MICHAEL A. CARRIGAN, FOURTH WARD CITY COUNCIL MEMBER OF THE CITY OF SPARKS v. THE COMMISSION ON ETHICS OF THE STATE OF NEVADA
No. 51920
SUPREME COURT OF NEVADA
July 29, 2010
236 P.3d 616
PARRAGUIRRE, C.J., and HARDESTY, DOUGLAS, CHERRY, SAITTA, and PICKERING, JJ., concur.
Chester H. Adams, City Attorney, and Douglas R. Thornley, Assistant City Attorney, Sparks, for Appellant.
Nevada Commission on Ethics and Adriana G. Fralick, Carson City, for Respondent.
Legislative Counsel Bureau Legal Division and Brenda J. Erdoes, Legislative Counsel, and Kevin C. Powers, Senior Principal Deputy Legislative Counsel, Carson City, for Amicus Curiae Legislature of the State of Nevada.
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
We first conclude that voting by public officers on public issues is protected speech under the First Amendment. Because
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 Hawk 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 оf 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.
[T]herefore, 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
Upon completion of the investigation, the Commission issued a written decision censuring Carrigan for violating an ethics law,
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
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 overbreadth 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
Voting by public officers
The Ethics in Government statute at issue in this case is
a public officer shall not vote upon or advocate the passage or failure of, but may otherwise partiсipate 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.)
(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
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 foсuses 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 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
(e) Any other commitment or relationship that is substantially similar to a commitmеnt 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
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
The Pickering balancing test is a lower standard of review used in situations involving a state employee. Id. 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(8)(e) is facially overbroad
We now consider Carrigan‘s overbreadth challenge to
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 protected First Amendment rights.‘” City of Las Vegas v. Dist. Ct., 118 Nev. 859, 863 n.14, 59 P.3d 477, 480 n.14 (2002) (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 com-
Carrigan contends that
We agree with the Commission that promoting the integrity and impartiality of public officers through disclosure of potential conflicts of interest is clearly a cоmpelling state interest that is consistent with the public policy rationale behind the Nevada Ethics in Government Law. See
The definition of a “commitment in a private capacity” in subsection 8(e) fails to sufficiently describe what relationships are included within
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
Therefore, we declare
HARDESTY, CHERRY, SAITTA, and GIBBONS, JJ., concur.
PICKERING, J., dissenting:
Before today, no рublished decision has held that an elected local official engages in core political speech when he or she votes on an individual land use matter. Likewise, no published decision
Separation of powers
Our decision in Commission on Ethics v. Hardy, 125 Nev. 285, 212 P.3d 1098 (2009), on which the majority relies, did not extend First Amendment protection to a local government official‘s vote on a land use matter1 or declare such a vote to be core political speech. At issue in Hardy was whether, for separation-of-powers purposes, a member of the Nevada Legislature engages in core legislative speech when voting on state legislation. Id. at 293-97, 212 P.3d at 1104-07. Citing Brady v. Dean, 790 A.2d 428 (Vt. 2001), we held that the Legislature could not delegate to an executive branch agency—the Ethics Commission—the power to police state legislators’ conflicts of interests in voting. Hardy, 125 Nev. at 294-96, 212 P.3d at 1105-06. The basis for our decision was not that the First Amendment requires strict scrutiny of conflict-of-interest rules for elected officials who vote. It was that Nevada‘s constitutional provisions vesting authority in the Legislature to discipline its members,
Hardy doesn‘t speak to the issue in this case, where a state ethics-in-government statute is being applied to a local governmental official who votes. A local government exercises such powers as the Legislature and Constitution confer.
First Amendment and acts of governance
An elected official‘s vote on a matter of public importance is first and foremost an act of governance. The official has broad common law and, at the federal level, Speech and Debate Clause immunity for his vote. See S. Sherr, Freedom and Federalism: The First Amendment‘s Protection of Legislative Voting, 101 Yale L.J. 233, 235-36 (1991) (discussing
Whether the First Amendment protects an official‘s vote qua governance was raised but not decided in Spallone v. United States, 493 U.S. 265 (1990), an appeal of a contempt order issued against the City of Yonkers and its city council members for not passing an ordinance required by a federal consent decree. Justice Brennan would have upheld the contempt citation against both the City and its council members and reached the First Amendment issue. Id. at 281-306 (dissenting). Writing for four members of the Court, he characterized as “unpersuasive” the argument that the First Amendment protected a city council member‘s vote “yea” or “nay” on the ordinance to which the City had stipulated in the federal consent decree:
Petitioner Chema claims that his legislative discretion is protected by the First Amendment as well. Characterizing his vote on proposed legislation as core political speech, he contends that the Order infringes his right to communicate with his constituents through his vote. This attempt to
use decision reviewable, if at all, by a petition for judicial review under
recharacterize the common-law legislative immunity doctrine into traditional First Amendment terms is unpersuasive. While the act of publicly voting on legislation arguably contains a communicative element, the act is quintessentially one of governance . . . .
Id. at 302 n.12 (emphasis added). See Clarke v. United States, 915 F.2d 699, 708 (D.C. Cir. 1990) (en banc) (vacating as moot an earlier panel opinion that held, pre-Spallone, that Congress could not, consistent with the First Amendment, coerce the votes of the District of Columbia Council; noting that this was an “important” issue “of first impression” that “would carry broad implications” for federal, state, and local governments and might “open[ ] the door to more litigation than we can now appreciate“); Zilich v. Longo, 34 F.3d 359, 363-64 (6th Cir. 1994) (holding that a former city council member‘s First Amendment rights were not violated by a resolution authorizing suit against him for having violated the council‘s residency rеquirement, even though alleged to be in retaliation for his politics: “Congress frequently conducts committee investigations and adopts resolutions condemning or approving of the conduct of elected and appointed officials, groups, corporations and individuals“; the “manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views,” including the plaintiff‘s “right to oppose the mayor” and the “defendants’ right to oppose” the plaintiff “by acting on the residency issue” (internal quotation and citation omitted)); Rangra v. Brown, 584 F.3d 206 (5th Cir. 2009) (dismissing appeal after vacating panel decision, 566 F.3d 515, reh‘g granted, 576 F.3d 531, that had concluded that elected local and state government officials’ decision-making represents political speech, requiring the Texas Open Meeting Act to survive strict scrutiny review); cf. Doe v. Reed, 561 U.S. 186, 194-96, 199 n.2 (2010) (recognizing that a citizen engages in both expressive and legislative speech in signing a referendum petition and declining strict scrutiny review of Washington‘s Public Records Act‘s application to signers who wished to remain anonymous).
Voting by a public official is conduct—an act of governancе. Still, as Justice Brennan noted in Spallone, a public official‘s vote also “arguably contains a communicative element,” 493 U.S. at 302 n.12; an elected official‘s vote defines his beliefs and positions in a way words alone cannot. Thus, the First Amendment was held to protect the communicative element in a public official‘s vote in Miller v. Town of Hull, Mass., 878 F.2d 523 (1st Cir. 1989), on which the majority relies.
Miller was a retaliation case under
There is a difference the majority does not acknowledge between “‘retaliatory First Amendment claims’ and ‘affirmative’ First Amendment claims, such as ‘facial challenges to statutes.‘” Velez v. Levy, 401 F.3d 75, 97 (2d Cir. 2005) (quoting Greenwich Citizens Comm. v. Counties of Warren, 77 F.3d 26, 31 (2d Cir. 1996)). Because a First Amendment retaliation claim succeeds does not mean that the right vindicated is absolute, or that a statute thаt implicates such a right while regulating related conduct in a content-neutral way must pass strict scrutiny to survive facial challenge. First Circuit cases that have followed Miller make the point unmistakably. Thus, in Mullin v. Town of Fairhaven, 284 F.3d 31, 37 (2002), the First Circuit refined Miller, stating that, while “[w]e have extended First Amendment protection to votes on ‘controversial public issue[s]’ cast by ‘a member of a public agency or board[,]’ . . . [h]is protection is far from absolute.” Mullin, 284 F.3d at 37 (emphasis added) (quoting Miller, 878 F.2d at 532). The court then proceeded to analyze Mullin‘s First Amendment retaliation claim under the flexible Pickering v. Board of Education, 391 U.S. 563 (1968), standard the majority rejects—paradoxically, at the same time it embraces Miller. See also Mihos v. Swift, 358 F.3d 91, 109 (1st Cir. 2004) (“we articulate the First Amendment right at stake here as the right of a public official to vote on a matter of public concern properly before his agency without suffering retaliation from the appointing authority for reasons unrelated to legitimate governmental interests“; applying Pickering balancing (emphasis added)).
The Pickering/Garcetti v. Ceballos, 547 U.S. 410 (2006), line of cases speaks to the First Amendment rights of public employees and holds that, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. Restricting a public employee‘s official speech “does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 421-22.
The majority deems Pickering/Garcetti inapplicable because Carrigan is elected and his constituents, not the government,
Strict scrutiny v. rational basis or intermediate review
Here, Carrigan has not brought a retaliation claim. He challenges whether Nevada‘s Ethics in Government Law can constitutionally apply to him, even when the purpose is prophylactic—to avoid conflicts of interest—not retaliatory. Of note, the Law does not regulate how councilmember Carrigan votes. It provides that he should not vote at all on “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 оthers.”
A law limiting an elected official‘s ability to vote on matters as to which he has an actual or apparent conflict of interest does not trigger strict scrutiny. It commands either rational basis, Peeper v. Callaway County Ambulance District, 122 F.3d 619, 622-23 (8th Cir. 1997), or at most the intermediate level of review given laws
At issue in Peeper was a board resolution prohibiting a newly elected ambulance board member from voting on certain matters because her husband worked for the ambulance district. 122 F.3d at 620-21. Although the Eighth Circuit invalidated parts of the resolution because it went further than the state conflict-of-interest law required, it used rational basis review and rejected strict scrutiny as inappropriate. Id. at 622-23. In its view, “[a]n individual‘s right to be a candidate for public office under the First and Fourteenth Amendments is nearly identical to one‘s right to hold that office,” making it appropriate to “employ the same constitutional test for restrictions on an officeholder as we do for restrictions on candidacy.” Id. at 622. Quoting Bullock v. Carter, 405 U.S. 134, 143 (1972), and Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983), Peeper noted that the existence of barriers to a candidate‘s right of access to the ballot does not in and “of itself compel close scrutiny,” and stressed that, “[t]he Supreme Court has upheld restrictions on candidacy that are unrelated to First Amendment values and that protect the integrity and reliability of the electoral process itself.” 122 F.3d at 622-23. Accord Franzwa v. City of Hackensack, 567 F. Supp. 2d 1097 (D. Minn. 2008) (rejecting First Amendment challenge by an elected board member to his temporary suspension by his fellow board members from voting privileges for what they erroneously believed was his disqualification; judged under a rational basis standard, the board, which had the power to judge the qualifications of its members, reasonably believed that the plaintiff‘s residency qualification was in doubt).
The Second Circuit pursued much the same analysis in Monserrate v. New York State Senate, 599 F.3d 148 (2d Cir. 2010), which presented a First Amendment challenge to the New York State Senate‘s expulsion of an elected senator following his domestic violence conviction. As the Eighth Circuit did in Peeper, the Second Circuit drew on Anderson v. Celebrezze, and analogized post-election discipline of elected officials to pre-election candidacy restrictions. Id. at 154-55 (also citing Burdick v. Takushi, 504 U.S. 428, 432 (1992)). In both the pre- and post-election context, “‘the rights of voters and the rights of candidates [or еlected officials] do not lend themselves to neat separation.‘” Id. (internal quotation omitted). The court affirmed that “[t]he district court did not err in declining to apply strict scrutiny,” and elaborated that:
. . . it is an erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny. Rather, it is useful to look to a more flexible standard in which the rigorousness of our inquiry into the propriety of a state [action] depends upon the extent to which a challenged [action] burdens First and Fourteenth Amendment rights. When such rights are subjected to severe restrictions, the [action] must be narrowly drawn to advance a state interest of compelling importance; but when such rights are subjected to less than severe burdens, the State‘s important . . . interests are generally sufficient to justify the restrictions. Therefore, if the burden imposed is less than severe and reasonably related to the important state interest, the Constitution is satisfied.
Id. (internal quotations and citations omitted).
“It seems clear enough,” the court held, “that this flexible framework, used in ballot access cases, is not limited to the prevote context,” but aрplies as well to cases applying post-election restrictions on elected officials. Id. at 155. Given the New York Senate‘s “important interest in upholding its reputation and integrity,” and the “reasonab[le] relat[ionship]” between that interest and Monserrate‘s expulsion, the court denied Monserrate relief.4 Id. In so doing, it noted that the expulsion had the effect of depriving his constituents of elected representation until a successor was chosen. Id. at 156. Because the voters of every senate district were likewise subject to having the senate‘s expulsion rules applied to their elected representative, this did not offend their First or Fourteenth Amendment rights. Id. at 156-57.
No doubt requiring Carrigan to recuse himself on matters involving his longtime friend and then-current campaign manager,
Statutorily imposed limits on a local government official‘s vote on a matter as to which his personal loyalties conflict, or appear to conflict, with his public duties do not severely or discriminatorily burden the official or his constituents. A public official, under Nevada‘s Ethics in Government Law, is not required to recuse so long as the official‘s “commitment in a private capacity to the interests of others . . . is not greater than that accruing to any other member of the general business, profession, occupation or group.”
At common law, “[a] member of a local governing board is deemed to be a trustee for the citizens of the local entity.” 2 Antieau on Local Government Law § 25.08[1] (2009). In such an official, “[t]he law tolerates no mingling of self-interest. It demands exclusive loyalty, and if a local legislator has an interest that is of such personal importance that it impairs his or her capacity to act in the interest of the public, he or she cannot vote.” Id. Numerous cases so hold, applying long-established common law. See 56 Am. Jur. 2d Municipal Corporations, Etc. § 126 (2010) (“A council member who has a direct personal interest, a financial interest, or an appearance of impropriety in a matter coming before the council is not eligible to vote in that matter on the grounds that to allow such a practice violates public policy. The proper thing to do in such a case is for the member to recuse or disqualify himself, or abstain from voting.” (footnotes omitted) (collecting cases dating back as far as 1878)). Statutes regulating conflicts of interest by public officials supplement these common law rules, both in Nevada and elsewhere. See M. Cordes, Policing Bias and Conflicts of Interest in Zoning Decisionmaking, 65 N.D. L. Rev. 161, 175-79 (1989).
‘A “universal and long-established” tradition of prohibiting certain conduct creates “a strong presumption” that the prohibition is constitutional.’ Republican Party of Minn., 536 U.S. at 785 (quoting McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 375-77 (1995) (Scalia, J., dissenting)). I submit that this presumption applies here.
Carrigan does not contest the Ethics Commission‘s findings, which the district court upheld, that Carrigan‘s relationship with Vasquez was disqualifying.6 Nor does the majority debate that, as applied,
Overbreadth analysis is an exception to the basic rule that “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). The rule against hypothetical challenges rests “on more than the fussiness of judges“; it “reflect[s] the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation‘s laws.” Id. at 610-11. As an exception to the rule against deciding cases based on hypotheticals, the overbreadth doctrine is strictly limited. It applies only to “statutes which, by their terms, seek to regulate only spoken words,” burden “innocent associations,” or delegate “standardless discretionary power to local functionaries, resulting in virtually unreviewable prior restraints.” Id. at 612-13 (internal quotation omitted).
In Broadrick, the Court rejected an overbreadth challenge by Oklahoma government employees to a state personnel statute patterned on the federal Hatch Act, which proscribes partisan political activities by government employees. Concededly, the Act‘s broad terms could be read to prohibit some constitutionally protected speech. However, it fairly applied to the conduct engaged in by the employees before the Court. Since the statute sought “to regulate political activity in an even-handed and neutral manner” and reached “a substantial spectrum of conduct that [was] manifestly subject to state regulation,” the government employees’ overbreadth challenge failed. Id. at 616. In reaching this conclusion, the Court cautioned against too easy or promiscuous resort to overbreadth analysis in conduct cases. The function of
facial overbreadth adjudication . . . attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct and that conduct—even if expressive—falls within the scope of otherwise valid . . . laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, mаy deter protected speech to some unknown extent, there comes a point where that effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.
Broadrick disposes of Carrigan‘s overbreadth challenge. Here, the challenged statute applies to conduct: the governmental act of voting on a local land use matter. Even granting that an elected official‘s vote on a public matter carries an element of expressive speech, the statute is content-neutral. It regulates when an official may or may not vote, not how he or she should vote. Its justification lies in avoiding corruption or the appearance of corruption and in promoting the public‘s faith in the integrity of its local government. Such a statute, applying in a content-neutral way to both conduct and speech in the government setting, should not fall to overbreadth analysis.
The majority does not identify the protected conduct that
Read in isolation and parsed word-for-word, paragraph (e) of
[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can suffi-
ciently understand and comply with, without sacrifice to the public interest.
United States Civil Serv. Comm‘n v. Nat‘l Ass‘n of Letter Carriers, 413 U.S. 548, 578-79 (1973); see 2A Norman A. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:17, at 358-60 (2007) (“Where general words follow specific words in a statutory enumeration, the general words are construed tо embrace only objects similar in nature to those objects enumerated by the preceding specific words,” thus inherently limiting the statute‘s terms).
* * * * *
The vote in this case did not signify much in the end, because Carrigan‘s vote was in the minority. But applying First Amendment strict scrutiny and overbreadth precepts to invalidate state conflict-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.
Notes
Because abstention by a public officer disrupts the normal course of representative government and deprives the public and the public officer‘s constituents of a voice in governmental affairs, the provisions of this [statute] are intended to require abstention only in clear cases where the independence of judgment of a reasonable person in the public officer‘s situation would be materially affected by the public officer‘s . . . commitment in a private capacity to the interests of others.
As the district court noted, the legislative history ofA reasonable person in Councilman Carrigan‘s position would not be able to remain objective on matters brought before the Council by his close personal friend, confidant, and campaign manager [Vasquez], who was instrumental in getting Councilman Carrigan elected three times. Indeed, under such circumstances, a reasonable person would undoubtedly have such strong loyalties to this close friend, confidant and campaign manager as to materially affect the reasonable person‘s independence of judgment.