Republican titans battle over ESA strategy

Let's be sure we have this correct.

Attorney General Adam Laxalt is a Republican. So is Lt. Gov. Mark Hutchison and state Treasurer Dan Schwartz.

All of those statewide elected officials support the state's newly passed Education Savings Account program, which diverts state school funds to private accounts that parents can spend on education-related expenses, from tutoring to tuition at private schools. And all three want the program to go into effect next month.

So why is Hutchison suing the state, with Laxalt accusing him of unethical conduct and Schwartz issuing ever-more-apoplectic news releases?

The answer seemingly comes down to a difference in legal strategy between Laxalt and Hutchison as to the best — and quickest — way to get the issue of whether ESAs are constitutional before the courts. But since politicians are involved, there's no small amount of worrying about who gets credit for defending the ESA program.

ESAs are already under legal attack by liberal groups that contend they're unconstitutional for various reasons. Into the fray marched Hutchison, who filed a pro-bono lawsuit in his private capacity as a longtime local attorney on behalf of two parents who are hoping to take advantage of ESAs. Their complaint? The state can't or won't guarantee the ESA money will be there next month because of the uncertainty over litigation. (This, by the way, is true; there is no way to guarantee the money will flow on time.)

So Hutchison filed a lawsuit against the state, asking for a declaration that the program is constitutional. To his way of thinking, plaintiff and defendant could stipulate to the facts, agree on an expedited schedule of briefs and ask the Nevada Supreme Court jointly to fast-track any appeal. The process should produce a final result more quickly than the protracted litigation that's currently underway, Hutchison said.

"I just want a decision," he said. "I just want to get this resolved quickly."

But Laxalt said the lawsuit should be dismissed because the plaintiffs and defendants agree the program is constitutional. In addition, he says Hutchison's lawsuit calls for courts to issue an advisory opinion, which they are generally loath to do.

Not only that, Laxalt says, but the issues raised by Hutchison are already raised in the two other cases, and preliminary rulings are expected soon. "The lawsuit brought by the Hutchison firm endangers the state's ongoing defense of the ESA program, intended to benefit Nevada's schoolchildren and parents," Laxalt said in a statement. "My office believes the [law]suit does nothing but distract and divide the state's efforts to defend the program from the two real challenges to the ESA program which lawyers in my office have been working non-stop to brief, argue and defend."

Oh, and as if that wasn't bad enough, Laxalt says Hutchison acted unethically, since he served for a time as local counsel to an outside group that signed a joint defense and confidentiality agreement with the state. (Hutchison says he never saw that agreement, didn't sign it, and didn't use any information gleaned from the state in his own litigation, much less confidential information.)

For his part, Schwartz accuses Hutchison of filing his lawsuit simply to increase his public profile and raise money for his next political campaign. Hutchison replied, simply, "the treasurer has a history of questionable decision making and inaccurate statements. His recent comments are no exception."

Looks like things are just as chilly inside the Capitol building in Carson City as they are outside this time of year. Hope nobody slips on all that ice!

No matter your position on ESAs, everyone should want to see the legal questions surrounding the program resolved, as quickly as the system allows. All the rest is a political sideshow, albeit a terribly entertaining one.

— Steve Sebelius is a Review-Journal political columnist and co-host of the show PoliticsNOW, airing at 5:30 p.m. Sundays on 8NewsNow. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.

— Glenn Cook has been appointed interim editor of the Review-Journal. His column will resume when a permanent editor is named and he returns to his role of senior editorial writer.