review decisions, as there is in the Carrigan case. Each justice decides on their own whether a conflict of interest exists, and their individual judgment is final. This violates the longstanding principle that no one should be a judge in his or her own case. It is even more important for ethical issues, which evaluate the appearance of bias as seen by outsiders. Judicial integrity depends on how the Court appears to others, not on how the justices feel about themselves.

Alliance for Justice is engaged in an ongoing effort, supported by more than 135 of America's most prominent legal ethicists, to press for mandatory ethical standards and a review process for recusal decisions by Supreme Court justices.

Visit AFJ's website for more information on Supreme Court ethics reform.