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Nevada attorneys and candidates for Attorney General debate legalities of health care reform lawsuit

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By Elizabeth Crum, Nevada News Bureau: Four attorneys with ties to the issues and parties of Nevada’s health care reform lawsuit gave their perspectives to media and political bloggers during a Nevada News Bureau-hosted conference call this afternoon.

Mark Hutchison, lead counsel for Governor Gibbons’ newly retained pro-bono team, said he plans to participate in a conference with US District Court Judge Roger Vinson next week as part of the process to join Florida and other states in an amended complaint challenging the federal government on provisions in the recently passed health care legislation.

Hutchison said Indiana, North Carolina, Mississippi and Arizona have all now announced their intention to join the Florida lawsuit.

“The suit will be based primarily on 10th amendment challenges, unapportioned tax issues and the unconstitutionality of the individual mandate to purchase health insurance,” said Hutchison.

Jacob Hafter, an attorney and Republican candidate for state Attorney General, predicted a “long process” and speculated that Nevada will face additional legal issues and public outcry when taxes and penalties for not complying with health care reform mandates are levied and fully realized by citizens.

Hafter said he believes the Attorney General has been “derelict in her duties” and that her refusal to cooperate with the Executive Branch has created a liability that may be punishable as a misdemeanor under state law.

Hafter also said he today received confirmation from a reliable source inside the Nevada State Bar that a formal ethics complaint has been filed against the Attorney General for violations of attorney-client privilege when she disclosed certain pieces of information in her publicized response and explanation letters to Governor Gibbons.

Joel Hansen, an attorney and the Independent American Party candidate for Attorney General, disagreed with his colleagues and said he believes it is a violation of state law for the Governor to go outside the Attorney General’s office in order to pursue health care reform lawsuit. Hansen said in his opinion, the correct legal avenue for the governor to take would be to call a special session of the legislature asking them to order the Attorney General to follow his instructions, just as the governor of Arizona did last week.

Hutchison disagreed with Hansen and said his interpretation of Nevada statues is that the Executive Branch is within its rights to retain outside, pro-bono counsel in certain instances.

“The Attorney General is not necessarily the chief legal officer for this kind of lawsuit,” Hutchison said, arguing this is so in part because the suit will be prosecuted against the federal government in a court in another state.

“And if the Attorney General can appoint subordinate counsel at her own discretion,” Hutchison added, “Surely the Executive Branch retains that same right.”

Attorney and former General Counsel and Chief of Staff to the Governor, Josh Hicks, said there are good arguments on both sides of the issue and said a question like this has never before “come to a head” for the state. Hicks said that among other things, the disqualifying language in the statues must be examined.

“Is a refusal to prosecute a disqualification of the Attorney General?” he asked.
Hicks added that “the implied authority for the Governor to have his own counsel, especially if coming out of his agency and budget” is also at issue.

“It will be very interesting to see what the Attorney General does next,” he said.
Hansen reiterated that in his opinion the language in the statues is clear and the Attorney General is within her rights to say the Governor has wrongfully “employed” counsel outside her office.

“However, if I were the governor, I would also look at statute 228.210 which says the Attorney General is obligated to pursue this matter because he has directed her to do so,” said Hansen. “If she fails to perform that duty, she is guilty of a misdemeanor.”

Hafter agreed but added that, in his view, “There is a perhaps an ability for the Attorney General to commit malfeasance with no way of being called to task other than to be voted out in November.”

“Which at least two of us on this call are hoping happens,” he joked.

“I do think it would be appropriate for the legislature to address this matter of the Attorney General’s obligation to the Executive Branch,” Hafter said.

Hicks referred to a case in Georgia in which there has been some talk of impeachment of the Attorney General for refusing to follow the governor’s order.

“But that is all uncharted territory here in Nevada,” Hicks said. “And I think it’s an unlikely scenario.”

Hutchison said if the Attorney General brings a complaint and seeks injunctive relief and the governor pushes forward, the matter could “quickly” end up in the state Supreme Court.

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