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Nevada justice’s argument to protect ethics law vindicated

It must feel fine to be right. Really right. So right, the United States Supreme Court agrees with you, not in one of those routine 5-4 splits, but in a 9-to-zip decision.

Easily overlooked in the coverage of the U.S. Supreme Court’s slap-down of the Nevada Supreme Court is that Nevada Justice Kris Pickering stood alone and bucked the other state justices by defending Nevada’s ethics laws instead of trying to weaken them.

Although it’s not unusual for a justice to file a dissenting opinion, it’s more noteworthy in a case like this that went to the nation’s top legal dogs and has national implications for other states’ ethics laws. Instead of weakening ethics laws, the U.S. Supreme Court’s opinion protected them.

In her 20-page dissent, Pickering, the Nevada court’s most conservative member, correctly argued that using the First Amendment right to speech “to invalidate state conflicts-of-interest laws that govern local governmental officials who vote is a mistake that I fear opens the door to much litigation and little good.”

A quick history of the case: Sparks Councilman Michael Carrigan, while running for re-election in 2005, voted on a land-use issue to decide whether a hotel-casino called the Lazy 8 was appropriate. The council’s attorney advised Carrigan to vote after he disclosed his relationship with the Lazy 8’s consultant, who is also Carrigan’s campaign manager and close friend. The councilman disclosed and voted for the project, but he was in the minority, and his vote made no difference.

Carrigan insisted he did nothing wrong, but the Nevada Ethics Commission censured him, saying he shouldn’t have voted. He appealed, arguing his First Amendment right to free speech was being limited and the ethics law’s language was too broad. District Judge Bill Maddox of Carson City, another conservative Republican, upheld the constitutionality of the Nevada ethics law, and Carrigan appealed to the Nevada Supreme Court.

Five state justices agreed with Carrigan — Chief Justice Michael Douglas, James Hardesty, Michael Cherry, Nancy Saitta and Mark Gibbons. Justice Ron Parraguirre recused himself, which is intriguing in a case about abstaining from votes. His reason? His wife, an interior decorator, had done work for one of the principals trying to build the Lazy 8.

The majority of the Nevada justices contended that certain “catchall language” in the law was too broad and didn’t make clear when politicians’ relationships mean someone should abstain from voting.

Some politicians are always seeking “clarity” about whether something is unethical. They want written language that spells out every possible unethical thing they can do — so they can artfully dodge around it. This recurring assault on conflict-of-interest laws by politicians who should know better drives me crazy, and it didn’t make the U.S. Supreme Court justices too happy either.

Among the many embarrassments of the 2011 Legislature is that state Sen. Allison Copening didn’t think it was necessary to disclose that she worked for a homeowners association at the time she was trying to push HOA bills supported by her boss. No conflict? Open your eyes.

Ultimately, HOA bills died in the Legislature.

Copening, D-Las Vegas, should have been called before the Nevada Ethics Commission, except that the Nevada Supreme Court in 2009 ruled that legislators should only be disciplined by other legislators because of the separation of powers clause. Like that’s ever going to happen.

Conflict-of-interest rules aren’t new. The U.S. Supreme Court quoted Thomas Jefferson, who as president of the Senate in 1801 wrote: “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.”

Jefferson’s plain speech wouldn’t be specific enough for some of today’s politicians to understand.

Jane Ann Morrison’s column appears Monday, Thursday and Saturday. Email her at Jane@reviewjournal.com or call 702- 383-0275. She also blogs at lvrj.com/blogs/morrison.

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