Carrigan v. Commission on Ethics , 126 Nev. 277 ( 2010 )

OPINION

By the Court,

Douglas, J.:

In this appeal, we consider whether the Nevada Commission on Ethics’ censure of an elected public officer for alleged voting violations under NRS 281A.420(2)(c) violates the First Amendment.² NRS 281A.420(2)(c) sets forth one of the legal standards for determining whether a public officer must abstain from voting on a particular matter, based on the officer’s “commitment in a private capacity to the interests of others.” NRS 281A.420(8) defines this commitment to include four specific prohibited relationships between a public official and others and describes a fifth catchall definition as “[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection.” The catchall definition of a prohibited relationship by a public official in NRS 281A.420(8)(e) confronts the First Amendment on appeal.

We first conclude that voting by public officers on public issues is protected speech under the First Amendment. Because NRS 281A.420(2)(c) directly involves the regulation of protected speech by a public officer in voting, we next determine that the definitional statute NRS 281A.420(8)(e) must be strictly scrutinized under a First Amendment overbreadth analysis. Applying a strict scrutiny standard, we conclude that NRS 281A.420(8)(e) is unconstitutionally overbroad in violation of the First Amendment, as it lacks necessary limitations to its regulations of protected speech. Consequently, the district court erred in its interpretation of NRS 281A.420(8)(e) and its application to NRS 281A.420(2)(c), and thus, we reverse the district court’s order.

FACTS

Appellant Michael A. Carrigan was first elected to the Sparks City Council in 1999 and has twice been reelected. During each of his election campaigns, Carrigan’s longtime professional and personal friend, Carlos Vasquez, served as his campaign manager. In addition to serving as Carrigan’s campaign manager, Vasquez worked as a consultant for the Red Hawk Land Company. In that role, Vasquez was responsible for advising Red Hawlc on various matters pertaining to the development of a hotel/casino project known as the Lazy 8.

In early 2005, Red Hawk submitted an application to the City of Sparks regarding the Lazy 8 project. The Sparks City Council set the matter for a public hearing. Before the hearing, and in light of the long-standing relationship between Carrigan and Vasquez, Carrigan consulted the Sparks City Attorney for guidance regarding any potential conflict of interest. The City Attorney advised Carrigan to disclose, on the record, any prior or existing relationship with Vasquez before voting on the Lazy 8 matter. Taking the City Attorney’s advice, Carrigan made the following disclosure before casting his vote:

I have to disclose for the record . . . that Carlos Vasquez, a consultant for Redhawk, ... is a personal friend, he’s also my campaign manager. I’d also like to disclose that as a public official, I do not stand to reap either financial or personal gain or loss as a result of any official action I take tonight.

[Tjherefore, according to [NRS 281A.420] I believe that this disclosure of information is sufficient and that I will be participating in the discussion and voting on this issue.

A few weeks after Carrigan cast his vote, respondent Nevada Commission on Ethics received several complaints regarding a possible conflict of interest. The Commission reviewed the complaints and authorized an investigation.

Upon completion of the investigation, the Commission issued a written decision censuring Carrigan for violating an ethics law, NRS 281A.420(2), by failing to abstain from voting on the Lazy 8 matter.³ The Commission found that Carrigan had improperly voted on the Lazy 8 “matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by . . . [his] commitment in a private capacity to the interests of others.” See NRS 281A.420(2)(c). To reach this conclusion, the Commission evaluated the legislative history of the definitions of prohibited relationships by a public official contained in NRS 281 A.420(8) and determined that the Legislature enacted NRS 281A.420(8)(e) to cover “commitments and relationships that, while they may not fall squarely within those enumerated in [NRS 281A.420(8)(a)-(d)], are substantially similar to those enumerated categories because the independence of judgment may be equally affected by the commitment or relationship.” In particular, the Commission found that Carrigan’s relationship with Vasquez came within the scope of NRS 281A.420(8)(e), in that.the relationship “equates to a ‘substantially similar’ relationship to those enumerated under [NRS 281A.420(8)(a)-(d)]” and “[is] illustrative of [relationships] contemplated by [NRS 281A.420(8)(e)].” In other words, the Commission found that Carrigan should have known that his relationship with Vasquez fell within the catchall definition and prevented him from voting on Red Hawk’s application for the Lazy 8 project.

Carrigan filed a petition for judicial review with the district court to challenge the Commission’s decision. The district court denied the petition based on its determination that the state has a strong interest in having an ethical government, which outweighs a public officer’s and state employee’s protected free speech voting right. The court further rejected Carrigan’s challenges to the constitutionality of the statute, based on overbreadth and vagueness. This appeal followed. The Legislature of the State of Nevada was granted permission to file an amicus brief in support of the Commission’s position.

DISCUSSION

Carrigan challenges the constitutionality of the Commission’s censure on several grounds: overbreadth, vagueness, and unconstitutional prior restraint on speech. To resolve this appeal, we focus on Carrigan’s First Amendment challenge in which he argues that NRS 281A.420(8)(e) is unconstitutional in violation of his free speech rights.⁴ Carrigan asserts that voting by a public officer is protected speech and therefore the statute should be reviewed under a strict scrutiny analysis, and under that analysis, the statute must be declared unconstitutional because the statute is not narrowly tailored to meet a compelling government interest. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010). The Commission and the Legislature (as amicus) assert that the district court properly concluded that the statute should be reviewed under a less strict standard as outlined by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). Under that standard, they argue, the interests of the state in preventing corruption outweigh Carrigan’s free speech right to vote on an issue in which he has a disqualifying interest. Alternatively, the Commission contends that if strict scrutiny applies, NRS 281A.420 is constitutional because: “(1) Nevada has a compelling state interest in promoting ethical government and guarding the public from biased decision makers; and (2) the statutory provisions requiring disqualified public officers to abstain from voting constitutes the least restrictive means available to further the state’s compelling interest.”

In resolving this First Amendment challenge, we initially address whether voting on a particular matter by an elected public officer is protected speech under the First Amendment. Concluding that it is protected speech, we next consider Carrigan’s over-breadth challenge. In doing so, we address the appropriate standard to apply in reviewing Carrigan’s overbreadth challenge and determine that a strict scrutiny standard is required. Applying a strict scrutiny standard to the statute at issue, we conclude that subsection 8(e) is overbroad in violation of the First Amendment.⁵

Standard of review

This court, like the district court, reviews an appeal from an ‘‘administrative decision for clear error or abuse of discretion.” Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 283, 112 P.3d 1093, 1097 (2005). While the instant matter involves an appeal from an administrative decision, Carrigan’s arguments on appeal present purely legal questions, which we review de novo. Howard v. City of Las Vegas, 121 Nev. 691, 693, 120 P.3d 410, 411 (2005). Also, because the constitutionality of a statute is a question of law, our review is de novo. Sheriff v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002).

Voting by public officers

The Ethics in Government statute at issue in this case is NRS 281 A.420.⁶ NRS 281A.420(2)(c) requires 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 . . . [his] commitment in a private capacity to the interests of others.

(Emphasis added.) NRS 281A.420(8) defines the “commitment in a private capacity to the interests of others” as a commitment to a person:

(a) Who is a member of his household;

(b) Who is related to him by blood, adoption or marriage within the third degree of consanguinity or affinity;

(c) Who employs him or a member of his household;

(d) With whom he has a substantial and continuing business relationship; or

(e) Any other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection.

(Emphasis added.) Central to this controversy is paragraph (e).

The act of voting by a public officer is protected speech under the First Amendment

Initially, we must determine whether NRS 281A.420 regulates protected speech under the First Amendment. Under the First Amendment, “Congress shall make no law . .' . abridging the freedom of speech.” U.S. Const, amend. I. The First Amendment applies to state governments through the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652, 666 (1925). Although this court has. not directly addressed whether voting on matters by an elected public officer is protected speech, other courts have recognized that “[t]here is no question that political expression such as [a city council member’s] positions and votes on City matters is protected speech under the First Amendment.” Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); accord Connick v. Myers, 461 U.S. 138, 145 (1983) (“[T]he Court has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982))); see also Miller v. Town of Hull, Mass., 878 F.2d 523, 532 (1st Cir. 1989) (stating that “we have no difficulty finding that the act of voting on public issues by a member of a public agency or board comes within the freedom of speech guarantee of the first amendment”). Recently we recognized in Commission on Ethics v. Hardy, 125 Nev. 285, 296, 212 P.3d 1098, 1106 (2009), that “voting on legislation is a core legislative function.’ ’⁷ Because voting is a core legislative function, it follows that voting serves an important role in political speech. Based on our recognition of voting as a core legislative function, and in connection with other jurisdictions’ holdings that voting in a legislative setting is protected speech, we conclude that voting by an elected public officer on public issues is protected speech under the First Amendment.

Overbreadth

A strict scrutiny standard applies to a statute regulating an elected public officer’s protected political speech of voting on public issues

Having concluded that voting by an elected public officer on public issues is protected speech under the First Amendment, we must next determine the appropriate standard to apply in reviewing the constitutionality of NRS 281A.420(8)(e). Carrigan argues that a strict scrutiny standard applies because voting is protected free speech. The Commission contends, and the district court agreed, that Carrigan’s free speech rights must be analyzed under the two-part balancing inquiry enunciated by the United States Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968), because Carrigan, as an elected city council member, is a state employee. Therefore, the Commission argues that the state’s interests, as Carrigan’s employer, in establishing an efficient government must be balanced with Carrigan’s free speech rights as an employee.

The Pickering balancing test is a lower standard of review used in situations involving a state employee. 391 U.S. at 568. This standard is based on the view that the state, as an employer, has a stronger interest in regulating an employee’s speech than in regulating the speech of the general public, in order to promote efficiency in the public services it offers, while also recognizing that a citizen does not forfeit all free speech rights when working for the government. Id. Under the Pickering balancing test, the court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ’ Id.

Carrigan’s relationship with the state differs from that of most public employees, however, because he is an elected officer “about whom the public is obliged to inform itself, and the ‘employer’ is the public itself, at least in the practical sense, with the power to hire and fire.” Jenevein v. Willing, 493 F.3d 551, 557 (5th Cir. 2007). While Carrigan is employed by the government, he is an elected public officer, and his relationship with his “employer,” the people, differs from that of other state employees. Id. Therefore, the district court erred in applying the Pickering balancing test.

Instead, a strict scrutiny standard applies. NRS 281A.420 establishes requirements for when a public officer must refrain from exercising speech by abstaining from voting on certain public issues. Thus, the statute deals directly with regulating speech, and as recognized in Hardy, political speech is a core function of a pub-lie officer. Strict scrutiny is therefore the appropriate standard. See Citizens United v. Federal Election Comm’n, 558 U.S. 310, 340 (2010) (stating that “[l]aws that burden political speech are subject to strict scrutiny” (internal quotations omitted)); Nordyke v. King, 563 F.3d 439, 460-61 (9th Cir. 2009) (stating that a law that directly regulates speech is subject to strict scrutiny).

NRS 281 A. 420(8) (e) is facially overbroad

We now consider Carrigan’s overbreadth challenge to NRS 281A.420(8)(e) under the applicable strict scrutiny standard. In determining whether the statute is unconstitutionally overbroad, we must keep in mind that this is a facial challenge.⁸ A facial challenge requires striking a balance between the competing interests of protecting the exercise of free speech rights — as an overbroad statute “deters people from engaging in constitutionally protected speech” — with the potential harm in invalidating a statute that may be constitutional in some of its applications. United States v. Williams, 553 U.S. 285, 292 (2008). Because invalidating a statute for overbreadth is “strong medicine,” it should “not be casually employed.” Id. at 293 (internal quotations omitted).

Under a strict scrutiny standard, the United States Constitution demands a high level of clarity from a statute seeking to regulate constitutionally protected speech. See Smith v. Goguen, 415 U.S. 566, 573 (1974); Grayned v. City of Rockford, 408 U.S 104, 108-09 (1972). An overbroad law tends to chill the exercise of First Amendment rights by sweeping “ ‘within its ambit other activities that in ordinary circumstances constitute an exercise of protective First Amendment rights.” City of Las Vegas v. Dist. Ct., 118 Nev. 859, 863 n.14, 59 P.3d 477, 480 n.14 (quoting Thornhill v. Alabama, 310 U.S. 88, 97 (1940)). Under a facial overbreadth challenge, a statute should not be held void “‘unless it is substantially overbroad in relation to the statute’s plainly legitimate sweep.’ ” Silvar v. Dist. Ct., 122 Nev. 289, 298, 129 P.3d 682, 688 (2006) (quoting Coleman v. City of Richmond, 364 S.E.2d 239, 243 (Va. Ct. App. 1988)). A strict scrutiny standard “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United, 558 U.S. at 340 (internal quotations omitted).⁹

Carrigan contends that NRS 281A.420(8)(e) is not narrowly tailored since the Commission arbitrarily determines whether a public officer’s relationships are “substantially similar” to the other relationships listed in subsection 8. Carrigan argues that because the subsection 8(e) definition of “[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection” does not provide sufficient limitations on what relationships may require abstention from voting, the statute is overbroad and is therefore not the least restrictive means available to promote the statute’s goals. The Commission contends that NRS 281A.420(8)(e) is constitutional because it promotes a compelling state interest in maintaining an ethical government and protecting the public from bias, and the restrictions constitute the least restrictive means available to further the state’s compelling interest.

We agree with the Commission that promoting the integrity and impartiality of public officers through disclosure of potential conflicts of interest is clearly a compelling state interest that is consistent with the public policy rationale behind the Nevada Ethics in Government Law. See NRS 281A.020 (public policy for Nevada Ethics in Government Law). Thus, arguably, NRS 281A.420(8)(e) meets the first requirement under a strict scrutiny standard; the statute furthers a compelling state interest. The statute fails, however, to meet the “narrowly tailored” requirement.

NRS 281A.420(2)(c) requires that a public officer refrain from voting when, among other things, “the independence of judgment of a reasonable person in his situation would be materially affected by . . . his commitment in a private capacity to the interests of others.” The phrase “commitment in a private capacity to the interests of others” is defined in part in NRS 281A.420(8)(e), which in relevant part states that this includes “a commitment to a person” with whom the public officer has a “commitment or relationship that is substantially similar” to one of the relationships outlined in subsection 8. NRS 281A.420(8)(e).

The definition of a “commitment in a private capacity” in subsection 8(e) fails to sufficiently describe what relationships are included within NRS 281A.420(2)(c)’s restriction. As a result, the statute’s reach is substantially overbroad in its regulation of protected political speech.

There is no definition or limitation to subsection 8(e)’s definition of any relationship “substantially similar” to the other relationships in subsection 8. This catchall language fails to adequately limit the statute’s potential reach and does not inform or guide public officers as to what relationships require recusal. Thus, the statute has a chilling effect on the exercise of protected speech, for it threatens punishment for noncompliance, which “deters people from engaging in constitutionally protected speech.” Williams, 553 U.S. at 292.

Based on the overly broad definition in NRS 281A.420(8)(e) of what constitutes a “commitment in a private capacity,” NRS 281A.420(2)(c)’s abstention requirement for this category of relationships lacks necessary limitations to its protected speech regulation. Thus, NRS 281A.420(8)(e)’s application to a wide range of differing commitments and relationships is not narrowly tailored. Accordingly, NRS 281A.420(8)(e) is substantially overbroad, sweeps within its control a vast amount of protected speech, and violates the First Amendment.

Therefore, we declare NRS 281A.420(8)(e) unconstitutionally overbroad in violation of the First Amendment and reverse the district court’s order.¹⁰

Hardesty, Cherry, Saitta, and Gibbons, JJ., concur.

2 NRS 281A.420 was formerly NRS 281.501. 2007 Nev. Stat., ch. 538, § 3.8, at 3372. While the Commission’s decision referred to NRS 281.501, the parties’ briefs have referred to the 2007 version of the statute, NRS 281A.420, which we likewise follow in this opinion.

We acknowledge that the Legislature further amended NRS 281A.420 in 2009. 2009 Nev. Stat., ch. 257, § 9.5, at 1057. However, contrary to the assertions made by the dissent in footnote 5, we conclude that these amendments are insufficient to cure the statute’s constitutional deficiencies. In particular, we note that the statute still does not provide sufficient limitations on what relationships may require abstention from voting. The language cited in footnote 5 of the dissent also does nothing to define the “clear cases” that require abstention from voting. Therefore, the statute remains overbroad and not the least restrictive means to promote the statute’s goals. Accordingly, we reject the dissent’s contention that this appeal should only be analyzed on an as-applied basis.

3 The Commission determined that Carrigan’s action did not constitute a willful violation of NRS 281A.420(2), and thus, it did not impose a civil penalty. NRS 281A.480.

4 In light of our resolution on Carrigan’s overbreadth challenge, we need not address Carrigan’s vagueness and prior restraint arguments in resolving this appeal. See Director, Dep’t Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1320 (1982) (noting that “[i]t is well settled that this court will not address constitutional issues unless the[y] are requisite to the disposition of the case”).

5 The dissent disagrees with our analysis of this case, challenging our conclusions that subsection 8(e) of NRS 281A.420 is unconstitutionally overbroad and disputing the application of a strict scrutiny standard. The dissent’s challenges to our conclusions are unpersuasive, however, as the dissent misunderstands the pertinent issue raised in this appeal. The dissent improperly focuses on the question of whether recusal is an appropriate requirement to promote the Legislature’s goal of avoiding impropriety when a publicly elected official has a conflict of interest. We do not dispute that requiring recusal under certain circumstances is appropriate and related to addressing conflict of interest concerns. But that is not the issue on appeal. The issue on appeal is whether the statute that establishes the recusal requirement provides sufficient limitations and explanations concerning when recusal is required to avoid overreaching into unnecessary situations. In other words, the dissent focuses on whether the required conduct is appropriate, instead of focusing on whether the statute creating the required conduct is constitutional. The dissent, in essence, reviews this case under on an as-applied challenge concerning whether requiring recusal is allowed, instead of reviewing it as a facial challenge regarding whether the statute that creates the recusal requirement does so with sufficient limitation and clarity to avoid violating constitutional rights. We do not conclude that NRS 281A.420(8)(e) is unconstitutional because the Legislature can never require recusal; it is unconstitutional because the Legislature foiled to establish the appropriate circumstances under which recusal can be required in accordance with constitutional protections. Because the dissent focuses on an entirely different issue than that raised in this appeal and addressed by this opinion, we do not respond further to the specific arguments made or legal authorities relied upon by the dissent.

6 NRS 281A.010 provides that NRS Chapter 281A “may be cited as the Nevada Ethics in Government Law.”

7 Despite the dissent’s assertions, we do not cite to Hardy for the propositions that First Amendment protection is extended to a local government official’s vote on a land use matter, such a vote is core political speech, or that Hardy specifically speaks to the issue in this case. We do, however, cite to Hardy for the proposition that voting on legislation is a core legislative function and that political speech is a core function of a public officer. Hardy, 125 Nev. at 296, 212 P.3d at 1106.

8 While generally a facial challenge cannot be maintained by someone whose conduct the statute could validly regulate, there is an exception to this rule under First Amendment overbreadth challenges based on the danger that an overbroad statute’s “ ‘very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ ” City Council v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)). Thus, the Commission’s arguments that the statute should not be declared invalid because it could be constitutionally applied to Carrigan are unavailing, and we need not consider them further.

9 Strict scrutiny has been described as ranking “among the most important doctrinal elements in constitutional law.” Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1268 (2007). Strict scrutiny is distinct from other forms of review and “varies from ordinary scrutiny by imposing three hurdles on the government. It shifts the burden of proof to the government; requires the government to pursue a ‘compelling state interest;’ and demands that the regulation promoting the compelling interest be ‘narrowly tailored.’ ” Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 359-60 (2006) (footnotes omitted); see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”); Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173, 183 (1999) (“the Government bears the burden of identifying a substantial interest and justifying the challenged restriction”).

10 Because issues as to other portions of the statute are not raised, this opinion only addresses these limited sections and does not make a determination as to the remainder of the statute.