Last week Governor Jim Gibbons gave Attorney General Catherine Cortez Masto until Monday to decide if she would join a lawsuit brought by 14 other states challenging the new health care reform bill.
With that deadline passing and no answer from the attorney general, the governor says he's prepared to circumvent her office with other legal representation.
There has been a unusual amount of sniping between the two in the past week, but he current positions of the governor and attorney general can be summarized like this.
The governor was quick as were a dozen other Republican governors to denounce the health care reform bill as unconstitutional. He'd like to stand with them and two other states in challenging it.
Noting the lawsuit has already been filed and, presumably any constitutional arguments made, the attorney general is essentially asking 'what's the rush?' and holding to her intention of a thorough review before committing her office to a legal challenge.
Was there something unique that Nevada would bring to the table, she asked.
Monday the governor sidestepped that challenge, but insisted there's not a moment to lose. He says the bill violates the rights of Nevadans and each day it remains law is one day too many.
"There's no time to wait, no time to delay when a right under the constitution has been violated."
The governor said he was for the moment still waiting for the attorney general's decision, but if it was not forthcoming, he was prepared to go elsewhere.
The governor said he felt his own in-house counsel could bring the suit or perhaps one of several private attorneys he says have offered to work pro bono on the state's behalf.
There could be a problem with that. According to state law (NRS 41.0345) the governor does not have independent authority to to hire outside counsel to represent State interests and must be represented either by the Attorney General or by outside counsel hired by the Attorney General.
The governor and his staff apparently see an opening in that word "hire." If an attorney is working pro bono--for free-- is the law satisfied and can they represent the state?
"That's true," says the governor, "They're doing it on their own. They're protecting the rights of the people when the state of Nevada has failed or refuses to step in."
The attorney general has already noted her office is a separate constitutional entity with the responsibility to decide how and when litigation is conducted.
Might we see a legal test of this disagreement? It's possible. Stay tuned.