By Bobby Harrison/NEMS Daily Journal
JACKSON – It is only a matter of time before Mississippi joins other states in suing the federal government, claiming the recent health care legislation signed into law by President Barack Obama is unconstitutional.
Attorney General Jim Hood has yet to say whether he will sign onto the lawsuit.
But if he does not, Gov. Haley Barbour already has announced that he is champing at the bit to do so, and probably will in the coming days.
Typically, if the governor takes legal action not supported by the attorney general, the governor is allowed to hire outside counsel that is paid for out of state funds. That is presumably what would happen in this case if the Democratic attorney general opts not to enter into the lawsuit.
If Hood, acting on behalf of Mississippi, does join the lawsuit, he most likely could do so using his expertise, as well as that of the attorneys on his staff. The cost to the state would be that of re-directing the limited resources of the Attorney General’s office.
In a few cases, the attorney general does hire outside counsel on an hourly rate, when it is deemed that specific expertise is needed that cannot be found on staff.
The attorney general has hired private attorneys on what is known as a contingency basis in a few high profile, controversial cases.
In those cases, the attorney general has been pursuing a monetary settlement for an alleged wrong done to the state. Hood says the private attorneys are needed because of their expertise and because of the expenses such a lawsuit would entail with no guarantee of a settlement in the state’s favor.
For instance, former Attorney General Mike Moore was warned by powerful legislators, such as then-House Appropriations Chair Charlie Capps, D-Cleveland, not to spend any state funds pursuing what was deemed a risky lawsuit against the tobacco companies. Moore hired outside counsel – specifically now-disgraced attorney Richard Scruggs. The result of that lawsuit is a multi-billion dollar settlement to the state.
The outside counsel gets paid in cases, such as the tobacco litigation, if the state is successful in its claim against the defendant.
Normally, the private attorneys have put forth the effort, spent their resources to hire experts, to pay staff and to conduct all the costs of pursuing a lawsuit with the understanding of a payment if they prevail.
A list of the contingency-based lawsuits can be found online at Hood’s official state web page, as well as the terms of each contract. For instance, Hood entered into a contingency lawsuit with the firm of Daniel Coker Horton and Bell in 2005 to sue the city of Memphis over the issue of whether the city is taking water out of the aquifer in Mississippi. Thus far the case has gone all the way to the U.S. Supreme Court without the state prevailing. If the state does not prevail, the law firm will be out considerable time and expense without a payday to show for their efforts.
Of course, there have been times when private attorneys have been rewarded handsomely for their efforts – millions of dollars, such as in the tobacco lawsuit litigation. On the flip side, though, 15 percent of no settlement equals – well, nothing.
At any rate, it is hard to imagine how outside counsel could be hired on a contingency basis to represent the state in a lawsuit against the new health care law. The state would not be suing to collect monetary damages, but instead to prevent the enactment of a federal law.
So that leaves as an option to pay any outside attorneys on an hourly basis. Granted, in a $5 billion general fund budget, any costs for outside counsel would only be a pittance, but it might be enough to prevent a teacher from being fired or furloughed or to prevent furloughs at the Department of Human Services, as happened Friday.
The budget crisis is real. Barbour already has cut education funding $312 million or 9.5 percent this year.
Remember, other states are already suing. If the new law were to be declared unconstitutional, that ruling would not apply just for the states that sued. Any ruling would apply nationwide – for those states that sued and for those that did not. A law cannot be in violation of the U.S. Constitution in one state and not in another state.
That is far different than the lawsuits filed to reap monetary damages. In many of those instances, the states that sued did receive some monetary award to offset wrongs against the states or its citizens while the states that did not sue did not receive such awards.
Perhaps, if Barbour does sue on his own, he could use his sizable campaign funds to pay the attorney, or hire the attorney with the understanding that he will be paid if attorneys’ fees to the states are part of any ruling by the judiciary against the new health care law.
Maybe the attorney could take the case on a pro bono basis.
Any of those scenarios would save a little additional money to pay teachers.
Bobby Harrison is Capitol Bureau chief in Jackson for the Daily Journal. Contact him at firstname.lastname@example.org or (601) 353-3119.