Lawyers debate Gibbons' move on health care lawsuit

In what may be a legal first, Independent American Party candidate for attorney general Joel Hansen agreed Wednesday with Democratic Attorney General Catherine Cortez Masto's analysis that Gov. Jim Gibbons can't hire outside counsel to challenge the health care law.

After Masto concluded it didn't make sense for Nevada to challenge the health care legislation, Gibbons issued an executive order Tuesday hiring Las Vegas lawyer Mark Hutchison to take the case pro-bono and join 14 other states now challenging the constitutionality of the law in a Florida lawsuit.

In a conference call, sponsored by Nevada News Bureau, Hansen said he fully supports the effort to throw out the health care bill.

"Unfortunately, I don't think Mark can even volunteer and do this. Not that I don't support it; I wish he could," said Hansen.

He said the law "specifically says he can't do that without an act of the Legislature."

Hutchison disagreed, saying that law makes the attorney general the legal adviser for the governor within the state and that the governor can't employ a lawyer to represent the state.

"This federal legislation did not arise in the executive department of state government," he said, adding that his service won't be in Nevada but in Florida and he is not technically employed since he isn't being paid.

Josh Hicks, former legal counsel to Gibbons, said it could be argued there is "implied authority for the governor to have his own counsel" especially if the attorney general, by refusing to file suit, has disqualified herself in the case.

Hicks said the next move is up to Masto who could file for a court order blocking the Gibbons plan.

Hansen and Jacob Hafter, Masto's GOP opponent in her re-election bid, said she is already in trouble for refusing to file suit since state law says she "shall" sue if the governor directs. But all conceded a Democrat-controlled Legislature is unlikely to pursue impeachment in such a case.

Asked how he planned to handle other costs in the case, Hutchison said he has been told shared costs in the Florida case may reach $5,000 and that the governor could ask the Interim Finance Committee for that money. Hicks conceded the chances IFC would approve that money are very slim.