Hiram Monserrate Loses Suit, Will Remain Ex-Senator, May Try Again in State Court

In his decision, Judge William H. Pauley III drops some laugh lines. The plaintiffs' reference to "the Senate's action as an 'unlawful coup' " he calls "an ironic twist" -- a reference to Monserrate's involvement with last year's Albany Coup.

Pauley says a preliminary injunction, such as that sought by Monserrate, typically seeks to "preserve the status quo," whereas the status quo in this case is that Monserrate is not a senator. He also says the Monserrate's concerns with the voting rights of his constituents are sufficiently addressed by the upcoming special election for his seat on March 16.

Pauley admitted Monserrate's claims were "justiciable," because they "involve the relationship between a federal and a state government," but denied that Monserrate's removal represented an "irreparable harm" to voters' rights as "the burden here is no greater than that imposed by occasional vacancies due to death or resignation." Also, the right of a legislative body to expel members is "embedded in American democracy," and the senate had a "legitimate state interest" to expel Monserrate.

Thus, the judge finds the voting rights claim to be "gossamer."

As to Monserrate's claim that he did not have a chance to clear his name before the senate acted, Pauley reminded him that the senate had by resolution informed him of its contemplated actions and afforded him opportunities to testify on his own behalf, which he chose not to do.

Neither did the judge find standing on the grounds that the Senate's authority to expel members for crimes such as Monserrate's was vague, comparing it to the New York Bar application rule requiring candidate meet an unquantified standard of "character and general fitness."

Judge Pauley said "nothing supports" Monserrate's First Amendment claim that the expulsion was retaliation for his part in the Albany Coup.

The bright spot for Monserrate was that Pauley suggested he "may pursue his state law claims in state court where the novel questions concerning the expulsion power of the Senate, the constitutionality of Legislative Law 3 under the New York Constitution, and the duties of state officers in complying with Legislative Law 3 are most appropriately resolved."

Attorney General Andrew Cuomo says he's "gratified that the Court has confirmed our position that the Senate had the authority to expel Mr. Monserrate," and says his office will "continue to represent the Senate in this matter."