Top Chicago Labor Law Firm Takes Aim at Illegal Appointment of Brian Schatz

Attorneys from the Chicago firm of Despres, Schwartz and Geoghegan, Ltd have been admitted 'pro hac vice' to represent plaintiffs challenging the Seventeenth Amendment constitutionality of HRS 17-1, Hawaii's system of appointing US Senators.  The case is Hamamoto v. Abercrombie, Civil No. CV 14-00491 BMK, filed October 31 in the U.S. District Court, District of Hawaii.  Despres, Schwartz and Geoghegan, Ltd. describes itself as “a general litigation firm in Chicago that specializes in labor and employment law, civil rights, consumer fraud, voting rights and other constitutional rights litigation.” 

The lead attorney at the firm, Tom Geoghegan, is a Harvard law grad who has been in practice for 40 years and is the author of several popular books.

The Geoghegan firm successfully represented plaintiffs in Judge v. Quinn, 10-2836 involving related Seventeenth Amendment issues resulting from the temporary appointment to the US Senate of Roland Burris by then-Governor Rod Blagojevich following the election of Illinois US Senator Barrack Obama to the Presidency in 2008.

A new book by Geoghegan has just been released this month: "Only One Thing Can Save Us: Why America Needs a New Kind of Labor Movement." The Amazon.com description says: "He explains why a new kind of labor movement (and not just more higher education) is the real program the Democrats should push—not just to save the middle class from bankruptcy but to revive Keynes’s original and sometimes forgotten ideas for getting the rich to invest and reducing our balance of trade, and to promote John Dewey’s vision of a “democratic way of life,” one that would start in the schools and continue in our places of work."  An earlier Geoghegan book, “Which Side Are You On? Trying to Be for Labor When It’s Flat on its Back” was nominated for a National Book Critics Circle Award for nonfiction.

Hawaii attorney Jim Hochberg is acting as local counsel.

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Lawsuit Challenges Legality of Senate Special Election

From text of Hamamoto v Abercrombie filed in Honolulu Federal Court, October 31, 2014: 

...Plaintiffs bring this action challenging the election being conducted by Defendant Nago and the State of Hawaii Office of Elections in relation to filling the vacancy caused by Senator Daniel K. Inouye's death as unconstitutional under the Seventeenth Amendment because the election is not pursuant to a writ of election issued by the Governor and because Defendant Nago's proclamation states that the candidate elected at the special general election to fill the vacancy shall not take office until January 3, 2015.

Despite the passage of over 18 months since Senator Inouye's death, Defendant Neil Abercrombie (Abercrombie) has yet to comply with the Seventeenth Amendment and issue a writ of election for the holding of an election in which the people of Hawaii can elect a permanent replacement to fill the vacancy caused by Senator Inouye's death.

Plaintiffs also challenge the constitutionality of Section 17-1 of the Hawaii Revised Statutes (HRS) under the Seventeenth Amendment of the United States Constitution because HRS § 17-1 impermissibly requires the Governor of Hawaii to make a "temporary appointment" to fill a Senate vacancy and limits the Governor to choosing an appointee "by selecting a person from a list of three prospective appointees submitted by the same political party as the prior incumbent."

Because of these constitutional flaws in HRS § 17-1, the Hawaii State Legislature has not validly "empower[ed]" the Governor under the Seventeenth Amendment to "make temporary appointment until the people fill" the vacancy caused by Senator Inouye's death, and Defendant Brian Schatz (Schatz) has therefore not been validly appointed to temporarily fill the vacancy.

Additionally, the constitutional flaws in HRS § 17-1 with regard to temporary appointments are unseverable from the part of the statute delaying the election to fill the vacancy to "the following state general election," thereby making the election-timing provision void.

Plaintiffs accordingly seek an order

(1) declaring the election being conducted by Defendant Nago and the State of Hawaii Office of Elections in relation to the permanent filling of the vacancy is unconstitutional under the Seventeenth Amendment because the election is not pursuant to a writ of election issued by the Governor;

(2) declaring HRS § 17-1 unconstitutional and not validly "empower[ing]" the Governor under the Seventeenth Amendment to "make temporary appointment until the people fill" the vacancy caused by Senator Inouye's death;

(3) declaring that Defendant Schatz has not been validly appointed to temporarily fill the vacancy resulting from Senator Inouye's death and enjoining him from acting in and removing him from the office of United States Senator unless and until he is elected in a special general election pursuant to a writ of election issued by the Governor to fill the remainder of Senator Inouye's term,

(4) declaring that the constitutional flaws in HRS § 17-1 with regard to temporary appointments are unseverable from the part of the statute delaying the election to permanently fill the vacancy to "the following state general election," thereby making the election-timing provision in HRS § 17-1 void,

(5) mandating Defendant Abercrombie to immediately comply with the Seventeenth Amendment by issuing a writ of election for the holding of a special general election to fill the vacancy at the earliest practicable date; and

(6) declaring that the candidate elected at the special general election to fill the vacancy shall take office immediately upon the candidate's election and qualification....

read ... The Lawsuit

PDF: Text of Suit

PDF: Case Assigned to Magistrate Judge Kevin Chang