By now you may have heard the U.S. Supreme Court has agreed to hear arguments against ObamaCare. It was in all the papers.
They moved with extraordinary speed, taking up the case less than two years after the president signed the bill. The court also granted an extraordinary amount of time for argument about the case, five and half hours. Most cases get only an hour. Bush v. Gore was argued in 90 minutes. The McCain-Feingold campaign finance law was afforded only four hours.
Someone must think there are some serious issues to address, hardly what you’d call frivolous or without merit, not something to dismiss out of hand, at least to the top nine jurists in the land.
But that is pretty much what Nevada’s top lawyer did in a letter to then-Gov. Jim Gibbons. On March 24, 2010, Gibbons sent Attorney General Catherine Cortez Masto a letter directing her to file suit challenging the constitutionality of ObamaCare. Without allowing enough time to blink, on that same day, Cortez Masto fired back a letter implying such action would be frivolous and a waste of taxpayer money.
Here is the bulk of that letter, dripping with disdain and condescension:
“I am writing to acknowledge receipt of your letter dated March 24, 2010, directing the filing of a court challenge to the Patient Protection and Affordable Care Act …
“Our state constitution creates the Office of the Attorney General as a separate constitutional officer within the executive branch. The Attorney General is the State’s chief legal officer. Like you I have a responsibility to represent the State’s interests. As such, I must be satisfied in my own professional judgment that the case has merit and should be filed. I also have the responsibility to decide how and when litigation is conducted.
“Within the purview of my professional responsibility I must also observe the standards as set forth in Nevada Rule of Civil Procedure 11, which governs the conduct of attorneys when litigating. As an attorney yourself, you understand an attorney must certify that any litigation is warranted by existing law or by non-frivolous argument and that any pleading presented to a court cannot be presented for any improper purpose such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation. You further understand that attorneys who violate these requirements are subject to court sanctions.
“Nothing has changed from my previous position on this matter. My office will conduct a thorough legal analysis of the bill for any potential constitutional flaws. If this office institutes litigation against the Federal Government, that lawsuit will have a solid basis in law and will be able to withstand the scrutiny of a federal court. Anything less would be a disservice to the citizens of Nevada and would be a waste of taxpayers’ dollars.”
Needless to say, the AG never filed and the governor had to appoint an attorney to act on behalf of the state and join 25 other states suing the federal government. Attorney Mark Hutchison of Hutchison and Steffen took the case pro bono.
Whatever her legal legerdemain might be when it comes to determining what is a frivolous case, a close reading of the Nevada Constitution and Nevada Revised Statutes might be warranted, even at this late date.
The constitution says:
“The Secretary of State, State Treasurer, State Controller, Attorney General, and Superintendent of public instruction shall perform such other duties as may be prescribed by law.”
For the AG, law is in NRS 228, which states unequivocally:
“Whenever the Governor directs or when, in the opinion of the Attorney General, to protect and secure the interest of the State it is necessary that a suit be commenced or defended in any federal or state court, the Attorney General shall commence the action or make the defense.” (Emphasis added.)
Well, the governor directed. Sounds like the AG, under the law, was obligated to file suit. If she believed such action was in fact frivolous, she could have sought the advice of the courts. Instead, the state’s top lawyer simply ignored the law.
There happens to be another section of NRS 228 that might apply in such a situation. That section reads:
“If the Attorney General neglects or refuses to perform any of the duties required of him or her by law, the Attorney General is guilty of a misdemeanor or is subject to removal from office.” (Again, emphasis added.)
Now, would that be a frivolous case for some lawyer to file?