Roll Call Magazine

July 26, 2001

Jeffords Faces Suit Over Party Switch

By Paul Kane

Before sunrise one day in late spring, Michael Hahalyak and John Hoffman set out to change the course of political history in a 500-mile trek back and forth from Pittsburgh to the E. Barrett Prettyman Federal Courthouse at Third Street and Constitution Avenue in Washington, D.C.

When their day was done, well after 10 p.m., Hahalyak, 81, and Hoffman, 64, had filed a federal civil suit against Sen. Jim Jeffords (I) attempting to force the Vermonter back into the Republican Party.

Even though legal experts give little credence to their arguments - essentially that Jeffords committed a fraud by running as a Republican last year - the two are certain that they can overcome the long odds.

"We're stuck for six years with somebody that represented himself falsely," said Hoffman, a retired national bank examiner. "Whether it's a long shot or not, I think it's time someone stands up and says, 'This is wrong.'"

Hahalyak and Hoffman represent a decades-old tradition in Congressional politics: citizens who file lawsuits against Members of Congress. Some of the suits end up being surprisingly influential and controversial, but most of them, according to former House and Senate counsels, are nothing more than nuisance suits, a phrase the lawyers try to avoid but often can't resist because of the incredible nature of some of them.

"We strenuously avoided using the phrase 'nuisance suit,' even though it may be an apt description," recalled Tom Griffith, the Senate legal counsel from 1995 to 1999 and currently general counsel at Brigham Young University.

Griffith and other former counsels have similar stories: men claiming extraterrestrials were spying on them or a voter claiming a wife shouldn't hold the seat once held by her husband because voters must have mistook her for him.

Stan Brand, House general counsel from 1976 to 1984, estimated that cases like these could eat up anywhere from 10 to 15 percent of the time and resources in the counsels' offices, where the primary focus is aiding committees investigating the executive branch and defending the constitutionality of laws before courts.

Steve Ross, who succeeded Brand as counsel, estimated that in his tenure he saw an "average of one a week, certainly one a month" of lawsuits with little foundation.

"There was always a steady stream of work that had to be done," said Ross, now a partner at Akin, Gump, Strauss, Hauer & Feld, LLP.

The result is almost always the same, a dismissal, but sometimes the cases can go on for a couple years before final resolution.

Prisoners or other people file most of these suits with no legal experience, which is often complicated by their decision to represent themselves. But Hoffman and Hahalyak have some legal background on their side. A graduate of Harvard Law School in 1944, Hahalyak has practiced most forms of law since 1946.

In 1988, he filed suit against Martin Scorcese to try to force the filmmaker to change the name of his movie "The Last Temptation of Christ."

With a "staunch biblical, evangelical" background, Hahalyak argued on behalf of his bible distribution group - first to the state courts, then to federal appellate courts - that Scorcese had misrepresented Jesus Christ.

"He took what was sacred and made it the diabolical," Hahalyak said in a telephone interview last week. In the fall of 1990, the Supreme Court declined to hear the case.

This time around Hahalyak is making a similar argument: that Jeffords misrepresented himself to the voters of Vermont by running as a Republican in 2000 and then switching to Independent.

Watching the Jeffords melodrama from his suburban Pittsburgh home in late May, Hahalyak said, "I came to the conclusion that he had no authority to do this. ... I felt a moral issue."

Friends for several years from attending First Presbyterian Church in downtown Pittsburgh, Hahalyak and Hoffman believe they have found the legal nugget that will drive their case: a Vermont law that forbids candidates for office from running on more than one party nomination. Extrapolating further, they feel that requires elected lawmakers to serve out their terms under the party banner for which they were elected.

The current Senate legal counsel, Pat Bryan, declined to comment on the case . Representing Jeffords, Bryan has to reply to Hahalyak's initial motion in the coming weeks.

"We expect it to be dismissed in due course," said Erik Smulson, Jeffords' spokesman.

While former counsels agree that the case has little standing, they say it could take a while.

"The court treats them all with a presumption of having potential viability," Ross said.

In June 1999, Brett Kimberlin, who claims to have sold marijuana to former Vice President Dan Quayle before his political career started, filed suit against Sen. Orrin Hatch (R-Utah) and former workers for the Senate Judiciary Committee.

In one of more than a dozen lawsuits Kimberlin filed against lawmakers and federal agencies from his prison cell, he said that Hatch and his staff had spoken with the U.S. Parole Commission about Kimberlin and that their discussions led to extended jail time for him.

The civil charges brought by Kimberlin, who was convicted in the late 1970s of planting eight bombs in the Indianapolis area and now resides in a federal halfway house, were dismissed against Hatch but not until March 30, almost two years after its filing. The case against one of Hatch's former aides is awaiting a ruling on a motion to dismiss.

Brand recalled how he initially laughed off a suit filed by renowned atheist Madelyn Murray O'Hair, who sought to eliminate the office of House chaplain on the grounds of separation of church and state.

A few years later, Brand was still arguing the case, then before the federal appellate courts. When he emerged from the arguments at Prettyman Courthouse, the chaplain, then the Rev. James Ford, asked Brand how things went.

"It's a sad day when a man of the cloth has to turn to a lawyer to be saved," Brand replied.

Brand actually lost the case, but in a related suit involving the Nebraska legislature, the Supreme Court upheld the chaplain position in government assemblies.

Other cases were a bit easier to get dismissed, such as the time Brand said he had to defend then Rep. Elizabeth Holtzman (D-N.Y.). One of her constituents claimed she had to vacate her seat "because the Constitution only refers to 'he' when referring to Congress," Brand said.

Ross said it was always important to treat the plaintiffs with dignity and respect, no matter how outrageous their legal claim, partly because many of them were in need of help.

"Each of these people was a real live human being. They may have been in need of a lot of things. Ridicule and scorn were not among them," he said.

Hoffman dismisses any criticism of his case. He expects the case, overseen by Judge Royce Lamberth, to go forward and that he and Hahalyak will get to depose Jeffords later this summer or early in the fall, leading to more 500-mile day trips to Washington.

Admitting that he once thought the case was impossible, Hoffman doesn't think so anymore. "After looking at more of the law and what's involved, no I don't," he said.

-- Anonymous, July 26, 2001