Masto to tell governor whether she'll file health care lawsuit

CARSON CITY -- Gov. Jim Gibbons should know by noon today whether the state attorney general will follow his instructions and file suit against the federal government over the health care overhaul law that reshapes how Americans receive insurance coverage.

Attorney General Catherine Cortez Masto, a Democrat seeking re-election , said Monday that she will give him her answer by then.

But Gibbons, who also is seeking re-election, is prepared to act with or without her help.

Several lawyers, including Republican attorney general candidate Jacob Hafter, have agreed not to charge the state anything if the governor asks them to pursue litigation over the $1 trillion health care law, spokesman Daniel Burns said Monday.

Gibbons and other critics of the law argue unfunded mandates will cost Nevada taxpayers and that it is unconstitutional because it requires people to buy health insurance. Those who refuse to buy insurance would face penalties.

The health law extends coverage to 32 million uninsured Americans and aims to crack down on unpopular insurance industry practices, such as denying coverage for people with medical conditions.

Gibbons had set a 5 p.m. Monday deadline for Masto to decide whether she would challenge the health care law. But that deadline passed without the attorney general agreeing to anything.

Masto has agreed to respond by noon today , Burns said.

Edie Cartwright, Masto's spokeswoman, said the attorney general won't be rushed to act until she has completed a legal analysis of the constitutionality of the health care law. In a Friday letter, Masto asked Gibbons why he needed a response from her by Monday.

She noted that more than a dozen attorneys general in other states already have filed litigation and questioned how Nevada's entry would change anything.

"The lawsuits that you refer to in your letter are already moving through the courts and any final outcome will have the same impact on Nevada with or without our involvement," Masto said. "Is there some unique interest to Nevada or some legal theory that has not already been raised by the existing litigation that you can share with my office?"

"The governor is interested in getting an answer," Burns said. "We have a whole bunch of lawyers lined up to help us. There would be no expense at all to the state."

Adriana Fralick, Gibbons' general counsel, said it is clear from state law that the attorney general's office is the "law firm of the state of Nevada."

But she said there are provisions in state law that allow governors to use other lawyers to litigate on behalf of the state if they work without compensation.

State Archivist Jeff Kintop said in his research he could not find any case where an attorney general declined to take a legal action sought by the governor.

Kintop added it was not until Gov. Grant Sawyer was in office in the 1960s that the governor even had his own lawyer. The general counsel, however, does not represent the state.

"I could not find any case like this," Kintop said. "It is definitely more partisan now than in the past."

Hafter, a Las Vegas lawyer who regularly challenges state Board of Medical Examiners' rulings, said he has been told by the Gibbons administration that he would be the first choice to pursue litigation for the state if Masto declines to act.

Hafter said the health care law is an unfunded mandate since it is estimated the state will have to pay $613 million in additional Medicaid costs between 2014 and 2019 under provisions in the law.

"We run our Medicaid program differently than in other states," said Hafter, adding he might sue Medicaid directly. "We have dire needs in this state."

The Associated Press contributed to this report. Contact Capital Bureau Chief Ed Vogel at or 775-687-3901.