ACLU raises admitted ex parte conversations by state treasurer in school choice filing

In a pair of school choice lawsuit filings within the last week, the American Civil Liberties Union of Nevada has raised questions about Treasurer Dan Schwartz's admission of ex parte conversations with state Supreme Court justices.

The ACLU argues in its filings, which are below and reported by the Review-Journal, that the expedited hearing schedule "does not allow the parties either the time or space to adequately address the complex and weighty constitutional violations at the heart of this case." The group also contends the state's lawyers have presented "a wildly inaccurate and misleading summary of the discussions that took place between counsel regarding the briefing and oral argument schedule" and claim the state lawyers "withheld material information, and acted in less than good faith."

And last week and in Monday's filings, the ACLU also raised questions about Schwartz's conversations with justices -- his office is a party to the case -- that he revealed June 17 on "Ralston Live." In the interview, Schwartz told me, unprompted, "I know that we, that the Attorney General (Adam) Laxalt and I, both had informal conversations with the justices, and they are very much aware that this is an important issue..." (Laxalt's office, in a statement after the program aired, stated: "Of course, Attorney General Laxalt has never had any conversation with any justices about the ESA case or any other pending matters before the Nevada Supreme Court.")

But the ACLU clearly is suspicious -- or at least its filings indicate as much. Consider this section:

Needless to say, this interview raises serious questions about the conduct of Dan Schwartz and the Attorney General’s office. Notably this interview aired on June 17, 2016—the same date on which the Duncan Appellants (a reference to longtime civil rights activist Ruby Duncan, one of the plaintiffs) filed their notice of appeal. That means that, at the time of the interview, the briefing in the Lopez appeal was complete— but the Duncan appeal had either not been filed, or it had been filed but not yet docketed. Yet, Mr. Schwartz confidently represented that “the last day for briefs was, is July 21st, and the Supreme Court I really thought they would have set arguments in mid-August . . .”

This July 21 date has not appeared in any order from this Court, nor was it mentioned in the State’s request to postpone the July 8 oral argument (or in any other filing by the State). Instead, the only place July 21 had been mentioned is in the potential schedule proposed by the State.

Mr. Schwartz’s comments at least raise the question of whether he and/or an employee of the Attorney General’s office initiated ex parte discussions about the Duncan case with one or more Justices of the Supreme Court—and at a time before the Duncan case was even filed and/or docketed. Obviously, any such communication by Mr. Schwartz or members of the Attorney General’s office is prohibited by the Nevada Rules of Professional Conduct, and would serve to undermine the very foundations of our legal system.

The ACLU has suggested a less intense schedule, one that would not stop the treasurer's office from awarding the choice grants before school begins.

16-19947 by Jon Ralston

Opposition to Notice by Jon Ralston

Motion to Extend Page Limit by Jon Ralston