Thursday, March 25, 2010

Showdown!

Looks like there's a little scuffle a-brewin' up north ... and it ain't gonna be pretty.

On one side, Governor Jim Gibbons, who thinks the newly passed Patient Protection and Affordable Care Act will be bad for Nevada. Gibbons wants to try to stop enforcement of the bill by either joining forces with other state Attorney Generals or by going it alone through the Nevada Attorney General's office.

On the other side, Nevada Attorney General Catherine Cortez Masto, who wants to read the legislation and wait for a reconciliation bill aimed at refining it to pass, before deciding whether or not to take legal action.

Yesterday, Gibbons threw down the gauntlet and directed Masto to sue. Masto claimed that her approval is required for the state to take any legal action, and that no action will be taken. In support of her position, Masto relies upon NRCP Rule 11 and is reportedly also relying upon NRS 228.110(1):
The Attorney General and the duly appointed deputies of the Attorney General shall be the legal advisers on all state matters arising in the Executive Department of the State Government.
In the Governor's corner, NRS 228.170(1):
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.
Looks to us like Masto has an uphill battle on her hands. One of our tipsters made the following observation:
To me, that sounds like the attorney ignoring the client's specific direction, but maybe I'm wrong.
Doesn't sound like too bad of an analogy to us, what do you guys think? How is this "showdown" likely to end?

46 comments:

Anonymous said...

Plural of "Attorney General" is "Attorneys General." Yeesh, even a Boyd student should get that one right half the time...

Anonymous said...

The lawsuit is a fools errand. I agree with the Rule 11 argument - but it's probably impossible to separate political motives/ affiliation from your position regarding the merits of the claim. At the least - if there are already 15 other AGs bringing claims - I agree with the "wait and see" approach.

I'm not a constitutional scholar but it seems pretty clear that Obamacare is justified by the commerce clause and is needed to stop cost shifting from the uninsured to those who have coverage.

Anonymous said...

Gibbons wins. Her options are do what her client says or resign, very simple. She is hoping his lame duck status will be some kind of wild card in all of this...

Anonymous said...

If I have a client that wants to file a suit which I find frivolous or otherwise without merit, I instruct the client to find another attorney.

Can the AG tell the Gov. to find another attorney?

Does the Gov. have the ability to go find another attorney?

Anonymous said...

The way I see it NRS 228.170(1) is unconstitutional as it applies to the Governor's ability under that statute to issue binding directions to another elected constitutional officer of the state.

The Attorney General is elected separately from the Governor, and thus the Governor has no real power to direct her what to do, no matter what this statute says. It intrudes upon the prerogatives of an independent constitutional officer.

Anonymous said...

I agree that the Statute seems to indicate she must follow his directives...however, I also agree that the two offices are mutually exclusive, elected separately by the people and that the Governor is not entitled to direct her to do anything. This is also evidenced in the fact that while he believes he can issue executive orders regarding the work week length, he cannot apply that order to her office and agency. OT but germane is also the fact that there is a statute that dictates the length of the work week at state agencies in Nevada that HE cannot alter with any executive order. Showing more reason this guy Gibbons needs a job cleaning horse stalls.

Anonymous said...

For once the AG is right, and needs to tell "Can't keep it in my pants" Gibbons to pound sand.

The lawsuit is a fool's errand. First, there are standing problems. Second, there are express SCOTUS cases granting Congress these powers. Third, it will take years to work this through the courts, and no AG, and definitely not our Gov. will still be in office.

Let's see--spend hundreds of thousands of taxpaer dollars in the middle of the worst economy in Nevada's history with no foreseeable revunue increase?

Gibbons is an idiot.

Anonymous said...

NRS 228.170(1) could not be more clear: the AG must commence a suit when the governor says so.

Many of you think this is contradicted by the "fact" that the AG answers to no one because she is elected. What makes you think this is the case? Got a statute or Nevada case saying so? Ever heard of checks and balances? No branch of government is an island, and this is no exception.

The AG doesn't tell the governor to find another attorney, she resigns. Not rocket science.

Anonymous said...

I'm with the AG on this. Not that I'd ever be "for" Gibbons on anything, he's terrible for the state.

Anonymous said...

818 is on crack.

The plural as posted is accurate. The title is "Attorney General". Not "Attorney", not "General".

Given that Attorney General is a title and is capitalized. The proper plural is as stated.

Open ass, remove stick.

Anonymous said...

Please post on the Amber Candelaria decision, so that we can all make fun of her again for confusing the election for prom queen with the elections for justice of the peace.

And does anybody know the case name? I can't find the case in the court's system and I would really like to read the pleadings because I'm sick that way.

Anonymous said...

NPR radio had a great discussion this morning regarding the onerousness of the standing issues that the state AG's who have already filed face.

Anonymous said...

If the Commerce Clause controls, where was Congress when insurance companies were prohibited from selling across state lines (which is really what the Commerce Clause contros)?

UNLV 3L said...

The AG is the State's attorney. NRS 228.110 makes it clear that, within the state at least, the AG has to be disqualified before any private attorney can be retained. It doesn't say anything about a private attorney representing the state outside Nevada.

Bottom line is that the AG represents the State. All Executive power in the state of Nevada vests in the Governor. For the AG's purposes, the Governor in his official capacity is her client.

Nothing in the Nevada Constitution or the NRS authorizes the AG to disobey orders from the State. On the contrary, refusal to perform any duty required of her (such as commencing an action "whenever the Governor directs") makes her guilty of a misdemeanor or subject to removal.

That's the job. She can do it, or GTFO.

UNLV 3L said...

Oh, and 9:17:

Read the NV Constitution. The AG has very few duties outlined there. Certainly nothing that suggests she is a "independent constitutional officer." Instead, we have art. 5, section 21, telling the elected executive officers that their duties can be prescribed by the Legislature.

The Governor is the Chief Executive. The AG is the State's counsel. She's not independent.

Anonymous said...

All these people siding with the AG just don't like Gibbons. They probably don't make very good attorneys either since this legal issue could not be more obvious.

Anonymous said...

Personally, I'm siding with the AG because of Rush Limbaugh, Glen Beck, and the Teabaggers. Bunch of racist, narrow-minded a-holes.

Anonymous said...

@9:45,

I disagree with the the AG's and your assessment that the case presents Rule 11 problems. Although the State doesn't have standing to assert claims on behalf of its citizens against the Fed'l Gov't, see Mass. v. Mellon, 262 U.S. 447, 485-486 (1923), it has standing to bring claims when the injuries are to the state. It even gets special solicitude in the standing analysis to do so. Mass. v. E.P.A., 549 U.S. 497 (2007).

Anonymous said...

@11:13
Another ignorant git using TEABAGGER....you been dipping your balls somewhere?

Anonymous said...

@10:13 - Here's Amber Candelaria's case number: A609103

Happy Wiznet viewing

Anonymous said...

Travis Barrick would follow the governor's direction. Go team Barrick!

Anonymous said...

12:08,

We know the difference between Tea Party and Teabagger. And quite frankly, we consider the two synonymous.

Anonymous said...

Gov Gibbons can direct litigation to "secure the interest of the State"

Sounds pretty damn broad to me. Good luck enforcing that against a fellow constitutional officer.
Under that statute, shouldn't we be engaged in millions of lawsuits against every conceivable injustice agaist the state?

Anonymous said...

@10:10. I might be smoking crack, but you are an idiot. "Attorney General" is a title, as you so brilliantly pointed out. It consists of a noun ("attorney") and an adjective ("general"). Were you not an idiot, you would recognize the plural phoneme gets affixed to the noun. Hence, Courts Martial and Mothers in Law. You idiot.

Love, 8:18.

Anonymous said...

While I am a staunch supporter of correct grammar and usage in legal writing, I don't think it matters much in blogs. If you're only comment to a posting relates to a grammatical mistake, please find a grammar blog and post it there.

Anonymous said...

@4:10,

Subtle Troll. Nicely done.

Anonymous said...

I think it is funny when posters talk trash about Boyd grads, when in fact these posters most likely went to another, out-of-state, school that is not regarded higher than UNLV in academic or professional circles, for example McGeorge or Cal. Western. Do you think you are a better attorney than a Boyd grad because you did not go to Boyd or do you have some logical, factual basis, or even an anecdote, to base that delusion on? Just curious.

Anonymous said...

@5:52 - 8:18 here. In all honesty, I AM a Boyd Grad. It's called self-deprecating humor.

Plus, let's be honest; there are a fair number of idiots coming out of Boyd...but not necessarily any more than out of any of the other LV feeder schools.

Anonymous said...

I'm curious -- seriously -- can the government tax people just for existing? The "power to tax and spend" would seem to say yes, but would there be precedent for that? (do not mention auto insurance -- it is NOT mandatory)

Obamacare might be unconstitutional because it forces people to buy a product. This is because they didn't want to call taxes "taxes." Kind of the way they passed some costs off to the state and then used 10 years of revenue and 6 years of costs to game the budget numbers.

I support universal health care, preferably not governmental, but only if they are honest about the costs. Obamacare is a lie in that sense, and we'll pay for the lie in blood. This is true regardless of how evil Gibbons or any of that. I met Gibbons once, and wasn't at all impressed.

Anonymous said...

818/237

Sorry dBag but the title is akin to a pronoun. Thus the plurality I stated is correct. And you are the one that started it. So neener neener neener. The title is the noun and when you incorrectly divide them you screw the plurality.

Mother in law isnt a title, so Mothers in law is correct. Now who is the idiot. Must be you. As evidenced by the fact that you have a plurality of mothers in law.

Who thinks this crap up ?

Anonymous said...

8:48 - Looks like they agree with you.

http://www.naag.org/

Idiot.

Anonymous said...

Can the Attorney General, or any attorney, be forced to initiate a lawsuit that it feels either (a) has Rule 11 problems, or (b) cannot in good conscience advocate zealously?

Since Gibbons cannot fire the AG, nor can he initiate a lawsuit on behalf of the state in his own name, it seems to me that Matso can tell do nothing and have no other repercussions than being given the next federal bench position that Obama nominates.

Sorry, those anti-health care nuts can rant all they want, why would you want this matter decided by the courts? Especially some judge in the panhandle of Florida?

Furthermore, all those of you that want to see it defeated by the courts should want to see someone, anyone, other than an AG's office prosecute this suit. I mean, my god. the attorneys in most AG offices were simply not smart enough to be DAs, and that makes them still three levels below family attorneys and ambulance chasers.

Anonymous said...

818 and 848--your pictures must be next to the definition of "lack of civility."

Anonymous said...

Do any NRPC override statutory mandate?
1.13-does Masto represent the Gov or the state?
1.14-if the Gov, does client have "diminished capacity"
3.1-lawyer may not file frivolous lawsuit
8.4-misconduct to violate NRPC

Anonymous said...

to 7:49:

you state "...and we'll pay for the lie in blood"

WTF

GTFO

Anonymous said...

The AG will violate the Rules of Professional Conduct if she "does nothing."

Did you go to law school?

Anonymous said...

8:18,

I'll type slowly so you can follow--Obamacare's fudging of the costs is going to result in rationing and the govt denying care to contain costs down the road (the difference being that there's less recourse in this scenario), and that will kill more people than the current system does (at least that is the argument), i.e. people will pay in blood.

Anonymous said...

to 9:25
You must have gone to law school, your comment is snotty.

Did you have a section of the NRPC that you are relying on or are you relying on ipse dixit?

Anonymous said...

Imagine that - a person making a derogatory comment about Boyd for no apparent reason turned out to be wrong.

Anonymous said...

237/921. 848 here.

Touche'. I stand corrected.

721
How is that for civility, but, since when is civility or the lack thereof a criteria for blogposts.

Shut the eff up.

Anonymous said...

8:48/11:22 - 2:37/9:21 here. Anyone who can concede when faced with a proper cite is a credit to the profession and blog posters in general. I salute you.

7:21 - as my former debating opponent pointed out to you, internet arguments are no place for civility.

However, I think both 8:48 and I can most cordially agree that it you are an idiot. Shut the eff up.

Anonymous said...

Is Gibbons assuming that the majority of Nevada citizens didn't want healthcare reform? Does he have a crystal ball? Don't think so or he would not have lied on camera about his girlfriend being at the airport just before the news team caught her.

Anonymous said...

1037pm

Does Gibbons NEED a crystal Ball to deduce that a VAST majority of Nevadans are against this healthcare debacle?

Even a broken clock (and he IS broken) is right twice a day.

Anonymous said...

Masto just gave the Governor a big "screw you."

http://www.lvrj.com/news/masto-won-t-file-health-care-lawsuit-89535427.html

Anonymous said...

Most people want Cheap Auto Insurance because they hope to drive safely most of the time. If it was possible, insurance would not be needed. Sadly, there are thousands of traffic accidents a week so, in all but three states in the union, it’s mandatory to carry auto insurance when you drive on a public highway. The mandatory states set the minimum level you must carry against the damage and injuries you may cause if you drive badly. It’s a criminal offense to drive without a minimum policy.

Anonymous said...

http://www.bikerornot.com/user/200452

Check out Travis Barrick... a hog rider who drinks regularly... just the AG we need!