After his current counsel refused to follow his instructions, Governor Gibbons decided to find somebody who would. Mark Hutchison of Hutchison & Steffen (approximately one year after he won the largest plaintiff's verdict in Nevada history) will take the reigns from the AG and sue to stop the recently passed health care legislation on behalf of the State of Nevada.
Hutchison and Governor Gibbons appeared on "On the Record with Greta Van Susteren" last night, where Hutchinson said that he would be handling the suit pro bono. Hutch had this to say regarding challenging the law under the commerce clause:
The commerce clause is the basis that Congress passed this legislation, particularly the individual mandate, which for the first time in United States history requires U.S. citizens to purchase a service or good in order to maintain their good standing with the United States government. Otherwise, they're going to get chased down by one of these 16,000 IRS agents, and that's unprecedented. And the justification is the commerce clause. So the court will decide whether or not the commerce clause can be stretched that far.Attorney General Catherine Cortez Masto is reportedly looking at options to stop the suit, possibly seeking an injunction against the Governor pursuing the suit without her approval. Masto's concerns are solely legal in nature. You know, Rule 11 and such. Absolutely no politics going on here. Nope.
*Thanks to the helpful Tipster who politely pointed out that we have been spelling Mr. Hutchison's name incorrectly.
(Fox News)
As long as he isn't compensated in any way by state funds, and as long as the litigation takes place outside Nevada, I don't see how Masto can do anything. NRS 228.110(2).
ReplyDeleteH & S is a tool box.
ReplyDeleteGreat publicity for H&S. I'm surprised Bernstein and Lerner did not jump on this. This case is a non starter, but Mark Hutchinson gets to look like a hero to his hard right Mormon constituency. Brilliant.
ReplyDeleteReal men of genius; Mr. Hardcore right wing Tea Party silly lawsuit lawyer.......
Under the law, Masto cannot do anything.
ReplyDeleteThat being said, this is all political, from every angle.
This is a good post and comments.
ReplyDeleteExcept for 8:44 -- he's like the guy they told to send a package to L.A. overnight, and it never got there.
Stick to the merits and leave the slurs in the weeds.
I think the problem with using Lerner and Bernstein is... well, do they run ads up north?
If they had had the guts to call O-Care a tax, which it is, none of this baloney would be on the plate.
What a surprise, 9:18, aka Mr. Hardcore Right Wing Tea Party Silly Lawsuit Lawyer, has a problem with 8:44. You should sue him for infringing on your right to completely misinform the public about health care and completely invalid lawsuits initiated for political reasons under the auspices of representing the people's "will".
ReplyDeleteIt seems like the argument has legal merit. A state with police powers can do whatever it wants, but I thought the federal government was more limited. There is something about the federal government forcing me to buy a good or a service that doesn't sit well with me.
ReplyDelete9:35: Not everyone who is opposed to Obama's healthcare bill (about half of Americans) is a tea party member or "hardcore right winger." And the fact that you cannot argue your point of view without insults does not reflect well on your understanding of the issues.
ReplyDeleteIf the people who are suing are misinforming the public and the lawsuits are completely invalid, shouldn't you be able to explain why? There are legal blogs all over this country where that debate is occurring with reference to actual legal authority and precedent.
I'm not saying that your political stance on this issue is necessarily wrong. I'm just opining that even if you are right, it appears that there is little likelihood you know why.
The issue here isn't whether Congress can do what it did. For what it's worth, that issue was decided during the 1930's when elements of The New Deal were being litigated in the US Supreme Court in front of Justices who were probably smarter and less political than the Justices of today's court.
ReplyDeleteBut I digress . . .
The issue is whether Gibbons can do what he's trying to do. It's pretty clear that he can't under Nevada's constitution. For better or worse, we have an elected AG who was entitled and empowered to make the call she made. Right/Left politics aside, Gibbons has to defer. A private firm that believes in Gibbons position cannot supplant the AG. This appears to be a political stunt by Gibbons to try and save his governorship. It's creative, but it won't work. It will be dismissed for lack of standing.
9:18 is an Asshat
ReplyDelete@10:48,
ReplyDeleteWhy would the choice of attorney have any bearing at all over whether the State of Nevada has standing to sue?
Standing applies to the plaintiff, not to the plaintiff's counsel. For better or for worse, the supreme executive authority in the State of Nevada is vested in the Governor. Nev. const. art. 5 sec. 1. The Governor has the authority to direct the AG to sue. NRS 228.170. Neither the NRS nor the Constitution permits the AG to refuse. Her only recourse must come from the rules of Professional Conduct and her ethical obligations as an attorney.
Which doesn't affect standing at all.
Let's take off the gloves. The AG's office is staffed almost exclusively with complete nimrods. If Nevada is to have any chance at all in this kind of politically charged litigation, we have a far better chance with the asshatting lying jerkwads at H&S. Who knows, maybe as reward, Satan will give them an airconditioned apartment in hell.
ReplyDelete"jerkwads"
ReplyDeleteLMAOROTF
UNLV3L, only the AG represents the State in litigation. The Governor does not have standing; only the State does. The Governor cannot annoint private counsel purporting to act on behalf of the State. This is where the standing issue arises.
ReplyDelete@11:40,
ReplyDeleteNRS 228.110 prevents any private attorney from representing the State within Nevada unless the AG's office is disqualified or the Legislature specifically authorizes it.
As long as the litigation isn't within Nevada, nothing prevents the State from engaging private counsel on a pro bono basis (228.110 also prevents compensation, although the Legislature can authorize compensation.)
I never said the Governor had standing, only that the Governor is, for purposes of executive decisions, the State. The State directed its legal adviser to pursue litigation. Without authority, the AG declined. So the State engaged private counsel to pursue litigation outside of Nevada. The NRS does not prohibit this action, and it is still the State as the plaintiff.
The issue of forcing Americans to purchase a good or service is not ripe for judicial determination, as that provision does not go into effect until 2014.
ReplyDeleteNow go away.
Sincerely,
SCOTUS
This may be a short-sighted move by the anti-reform supporters who, I am generalizing here, tend to be Republican or conservative.
ReplyDeleteIf the Governor may simply issue and executive order to commence ligation on behalf of the state good governance will be lost. When the shoe is on the other foot, the right will be hemming and hawwing about protection the power vested int he AG's office.
This particular situation and politics aside, isn't it a better structure of government to have an independent legal counsel acting for the state's best interest rather than the whims of another branch?
The AG has been elected act, using his/her best judgment, to protect Nevada.
If you don't like the actions the person holding this position has taken, simply vote them out at the next election. The political process is an answer to this issue without denigrating the office of Attorney General.
agree with 12:09.
ReplyDeleteIt seems like a poor idea to be establish a precedent whereby future governors can bypass the AG whenever the two disagree?
@12:00 (SCOTUS)
ReplyDeleteThe State doesn't have standing to raise that issue anyway, because that relates to the relationship between the individual and the federal government. Mass. v. Mellon, 262 US 447, 486-487 (1923).
Now stop writing 100-page opinions when three will do, you pompous political hacks.
Sincerely, the Taft Court.
@12:29
ReplyDeleteStop picking on us.
We are never coming to your State of the Union Address again if you are just going to criticize the hard work we do while we sit there silently.
Sincerely,
SCOTUS
No sane person reading this blog would spend their own money hiring either the AG staff or H&S, so who cares which group does Governor Buttwipe's bidding on this fool's errand.
ReplyDeleteLet's be sure scarce state resources aren't wasted on this transparent campaign decision...Gov BW is running for re-election - right?
@Nevada,
ReplyDeleteYour legal community is a circus, we do not take you seriously. You do not even have an appellate court.
Sincerely,
SCOTUS
p.s. please do not bring Halverson with you. Thx.
@SCOTUS, 1:26,
ReplyDeleteNevada does not need an appellate court. An appellate court would only delay cases before they come before us, where, by following your illustrious example, we simply make shit up.
Hugs and Kisses,
NSC
@SCOTUS, 1:26
ReplyDeleteNevada does not need an appellate court. An appellate court would simply only serve to delay the time until the cases came before us, where, following your illustrious example, we make everything up.
Hugs and Kisses,
NSC
RE: SCOTUS @ 1:26
ReplyDelete***we have a turd in the punch bowl....I repeat, we have a turd in the punch bowl***
@ SCOTUS 1:26, and @ NSC 1:53 (and 2:11 - Edit, THEN Publish jackazz; don't repost!):
ReplyDeleteGeniuses such as you surely realize that the Nevada Supreme Court *is* an appellate court, right?
In fact, in your smarter-than-the-rest-of-us-peons way, you surely meant to say "intermediate appellate court," right?
Wait, don't tell me! You both graduated from T1 schools, huh?
@4:26,
ReplyDeletejackazz at 1:53 and 2:11 here,
I posted. It appeared. Twenty minutes later, it disappeared. I figured LE and JWL didn't appreciate the phrasing. I rephrased and reposted. Both appeared. WTF?
NSC is an appellate court only in the loosest sense of the word.
@1:53/2:11/4:53/jackazz,
ReplyDeleteI am assuming you left out EWE because you know I have no issues with your first phrasing.
Otherwise, I feel left out and sad.
Elle,
ReplyDeleteA true Cosmo girl perfectly coordinates her profanity with her mood, post, and miniature Chihuahua. For example, the phrase "You bitch!" can be catastrophic, if used improperly (two straight male construction workers working on a high-rise, for example) while a well-prepared Delta Nu will know the exact moment to use such a phrase.
A well-coordinated and double-posting jackazz
@5:28,
ReplyDeleteThat was the nicest thing anyone has ever said to me on WWL. You are not an asshat.
8:44, 9:35, 10:50 -- I take your idiocy as an admission that you have no actual argument. So go back to congratulating yourselves on how much smarter, more tolerant, and more compassionate you are.
ReplyDelete@ 5:52
ReplyDeleteWhat about 12:09's position?
-Not 12:09
Even if not one cent in fees is ever billed by the chosen attorneys for Governor-I-really-don't-care-what-anyone-else-thinks, who is going to pay the costs for this lawsuit? Oh right. That would be Nevada taxpayers. Even those that embrace healthcare reform because they've been buried in medical bills or have gone without medical care & prescriptions.
ReplyDeleteH&S toolbox! That's "hammer" hitting the "nail" on the head.
ReplyDeleteYour honor, Attorney DeWalt and his associate Mr. Craftsman are tools.
Yes no poltics involved here by Gov and Hutchinson. Is the gov going to find health care for our children or our seniors/ Cannot fail to mention the bias free reporting by this blog site.
ReplyDeleteFirst of all, one of the best postings on WWL - ever.
ReplyDeleteI would like to suggest that part of the problem is that NRS has two separate sections that are in at least partial conflict on the issue of who decides to go to court or not. This is part of the larger problem that much of the NRS has been poorly written.
A good deal of it was written from the 1930's to the 1950's before we had any professional legislative counsel. There are even some sections floating around from the 1800's in serious need of revision. And it's taken on much of the look of a jury rigged fishing boat, with far too many patches. Although the immediate issue is one that inflames many opinions, this could have been prevented if we had some serious across the board legislative reform of the procedural parts of state law. Unfortunately this isn't a very sexy news topic.
Nice people over at H&S. Competent too. Feel bad for the associates who are now lumped in with wingnuts. A challenge to HCR has no chance of success. Congress has the power to tax and that is what this will come down to.
ReplyDelete