Attorneys Discuss Health Care Reform Lawsuit

The state of Nevada and possibly twenty other states plan a lawsuit challenging the constitutionality of the health care reform recently passed by Congress and signed into law by President Obama. Mark Hutchison, who has agreed to provide pro bono counsel to the Silver State in this effort, joined three other attorneys with links to the issues surrounding the lawsuit in a conference call for journalists and bloggers moderated by the Nevada News Bureau.

Fourteen states were involved in the suit when Governor Jim Gibbons decided to add Nevada. At least four others (Indiana, North Carolina, Mississippi and Arizona) have already agreed to join the suit and three additional states are "waiting in the wings," according to Hutchison. “The existing lawsuit challenges on constitutional grounds the legislation under the 10th amendment, under the prohibition of an unapportioned capitation or direct tax, as well as the individual mandate,” he said.

Hutchison agreed to act as lead counsel in the action after Nevada Attorney General Catherine Cortez-Masto declined to prosecute the case. Jacob Hafter, a Republican who is seeking his party's nomination for Democrat Cortez-Masto's position, stated, "we have a long haul," but added the suit is based upon "very good legal issues" and "we have the opportunity to challenge this on very valid constitutional grounds." He expressed doubt, however, about the "ripeness" of the case with respect to the individual mandate until the taxes or fines begin to be assessed, which is not scheduled to occur until 2014. Ripeness is the concept that, in order for a case to be heard, there must be some actual, not theoretical or anticipated, harm done.

Hafter accused Cortez-Masto of being "derelict in her duties" in refusing to pursue the case after being directed to do so by Gibbons, the Republican Governor. By refusing, according to Hafter, she may have committed a misdemeanor.

The only avenues for pursuing action against the Attorney General, however, may be through impeachment via the legislature or prosecution by the attorney general's office. Since the legislature is controlled by her party and she would appoint the prosecutor in her case, neither seems likely.

Hafter declared, "There is absolutely a gap in the law governing the attorney general and, as we see in this case, there is an ability for the attorney general to commit malfeasance and have no consequences" other than to be voted out of office when up for reelection.

Joel Hansen, Independent American Party candidate for Attorney General, expressed skepticism that Hutchison has the legal authority to press the case on behalf of the state. “I think that it’s a violation of law for the governor to ask a private attorney to file this suit. NRS [Nevada Revised Statutes]...specifically says that you can’t do that without an act of the legislature.”

He believes the Governor should call a special session of the legislature both to vest in him the authority to appoint outside counsel to represent the state in this suit and to address impeachment proceedings against Cortez-Masto.

Hutchison claimed that his interpretation of the NRS differed from Hansen's. He argued that, since the law originated at the federal level and the case was being handled by "a pro bono lawyer, not charging the state, who is going to be representing the state outside the state," that NRS was not violated.

Josh Hicks, former General Counsel for Governor Gibbons, raised the question of whether Cortez-Masto's refusal to pursue the case effectively disqualified her, in which case the Governor would be free to assign another attorney to the lawsuit. "It's really uncharted legal territory," Hicks stated.

The Attorney General may take action to stop Nevada from participating in the lawsuit. For now, though, Hutchison plans to move ahead. "We will join as a party in an amended complaint," he said.

See also NNB Editor Elizabeth Crum's report on this call.