Nevada attorney general’s refusal to sue over ObamaCare revisited

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.

AB Cortez Masto

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?

21 comments on “Nevada attorney general’s refusal to sue over ObamaCare revisited

  1. Masto is a hack! Plain and simple.

  2. No argument from me, Bruce.

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  3. nyp10025 says:

    So if the Governor orders the Attorney General to file and sign her name to a lawsuit that the Attorney General believes is without merit, she must do so?

  4. Athos says:

    little petey’s back! Well, DUH, little petey. That’s what the law says. Works the same way with insubordination in the work place. You can’t refuse your boss’s orders (even if they’re without merit) without running the risk of being terminated.

    This Masto hack should be sent packing.

  5. nyp10025 says:

    Ah, I see. So the independently elected Attorney General is simply an employee of the Governor, and is required to do his bidding, even when it conflicts with both the rules of professional responsibility and her conception of her oath of office.

  6. Yes, or get a court to agree the case is without merit or frivolous or harassment or some other criteria. The laws “shall.”

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  7. nyp10025 says:

    Your reading of the law doesn’t have a provision allowing the AG to go to court for a “without merit” order. And no court would issue such an order in the absence of a statute requiring it to do so.
    Athos is right – under your reading, the AG has no more independence than the Governor’s clerical secretary.

  8. It’s in plain English, petey.

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  9. nyp10025 says:

    OK then – the AG is a mere employee of the Governor, despite her independent election status, and must file and sign lawsuits that she believes to be frivolous, despite her ethical obligations under the Rules of Professional Conduct.

  10. Steve says:

    Tell you all what, I am glad she did not file in this case. It was obvious to myself and many others she was fully supporting Obama and that healthcare legislation “we just had to pass to see what was in it”

    I am happy a lawyer who believes in the lawsuit is on the side of the state and working in concert with all the rest. Masto would have worked hard to make it fail.

    If that case becomes what we think it is, Masto is toast. Career over. The fact this made it to the Supreme court calls her abilities into question all by itself.

    Watch what happens if the US Supreme Court rules on the side of Constitutionalists.

  11. Look for quotes from Hutchison in the Ely Times column at the end of the week.

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  12. […] In this corner is Mark Hutchison of the Las Vegas firm of Hutchison and Steffen, standing in for Attorney General Catherine Cortez Masto, who took a legally suspect powder, as reported in a prior blog posting here. […]

  13. markdavismd says:

    The Nevada Attorney General’s dereliction of duty, when she did not file a suit against Obamacare, displays her inability to see the unconstitutionality of this monstrous act. Her blatant and inexcusable actions are not uncommon for someone who is a blind supporter of Obama and his minions. Perhaps she wants to move up the food chain for her actions. In the event Obama is retained as president, perhaps she will. Mark Davis MD author of Demons of Democracy.

  14. Thank you, Mr. Davis.

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  15. […] a letter to the governor just prior to taking a hike on ObamaCare, Masto wrote: “My office will conduct a thorough legal analysis of the bill for any potential […]

  16. […] 2010, Republican Gov. Jim Gibbons sent Democrat AG Cortez Masto a letter directing her to file suit challenging the constitutionality of ObamaCare. She immediately fired back a letter saying such action would be frivolous and refusing to do […]

  17. […] For example, in March 2010, Republican Gov. Jim Gibbons sent Cortez Masto a letter directing her to file suit challenging the constitutionality of ObamaCare. She fired back a letter refusing to do so. […]

  18. […] Gov. Jim Gibbons sent Democrat Attorney General Cortez Masto a letter directing her to file suit challenging the constitutionality of ObamaCare. She immediately fired back a letter refusing to do so, even though state law […]

  19. […] he mean like the time she abdicated her legal duty to sue to block ObamaCare when directed to do so by the […]

  20. […] he mean like the time she abdicated her legal duty to sue to block ObamaCare when directed to do so by the […]

  21. […] he mean like the time she abdicated her legal duty to sue to block ObamaCare when directed to do so by the […]

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