Monserrate v. NEW YORK STATE SENATE, 10 Civ. 1106(WHP).

• Decision Date: 19 February 2010
• Docket Number: No. 10 Civ. 1106(WHP).,10 Civ. 1106(WHP).
• Parties: Hiram MONSERRATE, individually and as an elected official and member of the New York State Senate, Celeste Rodriguez, Michael A. Nardielo III, Monifa Afia Bey, Rev. Nancy Torres, Loretta K. Henderson, and Malikah Shabazz, individually and as duly registered and qualified voters in the New York State 13th Senatorial District, Plaintiffs, v. The 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 Schneiderman, in his official capacity as 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.
• Court: U.S. District Court — Southern District of New York

695 F. Supp.2d 80

Hiram MONSERRATE, individually and as an elected official and member of the New York State Senate, Celeste Rodriguez, Michael A. Nardielo III, Monifa Afia Bey, Rev. Nancy Torres, Loretta K. Henderson, and Malikah Shabazz, individually and as duly registered and qualified voters in the New York State 13th Senatorial District, Plaintiffs, v. The 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 Schneiderman, in his official capacity as 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.

No. 10 Civ. 1106(WHP).

United States District Court, S.D. New York.

February 19, 2010.

Norman H. Siegel, Esq., Norman Siegel, Attorney At Law, Steven J. Hyman, Esq., McLaughlin and Stern, LLP, New York, NY, for Plaintiffs.

Henry M. Greenberg, Esq., Douglas J. Goglia, Esq., New York State Office of the Attorney General, Albany, NY, for Defendants.

Arthur N. Eisenberg, Esq., New York Civil Liberties Union, New York, NY, for Amicus Curiae New York Civil Liberties Union.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge:

Plaintiffs Hiram Monserrate ("Monserrate") and several voters from the 13th Senatorial District bring this federal civil rights action against the New York State Senate (the "Senate") and certain legislative and executive officers of the State of New York. Plaintiffs assert violations of their rights under the First and Fourteenth Amendments to the U.S. Constitution and several state law claims. They move to preliminarily enjoin Defendants from enforcing a resolution expelling Monserrate from the Senate, holding a special election on March 16, 2010, 599 F.3d 148, in the 13th Senatorial District, and removing Monserrate from the payroll of the State of New York. For the following reasons, Plaintiffs' motion for a preliminary injunction is denied.

Monserrate challenges the power of the Senate to remove a duly-elected sitting member. This is a case of first impression as no legislator has ever contested his expulsion in New York. In an ironic twist, his attorneys characterize the Senate's action as an "unlawful coup" and argue that voters in the 13th Senatorial District have been disenfranchised by his removal. However, Governor David A. Paterson's immediate Proclamation of a Special Election empowers those voters. While this Court concludes that it has no legal basis to preliminarily enjoin the decision of the Senate, a "fundamental principle of our representative democracy is, in Alexander Hamilton's words, `that the people should choose whom they please to govern them.'" Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (quoting 2 Debates on the Federal Constitution 257 (J. Elliot ed. 1876)). Thus, the March 16 Special Election furthers the goals of Plaintiffs' current application to protect the voters of the 13th Senatorial District more effectively than judicial intervention.

BACKGROUND

On November 4, 2008, Monserrate was elected to a two-year term in the Senate representing the 13th Senatorial District. (Complaint dated Feb. 10, 2010 ("Compl.") ¶¶ 7, 17.) On December 19, 2008, he was involved in a domestic dispute with Karla Giraldo ("Giraldo") at his apartment. (Report of the N.Y. State Senate Select Committee to Investigate the Facts and Circumstances of Surrounding the Conviction of Hiram Monserrate dated Jan. 13, 2010 (the "Report"), at 1.) During the dispute, Giraldo sustained serious facial lacerations from a broken drinking glass. (Compl. ¶ 17; Report at 1, 6.) Monserrate drove Giraldo to North Shore Long Island Jewish Medical Center, where she was treated for her injuries. (Report at 1, 6.) Emergency room personnel notified the NYPD of suspected domestic violence, and Monserrate was arrested. (Report at 7.)

On January 7, 2009, Monserrate took the oath of office and was seated in the Senate. (Compl. ¶¶ 7, 18.) Ten weeks later, he was indicted on three felony and three misdemeanor assault counts in New York State Supreme Court (Queens County). (Report at 8.) Three felony and two misdemeanor counts related to events between Monserrate and Giraldo inside Monserrate's apartment. (Report at 8.) The third misdemeanor count concerned events recorded by a surveillance camera in a hallway outside Monserrate's apartment. (Report at 8.)

Monserrate waived a trial by jury. (Record at 8-9.) The ensuing bench trial from September 21 to October 13, 2009, before Justice William Erlbaum attracted intense public scrutiny. (Record at 8-12.) On October 15, Justice Erlbaum found Monserrate guilty of a single misdemeanor—Assault in the Third Degree—because "the defendant ... recklessly caused injury to Karla Giraldo by forcibly dragging her by her arm." (Report at 12.) Justice Erlbaum dismissed two counts of reckless assault at the conclusion of the People's case and acquitted Monserrate on the three remaining counts. (Report at 12-14.)

On November 9, 2009, the Senate adopted Resolution No. 3409 ("Resolution 3409") to establish "a Select Committee of the Senate to Investigate the Facts and Circumstances Surrounding the Conviction of Senator Hiram Monserrate on October 15, 2009" (the "Select Committee"). (Report at 2.) The Select Committee was comprised of nine senators-five appointed by the majority and four by the minority. (Report at 2.) Resolution 3409 "authorized and directed" the Select Committee to "investigate the facts and circumstances relating to the conviction against Senator Monserrate" and report its findings with a recommendation regarding sanctions. (Report at 2; Declaration of Angelo J. Aponte dated Feb. 16, 2010 ("Aponte Decl.") Ex. B: Senate Resolution 3409 dated Oct. 15, 2009 ("Resolution 3409") at 2.)

On December 4, 2009, Justice Erlbaum sentenced Monserrate to three years probation, 250 hours of community service, and one year of domestic abuse counseling and assessed a $1000 fine. (Report at 14.) He entered a five-year order of protection-ordering Monserrate to refrain from any contact with Giraldo. (Report at 14.)

The Select Committee convened on six occasions over two months. (Report at 4.) The Select Committee reviewed, inter alia, Monserrate's trial record, Giraldo's grand jury testimony, cell phone records, a notarized statement by Giraldo, and public interviews given by Monserrate. (Report at 4-5.) The Select Committee notified Monserrate of its hearings and furnished him with the materials circulated to members of the Select Committee. (Resolution 3409 at 2; Declaration of Daniel R. Alonso dated Feb. 16, 2010 ("Alonso Decl.") Ex. D: Letter from Daniel R. Alonso to Joseph Tacopina dated Nov. 6, 2009; Ex. F: Letter from Daniel R. Alonso to Joseph Tacopina dated Nov. 11, 2009; Ex. I: Letter from Daniel R. Alonso to Joseph Tacopina dated Nov. 18, 2009; Ex. J: Letter from Daniel R. Alonso to Joseph Tacopina dated Nov. 25, 2009.)

Monserrate declined the Select Committee's invitation to testify or offer any evidence. (Report at 4.) Giraldo also refused to participate in the Select Committee investigation. (Report at 5.) However, from the beginning of the inquiry, Monserrate's counsel communicated with the Select Committee about potential sanctions. Notably, in a letter dated November 13, Monserrate's counsel questioned the power of the Senate to expel a member. (Alonso Decl. Ex. G: Letter from Chad Siegel to Daniel Alonso dated Nov. 13, 2009 at 1.)

On January 13, 2010, the Select Committee issued its unanimous report (the "Report") recommending the expulsion or censure of Monserrate:

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 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 of one of two punishments: expulsion, or in the alternative, censure with revocation of privileges.

(Report at 53.)

On February 9, 2010, the Senate considered Senate Resolution 3691, which provided in part:

RESOLVED, That the Senate of the State of New York does hereby condemn the conduct of Senator Monserrate surrounding his conviction for reckless assault; and be it further;

RESOLVED, That the actions of Senator Monserrate, as measured in their totality, are not compatible with his oath of office and the qualifications and behavior expected of and by a State Senator for the State of New York.

The Senate adopted Resolution 3691 by a vote of 53 to 8 and expelled Monserrate without debate or further hearings....