Analysis: Attorney General’s appeal of vouchers injunction opens a door

Attorney General Adam Laxalt — and his opponents — could get more than bargained for in his appeal of Carson District Judge James Wilson’s preliminary injunction blocking the release of school voucher money.

A group of parents challenged Senate Bill 302, which created the voucher program, as unconstitutionally diverting public money to private use. Judge Wilson issued an injunction last Monday stopping the state Treasurer from releasing any funds until that issue is resolved because he said releasing the cash would irreparably harm students in Nevada if the law is unconstitutional.

Laxalt is appealing to lift that injunction and let the treasurer begin issuing checks — about $5,100 per student per school year — in February.

Instead of ruling just on the injunction, the high court could take the appeal as an opportunity to rule on the merits of the case.

In order to issue the injunction on Monday, Judge Wilson had to find not only irreparable harm but that the voucher law’s opponents “have shown a reasonable likelihood of success on the merits” of the constitutional challenge.

He did just that, stating in the order that the program violates the Nevada Constitution, “because general funds appropriated to fund the operation of the public schools must only be used to fund the operation of the public schools.”

Both Supreme Court justices pretty much have to go to the merits of the case because Wilson’s order did so in justifying the preliminary injunction.

“Because some amount of general funds appropriated to fund the operation of the public schools will be diverted to fund education saving accounts under SB302, that statute violates sections 6.1 and 6.2 of Article 11 (of the Nevada Constitution),” Wilson concluded. “Plaintiff parents have met their burden of clearly proving that there is no set of circumstances under which the statute would be valid and, therefore, Plaintiff Parents have shown a reasonable likelihood of success on the merits,” of the lawsuit.

Two legal scholars, who both asked not to be named, say it’s not uncommon for a court to go to the merits of the case in situations like this.

“It is not uncommon for the court to rule on underlying issues on an appeal of this kind, especially in federal courts but here in Nevada too,” said one.

For the parties in this case, the issue would be whether they get to argue the case. The Supreme Court would most likely set oral arguments before making a decision — but isn’t required to do so.