Former Senator Monserrate's Shaky Defense

Good analysis (4.00 / 2)

I expect this case to be dismissed very shortly

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by: Roatti @ Fri Feb 12, 2010 at 22:04:18 PM UTC

Not convincing (0.00 / 0)

Expulsion is, as you say, a parliamentary rather than a judicial matter.  The question of whether the Senate has the right to expel one of its own, and if so, whether they did it the right way, is still open.  Some counter-arguments to your claims:

1. The U.S. Constitution doesn't serve as precedent for the state Constitution or state law.  There is nothing in the state Constitution that allows the Senate to expel one of its own.  There used to be such a provision, but it was removed in the early 19th century.
2. You're confusing Monserrate's refusal to give his own statement with the denial of his (presumed) right to cross-examine the witnesses against him, something that applies to both criminal and civil proceedings.
3. We may, in our mind, vote party lines, but we pull the lever for individuals.  Furthermore, individuals may switch party allegiances and not be expelled; Olga Mendez comes to mind as an example.  She was defeated at the polls the next time out, but not expelled.  The rest of that paragraph is irrelevant.
4. The committee report, based on which the expulsion vote was taken, was to a great degree about something for which he was acquitted.  Whether we believe a proper investigation and prosecution would have resulted in a conviction is irrelevant.  The misdemeanor for which he was convicted is not one that is legitimate cause for expulsion; if it were, the law would say so -- hence Espada's bill.

I firmly believe that Monserrate should not be an elected official.  I also believe that the way he was elected -- with nobody else on the ballot, even in the general election -- is hideously wrong.  But we are supposed to be a nation, and a state, of laws, not of people's opinions.  That means sometimes we have to hold our noses and accept things we despise, including Sarah Palin's constant idiocy, followed by Glenn Beck, Sean Hannity and the rest of that gang -- and also, until the next election, Hiram Monserrate.

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by: Dan Jacoby @ Fri Feb 12, 2010 at 22:31:04 PM UTC

I don't think it's so open (4.00 / 3)

legislatures have had the right to expel their own members in almost every state since the founding of our country- if there was a first amendment right held by the expelled individuals, it would have been flushed out by now.  We are a nation of laws, but much of these laws are written based on the opinions of elected officials. Monseratte's expulsion is legal and constitutional.  I expect the court to rule this way very shortly.  I know Norman Siegel's your guy, but his legal argument is dead wrong on this one.  

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by: Roatti @ Fri Feb 12, 2010 at 22:48:16 PM UTC

[ Parent ]

My guy (0.00 / 0)

I believe that a legislative body should have the authority to expel a member who has crossed a line.  One general question is where to draw the line.  Another question is whether the New York state Constitution, and the laws under it, allow our legislature to do so.

Bear in mind that in New York any legislator who is convicted of a felony is automatically expelled.  This is true even if that conviction is overturned on appeal -- the legislator is already out.  If a conviction is overturned, then the now-former legislator could run for his or her old office, but cannot simply reclaim that office.  Justice?  Not perfect, but as good as we're going to get.

The next question is the general one -- where is the line?  I don't propose to debate that in full here; I do agree, however, that wherever it is, Monserrate has crossed it.  For that matter, so (in my view) has Espada; creating a no-show job for your son is over the line.  But Espada has not been expelled, and as far as I can tell there is not only no formal movement to do so, but he is still the Majority Leader.  Justice?  No!

This brings up the question of whether the state Constitution provides a means under which the legislature can set up §3 of Legislative Law, which provides for possible expulsion (presumably by majority vote, although the law doesn't say) after a committee review.  It also brings up the question of whether §3 of Legislative Law provides a legitimate means of expelling a member.  Finally, even if §3 of Legislative Law is constitutional, and if this particular law is legitimate, has it been properly followed?

Personally, I believe that the answer to the first and third questions is "no," while the answer to the second question is probably "yes."

1. As I stated before, the state Constitution used to have a provision under which legislators could expel a member.  (The U.S. Constitution always has had such a provision for members of Congress; it's Article 1, Section 5, clause 2.)  But the provision in the state Constitution was removed, which says something specific -- that whoever wrote the Constitution decided to remove the ability of either house of the state legislature to expel a member.  We need not question why it was done; it is enough that it was done and never (to date) undone.  The law, therefore, has no constitutional basis.


2. This section of legislative law reads, "Expulsion of members.  Each house has the power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made."  Um ... how exactly can the legislative house utilize this power?  Note that the U.S. Constitution requires a two-thirds vote.  This is a weak argument that the law is too vague to be enforced; the U.S. Constitution also gives each house of Congress the power to "punish its Members for disorderly Behaviour," but doesn't say how; yet Congress has occasionally reprimanded or censured its own members under this provision.  So I believe that this law, if it were constitutional, would be considered to be providing sufficient legitimate means to expel a member.


3. The law has not been followed.  What are the charges against Monserrate?  That he committed a crime for which he was acquitted?  Pul-leeze!  That he switched party allegiances, twice?  That's not even close to being a legitimate ground for any kind of punishment.  That he committed a misdemeanor?  Sorry, but there are other legislators who have been convicted of similar level misdemeanors in the past and not expelled.  The real problem, however, is twofold:  a) That we don't really know what specific charges are the grounds for expulsion; b) That Monserrate wasn't given the opportunity to answer to specific charges, because there were no specific charges.  You can't say, "We're thinking of punishing you for ... well, for a variety of things; now defend yourself from the charges."  That's ridiculous!

The long and short of it is that even if the law is constitutional (and that's highly debatable at best) it wasn't followed in a reasonable manner.  Politics got in the way of policy.  The problem is not that Hiram Monserrate was voted off the island; the problem is that anyone who pisses off enough members can also be voted out.

Back in the early years of his tenure in the Senate, Eric Schneiderman managed to piss off Joe Bruno, for which there was administrative punishment.  Imagine if instead of taking his anger out on Sen. Schneiderman privately, Bruno went to his caucus, which was in the majority, and said, "We need to get rid of this guy, so I want to convene a special committee, composed mostly of Republicans, to say that he has behaved badly and brought disrepute on the Senate, and then we'll have a vote to expel him."

That's what has happened to Hiram Monserrate.  And it's wrong.

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by: Dan Jacoby @ Fri Feb 12, 2010 at 23:52:32 PM UTC

[ Parent ]

erased comments? (0.00 / 1)

So when the number of comments is greater than actual comments displayed it means you deleted the other comments, correct? Raw censorship? Hear no blasphemy, see no blasphemey, speak no blasphemey? Only those percieved as being absolute yes people for the blog poster and democratic reactionary partisan hacks will be allowed to comment here?  

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by: michealmix @ Fri Feb 12, 2010 at 22:50:01 PM UTC

It means several people think you are an idiot (4.00 / 2)

It takes more than one troll rating to hide a comment.  

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by: Roatti @ Fri Feb 12, 2010 at 22:53:42 PM UTC

[ Parent ]

BTW, there's a sane, respectful way to disagree (4.00 / 1)

For example, Dan Jacoby's opinion on this is a minority opinion on this site, but no one's troll-rating him because he states his argument respectfully and doesn't start throwing out random attacks on people.  

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by: Roatti @ Fri Feb 12, 2010 at 22:57:29 PM UTC

[ Parent ]

No. (0.00 / 0)

There are trollratings, which trusted users employ to hide comments that are disruptive, off-topic or otherwise worthless. I can see your entire output, buddy, and it's not really a great gain.

Coincidentally, it's 'blasphemy' and 'perceived'.

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by: Michael Bouldin @ Sat Feb 13, 2010 at 00:55:49 AM UTC

[ Parent ]

interesting thoughts (0.00 / 0)

I am a lot more familiar w/ fed law than NY state law.  However, the Courts on both levels give great deference to the decisions, actions and rules of legislative bodies with  unless the action is unconstitutional. The grounds of the suit are based on the 14th Amend due process clause.

I agree than any political grounds for removing Monserrate, i.e. that he switched parties, has no merit in the court of law. However, Monserrate was given convicted of a misdemeanor and an ethics committee of the State Senate believed that being charged with that crime was enough for expulsion. While I agree that it is hypocritical for the Senate to remove Monserrate for a misdemeanor while other Senators with misdemeanors continue to serve in office, that is still the legislature's decision. As an elected representative of the people, the people of Monserrate's district are not being deprived of representation, with a special election being called according to NYS rules.

If the courts were to overturn the expulsion, it would send a dangerous precedent in which the courts would be able to review the rules of the State Senate and how it conducts it business on an ethics committee level.  

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by: Dan Levin @ Sat Feb 13, 2010 at 20:03:16 PM UTC

Great Analysis (0.00 / 0)

As a daily observer of the Senators during session, I must say that the behavior of Senator Monserrate on the floor, off the floor and in front of the cameras is embarrassing. Sure, he was a dumb follower in last year's coup but that doesn't excuse his lack of good judgement. I believe that this expulsion is largely a result of his behavior last summer and I don't have a problem with that. He betrayed his public....besides being a domestic abuser.

As for robbing his constituents of his representation...a representation they voted in favor of...hogwash. An informed voter would NEVER be in favor of placing this morally challenged character in a position to make "good" decisions on their behalf. Sometimes we must protect people from themselves. Yes, it's a slippery slope but I'm willing to start this slide for Monserrate.

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by: AlbanyCitizenOne @ Sat Feb 13, 2010 at 22:27:37 PM UTC

The voters have been deprived of a choice all year (0.00 / 0)

It should be noted that in 2008 Monserrate was the only one on the ballot.  There was no primary, and nobody else in the general election.  The fact that so many legislators are "elected" only in the sense that they got most of the votes, but only because they were the only ones on the ballot, is a pestilence on the American political scene.

Dan Levin's point about courts being loath to overturn actions of a legislature, particularly with regard to internal practices, is very well taken; if the court doesn't reinstate Monserrate it will probably be for that reason.

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by: Dan Jacoby @ Sat Feb 13, 2010 at 22:41:21 PM UTC