Monserrate v. N.Y. State Senate
| Decision Date | 16 March 2010 |
| Docket Number | Docket No. 10-0604-cv. |
| Citation | 599 F.3d 148 |
| Parties | Hiram MONSERRATE, individually and as an elected official and member of the New York State Senate, Celeste Rodriguez, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, Michael A. Nardielo, III, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, Monifa Afia Bey, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, Nancy Torres, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, Loretta Henderson, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, and Malika K. Shabazz, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, PlaintiffsAppellants, v. NEW YORK STATE SENATE, Malcolm A. Smith, in his official capacity as Temporary President of the New York State Senate, Angelo J. Aponte, in his official capacity as Secretary of the New York State Senate, Thomas P. Dinapoli, in his official capacity as State Comptroller of the State of New York, Eric T. Schneiderman, in his official capacity as a Senator of the State of New York and Chair of the New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction of Hiram Monserrate on October 15, 2009, David A. Paterson, in his official capacity as Governor of the State of New York, Richard Ravitch, in his official capacity as Lieutenant Governor of the State of New York, and Lorraine Cortes-Vazquez, in her official capacity as Secretary of State for the State of New York, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Norman Siegel, New York, NY, for Appellants.
Steven J. Hyman (Alan E. Sash and Rachel Nicotra, on the brief), McLaughlin & Stern, LLP, New York, NY, for Appellants.
Barbara D. Underwood, Solicitor General of the State of New York (Peter Karanjia, Special Counsel to the Solicitor
General, and Sasha Samberg-Champion and Diana R.H. Winters, Assistant Solicitors General, on the brief), Office of Andrew M. Cuomo, Attorney General of the State of New York, for Appellees.
Before JACOBS, Chief Judge, LYNCH Circuit Judge, and RESTANI, Judge.*
Hiram Monserrate, who has been expelled from the New York State Senate along with six voters in New York's 13th Senatorial District who voted for Monserrate (the "Monserrate voters") (collectively, the "Monserrate Appellants"), pursue this expedited appeal from the denial of a preliminary injunction in the United States District Court for the Southern District of New York (Pauley, J.). The requested preliminary injunction sought primarily to unwind Monserrate's expulsion and to cancel the Special Election scheduled for March 16, 2010. We affirm.
On November 4, 2008, Monserrate received approximately 66 percent of the votes cast in New York's 13th Senatorial District, thereby winning election to a twoyear term as State Senator. On January 7, 2009, he took the oath of office and assumed a seat in the Senate.
On December 19, 2008—after the election but before the oath of office—a woman suffered injuries to her face and left arm in Monserrate's apartment and in the common area of his apartment building. After assuming a seat in the Senate Monserrate was indicted on three felony and three misdemeanor counts of assault arising out of the December incident. On October 15, 2009, Monserrate was convicted of one count of misdemeanor reckless assault after a bench trial in New York Supreme Court, Queens County.1 On December 4, 2009, he was sentenced to three years of probation, 250 hours of community service, one year of domestic-abuse counseling, and a $1,000 fine. A "family offense" order of protection required Monserrate to refrain from any contact with the woman for a period of five years.2Monserrate has appealed from his judgment of conviction; the appeal remains pending.
On November 9, 2009—after Monserrate's conviction but prior to his sentencing—the Senate adopted Resolution 3409 formally establishing a "Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction of Hiram Monserrate on October 15, 2009" (the "Select Committee"). Resolution 3409 recited the "seriousness of the[ ] domestic violence charges" brought against Monserrate, found that "the circumstances surrounding [the charges] warrant further investigation by the Senate, " and observed that those circumstances "may warrant the imposition of sanctions by the Senate." The Select Committee was "authorized and directed to investigate the facts and circumstances relating to the conviction against Senator Monserrate, " and was required to "report to the Senate with its recommendations." Resolution 3409 alsodirected the Select Committee to "ensure a full and fair investigation, ensure fairness in the hearing process, specifically providing Senator Monserrate and his counsel with notice of all public committee proceedings, as well as ensuring opportunities for Senator Monserrate to be heard."
The Select Committee convened on six occasions. It reviewed, inter alia, the trial record, certain grand jury testimony phone records, a notarized statement by the victim, and Monserrate's media interviews. Monserrate declined the invitation to present arguments and evidence in person, through counsel, or in writing.
The unanimous report of the Select Committee (the "Report"), issued January 13, 2010, recommended that Monserrate be expelled or that he be censured with revocation of privileges:
Having considered the available evidence and evaluated the facts relating to the conduct that provided the basis for Senator Monserrate's conviction, the Select Committee finds that this case is serious enough to warrant a severe sanction. In doing so, we are mindful that ultimately, the voters of Senator Monserrate's district, where he plans to run for re-election, will decide whether or not he is returned to office.
The Select Committee finds that the nature and seriousness of Senator Monserrate's conduct, as demonstrated by the surveillance video and other unrebutted evidence outlined in this Report, showed a reckless disregard for Ms. Giraldo's well-being and for the severity of her injury. We therefore find, that under the particular facts and circumstances presented here, Senator Monserrate's misconduct damages the integrity and the reputation of the New York State Senate and demonstrates a lack of fitness to serve in this body.
Accordingly, the Select Committee recommends that Senator Monserrate be sanctioned by the full Senate, and that the Senate vote to impose one of two punishments: expulsion, or in the alternative, censure with revocation of privileges.
The Special Committee further concluded that (i) "Senator Monserrate's assault... was a crime of domestic violence and therefore in direct contravention of New York's well-established 'zero-tolerance' policy in such matters, " and (ii) "Senator Monserrate has failed to accept responsibility for his misconduct, or to cooperate in any way with the work of the Select Committee."
On February 9, 2010, the Senate voted 53 to 8 to expel Monserrate. Resolution 3904 "condemn[ed] the conduct of Senator Monserrate surrounding his conviction for reckless assault" and concluded that his "behavior has brought disrepute on the Senate, and damaged the honor, dignity and integrity of the Senate." The Senate resolved that such conduct "is incompatible with the duties of the Senate to uphold public confidence in government and promote the administration of justice under law, " and further resolved that Monserrate's actions "in totality are not compatible with the responsibilities of the office, and with the qualifications and behavior expected of and by a State Senator of New York."
On February 10, 2010, Governor David A. Paterson proclaimed a Special Election to be held on March 16, 2010. On February 11, 2010, the Monserrate Appellants filed this action pursuant to 42 U.S.C. § 1983 seeking a temporary restraining order and a preliminary injunction. The same day, the district court denied the motion for a temporary restraining order. On February 19, 2010, the district court denied the motion for a preliminary injunc-tion. The Monserrate Appellants timely appealed and this Court granted their motion for an expedited appeal.
"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., —U.S.—, —, 129 S.Ct. 365 376, 172 L.Ed.2d 249 (2008). "We review the denial of a preliminary injunction for abuse of discretion." Lynch v. City of N.Y., 589 F.3d 94, 99 (2d Cir.2009). "A district court has abused its discretion if it has (1) based its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment of the evidence, or (3) rendered a decision that cannot be located within the range of permissible decisions." Id. (internal quotation marks omitted).
The Second Circuit has articulated the following standard for granting a preliminary injunction:
In general, the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.
Id. at 98 (internal quotation marks omitted). However, a plaintiff cannot rely on the "fair ground for litigation" alternative in challenging "governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989). The...
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