Newspaper column: Writing laws for a ‘reasonable person’ supposes there is such an animal

Imagine if the traffic laws were written in the same manner as Nevada’s public ethics law — using a “reasonable person” standard.

Thus the speed limit would be what a “reasonable person” would perceive it to be depending on traffic and road conditions. You might think 85 mph reasonable but the trooper who pulls you over is thinking 55 is more reasonable.

Don’t fret, if your speeding was not “willful,” you don’t have to pay a fine.

There was opposition to the Lazy 8 hotel and casino project in Sparks.

That’s one way to look at the recent 5-2 Nevada Supreme Court ruling in the case of Sparks City Councilman Michael Carrigan. Carrigan had his wrists slapped by the Nevada Ethics Commission because he voted to approve the Lazy 8 hotel and casino project, which was being lobbied for by Carrigan’s campaign manager, Carlos Vasquez, as recounted in this week’s newspaper column, available online at The Ely Times and the Elko Daily Free Press.

At the same time Vasquez was receiving a $10,000-a-month retainer from the Lazy 8’s principals, he was serving as Carrigan’s campaign manager for free and placing campaign ads at cost.

Carrigan testified that the Sparks city attorney advised him that his relationship with Vasquez was not a conflict of interest because Carrigan would not personally benefit from the Lazy 8 project. Carrigan could have asked the Ethics Commission for an advisory opinion but chose not to.

The ethics law states that “a public officer shall not vote upon … a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by … [h]is commitment in a private capacity to the interests of others.”

The majority opinion, penned by Chief Justice Kris Pickering, found that, while the “reasonable-person standard in tort law” might require case-by-case evaluation, “they do not call for the wholly subjective, unreviewable judgments …”

Justice Michael Douglas wrote the dissent. He delivered a syllogistic slam dunk against the majority’s conclusion that the law is not too vague.

“As the majority indicates, a law is impermissibly vague ‘if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited. …”’ Douglas writes. “Here, in determining that Carrigan’s violation was not willful, the Commission inescapably concluded that he did not know and should not have reasonably known that his conduct would violate (the law). In this lies the dispositive contradiction: the constitution requires that laws be of a nature that a person reasonably should know what is prohibited; yet, here, the Commission concluded that Carrigan should not have reasonably known that his conduct was prohibited. Thus, the Commission’s determination that Carrigan did not willfully violate the statute equates to a legal conclusion that (the law) is vague as applied to Carrigan. Accordingly, this court should vacate the Commission’s censure of Carrigan.”