Nevada attorney general wants court to clarify ESA application issue

The Nevada attorney general’s office has filed a motion asking a district court to clarify or alter its order concerning applications for the education savings account program.

State Treasurer Dan Schwartz’s office has continued to accept applications for the school choice accounts after the Nevada Supreme Court ruled in September that the funding mechanism for the program was unconstitutional. Opponents of the program say no applications should be accepted or processed since there is no funding source.

Complying with the Supreme Court’s ruling, a Carson City judge last month had issued a permanent injunction against the state law that created the accounts. The 32-page motion was filed late Tuesday asking for clarification from that district court.

Solicitor General Lawrence VanDyke said lawyers and other groups, such as Educate Nevada Now, are reading the court’s order too broadly.

“We have asked the District Court to clarify (or alter) its order to ensure that the District Court’s order cannot be read, as you do in your letter, to go far beyond what the Nevada Supreme Court said in its decision,” VanDyke wrote in a letter.

The attorney general and state treasurer maintain the Supreme Court ruling made it clear that the savings account program was constitutional and only the funding was not constitutional.

“The Treasurer respectfully submits that this Court should revise its final order language to more closely hew to the Nevada Supreme Court’s language to avoid just this type of overboard reading of the final injunction,” the motion reads.

Bradley Schrager, the attorney on behalf of the parents from Wolf, Rifkin, Shapiro, Shulman and Rabkin, LLP, said the attorney general’s action is akin to “asking forgiveness instead of permission.”

“The attorney general, on behalf of the treasurer, has now gone to the court and said please change the order. It seems to me you wouldn’t need to do that if you were secure in your belief that what you were doing was already covered by the order,” Schrager said.

Schrager said he is in the process of drafting a response to the attorney general’s motion. Both sides will likely head to a hearing later this month, Schrager said, where the judge who wrote the injunction will consider whether to change it.

Schwartz defended his office’s actions in a statement released Tuesday night.

“I can assure the citizens of Nevada that we will continue to abide by the Supreme Court’s decision and we will not fund any accounts,” Schwartz said. “We will, however, lawfully protect the interests of parents.”

The motion followed a cease-and-desist letter sent by Schrager on Monday, where he threatened legal action if the treasurer’s office did not stop accepting and processing new applications.

A week ago, the American Civil Liberties Union of Nevada issued similar concerns about the continued acceptance of applications.

Contact Meghin Delaney at 702-383-0281 or mdelaney@reviewjournal.com. Follow @MeghinDelaney on Twitter.