Geoghegan Special Election Complaint

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION GERALD ANTHONY JUDGE and DAVID KINDLER, Plaintiffs, v. PAT QUINN, GOVERNOR of the STATE of ILLINOIS, Defendant.

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No.

FILED: FEBRUARY 26, 2009 09CV1231 JUDGE GRADY MAGISTRATE JUDGE MASON BR

COMPLAINT Now come plaintiffs, Gerald Anthony Judge and David Kindler, by their attorneys, and for their Complaint against defendant Pat Quinn, Governor of the State of Illinois, state as follows: NATURE OF ACTION 1)

This is an action, pursuant to 42 U.S.C. §1983 and 28 U.S.C. §§2201 and 2202,

seeking to redress the ongoing violation of the Seventeenth Amendment to the United States Constitution by the failure of defendant, as Governor of Illinois, to issue a writ for a special election to fill a vacancy in the United States Senate. This action seeks to uphold plaintiffs’ rights under the Seventeenth Amendment and under the general principles of democracy upon which our nation rests to vote for and directly elect their United States Senator. 2)

One of Illinois’ two seats in the United States Senate became vacant on or around

November 16, 2008, when President Barack Obama resigned his seat after winning the presidential election.

3)

On December 30, 2008, then Governor Rod R. Blagojevich appointed Roland

Burris to fill the vacant seat. 4)

On January 15, 2009, Roland Burris was sworn in as the junior United States

Senator for the State of Illinois. 5)

Senator Burris was never elected to his current office of United States Senator,

and neither former Governor Blagojevich nor defendant Governor Pat Quinn has issued a writ calling for any election to fill the vacancy created when President Obama resigned that seat. 6)

As of late 2008, there is significant evidence that allowing the Governor to

appoint a Senator invites corruption and abuse of power. Former Governor Rod R. Blagojevich is currently under federal investigation for alleged acts including conspiring to use this power to sell the Senate seat vacated by President Obama for substantial sums, or alternately to trade it for other personal gain. 7)

Even more recently, Senator Burris has revealed publicly that he offered to

fundraise for former Governor Blagojevich while he was simultaneously seeking to be appointed by former Governor Blagojevich to the then to-be-vacated Senate seat of President Obama. 8)

Given Illinois’ unfortunate history of governors being convicted for crimes

committed while in office, there having been two such governors, not including Mr. Blagojevich, convicted since 1968, there is a very real potential for such corruption and abuse in the filling of vacancies in the Unites States Senate under future Illinois governors. 9)

The issue of how to fill a vacancy in a seat in the United States Senate is likely to

occur again.

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10)

The Seventeenth Amendment was adopted as a remedial measure in order to

remove the power of selection of U.S. Senators from state officials and replace it with direct election by the people. 11)

Illinois statutes providing for the appointment of persons to fill vacancies in the

U.S. Senate are contrary to this purpose in that current statutes give the power to select a United States Senator to one elected official—the Governor—and take it away from the people. 12)

The need to prevent and avoid the potential for corruption and abuse by the

Governor in using the power to appoint persons to fill vacancies in the United States Senate, together with the right of the people to the direct election of persons to fill such vacancies, outweighs any interest the State might have in permitting persons appointed to such vacancies to serve in the Senate for extended periods of time. 13)

The fundamental democratic nature of the selection of United States Senators by

direct election and the rights of voters to engage in such direct election must be upheld by requiring the defendant Governor to issue a writ ordering a special election at the earliest practical date to fill the United States Senate seat vacated by President Obama and currently held by the temporarily appointed Senator Roland Burris. PARTIES 14)

Plaintiffs are residents of the Northern District of Illinois, citizens of Illinois, and

registered voters in Illinois. They bring this action to enforce their rights as voters to participate in the direct election of their United States Senators under the Seventeenth Amendment. 15)

Defendant Pat Quinn is the Governor of the State of Illinois.

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JURISDICTION AND VENUE 16)

This Court has jurisdiction pursuant to 28 U.S.C. §1331 and §1343(a)(3) because

this case seeks to remedy a deprivation of the plaintiffs’ rights under the Seventeenth Amendment to the United States Constitution. 17)

Venue is proper in this judicial district because the defendant is a resident of, and

conducts business within its borders. COUNT I— DECLARATORY RELIEF 18)

Plaintiffs reallege ¶¶ 1-17.

19)

The Seventeenth Amendment to the United States Constitution provides, in

pertinent part: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. (emphasis added) 20)

The purpose of the “proviso” in the Seventeenth Amendment was to permit an

appointed Senator to serve only until the earliest time that it would be practical to conduct a special election to fill the vacant seat. 21)

One of Illinois’ two United States Senate seats became vacant on or around

November 16, 2008. 22)

10 ILCS §5/25-8, which is the only “direction” provided by the Illinois General

Assembly concerning the filling of vacancies in the Unites States Senate, provides: When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, 4

and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election. 23)

In direct contravention of the plain language of the Seventeenth Amendment, 10

ILCS §5/25-8 does not provide for the issuance by the Governor of a writ of election to conduct a special election to fill vacancies at the earliest practical time, but rather simply permits the appointed person to serve for an unspecified period of time until the “next election” for Congress. 24)

In fact, pursuant to 10 ILCS §5/25-8, former Governor Rod Blagojevich

appointed Roland Burris to the United States Senate. 25)

Neither former Governor Rod Blagojevich nor the defendant current Governor

has ever issued a writ of election to fill the vacant seat. 26)

With respect to the appointment of Roland Burris, under 10 ILCS §5/25-8,

without the intervention of this Court, Senator Burris will be permitted to serve as a “temporarily” appointed Senator for nearly two years, during which time plaintiffs will have been deprived of their right to vote for the direct election of their United States Senator under the Seventeenth Amendment. This two year period during which plaintiffs will be deprived of their rights to vote is much longer than the shortest practical time in which to conduct a special election to fill the vacancy in the United States Senate pursuant to a writ issued by the Governor. 27)

By virtue of the foregoing, the defendant Governor has violated and continues to

violate plaintiffs’ rights to vote in the direct election for their United States Senator under the Seventeenth Amendment to the United States Constitution by failing to issue a writ of election to fill the United States Senate seat which became vacant on or around November 16, 2008.

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28)

Because 10 ILCS §5/25-8 violates the plaintiffs’ rights to vote under the

Seventeenth Amendment and because the defendant Governor has failed to issue a writ of election, an actual controversy exists between the parties. WHEREFORE, plaintiffs respectfully request this Court: a. to declare, pursuant to 42 U.S.C. §1983 and 28 U.S.C. §2201, that 10 ILCS §5/258, regulating the filling of vacant United States Senate seats, violates the plaintiffs’ rights under the Seventeenth Amendment to the United States Constitution to vote in the direct election for their United States Senator, and that the defendant Governor’s failing to issue a writ of election for an election to fill the vacancy in the United States Senate violates these same rights of plaintiffs under the Seventeenth Amendment to the United States Constitution; b. to award plaintiffs their costs and attorneys fees pursuant to 42 U.S.C. §1988; and c. to award such other relief as the Court deems necessary or appropriate. COUNT II— INJUNCTIVE RELIEF 29)

Plaintiff realleges ¶¶ 1-28.

WHEREFORE, plaintiffs respectfully request this Court, pursuant to 28 U.S.C. §2202 and 42 U.S.C. §1983: a. to enter an order enjoining defendant Governor Pat Quinn from continuing to violate plaintiffs’ rights to vote in the direct election of their United States Senator under the Seventeenth Amendment to the United States Constitution, and mandating defendant Governor to issue a writ for a special election to be conducted as soon as practical to fill the vacancy in the United States Senate

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created by the resignation of Barack Obama on or about November 16, 2008, which seat is temporarily filled by Senator Burris; b. to award plaintiffs their costs and attorneys fees pursuant to 42 U.S.C. §1988; and c. to award such other relief as the Court deems necessary or appropriate.

Date: February 26, 2009

_/s/Thomas H. Geoghegan____________ One of Plaintiffs’ Attorneys

Thomas H. Geoghegan (ARDC No. 3126689) Despres, Schwartz & Geoghegan, Ltd. 77 W. Washington St. Suite 711 Chicago, IL 60602 Ph: (312) 372-2511 [email protected]

Martin J. Oberman (ARDC No. 2076713) Suite 1850 122 South Michigan Avenue Chicago, Illinois 60603 (312) 360-1800 [email protected]

Scott J. Frankel (ARDC No. 6195429) Robert R. Cohen (ARDC No. 6193698) Frankel & Cohen 77 W. Washington St. Suite 1700 Chicago, IL 60602 (312) 759-9600 email: [email protected] email: [email protected]

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