February 2, 2011 — The U.S. Supreme Court has agreed to hear a First Amendment case in which the Supreme Court Litigation Clinic at the University of Virginia School of Law is involved – a record fourth argument for the clinic this term.
Nevada Commission on Ethics v. Carrigan, which will be argued in April, centers on how strictly courts should scrutinize state laws requiring elected officials to recuse themselves from possible conflicts of interest.
"The case involves a question of whether or not elected legislators have a First Amendment right to vote in a case even when they have a disqualifying conflict of interest," said John Elwood, a clinic instructor.
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 had 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. The clinic is working on behalf of the commission.
"Our position is that the Supreme Court has always given states a lot of deference in regulating their own processes of self-government and in adopting neutral rules governing those processes," Elwood said. "We are going to take the position that this is basically a rule on how you govern legislative voting. Such rules have been followed in the United States since literally the time of the founding."
The clinic students and instructors are currently working on a merits brief that must be completed by Feb. 22, Elwood said.
Third-year clinic student Chris Cariello said the case ventures in some ways into new First Amendment territory, and it requires the students to scrutinize and make analogies to other areas of First Amendment law.
"It's closely bound up with the legislative processes – being about a recusal provision – and at the same time it deals with how government functions and how government regulates itself," he said.
Cariello also said the case has presented an opportunity to see the quality of work that goes into cases argued at the highest level.
"It's been a great opportunity to see how these things get done, to see exactly how much revision and research are done, and how carefully the writing and the arguments are structured," Cariello said.
In addition to the Carrigan case, the clinic has two cases scheduled for argument in March, and law professor Jim Ryan argued Kevin Abbott v. United States in October, on the first day of the current term.
The Supreme Court receives approximately 10,000 case petitions each year, and grants and hears oral argument in about 75 to 80 cases.
Having four cases argued in the same term is a testament to the work the clinic students have done, Elwood said.
"They've been doing a very good job of finding cases and they've been doing a very good job of briefing them," he said.