Posts Tagged ‘lawsuit’

Sandoval ‘Extremely Disappointed’ Clark County Suing To Recover Funds Taken By Lawmakers In 2009

By Sean Whaley | 1:34 pm June 29th, 2012

CARSON CITY – Gov. Brian Sandoval says he is disappointed that Clark County has decided to sue to recover $102.5 million in property taxes taken by the 2009 Legislature to balance Nevada’s budget, but said the “state is on very solid ground in this case.”

“We’ve been trying to work with Clark County, again, for months,” he said in a Thursday interview on the Nevada NewsMakers television program. “And I was extremely disappointed that they weren’t willing to come to the table to try and resolve this. And those chose to litigate rather than try to work it out.”

Author=User:Avjoska via Wikimedia Commons.

The county submitted a claim for the money to the state Board of Examiners in September 2011 following a Nevada Supreme Court ruling in May 2011 that said the Nevada Legislature improperly took $62 million in 2010 from the Clean Water Coalition fund to balance the state budget. Washoe County submitted a claim for $21.5 million to the state citing the same case.

Negotiations had been under way between the state and Clark County for several months before the lawsuit was filed. Washoe County has not sued to recover the taxes.

“As I say, at the end of the day, I think it would be more prudent, and more reasonable, for the Clark County Commission to work and try to resolve this short of litigation,” Sandoval said. “It doesn’t do any good for the state and counties to be in court.”

Sandoval said he does not believe Clark’s claim, “is anywhere near” $100 million.

“If we have to, we’ll play this out in court and see what the outcome is,” he said.

The Supreme Court Clean Water ruling led to an agreement by Sandoval and a majority of state lawmakers to extend a set of taxes that were set to expire on June 30, 2011, into the current budget to balance the spending plan. The tax extension replaced local revenues Sandoval had originally proposed to use to balance the state budget.

Based on the Clean Water ruling, the two counties decided to seek the return of money used by the 2009 Legislature as well. The Legislature in 2009 required the state’s two largest counties, Clark and Washoe, to give up 9 cents per $100 in assessed valuation collected in property taxes to the state. The actions by lawmakers in 2009 occurred before Sandoval became governor.

“I am disappointed that after months of negotiating, we have not been able to reach an agreement,” Clark County Manager Don Burnette told the Las Vegas Review-Journal in a report published June 14.


Audio clips:

Gov. Brian Sandoval says he is extremely disappointed that Clark County decided to sue over the refund request:

062912Sandoval1 :10 and resolve this.”

Sandoval says the dispute should be resolved through negotiation:

062912Sandoval2 :12 be in court.”



Gov. Brian Sandoval Questions $6 Million In Legal Fees To Defend Against Freeway Construction Lawsuit

By Sean Whaley | 11:06 am January 9th, 2012

CARSON CITY – A legal firm retained by the state Department of Transportation to defend against a contractor dispute over construction of a section of the Carson City bypass has racked up $6 million in fees so far and the costs could still go higher.

Gov. Brian Sandoval today expressed concern about the amount of legal fees in the case involving a $40 million claim by Utah-based Ames Construction, which built the first phase of the U.S. 395 bypass in the capital that opened in February of 2006.

The cost of the 4.5-mile stretch of freeway was $70 million.

Carson City byass. / Photo courtesy of NDOT.

Sandoval, participating in a meeting of the Board of Directors of the Department of Transportation, said he had not seen such costs for a legal challenge before. The fees have been paid since 2008.

“Because even at those rates, $6 million, I haven’t seen that before,” Sandoval said. “I mean this just gets us to the mediation, as you say, and then we don’t know what the outcome of the mediation is going to be after that.”

Sandoval said the legal costs involved in the dispute point out why it is so important for the agency to deal with such disputes at the earliest possible date to try to head off escalating costs. Earlier in the meeting NDOT Director Susan Martinovich reported on efforts by the agency to resolve disputes as early in the process as possible.

Tom Fransway, a member of the board representing the public, asked whether in the future there is a way to seek competitive proposals for legal work rather than use the no-bid process for such services.

“I agree with the governor 100 percent that those fees are pretty extravagant,” he said. “And I’m wondering if in the future we have the ability to retain legal counsel for a fee that is more responsible.”

The hourly rates charged by the legal firm’s attorneys are as high as $340 an hour for the senior partner, but members of the board were told the rates are not excessive and have not increased since the dispute first began.

“That’s not an unreasonable fee,” said Attorney General and board member Catherine Cortez Masto.

Despite the concerns, the board approved an updated contract with the legal firm of Watt, Tieder, Hoffar & Fitzgerald to take the case to mediation in February. The firm is based in Washington, DC, but has an office in Las Vegas.

Dennis Gallagher, NDOT’s chief legal counsel with the attorney general’s office, said the legal fees also cover the experts hired to defend the state. He said the case is extremely complex and that Ames has not backed down from its $40 million claim.

“The state vigorously disputes this claim; has been defending it in court since 2008; we finally got it to a point where it will go to mediation the end of February and this latest amendment is to bring the fees current through the mediation,” Gallagher said.


Audio clips:

Gov. Brian Sandoval says he has not seen such high legal fees before:

010912Sandoval :27 be after that.”

Board member Tom Fransway asks if there is a way to negotiate lower fees in future cases:

010912Fransway :26 is more responsible.”

NDOT legal counsel Dennis Gallagher says the fees include expert witnesses:

010912Gallagher :22 through the mediation.”


NPRI to Regroup Due to Denis Resignation

By Elizabeth Crum | 8:04 pm December 19th, 2011

As first reported by David McGrath Schwartz of the Las Vegas Sun, state Sen. Mo Denis said he plans to resign from his job with the Nevada Public Utilities Commission (PUC), possibly rendering moot the recently filed lawsuit challenging his ability to be employed in two branches of state government.

Denis, who is the heir apparent to Sen. Majority Leader Steven Horsford, told the Sun he’d already been looking for a new job with more flexibility in preparation for his Senate leadership role. He said the decision is not related to the lawsuit from conservative think tank Nevada Policy Research Institute (NPRI).

The NPRI suit contents that Article III of the state constitution clearly defines the separation of powers between the three branches of government, and that Denis’ job in information technology for the PUC was a violation of that clause.

Analysts had speculated that if the suit was successful, as many as 10 other lawmakers who are also public employees could have been affected.

However, it is now unclear whether the NPRI lawsuit can proceed as filed or whether a new suit would have to be filed against another legislator.


State Board OKs $175,000 Settlement With Former Inmate To Settle Federal Lawsuit

By Sean Whaley | 4:40 pm December 13th, 2011

CARSON CITY – A state board today agreed to pay a former prison inmate $175,000 to settle a federal civil rights lawsuit stemming from his shooting by a correctional officer in 2006.

The Board of Examiners, made up of Gov. Brian Sandoval, Attorney General Catherine Cortez Masto and Secretary of State Ross Miller, approved the settlement with former inmate Donald Hixon.

Hixon was serving a sentence for possession of a stolen vehicle at the High Desert State Prison in Indian Springs when he was shot by a correctional officer for fighting with another inmate. Hixon was not armed.

High Desert State Prison.

The correctional officer, Paul Chaffee, was found not guilty of battery in a 2008 trial.

Stephen Quinn, representing the attorney general’s office, recommended the board accept the settlement.

“There’s a significant risk of an adverse outcome that will be significantly larger in dollar amount than the amount of this settlement, so this settlement is to fairly and significantly minimize that risk of exposure to the state,” he said.

Quinn said the case has already gone to the 9th U.S. Circuit Court of Appeals, which would mean a significant amount of legal fees that would have to be paid to Hixon’s counsel if the state was to lose the case at trial.

“I think this is a very good result for the state, governor,” he said.


Audio clip:

Stephen Quinn, representing the attorney general’s office, says the settlement is a good deal for the state:

121311Quinn :18 to the state.”



Gov. Sandoval Makes Appointments to Health Insurance Exchange Board

By Nevada News Bureau Staff | 3:44 pm September 23rd, 2011

Dr. Ronald Kline.

CARSON CITY – Gov. Brian Sandoval announced today his appointments to the Silver State Health Insurance Exchange Board.

Sandoval has appointed Elsie Lavonne Lewis, Leslie Ann Johnstone, Dr. Ronald Kline, Barbara Smith Campbell and Marie Kerr. Each of the appointees will be voting members of the board.

“While Nevada remains a partner in challenging the constitutionality of the federal health care law, we are mandated to move forward with its implementation,” Sandoval said.  “Each member of the board will bring a distinctive perspective to the table to help Nevada formulate the most effective exchange.”

Lewis, chief operating officer of the Clark County Urban League, will serve until June 30, 2013. Johnstone, executive director of the Health Services Coalition in Clark County, will serve until June 30, 2014. Kline, a physician with Comprehensive Cancer Centers of Nevada in Clark County, will serve until June 30, 2012. Smith Campbell, a Washoe County resident and former chairwoman of the Nevada Tax Commission, is the founder of Consensus, a tax consulting firm, will serve until June 30, 2014. Kerr, an attorney in Reno, will serve until June 30, 2012.

Reno attorney Marie Kerr.

Created by Senate Bill 440, the Exchange is required to:

-          Create and administer a state-based health insurance exchange;

-          Facilitate the purchase and sale of qualified health plans;

-          Provide for the establishment of a program to assist qualified small employers in Nevada in facilitating the enrollment of their employees in qualified health plans;

-          Make only qualified health plans available to qualified individuals and qualified small employers on or after January 1, 2014; and

-          Unless the federal health care law is repealed or is held to be unconstitutional or otherwise invalid or unlawful, perform all duties that are required of the exchange to implement the requirements of the law.

The bill creating the exchange passed both houses of the Legislature unanimously with four members of the Assembly not present for the vote. While lawmakers questioned the effect of the act being found unconstitutional on the operation of the exchange, there was no testimony in opposition to the measure.

The exchange is governed by the Board of Directors, consisting of five voting members appointed by the governor, one voting member appointed by the Senate majority leader and one voting member appointed by the speaker of the Assembly.

Senate Majority Leader Steven Horsford has appointed Dr. Judith Ford with Canyon Gate Medical Group in Las Vegas, and Assembly Speaker John Oceguera has appointed Lynn Elkins.

District Court Judge Issues Special House Election Decision, Calls Secretary of State’s Ruling “Unreasonable” and “Absurd”

By Elizabeth Crum | 1:39 pm May 23rd, 2011

In a decision that surprised many — including the Nevada Democratic Party — a district judge last Thursday overruled Secretary of State Ross Miller’s decision to permit any qualified candidate to run in a “free-for-all” in the U.S. House race to fill Dean Heller’s recently vacated seat.

According to Miller’s interpretation of the law, “qualified” would have meant collecting 100 signatures and filing (fee free) for candidacy. However, Judge James Todd Russell last week enjoined Miller from moving ahead with ballot preparation and gave the political parties until June 30 to nominate a candidate.

Russell’s written decision, issued today, called the Nevada statutes “ambiguous” and said the GOP “would suffer irreparable harm” in a free-for-all election. The decision also said Miller relied on “a single sentence” in special election law and produced “an unreasonable and absurd result” which results in “unfair treatment.”

Russell said on Friday he based his decision on the reading of two Nevada statutes that govern special and regular elections. He said they were confusing when taken as a whole and added that the Legislature should clarify the law in order to avoid future conflicts.

The 2003 special election law (passed after 9/11 to address sudden House vacancies) says there should be no primary election, but that candidates must be nominated before filing a declaration of candidacy. However, a separate statute says the major and minor parties’ central or executive committees should nominate candidates whenever a vacancy exists.

In his comments in open court Friday, Russell said the secretary of state was “picking and choosing” portions of the law when he made his decision to allow what Miller called a “ballot royale.” Russell also said it seemed unfair to have different rules for major and minor parties (the secretary of state had said minor parties could nominate only one candidate each).

Democratic attorneys argued that Miller has the authority to set election rules and that he should be given the latitude to interpret statutes.

An appeal by Miller is expected to be filed with the Nevada Supreme Court.

The decision virtually guarantees the GOP will hold the 2nd Congressional District because it prevents a crowded Republican field and subsequent splintered vote, which would have benefitted a strong Democratic candidate (hello, Kate Marshall).

Interestingly enough, Dean Heller, whose empty House seat is now at the center of the controversy, was the Secretary of State when the 2003 legislation was passed. He should have set the rules for a special election but because he never did so, Nevada finds itself headed for a state supreme court hearing.

The GOP central committee meeting and election is currently scheduled for June 18 in Sparks, NV.

Nevada Republican Party Chairman Mark Amodei has yet to step down from his post, though he announced his candidacy and is a contender for the party’s nomination.

State Senator and former U.S. attorney for Nevada Greg Brower is Amodei’s primary competition for the GOP central committee vote. Brower has been active and aggressive in recent days with the launch of his campaign website along with email and social media messages to the Republican base and central committee members.

Several Democrats are expected to compete for the nomination to fill the House vacancy including State Treasurer Kate Marshall, Nancy Price and Jill Derby.

Here is the District Court’s decision, issued Thursday from the bench. It is only 12 pages and is fairly straightforward:



State GOP Chairman Responds to Criticism About Lawsuit

By Elizabeth Crum | 11:57 am May 6th, 2011

Nevada Republican Party Chairman Mark Amodei today answered criticisms by saying he is proud of the process that preceded the GOP’s decision to move forward with a lawsuit against Secretary of State Ross Miller.

The lawsuit centers on the Secretary of State’s decision that there will be an open ballot for the September 13 special election for the open NV-2 congressional seat.

Now that Lt. Gov. Brian Krolicki — the presumed favorite with many Nevada Republicans — has said he will not run, Amodei stands to benefit if a District Court favors the GOP lawsuit and decides the GOP central committee has the right to nominate a sole party candidate for the ballot.

recent poll of 100 members of the Nevada Republican Party central committee showed Krolicki with 44 percent support, while Amodei came in second with with 27 percent support.

“I understand the perceptions and corresponding criticisms about the lawsuit, and I’m glad to answer them,” said Amodei. ”I am pretty darn proud of how this was done.”

Amodei said when it first became apparent the congressional seat was going to be open, the state GOP executive committee asked for a legal opinion regarding the special election process.

“Once we received that legal opinion, which said the party had strong legal grounds for expecting that the central committee could and would nominate a Republican candidate, the executive board met and voted on the matter,” said Amodei.

“That vote in favor of moving forward with the lawsuit was 10 to zero,” said Amodei. “I was just one of the votes, and I was not part of the Special Litigation Subcommittee that was formed and oversaw the process to that point.”

Amodei said the legal opinion also recommended that if the party did choose to pursue litigation, it should also immediately schedule a central committee meeting and nominating election, in preparation for the possibility that the court might favor the suit.

“As member of the state Republican central committee, an executive board member and party chairman, when you receive a legal opinion that says there is a strong case to be made that the central committee has legal grounds to expect to be involved in the process to nominate a candidate for an election, well, if you are not willing to stand up and fight for that effort then you should not be chairman,” said  Amodei.

“I firmly believe moving forward with the lawsuit was the right thing to do for every central committee member and for every Republican, whether I was going to get in this race or not,” added Amoedi.

Amodei confirmed he is issuing a media advisory out later today and will make his candidacy official on Monday.

“I’d also like to say, I’m the last guy in the world who thinks he’s got anything locked up,” said Amodei. “If we win this lawsuit, I will have to talk to the members of the state central committee to try to earn votes just like everyone else has to do.”


Krolicki Out, Marshall In, Amodei Pending

By Elizabeth Crum | 2:15 pm May 5th, 2011

As first “guessed” by @RalstonFlash on Twitter this morning — Nevada has learned the hard way that Ralston’s guesses are not mere speculation but informed fact — Lt. Gov. Brian Krolicki has formally announced that he is not going to run for Nevada’s open congressional seat.

State GOP chairman Mark Amodei will now be free to make his final decision, probably to jump in.

The success of the GOP’s lawsuit against the Secretary of State re: the special election rules is Amodei’s best shot at the congressional seat. The central committee would almost certainly nominate him now that Krolicki is out of the picture. However, in an an open election, Amodei is by no means a lock because he is not a favorite with much of the conservative base (due, among other things, to the 2003 tax hike in which he participated).

If the GOP lawsuit fails, as many on both sides of the aisle think it will, the man with the next best shot to win the hearts and minds of Republican voters is probably state Senator Greg Brower — IF he can convince enough of the GOP base that he is not an “establishment” candidate. If he cannot, then former U.S.S. Cole Cmdr. Kirk Lippold might be able to take advantage of the situation (and we can expect Lippold’s campaign to paint both Brower and Amodei as career politicians while pitching their guy as a military hero, conservative family man, and voice of the people).

As for the Democrats, State Treasurer Kate Marshall is in (also first Tweeted by Ralston, yesterday). It remains to be seen whether any other serious Dem contenders take a shot at it.






State GOP Files Suit Over NV-2 Special Election Rules, Secretary of State Declines to Comment

By Elizabeth Crum | 1:35 pm May 5th, 2011

The Nevada Republican Party today announced it has filed the expected lawsuit against Secretary of State Ross Miller over his decision regarding the rules of the September 13 special congressional election.

Ralston has a copy of the lawsuit and accompanying request for injunction on his blog.

The party seeks to prevent the Secretary of State’s office from putting on the ballot any party candidate not elected by the party’s central or executive committee.

It also complains that the Secretary of State did not “provide adequate time” for the nomination process and calls the decision “a unique and new misinterpretation” of Nevada election law.

The Secretary of State’s office has acknowledged by email that it has been served with a complaint filed in the First Judicial District Court of Nevada. An official statement said the complaint is “under review by the Secretary of State and the Attorney General’s office” and that the Secretary of State’s office “will have no further comment regarding the litigation at this time.”



Gov. Jim Gibbons Confident Nevada’s Challenge To Federal Health Care Act Will Succeed

By Sean Whaley | 2:16 pm June 17th, 2010

(Updated at 4:27 p.m. on June 17, 2010)

CARSON CITY – Gov. Jim Gibbons said today he believes Nevada and other states will prevail in their court challenge of the federal health care law following the filing of a motion to dismiss the lawsuit by the U.S. Department of Justice.

The motion filed Wednesday to dismiss the lawsuit brought by Nevada and 19 other states along with the National Federation of Independent Business (NFIB) contained no arguments that suggest the lawsuit will fail, Gibbons said.

“Not only does the U.S. Department of Justice contradict public statements made by the president and Congressional leaders, it demonstrates in its motion to dismiss that it seems to view this lawsuit by the 20 states and NFIB as a significant challenge, signaling this lawsuit may pose more of a threat in its chances for success,” Gibbons said.

The DOJ motion says the U.S. District Court in Florida hearing the case lacks jurisdiction over some of the claims. It also says the requirement for citizens to buy health care coverage is part of Congress’ constitutional power to tax and spend.

The lawsuit challenges the individual mandate requiring every citizen and resident to purchase health insurance as an unprecedented and unconstitutional exercise of governmental power.

Gibbons said the federal government is also threatening Nevada’s state sovereignty with an unprecedented expansion of federal powers and commandeering of state resources with the law.

“This is not acceptable and it is illegal”, Gibbons said, “The Reid/Obama Nationalized Health Care plan has already cost Nevada taxpayers almost $150,000 in tax money and that is just the beginning of the cost for pre-planning.

“The backdoor deals and corrupt atmosphere in which the Reid/Obama Nationalized Health Care plan was drafted has created a law that will crush working families in Nevada and burden state taxpayers with $600-million in new costs, then use the Internal Revenue Service as a weapon against the constitutional freedoms of all Nevada citizens,” he said.

The original lawsuit was filed on March 23 with 13 state plaintiffs and was amended on May 14 to add seven additional states, including Nevada, and the NFIB, as well as two individual plaintiffs.

The lawsuit alleges that the new law infringes upon the constitutional rights of individuals by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. By imposing such a mandate, the law exceeds the powers of the United States under Article I of the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.

The lawsuit further claims the law infringes on the sovereignty of the states and Tenth Amendment to the Constitution by imposing onerous new operating rules that Nevada must follow, as well as requiring the state to spend billions of additional dollars without providing funds or resources to meet the state’s cost of implementing the law.

A hearing has been scheduled for Sept. 14 on the motion to dismiss.

States’ Amended Complaint in Health Care Reform Case

By Elizabeth Crum | 3:15 pm May 14th, 2010

Your bedtime reading tonight:


As Gibbons’ lead attorney M Hutchison said on Ralston’s F2F last night, in addition to seven more states there are also some private parties plus a business group – National Federation of Independent Business – now on the suit.

Governor’s Special Counsel to Travel to Florida for Oral Arguments in Health Care Reform Lawsuit

By Nevada News Bureau Staff | 7:32 am May 14th, 2010

Las Vegas attorney Mark Hutchison says he will soon be going to Florida for oral arguments in the federal motion to dismiss the health care lawsuit being brought by 20 states including Nevada.

Reagan-appointed U.S. District Court Judge Roger Vinson will hear arguments challenging the states’ right to bring the suit on September 14, 2010 in the Northern District of Florida.

“Because there are 20 states named as plaintiffs in the lawsuit now, we will likely assign one lawyer to present oral argument to the judge during oral argument on behalf of all of the states,” said Hutchison.

“The decision identifying who that lawyer will be has not yet been made,” he said.

The amended complaint adding Nevada and a number of other states to the lawsuit will be filed today.  Hutchison said a decision is expected in October or November.

Hutchison said he also plans to attend a hearing, for which the date has not been set, on the states’ motion for summary judgment.  The motion will ask the judge to declare the health care legislation unconstitutional and bar its implementation in the states.

Despite criticism that the lawsuit is a futile attempt to thwart the health care reform bill,  Hutchison said he is confident in the strength of the suit’s legal positions.

“There are many legal experts, scholars, judges and lawyers who believe that that the health care legislation will be declared unconstitutional by the courts,” he said.

“The principles at issue in this lawsuit are broader than the specific legislation in question and rise above the political maneuvering associated with its passage,” said Hutchison.

“This case is about preserving and respecting the system of constitutional government established at the founding of this country,” he said.

Hutchison contends that the health care legislation represents an unprecedented encroachment on the sovereignty of the states and on the rights of citizens by mandating, for the first time in U.S. history, that residents purchase something or be punished by the government through the imposition of a fine.

“Such a mandate exceeds the powers of the federal government under Article I of the U.S. Constitution, particularly the commerce clause, and violates the Ninth and Tenth Amendments as well as the Constitution’s principles of federalism and dual sovereignty,” said Hutchison.

Hutchison said he believes it is likely the case will end up in the nation’s highest court.

Supreme Court Justice Stephen Breyer has stated publicly that he expects the case to reach the court within the next two years.

Hutchison says his office has had no communications with the Nevada Attorney General since the governor appointed him as lead special counsel for Nevada in the lawsuit challenging the health care legislation.

“Although we recognize that the Attorney General has a different view, we continue to believe that the governor has the authority under state law and by virtue of his office to appoint special counsel to represent the state given the Attorney General’s decision,” said Hutchison.

Fasano of IAP to Take Ashjian Case to State Supreme Court

By Elizabeth Crum | 10:13 am April 21st, 2010

I’m being told that Tim Fasano, the Independent American Party’s candidate for U.S. Senate, has decided to appeal his lawsuit (Fasano v Miller) challenging the candidacy of U.S. Senate candidate Scott Ashjian to the Nevada Supreme Court.

Fasano sued the Secretary of State to remove Ashjian because Ashjian did not switch his party registration from “Republican” to “Tea Party” until after he registered as the Tea Party of Nevada candidate.  The District Court ruled that Ashjian had substantially complied with election law and would stay on the ballot.

More details coming in a news brief we are working on now.

Update: See our news story on the front page.  Says Fasano was meeting with attorney Joel Hansen to make the final decision and that he would announce today or tomorrow.  Word is they need to raise money for the effort.

Governor Sets Up “Constitution Defense Fund” to Help with Health Care Lawsuit Costs

By Elizabeth Crum | 3:46 pm April 8th, 2010

From the Governor’s office about an hour ago:


[Carson City] – After receiving numerous inquiries from citizens wishing to assist in the Governor’s fight against the Reid/Pelosi/Obama Nationalized Health Care Plan, Governor Jim Gibbons, working with Special Counsel Mark Hutchison, has set up the “Constitution Defense Fund”. Hutchison and several other attorneys are working without compensation to assist Governor Gibbons, but some legal costs shared with other states (approx. $3500, depending on the number of states joining in the lawsuit) will likely arise. Governor Gibbons stated earlier this week that the small costs to fight the health care plan are well worth it because the health care plan will cost Nevada taxpayers billions of dollars over several years.

Governor Gibbons also reiterated his stand that the Reid/Pelosi/Obama Nationalized Health Care Plan is an insult to all Nevada citizens because it tramples the U.S. Constitution by requiring all citizens to purchase health insurance. Governor Gibbons believes certain parts of the Plan have merit and are worth keeping, but overall, the Governor is convinced the Plan is unconstitutional.

Those wishing to help with the Constitution Defense Fund should send donations to:

Constitution Defense Fund

c/o Hutchison and Steffen

Peccole Professional Park

10080 West Alta Drive, Suite 200

Las Vegas, Nevada 89145

Donations will be handled by the Governor’s Special Legal Counsel. A complete and transparent accounting of all funds donated will be provided.

Nevada Attorneys and Candidates for Attorney General Debate Legalities of Health Care Reform Lawsuit

By Elizabeth Crum | 4:59 pm April 7th, 2010

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 unchartered 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.