Can they expel Monserrate?

I completely disagree with this interpretation (4.00 / 1)

You're reading Article 3, section 9 as an exclusion of the ability to expel.  Essentially the idea is that if the US Constitution derives the power of expulsion under the later clauses of its language, then the state constitution could only derive power through similar later clauses.  That's false.  The language in Article 3, section 9 does not prohibit expulsion, nor does it create language that would conflict with expulsion.  It simply says that each hosue shall be the judge of the qualifications of its own members.  Therefore the law can then supplement the understanding of qualifications by providing explicit provisions on expulsion.

The only way this is unconstitutional is that if the law is in conflict with the constitution.  Nothing in the state constitution prohibits the power to expel and the power flows from the implication of determining qualifications of its own members.  Therefore this is constitutional.

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by: BingChester @ Wed Jan 13, 2010 at 03:35:16 AM UTC

A problematic interpretation (0.00 / 0)

The problem is the meaning of the power to determine qualifications.  Since the language derives from the U.S. Constitution, it can be interpreted as having the same meaning -- that is, the qualifications to hold elective office (federal or state) shall be those explicitly listed in the constitution (federal or state, respectively).

Since the U.S. Constitution specifically continues by giving members of each House the power to expel a member, but the New York State Constitution does not, it can reasonably be inferred that no such power exists in the New York State Senate.  There is no similar reasonableness in your argument to infer the opposite.

I'm not saying that legislators are prohibited from expelling a member, merely that the power to do so is not granted to them under the state Constitution.  The question, then, is whether they can assume a power not granted under the Constitution.

If we were debating that question on a matter of the federal government, the answer would be an obvious no, as the 10th Amendment makes clear.  There does not appear (in my perfunctory scanning) to be any similar specific limitation to the power of the state government in toto.  The question of whether the state legislature can do something merely because it isn't prohibited by the Constitution seems to me, at least, to be pretty obvious; if the legislature can do something merely because they aren't specifically prohibited from doing it by the Constitution, then their powers are nearly unlimited -- and that concept scares me, as it should scare any freedom-loving American.

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by: Dan Jacoby @ Wed Jan 13, 2010 at 04:28:12 AM UTC

[ Parent ]

Reasoning by analogy is not persuasive (0.00 / 0)

Just because we can historically draw the parallel to the language in the US Constitution and the State Constitution doesn't mean we can reject the power of the state to determine qualifications including expulsion because it lacks the completely analogous language.  

And why can't they assume the power not explicitly granted as long as it can be inferred?  Powers are always inferred and not explicitly granted.  The power to regulate commerce has been inferred to be much, much larger than the framers probably intended it to mean when they wrote the language on the page because of the inferred power of regulating commerce.  Similarly I think a provision saying that you can determine member qualification grants inferred power for the Legislature to pass a law that grants the specific provision about expulsion.  

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by: BingChester @ Wed Jan 13, 2010 at 04:37:38 AM UTC

[ Parent ]

Not reasoning by analogy (0.00 / 0)

Okay, I'll give you an analogy.  When a relief pitcher enters a baseball game, it is either a save situation or it isn't.  If it isn't a save situation when the pitcher enters the game, there is no way that pitcher can possibly register a save in that game.  Period.  Similarly, if a person is apparently elected to office, that person either meets the qualifications for office (age, residency, etc.), or s/he doesn't.  (The only difference is that a person could lose naturalized citizenship status or move out of the district, thus no longer being qualified -- or, becoming unqualified -- to hold that office; other than that, there is no further judgment to be made.)

By what reasoning do you extend the meaning of judging qualifications, as stated in Art. 3, Sec. 9, beyond its obvious limitation?  What support do you have, when the inference (to use your term) of the phrase, based as it is on the U.S. Constitution, is so obvious?  It isn't merely analagous; it's an exact duplication!  Since the U.S. Constitution clearly does not extend judgment of qualification to include within it the power to expel, neither can the state Constitution.

Unless, of course, there is some other phrase, clause or section of the state Constitution that can be used in this case.  Find that other clause, and they can expel one of their own with confidence; absent another clause, it's problematic at best, and quite possibly unconstitutional.

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by: Dan Jacoby @ Wed Jan 13, 2010 at 05:15:28 AM UTC

[ Parent ]

Disagree disagree disagree (0.00 / 0)

Qualifications is a broad term.  You've read it narrowly and that's really the heart of this dispute.  I read qualifications broadly and believe that if the legislature passes a law discussing expulsion, it fits under the power to "determine qualifications".  

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by: BingChester @ Wed Jan 13, 2010 at 15:08:17 PM UTC

[ Parent ]

I think I understand Dan's confusion (0.00 / 0)

Dan is assuming that because the language in a certain part of our state constitution is the same as the federal constitution, then they must have the same interpretation. This is not true. An example of this is the Equal Protection Clause. The Supreme Court can interpret the 14th Amendment EP clause as not including one group as a suspect class while a State court can interpret a state constitution's equal protection clause (which could be the exact same language as the 14th amendments EP clause) and include the same group as a suspect class that isn't seen that way on a federal level. My point here is that merely having the same language as the federal constitution does not mean that the state constitution has to be interpreted in the same way.  

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by: stevenman5000 @ Wed Jan 13, 2010 at 19:37:28 PM UTC

[ Parent ]

For example? (0.00 / 0)

Just wondering if you can give an example.  It seems to me that the federal equal protection clause does not apply to everyone (despite the claim that it does), because the next section of the XIV Amendment makes it clear that the right to vote, at least, does not necessarily apply to women.  If a state constitution's equal protection clause does not include that escape, then it would easily be interpreted differently.

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by: Dan Jacoby @ Wed Jan 13, 2010 at 20:39:40 PM UTC

[ Parent ]

EP Clause (0.00 / 0)

The next section of the 14th amendment is not apart of the Equal Protection Clause. Interpreting the Equal Protection Clause of the Federal Constitution only focuses on the langauge "No state shall... deny to any person within its jurisdiction the equal protection of the laws".

The best example is marriage laws. The Supreme Court can state that marriage laws limiting marriage to 1 man and 1 woman does not violate the EP clause. But a State Supreme Court can interpret a state constitutions EP Clause (same language) as invalidating a marriage law limiting marriage to 1 man 1 woman. As I mentioned before, the point is that having the same language does not necessarily give it the same interpretation. State's can have the same clause with same language as the federal constitution but interpret it totally differently.

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by: stevenman5000 @ Wed Jan 13, 2010 at 22:36:38 PM UTC

[ Parent ]

Misinterpreing my statement (0.00 / 0)

The fact that Section 2 of the 14th Amendment gives states the right to exempt women from the right to vote without penalty is a glaring loophole in the so-called "equal protection" clause (and it does, or else why the 19th Amendment?).  Furthermore, the EP clause apparently does not guarantee the right to vote to every male over the age of 21 (except for those guilty of rebellion or other crime), because the 15th Amendment specifically does.  Except that the 15th Amendment apparently doesn't to that either, because we have the 24th Amendment.

Your problem is that you're comparing apples with applesauce while I am comparing apples with the apples from which the applesauce was made.  Applesauce has a lot of other ingredients, so it tastes different, but the original apples from which the applesauce was made were the same.

My point is that the U.S. Constitution's EP clause is not all-encompassing, so NYS Constitution copy can easily -- and just might -- be interpreted the same way.

Of course, if Monserrate is arguing in federal court on a double jeopardy claim, he'll probably lose, since expulsion from a legislative body is not considered to be the same as punishment for crime, nor would he be expelled for committing a felony for which he was acquitted.  If that's the best argument his high-priced lawyer can make, Monserrate isn't being well-represented.  (Yes, I know, he was acquitted of the felony counts, but that's because the NYPD and/or the Queens DA office screwed up, not because he had a good lawyer.)

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by: Dan Jacoby @ Wed Jan 13, 2010 at 23:55:00 PM UTC

[ Parent ]

They can expel him (4.00 / 1)

If the law is fuzzy, look at precedent:

But it turns out that expulsion is quite a rare event in Albany. In fact, as far as anyone can remember, the last time it happened was 90 years ago, during the anticommunist Red Scare. And it was quite a dramatic affair.

The lawmakers involved five assemblymen: August Claessens and Louis Waldman of Manhattan; Charles Solomon of Brooklyn; and Samuel Orr and Samuel A. DeWitt of the Bronx.

http://cityroom.blogs.nytimes....

It's been done and its constitutionality was never denied by a court.  It can be done.  

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by: Roatti @ Wed Jan 13, 2010 at 06:30:53 AM UTC

The difference (4.00 / 1)

I figured someone would bring up the prior expulsions.

The state Constitution was different in 1920.  Art. 3, Sec. 9 used to be Sec. 10 until 1938.  It was also amended in 1963.  I have no idea what the Constitution said regarding expulsion in 1920, which is why I have been saying "may not" as opposed to "don't have the power."

If anyone can find a copy of the state Constitution as it existed in 1920, I'd love to see it.

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by: Dan Jacoby @ Wed Jan 13, 2010 at 14:25:24 PM UTC

[ Parent ]

Dan... (4.00 / 1)

...you really need to stop raising constitutional arguments when the matter at hand is political, cf. the Ravitch appointment.

The state constitution creates the legislature and gives it the power to determine the qualifications for itself. If they determine that a given member no longer meets those qualifications, that member no longer meets them - that's axiomatic.

That doesn't mean that Monserrate won't fight - evidence indicates he will - but that wouldn't be on grounds that the legies don't have the power to throw him out, but because of what his people are calling double jeopardy.

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by: Michael Bouldin @ Wed Jan 13, 2010 at 14:30:06 PM UTC

Monserrate's weird tactic (4.00 / 1)

The Daily News reports that Monserrate's attorney, Joseph Tacopina, plans to file a lawsuit as soon as the committee report is released.

The weird part is that he reportedly plans to file a suit in federal court.  In federal court, the claim would have to be based on the U.S. Constitution, not state law or the state Constitution.  I have no idea what part of the U.S. Constitution Tacopina plans to base his suit on, and this move seems to me to be truly weird.

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by: Dan Jacoby @ Wed Jan 13, 2010 at 14:36:33 PM UTC

Double Jeopardy (0.00 / 0)

I read somewhere that Monserrate's attorney was going to make a 5th amendment double jeopardy claim (which of course is incorporated to the states through the 14th amendment due process clause)

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by: stevenman5000 @ Wed Jan 13, 2010 at 19:42:44 PM UTC

[ Parent ]

That's mind bogglingly stupid. (0.00 / 0)

Being expelled from the State Senate isn't a form of judicial punishment any more than a baseball player being thrown off a team for using steroids is.  

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by: Adama D. Brown @ Thu Jan 14, 2010 at 05:28:39 AM UTC

[ Parent ]