United States District Court Southern District of New York

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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HIRAM MONSERRATE, individually and as an Docket No. elected official and member of the Civ. (__) New York State Senate, CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13th Senatorial District,

Plaintiffs,

-against- COMPLAINT

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 T. 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.

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Plaintiffs HIRAM MONSERRATE, individually and as an elected official and member of the New York State Senate, and CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LOREnA HENDERSON,

MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the

New York State 13th Senatorial District, by their attorneys, NORMAN SIEGEL, ESQ. and McLAUGHLIN & STERN, LLP, as and for their COMPLAINT against the defendants, allege the following:

PRELIMINARY STATEMENT

1. This is a civil rights action to vindicate plaintiffs' rights under the First and

Fourteenth Amendments of the Constitution of the United States, the Civil Rights Acts,

42 U.S.C. 1983, and Article I, Sections 6 and 8 of the New York State Constitution.

2. This is a case of first impression and raises substantial questions concerning what a constitutional democracy is all about. The plaintiffs' rights have and continue to be violated because the New York State Senate unconstitutionally and illegally expelled plaintiff Senator Hiram Monserrate from the New York State Senate.

3. The defendants did not have the constitutional or legal authority to expel

Senator Monserrate from office against the will of the people and even if they did have the power to expel him, the "ad hoc" nature of how they did so was in violation of his due process rights under the Fourteenth Amendment of the Constitution of the United

States and Article I, Section 6, of the New York State Constitution. Moreover, the expulsion of Senator Monserrate by defendants violated the voting rights of the plaintiffs under the First and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 6 and 8, of the New York State Constitution.

2 4. The plaintiffs herein seek, among other things, a declaration of their rights and a preliminary and permanent injunction enjoining the defendants from enforcing and implementing the expulsion of Senator Monserrate from his duly elected office of a

New York State Senator and plaintiffs from being unconstitutionally disenfranchised by, in effect, nullifying their right to vote for the person of their choice to represent them in the New York State Senate.

JURISDICTION AND VENUE

5. This Court has jurisdiction of the action pursuant to 28 U.S.C. 1331,

1342(3), 1343(3), and 1343(4) as this is a civil action arising under the United States

Constitution and the laws of the United States. This Court has jurisdiction over the supplemental claims arising under New York State law pursuant to 28 U.S.C. 1367(a).

6. Venue properly lies in this judicial district pursuant to 28 U.S.C. 1391 (b) because defendants ERIC T. SCHNEIDERMAN and DAVID A. PATIERSON reside in

New York, New York.

PARTIES

7. HIRAM MONSERRATE, individually and as a member of the New York

State Senate (hereinafter referred to as "SENATOR MONSERRATE"), on November 4,

2008, was elected to serve as Senator to the New York State Senate for a two-year term representing the 13th Senatorial District of the State of New York. Meeting all of the required qualifications under law, SENATOR MONSERRATE was sworn into office and seated as a New York State Senator on January 7,2009. Prior to entering the New

York State Senate, SENATOR MONSERRATE served as a United States' Marine, a

3 police officer with the New York City Police Department where he was a founding member of the Latino Officers' Association, and the first and only NYPD police officer to serve on the statewide board of the New York Civil Liberties Union. SENATOR

MONSERRATE made history in 2001 when he became the first Latino elected to public office in Queens County, winning a seat representing the 21 st Council District of

Corona, East Elmhurst, Elmhurst and Jackson Heights, and spent seven years as a council member.

8. CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA

BEY, REV. NANCY TORRES, LOREnA HENDERSON, and MALIKAH K. SHABAZZ are individuals residing in the 13th Senatorial District who voted for SENATOR

MONSERRATE on November 4, 2008. They are suing in their individual capacities and as duly registered and qualified voters in the 13th Senatorial District who voted for

SENATOR MONSERRATE to represent them in the New York State Senate. The 13th

Senatorial District is composed of the neighborhoods of Corona, East Elmhurst,

Elmhurst, Woodside and Jackson Heights, all located in Queens County, and its constituency is approximately 88% minority (predominately of Hispanic origin).

9. Defendant THE NEW YORK STATE SENATE (hereinafter referred to as the "SENATE") is one of two houses in the New York State Legislature authorized by the New York State Constitution and has members each elected to two-year terms. There are currently 62 Senators sitting in the Senate, each elected from single-member constituencies equal in population. The Senate may propose and enact resolutions within the limits of the Federal Constitution, federal statutes and the

4 New York State Constitution. On February 9,2010, the SENATE expelled SENATOR

MONSERRATE from his duly elected office.

10. Defendant MALCOLM A. SMITH, is sued in his official capacity as

Temporary President of the New York State Senate (hereinafter referred to as

"SENATOR SMITH") is the Temporary President of the Senate. The Lieutenant

Governor is the Senate's President in, for the most part, a ceremonial capacity. After each election, however, the Senate elects from among its members a Temporary

President who serves a two-year term. Traditionally, the Temporary President is the ranking Senator of the majority political party (common referred to as the "Majority

Leader"). It is the duty of the Temporary President to direct and guide the business of the Senate, appoint Senate committees, name Senate employees and perform or delegate to another Senator the duties of the President during the Lieutenant

Governor's absence from the Senate Chamber. SENATOR SMITH resides in the State of New York.

11. Defendant ANGELO J. APONTE, is sued in his official capacity as

Secretary of the New York State Senate (hereinafter referred to as "SECRETARY

APONTP). The Secretary of the New York State Senate is chosen by the Senate and does not have voting power. The Secretary of the Senate is responsible for overseeing the handling of bills and the oversight of, among others, the Sergeants-at-Arms, who is answerable to the Secretary. The Sergeant-at-Arms permits only authorized personnel to enter the Senate Chamber. SECRETARY APONTE resides in the State of New

York.

12. Defendant THOMAS P. DINAPOLI, is sued in his official capacity as State

5 Comptroller of the State of New York (hereinafter referred to as the "COMPTROLLER").

The COMPTROLLER is the chief fiscal officer for New York State whose responsibilities include managing and maintaining the payroll for New York State employees including, among others, SENATOR MONSERRATE. The

COMPTROLLER resides in the State of New York.

13. Defendant ERIC 1. SCHNEIDERMAN is sued, 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 (hereinafter referred to as "SENATOR

SCHNEIDERMAN") is a member of the New York State Senate and represents the 31 st

Senatorial District covering areas of Manhattan and the Bronx. SENATOR

SCHNEIDERMAN was the 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 (hereinafter referred to as the "Select Committee"). In his role as Chair of the Select Committee, SENATOR SCHNEIDERMAN issued a press release on January 14, 2010 recommending that SENATOR MONSERRATE be expelled from the New York State Senate, which stated "[t]he [Select] Committee concluded that 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." The Select Committee consisted of nine Senators (less than 15% of the total SENATE). SENATOR SCHNEIDERMAN resides in the State of New York, County of New York.

6 14. DAVID A. PATIERSON, is sued in his official capacity as Governor of the

State of New York (hereinafter referred to as the "GOVERNOR"). The GOVERNOR is the chief executive of the State of New York and pursuant to Section 42 of the New

York State Public Officers Law, is empowered to issue a Proclamation calling a for

Special Election to fill a vacancy in the Senate (hereinafter referred to as a "Special

Election Proclamation"). On February 9,2010, he did so and scheduled a Special

Election for March 16, 2010 to fill SENATOR MONSERRATE's Senate seat. The

GOVERNOR resides in the State of New York, County of New York.

15. Defendant RICHARD RAVITCH is sued in his official capacity as

Lieutenant Governor of the State of New York and as the official President of the New

York State Senate. The Lieutenant Governor is the second highest ranking official in the government of New York. In addition to serving as President of the State Senate, the Lieutenant Governor serves as acting governor in the absence of the governor from the state or the disability of the governor, or to become governor in the event of the governor's death, impeachment or resignation. Additional statutory duties of the

Lieutenant Governor are to serve on the Court of Impeachments, the State Defense

Council, and on the Board of Trustees of the College of Environmental Science and

Forestry. Defendant Richard Ravitch resides within the State of New York.

16. Defendant LORRAINE CORTES-VAZQUEZ is sued in her official capacity as Secretary of State for the State of New York (the "SECRETARY OF STATE"). The

SECRETARY OF STATE is the keeper of the oath of office and is the official record keeper for the State of New York. The February 9, 2010 Resolution expelling

SENATOR MONSERRATE was forwarded to the SECRETARY OF STATE for

7 recording. The SECRETARY OF STATE is a resident of the State of New York.

STATEMENT OF FACTS

17. On Election Day, November 4,2008, SENATOR MONSERRATE was elected to serve a two-year term in the SENATE representing the people of the 13th

Senatorial District (the neighborhoods of Corona, East Elmhurst and Jackson Heights located in Queens County, New York). SENATOR MONSERRATE received more than

66% of the vote in his district representing more than 41,000 voters. On December 19,

2008, prior to being sworn-in and seated as a Senator, SENATOR MONSERRATE was involved in an incident with Karla Giraldo ("Ms. Giraldo"). SENATOR MONSERRATE took Ms. Giraldo to the hospital that same day and while she was being treated,

SENATOR MONSERRATE was arrested at the hospital on the suspicion that he had assaulted her.

18. On January 7,2009, SENATOR MONSERRATE took the oath of office and was seated by the SENATE as having met all of the constitutional and statutory qualifications of a New York State Senator.

19. On March 23, 2009, a Queens County Grand Jury indicted SENATOR

MONSERRATE on six counts (three felonies and three misdemeanors) all in connection with the incident with Ms. Giraldo that occurred on December 19, 2008.

8 20. On September 18, 2009, SENATOR MONSERRATE waived his right to a jury trial and agreed to a bench trial before the Honorable William M. Erlbaum, Justice of the Supreme Court, Queens County.

21. On October 15,2009, Justice Erlbaum acquitted SENATOR

MONSERRATE of all charges except for the sixth count of the indictment

(misdemeanor reckless assault). This conviction is currently under appeal with the

Appellate Division, Second Department.

22. On November 9,2009, the SENATE adopted Resolution 3409. The resolution established a Select Committee to "Investigate The Facts And

Circumstances Surrounding The Conviction of Senator Hiram Monserrate".

Approximately five months earlier, on June 8, 2009, SENATOR MONSERRATE was involved in what has been labeled a "parliamentary coup," an incident which gave the minority Republican Party control of the SENATE. SENATOR MONSERRATE was then asked to return to the Democratic caucus, and did so approximately a week later, after changes in leadership had occurred. SENATOR MONSERRATE's involvement with the parliamentary coup upset certain members of the Democratic Caucus. When the issue of SENATOR MONSERRATE's expulsion was first raised, several Senators expressed the view to SENATOR MONSERRATE that the establishment of the Select

Committee, and the expulsion resolution, were both in retaliation for his involvement in the parliamentary coup. This same view was publicly expressed at the time of the expulsion vote.

9 23. The Select Committee's role did not include inquiry into the criminal charges against SENATOR MONSERRATE. The Select Committee specifically

reported that "[i]t is not the mandate of the Select Committee to revisit the allegations for which Senator Monserrate was acquitted or to conduct a second 'trial"'. Moreover, the Select Committee stated that it did not base its decision "on the fact of his misdemeanor conviction". Rather, the Select Committee ultimately based its' decision on "the totality of the facts and circumstances" and its subjective belief that SENATOR

MONSERRATE's private conduct prior to becoming a New York State Senator

"damages the integrity and the reputation of the New York State Senate and demonstrates a lack of fitness to serve in this body."

24. The Select Committee was required to conduct a "full and fair investigation". However, the term "full and fair" was not defined and did not set forth any procedure or standard to be followed to ensure its fairness. Resolution 3409 merely stated that a "full and fair" investigation and hearing process should provide

"Senator Monserrate and his counsel with notice of all public committee proceedings, as well as ensuring opportunities for Senator Monserrate to be heard". No specific charges were filed against SENATOR MONSERRATE that could have led to his expulsion from the SENATE. No provisions were made and no opportunity was provided for SENATOR MONSERRATE to hear the evidence submitted and/or confront all the witnesses against him or cross-examine them before the Select Committee.

Similarly, no provisions were made and no opportunity was provided for SENATOR

MONSERRATE to confront and cross-examine witnesses or present evidence before

10 the full SENATE. There was no specific mention or notice in Resolution 3409 that the

Select Committee's "investigation" could lead to SENATOR MONSERRATE's expulsion from the Senate.

25. On December 4, 2009, Justice Erlbaum based upon the misdemeanor conviction sentenced SENATOR MONSERRATE to three years probation, 250 hours of community service, one year of counseling and a $1,000 fine plus mandatory surcharges. Justice Erlbaum also entered a five year order of protection without prejudice ordering that SENATOR MONSERRATE refrain from any contact with Ms.

Giraldo.

26. On January 12, 2010, the Select Committee submitted a Report to the full

Senate recommending that SENATOR MONSERRATE be expelled from the Senate or, in the alternative, censure with revocation of privileges.

27. On February 9,2010, the SENATE voted to expel SENATOR

MONSERRATE from the SENATE. The expulsion was swift and in summary fashion.

There was no debate, no hearing, no charges and no opportunity for SENATOR

MONSERRATE to present evidence to the full SENATE.

FIRST CAUSE OF ACTION

(VIOLATION OF VOTING RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENTS OF THE CONSTITUTION OF THE UNITED STATES)

28. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

11 29. Defendant SENATE, on February 9,2010, passed a Resolution expelling

SENATOR MONSERATIE from the SENATE. The expulsion of SENATOR

MONSERRATE violated the voting rights of the plaintiffs as registered and qualified

voters in Queens County by infringing upon their right to vote for the person of their

choice and the right of SENATOR MONSERRATE to hold office to which the plaintiff-

voters elected him, all in violation of the First and Fourteenth Amendments of the

Constitution of the United States.

SECOND CAUSE OF ACTION

(VIOLATION OF 42 U.S.C. 1983 FAILURE TO PROVIDE A NAME CLEARING HEARING)

30. Plaintiffs repeat and reallege each and every allegation set forth

above as if set forth in full herein.

31. SENATOR MONSERRATE has a liberty interest in his good name under the Fourteenth Amendment of the Constitution of the United States.

32. The SENATE and the Select Committee therein through its Chairman

SENATOR SCHNEIDERMAN violated SENATOR MONSERRATE's constitutionally

protected liberty interest by expelling him from the Senate while stigmatizing his good

name without due process of law by publicly stating that he was convicted of domestic violence, that he was not credible, and that he was unfit to be a member of the Senate,

all of which are false.

33. The SENATE and SENATOR SCHNEIDERMAN failed to provide

12 SENATOR MONSERRATE with the constitutionally required pre-deprivation hearing

(commonly referred to as a "name clearing hearing") to give SENATOR MONSERRATE a fair opportunity to clear his name prior to his expulsion from the Senate.

34. The SENATE and SENATOR SCHNEIDERMAN adopted the stigmatizing charges against SENATOR MONSERRATE as a basis for his expulsion from the

Senate which is commonly referred to as "stigma-plus" (the "stigma" was being called a domestic abuser, incredulous, and unfit to serve, while the "plus" was expulsion from the SENATE). The SENATE voted to expel SENATOR MONSERRATE based upon the stigmatizing statements made against him without a pre-deprivation hearing as required by the Due Process Clause of the Constitution of the United States.

THIRD CAUSE OF ACTION

(VIOLATION OF THE FIRST AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES)

35. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

36. SENATOR MONSERRATE has a First Amendment Right under the

Constitution of the United States to express his opinion and to associate with members of the SENATE without penalty, prejudice or adverse inference imposed by the State of

New York or its political subdivisions including, inter alia, the SENATE and its members including SENATOR SMITH and SENATOR SCHNEIDERMAN.

37. SENATOR MONSERRATE exercised his freedom of speech and association, in a non-disruptive manner, by being part of the "parliamentary coup" and

13 commenting to the media that the Select Committee processes led by SENATOR

SCHNEIDERMAN, among other things, was unfair and constitutionally defective.

38. SENATOR MONSERRATE's speech and association were addressed to matters of public concern.

39. The Select Committee and the SENATE including SENATOR

SCHNEIDERMAN and SENATOR SMITH drew adverse inferences against SENATOR

MONSERRATE based upon his media statements and association with certain political parties on matters of public concern.

40. In fact, the Select Committee led by SENATOR SCHNEIDERMAN had a separate section in its report entitled "Senator Monserrate's Interviews and the Media".

41. The Select Committee, SENATOR SCHNEIDERMAN, SENATOR SMITH as well as the SENATE were improperly motivated to expel SENATOR MONSERRATE based upon his constitutionally protected First Amendment opinion and association rights on matters of public concern.

42. SENATOR MONSERRATE's personal viewpoints regarding the Select

Committee and SENATOR SCHNEIDERMAN's processes and his association with certain political parties should not have entered into the Select Committee and

SENATE's analysis and determination to expel him.

43. SENATOR MONSERATIE's statements concerning the SENATE's processes surrounding his expulsion and his association with certain political parties were motivating factors used by the Select Committee, SENATOR SCHNEIDERMAN,

14 SENATOR SMITH and the SENATE to expel him. On the night of his expulsion, the

"parliamentary coup" was publicly raised as the cause for his expulsion.

44. The Select Committee, SENATOR SMITH, SENATOR SCHNEIDERMAN and the SENATE violated SENATOR MONSERRATE's First Amendment Right.

FOURTH CAUSE OF ACTION

(VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14th AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES)

45. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

46. On February 9, 2010, the SENATE passed a Resolution expelling

SENATOR MONSERRATE from the SENATE.

47. The New York State Constitution does not permit the expulsion or removal of any New York State Senator from the SENATE.

48. The State of New York, during one of its Constitutional Conventions in

1821, specifically repealed a provision therein enabling the SENATE to expel one of its members.

49. It is repugnant to the rule of law to permit the SENATE to expel

SENATOR MONSERRATE when that legislative power was specifically repealed in

1821.

50. The February 9,2010 Resolution to expel SENATOR MONSERRATE is not authorized by the New York State Constitution and thereby violates the due process clause of the 14th Amendment of the Constitution of the United States.

FIFTH CAUSE OF ACTION

15 (VIOLATION OF THE PROCEDURAL DUE PROCESS CLAUSE OF THE 14th AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES)

51. Plaintiffs repeat and reallege each and every allegation set forth above as

if set forth in full herein.

52. The New York State Constitution does not provide for expulsion of a New

York State Senator or any grounds for such action.

53. Similarly, New York State Legislative Law §3 does not provide any

standard for grounds for expulsion of a New York State Senator.

54. The absence of any standard for the grounds for expulsion in Legislative

Law §3 violates the due process clause of the Fourteenth Amendment of the

Constitution of the United States in so far as New York State Legislative Law §3 is void for vagueness and void for over-breadth.

SIXTH CAUSE OF ACTION

(VIOLATION OF VOTING RIGHTS UNDER ARTICLE I, SECTIONS 8 and 11, OF THE NEW YORK STATE CONSTITUTION)

55. Plaintiffs repeat and reallege each and every allegation set forth above as

if set forth in full herein.

56. Defendant SENATE, on February 9,2010, passed a Resolution expelling

SENATOR MONSERATIE from the SENATE.

57. Defendant SENATE's expulsion of SENATOR MONSERRATE on

February 9, 2010 violated the voting rights of the plaintiffs as registered and qualified voters in Queens County by infringing upon their right to vote and the right of

16 SENATOR MONSERRATE to hold office to which the plaintiff-voters elected him, all in violation of Article I, Sections 8 and 11, of the New York State Constitution.

SEVENTH CAUSE OF ACTION

(VIOLATION OF ARTICLE I, SECTION 8 OF THE NEW YORK STATE CONSTITUTION)

58. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

59. SENATOR MONSERRATE has freedom of speech rights under the New

York State Constitution to express his opinion without penalty, prejudice or adverse inference imposed by the State of New York or its political subdivisions including, inter alia, the SENATE, Select Committee, SENATOR SMITH and SENATE

SCHNEIDERMAN.

60. SENATOR MONSERRATE exercised his freedom of speech and commented to the media that the Select Committee processes, among other things, were unfair.

61. The Select Committee and the SENATE drew adverse inferences against

Senator Monserrate based upon his media statements.

62. In fact, the Select Committee had a separate section in its report entitled

"Senator Monserrate's Interviews and the Media".

63. The Select Committee as well as the SENATE considered SENATOR

MONSERRATE's opinion as part of his alleged lack of fitness.

17 64. SENATOR MONSERRATE's personal and non-disruptive viewpoints

regarding the Select Committee and SENATE's processes should not have entered into the Select Committee and SENATE's analysis and determination to expel him.

65. The Select Committee and the SENATE violated SENATOR

MONSERRATE's right to express his opinions by using his constitutionally protected opinions on matters of public concern as a motivating factor to expel him.

EIGHTH CAUSE OF ACTION

(VIOLATION OF ARTICLE I, SECTION 6, OF THE NEW YORK STATE CONSTITUTION)

66. Plaintiffs repeat and reallege each and every allegation set forth above as

if set forth in full herein.

67. On February 9,2010, the SENATE passed a Resolution expelling

SENATOR MONSERRATE from the SENATE.

68. The New York State Constitution does not permit the expulsion or removal of any New York Senator from the SENATE.

69. The February 9,2010 Resolution expelling SENATOR MONSERRATE is not authorized by the New York State Constitution and thereby violates the due process clause of Article I, Section 6, of the New York State Constitution.

NINTH CAUSE OF ACTION

(VIOLATION OF DUE PROCESS CLAUSE OF ARTICLE I, SECTION 6, OF THE NEW YORK STATE CONSTITUTION)

70. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

18 71. The New York State Constitution does not provide for expulsion of a New

York State Senator or any grounds for such action. Similarly, New York State

Legislative Law §3 does not provide any standard for grounds for expulsion of a New

York State Senator.

72. The absence of any standard for the grounds for expulsion in New York

State Legislative Law §3 violates the due process clause of Article I, Section 6, of the

New York State Constitution in so far as New York State Legislative Law §3 is void for vagueness and void for over-breadth.

TENTH CAUSE OF ACTION

(NON-CONFORMANCE WITH SECTION THREE OF THE NEW YORK STATE LEGISLATIVE LAW)

73. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

74. New York State Legislative Law §3 provides that "Each house has the full power to expel any of its members, after the report of a committee to inquire into the charges against him shall have been made." (Emphasis added).

75. On November 9,2009, the SENATE adopted Resolution 3409 establishing the Select Committee "which was authorized and directed to investigate the facts and circumstances relating to the conviction against Senator Monserrate." No specific charges were ever brought against SENATOR MONSERRATE. No explicit notice was ever given to SENATOR MONSERRATE that he could possibly be expelled from the Senate as a result of the Select Committee's investigation.

19 76. The Select Committee was not authorized and in fact did not meet the specific requirements of New York State Legislative Law §3 in that the Select

Committee did not at any time give SENATOR MONSERRATE notice of any charges filed against him that could be grounds for his expulsion from the SENATE.

ELEVENTH CAUSE OF ACTION

(VIOLATION OF NEW YORK LEGISLATIVE LAW SECTION 3)

77. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

78. New York State Legislative Law §3 does not provide for the expulsion of duly elected New York State legislators for private conduct that occurred prior to taking office.

79. The SENATE unlawfully expelled SENATOR MONSERRATE for private conduct which occurred prior to him taking office.

80. The SENATE expelled SENATOR MONSERRATE in violation of New

York State Legislative Law §3.

TWELFTH CAUSE OF ACTION

(VIOLATION OF ARTICLE XIII, SECTION 5, OF THE NEW YORK STATE CONSTITUTION)

81. Plaintiffs repeat and reallege each and every allegation set forth above as if set forth in full herein.

82. New York State Constitution, Article XIII, Section 5, states that "Provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative and who

20 shall be elected at general elections, and also for supplying vacancies created by such

removal."

83. The New York State Constitution does not provide authority for the

SENATE to expel one of its members, who are "officers .... whose powers and duties

are ... legislative." Therefore, the SENATE unlawfully expelled SENATOR

MONSERRATE in violation of the New York State Constitution.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs request the following relief:

1. That this Court enter a preliminary and permanent injunction prohibiting

the defendants from (a) enforcing and implementing the February 9,2010 Resolution

expelling SENATOR HIRAM MONSERRATE from the NEW YORK STATE SENATE;

(b)holding a Special Election on March 16th in the 13th Senatorial District of the State

of New York in connection with the expulsion of SENATOR HIRAM MONSERRATE; (c)

removing SENATOR HIRAM MONSERRATE from the payroll of the State of New York

in connection with his role as Senator of the 13th Senatorial District of the State of New

York

2. That this Court issue a declaratory judgment that defendants violated

SENATOR MONSERRATE's rights as a duly elected New York State Senator from the

13th Senatorial District of the State of New York and the voting rights of plaintiffs

CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV.

21 NANCY TORRES, LORETTA HENDERSON, and MALIKAH K. SHABAZZ under the

First and Fourteenth Amendments of the Constitution of the United States and Article I,

Sections 8 and 11, of the New York State Constitution and further that SENATOR

MONSERRATE's rights were violated under the due process clauses of the United

States Constitution and Article I, Section 6, of the New York State Constitution, and

under the First Amendment of the Constitution of the United States and Article I,

Section 8, of the New York State Constitution, and under New York State Legislative

Law§3;

3. That this Court order the defendants to pay back-pay to SENATOR

MONSERRATE and costs and reasonable attorneys' fees pursuant to 42 U.S.C. 1988; and

4. That this Court order any further relief that it deems appropriate.

Dated: New York, New York February 10, 2010

NORMAN SIEGEL { ;,(P{fQJ 260 Madison Avenue n J. Hya New York, NY 10016 Alan E. Sash (212) 532-7586 260 Madison Avenue New York, NY 10016 (212) 448-1100

22 UNITED STATES DISTRlCT COURT SOUTHERN DISTRlCT OF NEW YORK ------)(

HIRAM MONSERRATE, individually and as an Docket No. elected official and member ofthe New York State Senate, Clv. ('--_-') CELESTE RODRlGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERlC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15,2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RlCHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION CELESTE RODRIGUEZ, being duly sworn, deposes and says under penalty of perjury that:

1. I am one of the voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13th Senatorial District in the State of New York.

2. I am a duly registered and qualified voter in New York State and I reside

within

the 13th Senatorial District. The 13th Senatorial District is composed of the

neighborhoods of Corona, East Elmhurst and Jackson Heights, all located in Queens

County, and its constituency is approximately 88% minority (predominately of Hispanic

origin).

4. On November 4,2008, I (along with more than 41,000 other people) voted

for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office. His term was to expire on December 31, 2010.

6. As a result of his expulsion, the NEW YORK STATE SENATE comprised

of a mere 62 members disenfranchised the more than 41 ,000 people including myself who voted for HIRAM MONSERRATE. The people of the 13th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution of the United States

and the

2 New York State Constitution to have my vote counted. The expulsion of HIRAM

MONSERRATE nullified my right to vote for the person of my choice to represent me in the New York State Senate. In addition, the expulsion of HIRAM MONSERRATE leaves me and the more than 60,000 people residing in the 13th Senatorial District

(mostly minority) without representation in the New York State Senate for, at least, 30 days.

8. It is fundamentally unfair that the people of the 13th Senatorial District lose

their representation in the New York State Senate when the people in the remaining 61

Senate Districts maintain their State Senator to represent their interests in the New

York State Senate. Accordingly, I respectfully request that this Court issue a temporary restraining order and preliminary injunction enjoining the defendants from enforcing and implementing the expulsion of SENATOR HIRAM MONSERRATE from his duly elected office of a New York State Senator and his representation of me. !ltd l>t1ry CELESTE RODRIQUEZ

3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------)(

HIRAM MONSERRATE, individually and as an Docket No. elected official and member ofthe New York State Senate, Civ. (L_.J) CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15, 2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION LORETTA HENDERSON, being duly sworn, deposes and says under penalty of perjury that:

1. I am one of the voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13th Senatorial District in the State of New York.

2. I am a duly registered and qualified voter in New York State and I reside

within the 13th Senatorial District. The 13th Senatorial District is composed of the neighborhoods of Corona, East Elmhurst and Jackson Heights, all located in Queens

County, and its constituency is approximately 88% minority (predominately of Hispanic origin).

4. On November 4, 2008, I (along with more than 41,000 other people) voted

for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office. His term was to expire on December 31,2010.

6. As a result of his expulsion, the NEW YORK STATE SENATE comprised

of a mere 62 members disenfranchised the more than 41,000 people including myself who voted for HIRAM MONSERRATE. The people of the 13th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution of the United States

and the

2 New York State Constitution to have my vote counted. The expulsion of HIRAM

MONSERRATE nullified my right to vote for the person of my choice to represent me in the New York State Senate. In addition, the expulsion of HIRAM MONSERRATE

leaves me and the more than 60,000 people residing in the 13th Senatorial District

(mostly minority) without representation in the New York State Senate for, at least, 30 days.

8. It is fundamentally unfair that the people of the 13th Senatorial District lose

their representation in the New York State Senate when the people in the remaining 61

Senate Districts maintain their State Senator to represent their interests in the New

LORETTA HENDERSON

.>CA.Jf>-{ " J:,e.fi>'L. ""-IL

Of\. ...fW5 iO 111- d.aj Or

1.eA,"''''''''y, 2.0to. ~~)-W~ c~ ""... 1 >-H ~""..v a I- o«.i:J:s

ROGE:R A. DAVILA Commissioner of DeedtI City of New York - No. 4-6986 3 certificate Filed In Queens County Commission ExplreaJuly 1,2611 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------)(

HIRAM MONSERRATE, individually and as an Docket No. elected official and member ofthe New York State Senate, Civ. (,-_-,) CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15, 2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION MONIFA AFIA BEY, being duly sworn, deposes and says under penalty of perjury that

1. I am one of the voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13th Senatorial District in the State of New York.

2. I am a duly registered and qualified voter in New York State and I reside

within the 13th Senatorial District. The 13th Senatorial District is composed of the neighborhoods of Corona, East Elmhurst and Jackson Heights, all located in Queens

County, and its constituency is approximately 88% minority (predominately of Hispanic origin).

4. On November 4,2008, I (along with more than 41,000 other people) voted

for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office. His term was to expire on December 31,2010.

6. As a result of his expulsion, the NEW YORK STATE SENATE comprised

of a mere 62 members disenfranchised the more than 41,000 people including myself who voted for HIRAM MONSERRATE. The people of the 13th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution of the United States

and the

2 New York State Constitution to have my vote counted. The expulsion of HIRAM

MONSERRATE nullified my right to vote for the person of my choice to represent me in

the New York State Senate. In addition, the expulsion of HIRAM MONSERRATE

leaves me and the more than 60,000 people residing in the 13t11 Senatorial District

(mostly minority) without representation in the New York State Senate for, at least, 30

days.

8. It is fundamentally unfair that the people of the 13th Senatorial District lose

their

representation in the New York State Senate when the people in the remaining 61

Senate Districts maintain their State Senator to represent their interests in the New

3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------)(

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15,2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary ofState for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION MICHAEL A. NARDIELO III, being duly sworn, deposes and says under penalty ofperjury that:

1. I am one ofthe voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13 th Senatorial District in the State ofNew York.

2. I am a duly registered and qualified voter in New York State and I reside within the 13 th Senatorial District. The 13"' Senatorial District is composed ofthe neighborhoods of

Corona, East Elmhurst and Jackson Heights, all located in Queens County, and its constituency is approximately 88% minority (predominately ofHispanic origin).

4. On November 4, 2008, I (along with more than 41,000 other people) voted for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office.

His term was to expire on December 31, 2010.

6. As a result ofhis expulsion, the NEW YORK STATE SENATE comprised ofa mere 62 members disenfranchised the more than 41,000 people including myselfwho voted for

HIRAM MONSERRATE. The people ofthe 13 th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution ofthe United States and tpe

New York State Constitution to have my vote counted. The expulsion ofHIRAM

MONSERRATE nullified my right to vote for the person ofmy choice to represent me in the

New York State Senate. In addition, the expulsion ofHIRAM MONSERRATE leaves me and the more than 60,000 people residing in the 13"' Senatorial District (mostly minority) without representation in the New York State Senate for, at least, 30 days.

8. It is fundamentally unfair that the people ofthe 13"' Senatorial District lose their representation in the New York State Senate when the people in the remaining 61 Senate

Districts maintain their State Senator to represent their interests in the New York State Senate.

Accordingly, I respectfully request that this Court issue a temporary restraining order and preliminary injunction enjoining the defendants from enforcing and implementing the expulsion ofSENATOR HIRAM MONSERRATE from his duly elected office ofa New York State Senator and his representation ofme. fjJtiC MICHAELA. NARDIELO III

SWO((\ befo«, (VI(

Dill -liA1':' ~ c1 0,7 of fQ.t:rV'IIf, 2..D\'O. rJ

ROGER A. DAVILA Call1IrrlllD 1.Of __ ClIy ofNew YOIll· No...... CeftlIlcal8FIIed In au.-CC!Uft\Y Commission Explrw JulY 1, 2011 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------)(

HIRAM MONSERRATE, individually and as an Docket No. elected official and member ofthe New York State Senate, Civ. (L_..1) CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA APIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15,2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION MALIKAH K. SHABAZZ, being duly swom, deposes and says under penalty of perjury that:

1. I am one of the voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13th Senatorial District in the State of New York.

2. I am a duly registered and qualified voter in New York State and I reside

within the 13th Senatorial District. The 13th Senatorial District is composed of the neighborhoods of Corona, East Elmhurst and Jackson Heights, all located in Queens

County, and its constituency is approximately 88% minority (predominately of Hispanic origin).

4. On November 4, 2008, I (along with more than 41,000 other people) voted

for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office. His term was to expire on December 31,2010.

6. As a result of his expulsion, the NEW YORK STATE SENATE comprised

of a mere 62 members disenfranchised the more than 41,000 people including myself who voted for HIRAM MONSERRATE. The people of the 13th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution of the United States

and the

2 New York State Constitution to have my vote counted. The expulsion of HIRAM

(mostly minority) without representation in the New York State Senate for, at least, 30 days.

8. It is fundamentally unfair that the people of the 13th Senatorial District lose

their representation in the New York State Senate when the people in the remaining 61

Senate Districts maintain their State Senator to represent their interests in the New

MALI

3 UNITED STATES DISTRlCT COURT SOUTHERN DISTRlCT OF NEW YORK ------)(

HIRAM MONSERRATE, individually and as an Docket No. elected official and member ofthe New York State Senate, Clv. (~---') CELESTE RODRlGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against-

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DINAPOLI, in his official capacity as State Comptroller ofthe State ofNew York ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHiram Monserrate on October 15,2009, DAVID A. PATERSON, in his official capacity as Governor of the State ofNew York, RlCHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants. ------)(

DECLARATION IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION REV. NANCY TORRES, being duly sworn, deposes and says under penalty of perjury that:

1. I am one of the voter-plaintiffs in the above captioned action. HIRAM

MONSERRATE represents me in the 13111 Senatorial District in the State of New York.

2. I am a duly registered and qualified voter in New York State and I reside

within the 13th Senatorial District. The 13111 Senatorial District is composed of the neighborhoods of Corona, East Elmhurst and Jackson Heights, all located in Queens

County, and its constituency is approximately 88% minority (predominately of Hispanic origin).

4. On November 4,2008, I (along with more than 41,000 other people) voted

for

HIRAM MONSERRATE.

5. On February 9,2010, the NEW YORK STATE SENATE expelled him from office. His term was to expire on December 31, 2010.

6. As a result of his expulsion, the NEW YORK STATE SENATE comprised

of a mere 62 members disenfranchised the more than 41,000 people including myself who voted for HIRAM MONSERRATE. The people of the 13th Senatorial District should decide who represents them, not the New York State Senate. That is what a democracy is all about.

7. I understand that I have rights under the Constitution of the United States

and the

2 New York State Constitution to have my vote counted. The expulsion of HIRAM

MONSERRATE nullified my right to vote for the person of my choice to represent me in

the New York State Senate. In addition, the expulsion of HIRAM MONSERRATE

leaves me and the more than 60,000 people residing in the 13th Senatorial District

(mostly minority) without representation in the New York State Senate for, at least, 30

days.

8. It is fundamentally unfair that the people of the 13th Senatorial District lose

their

representation in the New York State Senate when the people in the remaining 61

Senate Districts maintain their State Senator to represent their interests in the New

,'\'{v. 72~I u--vJ--'J U REV. NANCY TORRES

3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

------)(

HIRAM MONSERRATE, Individually and as an elected official and member ofthe New York State Senate, CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, Individually and as duly registered and qualified voters in the New York State 13 th Senatorial District,

Plaintiffs,

-against- 10 Civ.

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO J. APONTE in his official capacity as Secretary ofthe New York State Senate, THOMAS P. DiNAPOLI, in his official capacity as State Comptroller of the State ofNew York, ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHIRAM MONSERRATE on October 15,2009, and DAVID A. PATTERSON, in his official capacity as Governor ofthe State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew York, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary ofState for the State ofNew York.

Defendants.

------)(

DECLARATION OF STEVEN J. HYMAN

Steven J. Hyman, being duly sworn, deposes and says under penalty ofperjury:

1. I am licensed to practice law in the State ofNew York and admitted to practice law before the District Court for the Southern District ofNew York.

2. I am one ofthe attorneys in this action representing that plaintiffs and make this declaration in support ofthe within motion for temporary and preliminary injunctive relief pending the determination ofthis action.

3. On the afternoon ofFebruary 10,2010, I (along with my co-counsel Norman

Siegel, Esq.) spoke with Meg Levine, Esq. and Douglas Goglia, Esq., counsel at the New York

State Attorney General's Office who represent the defendants in this action. I informed them that plaintiffs would be seeking temporary and preliminary injunctive relief before this Court on the morning ofFebruary 11,2010, that we requested their presence at Court, and then I sent them a copy ofour motion papers in the late afternoon on February 10, 2010.

4. I respectfully submit that the temporary and preliminary injunctive relief in this action be granted and that counsel for the defendants had a reasonable and fair opportunity to oppose our request for a temporary restraining order.

Dated: New York, New York February 10,2010

2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

------)(

Plaintiffs,

-against- 10 Civ.

THE NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President ofthe New York State Senate, ANGELO 1. APONTE in his official capacity as Secretary ofthe New Yark State Senate, THOMAS P. DiNAPOLI, in his official capacity as State Comptroller of the State ofNew York, ERIC T. SCHNEIDERMAN, in his official capacity as Senator ofthe State ofNew York and Chair ofthe New Yark State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction ofHIRAM MONSERRATE on October 15, 2009, and DAVID A. PATTERSON, in his official capacity as Governor ofthe State ofNew York, RICHARD RAVITCH in his official capacity as Lieutenant Governor ofthe State ofNew Yark, and LORRAINE CORTES-VAZQUEZ in her official capacity as Secretary of State for the State ofNew York.

Defendants.

------)(

DECLARATION OF HIRAM MONSERRATE

Hiram Monserrate, being duly sworn, deposes and says under penalty ofperjury:

1. I am one ofthe plaintiffs in the within action and submit this affidavit in support ofmy motion for temporary and preliminary injunctive reliefpending the determination ofthis action. For the first time in modem history in New York, the legislature has determined to expel a member who was validly elected and who met all the qualifications to be sworn in to office.

Without precedent and in derogation ofmy constitutional rights and those ofmy constituents the other plaintiffs in this action - the New York Senate has voted to expel me and prevent me from continuing to serve as the duly elected representative ofthe 13 th Senatorial District.

2. Specifically, I and the other plaintiffs seek to enjoin defendants from removing me as a state senator and barring my participation in the New York Senate. Iftemporary relief is not granted, then I will be barred from acting as the duIy elected Senator from the 13 th Senatorial

District during the current session ofthe New York legislature and the other plaintiffs, as well as all of my constituents, will be deprived ofrepresentation in that body. In addition, as a result of the Senate vote, the defendant comptroller will not pay me and more importantly, my staff or office expenses, thereby further preventing my ability to serve my constituents.

3. As more fully set forth below, I submit that temporary and preliminary relief is warranted in that: (a) plaintiffs will suffer irreparable harm to the extent that as their duly elected representative I will be prevented from representing them in the New York Senate; (b) there is a clear probability ofsuccess on the merits ofthis action or at the very least, a sufficiently serious question going to the merits to make them fair ground for litigation; (c) that on balancing ofthe equities the harm that plaintiffs will suffer far outweighs the prejudice to defendants since the status quo will simply keep me in the office to which I was elected and sworn to serve; and (d) there will be extreme or very serious damage to my constituents and my ability to serve them ifa stay and an injunction is not granted.

2 Background

4. On November 7, 2008 I was elected to be the State Senator from the 13 th

Senatorial District. I received 41,848 votes and was duly certified by the Election Board for the

upcoming two-year term. On January 7, 2008, I was sworn in and took office as the lawful and

only representative to the State Senate from my district. Since that time, I have served in such capacity and intend to continue to do so until my term is up in December 31,2010, unless I am fortunate enough to be re-elected in the up coming Democratic party primary in September 20 I0 and general election on November, 2010.

5. As a State Senator, I have represented my district by participating in the work of the Senate as a voting member and Chair ofthe Senate Consumer Affairs Committee. In addition, in order to serve my district, I have hired staffand opened offices in the community to serve my constituents. I have a local office in my district and 12 staffmembers who are paid for by the State. Ifthe vote to expel me is implemented and the Comptroller ceases to pay me and my staff, we will have to close down the office and layoffthe staff.

6. The genesis ofthis vote to expel me apparently arose when I was still a City

Councilman on December 19, 2008 and before I took office as a state senator. At that time I was arrested on charges involving an incident with Karla Giraldo ("Ms. Giraldo"). Although Ms.

Giraldo declined to press charges against me and has stated under oath that I did not intentionally assault her, I was nevertheless prosecuted, and following an indictment, stood trial in a bench trial in Queens Supreme Court in September 2009. On October IS, I was acquitted by the Court ofall felony charges and 2 misdemeanor charges but I was found guilty ofreckless violation of

3 Assault in the Third Degree, an A Misdemeanor. Significantly I was not found guilty ofany intentional infliction ofinjury to Ms. Giraldo. On December 4,2009, I was sentenced inter alia to Probation and Community Service. I have however, maintained my innocence with regard to this charge and have filed a Notice ofAppeal from the Judgment ofConviction which I intend to pursue it as expeditiously as possible. I hope and expect that this conviction will be reversed. In any event, neither these charges nor the conviction, involved any claim ofviolation ofmy oath of office. Since the underlying event occurred in December, 2008 prior to my taking the oath of office as a senator, it, ofcourse, could not have in any way involved my activities as a State

Senator.

7. The court should also be aware that in June 2009, my colleague and I were involved in what has been labeled a "parliamentary coup," an incident which gave the minority

Republican Party control ofthe Senate. I was then asked to return to the Democratic caucus, and did so approximately a week later, after changes in leadership had occurred. Apparently, my involvement with the parliamentary coup upset some members ofthe Democratic Caucus. When the issue ofmy expulsion was first raised, several Senators expressed the view to me that the establishment ofthe Select Committee, and the expulsion resolution, were both in retaliation for my involvement in the parliamentary coup. This same view was publicly expressed at the time ofthe expulsion vote. To the extent that my colleagues could exploit the absence ofdefined standards or the lack ofprocess in the expulsion vote to retaliate against me exemplifies how my rights offree association and speech under the First Amendment to the U.S. Constitution, could, and have been, trampled on.

4 The Select Committee

8. Following the announcement by the Court ofits verdict, but before imposition of sentence, the State Senate dete=ined to conduct further inquiry into the matter. On November 9,

2009 the State Senate enacted Resolution 3409 ( "the Resolution," a copy ofwhich is annexed hereto as Exhibit A). This Resolution created the "Select Committee ofthe Senate to investigate the facts and circumstances surrounding the conviction of Senator Hiram Monserrate on October

15,2009" (the "Committee").

9. Nine members ofthe Senate were selected for the Committee and defendant

Schneide=an was nominated chair. The Committee also named majority staffcounsel, Daniel

Alonso, and David Lewis, minority staff counsel.

10. At the outset, my then counsel noted our objections to the Committee including that several members ofthe Committee had already publicly indicated their predisposition against me. He also challenged the legitimacy ofthe Committee and the authority ofthe Senate to expel a sitting member for acts that occurred prior to his taking office. I also voiced my concerns about the fairness ofthe Committee publicly including in a television interview on

WNBC, a fact that the Committee later commented on unfavorably in its final Report.

11. The Resolution did not identify any charge against me nor provide for any fo=al hearing process to determine my culpability ofsuch a charge. Rather the Committee's purpose was to "investigate" the "facts and circumstances relating to [my] conviction." While the

Resolution called for a "full and fair investigation" it provided no guidelines other than I be given notice ofany public hearings and the opportunity to be heard. With no specific charges to respond to, no process for the taking ofevidence, no calling ofwitnesses, no right ofcross

5 examination, this opportunity to be "heard" was meaningless.

12. The Committee then met for six sessions between November and January and issued its final report on January 15. Although each session was convened in public, whenever the Committee met to determine the scope ofthe investigation it was considering and the evidence it wanted to consider it did so only in executive session which meant that I had no knowledge ofits proceedings at that time. Only after the release ofthe Report recommending my expulsion was I able to see the transcripts ofthese secret proceedings. Only then did I learn what the material the Committee considered and how it arrived at its conclusions. Thus until the release ofthe Report I did not know the documents or materials being reviewed or the witnesses being examined.

13. A subsequent review ofthe transcripts reveals that the staffpresented both trial evidence and other documents and material that was not part ofmy criminal trial. There was a helter-skelter review ofthe "evidence" by the Committee with the staffoffering its opinions as to the implications ofthe particular evidence at issue and Committee members asking questions.

At one point, in the last meeting before the Report was issued, stafflawyers Lee Cortes and Erica

Gersowitz recounted its interviews ofMr. Nieves and Mr. Castro with regard to an affidavit prepared by Ms. Giraldo. (See Exhibit B; Transcript ofthe Select Committee ofJanuary 11,

2010). Not only did I not know the Committee was considering hearing from these witnesses, but more importantly I had no opportunity to confront and cross examine them. Even more, the fact that the Committee did not interview these witnesses but merely accepted the summaries prepared by the staffexemplifies how far from a "full and fair" hearing the Committee had strayed.

6 14. On January 15, 2009 the Committee released its final Report (the "Report"). (A copy ofthe Report is annexed hereto as Exhibit C) The Report concludes that sanctions are warranted for several reasons: First, that "Senator Monserrate's assault on Ms. Giraldo was a crime ofdomestic violence;" second, that my statements and those ofMs. Giraldo are not

"credible;" and third, that Senator Monserrate failed to "accept responsibility for his misconduct" or "cooperate" with the work ofthe Committee. These "reasons" are not a basis for stripping me ofmy elected position and my constituents oftheir right to representation. Clearly, these recommendations made by the Committee in its Report and relied upon by the Senate in expelling me, violated my constitutional rights and the voting rights ofmy constituents.

15. Not only does the Report confirm that the process to oust me was flawed from the outset, but it also documents that my constitutional rights under the First and Fifth amendments were violated as well during the course ofthis inquiry. It appears that the Committee took umbrage at my public criticism ofthe Committee and my appearances in the media to defend myself. Under the heading SENATOR MONSERRATE FAILED TO COOPERATE WITH

THE SELECT COMMITTEE the Report makes reference to my interview with WNBC and quotes part ofmy remarks as follows: • Senator Monserrate specifically commented in a December with WNBC that, 'Well, I think that some, severalofthem including those that are on the committee today, have asked me to resign prior to knowing all the facts. And I think that really speaks to what kind ofcommittee ofinquiry this is. That people walking into the inquiry before reviewing a piece ofevidence or any type ofwitness accountings would say you should resign. That's unfortunate. Unfortunately half ofthe committee has already gone in there with a predisposed opinion. I think that speaks to the lack ofdue process ofthat committee. (Report at pp26-27)

7 In fact, the Report specifically notes elsewhere "Senator Monserrate's Interviews with the

Media" concluding that I believed the "the current process unfair." (Id at 21). In apparent further support ofits findings the Report states:

Although Senator Monserrate refused to cooperate with the Select Committee in any way, he has willingly provided the media with details relating to his misdemeanor conviction. (Id. at p.27).

It then goes on to recount some ofthe substance ofmy interview with NYlon December 8,

2010.

16. As a public official and a citizen I have both a First Amendment duty and right to publicly comment on the affairs ofthe Senate and that governmental body cannot use the substance ofmy criticism and the fact that I expressed it publicly against me in these proceedings. Clearly, my public criticism ofthe Committee and public expressions in my defense are directly attributable to the Committee's finding that I refused to "cooperate" with the

Committee. While the Committee may not agree with my comments about the process and my unwillingness to appear at one ofits sessions under the terms it set forth, it cannot link what it calls my non-cooperation to the fact that I availed myselfofmy rights under the First

Amendment.

17. The Committee is equally cavalier with my Fifth Amendment rights. At no time have I expressed to the Committee that I was invoking my Fifth Amendment right not to testifY.

My lawyers repeatedly advised the Committee ofmy objections to the process and the demands made upon me, but never did they claim that it was based upon the Fifth Amendment. Only the

Report raises this Amendment for the first time in this proceeding by linking it to my refusal to appear before them. The Report proposes the following legal argument:

8 It is well settled law that a party may invoke the Fifth Amendment's protection against self-incrimination in both civil and criminal proceedings (footnote omitted). It is equally well-settled that while a fact-finder in a criminal proceeding may not draw an adverse inference against an individual who asserts the Fifth Amendment in that criminal proceeding, (footnote omitted) a fact-finder in a civil proceeding is free to draw an adverse inference against an individual who asserts the Fifth Amendment in that civil proceeding or has asserted the Fifth Amendment in a prior civil or criminal proceeding" (footnote omitted). The Select Committee is thus entitled, as it does, to draw an adverse inference against Senator Monserrate based on his refusal to provide information as requested by the Select Committee. (id at p.27-28)

And then concludes:

The Select Committee is thus entitled, as it does, to draw an adverse inference against Senator Monserrate based on his refusal to provide information as requested by the Select Committee (id at p. 28)

However, this argument is simply made out ofwhole cloth and was concocted in order to try to taint me in the Report, to the Senate and the public at large.

18. I am also advised that the Committee's deliberative process may have been infected by impermissibly using the Fifth Amendment against me because I did not testify in my criminal trial. The Report has the following strange comment:

However, due to Senator Monserrate's decision not to testify in the criminal proceeding or before the Select Committee, Senator Monserrate deprived the Select Committee ofthe ability to test the veracity ofhis version ofevents using the 'the greatest legal engine ever invented for the discovery oftruth, cross examination* under oath. (Emphasis added, id at p.27)

To the extent that the Committee determined to draw an adverse inference against me in this

Report because I did not testify at my criminal trial, it clearly has abused my Fifth Amendment

9 rights. I am informed by counsel, that there is no basis in law to hold that choosing not to testifY in a criminal trial gives a civil body the right to draw any inference from such a fact. Clearly, this Committee and the Report it issued cannot stand as a basis to remove me from the Senate.

19. Finally I should note, that the Committee's recommendation that expulsion from the Senate is warranted because "Senator Monserrate failed to accept responsibility for his misconduct" (id at p. 54), further documents how far afield this process went. Canit really be said that Legislative Law 3 contemplated that an elected representative could be removed because his fellow Senators did not appreciate his level ofremorse? This only further exemplifies how the lack ofnotice ofthe charges to be considered and a fair process to review them enabled this Committee to come up with its own impermissible rationale to justifY its' predetermined conclusion.

20. The Report further contains false allegations about my integrity and reputation and I was not provided adequate process prior to the rendering ofthe Report.

21. On February 9, 2010, the State Senate voted to expel me as the Senator representing the 13 th Senate District and remove me from office. This constituted a violation of my rights under the due process clause ofthe Fourteenth Amendment ofthe Constitution to the

United States. It further violated the rights ofthe voters ofmy district who are disenfranchised as a result ofthis unconstitutional and illegal action.

22. The vote to expel me was swift and in summary fashion. There was no debate, no hearing, no charges and no opportunity for me to present evidence to the full Senate. Instead, the resolution, annexed hereto as Exhibit D, was simply put to a vote and passed.

23. Under these circumstances and as more fully set forth in my Complaint and

10 Memorandum of Law submitted herewith, I request that this court issue a temporary stay ofthe

Resolution ofthe Senate to expel me and that pending a determination ofthis action that I be restored to my elected position, and for such other and further relief as may be warranted in the circumstances.

24. We are proceeding by Order to Show Cause and stay because temporary relief is necessary as more fully set forth in this affidavit. In addition, ifdefendant Patterson is not enjoined pending the determination ofthis action, under state law he has the power to call a special election to fill the vacancy ostensibly created by my expulsion. This could take place within 30 - 45 days ofthe Senate's vote to expel me. Thus, unless a temporary stay is entered there is a risk that a new election could be held for the office I now legitimately occupy.

25. No prior application has been made for the reliefherein requested.

WHEREFORE, it is respectfully requested that the Court grant the following relief:

That the defendants be temporarily restrained and enjoined from (a) enforcing and implementing the February 9, 2010 Resolution expelling SENATOR HIRAM MONSERRATE from the NEW YORK STATE SENATE; (b) holding a Special Election on March 16th in the

13th Senatorial District ofthe State ofNew York in connection with the expulsion of SENATOR

HIRAM MONSERRATE; (c) removing SENATOR HIRAM MONSERRATE from the payroll ofthe State ofNew York in connection with his role as Senator ofthe 13th Senatorial District of the State ofNew York.;

11 94296-01-9 , STATE OF NEW YORK

)

SENATE RESOLUTION providing for a Select Committee of the Senate to investigate the facts and circumstances sur rounding the conviction of Senator Hiram Monserrate on October 15, 2009 Introduced by SAMPSON Introduced by Sen. M. of A.

The Senators whose names are ctrcled below wish The Members of the Assembly whose names are c1rdad billow WbtI to join me In the to join me In the sponsorship of this resolution: sponsorship 01 this resolUUon:

s20 Adams 805 Marcellino a049 Abbate a047 Colton a098 Gunther 8027 Mayersohn a080 Rivera. N. 815 Addabbo 562 Maziarz aG01 Alessi 8010 Conte 8139 Hawley 8019 McDonough 8076 Rivera, P. 555 AlesI 843 McDonald 8021 Alfano 0032 Cook 8148 Hayes 8104 McEneny 8056 Robinson 848 Aubertine s13 Monserrste 8105 Amedote 8142 Corwin a083 Heastle 0017 M_ a067 Rosenthal 542 Bonaclc . s18 Montgomery a084 Arroyo s085 Crespo 8028 Hevesi 8022 Meng e118 Russell 546 Breslin 538 Morahan a035 Aubry a107 Crouch 8048 Hlkind 8102 Miller. J. 8012 Saladino S50 DeFrancisco s54 NOZZQ\io a136 Bacslles 8063 Cusick 0018 Hooper 8038 Miller, M. e113 Sayward 032 Olaz 512 Onorato 0099 Ball 8045 Cymbrowltz 8144 Hoyt 8052 Millman a029 Scarborough 817 Oflan 537 Oppenheimer 8124 Barclay a138 DelMonte all60 Hyar-S_ 8103 Molinaro 8016 Schimel s29 Duane 811 Padavsn 8014 Barra 8034 OenOekkar 8042 Jacobs 8132 MoreIle a140 Schimminger 033 Espada 521 Parker 8040 Barron 8116 Destlto a095 Jaffee 0037 Nolan a145 Schroeder 844 Farley 530 Perkins 8082 Benedetto 8081 Dinowltz 8057 Jeffries 8128 Oaks a122 Scozzafeva s02 Ranegen s61 Ranzenhoter 8079 Benjamin a114 Duprey a131 John 8069 O'Donnell a064 Silver se3 Foley sS8 Robach 8073 Bing a003 Eddington a112 Jordan a137 Q'Mara a100 Skartados s08 Fuschillo 141 Saland 8055 Boyland aD04 Englebright a074 Kavanagh 8051 Ortiz 0093 Spano s22 Golden 819 Sampson BOOS 80yIe a130 Errigo a065 Kellner 8150 P8rment 8121 Stirpe 847 Griffo 523 Savino a089 Bradley 8072 Espaillat e129 KoI'b s088 Paulin 8011 Sweeney SOB Hennon 531 SGhnekJerman a044 Brennen a071 Farrell a135 Koon a141 Paoplas-stokas a110 Tediaco 536 Hassell-Thompson 528 Serrano a092 Brodsky a005 Fields a025 Lancman 8039 PeraJta 810 Huntley s51 Seward 8002 ThieJe aQ58 Pony S07 Johnson. C. s09 Skelos a046 Brook-Krasny a123 Finch a091 Latimer 8061 Trtone $04 Johnson, O. 814 Smith a147 Burling aOO7 Fitzpatrick eC13 La.ine ao23 Pheffer a031 TItus s34 Klein 525 Squadron 8117 Butler 8143 Gabryszek 8050 Lento! 8068 Powell a062 Tobacco 526 Krueger 858 Stachowski 8101 Cahill 8090 Galef 8125 Ufton 0087 Pratlow a054 Towns s27 Kruger .,6 Stavisky 8096 Calhoun a133 Gantt a127 Lopez, P. a146 Quinn a116 Townsend 524 Lanza 535 Stewart-COuslns e043 Camara B036 Gianaris a053 Lopez, V. 8097 Rabbitt 8015 Walker 539 larkin SSO Thompson a106 Canestrari eon Gibson 8126' lupardo aQOll Raia 8041 Weinstein sOl laValle 049 Valesky a026 Carrozza a149 GiglJo 8111 Magee 8006 Ramos aD20 Weisenberg 040 Leibell sS9 Volker a086 Castro 8066 GlicK a120 'Magnarelll al34 Reillch 3024 Weprin s52 Llbous s53 Winner 8119 Christensen a10B Gordon 8059 Maisel .,09 Reilly 0070 Wright 845 Little s57 Young a033 Clark a075 Gottfried 8030 Markay 8078 Rivera, J. a094 Zebrowski •

Assambty in1roducer's signature Senate introducer's signature

INTRODUCTION OF ALL RESOLUTIONS To Introduce this resolution: Sign one copy. circle co-sponsors Bnd hand it up at the desk of the house with six other completed and signed copies

If the resolution II to be offered In the other hOUS8: Sign the remaining copy and giVe that to the sponsoring member of the other house together with she other completed and signed -copies 10123109 2 94296..01-9 , LBDC(P) 11-06-09

WHEREAS, On March 23, 2009, Senator Hiram Monserrate was indicted in State Supreme Court in Queens on felony and misdemeanor charges of intentionally and recklessly causing physical injuries to another person; and

WHEREAS, On October 15, 2009, Senator Hiram Monserrate was acquitted in State Supreme Court in Queens of all felony charges, and convicted of the misdemeanor charge of recklessly causing physical injury to another person; and

WHEREAS, A conviction for such misdemeanor offense does not resun in the automatic forfeiture of office upon conviction under the Public Officers Law; and

WHEREAS, The seriousness of these domestic violence charges and the circumstances surrounding them warrant further investigation by the Senate, and may warrant ttle~imposition lilf sanctions by the Senate; now, therefore, be it

RESOLVED, That a Select Committee of the Senate to investigate the facts and circumstances surrounding the conviction of Senator Hiram Monserrate is hereby established, to consist of nine Senators to be appointed by the Temporary President of the Senate. Four of such members shall be appointed upon ·the recommendation of the Minority leader of the Senate. The chairperson of such committee shall be appointed by the Temporary President of the Senate; and be it further

RESOLVED, That such committee is hereby authoriZed and directed to investigate the facts and circumstances relating to the conviction against Senator Monserrate; and be it further

RESOLVED, That such committee shall have the same authority as committees constituted under Article 4 of the

legislative Law and Senate Rule VII; and be it further N

~'" "". ..I"'" RESOLVED, That such committee shall ensure a full and fair investigation, ensure fairness in thfPllaring 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; and be it further

RESOLVED, That such committee shall report to the Senate with its recommendations; and be it further

RESOLVED, That upon the delivery of such report to the Senate, such committee shall cease to exist.

RESOSE SHORT TITLE: Provides for the appointment of a special committee to investigate the actions of a certain member of the Senate BLURB: Special Senate Committee THE ASSEMBLY STATE OF NEW.'I"QRK ALBANY -

COMMITT~E ON ETHICS AND GUIDANCE, CHAIRED BY ASSEMBLYWOMAN EILEEN .., DOGAN R~PORTS FINDINGS IN CHARGES AGAINST ASSEMBLYWOMAN GERDI E. LIPSCHU~Z. CALL.S FOR RESIGNATION AND SANCTIONS INCLUDING LOSS OF I PAY, SENIORITY AND CENSURE.

ETHICS ANEL FINDS FLAW IN STATE CONSTITUTION. CALLS FOR REF PE ITTING:EXPULSION OF MEMBERS WHEN NECESSARY. I New York State Assembly Commit.tee on Ethics and Guidan e, acting unanimously, released its findings after an invest"gation ~oday concluding that charges against Assemblywoman Gerdi . Lip~chutz concerning fraudulent payroll practices, refer!" d- to- tt\elll.. fOL- action.. O!l. January- 29th by Assembly Speaker Mel Mi ler, were justified and recolMlended that she resign or, fa11in that, suffer severe sanctions. T e bi-partisan panel, chaired by Assemblywoman Eileen C. Dugan (D-Bkly:n) compr~sed of 4 Democrats and 4 Republicans (ASSem~lymen1 ~an Heves~, D-Queens; Joseph Lentol, D-Bklyn; Roger Ro~achr D-C-Rochester; Joseph Sawicki, R-C Suffolk and the commitjee's ranking Minority Member; William Bush, R-Syracuse; Dougla Prescdtt, R-C-gueens; and George Pataki, R-C-Peekskill) found that the Assemblywoman was guilty of the fallowing specif ed act~ of misconduct, -I falsely certifying personal sen'ice vouchers to the Afsembly Fiscal Office during the per iod beginning on o about ,January, 1983 and continuing to January, 1986: - approving the hiring of and continuation on the p yroll qf a "no-show" employee on the Assembly payroll a ter knOWledge that such employee in fact performed no a ficial :duties for the Assembly; and commi t~ing the above acts in order to obtain or intain,a political benefit for herself.

e findings were the result of a 5-week investigation which d testimony given in the recently concluded case against Richar Rubin~ former Secretary to the Queens County Democratic organ~-:zation" in which Rubin was found guilty of mail-fraud in . that e allegedly caused a no-show secretary to be placed on the • Assem lywoman~s payroll while using the secretary in his private law P -tactice.: Assemblywoman Lipschutz cooperated with the United ''t states Attoriney. after a grant ot immunity, and provided essen ial te~timony in the case against Rubin. She was neither charg d nor convicted of any crime. (More) IP YORI STAn L£GISlAnVE L1BIAR I I I .11'diately following the conclusion of her. testimony in the Rubln ase, A~sembly Speaker Mel Mliler, 1n a letter to Chairwo n Dugan, asi

- f.ny additional staff allotments, above the basic st ff allotment provided to Assemblywoman Lipschutz sh uld be eliminated forthwith; , - sny rights or privileges of seniority currently retained py Assemblywoman Lipschutz should .be forfeited a~1 ' for purposes of seniority, Assemblywoman Lipschutz s.,al1 be, deemed to be the last Member to have first t ken office as a r~sult of the General Election held i Novemb~r, 1986;

-A copy of the Committee's report should be 2 I I tra~smitted to the Attorney General of th~ ?tate ?f New Yor~ with a request that he commence a C1Vll actlon to rec'over the monies wrongly paid as a result of AsstmblYWOman Lipschutz' improper payroll practices; - A resolution censuring the conduct of Assemblywoman Lip~chutz be considered by the House in an open session • of !the Ass;embly and, if adopted, be read to the Souse in rer presence; - -nrj-l1'"i;Jhe-o~,the- Go_i t.te~_lL.,det'l:r!!.lination that the absence of any provision in the New 'lark Constl.€uEIon atrttrortringg---,-__ expulsi n casts, significant doubt upon the power of the Assembly to expe a Kem!;ler, an amendment to the New 'lark Constitution to clarify the power of each House to punish or expel its members for dis rderly behavior be adopted forthwith.

3 THE ASSEMBLY STATE OF NEW YORK ALBANY

'. Marcb 4. 1987

---~H:"'o"'n~or~a~b~le~~r'r.':ehMiIler Speaker New York Sta Assembly Room 932. Le . lauve OWce Buildinl Albaay. New ork 12248

pear Speaker

On J uary 29, 1,981 you requested tbat the Committee on Ethics and Guidance commence an investigati n into alleged misconduct by Assemblywoman Gerdi E. Lipschutz. Pursuant to your request. the ommiuee 'reviewed the sworn testimony of Assemblywoman Lipschutz and others given in the e of Vniled Staw of Americ", v. Ricbard Rubill. The Committee furtber held a private bead 8 pursuant! to sectioD 73 of tbe Civil Rights Law at wbicb Assemblywoman Lipscbutz appeared wit her counsill,

After 'said heariql. tbe Commiuee reviewed tbe evidenc:e before it and made tbe following findings:

l. That Ass~mblywoman Lipschutz fallely certified Personal Service Vouchers during the p riod belil\ninl on or about January. 1983 and continuinl to On Or about January. 1986;

2. That Anembly"'oman Lipac:hutz approved the hirinl of and continued a "no-show" empl yee 00 tbe Assembly payroll after having knowledge thal such employee, in facl. perro med no offic:ial duties for Ihe Assembly; and

•.c,'.-'·.-•. · ..-....;.•,_...~.,'".,.""'h.;;ill.._....,,_..... ,,"...... ,.,,....,,_~,~ 3. Tblt A~emblywoman Lipschutz committed the abo"e ac:ts in order to obtain or main in. for herself, a political benefit.

ThelcomlDiue~ further determined that there was inadequate evidence before the Committee t support t,' he allelation that Assemblywoman Lipschutz had obtained an increase in her subeom ittee personnel allotment under false pretense,.

Mor ver, the Comminee found that the aforesaid action' of Assemblywoman Lipschutz constitute d,plorable c:onduct inconsistent with the public trust endowed by the People upon a Member or the Legislature and with the standards of ethical conduct to which Members or the Legi,lature hould be lIeld; and that ,uch conduct has brought shame and disfavor upon the New York State ssembly and its Members. I

f .., h N 1 I.addilion Ihe Commillee found that Ihere IS an absence 0 any provISIon In I e ew York Co Slillllion 'aulhorizing the Assembly 10 expel Il member and Iherefore Ihere is significant I • doubt as 0 lhe Ilulhorily of lhe House 10 take sllch aclloo. T1erefore, ~ light oC lhe Commillee's delerminalion thaI ,o\ssemblywoman Lipschulz' ", conducl brought shame and disfavor upon Ihe HOllSe and its Members, Ihe Cornmillee calls on Assembl woman Lipschlllz 10 resign .5 a Member of Ihill Hoose; in Ihe evenl Ihal Assemblywoman Lipschu does nol ~o resign. the Commillee recommen~ Ihal Ihe following aclions be laken: , ASSemblywomnn Lipsc:hulZ sholl1cl immedialely be removed as Chair of Ihe Asseinbly MajorilY Sleering Cornmillee;

2 The :Comptroller oC Ihe Siale of New York sbould immediately be notified 10 di5C~nlinlle allY further payments oC addilional allowances payable 10 Asseinblywoman Lipschulz IS a resull of said Chairmanship;

J. Assemblywoman Lipschutz should immedialely be removed as Chair oC the ....sseptbly Subcommittee on Crime Viclims;

Any; addilional slaCC allolments. above Ihe basic siaff allolmenl provided 10 Ass~mblywom.n Lipschulz shollid be eliminaled forlhwith;

Any; rights or privileges oC seniorilY curreOlly relained by Assemblywoman Lipschutz shollid be CorCeiled and, for purposes of seniority, Assemblywolllan Lipschulz shall be deemed 10 be Ihe lasl Member 10 have first taken ornce as a resu,1t of the General Eleclion held in November, 1986;

fJi. copy of the Committee's report should be Iransmilled to Ihe Allorney General of Ihe Slate of New York with a request Ihal he commence a civil action 10 recover Ihe monjes wrongly paid as a result of Assemblywoman Lipschulz' improper payroll practices.

A r~soludon censuring lhe conduct of Assemblywoman Gerdi E. Lipschutt in Ihe form annelled "ereto as Exhibil 1 be considered by the House in an open session of the: Assembly and, if adopled. be read 10 the House in the presence of Assjomblywomao Lipschulz..

tn hght'. of lhe Committe'e's delermination lhal the absence of any provision in lhe Ne'!" York Conslitlltion aUlhorizing ellpulsion casls significant doubl upon the power of :Ihe Assembly 10 upel a Member, Ihe allached resolution proposing an aJll~ndment 10 the New York Constitulion 10 clarify Ihe power of each House 10 puqish or ex.pel its members for disorderly behavior be adopted fonhwith. A copy of such proposed amendment is attached hereto as Exhibit 2. Th' Commiuee makes lhe foregoing recommendations aher due deliberation mindful of the import r tbis invtstigation to the Assembly. its Members Ind lhe People of the Slale of Ne .... York. We ope thaI ybu ....ill act expeditiously 10 implement the roregoinll recommendations, , Respectfully submilted, fJt~-::d

• Exhibit I

RESOLUTION OF CENSURE

W EREAS, in response to a request by the Speaker of the Assembly dated Janunry 29, 1987, the ~[ $Sembly ~Ianding CommiUee on Ethics and Guidance undertook an invesligation inlo allegatioos of fraudulent payroll practices by Assemblywoman. C?erdi ~. Lipschutz in connection with Ihe a leged pJac~ment of employees who performed nO off,clal dUlles for the New York Slate Assembly n the paYfolls of lbe Assembly Majority Steering Committee and the SLlbcommiuee on Casino Ga blins; and . I: W EREAS, ill the course of such investigation, Ihe Commiuee reviewed lhe sworn teslimony f Asselllb~ywoman Lipschuu and others given in the case of United States of America v. 'char .. and

W EREAS; the Committee inviled Assemblywoman Lipschulz 10 respond to specified allegations of misconduct and infnrmed her of her right to cnunsel and to presenl evidence on her behalf; an

W EREAS. J'i.ssemblywoman Lipschutz appeared before this Commillee, expressed remorse over her c nducl, pr~seilled 1O the CommiUee a leuer from the Assistant Uniled Stales Attorney in charge of tlte prosecution in Ihe B.lIhin case asking the Comlllinee to consider the eXlent of her cooperatio in oblai"in& a cOnyiclion in such case and authorized her counsel 10 address the

o allegations againS! het; and

W EREAS, the testimony reyeals that Assemblywoman Lipschul2:, in an allempt 10 benefil' herself p IiticallY, did place Mary Robles on the payroll of the Assembly Majority Steering Commille for the year 1983 and further placed Mary Robles 011 the payroll of the Subcommittee on CasillO Gambli"ng :for the years 1984. 1985 and for the monlh of January, 1986, knowing that said empl yee woul~ nol be required and, in fact, did not perform any official duties for Ihe Assembly; and

W EREAS, I~e Committee bas determined thai from approximately January 1983 II1Iough and inclu jna Janua." 19&6, Assembly,",oman Lipschuta sianed, or caused to be signed, rersonal Service ouchers fpr each payroll period during such lime. authorizing the payment of compensa iOn to Mary Robles in tbe form of Assembly payroll checks; and

W'ilEREAS, ~s a resull of such actions, Mary Robles did. in facl, receiye compensation lotaling S 9,969.28 from lhe New York State Assembly, eyell thoulh she had performed 110 work entitling er to such compensation;

W EREAS, ~pon such teslimony and record lhe Commillee has conclUded:

J. Thai Assemblywoman Lipschuta falsely certiCied Personal Service Vouchers during th period beginning On or about January, 1983 and continuing 10 On or aboul January. 19 6; : 2. That Assemblywoman Lipschuca approved lhe hirina of and conlinued a "no-show" e ployee on' the Assembly payroll after haYing knowledge Ihal sucb employee, in fact, p rCormed no official dUlies for Ihe Assembly; and

3. Th:!1 Assemblywonuln Lipschutz commilled the above acts in order to obtain or m inlain, for herself, a political benefil. I I [ NOr THEREfORE BE IT RESOLVED THAT:

I. ' Tbe aforesaid actions of Assemblywoman Lipschutz constitute deplorable conduct jnc nsiSlent wi,th the public IrU5l endowed by. the feople upon a Member of Ille Legislature and with the $tandards of ethical conduct to which Members of the Legislature should be hel ; and Ihal such conduct has brought shame and disfavor upon the New York Slale Ass mbly and its Members; and that

2. The New York Stale Assembly does hereby condemn lbe aforesaid conducl of mblywoman Gerdi E. Lipschutz and does herl!by censure Assemblywoman Lipschutz. Exhibit 2 IN SEN"r& .sr- ••r"liICd••I....MIC ""'lot'], ••,, ".ft", COlllllisdon : 89095-01-7 Trw s lI.ntCI.'" rifd••Low .',h,.i-ia 1M i. tile Mldli' ,,,,, plO...... ,. O,,,altc1dIU 151 A...... In I..~ ,II ', ... •11...... I, ~ 11' p .. S. ~------.a''''otar-id "2 ~...... 54 rcr., ,n "'lIMe.. .1L... ." Pn:MM f~~:~ ..., 1,..- •• u.... diQ -*'dU ioU Coa~ 121 Ltiltht.tr' I.' "...... C... ,]ll...,.E. d2 .... I _I D..., ..l.~. fl. d.5c'__.... J,41 0-0... ,.a, LIllllIllIila••i d.Se·.... ! ..0-_ 114 ...tdIi ..Sit_ ... Faley .as M.... .1.5...... F1eu 111 ...r.... IJS 5,.- "'I G..... dl M~ dl Sll&&.....i i --read t ice and ordered printed, ..)o.w .....etc.... ,.., $1""_ I III G"""" t1J Nt. .12 S...... , " and when tinted to be co..ltted IDa.-...... M~ II)T'HI_ to the C .._ittee on ,11.h"" dlM_e,. ... r., .f ...... It._ 141 N.... .,. V.leu.. .1.JcalMI IIZJ Ohrftlll_ d' Yolk", i ... J...... 0-- .1'.daM_ ,1 ------iA. ASSEMBLY! IN "SSE".L"

T.... MQIIlIN JlheAlu:..."' tI.--.IlfEI:irckIf.....i.h 'e jei-. _ • 1'",,....,.••, at : LY--Intrpduced by M. of A. .oct A.....te ....G....I,. _112 Q1'lI••1 aOUAbn_ •••'0,•• .110 o"wr .011' larlla.. a06S G'unii ••,. PII'111Rftl ....rw:n aOt'G_. 1ID1"·'ll;ra~ •00' Ian... IOllGft'l'M' 1061 PI...... ooz_Mdt .cbr ...Grilr ... _. P.,.lti , ..1111 ... 1111.1 P111l•• __ .017.1." . .1..7P..... l1li(1)) li.(Khi .oDS H.rcMc-,. .1JI .,iltillne ..U..".... .111 HIU',tt _14. tor.... alii S-•• .U611.... .our.nun ...1I1., n .U,..t••.,., .10) PrlK~", ·CONSTC •• aOI' ltolht., ..'Zll...... 111 r...... (Punish ent and expulsion of Dleeec of .,IlMfOWa atJ'1IUC'ft1I6 all1lb~ "lit I"" aocllJikitlll 'OJORd...... the leC) slatuee, il036lulh:t 1126 tfilhn.. .017 Riwft'Il .111 Caule .101 UilMkJ' .1.J4'1\~ -r-- .oSte..I ... ••"" 110)' ....,Sa"'.. .Ina~ . ...al... "'IS_ .oJI Clo.' .oit lnkifK . ,-ts.-irlli "'C'."'•• .1.., Itr;anc al:.o Schilftft••• ."'JCol~_ _I. Itr;I1'I:hCI' aDJI'SthnMl I ..,aC_Hy _1)0 Kina ..OIZSc....1t COHCURR~ RESOLUTION • 100C....n ... ~_. .IIS St::Ift o THE SENATE AND ASSEMBLY .ot1' Con" .o'lO "If.' aDJ. $ltfNnnio • ')JCoolle .Olllat.,rat• .al) Stnafte .... C'oorn...... ,...... 41 SheDer II propoS'DC) an aa~nd.ent to section nine &0:-1 Cro-re. .... la.t.r 1016 Sic" at art cla III; of the constitution .laII D"Alklrca aOll Lci..U .1Sil.... .010 IJ"nel. aOtll,cN.1 a06OSl,••w.C' relat! 9 to the punishment and ex • U7 P:lri!hd .oJ:] LipKhlUl ....51111ft.-. E.C• pUlsio of ..e.bers of tbe legislature :.078 n",'" .IUt... .OUSIIIIW.... P,M. .on ncar" • u,MxNcii _U4 T.IIe.. .ut.l11d TC'ftI .ol1M"'n.- liZ' rae-w :au7"IJi.aI .on .bl 11 .107 TcdN" iI"16 n""'fapoli .on M"fcu ... .ST-a .DUn..... ••11 Me('.. . .101 T••II. all'E_..-. .1. Md'iutr, ,05. y."" .1 F.tttd ,"'~c"Wli.. .o~Ylr.liJl ... :.141 F.\~ • Ill Millin. IU"...... W.btl itOJI r~r'lCll .aw Miller. M.n. .ott W.II,", ilIO! .'MI' .U) M"Ic,. R.II. 1104. W.i...... on• ...J"'CWru. .IJtW...... , .14"•• olIlD1FblUp. ..nl1MIII.oI.... aCIOtW."• ...,. 1="""'...... , H.llift al» \If"1 ...n ";.,, allllb.1o IlOIlT'- _0.""", ..JlN"' ...... 1'1'....., iI'-')Cia.1 ...J"~l..... "Jl.allfllill :IG~rtl~. .lt4 ., al:!lZ"-, ....)(j..~, .1.""" ... 89095-01-7

i ",- 1 se1tion 1. ~esolved (if the ~.~ concur), That section nine of article , 2 XII r the constitution be amended to read aa follows: J 5 9. " aajority of each house shall constitute a quorua to do

6 buai eSI!I. Each house shall deter.ine the rul.s of its own proce.dlngs,

5 and e th. jUdge of the election~. returns and qualiticatlons of Ite own

, aeab ra: shall choose it. Own officers: snd the ••nate .hall choose a

7 teap rary pr~81dent and the assembly shall choose a speaker. Each house

8 "m=a~Fu",n:..:i:.::s,-,h,--,l:..:t",lI,--"m:..:e"llI",b:..:e:..:r:..:s=-f=r=-d=1"."o"'r"d"'e"'r"'I...... :b:.:e....h..,s..,v"l:.:o"r'-L....:a"'n"'d....._w=l..:t..,h'-..:t"'h"e,--,c"o"n,.,c",u",c...-_

9 rene of tvo~thlrds ex el a member.

10 S 2. Resol~d (If the concur), That the foregoing a.and.ent

11 be eferred ~o the tlrst regUlar legislative session convening atter the

12 nex succ.e~ing general election of .e.bers of the assembly, and, in

13 con orlllity with section one of article nineteen Df the constitution, be

16 .pub ished for three months prevlDus to the tlll1e of Bueh election•

.. I I THE l\BSENCE OF ANY PROVISION IN THE NEW YORK CONSTITUTION I AUTHORIZING EXPULSION CASTS SIGNIFICANT DOUBT UPON THE POWER OF THE HOUSE TO EXPEL UNDER THE CIRCUMSTANCES OF THIS CASE.

A. NO EXPLICIT AUTHORITY F.OR REMOVAL IS FOUND IN OUR CONSTITUTION.

B the teTms of two separate and distinct provisions of the United States Constitution, Congress may exclude Members who have : been seated, if they do not meet the qualifications of I or e~pel Members for disorderly behavior. 2 I stark:contrast, the New York Constitution while including ident'cal language authorizing exclusion, N.Y. Canst., Art. III, I sec. 9, contains ~ language authorizing expulsion of

legis ators: 3, xplicit provision is made in our Constitution for removal of a 1 othe( public4 and judicial5 officers who abuse their

~. "Eac~ House shall be the jUdge of the elections, returns and ~ualifications of its own Members." U.S. Const., ArLI, sec. 51: eLl.' '2. ,"Ea6h House roay •..punish its Members for disorderly beha iour, a,'nd, with the concurrence of two thirds, expel a Memb ~ r." U.S~ Canst., Art. I, sec. 5, cl.2. j3. A Member who is convicted of a crime, by virtue of the convfction dr subsequent imprisonment, may be disqualified from furtter holding office. people v. Barker, 3 Cow. 266 (1824); Publ c Offiders Law, sec. 3 and 77; Elect10n Law, sec. 5-104 and 6-12 '

4 Article XIII, sec. 5 authorizes removal of public offi ers fot "misconduct or malversation in office" and Article XIII, sec. 13 provides for removal of sheriffs, court clerks and dis riet attorneys. I

'official positions. In addition, elected officials other than Le9isla~ors, such as the Governor and the Lieutenant-Governor may be imp1ached by the Assembly and removed by two thirds of the Senate -r Indeed, the one section of the Constitution which one might Jxpect to authorize removal of Members of the Senate or

ASSembiY' Arti~le XIII, sec. 5 ("Removal from (public] office for miscon uct"), >specifically excludes officers "whose powers and

I duties are.••legislative." A plain reading of the legislative exemption contained in XIII, ;when compared to explicit authorization for removal of other elected and appointed officials, and, when ! to express Federal removal provisions, casts I signi icant ~.ubt upon our constitutional authority to expel a I Membe of the Legislature for misconduct which has not resulted in di qual~fication to hold office. t would seelll that a search for authority to expel a legis ator requires an exploration beyond the plain language of the ew York; Constitution itself. If such authority exists, it must be found in: (a) a broad reading of the power, granted by

Arti le III,: sec. 9, to "judge ..• the••.qualifications of Memb rs"; or. (b) an inherent power of the Rouse to control the cond ct of its members.

5 Article VI, sections 23 and 24 provide for removal of judg s, upon two thirds vote of both Souses or, in certain cases, the enate. 6 N.Y. Canst., Article VI, sec. 24.

2 B. THE POWER TO JUDGE QUALIFICATIONS OF MEMBERS DOES NOT INCLUDE THE THE POWER TO REMOVE FOR PRIOR MIS CONDUCT: EXCLUSION VS. EXPULSION

A ticle III, sec. 7 of the New York Constitution lists the I qualif cations! for office of a Member of the Legislature. It , requir s citiz~nship, a period of residency in the State as ~ell

as a eriod o:f residency in the district in which the election

d. There are further disqualifications listed within the

as wlilll, such as prohibitions against service in the I milit hpiding other public office at the same time as one , is a ember. iThere are, in addition, certain qualifications for I offic contai~ed within the Public Officers Law and the Election Law.?

hether 'or not a Member may be excluded, under State law, for m' scond.uct. not listed in Constitution or statute is, an open quest on. In ;interpreting identical language in the United States Const'tution, the Supreme Court has emphatically decided the feder 1 question in the negative. In Powell v. McCormack, 395 i U.S. 486 (1969), the Court overturned attempts to exclude Adam Clay on Powell from Congress for alleged illegal salary payments , to h's wife and diversion of travel payments. The Court held that I "the Souse is without power to exclude any member-elect who meets the onstitu*,ion's requirements for membership." Id. at 547. 8

? see, e.g., Public Officers Law Sections 3 and 30r Elec ~on La~ Sec. 6-122.

8 U.S~ Canst. Art. II, sec 2.

3 I i Inl arriving at its conclusion, the Court recounted John I Wilkes'! twenty-year struggle to recapture his seat in Parliament I after re was expelled by the House of Commons in 1763 for

PUblishjing "fa~se,. scandalous and seditious libel", I.e. he advocated co1on~al'~ndependence. After being expelled. he was re electedl to his seat three times --- and he was excluded three times ~y the Bouse. A debate raged in England, during that

interva~, about the power to exclude an otherwise qualified I represeritative.' Finally, in 1782. the Bouse of Commons voted to expunge I the prior resolutions of exclusion, "resolving that the

House attions were 'subversive of the rights of the whole body of elector of this k.ingdom.'" Id. at 528. I -- Th~ impact of Wilkes' campaign was felt in the United states.1In the words of Chief JU8tice Warren, i th. the successful resolution of Wilkes' long and bi~ter struggle for the right of the British electorate tolbe represented by men of their own choice. it is eV1dent that, on the eve of the Constitutional co*vention, English precedent stood for the proposition that • the law of the land had regulated the qualifications of members to serve in parliament' and these qualifications were 'not occasional but fixed.' I Powell ~., McCormack. 395 u.s. at 528. I Aside from the obvious danger in allowing a legislative body I to fix its own qualifications for membership. another important factor in Powell was the difference in the number of Yotes require to expel rather than exclude a Member. The United

I ' States fonstitution specifically requires a two thirds Yote to expel a! member for disorderly behavior. U.S. Const •• Art. l, I sec. 5,! cl.l. On the other hand, exclusion requires a simple

4 •

~jOriJy vote; If allegations of misconduct can result in exclus~on by a bare majority of the House because the accused lacks ,lproper qualifications·, then the principle, fought for and

won in the Wilkes case, i.e. "the right of the •.• electorate to

be rep esented by men of their own choice", can be too easily

evaded

S nce tQ~ decision in the Poweil case in 1969. federal law is r. Th¢refore. it might be fair to assume that New 10rk court will i read the identically written phrase in our

Consti ution i~ the same manner. At this time, however. there are no edents ~y which coutts in New ~ork have had an opportunity to dec de the question. T e only irecorded proceeding in New York which would tend to suppor thei~terpretation in Powell and the holding in Wilkes is , the f oor .discussion during the Constituti0l'al Convention of 1821. 9 At tha~ time. memory of the Hamilton-Burr duel was still . , fresh. Sent~m~nt was such that a proposal was made to add "to the , oath offic:e a vow by each elected official that he had not

in ~ueling. A Mr. Tompkins spoke in opposition and defea ed the ~otion by declaring•

. New York has revised its Constitution as a result of conve tions in 1777. 1801, 1821, 1846. 1867. 1894. 1915 and 1938. A can tltutional convention in 1967 resulted in submission of a new c nstitution to the voters who defeated it.

5 I! I ISir. I; object to this amendment: if you make an o ficer swear that he has not committed murder in this 101 y. why'not that he has not committed it in another? Wynot that he has not committed larceny. sacrilege. o any other crime? Procee ings arid Debates. New York Canst. Convention 1821.209.10

, n the o~ly case in New York history where Legislators were barre from office by action of the House (as opposed to removal by op ration ~f law following a conviction). the Assembly relied upon ts powe~ to re"iew the -"qualifications" of its members. In , 1920, five e~ected Assemblymen were excluded from their seats in I rk. T*ey were all Socialists who had, in a preYious term ice, opposed United States participation in the Great War. , The sembly:Judiciary Committee studied thirteen votes taken on and resolutions in the' prior term, as well as speeches and , i rela ed documents, and found. among other things. i The p'romise of the Socialists not to vote for any military or nayal appropriations or for war. is as much in conf::Lict with the Federal Constitution as with the State Cpnstitution [and! disqualifies them from taking the offiicial oath to support the Federal Constitution and renpers the oath so taken void. Newark Leg!islatiye Documents, l43d session, Vol. 1], p.270S.

10 In~erestingly enough. prior to defeat of the amendment, an A t to S~ppress Dueling, was enacted which required forfeiture of ffice upon conviction. After the Constitutional Convention, in ~824. the Court of Errors upheld removal of a Legislator Who was /convicted of the crime. The Court held that elected office, "As !a right: £1o",ing from the Constitution•.•cannot be taken away by ~ny law ~eclaring that classes of men. or even a single person not -can"icted of a ublic offense, shall be ineligible to public sta ~ons .•• , ut it may e taken from convicted criminals when the Leg"slature; in their plenary power deem such a depri"ation a nee ssary punishment." People v. Barker. 3 Cow. 684, 70S (1824).

6 I I

Si~nifica~tlY. however. counsel for the Assemblymen cited a recent! precedent in the Assembly which would have prohibited ex uls'on in these circumstances. Id., at 2460. He reminded the COllUllit ee that; just two years earlier, in 1918. it had refused to i remove AssembLyman Lucas E. Decker upon his admission that he had falsel evaded the draft prior to his election. The Committee held at,

(I In order to remove a member of the Assembly from ffiee, ander the Constitution, some question involving he ele~tion or returns is necessary before the ssembly: has jurisdiction in the premises, or further, hat tile person so elected must be entirely isquali;fied under the Constitution or by his conduct 1'1 the ~use must disqualify himself. These regulations re s ecificall set forth in the" Constitution itself. n the~e ~s no evi ence before us that any of them ace acking~ (Emphasis supplied).

Id. , at 2460j I i The illlportant distinction, however, was that the Decker case I proh"bit:ed expulsion for prior misconduct while the "Socialists'" case permitted exclusion for lack of proper qualifications. a prey ew of ~he holding in Powell some fifty years later. I Given 'the Powell decision, the Wilkes case, the proceedings 9 the: convention of 1821 and the plain meaning of the icable fonstitutional provisions, it is highly likely that a , cou t in 1987. presented with a case where a Member was exclUd~d for reaso~s, other than those explicitly del inea ted as qua ifications for office by the Constitution or statute, under the rubric' of "disqualification" would find that the House had exc eded its authority. Further. where the member was already sea~ed and; expUlsion rather than exclusion was sought, court

7 Ii interven~ion ~ould be almost certain. C. CONSTITUTIONAL HISTORY IN NEW YORK DEMONSTRATES AN AFFIRMATIVE DECISION TO DELETE TEXTUAL I SUPPORT FOR A POWER TO REMOVE. The Colonial Charter of Liberties and Privileges (1683)

t the said Representatives are the sale Judges of Qualifications of their own members, and likewise all undue Elections and may from time to time purge it: house as the shall see occasion durin the said sions. lParagraph 9)

Thus, explipit authority,· the Legislature had the power to well as exclude. That authority mayor may not have been First Constitution (1777) which declared:

Th t the assembly thus constituted, shall chuse their o n speaker, be judges of their own members, and enjoy t e same !privileges and proceed in doing business in l·ke manner as the assemblies of the colony of New York o right formerly did. (Section 9). Th Gonsti!tution of 1821, Art. I, sec. 3 deleted the above paragr pll and 'inserted instead, "Each house shall determine the .ru1es of its own proceedings, and be the judge of the

qualif cation~ of its own members." , I Tree ob$ervations should be made about this change: (1) It i~ noteworthy that the language parallels the Federal power of ellclusion in clause (i) of Art. I, sec. 5, while omitt·ng the ~xpulsion provision in Clause (ii) of that document.

ii) In: contrast to the omission of language permitting

expu1 ion (federal) or purge (colonial), the 1821 Constitution

and affirmativel rovided for removal of "all

I offic rs of the state, for mal and corrupt conduct in their

8 -----._---- -/--- I

respectiveI offiC;es." Art. V. sec.2.• (derived from Article XXIIII

of 1777 Fonst~tut~onI. i. ).• by impeachment. And. as with the parallel

federal 'provision. impeachment required a two-thirds vote of the , house.

5, exil?ress authorization for removal of some , constit tional i'officers was included in the 1821 Constitution. , I while of the power to expel (or "purge") legislators was

delete

"lo~phole" troubled BishOp Perkins of St. Lawrence , i County and, during the 1846 Constitutional Convention, he propos d an amendment to provide for the suspension or removal of ! office s guilty of malversation. In advancing his cause, it was

noted. [HIe ,very much doubted, if the Constitution reser ibed an election of a certain officer by the eople. and named his term of office for 1.2,3.4. or 5 ears, ~hether any such officer could be removed or uspend~d without a constitutional provision that hould state the manner in which it should be done. Oebats an~ ~roceedings~ Constitutiona! Convention (1846), 157. I After some discussion, he concluded, I [Sltill:he believed that he was correct in saying that it would be necessary to make constitutional provision for removing those officers elected by the people."

.!!! a 157. Later ip the proceedings. to Cure the omission. he offered the ollowing amendment: I The Governor, Lieutenant-Governor and Chief Justice of the Court of Appeals, shall constitute a commission for hearing and investigating all suspicions and charge~ of embezzlement, fraud. oppression. gross neqlect, or other malversation in office. of the officefs, (except judicial) whose powers and duties are

9 ,

Jot local, and who shall be elected at general ~lections. They shall have power, at all times, to qompel t~e attendance of witnesses and the production f papers. They may, under such regulations as shall be rescribed b law, remove such officers, and a oint thers in thelr lace.

rd., at 1076.

-- Jeveral ~mendments were offered to the proposal, including , one b John P?rter of Saratoga County which was adopted and which

inser ed the ~ords "legislative and" before jUdicial, thereby ex licit exce tion for the Le islature. ishop Perkins' amendment underwent further modification ,i until it was ~dopted to read as follows: rovision shall be made by law for the removal for isconduct or malversation in office of all officers except Judicial) whose powers and duties are not local nd legiislative, and who shall be elected at general ectians, and also for supplying vacancies created by uch removals.

Id., t 1076., . ! nterestlngly enough, however, the provision, when included

in th 1846 Constitution,._ read afifolloWfi~_ rovision shall be made by law for the removal for isconduft or malversation in office of all officers except pudicial) whose powers and duties are not local r legilliative and who shall be elected at general lection~, and also for supplying vacancies created by uch rempval. , t 13, N¥ Const.1846, Art. XIII, sec. 5.

his c9ncl,uded the first phase of an evolution in

Canst· tutiona~ amendments, beginning with a Colonial right to "purg " the' House and ending in an explici t exception for

10 Legis ators from removal for malversance. This section has remai ed in the Constitution through revisions in 1867, 1894, , 1915, and 1938. (Current Art. XIII, sec. 5).

~n. the wake of political scandals, the Constitutional conve1t10n of, 1874 resulted in the inclusion of two new "Bribery" , secti ns, Arti_ 15, sec. 1 and 2, which applied to any office-

holde , including legislators. Be ibery was declared to be a I "felo y" which carried with it a loss of franchise upon impri onment.· In addition, section 5 provided forfeiture of offic for P~blic officers, or persons elected or appointed to publi office! who ask, demand, or accept for their own benefit, free asses, ~ranking privileges, free transportation, etc. his prdvision, then, was the only explicit provision for i remov of legislators included within the 1874 Constitution. The

secti n st~ye~ intact through 1894 and 1938. In 1962, as part of a "s'mplific,ation" project, the Inter-Law School Committee propo ed cer:tain changes to the Constitution. One of the propo als, su~sequently adopted, was to repeal sections 2,3 and 5

~5 of Article , on the sensible ground that descriptions of felon"ous conduct are better left to statutes.

s sections, 2, 3, and 5 of Article 15 were repealed, Public Offic rs Law Sections 75, 7~ and 77 were enacted in their stead. I The n w sections of the Public Officers Law are almost identical to pre!decessors., ll While the newly enacted statutory

'. ~l. The only significant difference, of note in this case, is t~at Section 79 of the Public Officers Law renders a legislator vu~nerable to disqualification upon conviction of the

11 I

mandaJes seeni clear, the repeal of controlling constitutional

autho1ity hasi created a vacuum in this regard.

c. IN THE ABSENCE OF EXPRESS CONSTITUTIONAL SUPPORT, AN INHERENT RIGHT TO REMOVE SHOULD NOT BE PRESUMED.

i irst aJ;1d foremost, i,t should be noted that each elected

I constituents have a vested interest in representation

by a ualifi~d candidate of their choice. Fellow legislators are not be~ter position to determine when those voters have i a point of dissatisfaction with their representative. , Furt er, rejmoval throws the seat in doubt and deprives i constituents: of representation at times when they may· need it most. The lessons, of the Wilkes and Powell cases are that caution is n eded in! this area lest legislative acts become ·subversive

of t e right~ of the whole body of electors." 22 ParI Hist Eng

1411 (1782).·

The qu~s, tion arises, then, whether, in the absence of . el

auth rity) w6ether an "inherent" right to remove may be imputed. I i To d 50, ho~ever, would fly in the face of settle principle of

cons itution~l construction. A generally accepted proposition is

, proh'bitions; The constitutional provisions Which were replaced expo ed a ~erson to a suit for for feiture of office uJ;lon viol tion ofi the articles. Whereas there existed some quest1.on rega ing th~ power to expel without a conviction under the older prov'sions at the constitution, the new statutory limit seems to act s a specific restraint in that area. 12 .J~11 ,·,v,,,..... ,,,,,,' .. I i I one th~t holds. IWjhenever the language of the constitution is not e~plicit 'or admits of doubt it is presumed that it i hibits ithe violation of acknowledged principles of j stice ard liberty; and nothing should be implied from t e constitution which would increase the burden or d tract ftom individual rights•. , McKinn y's, Rules of Interpretation, section 4. I I an inh~rent right to expel is to be claimed, the argument ,I would ot be drawn on a blank tablet. It cannot be said that no though has be~n given the subject. Rather, as discussion of the

1777 18011 Constitutions show, there is an. ambiguity which v~ry as a , consequence of active amendments in the area. I At turn i of the eighteenth century, delegates to the Conventions had several choices. They could have

, English model after Wilkes, Whereby "the House of

... 'repudiated any I control over the eligibility of tes, e~cept in the administration of the laws Which define

standiing qualification.' If Powell at 521 (citations i ! i Federal model, Whereby a two-thirds vote is necessary t or

model. where expUlsion is possible by a bare majority, but 0 for ~pecificallY and narrowly delineated crimes. $eems to support any of the three theories equally. to i exclude the Legislature from explicit removal secti ns and 6mission of the federal power to expel seem to point to a to follow the English modeL. On the other hand, 13 I

'specific attempts to articulate reasons for forfeiture of office

(See, ~.g., A~ticle I, section S which calls for forfeiture of

office when a:legislator claims immunity before a grand jury.),

seem t supporit a conclusion that the latter was intended. I G ven this ambiguity, it would be violative of normal rules of titutional interpretation to presume an inherent right to , Th¢re is no basis in the history of New York's i ution tor a general claim to authority to remove in the of so~e textual or doctrinal support. The power to remove by re maj4rity by invoking ill-defined or undefined standards ; is slendbr a reed upon which to rest the foundation of cy 1.n• 'New York State. Such an act has been calleQ a tion" ~hich, i if acquiesced under, would be attended with the most larmincj consequences. If you can reject those isagr~eable to a majority, and expel whom you please, he. [body] will be self-created and self-existing. You y expel till you. approve, and thus in effect you ominate; The original idea of this House [Commons] eing the representative of the Commoners of the realm ill. be tost. i 18 Pa l.gist.fng. 367 (1775). I Per a.ps A~semblyman B.A. Blodgett said it best in his disse re~ort in the Socialist cases, i f I er~r in these conclusions [against a power to xCludeJ, I err on the side of constitutional ibertie~, trusting in the strength of the sovereign eople to maintain itself. I N.Y. eg. DOc~., l43d Session, Vol. 13 at 2770.

14 II THE POWER TO EXPEL FOR ACTS OP MIS CONDUCT ARISING PRIOR TO THE CURRENT TERM IN OFFICE IS IN DOUBT. ., A. NEW YORK AND CONGRESSIONAL PRECEDENTS CAST SIGNIFICANT DOUBT ON THE POWER OF THE LEG , , iSLATURE TO EXPEL FOR PRIOR MISCONDUCT. ~ere is a substantial question as to whether a legislative : body ay expel a member for conduct arising in a previous I legis ature after the member has been re-elected by the .voters. ; i . At th outset~ lt should be noted there is little or no case law I on th subjebt. The question has never been Iitigated in New , York. In the: federal arena, the issue arose in the Powell case

but w s left; unresolved, as the Court I S holding that exclusion

was i proper :made, it unnecessary for it to reach the question. The curt did, observe that Congress chose exclusion rather than , . expul ion be~ause it "distrusted" its right to expel Members for prior miscond~ct following a re-election. Id. at 509. ongressional "distrust" of its power to expel was explained

in a eport ~repared by the L~brary of Congress which indicated, I I t i~ clear from congressional precedents that Ithoug~ such constitutional authority may technically xist al\d that the Bouse may exercise such authority to iscipline by way of censure, reprimand, or similar unishmFnt for misconduct arising in a previous ongress, the House has questioned its right to expel a ember under such circumstances, and has never done 50. i Maskell, Aut~ority of the House of Representatives to Discipline ember Ifor Conduct Which Arose in a Previous Congress: rEffect ;of Reelection of a Member, Library of Congress, erican Law Division, 1980.

15 Co ittees in New York have considered the question on two occasio~s and have determined that the power to expel for prior miscon~ct doe~ not exist. In 1853. the Assembly referred to the ; Assemb y Judic~ary CO/lllllittee the question of "whether a person , could e impeached and deprived of his office for mal-conduct. or • offenc 5 done OL COll\ll!lUI:Q....'!!!J1.!!£ ~ prior term of the same or any other office.n Repor t of the Assembly Judiciary Commi ttee , Relati e to the Power of Impeachment. Leg. Doc. 1123. 1853 (herei after. ;1853 Report). The coauaittee concluded that even in sence o~, any express constitutional limitation upon the , o impe¥:h. ! e intel;ltion was to confine· the time to the term of fice during which the offences were alleged to have en co~itted. Indeed, any other conclusion would lead results ",hich could not: be sustained. for who can y but that the people knew of this mal-conduct. these o fences~ and elected the individual notwithstanding •••• aowe~er much it may be desired to have men of high integrity and honesty fill our public offices of trust nd hono~. yet by our Constitution and the fundamental r inciples of our· Government. no particular scale of "ntegrity. honesty or morality is fixed; it is enough hat the people have willed the person should hold the ffice. ' 1853 eport a~ 2-3 has had occasion to consider the issue as i well rrived atI a similar conclusion. In 1872. Senator James Wood I was fund to ;have received loans from "Boss" Tweed and Jay Gould "",hie they w:ould not have advanced to him had they not believed that hey could thereby respectively derive advantage through Mr. I Wood' action or position as a legislator. or improper conduct."

I NY Le • DOCS,. Vol. 13. p. 2462. aowever. since the misconduct previous session of the Legislature. the Senate 16 adopted~ a resolution which, Relolved,_ithat the acts of which he now stands charged ar~ not qffenses against the privileges of this body b¥ of tihe former Senat"!!, and that the further c nsideration of a resolution of expulsion be in efinitJly postponed. ~Y ~:::::i::l. ::~:':o·:::·::;:::,J,::~:: •. :r.- ':::' :::: expuls'on for: prior acts may never be accomplished. statutes the m,eansI by which persons may become ineligible to o~fice. For example. civil Rights Law Section 79 i the civil rights of those who are convicted of felonious

ring the, term of their sentence and they become ineligible public office during such term. Matter of Fergusoll V. Lomenzo. 57 iMisc.2d 1041. aff'd 30 A.D. 2d 982 (1968);

.Po lic tion of, Lind ren. 232 NY 59 (1921).

R. PUBLIC AWARENESS OF THE ALLEGED MISCONDUCT PRIOR TO AN ELECTION. AS A MATTER opPO!.rcY', NOT LAW. COMPELS DECLINATION OF ANY POTENTIAL POWER TO EXPEL. A report! of the Bouse Judiciary Committee of the 63rd Congr ss lefit open the question of expulsion for prior I miscon uct. Ad the same time. however. the Committee cautioned, t in considering this question and in arriving at the nclusi~ns we have reached. we would not have you ndful ~o the fact that we have been dealing with the estion imerely as one of power. and it should not be nfused jwith the question of policy also involved. As matte:r of sound policy, this extraordinary erogat~ve of the Bouse. in our jUdgment should be ercised only in extreme cases and always with great ution ilnd after due circum~pection. and should be 17 Jnvokedl with greatest caution where the acts of ~isconduct complained of had become public previous to nd wen;; generally known at the time of the Member's lection:. To exercise such power in that instance the ouse might abuse its high prerogative, and in our pinion might exceed the just limitations of its onstitutional authority by seeking to substitute its tandards and ideals for the standards and ideills of he constituency of the Member who had deliberately hosen him to be theil: Representative. The effect of _'~""'_'H '_"__' !:!£J!__~,i.2gl!.cJC- wQuld_tencL not to preserve but to ndermine and destroy repl:esentative government. Rep0l:t f the ~ouse Judicial:Y Committee, 63rd congress, 2d ession,: 1915, as quoted in Makell, supra. , I:egard to, charges against Assemblywoman Lipschutz. alleg tions of her misconduct became public in February '1986. 12

TwO w eks be~ore her election in November, 1986, each newspaper , of 9 eirculation in KI:S. Lipschutz' district carried I stol:i dnly implicating her, but carrying an inference of

.5. Attorney Andl:ew Maloney said Cohen and Lipschutz ere ,aware of the scheme -but were not prosecuted ecause they cooperated, they I:eceived no benefits and hey di~n't conceive the scheme. Daily News, ednesda ,October 22, 1986. (EXhibit 2, attached). laney rsaid he decided not to seek an indictment of semblywomarr Gerdi Lipschutz... because [she was an ssentia~ witness] in the case against Rubin ipschutz and Cohen were both aW81:e of the fl:aud, which b gin inl198l and didn I t end until this year Maloney 5 id. Asked why the two Democratic legislators weren't dicted) Maloney said: 'They were essential witnesses. ey didb' t conceive the scheme, they didn I t profit 0111 it.! So we made a choice. New York Post, dnesday, October 22, i986. (Exhibit 3, attached.) I semb. Gerdi Lipschutz of Rockaway Park and former semb. ~avid Cohen of Jamaica participated knowingly the alleged fraud by canying the secretaries on eir st~te payrolls, U.S. Attorney Andrew Maloney said an ~nterview yestel:day afternoon... 'They are

News9ay, Feb. 10, 1986. Exhibit 1, attached. i 18 es~ential 'witnesses,' he said of the two. 'They didn't cdnceive the scheme, nor did they profit from it.' N~wsday, [Wednesday, October 22, 1986. (Exhibit 4, a~tached)! F'deral o:fficials said Assemb. Gerdi Lipschutz (O-Far R Ckaway)! and former Assemblyman David Cohen (O- J maica) ,knowingly participated in the scheme by p tting the secretaries on their payrolls but were 9 anted immunity from prosecution in exchange for their t stimonyiagainst Rubin. Newsday, Thursday, October 23, 1 86. (EXhibit 5, attached). i M s. Lipsbhutz' electorate had the above record before them. I The article p~ovlded her constituents with relevant facts with which to jUd:~e her competence., She won re-election by a substa tial m~rgin. Thus, the circumstances of this case would , seem t fit perfectly within Congressional caution that action at i this time "might exceed the just limitations of ! constitutiona~ authority." 'Maskell, supra.

19 '. ! i I \

. i~ ;~; .. ~:~ 1,'." .~ . .. ;.: ... .::.. . ~: . ::.. .::'. ".: . •." :1:' . . ,"; .' .. ., '" .- :' ";; ::: '., . '-

.!> • -_.- -~._---.

1I:te-J ."\~ ,.,,.ie~:l{' ...~tt~~;',:'~W; ....: ... :. A • •'~:t, I. ". ow •• -I~ - l'i4dnway. OCtober. M,. , &S6.•. _ h •• "-r. ;;''b~illli~s ." •. L ••.~ ~7· • "- •

Mane$~aide I a,1:) z...J . .indicted. ~ . 'llubm.pressured by feder~'proseC!ltprs' to cooperate:: .- I '" By DANIEL HAYS : lion 01 'udge5 anel olber lov, '. to cooperale. nelb ShapIro, 10 use his IU' !:: anll JERRY· CAPECI unmenl omcill~, .~'. Maloney sall!lI.ubln. 48, of Iborlty "to Increase the ~ Gall H_ 51.. "",,~. , lIublll, 46, wu charged· 1'-d Ave In Flushing hid pa)"loI1l ot Assemblypersons !::. • with using pollllcal cloul 10 " b 'd' ~ d hll Ii- b Cohen and. Llpshuu' 50 Ihe X [' I~]cled yeslerday !!n mall ' pllce Iwo legal secrelarlel J~ ~ ~~om 1989·t~98e bY lecrel.arlu could be Idded 10 .., . rau.. chuge.. pohllclUy on plyrolll 01 Assembly. .' 0 Y the stale P13'roU conneeled Queena llWYU womln erell Lloshuu (1)." gelling lhl. women no-show' . ' Richard R.ublo Is hclng In,' Queens) 1111 tormer ueens' slile lob~, , ' lIlaloney said nelLh~r FInk lense prenure [rom [ederll leglslllor Davld'Cohen lIubln,. 48. 1110 "'II nor 5~aplro were a","~ 0[, f~olstCUlon lo.cooperate ~n U,S. l\llorney ~d~w' chlrged In I 14-counllndicl' ' :~~~h:r h:~~:~d B"':~~~~ e r wlde,nnglng probe of Mlioney Slid Cohen ",ho menl with tar. tnud lor -I bIU [h I h _ ~olll\cal and Judicial COmlP- "TYed Irom 1981110 1982, InI! allegedly plying his secrelJl" ~llioc ean ndod' .yll I.,. ' tion In Queens,.. Llp3hull, 'were ""'lre of Hla In 520,000 olf the boole! ney respo e, es, . Rubln, former chief Illle' Icheme but were not. prose- tram 1118110 1984 \YlIh Demo- AccordIng \0 lh' indict,· ot the lala Donald. Manes, culed beclule "they cooper- crollc PlrlJ' funds. menl, Marilyn J. Wigner, sec· \\'15 Indicled on charles lhll aled \hey received no be- . reillY In Rubin's Queens carl")' live )'eau In prison Ind nellis Ind Ibey didn'l can. . Rubin. former encullvlBh'd. '1\0' oUlce, \0'15 placed $J.56 ml1lion-lrHines-,------ce1ve..lhe-lDhamL".__.. _ ...._.!lcteluy ollbe Q?eens, Dem-. con Cohen's Assembb- ~ayroll. . "We 1\\10'«0 he CUI help. ' -tlcrale-orgD.nWlhon.-.sl ...el·....(.fDm,J.lnulZ}·-l981 ..to. Nov..em-,.." ...... __ U~I ]01," Slid one oUlelll No,show job! : pecled.lo reslg!l.I!.I~,~5~ bu_1982... _...... ,_ •• __.. llQII' I -.. V01"Bd In, Ihe BrDoll1yn ~fre 'b\:~+s 100'lnng1&~ a'\Tear. ...speclal...cOulU!}.I~tI i :J·SecreUuY - MIr'1'''Rro,!~ , ~~tl1rll~ 1n"(h:l-11l,1ib1l~ cOoPcE~ti~'l1~}~ecllllJ'f~bfi1' ~SimblY Speaker SI;::l!ey 1\\'01 ]Iold IS a member 01 - ~.JtI.~.n.I':,r,l~'llih.~D~n. GO le"fibm Queens,' .,illll, n" Llpshuu' lub~ommll\ce all .. 11l"'l

• .. , ,. . .: "'l: ...- ::"'~·.;.7·:\ ~"':~' ".~~~~""';:"''''~~~~''''Z''7~' .: . ~..."...... :~. :.~,.:".... :~~.!~l:~.'=.~~"~;.~;' ~:: EXillBl1" )

, I I I •. , • , , Pfls. 09 c. ctt?::~i,!g ~n probe" 'iJ'iJalJe~ pal • ~Y rllll.IP ~n;,'SING (l. u"d ..ork'nlr lull-limo 10' ••Id ",,"CK FEIUn nubln', CluMns laW' Ilrrn. . TWO Iq.co.... polm"lan, hnpll. Llp.eh.'a ..nd Cohon ",or" e.lled )In a nO-lhow ,jo...· Selin.· bot.. fI.'Yare ft' the rrftutl, \'f'llell h.....' "~rftd '0 cooper:alr. In Ih. bel:"n In "'I and dl,It," e"d n,u'llh~oo'I'iltr: prebe 01 tile Inlo UII.II lhl, yea.r. l'I:IIla...., ~",IIJ. Uon&I;I' I'I"n...', 10', polllleal /)..kcd " Ihe Iwo Il.....ocrnllc Illol", ":ulhorlll~ ••hlye.lnd"y. 1.1I1'lalo ""rell'llnlllel.". ftl:il... Droolkly" U.s. Allorney An· n"y ,iii": "'l'lIey ....e ....,."11," dre... ft.alone1 r...~aled lhe ar- ,,,ltna.'W:t. Til.., clldnl & C"nllC"f"I'f'c r3llxe,nenl 3:1 he l1onoDullced lI'e tile schelJle. IIle1' dld..'t proUI 1r'O'1i 7- Indict_neal o' polilieDl ",beeler- IL Sa we made a choice. . ,n denletR1"hard Rubin oil con- -We ,elcelrd .. l,er,nll'[llublnl :l: tll~ -< Iplra:?:i las f:,asJaa aad bl.U. :IS a larr:eol, per.soll 'we 0 1~"ulll'''a.Il'''' , '. '''auCIo' Plallculpable,- " ~Inl"ney ""III ... ,J..,ldcd nal 10 A ....k"""..... I..~ Llp.el.uh. x'" ~,nbly" ... seck njI.....IIc1ll1cnl 01 ,, whe I..... • "pre,pOIlcd U", Iloek. () "alulln .~Il ·Llp"oh"Lz. aI." ror-· ",yay, IIlneft ''915, relusr.tI CO.n· ....u• mer "'...... bll""•• In.hl Coh,," nlenl ",.cepllo s;lyllo:ll ,II" ~'IYiIl ~e bec:"a.. Uley ,we... Mc.ot-.e..U:,,1 ,vII.. caUUnue 10 cdop'"'aleo.... ~ fteII!trIr Id ahe nLW :1~lIhL". n"bh.. JJ....hll: tht! II!fAllie..d."I..I~'ra.. ... 1~01Jl CJ'" nuIJI... lib....• lop palron"lle 110". Llpscllulz r".IIlOlcd 7- dl.ped.er, ,."" Indlcl",J la~ 1\1- Io.~ jot> ..... IIlreela, Dillie v, lell••lIY IlIaclnr I... d' L"lW ~Iayor', VolulIl...y I\cU~1I C.n- '" tlrn.'~l ~hf!: ,. S1ecreLarlc:5 In ph ,. Job. ler b"'-:$u,. h:ad IIc" about .-<" on lb. ~tRte "~!I"IDI.I,. pl\yroll 'Ier cnllel;t:! C'l'edeIlU,d~. .. throu~" Llp~chut& 3114 Collen. Cahen. ,,,1'0 \.n.'!I r.lecl~.J 10 l'U! 0 The I••"rlllarl... III....y It.llles A,.olllllly In 1980 and dele.dcd ... \rl'lI!!",r.;~I"II"'ly 0" , illn'h"'n,llyn .., I"e,••• ft". :.JCcn..., dil1,llol ••Iuttt:,_; n' 1·,rK~I~i"IU~.lI!".ln ":'"lI:u:yl..~,lb~,'l ,cl~I'"pJl!1_.a,c'''''I''' Itl',",' 11''''::1 ...... , ! na-'I/!I!'r~l'!.~1\ wJII~".!!\.1 cGIIlIa"" ' ".a•• olu..e...... " ••,', ., ", : ,,' , ..'" , .!" I , .. ...-0 Go : ":~ #',,',...... : .: .

-'-:~.- .' .. ~

',' oj". I' I I

",! ~ ,'OOl<:mlent l>ealDle pUblke~"" ""r.... . S 51't&ko~ ~~!ll~" fiDk,l:ol .th~ ~.. the rnnd~ took fulll1 acti~re.~r-, II ~ ...,. ,I. U 1&'1 • 'f·IJ 6.J ., \nriu IDe .. JOO. LnriO"';lllia•.. ""hI. · d 4" eo Je.nue.ry, 1981, and la.l La al lfu> th oul.oa_ orUle' . 7/1·. ., Cte 0 n. ., ,'.~. \-,rJUIle,I.he...... t1o<'o ""c,etorie•• Mil."")' E, 110- ala po pen •.,; Ie.. .., Ii f:; e;" . - blc. lU1d Me.ril)"n J, WaG'Der...... ived ,ohUB.I; .....;~. '. .' -. i :';'~. I d~ I \:norcthlU1S49,OOOinJIJlLaIundll,even A••i.lanl u.s. ALlorn.7Ke.ID~ · .!.bough !.bey w.,... U!lipcd full·limelo O"Brie~, wbo p~aenLa

.' , .J EXlfIBIT 5 ~~ti;~f " mchanl 1.. Rubill. lb. rarmer ...eculi•• '...... tuy of th. QDoeDll D"lIIocn.tic p..-ty ..bo baa be.a Iadic:ted aa mail &aDd, eOn.,' . " • piracy and bu e'fuioll charl_} ruiped... '.. ye_-.oyrram"i...... 553-..y...rjab ...... ci.1 co...... 1to tho 3lata "-mbly., lcer. "H. i. alI the p.yrvll," lI&id Da.id ' nl(· don, allpOlc..man ror Soraker S~~EinJ< (D-Dnalclya). Stala ollici"'" IIi bad'" not yet d.ta""i';ed whether JIlIbill, .....r QUalna, would beeligibl.Corll.tnt. pr.nllian.. Rubia, !.h. chiefdis"...... ,r or politica.l p.. t ...... under the I.ta DoaaId R. Mu...... iodiclN Tueeday by • federal gnnd jury ill 8nlaklyn 011 cbatJl"ll h.. dcCmuded the .tat. or $49,DOO to p.y th.....llIri.....r two tari... .t hill Ql1ealll .Bende.anI I m...... "'. F ra1.mci.l. Mid &pmb Genii Lip.' ~ " 'hutz (D-Far Raeb..ay) IDd rormei"'A. =eIllCOavitiCob..11 ([)..Juwca) Ica.winllly participated ia tho lChelll.. by PUttiall !.he .ec....larie. oa lheir p.yroll. but w.r.. graated i_Daily livID p...... -:utio.. ia .."'; . . , cb.np rar Iheir I.e8tim.ay .S..inal Rubi... ' Neilb.r Cobea or Lipeebutl relu.rned l.ele phon. c:al1a to th.ir.ai_ yeel.erday. Rubia eli. not ...bam tel..phone mUo to , , -. hi••m... ,e.""rdaY. lUI .tlonacy. na""ld Rublnatein...id h. beli.....th. iadicbaellt I ...."wit.hallt suba!IUI_" , " I ,. '"l'h.. public bul..t.wry .bl. aerY_t, Il . .ery bright raod I• ..,...... Rubi""""'" Miel. "II...... ""n.idered • te.m leader liD lb. Stota LegielatuntJ,· --Ie.nni£er.l'n:aton o ~.. ~. ....::~;.. oi I -:.0. " •• '" : ;·or·••. t a.:L ,,,,. ''C I .:< I , ,; ~ I I ..;a . ,~: i ,- , =:!(." '. o , !:l , .. ,- '0 III,-, ., ; 3J.

~ ',' e .. ...-, '

.. File: C:\DOCUME-l\FERRAN-l\LOCALS-l\Temp\notes7A28BO\11110.txt 1/13/2010, 1:59: 48PM

1 BEFORE THE NEW YORK STATE SENATE SELECT COMMITTEE TO INVESTIGATE FACTS AND 2 CIRCUMSTANCES SURROUNDING THE CONVICTION OF SENATOR HIRAM MONSERRATE 3

4 ------

5 Meeting Held in Executive Session

6 ------

7 Room 124 The Capitol 8 Albany, NY

9 January 11, 2010 4:44 p.m. 10

11 PRESIDING:

12 Senator Eric Schneiderman Chair, Senate Select Committee 13 PRESENT: 14 Senator Andrew J. Lanza 15 Senator Diane Savino 16 Senator James S. Alesi 17 Senator Andrea Stewart-Cousins 18 Senator Catharine M. Young 19 Senator John Flanagan 20 Senator Toby Stavisky 21 Minority Counsel David Lewis 22 Special Counsel Lee M. Cortes, Jr. 23 Special Counsel Erica M. Gersowitz 24

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1 CHAIRMAN SCHNEIDERMAN: Ladies and

2 gentlemen, we're convening once again the

3 select committee. Hopefully this will be

4 our last meeting. And I appreciate

5 everyone's patience.

6 We've had questions raised by various

7 members of the committee about legal and

8 factual issues, and we continue to adjust

9 the report and to conduct inquiries and do

10 research. I think we're very close to a

11 final product at this point.

12 I do want to emphasize, because there

13 has been some discussion of this, that we

14 really have taken extraordinary steps,

15 unprecedented steps to ensure the integrity

16 of this process and the fairest possible

17 process for this hearing. We are, as we've

18 stated repeatedly, maintaining a complete

19 transcript and record of these proceedings,

20 so there will be nothing secret about these

21 proceedings.

22 We have agreed to hold the evidentiary

23 parts of our meetings in executive session,

24 as the ethics committees do and as ethics

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1 committees across the state do -- across the

2 country do, really.

3 This will be the most transparent

4 ethics review process that's ever taken

5 place in New York. So I just wanted to note

6 that for the record.

7 And I appreciate everyone's patience

8 and everyone's diligence. This has been a

9 very thorough piece of work. But once

10 again, one hopefully final time, pursuant to

11 the Public Officers Law Section IDS, I am

12 going to move that the select committee go

13 into an executive session to conduct the

14 evidentiary portion of the meeting.

15 All in favor.

16 (Response of "Aye.")

17 CHAIRMAN SCHNEIDERMAN: Opposed?

18 (No response.)

19 CHAIRMAN SCHNEIDERMAN: So we will

20 give a moment for the press to leave and we

21 will go into executive session. And only

22 the staff members designated by members and

23 the members of the committee will remain.

24 (Pause. )

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1 CHAIRMAN SCHNEIDERMAN: So we're back

2 down, I believe, to designated staff and

3 members of the committee.

4 And at this time counsel is passing out

5 what I believe to be, as far as I'm

6 concerned, the final draft of the report.

7 This incorporates comments that have been

8 made by all the members of the committee,

9 work that has been done by our counsel in

10 cooperation with David Lewis, the counsel

11 for the minority, who have been working

12 together on this.

13 And this copy was sent to the members!

14 offices earlier. Yesterday you received a

15 red-lined version in your offices which

16 identified the specific new entries. And we

17 have copies of the red-line version here

18 also if anyone would like to look at that.

19 The two significant entries that we've

20 identified and that we want to talk about

21 today are the entries related to the

22 interviews of Mr. Nieves and Mr. Castro.

23 So I'm hopeful that we will discuss the

24 finalization of the report later in this

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1 meeting. But before we do that, I think it

2 would be a good idea for us to hear a report

3 from counsel on these two interviews, since

4 it was requested that we speak to these two

5 gentlemen.

6 I think that it is important to keep in

7 mind that our mandate is to look into the

8 facts and circumstances surrounding

9 Senator Monserrate's conviction, and the

10 activities of these two gentlemen may

11 provide may pose many questions and

12 provide areas of further inquiry.

13 I think as far as we're concerned and

14 as far as our report is concerned, I don't

15 know that the interviews added mUCh. It

16 certainly didn1t change my point of view on

17 our findings of fact.

18 But with that, can I turn things over

19 to -- Lee, are you going to --

20 MR. CORTES: Yes.

21 CHAIRMAN SCHNEIDERMAN: Mr. Cortes is

22 going to brief us on the two interviews.

23 MR. CORTES: Good afternoon,

24 Senators.

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1 SENATOR STAVISKY: What page is that?

2 SENATOR SAVINO: What pages in the

3 report?

4 MR. CORTES: Senator, you can turn to

5 first page 18, footnote 21.

6 CHAIRMAN SCHNEIDERMAN: Now, hers

7 talking about the two areas that have been

8 changed.

9 And would you prefer red-lined

10 editions? Would that be helpful to the

11 members of the committee? Because we have

12 those. Why don't we give out --

13 SENATOR SAVINO: I have my original

14 draft.

15 CHAIRMAN SCHNEIDERMAN: You have your

16 red-line? Okay.

17 SENATOR STAVISKY: I don't. May I

18 have

19 MR. LEWIS: Actually, it's probably

20 easier to read the non-red-lined, because

21 the prior version just said that we expected

22 to speak with them. And this is actually

23 the data that

24 CHAIRMAN SCHNEIDERMAN: Yes, that_' s

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1 correct.

2 MR. LEWIS: Sorry, Lee.

3 CHAIRMAN SCHNEIDERMAN: Mr. Cortes?

4 MR. CORTES: So the first substantive

5 change is page 18, footnote 21. And these

6 relate to the two interviews that took place

7 this Saturday, Mr. Michael Nieves and

8 Mr. Luis Castro, who we interviewed pursuant

9 to the select committee's direction.

10 I'm going to brief you on Mr. Nieves'

11 interview and Ms. Gersowitz, my colleague,

12 will brief you on Mr. Castrols interview, as

13 she conducted that interview.

14 Brief background on Mr. Nieves. He was

15 employed by the New York City Council from

16 1998 until last week, when he resigned, I

17 believe.

18 CHAIRMAN SCHNEIDERMAN: According to

19 j\jr. Nieves.

20 MR. CORTES: According to Mr. Nieves.

21 CHAIRMAN SCHNEIDERMAN: I j list want

22 to make it clear that this all just

23 according to Mr. Nieves. 1 ' m not sure that

24 any of these facts -- let's not assume

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1 that -- counsel is not attesting to the

2 accuracy of the facts, let's put it that

3 way.

4 MR. CORTES: That's correct. This is

5 just -- my summary is based completely and

6 entirely on the responses that Mr. Nieves

7 gave to my questions during the interview.

8 He has acted as both a political

9 consultant, paid and unpaid, he has done

10 political consulting for Senator Monserrate

11 in the past, beginning with Senator

12 Monserrate's candidacy for district leader

13 in the late 1990s. He attested that he had

14 never been paid, either directly or

15 indirectly by Senator Monserrate, for any of

16 his services.

17 Following the December 19, 2008,

18 incident where Ms. Giraldo was injured, Mr.

19 Nieves served as a spokesman for Senator

20 Monserrate. He's known him since the late

21 1990s, and when Senator Monserrate was on

22 the New York City Council, Mr. Nieves was

23 assigned to work with him.

24 Going to the December 19th incident,

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1 Mr. Nieves was contacted by Senator

2 Monserrate's staff on the morning of

3 December 19, 2008, and notified of Senator

4 Monserrate's arrest and the fact that he

5 needed an attorney. And it was Mr. Nieves

6 who arranged for his attorney.

7 Mr. Nieves and Senator Monserrate's

B attorney were at dinner awaiting Senator

9 Monserrate's arraignment when Mr. Nieves was

10 contacted by Mr. Edward Irizzary, who is now

11 counsel to the Consumer Protection Committee

12 chaired by Senator Monserrate.

13 When Mr. Irizzary presented himself to

14 Mr. Nieves, he stated that he'd been in

15 contact --

16 SENATOR SAVINO: Excuse me.

17 That's -- so that's three people.

18 SENATOR STEWART-COUSINS: That's a

19 third person now.

20 SENATOR SAVINO: We were only aware

21 of two people, we only had knowledge that

22 there were two people involved that could

23 potentially be connected to Senator

24 Monserrate. Now we know it's three.

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1 SENATOR STEWART-COUSINS: Enter

2 Irizzary.

3 MR. CORTES: Yes. Correct.

4 When Mr. Irizzary presented himself to

5 Mr. Nieves, he said that he had been in

6 contact with Ms. Giraldo following her

7 interviews by the district attorney and the

8 New York City Police Department, and that it

9 was Ms. Giraldo's intention to address the

10 media and make a statement regarding the

11 events that had taken place earlier that

12 morning.

13 At that point Mr. Irizzary drove

14 Mr. Nieves to Austin Street and Continental

15 Avenue, where Ms. Giraldo was waiting in a

16 minivan we believe that was owned by her

17 cousin Jasmina Rojas, who accompanied her to

18 the party on the night of December 18th that

19 we have described to you previously.

20 Waiting in the minivan was Ms. Rojas,

21 her son, Javier Kaza, and Ms. Giraldo.

22 Mr. Irizzary and Mr. Nieves entered the

23 minivan along with Mr. Castro, who had been

24 either -- who had just arrived at the same

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1 time or had been waiting at the location.

2 So in the minivan was Ms. Giraldo, Mr.

3 Irizzary, Mr. Nieves, Mr. Castro, Jasmina

4 Rojas, and Javier Kaza.

5 SENATOR SAVINO: Can I ask a

6 question?

7 MR. CORTES: Sure.

8 SENATOR SAVINO: Why did they pick

9 71st and Continental Avenue?

10 MR. CORTES: Didn1t explain why that

11 location was picked.

12 ~lR. LEvIT S:I think you've got to

13 wait until you hear what Mr. Castro said.

14 SENATOR SlWINO: Because that's right

15 around the corner from central booking.

16 SENATOR STAVISKY: Down the block.

17 CHAIRMAN SCHNEIDERMAN: Why don't we

18 let them run through both, because there are

19 also inconsistencies between the two of

20 them. So let's just get both stories out on

21 the table.

22 MR. CORTES: Mr. Nieves said that all

23 the occupants of the car speak Spanish and

24 that the conversation that took place was

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1 conducted in Spanish.

2 Ms. Giraldo told her story to

3 Mr. Irizzary and Mr. Nieves, and the two of

4 them decided that it would be -- that her

5 story was helpful and that she should

6 memorialize it in an affidavit.

7 Mr. Nieves is a licensed notary in

8 Queens County, Kings County, and possibly

9 Manhattan, he wasn't -- he didn't recall if

10 he was -- and he has been a notary for

11 approximately 20 years.

12 The actual written statement was

13 written, handwritten by Mr. Irizzary in

14 English. But according to Mr. Nieves, he is

15 not a native Spanish speaker.

16 CHAIRMAN SCHNEIDERMAN: Mr. Irizzary.

17 MR. CORTES: Mr. Irizzary is not a

18 native Spanish speaker.

19 Mr. Ni.eves described the content of the

20 affidavit as "lawyer words" -- not

21 Ms. Giraldo's precise words, but reflective

22 of her story. And following the completion

23 of the affidavit, Mr. Nieves swore

24 Ms. Giraldo and Ms. Giraldo then signed the

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1 statement.

2 After it was completed, Mr. Nieves said

3 that he took the signed statement and

4 brought it to Senator Monserrate's attorney.

5 That's how the statement was completed.

6 And then the only other area that we

7 SENATOR STAVISKY: May I ask a

8 question about that?

9 MR. CORTES: Of course.

10 SENATOR STAVISKY: Did she understand

11 what she was signing?

12 MR. CORTES: Senator, :;;he --

13 CHAIRMAN SCHNEIDERMAN: Or more

14 properly, what did Mr. Nieves communicate

15 about that? Because we don't know.

16 SENATOR STAVISKY: That was my

17 question.

18 MR. CORTES: How Mr. Nieves

19 communicated that it was created was

20 Mr. Irizzary wrote it in English. Therels

21 conflict between what Mr. Irizzary said and

22 what Mr. Castro said, which we'll get to

23 momentarily.

24 Mr. Nieves said that Mr. Irizzary wrote

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1 the statement in English and then read the

2 statement to Ms. Giraldo in English,

3 explaining particular phrases that she

4 didn't understand, or that she would say

5 that "I don't understand" and then he would

6 repeat that phrase in Spanish.

7 CHAIRMAN SCHNEIDERMAN: That's

8 Mr. Nieves' version of how that took place.

9 MR. CORTES: Correct. Correct. And

10 then she signed the statement.

11 The only additional part of the Nieves

12 interview is that regarding the November 16,

13 2009, Daily News article regarding the

14 security provided for Ms. Giraldo, Mr.

15 Nieves is attributed as a source in that

16 article, and he confirmed that he did in

17 fact give those statements.

18 MR. LEWIS: He is also -- he's not a

19 lawyer, but as a notary he's required to

20 keep a book recording when and where he

21 takes a notarized statement. When asked

22 about his book --

23 MR. CORTES: He said he no longer

24 he stopped keeping it several years ago. So

------_. ------Page: 14 File: C:\DOCUME-l\FERRAN-l\LOCALS-l\Temp\notes7A28BO\11110.txt 1/13/2010, 1:59: 48PM

1 he has no other reflection of taking this

2 statement.

3 CHAIRMAN SCHNEIDERMAN: So why don't

4 we hear the report on the Castro interview,

5 and then we can discuss how they fit

6 together, if at all.

7 MS. GERSOWITZ: So we conducted an

B interview ~-

9 CHAIRMAN SCHNEIDERMAN: Oh, excuse

10 me, Erica.

11 Let me just say -- I'm sorry, I should

12 have noted this for the record before. All

13 of the members of the committee are here,

14 with the exception of Senator Ruth

15 Hassell-Thompson, who had another

16 appointment. I spoke to her before the

17 meeting and had a discussion about her views

18 on the issues that are going to come up.

19 Her counsel, Jerry Savage, is here, and we

20 will follow up with her when the meeting is

21 over.

22 Thank you. I'm sorry.

23 MS. GERSOWITZ: So we conducted an

24 interview of Luis Castro, who as you recall

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1 was the subject of the Daily News article,

2 which is why it came to all of your

3 attention.

4 And in that article Mr. Nieves was

5 attributed with noting that he escorted

6 Ms. Giraldo to the courthouse on the day

7 that she testified. Although I don't think

8 the article specifically said it was only on

9 the day that she testified, but based on

10 what we learned from Mr. Castro, he claims

11 to have only escorted her on that one day.

12 So we went over his background, his

13 relationship with Senator Monserrate.

14 Apparently he's known Senator Monserrate

15 since his birth, they're old family friends.

16 They continue to be in close contact and

17 have been in close contact throughout the

18 course of their relationship, which has been

19 both professional and personal.

20 In 2001, Mr. Castro volunteered with

21 Senator Monserrate's City Council campaign,

22 and he volunteered by introducing him to

23 various members of the community. He

24 described himself as somewhat of a community

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1 organizer.

2 And in 2002, he was hired by

3 Senator Monserrate as a community liaison

4 when Senator Monserrate was a City Council

5 member. So that was the first time that he

6 was officially employed by Senator

7 Monserrate and was actually paid a salary.

8 The work that he did on his campaign in

9 terms of helping organize was all unpaid

10 work.

11 In 2007-2009 he worked on other

12 political campaigns, and then in

13 September 2009 he took a month off. And it

14 was in early October 2009 that he was

15 offered the position as the special

16 assistant to the Consumer Protection

17 Committee, which is what was raised in the

18 Daily News article.

19 So he's got a long history with

20 Senator Monserrate. He currently works

21 rather closely with him. And he reports to

22 Ed Irizzary, who's counsel to the Consumer

23 Protection Committee, who we just discussed.

24 And he also has a relationship, as he

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1 described it, separate and apart from his

2 relationship with Senator Monserrate with

3 Karla Giraldo. He explained that he's known

4 her family for over 20 years. He was

5 introduced to her approximately three to

6 four years ago by her cousin, Jasmina Rojas,

7 who as you recall testified at the trial.

8 And that he has known Jasmina Rojas and her

9 husband for a long time, as they're involved

10 with the Spanish-language newspaper £1

11 Resumen.

12 He has served as both a frjend and, as

13 he described it, a spiritual advisor Lo

14 Ms. Giraldo and to her family. He's never

15 had a professional relationship with

16 Ms. Giraldo, nor has he ever been

17 compensated by her for any reason.

18 SENATOR SAVINO: Excuse me, did you

19 say spiritual advisor?

20 MS. GERSOWITZ: Yes. He described

21 himself as her pastor or her spiritual

22 advisor. He is -- according to him, he's an

23 ordained minister.

24 SENATOR SAVINO: Do we have a picture

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1 of this guy?

2 CHAIRMAN SCHNEIDERMAN: I don't know.

3 I don't think we have a picture of him.

4 SENATOR SAVINO: When you're done,

5 I'll tell you why I would like to see it.

6 Or at least I need to see him.

7 Go ahead, I'm sorry.

8 MS. (~ERSOWITZ: He claims that he

9 spent very little time with Ms. Giraldo and

10 Senator Monserrate together as a couple,

11 though he clearly has relationships with

12 both of them. He said on no more than two

13 occasions has he spent time with them as a

14 couple.

15 So we discussed the notarized statement

16 with him because he was part of that

17 process, though it's not clear from the

18 statement itself. And he described the

19 events that led up to his participation in

20 the creation of this statement. And he said

21 on December 19th, at approximately 6:30 or

22 7:00 p.m., Ms. Giraldo called him and asked

23 him to come meet her in Forest Hills.

24 He was aware at that time that

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1 Senator Monserrate had been arrested. When

2 he first learned about Senator Monserrate's

3 arrest, he did not know that the woman who

4 was alleged to have been injured was

5 Karla Giraldo.

6 He receives this call at approximately

7 6:30 or 7:00. Ms. Giraldo asks him to come

8 meet her in Forest Hills at the location

9 that was described earlier, and he agrees to

10 do that.

11 He goes and meets her, and she explains

12 to him that she's very upset about the way

13 that shels been treated. She was very

14 agitated about the way the district attorney

15 had treated her and was particularly focused

16 on her treatment by the district attorney.

17 She explained that she wanted to make a

18 statement, although Mr. Castro was not

19 entirely c),ear as to what type of statement

20 she wanted to make, whether it was a press

21 statement, a statement to help with

22 Senator Monserrate, or exactly what type of

23 statement it was. But she did want to make

24 a statement, and she wanted an attorney to

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1 corne help her make that statement.

2 As a result, Mr. Castro decided to call

3 Edward Irizzary, who was an attorney that

4 he'd known for approximately eight years.

5 He said he knew him from his work in the

6 community, as he has an office -- I believe

7 it's in Forest Hills, though I'm not

8 positive about that, but it's certainly in

9 Queens.

10 So he called Mr. Irizzary. He said he

11 did not consider the fact that Mr. Irizzary

12 had a relationship with Senator Monserrate,

13 which he knew that Mr. Irizzary did have a

14 relationship with Senator Monserrate. He

15 called him and he asked him to come to meet

16 them in the van. All of that's consistent

17 with what Lee just described.

18 A short while later, Mr. Irizzary came

19 with Mike Nieves. When Mr. Castro called

20 Mr. Irizzary, he didn't know that he was

21 going to bring Mike Nieves, but he appeared

22 with Mike Nieves. There was very little

23 discussion beforehand. They didn't

24 establish an attorney-client relationship

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1 between Ms. Giraldo and Mr. Irizzary. And

2 they pretty soon after got to work on the

3 actual statement.

4 Now, Mr. Castro's description of the

5 way that this statement was created is a bit

6 different than the description that Mr.

7 Nieves gave. The way he described the

8 process, Ms. Giraldo said each line in

9 Spanish and then Mr. Irizzary wrote that

10 down in English and then he read the English

11 sentence back in Spanish to Ms. Giraldo.

12 And if there were any issues that came up in

13 terms of whether he had represented what she

14 told him, she raised those issues. We asked

15 about what some of those issues were; he

16 didn't recall any of them in particular.

17 After the statement was finished,

18 Ms. Giraldo signed the statement, Mr. Nieves

19 notarized the statement, and they left soon

20 after that. There was no discussion about

2J. what was going to be done with the

22 statement. Mr. Castro was not aware of what

23 the follow-up was going to be. He said he

24 never spoke about the statement with

Page: 22 File: C:\DOCUME~1\FERRAN-l\LOCALS-l\Temp\notes7A28BO\11110.txt1/13/2010, 1:59: 48PM -----_.....-

1 Ms. Giraldo, nor did he speak about the

2 statement with Senator Monserrate after that

3 point.

4 So that was all of the information that

5 he provided us about the creation of that

6 statement. We then -- are there any

7 questions so far?

8 CHAIRMAN SCHNEIDERMAN: Why don't you

9 just finish the last bit. The last bit's

10 short.

11 MS. GERSOWITZ: So the last part, of

12 course, is the -- as you all know, there was

13 the Daily News arti.cle about the fact that

14 he accompanied Ms. Giraldo to court. We

15 asked him about that. He explained that he

16 did that as -- really as a personal favor.

17 She called him up a few days before she was

18 scheduled to testify, whj.ch was

19 September 30, 2009, and asked him to

20 accompany her.

21 Because he had concerns about all of

22 the press that were going to be there, he

23 called a few other individuals who

24 Ms. Giraldo also knew and invited them to

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1 corne along as well. He said he was never

2 compensated for that service, and he never

3 spoke with Senator Monserrate about

4 providing that. Nor did he receive any sort

5 of compensation from Senator Monserrate for

6 accompanying Ms. Giraldo on that day.

7 He said her motivation in asking him to

8 come with her was in part as her pastor or a

9 spiritual advisor and also as a friend.

10 MR. LEWIS: Just a couple of other

11 things. First, Nieves and Castro's

12 versions, the story in the Daily News and

13 those statements don't match. Because while

14 Nieves said "yes, I said that," and he

15 appeared to have had a conversation

16 claims to have had a conversation with

17 Castro about it, I checked with him and

18 Castro said that Nieves did it on his own

19 and never checked with him, that Castro

20 claimed to have complained to Senator

21 Monserrate about it and Monserrate just

22 said, HWell, it's the press, there's nothing

23 you can do with it."

24 How'd I do?

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1 The other, I think -- I'm sorry, I lost

2 my train of thought. The other Castro

3 remark was about being hired and the date he

4 said he was engaged, his conversation with

5 Senator Monserrate about being hired in

6 early November --

7 MS. GERSOWITZ: Early October.

8 MR. LEWIS: I'm sorry, early October,

9 and the timing of that, we thought you

10 should know about.

11 CHAIRMAN SCHNEIDERMAN: Keep in mind

12 that while he started on the payroll on the

13 19th, the verdict was four days before that.

14 MR. LEWIS: And he was contacted

15 prior to that date

16 CHAIRMAN SCHNEIDERMAN: According to

17 him.

18 MR. LEWIS: -- according to him, and

19 offered the job.

20 SENATOR SAVINO: Did he work for him

21 in the City Council? Yes, he did.

22 MS. GERSOWITZ: Yes, he did, as a

23 community liaison.

24 SENATOR SAVINO: When did he leave

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1 the City Council?

2 MS. GERSOWITZ: Approximately 2007.

3 CHAIRMAN SCHNEIDERMAN: Quite a while

4 before.

5 SENATOR FLANAGAN: Who is "he"? I

6 just want to make it clear.

7 CHAIRMAN SCHNEIDERMAN: Mr. Castro.

8 Mr. Castro. Thank you.

9 MR. LEWIS: Nieves left the Council

10 as recently as last week.

11 SENATOR SAVINO: Right. He was on

12 central --

13 CHAIRMAN SCHNEIDERMAN: He was on the

14 central staff.

15 MR. LEWIS: But as of last week he

16 isn't.

17 CHAIRMAN SCHNEIDERMAN: That's what

18 he says, yes.

19 SENATOR SAVINO: I mean, I guess we

20 could find out.

21 Did anybody ask either of them why

22 Ms. Giraldo didn't simply write the

23 affidavit in Spanish?

24 MR. LEWIS: No. But according to

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1 Castro, she insisted that they meet in the

2 van.

3 MS. GERSOWITZ: She did insist. And

4 Mr. Castro suggested

5 MR. LEWIS: She didn't want to go to

6 a restaurant or

7 SENATOR STAVISKY: Why did they meet

8 in the van?

9 CHAIRMAN SCHNEIDERMAN: I'm sorry,

10 again, just keep in mind all we know is what

11 Mr. Nieves said and what Mr. Castro said.

12 We do not know what happened, we don't know

13 what Ms. Giraldo did or why anyone did

14 anything.

15 So we have two somewhat inconsistent

16 versions of the story, and neither of them

17 purported to know why the meeting was in the

18 van. In fact, Castro wanted to go to

19 ns. c;ERsmnTZ: Mr. Castro suggested

20 going to a restaurant, gOlng somewhere else.

21 But according to Mr. Castro, she insisted

22 that she wanted to do this in the van.

23 SENATOR SAVINO: And at the time he

24 was not working for Senator Monserrate but

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1 he did have this personal relationship with

2 him.

3 MR. LEWIS: Who is "he"?

4 SENATOR SAVINO: Castro.

5 CHAIRMAN SCHNEIDERMAN: Mr. Castro,

6 correct.

7 MR. LEWIS: According to him.

8 SENATOR SAVINO: And the reason I

9 asked about what he looks like is in

10 November of 2008, before this incident

11 happened but after Election Day, many of us

12 were down in Puerto Rico for the Somas EJ

13 Futuro conference, and he had with him a

14 gentleman who I don't remember -

15 CHAIRMAN SCHNEIDERMAN: Who is "he"?

16 SENATOR SAVINO: Senator Monserrate

17 had with him a companion. I don't remember

18 the gentleman's name, although he presented

19 himself to everyone as his spiritual advisor

20 whose responsibility was to handle negative

21 energy that surrounds the Senator. Now,

22 this is before the incident with

23 Ms. Giraldo.

24 He was a very strange individual, and

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1 he at great lengths discussed about what his

2 role in Senator Monserrate's life was, was

3 to manage negative energy, particularly with

4 the press. It was one of the most bizarre

5 encounters I've ever had with anybody, and

6 that's why I'm curious to see whether it's

7 the same person.

8 MS. GERSOWITZ: I can tell you that

9 we asked whether Mr. Castro acted as a

10 spiritual advisor to Senator Monserrate, and

11 he said that he did not.

12 CHAIRMAN SCHNEIDERMAN: He does have

13 a website that we'll get the information.

14 Of course you can look at him and see if

15 this is --

16 SENATOR STAVISKY: Is he an ordained

17 minister?

18 CHAIRMAN SCHNEIDERMAN: He says he

19 is.

20 MS. GERSOWlTZ: He claims to be.

21 CHAIRMAN SCHNEIDERMAN: So just let

22 me note -- Senator Flanagan.

23 SENATOR FLANAGAN: I have a couple of

24 questions. I didn't catch your name.

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1 MR. CORTES: Lee Cortes, from

2 Kaye Scholer.

3 SENATOR FLANAGAN: Mr. Cortes, okay.

4 You referenced Senator Monserrate getting an

5 attorney.

6 MR. CORTES: Yes.

7 SENATOR FLANAGAN: It sounded like

8 somebody was tasked with that

9 responsibility.

10 MR. CORTES: Mr. Nieves, yes.

11 CHAIRMAN SCHNEIDERMAN: According to

12 Mr. Nieves.

13 MR. CORTES: According to Mr. Nieves,

14 on the morning of December 19th, at

15 approximately 7:00 a.m., he was contacted by

16 members of Senator Monserrate's staff. He

17 has specifically identified Wayne Mahlke as

18 the individual who contacted him. And he

19 relayed to him that Senator Monserrate hod

20 been in touch with Mr. Mahlke and that he

21 had requested that an attorney come to the

22 precinct where he was.

23 Mr. Mahlke then contacted Mr. Nieves,

24 and Mr. Nieves contacted the attorney for

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1 Senator Monserrate. The attorney's name is

2 James Cullen, whom Mr. Nieves has had a long

3 relationship with and who in fact

4 accompanied him to the interview that I took

5 of him on this Saturday.

6 So Mr. Nieves was the individual that

7 Mr. Mahlke turned to to retain an attorney.

8 Which he did.

9 CHAIRMAN SCHNEIDERMAN: Again,

10 according to Mr. Nieves.

11 MR. CORTES: All according to

12 Mr. Nieves.

13 SENATOR FLANAGAN: Okay. So

14 Mr. Nieves, his attorney is Mr. Cullen?

15 MR. CORTES: That's who represented

16 him at the interview. I did not question

17 him regarding the extent of his

18 attorney-client relationship with

19 Mr. Cullen.

20 SENATOR FLANAGAN: I know this is

21 seemingly off-base, but did Mr. Nieves hire

22 Mr. Cullen to represent Senator Monserrate?

23 Or when did Mr. Tacopina come in?

24 MR. LEWIS: Tacopina is the third

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1 lawyer engaged. There's an intermediate law

2 firm that produced the signed, notarized

3 statement to the DA. I forget the name of

4 it.

5 SENATOR FLANAGAN: Again, just as a

6 follow-up on -- I want to follow up some of

7 the questions about the English and the

8 Spanish.

9 There's a reference that Mr. Irizzary

10 is an attorney but is not a native Spanish

11 speaker.

12 j\1R. CORTES: According to Mr. Nieves,

13 he is not a native Spanish speaker. And I

14 asked him if he knew whether Mr. Irizzary

15 could either read or write in Spanish, and

·16 he said he didn't know. He said he could

17 speak Spanish, but he didn't know if he was

18 a native Spanish speaker.

19 SSNATOR SAVINO: But he didn't know.

20 CHAIRMAN SCHNEIDERMAN: Mr. Nieves

21 did not know.

22 SENATOR SAVINO: He did not know if

23 Mr. Irizzary was a native Spanish speaker.

24 Not that he wasn't, but he didn't know if he

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1 was.

2 MR. CORTES: Correct. Correct.

3 SENATOR ALESI: But Irizzary then

4 repeated back to Ms. Giraldo --

5 MR. CORTES: Well, I'm sorry -- I'm

6 sorry, let me take that back. I believe he

7 said he wasn't.

8 CHAIRMAN SCHNEIDERMAN: According to

9 Nieves.

10 SENATOR ALESI: He was not a native

11 speaker.

12 MR. CORTES: Yes, he is not a native

13 speaker. According to Nieves, his belief

14 was that he was not a native Spanish

15 speaker. My apologies.

16 SENATOR ALESI: But if I recall

17 correctly, she spoke to him in Spanish, he

18 wrote it in English, and then he reiterated

19 back to her in Spanish what he had written?

20 SENATOR SAVINO: That's what Castro

21 says.

22 MR. CORTES: That's what Castro said.

23 CHAIRMAN SCHNEIDERMAN: Nieves says

24 it was more casual than that. That she made

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1 the statement, then he wrote it up and they

2 explained parts to her.

3 But let me just note that this is

4 something that we the inquiry was

5 requested, and we followed up on it. For

6 the purposes of this report, which is really

7 supposed to be investigating the facts and

8 circumstances surrounding the conviction,

9 the issues raised by Mr. Castro and Mr.

10 Nieves are really just relevant to our

11 determinations as to the credibility of

12 Senator Monserrate and Ms. Giraldo and his

13 acceptance of responsibility.

14 So the actual changes in the report

15 and these are the only two significant

16 changes that were made since the last

17 round -- are on page 18, the footnote that

18 was identified earlier, footnote 21, and

19 then on page 29, where we have the

20 paragraph -- again, this was requested at an

21 earlier meeting -- about how the select

22 committee was also troubled by the fact

23 that -- and I guess Me should make it three

24 individuals, based on Senator Savinors

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1 observation.

2 MS. GERSOWITZ: There is a reference

3 to Mr. Irizzary thatrs in the text

4 associated with

5 CHAIRMAN SCHNEIDERMAN: Yes. It's no

6 longer two.

7 SENATOR ALESI: I think there was

8 another concern that I had expressed, and

9 that was the possibility that maybe the

10 affidavit or statements in the affidavit had

11 been coerced or coordinated.

12 CHAIRMAN SCHNEIDERMAN: Well, I think

13 what we have here is the information from

14 these two individuals. And frankly, you

15 know, I think that the statements are

16 somewhat inconsistent, but what we have here

17 is a pretty -- to me, a pretty clear picture

18 that, you know, there were a group of people

19 who were connected to Senator Monserrate

20 sitting in a van later in the same day as

21 the incident, J.ate in the day on

22 December 19th, obtaining a statement from

23 Ms. Giraldo that was notarized that

24 essentially framed her involvement for the

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I rest of the proceeding.

2 So we know that's how the notarized

3 statement was produced, and that1s really

4 the focus of this inquiry. Because several

5 members of the committee were concerned

6 about the validity of it. And hopefully as

7 you review the two entries on page 29 and on

8 page 18, that these will fairly frame out

9 and articulate our concerns.

10 SENATOR LANZA: And the point of the

11 authenticity, timing, and whether or not

12. there was coercion with respect to that

13 affidavit is made more difficult by virtue

14 of the fact that, as everyone knows,

15 Ms. Giraldo declined appearing before the

16 committee.

17 CHAIRMAN SCHNEIDERMAN: And it should

18 also be noted that Mr. Castro cancelled

19 meetings with our counsel on -- was it three

20 occasions?

21 MR. CORTES: Three occasions.

22 CHAIRMAN SCHNEIDERMAN: So it was not

23 so easy to get ahold of these gentlemen.

24 But I think that given the fact that

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1 we're, in my view, into something that is a

2 little bit far afield from the point of our

3 inquiry, I don't know that we should pursue

4 this any further.

5 Also, I would note that for the

6 purposes of our inquiry this doesn't change

7 anything, in my view, ultimately, in my view

8 of the situation or the recommendations. I

9 don't know if that!s true of anyone else

10 here.

11 SENATOR STAVISKY: May I point out

12 one other or perhaps ask one other

13 question.

14 It took him approximately two weeks to

15 fax that notarized statement to the Queens

16 district attorney's office. It was obtained

17 on December 19th and faxed, I think, on

18 January 3rd.

19 CHAIRMAN SCHNEIDERMAN:

20 So I guess before we go to the final

21 discussion relating to recommendations, is

22 everyone satisfied with the report up until

23 the recommendation section, with these

24 two -- these additions? There were several

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1 other minor edits really having to do with

2 grammar and some other correction of

3 language. Mr. Lewis and our counsel worked

4 together on this. Several members of the

5 committee phoned in suggestions for edits or

6 spotted typos.

7 But is this portion relating to

8 Mr. Castro and Mr. Nieves now acceptable to

9 the members of the committee?

10 SENATOR SAVINO: Yes.

11 SENATOR STEWART-COUSINS: Yes.

12 SEN}\.TOR LANZA: Well, i l r s acceptable

13 to the degree that I think we1ve done and

14 exhausted that which we could do.

15 CHAIRMAN SCHNEIDERMAN: I donlt mean

16 the underlying conduct is acceptable, I just

17 mean as far as our draft.

18 And Mr. Savage is here on behalf of

19 Senator Hassell-Thompson. \Ihll you confirm

20 with me that those two entries, the two

21 entries relating to Mr. Nieves and Mr.

22 Castro, are acceptable to the Senator?

23 MR. SAVAGE: Yes, Senator.

24 CHAIRMAN SCHNEIDERMAN: Thank you.

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1 As far as I'm aware, then, based on the

2 discussions we've had -- Senator Lanza has

3 had with his colleagues and I've had with

4 mine -- I believe that everything else in

5 the report has been agreed to by all members

6 of the committee, with the exception of the

7 question that arose today relating to the

8 third paragraph in the recommendation

9 section.

10 SENATOR LANZA: Page 53.

11 CHAIRMAN SCHNF.IDERMAN: On page 53.

12 The draft that was distributed after

13 our December 29th meeting incorporating a

14 suggestion made originally by Senator

15 Stavisky stated, at the end of this

16 paragraph: "The committee recommends that

17 the full Senate convene to consider, debate

18 and vote on a resolution for expulsion as

19 soon as reasonably possi,ble. If that

20 resolution fails to pass, the Senate should

21 consider, debate and vote on a resolution

22 for censure with the revocation of

23 privileges."

24 And Senator Lanza has now got a

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1 suggestion to modify that sentence. And

2 that's a request that he made earlier today.

3 And maybe you could read the

4 alternative version, Senator.

5 SENATOR LANZA: Yeah. Just to bring

6 you to that -- the paragraph beginning with

7 "accordingly," the suggestion is that -- is

8 that the second sentence? The second

9 sentence, beginning with "the corrunittee

10 recommends," that it should be changed to

11 read as follows: "The committee recommends

12 that the full Senate convene to consider,

13 debate and vote on both resolutions as soon

14 as reasonably possible." And then to strike

15 the final sentence in that paragraph.

16 SENATOR SAVINO: Why?

17 SENATOR LANZA: I think -- you know,

18 the fact is is that each member here,

19 probably by now more than anyone else,

20 because we have been part of this process to

21 investigate all the evidence surrounding

22 these events and the arrest -- and I'm not

23 going to speak for anyone -- but, you know,

24 may have reached opinions with respect to

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1 what you are going to do on the Senate

2 floor.

3 I think the charge for this committee

4 has been -- and I think we've remained true

5 to that -- is to conduct a thorough

6 investigation and then report to the Senate

7 our recommendation. I think the

8 recommendation here and the consensus is is

9 that there's a recommendation for sanction

10 and that the possibilities are expulsion or

11 censure.

J.2 And there's a concern that this

J.3 language, while I think technically not

14 technically does not -- I think, you know, a

J.5 reasonable reading of it would not be, I

16 think, interpreted as us recommending which

17 one the body should take, I think that a

18 casual reading of it would do so and in fact

J.9 might be interpreted as this co~~ittee

20 actually recommending that the vote on the

21 floor be for expulsion.

22 And so I think the change that I've

23 suggested would, you know, avoid that from

24 happening.

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1 MR. LEWIS: Can I make just one

2 suggestion in thinking about this.

3 Under none of our rules have we ever

4 had a committee been given permission or

5 allowed to dictate the order of business on

6 the floor. Welre now for the first time

7 doing something that we don't do. And the

8 reason we don't do that is that even under

9 whatever traditions we have, the leaders

10 decide the calendar. If we had a different

II method of doing it, even under our current

12 rules we don't control as a committee what

13 happens on the floor. We can make a

14 recommendation, we can set out whatever we

15 do. But this goes further than the scope

16 that a committee should be doing. That 1 s

17 the first level.

18 The second level is that many of the

19 changes that we've done have taken out

20 anything that could be read to be a

21 recommendation of censure as opposed to

22 expulsion or expulsion rather than censure.

23 We've tried very carefully so that both the

24 perception and the text have that balance,

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1 so that when it comes to -- whatever comes

2 to the floor, this committee report is as

3 objective on its face and in its intention

4 as anybody could possibly produce, leaving

5 all of you free to vote however you want

6 once you vote as members.

7 So the two theories, when we looked at

8 this closely today, was, first, you should

9 not commit to an order of business, because

10 you don't have the power. And, second, the

11 order of business will be determined by

12 events. If the leaders decide to put one in

13 favor of the other, the committee's

14 recommendation won't matter.

15 And rather than have a situation in

16 which the leaders may do something the

17 committee has not recommended, or put the

18 leaders in the position where they have to

19 reject what the committee has done on that

20 level or in some way crea~e a problem, the

21 best thing to do is that welre silent on it

22 and let the process work out.

23 SENATOR LANZA: Let me just as say as

24 to the -- with respect to the order of

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1 things, Senator Stavisky raised the point

2 first in our last meeting. And it is by

3 virtue of the sheer logic of the way this

4 would proceed is that, you know, if there

5 are two resolutions, that expulsion would

6 come first.

7 But I think the overriding point for

8 the language change here is that there seems

9 to be a recommendation by this committee

10 as presently written, perhaps -- that we are

11 recommending one over the other. And I

don't think that has been the intent of this

13 committee.

] 4 CHAIRMAN SCHNEIDERMAN: Well, let me

15 just make a --

16 SENATOR LANZA: And so -- I'm sorry,

17 Mr. Chairman.

18 CHAIRMAN SCHNEIDERMAN: Go ahead.

19 SENATOR LANZA: And so whether or not

20 we speak to the order of things, the sheer

21 logic and mechanics of the way this would

22 have to unfold would dictate that the one

23 would come before the other.

24 CHAIRMAN SCHNEIDERMAN: I just want

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1 to make a note that obviously all we're

2 doing is issuing a report and making

3 recommendations. That's what our resolution

4 told us to do.

5 The leaders don't have to adopt our

6 recommendations. The rest of the Senate

7 doesn't have to adopt our recommendations.

8 Our mandate is to make recommendations, and

9 hopefully all of the work we put into this

10 report will convince people that our

11 recommendations should be taken seriously.

12 I guess the concern that some of us

13 have is we want to make it -- look, this is

14 an effort, again, to have consensus. And I

15 think everyone has worked very hard for us

16 to achieve a bipartisan consensus on that,

17 and I really do appreciate that effort.

18 There are some members of the committee

19 who feel very strongly Lhat a motion for

20 expulsion must be brought to the floor. And

21 I think that the language you1ve proposed

22 saying that both resolutions should be voted

23 on as soon as possible indicates that that's

24 the case.

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1 I think that one of the concerns that

2 was raised is if we in fact do vote on both

3 resolutions and they both pass, which is

4 possible, you end up having one resolution

5 saying Senator Monserrate remains a Senator

6 without being stripped of his committee

7 privileges and other privileges as we1ve

8 defined it, and then a second resolution

9 saying Senator Monserrate is not to remain

10 as a Senator. So essentially we have two

11 conflicting resolutions that produce -- if

12 you did not vote on expulsion first, that's

13 a possibility.

14 I think that that is one concern. And

15 this is really structured the way you would

16 structure a charge to a jury. That, you

17 know, you consider murder and if you acquit

18 on murder, that only then do you need to

19 consider manslaughter. This is -- anyway,

20 that's the logic.

21 And I personally think Senator

22 Stavisky's point was well taken. And it

23 does ensure that the resolutions will come

24 to the floor, but provides some additional

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1 guidance.

2 I understand Mr. Lewis's point; the

3 leaders have the power to disregard all our

4 recommendations. So we're not imposing on

5 their authority, we're just making a

6 suggestion.

7 SENATOR LANZA: Senator, I think you

8 make a good point.

9 First, let me say I donlt think there's

10 a disagreement here with respect to the

11 order of things. I think Senator Stavisky's

12 POiTlt is a valid point.

13 And perhaps to address your point, the

14 point you've just made is that we decouple

15 the both in the suggested revision from the

16 vote, but retain it with respect to the

17 consideration and perhaps debate. So that

18 it's clear that we're not precluding or that

19 we're not requiring a vote on both. Because

20 if there is a vote on one, you'd never get

21 to the second vote, I think what is you're

22 saying.

23 But what we're saying is that we want

24 language that does not give the perception

------Page: 47 File: C:\DOCUME-l\FERRAN~1\LOCALS-l\Temp\notes7A28BO\11110.txt1/13/2010, 1:59: 48PM

1 to the body that we are recommending a vote

2 on one over the other.

3 SENATOR SAVINO: But we are.

4 SENATOR LANZA: No, we're not.

5 CHAIRMAN SCHNEIDERMAN: No, I think

6 we're just recommending an order.

7 SENATOR LANZII.: We're recommending

8 that there be a sanction. We are not

9 recommending at least I'm not

10 recommending that the members of the body in

11 this report should vote for expulsion or

12 should vote for sanction.

13 SENATOR SAVINO: So that we're

14 recommending that it should be considered by

15 the full body. Based upon our findings and

16 all of the evidence that we've examined,

17 that this infraction rises to the level that

18 should be considered for expulsion and/or

19 censure.

20 We're not leaving the door open for

21 anything else, werre not saying reprimand

22 or -- you know, we're clearly stating we

23 think that this could warrant the ultimate

24 penalty and, failing that, this should be

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1 the next thing that the Senate considers.

2 We're not saying, you know, take no

3 action. We're deliberately saying -- now, I

4 understand what David also says with respect

5 to the fact that the committees never direct

6 what goes on on the floor. And even if we

7 were to put in here that you take up one

8 resolution before the other, we're still not

9 directing what happens on the floor, because

10 it's ultimately up to the leaders as to

11 whether or not they're going to accept our

12 report with our recommendation.s and act on

13 it.

14 All we're doing, I think, is we're

15 saying we believe that this action should be

16 taken. We don't have the ultimate authority

17 to make it happen. But I think in terms of

18 order and, you know, to prevent some level

19 of chaos on the floor of the Senate, I think

20 we should layout what we think makes the

21 most sense, recognizing that we canlt

22 control the final outcome anyway.

23 CHAIRMAN SCHNEIDERMAN: Does anyone

24 else want to weigh in before we --

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1 SENATOR FLANAGAN: 1 ' m going to join

2 my comments to those of Senator Lanza. And

3 I'm going to use the recent events since our

4 last meeting as a reason why I think the

5 language should be more neutral.

6 This is clearly, in my opinion, going

7 to create a perception problem. And all we

8 have to do -- nobody wants to talk about it,

9 but the reality is when we had our last

10 meeting, before we even left the building,

11 all the news media had the entire report.

12 1 ' m still personally seething over what

13 happened, because it was reprehensible.

14 Whoever was involved in that, frankly, if we

15 find out, they should be fired or expelled,

16 frankly, if it's one of the members.

17 My point is that all we need to do is

18 look at what happened with that version of

19 the report. There was a tremendous amount

20 of hyperbole that was associated with what

21 was not even a final report. There were

22 predeterminations made, there were

23 aspersions cast, there were all kinds of

24 innuendo and other things corning out of

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1 something that had not been properly

2 finalized.

3 I firmly believe that we are sending a

4 message that we are listing a preferred

5 course of action. I know how I feel; I'm

6 not going to speak for any of the other

7 members. But I really do think i.f we say

8 that the order should be a vote on

9 expulsion, then a vote on censure, what

10 we're going to read as soon as this report

11 comes out is "Committee recommends

12 expulsion."

13 And I don't care who the member is; the

14 reality is we're dealing with a very touchy

15 situation. I think we need to tread very

16 lightly and professionally. And we can do

17 so by suggesting -- probably the most

18 important thing we can do is suggest that

19 action be taken s\cJiftly and immediately.

20 SENATOR LANZA: And if I could

21 just -- I know Senator Stavisky -- but as I

22 stated earlier, a technical reading, a true

23 reading of this does not Hould not

24 suggest the bias. But a casual reading, I

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1 believe, would. And I think we have to

2 assume the casual reading and assume those

3 who would try to twist this in a way that we

4 do not intend.

5 And the suggested language, though, I

6 think would avoid the ability for those to

7 twist this and for that perception without

8 changing at all, really, the true meaning of

9 what we're saying here. We're still saying

10 both.

11 SENATOR STAVISKY: Yes, I wanted to

12 perhaps make a suggestion, then.

13 If you left the language intact but

14 added the sentence that "we are not

15 recommending ODe penalty over another, but

16 simply the order of consideration" --

17 CHAIRMAN SCHNEIDERMAN: Would that

18 make it better?

19 SENATOR STAVISKY: -- would that

20 remedy some of the objections? If we

21 specifically state we are not recommending

22 one penalty over another but simply the

23 order of presentation.

24 SENATOR STEWART-COUSINS: I'm

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1 comfortable with that.

2 MR. LEWIS: Once you recommend the

3 process that way, even though you're saying

4 you're not, you are.

5 SENATOR STAVISKY: They do this all

6 the time in the court, which is why I

7 thought of it. The courts deal with the

8 most serious offense first, and then they

9 proceed to the less serious.

10 MR. LEWIS: But juries are instructed

11 on how to do that. We're not going to be

12 able to correct things in that fashion.

13 SENATOR LANZA: I'm tempted by that,

14 Senator, I think, if we added a final

15 sentence that said in no way is this

16 committee recommending one over another.

17 But, you know, your analogy gives me a

18 different -- leads me to a different

19 decision. It's kind of like the

20 objection -- you know, if someone makes an

21 objectionable statement before a jury and

22 then the objection is upheld and they're

23 told to forget what was said, but of course

24 that's impossible.

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1 CHAIRMAN SCHNEIDERMAN: You've never

2 made any of those, have you?

3 SENATOR LANZA: Yeah, no. Never.

4 SENATOR STAVISKY: No, because you're

5 ethical lawyers.

6 CHAIRMAN SCHNEIDERMAN: Let me raise

7 a more fundamental point that I think is

8 underlying part of this discussion, and

9 that's that I think there is a concern among

10 some members who feel strongly that they

11 want to ensure that a vote on expulsion does

12. in fact get to the floor.

13 And I think, cutting through it, I

14 think that is one of the concerns with the

15 language, that this not be presented in a

16 way where there's any perception that the

17 committee is not going to recommend that a

18 vote on expulsion take place.

19 We're also recommending that there is

2.0 another option and that there could be a

vote on that. In the current draft, we're

recommending an order. But I think that!s

23 just something I would urge everyone to be

24 sensitive to, that whatever the language is

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1 we choose, I know there are some members df

2 the committee who are not prepared to sign

3 onto the report if they believe that a vote

4 on expulsion that we will not be

5 recommending that a vote on expulsion take

6 place, whether by itself or in the context

7 of other votes as well.

8 I think we're going to take a short

9 break. Anyone else want to weigh in before

10 we do that?

11 SENATOR ALESI: I do want to stress

12 the fact that hOIr,leVer this cormnil~tee accepts

13 the wording that we should not exclude the

14 word "both." Because if in fact the order

15 turns out to be censure and then possibly

16 expulsion, and then obviously if we expel,

17 there's no point in doing censure unless you

18 just want to be totally vindictive.

19 But if you do censure, then it may also

20 eliminate in the political world the desire

21 on the part of some people to even bring up

22 expulsion when many of the members might

23 want an expulsion.

24 So I would simply say that we -- no

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1 matter what we do with this language that we

2 should always have in the sentence both

3 resolutions should be presented as a

4 recommendation of the committee.

5 CHAIRMAN SCHNEIDERMAN: Okay. Thank

6 you. Fair point.

7 So we're going to take a very, very

8 brief break. I know we have not always been

9 accurate in our prediction of the duration

10 of breaks, but this is really three or four

11 minutes. Thank you.

12 (Brief recess taken.)

13 CHAIRMAN SCHNEIDERMAN: So, ladies

14 and gentlemen, welre reconvening after a

15 brief break.

16 Let me just go over where we are,

17 because I do believe we're nearing the end

18 of our process as a committee.

19 I would like to make sure that we

20 confirm that all the members of the

21 committee -- and Senator Hassell-Thompson's

22 counsel is here and will confer with her and

23 then confirm -- that by the commencement of

24 business tomorrow morning, shall we say, by

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1 10:00 a.m., confirmation that everyone is in

2 agreement on everything else in the report,

3 we're ready to sign off with the exception

4 of this one sentence that has produced this

5 conflict.

6 It seems to me, based on the

7 discussion, that there are some members who

8 feel strongly that our recommendation

9 include a recommendation that guarantees

10 that a resolution on expulsion will in fact

11 be voted on on the Senate floor.

12 And there is a concern that, as Senator

13 Flanagan and Senator Lanza pointed out/ a

14 casual reading as opposed to a technical

15 reading might lead someone to say, oh,

16 you're just saying either/or, you're not

17 recommending that we ensure that a vote on

18 expulsion go to the floor.

19 And then I think on the other side some

20 members of the committee are concerned that

21 the language in the current draft appears to

22 be favoring expulsion over censure and the

23 stripping of privileges and have a concern

24 that, again, a casual reading rather than a

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1 technical reading would give that

2 impression.

3 So given the fact that it's now almost

4 6:00 p.m., what I would like to suggest is

5 the following, if this is acceptable to

6 Senator Lanza and the rest of you. Why

7 don't we try and get a confirmation that

8 everything in the report is fine, everyone

9 is ready to sign by 10:00 a.m. tomorrow

10 morning. Please just contact Chris in my

11 office or me personally.

12 And then, in the meantime, Senator

13 Lanza and I and our counsels will try to

14 come up with maybe ODe or two alternative

15 versions of language to suggest to the

16 conunittee. If we are agreed on that

17 language, then we're prepared to just stick

18 it into the report and then we're done, as

19 far as 1 1 m concerned.

20 Does that sound acceptable?

21 SENATOR STEWART-COUSINS: Sounds

22 good.

23 CHAIRMAN SCHNEIDERMAN: Sorry, this

24 sort of reminds me of a goal-line stand with

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1 a few penalties. It just seems as though

2 we're very close but we canlt quite get

3 there.

4 SENATOR YOUNG: Excuse me,

5 Mr. Chairman. Should we bring with us

6 tomorrow a copy of the statute that brought

7 the original charge that this committee is

8 supposed to be doing? Because maybe that

9 would be helpful in our deliberations.

10 CHAIRMAN SCHNEIDERMAN: Referring to

11 Legislative Law Section 3?

12 SENATOR YOUNG: Yes.

13 MR. LEWIS: The full text of it is in

14 the report.

15 CHAIRMAN SCHNEIDERMAN: Yeah, we can

16 refer to the language of it that's in the

17 report.

18 Senator Lanza and I will confer. I'm

19 not sure about whether welre going to need

20 to convene and deliberate. We may have

21 agreement without doing that and then may

22 just be able to have a draft that is

23 circulated and signed.

24 So let us visit that issue, and then

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1 we'll be in touch with everyone tomorrow.

2 SENATOR LANZA: That is because I

3 believe that we really have achieved

4 consensus in substance. It's a matter of

5 semantics and wording in the report at this

6 point.

7 CHAIRMAN SCHNEIDERMAN: Okay, thank

8 you all very much.

9 Senator Flanagan.

10 SENATOR FLANAGAN: One other point.

11 I'd just like to make sure that the

12 transcripts are released simultaneously with

13 the report.

14 CHAIRMAN SCHNEIDERMAN: Okay, that's

15 a good point.

16 How long will it take us to get written

17 transcripts in a form that can be released,

18 I glless -- not so much that we need hard

19 copies, but we need them on disks that we

20 can make available to people.

21 SENATOR FLANAGAN: Everything up

22 until this meeting is done, I believe.

23 THE REPORTER: I can't answer for the

24 previous meeting in Manhattan. I think

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1 everything else is done.

2 CHAIRMAN SCHNEIDERMAN: All right, we

3 will check that also by the beginning of the

4 day tomorrow and confirm.

5 I think that's a good suggestion that

6 Senator Flanagan has made. Is it the

7 consensus of the committee that we should

8 have the full transcripts so that we can

9 release them when we release the report and

10 make it clear that this is the most open and

11 transparent committee that has ever met

12 here?

13 SENATOR LANZA: Yes.

14 SENATOR STAVISKY: And videotape or

15 surveillance tapes.

16 SENATOR SAVINO: Everything.

17 SENATOR LANZA: That is part of the

18 exhibits.

19 CHAIRMAN SCHNEIDERMAN: That is in

20 part of the exhibits, yes.

21 SENATOR ALESI: And at the point

22 where we deliver our recommendation, for

23 what itrs worth I think we should probably

24 also proclaim the time at which this

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1 committee no longer serves a purpose.

2 CHAIRMAN SCHNEIDERMAN: Yes,

3 fortunately for us, by the specific terms of

4 the resolution that created this committee,

5 once we issue our report we go out of

6 existence.

7 SENATOR STAVISKY: And hope we don1t

8 come back.

9 CHAIRMAN SCHNEIDERMAN: They need a

10 new resolution to get us back.

11 SENATOR ALESI: It would be worth

12 stating it.

13 CHAIRMAN SCHNEIDERMAN: I think

14 that1s another valid point.

15 Thank you very much. We will talk

16 tomorrow morning. And please have someone

17 get in touch with my office confirming

18 everything but this one sentence.

19 Thank you.

20 (Whereupon, at 5:58 p.m., the

21 committee meeting concluded.)

Page: 62

I I I I I \ \ I I RE,PORT OF THE NEWYORK STATE SENATE SELECT COMMITTEE TO INVESTIGATE THE FACTS AND QRCUMSTANCES SURROUNDING THE CONVICTION OF HIRAM MONSERRATE ON OCTOBER 15,2009 -_ .._-'"

TABLE OF CONTENTS

I. PROCEDURAL I-llSTORY I A Background of the Incident and Oiminal Proceedings..... I B. Formation of the Select Committee and Scope of Investigation 2 C. CoWlseI for the Select Committee 2

II. TIlE SELECf COMMITTEE'S INVESTIGATION 3 A Legal Authority to Investigate 3 B. Investigative Steps 4

III. FACfS , 6 A Uncontested Facts Relating to the Events of December 18-19, 2008 6 B. Oiminal Proceedings Against Senator Monserrate 8 1. Key Points Made By The Prosecution 8 2. Key Points Made By The Defense 10 3. Verdict 12 4. Sentencing: 14 5. Appeal... 16 C. Additional Evidence Reviewed by the Select Committee 16 1. Grand Jury Testimony of Karla Giraldo 16 2. The Notarized Statement of Karla Giraldo 17 3. Routes to LIJ ]8 4. Telephone Records 19 5. Senator Monserrate's Interviews with the Media 2I

IV. FINDINGS OF TIlE SELECf COMMITTEE 22 A The Select Committee's Mandate 22 B. Karla Giraldo's Versions of Events Are Inconsistent and Unreliable 23 C Senator Monserrate Failed to Cooperate with the Select Committee 26 D. Additional Findings of The Select Committee 28 1. The Two Versions of Events Are Mutually Inconsistent.. 28 2. The Select Committee Rejects Senator Monserrate's Version of Events 28 3. Senator Monserrate Has Not Accepted Responsibility For His Actions 30

V. LEGAL AU1HORIIT TO SANCTION 33 A Expulsion 35 1. Legislative Law §3 35 2. Constitutional Authority 37 ,I . a. The Nature of State Legislative Power 39 b. The New York Constitution 40 3. Effect of the Tuning of lvIisconduct on the Power to ExpeL 42 4. Precedent for Expulsion 44 a. New York Expulsion Cases 44 i. Senator John Williams (1779) 44 ii. Senator Ephraim Paine (1781) 45 iii. Assemblyman Jay Gibbons (1861) 46 iv. Senator Charles G. Cornell (1867) 46 v. Five Socialist Assembly Members (1920) 47 b. Other Notable Expulsion Cases 48 i. Senators Frank French, Eli Wright, E. J. Emmons, & Hany Bunkers (1905) 48 11. Representative Thomas E. Wright (2008) 48 ill. Senator DavidJaye (2001) 48 IV. Senator William Blount (1797) 49 v. Senator Harrison Williams (1982) 49 vi. Senator Bob Packwood (1995) :.. 49 B. Sanctions Other Than'Expulsion : 50 1. A11thority 50 2. Precedent 51 a. Censure 5I 1. Senator Richard Schermerhorn (1980) 51 ii. Senators Irwin, Saxton, & O'Connor (1892) 51 b. Withdrawal of Privileges 51 i. Assemblyman Mike Cole (2007) 51 ii. Assemblywoman Gerdi E. Lipschutz (1987) 52

VI. RECOMMENDATIONS 53

~~- ._~------'- 1. PROCEDURAL HISTORY A BACKGROUND OF THE INODENT AND CRIMINAL PROCEEDINGS On November 4,2008, New YOlk City Council Member Hir.un Monserrate, then 41 years of age, was elected to represent the 13th District in the New York State Senate. At the time, Senator-elect Monserrate was involved in an intimate relationship with Ms. Karla Giraldo, then 29 years of age. At approximately 3:00 a.m. on December 19, 2008, an incident occurred at Senator elect Monserrate's apartment in which Ms. Giraldo sustained serious facial lacerations from a broken drinking glass in addition to other injuries. Senator-elect Monserrate then escorted Ms. Giraldo from the premises. Large portions of this latter event were video-recorded by the apanmem building's security system. Thirty-seven minutes after leaving the building, Ms. Giraldo and Senator elect Monserrate amved at Long Island Jewish Medical Center, where Ms. Giraldo received treatment for her injuries. Hospital employees notified police of the incident, and Senator-elect Monserrate was arrested at the hospital on suspicion that he had assaulted Ms. Giraldo. Following his arrest, but prior to being indicted, Senator-elect Monserrate took the oath of office of the New York State Senate on January 7, 2009, a position that he still holds. Senator Monserrate is currently the Chairman of the Consumer Protection Conunittee and is a member of the Cities, Civil Service, Energy and Telecommunications, Insurance, Rules, and Mental Health Conunittees. In .March 2009, the Queens County District Attorney presented the matter to the Grand Jwy, and on .March 23, 2009, the Grand Jury returned a six-count indictment charging Senator Monserrate with three counts of second-degree assault, a Oass D felony, and three counts of third-degree assault, a Oass A misdemeanor. On September 18, 2009, Senator Monserrate waived his right to a jury, and on September 21, 2009, his trial began before the Honorable Wtlliam M Erlbaum in Supreme Court, Queens County. Senator Monserrate did not testify during the trial. Following the close of the People's case, Justice Erlbaum dismissed two of the charges relating to reckless assault. On OctOber 15, 2009, Justice Erlbaum announced his verdict, finding that the three remaining assault counts requiring a showing of «intent" had not been proven beyond a reasonable doubt. Justice Erlbaum found that Senator Monserrate was guilty of the sixth count of the indictment: misdemeanor reckless assault, a crime carrying a maximum jail sentence of one year.'

The charge for which Senator Monserrate was convicted, Assault in the Third Degree, is defined as follows: "A person is guilty of assault in the third degree when ... [h]e recklessly causes physical injwy to another person." Penal Law § 120.00(2). "Recklessly" is defined in relevant part as follows: "A person acts recklessly with respect to a result or to a circumstance descnbed by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circwnstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Penal Law § 15.05(3). Finally, "[p]hysical injury means impainriem of physical condition or substantial pain." Penal Law § 10.00(9).

1 B. FORMATION OF TIlE SELECT CoMMITTEE AND San OFINVESTIGATION On November 9,2009, the New York State Senate adopted Senate Resolution 3409. The resolution established "a Select Qllnmittee of the Senate to investigate the facts and circwnstances surrounding the conviction of Senator Hiram Monserrate on October 15, 2009." According to the Resolution, the Senate's decision to investigate this panicular conviction was based in pan on its determination that "[t]he seriousness of these domestic violence charges and the circwnstances surrounding them warrant funher investigation by the Senate, and may warrant the imposition of sanctions bythe Senate." The Resolution "authorized and directed" the Select Committee to "investigate the facts and circumstances relating to the conviction against Senator Monserrate," granting it the full authority possessed by a committee"constituted under Anicle 4 of the Legislative Law and Senate Rule VII." Senate Resolution 3409 also mandated that the Select Committee"ensure a full and fair investigation." Finally, the Resolution directed the Select Committee to repon its findings, along with a recommendation, to the full Senate. The Committee's mandate did not include an inquiry into the charges as to which Senator Monserrate was acquitted. Accordingly, the Committee did not make 'any determination or finding as to whether the actions within Senator Monserrate's apanment that caused severe injury to Ms. Giraldo were intentional oraccidental. Resolution 3409 directed that the Select Committee be comprised of "nine Senators to be appointed by the Temporary President of the Senate," and that "[flour of such members shall be appointed upon the recommendation of the Minority Leader of the Senate." The Senators appointed to serve on the Committee were as follows: 1. Senator Eric T. Schneiderman (chair) 2. Senator Andrew J. Lanza (ranking minority member) 3. Senator James S. Alesi 4. Senator John J. Flanagan 5. Senator Ruth Hassell-Thompson 6. Senator Diane J. Savino 7. Senator Toby Ann Stavisky 8. Senator Andrea Stewan-Cousins 9. Senator Catharine Young C. CoUNSEL FOR TIlE SELECT CoMMITTEE The Senate retained the law finn of Kaye Scholer LLP, through Daniel R. Alonso, a panner at the finn, to act as Special Counsel to the Select Committee. David L Lewis, a Senate lawyer who is employed as Counsel to Conference Services to the Minority, was designated Minority Counsel to the Select Committee.

--~. ---- - .----- II. THE SELECT CDMMITIEE'S INVESTIGATION A LEGAL AurnOR!1Y TO INVESTIGATE The Senate possesses broad powers "by inquiry, to ascertain facts which affect public welfare and the affairs of government. Such power of inquiry, with process to enforce it, is an essential auxiliary to the legislative function.'" It is well-established that "[t]his power may be delegated to a committee" and includes the power to issue subpoenas I!.ua?!, tirUm' These investigative powers are well-established, as they are incident to a legislative body's ability to govern effectively. As Luther Stearns Cltshing explained in his seminal work on legislative assemblies,' [ilt has always, at least practically, been considered to be the right of legislative assemblies, to call upon and examine all persons within their jurisdiction as witnesses in regard to subjects in reference to which they have power to act and into which they have already instituted or are about to institute an investigation. Hence they are authorized to summon and compel the attendance of all persons within the limits of their constituency as witnesses and to bring with them papers and records in the same manner as is practised by courts of law. When an assembly proceeds by means of a committee in the investigation of any subject the committee may be and usually is authorized by the assembly to send for persons, papers and records.' Moreover, "a common understanding or belief concerning the improper conduct of a member is a sufficient ground for the house to proceed by inquity concerning the member and even to make an accusation.'" It is well-established in New York "that either house may institute any investigation having reference to ... the IXJfIl1ua. ar qualifiaa:ims ifits nwiers.'"

In rr: JO/m Leis/atire CotmittEe IX! Imesrig;tte Educational System ifState ifNew Yark, 285 N.Y. 1, 8 (1941). In this case, the New York Court of Appeals upheld the lower courts' refusal to quash a subpoena dt«es tIrum that had been issued by a joint committee to the president of the Teachers Union of the Oty of New Yom, compelling his appearance before the committee, as well as the production of documents. Id at 8-9. LUTHER STEARNS CUsHING, ELEMENTS OF THE LAw AND PRACI1CE OF THE LEGISLATIVE AsSEMBLIES INTHE UNITED STATES (1874) ("CUsHING"). . 5 , Id § 634. MAsON'S MANuAL OF LEGISLATURE PROCEDURE § 564.4 (2000) ("MAsoN's MANuAL"); Sl'l? also Ex Parte D.o. McG:t:rthy,29 Cal 395,403,406 (1866), which held that where a "charge affecting the honor, dignity; purityand efficiency" of a legislative body is leveled, "the Senate therefore, under the common parliamentary law, had the power to investigate the charge with the view to the expulsion of the guilty members" because a "legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions." 7 Brif!f§ 11 MacKdlar, 2 Abb. Pro 30, 56 (N.Y. Sup. O. 1855) (emphasis added).

3 B. INVESTIGATIVE STEPS The Select Committee began its investigation following the passage of the Resolution on November 9, 2009 and completed it on January 12, 2010 with the submission of this Report to the full Senate, at which point the Select Committee will cease to exist. During this period, the Select Committee convened on November 9, November 23, December 8, December 14, December 29, 2009, and January 11, 2010. In connection with the investigation, the Select Committee reviewed, among other things, the minutes of Senator Monserrate's criminal trial (attached at Exhibit 2), the People's exhibits admitted at the tria~ the grand jury testimony of Karla Giraldo, a notarized statement by Ms. Giraldo dated December 19, 2008 (attached at Exhibit 3), the minutes of Senator Monserrate's sentencing (attached at Exhibit 4), as well as publicly available recordings of Senator Monserrate's interviews with various media outlets during which he disc'lSsed the events SurroWlding his misdemeanor conviction. . On October 26, 2009, counsel for the Select Committee met with representatives from the Queens District Attorney's office. On October 27,2009, counsel for the Select Committee met with counsel for Senator Monserrate. Counsel for the Select Committee maintained an open dialogue with both the Queens District Attorney's Office and Senator Monserrate's counsel throughout the investigation. However, Senator Monserrate's counsel did not cooperate in the inv~stigation, and refused virtually all of the Select Committee's requests for information and assIStance. For example, Senator Monserrate's counsel was given the minutes of Karla Giraldo's testimony before the grand jury as part of the District Attorney's pre-trial obligations. Indeed, his counsel had strenuously argued that the relevance of such minutes was crucial to his defense. But when the Select Committee asked for a copy, counsel denied the request. Similarly, when Senator Monserrate's counsel was asked to provide copies of exhibits introduced at trial by the defense which are by law a matter of public record, but which courts entrust to the custody of the lawyers that offer the exhibits - they again declined. Because, unlike the defense, the District Attorney was prohibited by law from providing grand jury materials without a court order,' on November 12, 2009, the Select Committee issued a subpoena to the Queens District Attorney's Office directing it to produce "[a]ll documents relating to the investigation, indictment, and trial of Hiram Monserrate in 2008 and 2009, including but not limited to grand jury minutes and materials obtained by grand jury process." (Attached at Exhibit 5). The District Attorney then filed an "Application to Release Grand Jury Minutes and Other Materials" in New York Supreme Court, Queens County, Criminal Term. When Justice Erlbaum requested an application from the Select Committee, the Committee filed an Order to Show Cause, dated November 20, 2009, with the court, seeking authorization for the District Attorney's Office to release the Grand Jury Materials. The court ordered that the People, Senator Monserrate's counsel, and counsel for the Select Committee appear on December 4, 2009 (also the date of sentencing). (Attached at Exhibit 6).

c.P.L. § 190.25(4)(a).

4 On December 4, 2009, cOlmsel for the Select Committee appeared before Justice Erlbaum and requested authorization to receive the Grand JUlY Materials.' Justice Erlbaum granted the immediate release of Karla Giraldo's grand jUlY testimony, together with unspecified additional materials incident to her testimony, and denied the rest of the Select Committee's request without prejudice to a further application. (SI'l1 Exhibit 4). On December 15, 2009, counsel for the Select Committee, in keeping with Justice Erlbaum's directive, filed an Order seeking all materials subpoenaed by the Grand JUlY pertaining to the telephone records of :Ms. Giraldo and Senator Monserrate on the night of the events that formed the basis of Senator Monserrate's misdemeanor convicti9n. (Attached at Exhibit 7). On December 21, pmsuant to a stipulation between the parties, the Queens District Attorney released Senator Monserrate's and :Ms. Giraldo's phone records and cell-site information from the night in question to the Select Committee. (Artached at Exhibit 8). The Select Committee repeatedly extended an open invitation to Senator Monserrate and his counsel to address the committee, whether in person or by written submission. They declined the opportunity to address the cornmittee. 1O The Select Committee also contacted Karla Giraldo through her legal counsel and invited her to appear before the Committee, or, if she preferred, to be interviewed under oath." :Ms. Giraldo's counsel stated that she declined the invitation for an interview. In spite of their public expressions of their intention to cooperate, Senator Monserrate and his counsel refused to provide any of the grand jUlY materials requested by the Select Committee, defense exhibits from Senator Monserrate's criminal trial, and other materials, including Senator Monserrate's e-mails from the night of the incident.

, The Queens District Attorney's Office did not oppose the Select Committee's request for Grand Jury Materials. Senator Monserrate's counsel did oppose the request. 10 SI'l1 Section IV.C belo"':', regarding Senator Monserrate's refusal to cooperate with the Select Committee's investigation. II Letter from Daniel R. Alonso, Esq. to Glenn Marshall, Esq., counsel for Karla Giraldo (Dec. 10,2009) (Artached at Exhibit 9).

5 III. FACTS Part A of this Section provides a summary of the uncontested facts relating to the events of December 18-19, 2008. These facts were not disputed by either the prosecution or the defense at Senator Monserrate's criminal trial, although the inferences to be drawn from many of these facts were hotly contested. Part B provides an overview of the criminal proceedings against Senator Monserrate, including the positions advocated by the prosecution and defense and the evidence presented by both sides in support of their arguments. Part C of this Section reviews the additional evidence that the Select Committee considered as part of the investigation. A UNCONTESTED FACTS RELATING TO lliE EVENTS OF DECEMBER 18-19. 2008 On December 18, 2008, Karla Giraldo attended a holiday party hosted by Jesus Pena, an attorney, at the World's Fair Marina in Flushing, New York Jasmina Rojas, Ms. Giraldo's cousin, and Rojas' son, Javier Icaza, picked up Ms. Giraldo from her apartment at approximately 9:00-9:30 p.m to transport her to the party. Senator Monserrate did not attend the party. At the patty, Ms. Giraldo consumed at least two alcoholic beverages. At approximately 12:00-12:30 a.m. on the morning of December 19, 2008, Ms. Giraldo left the party and Ms. Rojas and her son drove Ms. Giraldo to Senator Monserrate's apartment located at 37-20 83rd Street, Jackson Heights, New York Ms. Rojas accompanied Ms. Giraldo into Senator Monserrate's apartment, located on the second floor of the building. Ms. Rojas greeted the Senator, used the bathroom in his apartment, and then left. Senator Monserrate's apartment building has a surveillance video system with video cameras located at various points both outside and inside the building, including the vestibule and the first and second floor hallways. Sometime after Ms. Giraldo arrived at the apartment, Senator Monserrate opened her purse in order to place a Patrolmen's Benevolent Association ("PBA") card in her wallet. At that time, Senator Monserrate discovered that Ms. Giraldo had another PBA card in her wallet that was given to her by a male acquaintance, and removed that card. As captured by video surveillance, at approximately 12:54 a.m., Senator Monserrate left his apartment and went into the second floor hallway, opened a trash chute in the middle of the hallway, placed a white trash bag down the chute, then reached into his pocket, pulled out an object, and displayed it in the direction of his apartment. He then threw the object down the chute, and began walking back to the apartment. The object waS recovered by the NYPD from the trash chute and was identified as the PBA card that had been removed from Ms. Giraldo's wallet by Senator Monserrate. On the video recording, as Senator Monserrate threw the card down the chute, Ms. Giraldo left the apartment, came into contact with Senator Monserrate (who moved to the side and continued into the apartment), opened the trash chute, looked down it for a moment, and then returned with some haste into the apartment. Approximately two hours later, Ms. Giraldo's face was lacerated when it came into contact with one of Senator Monserrate's water glasses. Carolyn Loudon, tenant of the apartment directly below Senator Monserrate's, testified that she heard a body hit the floor above her, a woman's scream, and then a man's voice state, in English, "listen to me." At approximately 2:50 a.m, the building's video surveillance showed Ms. Giraldo leaving Senator Monserrate's apartment while holding a white towel to the left side of her face with her left hand. Senator Monserrate then exited the apartment a few paces behind her. The video next captured Ms. Giraldo walking down the stairs until she stepped toward the door of the apartment located at the bottom of the stairs and began ringing the doorbell. Ms. Loudon, the resident of that apartment, tesrified that she heard her doorbell ring, but did not answer the door. As Ms. Giraldo was ringing Ms. Loudon's doorbell,

6 Senator Monserrate reached for her ann and proceeded to pull her by her tight ann through the first floor hallway, into the vestibule, and out the front door of the apartment building. Ms. Giraldo appeared visibly upset and resistant to Senator Monserrate's actions, grabbing a banister in the hallway (losing the white towel she was holding to her face in the process), and then holding on to the interior doorlrarne in the vestibule. After pulling Ms. Giraldo out of the apartment building, Senator Monserrate led herro his car. . At approximately 3:27 a.m, 37 minutes after leaving Senator Monserrate's apartment, Senator Monserrate and Ms. Giraldo entered the North Shore Long Island Jewish .Medical Center ("UI"), located at 270-05 76th Avenue, New Hyde Park, New York, as depicted on surveillance video recovered from U]. Senator Monserrate and Ms. Giraldo did not enter the hospital at the emergency room entrance, but used the main entrance of the hospital. A hospital surveillance video shows a secmity guard leading Senator Monserrate and Ms. Giraldo through the hallways of the hospital for several minutes until they arrived at the emergency room From approximately 3:50 a.m to 4:54 a.m., LIJ video surveillance recorded Senator Monserrate sitting in the emergency room waiting area, making telephone calls, and talking to one of Ms. Giraldo's. treating physicians. Throughout this period, Ms. Giraldo received treatment. LIJ personnel contacted the NYPD, who subsequently placed Senator Monserrate under arrest. Ms. Giraldo suffered lacerations to her face, described by Dr. Homayoun N. Sasson, her treating plastic surgeon. The first was "an approximately 1.5 centimeter crushed and deep laceration that extended through the underlying muscle tissue, with no underlying bone injmies noted." Dr. Sasson described the shape of the laceration as "a straight line laceration which was horizontal, but it had crushed tissue edges, which are irregular tissue edges." He described the depth of the laceration as "through the whole thickness of the skin until the skull bone reached ... that's where the injury stopped." Dr. Sasson described another laceration, on the comer of Ms. Giraldo's left eye, which was a "multidirectional" wound and equally as deep as the larger laceration. Finally, Dr. Sasson testified to other smaller injmies on Ms. Giraldo's face, including "multiple small lacerations below the left eye, in the lower left eyelid region, and in the left check areas." Additionally, Ms. Giraldo's medical records also note that she had brownish, circular bruising (ecchymosis) to her left forearm and a skin tear on her left inner forearm. Sometime after Senator Monserrate's arrest at LIJ, the NYPD searched his apartment and took photos of the scene, and retrieved the building's surveillance video. The police also collected physical evidence, including, among other things, the PBA card found in the trash chute, a number of white towels stained with blood found in the bathroom and bedroom, a green t shirt found in the bathroom sink, an unstained, but tom, men's white sleeveless undershirt found in an unlined garbage can, and pieces of a broken water glass found in the bedroom At the request of the prosecution, the pieces of the broken glass were tested to determine how the glass was broken (i.e, whether an opinion could be reached as to whether the glass was broken intentionally or accidentally), but the tests were inconclusive.

7 B. CRIMINAL PROCEEDINGS AGAINST SENATOR MONSERRATE On March 23, 2009, Senator Monserrate was indicted in State Supreme Court in Queens on three felony and three misdemeanor assault counts. Counts 1-5 of the indictment related to the events that took place within Senator Monserrate's apartment that led to the lacerations on Ms. Giraldo's face. Count 6 related to events in the apartment hallway.; and vestibule as depicted on the surveillance video. From September 21 to October 13, 2009, a bench trial was conducted before the Honorable William Erlbaum, Justice of the Supreme Court of the State of New York, Queens County. The Queens District Attorney's Office was represented by Assistant District Anomey.; Scon Kessler and Johnene Traill Joseph Tacopina and Chad Seigel, of Tacopina Seigel & Turano, represented Senator Monserrate. 1. Kej Poirds Made By The Pmemtion The prosecution's primaty arguments at trial were that (1) Senator Monserrate intentionally assaulted Ms. Giraldo inside the apartment while in a jealous rage after discovering the PBA card in her purse; and (2) after that assault, Senator Monserrate attempted to control the situation (and Ms. Giraldo), which led to a second, reckless assault of Ms. Giraldo as depicted on the surveillance video. As described more fully below, Senator Monserrate's lawyers contended that the incident in the apartment was accidental and that Senator Monserrate pulled Ms. Giraldo out of the building in an effon to get her medical assistance at a hospital at a time when she was resistant to gomg. In support of its contentions regarding the assault ~thin the apartment, the prosecution atgued that the video surveillance showing Senator Monserrate disposing of the PBA card demonstrates that he was jealous and that he and Ms. Giraldo were having an argument at approximately 12:54 a.m. on December 19, 2008. The prosecution presented the testimony of Ms. Loudon, the downstairs neighbor, who testified that between midnight and 3:00 a.m. on December 19, 2008 she heard "a lot of commotion going on above" her and characterized it as "a lot of chaos," "just mad energy," and a "high noise level." The prosecution argued that Ms. Loudon's testimony demonstrated that Senator Monserrate and Ms. Giraldo atgued continuously from the time Senator Monserrate disposed of the PBA card until Ms. Giraldo's face was cut with the glass. To support these arguments, the prosecution offered statements Ms. Giraldo allegedly made to emergency room personnel while she received treatment to the effect that her injuries were not the result of an accident. Nurse Susan Cabibbo, who treated Ms. Giraldo in the triage room, wrote in a Januaty 9, 2009 handwritten statement and testified at trial that once Ms. Giraldo was left alone with her she said "he is crazy, he is crazy," refenring to Senator Monserrate, and told Nurse Cabibbo that she was involved in an altercation. In the contemporaneous triage notes, Nurse Cabibbo typed that Ms. Giraldo was "involved in altercation" and catalogued her injuries as multiple lacerations to the eye area and bruising and a skin tear to the left forearm. Dr. Dawne Kolt, an emergency room resident who speaks Spanish fluently and who also treated Ms. Giraldo, wrote in a Januaty 6, 2009 statement and testified at trial that she asked a sobbing Ms. Giraldo to explain what happened, to which Ms. Giraldo responded "I can't believe he did this to me. My face, my face, I can't believe my face." Dr. Kort recounted that Ms. Giraldo further stated, "We were fighting. I asked for a glass of water." and Senator Monserrate responded "You want the water? You want the water? Here's the water." According to Dr. Kort's testimony

8 and written statement, Ms. Giraldo then reenacted what happened for Dr. Kort by holding an imaginary glass in her hand and shoving it towards her face. Then, when Ms. Giraldo was infonned that Senator Monserrate told another of Ms. Giraldo's treating doctors, Dr. Dan Frogel that it had been an accident, Ms. Giraldo became upset and stated, "It wasn't an accident. We were fighting and he cut my face." and "We were fighting, we were fighting and he broke the glass and took a piece and cut my face." Ms. Giraldo did not want the police called to the hospital and, according to Dr. Kort, stated that "You can't call the police he is a Senator and I didn't want to cause any trouble." Dr. Kort also wrote the following statement in the "attending nOte" on December 19, 2008: "4:00 a.m 29 year old female with no significant past medical history presents to the ER status post facial trauma. As per, she was involved in an altercation {with] boyfriend. During altercation [patient] struck in face [with] broken glass." . The People called Ms. Giraldo as a wimess during its case, but chose for tactical and legal reasons not to ask about the details of the incident in the apartment. Despite that, Ms. Giraldo testified that the incident in the apartment was an accident. The prosecution argued that Ms. Giraldo's trial testimony should not be credited and that her statements to the emergency room personnel were accurate because the emergency room personnel had no reason to make up such detailed statements. Regarding what took place in the downstairs hallway, the prosecution argued that following the initial assault inside the apartment, Senator Monserrate was more concerned about himself and his political career than getting medical attention for Ms. Giraldo. As a result, he attempted to control Ms. Giraldo in order to avoid unwanted attention, leading to the second, reckless, assault, as recorded by the video surveillance. To support these contentions, the prosecution argued that, first, Senator Monserrate did not call 911 because he knew that would entail both EMS and the police visiting his apartment and later filing of various official fonns. In that regard, Ms. Giraldo professed at trial not to recall whether she had asked the Senator to do so. However, when confronted with her grand jury testimony in which she testified that she said to Senator Monserrate after the incident, "If you want, call an ambulance," she agreed that her recollection had been refreshed. . Second, as captured on the video recording, the People argued that Ms. Giraldo sought to escape from Senator Monserrate in order to seek help when she rang the dooroell of Ms. Loudon, the downstairs neighbor whom Ms. Giraldo did not know. In support of this argument, the prosecution impeached Ms. Giraldo - who testified at trial that she did not recall ringing the downstairs neighbor's dooroell - with her grand jury testimony, in which she stated that she knocked on the door because she "thought maybe [the neighbor] could help me get to the hospital." As Ms. Giraldo attempted to seek assistance, Senator Monserrate forcibly dragged her away from Ms. Loudon's apartment, beginning the chain of events that the People asserted caused the injuries to her left foreann. Third, the District Attorney pointed out that, instead of taking Ms. Giraldo to nearoy Ehnhurst Hospital, Senator Monserrate drove her to LI], traveling approximately 14 miles in 37 minutes at 3:00 a.m Senator Monserrate bypassed at least eight Queens hospitals closer to his apartment than LIJ before settling ona hospital that was on the border of Nassau County. Finally, instead of dropping off Ms. Giraldo at the LIJ emergency room, Senator Monserrate parked on the street, approximately 150 yards away from an entrance to LIJ that was itself at the opposite end of the hospital from the emergency room The prosecution argued that

9 this was consistent with seeking to go to the hospital while minimizing the chances that Senator :Monserrate would be recognized and that uncomfortable questions would be asked. 2. MjPoints Made By The Drfense The defense's main arguments at trial were that: (1) the incident in the apartment was an accident, and (2) Senator Monserrate used appropriate force - which the defense termed "force, not violence" - to take Ms. Giraldo to the hospital at a time when she was resistant to going. To suppon the argument of an accident, the defense relied on the sworn trial testimony of Ms. Giraldo, who maintained continually that her injuries were the result of an accident and that she did not want the police involved, and Ms. Giraldo's aesthetician, Neife Toro, who testified that when Ms. Giraldo telephoned her at approximately 3:00 a.In. on the morning of the incident (before arriving at the hospitaQ, she told her that her face had been cut in an accident. The defense funher relied on a stipulation regarding the testimony of Dr. Frogel, who the panies agreed would have testified that Senator Monserrate told him that"he went to get her [Ms. Giraldo] something to drink As he was handing her the glass he tripped (slipped) and consequently the glass shattered" and that the glass em Senator Monserrate on the palm as well. The defense criticized the prosecution's reliance on"secondhand" accounts from the emergency room personnel regarding events that only two people, Senator :Monserrate and Ms. Giraldo, truly knew about. The defense also argued that the statements attributed to Ms. Giraldo at the hospital were not reliable because: (1) Ms. Giraldo was intoxicated and the incident occurred in a dark room, which impacted her ability to provide accurate statements as to what happened;" (2) Ms. Giraldo was upset due to the potenrial impact of her cuts on her appearance; and (3) Ms. Giraldo's statements'regarding what happened were inconsistent. The defense attacked the accuracy of what the emergency room personnel, specifically Dr. Kon and Nurse Cabibbo, reponed to be statements of Ms. Giraldo on the grounds that there was a language barrier between them, because Ms. Giraldo, who is from Ecuador, primarily speaks Spanish, and has a limited understanding of English. In suppon of this argument, the defense offered Nurse Cabibbo's triage notes and Dr. Frogel's stipulation that there was a "language barrier" between them and Ms. Giraldo. Regarding Dr. Kon, who is fluent in Spanish, the defense established that Spanish was not Dr. Kon's first language and that although she had lived in Spain and had Spanish-speaking parents, she had never studied Ecuadorian Spanish. The defense funher: offered Ms. Giraldo's testimony that she and Dr. Kort had problems understanding one another. Additionally, the defense questioned the accuracy of the ilJ personnel's statements in light of the fact that Dr. Kort and Nurse Cabibbo did not memorialize their conversations with Ms. Giraldo until at least two weeks after the incident. The defense funher criticized statements from the emergency room personnel by claiming that they were predisposed to rush to judgment because they were trained to be especially sensitive to potential domestic violence situations, referring specifically to Dr. Kon. The defense

12 The defense argued that the lights in Senator Monserrate's bedroom were off at the time of the incident. This argument was based on the testimony of a member of the NYPD that when he entered the apartment, the bedroom lights were on and there was a blood stain on the light switch, leading to the inference that either Senator Monserrate or Ms. Giraldo turned the bedroom lights on after Ms. Giraldo's face was cut. I_~ 10 Karla Giraldo was called as a witness by the state. And I have complimented both lawyers, both sets of lawyers, for the very able way they presented the case, very effective and zealous advocates. I adhere to that. I especially want to tnake reference to the fact that the District Attorney Brown, I thought, took the high ground by calling MS. Giraldo as a witness. And I found her testimony very helpful. For example, she testified that when she got to the premises that night, that is to the defendant's apartment, she was not physically injured. She had no physical injuries. It appears, although this is not dispositive, that after she suffered injuries in the apartment, not proven to be assaultive beyond a reasonable doubt, but suffered injuries nonetheless, very serious ones, that she wanted to go by ambulance. And she exceeded [sic] to the defendant's decision that, no, I'll take you to a hospital. I also note that the defendant took her to a very remote location, one abutting a different county, Nassau County, at the very outer limits of Queens County. The injuries here, due to that in my view, the state has clearly proven the defendant's guilt beyond a reasonable doubt as to the sixth count that the defendant did indeed cause reckless injury to Karla Giraldo. I examined the law very carefully and I think the elements are clearly made Out and beyond a reasonable doubt. Having come to the apartment without physical injury, the surveillance tape indicates not a frienclly nonviolent interaction, but a violent and very forceful dragging of the complainant - of the, I'll call her the injured person, Karla Giraldo. Pulling her, puslllng her, she is fighting to stay in the premises. And she is a woman of slight frame compared to that of the defendant. And forcefully taking her from the premises where 911 could have readily been called. Elmhurst hospital was just down the block and on Baxter, a few blocks further. One could have walked there in seven or eight minutes. An ambulance could have been there in a minute or two and she could have been given care right away. In my view she was very - she was indeed injured, palpably so. She is screaming, apparently in pain and crying and fighting to stay in the premises and that one can physically see from the surveillance tape. As one can see from the video surveillance that she is forcefully being pulled and pushed. She is injured. There is bruising, there is discoloration, black and blue marks. It seems to be substantial pain. There is skin teating. She is already in a weakened state due to severe facial injuries right up in the area of the eye, a horizontal injury and a vertical injury and a lot of blood. One can see the bloody towels and other blood areas in the apartment itself, a Jot of bleeding. As she is leaving on the surveillance tape she is holding a towel to her head. She is dragged, and so forcefully that the towel

13 flies from her hand as her leg flies upward and ends up in that hallway that she is using to try to stanch the blood. She is emotionally fragile at the time. She is vulnerable. She is panicky. She is scared for her looks. She is scared for her well-being. And indeed, she is taken quite a distance over several minutes to the vehicle, and over quite a distance from the apanment. She is pulled away from a neighbor's apartment. And she rang a bell several times apparendy seeking help. All of the signs are that she wished to - that she wished to remain at the premises and not to accompany the defendant. She was also - injury was funher inflicted by an exacerbation of what had happened earlier because bleeding for a 37 minute trip to a hospital abuning another county in a very sensitive area of the head where perhaps sight was at risk, whether she could know that or not, she is not a medical person, it was right by the eye with lots and lots of bleeding. And signs of the bleeding, that could have been stanched within just a few minutes, for 37 minutes continued while she is taken to a hospital abuning Nassau County. And accordingly, the defendant is found guilty under count 15 Six. After announcing the guilry verdict, Justice Erlbaum noted that while Senator Monserrate may have been concerned about Ms. Giraldo and her injuries, his actions indicated a concern for his political career as well: "it would certainly appear not unreasonable that there was another concern, and that is to get her away from the house and to get her away from a neighborhood where the defendant had roots and was likely well known in that community, having served as a public official in that community and where the event at Elmhurst would have been hotter than a pistol and to get her to a place of low visibility and enter in a manner of low visibility from someplace outside of the hospital, not even pulling into the emergency area, so as to keep the things under the radar." 16 . 4. SenterKitr& On December 4, 2009, Justice Erlbaum sentenced Senator Monserrate to three years probation, 250 hours of community service, one year of domestic abuse counseling, and a $1,000 fine plus mandatory surcharges. Justice Erlbaum also entered a five-year order of protection ordering Senator Monserrate to refrain from any contact with Ms. Giraldo. The order of protection was entered without prejudice to a subsequent motion to modify or vacate the orner. Before sentencing, Senator Monserrate's counsel moved to set aside the verdict on the basis that the evidence at trial was legally insufficient to establish the requisite elements of physical injury. Counsel argued that the evidence was insufficient because mere bruising is insufficient to sustain "physical injury" as that term has been interpreted by the courts, and the surveillance video only showed that Senator Monserrate held onto Ms. Giraldo's right arm, while the

15 Record 1289:15-1293:4. 16 Record 1293:14-25.

14 injuries she sustained were to her left ann. The District Attorney responded that while it is true that the video shows the defendant "dragging the victim by her right arm," the video also clearly shows her left arm "banging on the banister, [and] being caught in the door," leaving little doubt that Senator Monserrate's actions in the hallway caused the injury to her ann. 17 Justice Erlbaurn rejected defendant's argument, stating that: The woman wanted 911. She was actively bleeding in a region very close to the eye. She is trying to stanch the continuous flow of blood with a towel to her head She is screaming in pain in the hallways. It's taken 37 minutes to reach a hospital, maybe doesn't get to that hospital for the better part of an hour, still bleeding in the hospitaL still in pain from the earlier episode where a very heavy glass broke against her eye under circumstances that were disputed at the trial. You put that all together, plus the Court's observations of your client's demeanor and her demeanor on the tape, this is not going to be based on a single nanosecond of an episode that lasted almost an hour. Impairment of physical condition, substantial pain, they are palpably present. One has to stop bleeding. 911, EMS people, could have done that in minutes; could have come there and comforted her; could have seen whether or not there would be some complication of the eye, vel)' close to the eye. Putting it all together, in my view, the requirement of physical injury was clearly met. Your motion to set aside the verdict is denied.I' Ms. Giraldo testified at the sentencing and requested that the court lift the order of protection that had been in effect since the initial court appearance on the case. Justice Erlbaum questioned Ms. Giraldo's independence and whether Senator Monserrate controlled her. He stated that "many people have suggested by words or implication that you are not your own person, that you act at the bidding of Mr. Monserrate, and that your professed wishes shouldn't be called at face value because of a certain domination over you" and asked Ms. Giraldo to respond Ms. Giraldo answered that Senator Monserrate does nOt control or dominate her life and that they are in a relationship together. Justice Erlbaum upheld the order of protection and stated to Senator Monserrate and Ms. Giraldo that "you must accept the fact, sir, that she is not on a leash, and she does not need your pennission for evetythmg, and curb your anger, curb your anger, and you should have zero tolerance toward abusive behavior, Miss Giraldo, which trenches into your zone of autonomy."19 Senator Monserrate spoke briefly on the record at the sentencing. He stated, among other things, that "I don't think I'm here because of a politically motivated prosecution. I'm here because of myown actions, and I take full responsibility for those actions. I cannot stress enough to

17 Sentencing 46:21-24. I' Sentencing 47:13-48:15. I' Sentencing 143:22-144:2.

15 you, your Honor, how sony I am I am so sony for the' harm that Karla endured and has suffered. I love her very much, and knowing that she has endured what she has, really, really is something that I will have to live with for the rest of my life." '0 5. f1.[l/;!r:d Counsel for Senator Monserrate has filed a notice of appeal. His lawyen; have indicated that they will advance on appeal the same argument made in support of Senator Monserrate's motion to set aside the vertlict, that Ms. Giraldo did not suffer physical injury sufficient to sustain a misdemeanor conviction. Theyalso have the ability to challenge other aspects of the conviction at the time they perfect Senator Monserrate's appeal. C ADDITIONAL EVIDENCE REVIEWED BY 1BE SELECf CoMMITIEE In addition to the trial record, the Select Committee has reviewed numerous additional pieces of evidence, summarized below. 1. Grand lwy Testi:rrmy rfKarla Giraldo On March 12, 2009, Ms. Giraldo testified before the Grand Jury that was investigating Senator Monserrate's actions with respect to the events of December 19, 2008. The District Attorney, without mentioning the surveiIlance video to Ms. Giraldo, began simply byasking Ms. Giraldo about some of the events that occurred on that night. After questioning her at some length, the District Attorney played the surveillance video for Ms, Giraldo and then asked her to clarify a number of her previous answers, some of which did nOt comport with what could be seen in the video. Regarding the incident with the PBA card, Ms, Giraldo initially testified that she had consumed two glasses of wine at the patty on the night of December 18, 2008 and that that was the extent of the drinks she had that evening. She also testified that she was not upset that Senator Monserrate had thrown the PBA card away and that she did not follow him into the hallway. After watching the video, which clearly shows Ms. Giraldo following Senator Monserrate into the hallway, Ms. Giraldo acknowledged that she had been a "little sad" that Senator Monserrate had thrown the card away and that there had, in fact, been an aigwnent, although she characterized the argument as "normal, without any fighting." Ms. Giraldo also acknowledged that she had exited the apartment and gone to the trash chute in the hallway, but stated that she had not remembered that fact when asked about it earlier in the grand jurysession. Regarding the incident with the glass, Ms. Giraldo testified that Senator Monserrate had been bringing a glass of water to her in bed when he bumped into something in the narrow passageway between the bed and a wall. As a result, Senator Monserrate spilled water onto her, leading her to sit up and collide with him and the glass, leading to her lacerations. After she was cut with the glass, Ms. Giraldo testified that Senator Monserrate told her that they should go to the hospital. Ms. Giraldo responded that she did not wish to go because she was afraid of needles, but when Senator Monserrate told her that they should go and it was for her own good, Ms. Giraldo agreed. Ms. Giraldo told Senator Monserrate that if he wanted, he could call an ambulance, to which Senator Monserrate responded that he wanted to drive her to the hospital. Ms. Giraldo

20 Sentencing 130:17-131:2,

16 testified that although the closest hospital to Senator Monserrate's apartment was Elmhurst Hospital, she did not want to be taken there and she told Senator Monserrate to "bring me to Long Island to see a surgeon." She stated that although she had never been to LI], some members of Senator Monserrate's family had been there, and asserted that she was the person who first mentioned LIJ. Regarding the events that occurred in the hallway, before viewing the surveilIance video, Ms. Giraldo testified that she had been crying at the time that she and Senator Monserrate exited the apartment, explaining that while she knew that she should go to hospital, she did not want to go because she was nervous. She testified that Senator Monserrate tried to calm her down at that time by grabbing her by the arms and telling her that they were going to the hospital for her own . good. Ms. Giraldo testified that she then calmed down and went with him willingly. She repeatedly stated that no struggle of any kind occurred in the hallway after Senator Monserrate told her to calm down. Ms. Giraldo also initially testified that she knocked on the neighbor's door because "I thought maybe he could help me to get to the hospital," but she later explained that she did not know why she wanted to see someone else and that she was nervous at that time. After watching the video, which clearly showed evidence of a struggle in the hallway, Ms. Giraldo testified that she did not remember what she said when she reached the bottom of the stairs in the apartment building, but also testified that she was very nervous at the time, and maintained that she went with Senator Monserrate willingly. Regarding the events that occurred at LIJ, Ms. Giraldo testified that she told the emergency room personnel that she had an accident, but "when they realized that he's a politician then this nightmare began." Ms. Giraldo stated that the hospital personnel "did not clean the blood from my face" when they realized who she was and that they "started to gossip and to make problems by calling the police." 2. The NrxarizrrlStatetrmt rfKaria Giraldo On January 3, 2009, Mark A Panzavecchia of the law finn Panzavecchia & Associates PLLC, which at that time represented Senator Monserrate, faxed to the Queen's District Attorney's Office a notarized three-page statement by Ms. Giraldo, dated December 19, 2008 (the "notarized statement"). The notarized statement is handwritten and in English. It was notarized by Michael D. Nieves, who at the time acted as a spokesperson for then-Councilmember Monserrate. At the time that the notarized statement was faxed to the District Attorney, Senator Monserrate had not yet been indicted and the District Attorney was still considering what to do with the case. In the notarized statement, Ms. Giraldo attested that "I, Karia Giraldo, duly sworn, depose and say that I was never assaulted or hit in any way by Hiram Monserrate. What occWTed on Dec[ember] 19, 2008 was an accident. I do not want to press charges against Hiram. I do not want an order of protection." Regarding the incident in the apartment, Ms. Giraldo attested that "Hiram was instrumental in getting me to the hospital after I was accidentally cut by a glass containing water after we argued in the bedroom" and "[t]h;t evening. I was very.upset and moving around frantically and therefore careless around the glass. Regarding the deCISion to go to .the hospital and the hallway incident, Ms. Giraldo swore that "[a} first, I refused to go to the hOSPital, but Hiram insisted that I go as the accidental injury was in need of medical treatment" and."[als I walked down the hallway of the apartment building with Hiram, I refused to go to the hospital but Hiram insisted that I go for my own good, and thankfully forced me to go for my own goo~" Regarding the decision to go to LIJ, the affidavit stated that "I refused to go to Elmhurst Hospital

17 and I asked Hiram to take me to Long Island Jewish Hospital because I felt that Ehnhurst was not a good hospital for the treatment I needed."21 3. Rattes toUT The Court gave substantial weight to the facc that it wok 37 minutes for Senator Monserrate and Ms. Giraldo to travel 14 miles from his apanmentin Jackson Heights to UJ in the middle of the night. Because the parties offered no evidence at trial of the precise route that Senator Monserrate and Ms. Giraldo took to arrive at UJ, the Select Committee determined that it would be useful to the Investigation to assess the approximate distance and time involved with several different routes from Senator Monsenate's apartment to LIJ. Using the Internet application Google Maps, we have calculated five separate routes to LIJ, each using a different major roadway Ot highway to travel the majority of the distance to LIJ. Each of the routes is presented below, including the approximate distance and time involved in each route:" • Cross Island Parkway: approximately 14.8 miles approximately 19 minutes (40 minutes in traffic) • Northern Boulevard: approximately 11.3 miles approximately 26 minutes • Long Island EJq?ressway: approximately 12.9 miles ~proximateo/I8minutes00minutesintraff~ .. • Grand Central Parkway: approximately 14.2 miles • approximately 19 minutes (45 minutes in traffic) • Union Turnpike: approximately 11.6 miles approximately 34 minutes

21 Members of the Select Committee raised concerns about the legitimacy of the notarized statement, including the fact that some of the language used appears to be inconsistent with Ms. Giraldo's testimony regarding her limited English language proficiency. Because Ms. Giraldo -declined to appear before the Select Committee, it was denied an opportunity to directly address these concerns. However, through counsel, the Select Comminee interviewed Michael D.- Nieves, a spokesperson and political consultant for Senator Monserrate and Luis E. Castro, a long-time friend I of Senator Monserrate, both of whom were present when the statement was drafted, notarized, and I signed. Mr. Nieves and Mr. Castro confinued that Edward lrizzary, an attorney who is not a native Spanish speaker, and not Ms. Giraldo, hand-wrote the notarized statement in English. Moreover, Mr. Nieves explieidyacknowledged that the statement was not in Ms. Giraldo's words but were "lawyer words" supplied by Mr. lrizzaty. The infonnation provided by Mr. Nieves and Mr. Castro indicates a possibility that Ms. Gir.lldo's actual intended statements may have been "lost in translation" during the process of creating the notarized statement. _

SI£ Maps of Possible Routes to LIJ. (Attached at Exhibit 10)

18 4. Trdep/xnRemrds As described above, the Select Olmminee sought, by subpoena and application to Justice Er\baum, the telephone calling records for Senator Monserrate's and Ms. Giraldo's mobile telephones, for the period between 12:00 a.m. and 7:00 a.m. on December 19, 2008, which were collected by the Grand Jury during its investigation. Despite the initial opposition of Senator Monserrate's counsel to the Select Olmminee obtaining any information outside the trial record, on December 21,2009, pursuant to a stipulation agreed to by the District Attorney, counsel for Senator Monserrate, and the Select Olmmittee, Justice Erlbaum agreed to allow the District Attorney to release phone records pertaining to the two mobile phones. The phone records are summarized below. All times provided are based on those records. The records for Senator Monserrate's mobile phone show that he made or received only five calls on that phone during the period between 12:00 a.m. and 7:00 a.m. on December 19, 2008. All five calls were placed or received before 12:50 a.m., when the surveillance video recorded Senator Monserrate disposing of the PBA card. Three of the calls were made to or received from Ms. Giraldo's mobile phone. The other two were with telephone numbers whose owners are not identified by the records. However, because the LU hospital surveillance shows Senator Monserrate using a mobile phone on several occasions, the Senator plainly had access to and used a different mobile phone, presumably Ms. Giraldo's. Additionally, the hospital surveillance showed that Senator Monserrate used both a hospital courtesy phone and a pay phone between 3:46 a.m. and 4:14 a.m. The Select Olmmittee did not have access to the records of those telephones. Ms. Giraldo's mobile phone was far more active during the period between 12:00 a.m. and 7:00 a.m. than Senator Monserrate's, even though she was receiving treatment at LIJ for her injuries during part of this time. The records for Ms. Giraldo's phone also show three calls between her phone and Senator Monserrate's phone, all of which took place before 12:50 a.m. At 2:08 a.m., presumably after the incident with the PBA card, but before Ms. Giraldo was injured, a call was placed from Ms. Giraldo's phone to the phone of her ex-husband, John Giraldo. The call lasted less than a minute. At 2:48 a.m., a call was placed from Ms. Giraldo's phone to a mobile phone owned byJavier Icaza, the son of Ms. Giraldo's cousin, Jasmina Rojas. This call also lasted a minute. This call likely took place after Ms. Giraldo was injured, but before she and Senator Monserrate exited his apartment at 2:50 a.m., as per the video surveillance. Moreover, the video surveillance at the apartment shows that neither the Senator, nor Ms. Giraldo, used a mobile phone as they walked from the apartment building to Senator Monserrate's car. At 3:03 a.m., likely after Ms. Giraldo and Senator Monserrate were in the Senator's car, a call that lasted less than a minute was placed from Ms. Giraldo's phone to a phone belonging to Neife Toro, Ms. Giraldo's aesthetician. Presumably; Ms. Toro did not answer because the call lasted only a few seconds. A minute later, at 3:04 a.m., a call was placed from Ms. Giraldo's phone to a phone belonging to Veronica Zeledon, which lasted less than a minute. Ms. Zeledon was not identified in the trial records. However, an Internet search of the mobile phone number belonging to Ms. Zeledon shows that the number is affiliated with Future Beauty Place, a beauty salon located in Elmhurst, New York. Following the call to Ms. Zeledon, another call was placed to Ms. Toro at 3:05 a.m., which lasted approximately ten minutes. It is likely during this call that Ms. Giraldo and Ms. Toro had the conversation that both of them testified about at Senator Monserrate's trial. At 3:25 a.m., a call was placed from Ms. Giraldo's phone to a phone belonging to Jasmina Rojas, which lasted approximately four seconds. At 3:26 a.m., a call was placed from Ms. Giraldo's phone to Mr.

19 Icads phone, which lasted under a minute. Following this phone call, Senator Mmserrate and Ms. Giraldo likely had arrived at LIJ where they were recorded on the video surveillance at 3:27 a.m. At 3:53 a.m, two calls were placed from Ms. Giraldo's phone to T-1fubile's voicemaiJ number. Both calls lasted under a minute. At approximately this same time, Senator Monserrate can be seen on the hospital surveillance footage in the emergency room waiting area using a pink or red cell phone, presumably Ms. Giraldo's. At 3:59 a.m., Ms. Giraldo's phone received a call from Mr. Icaza's phone, which lasted approximately two minutes. At 4:00 a.m., another call was placed to T-Mobile's voicemail number. At4:01a.m.,Ms. Giraldo's phone received another call fromMr. Icaza's, which lasted approximately two minutes. Until this point, the records show phone calls made to or received from Ms. Giraldo's family, her aesthetician, and Ms. Zeledon, as well as several calls to voicemail.However.at 4:06 a.m., a call was placed from Ms. Giraldo's phone to a phone belonging to Nyla Rosario, who was at the time a member of then-Councilmember Monserrate's staff. 'This call lasted approximately one minute. Next, twO calls were made to 411 directory assistance. These calls were placed at 4:18 a.m and 4:56 a.m. and lasted approximately three minutes and four minutes, respectively. After these calls, two calls were placed from Ms. Giraldo's phone to a phone belonging to Nestor Diaz, who had served as Senator Monserrate's Geneml Counsel when he was in the aty CotUlcil. These calls were placed at 5:04 a.m. and 5:06 a.m. and lasted approximately two minutes and six minuteS, respectively. It may be inferred from these early morning telephone calls to members of his staff, that Senator Monserrate was informing them of the incident with Ms. Giraldo and that Senator Monserrate was at the hospital. It may be further inferred that Senator Monserrate did not wish to use his own phone for the calls to his staff and to certain other unlmown individuals based on the facts that: (1) he did not use his own mobile phone; (2) he used Ms. Giraldo's phone; (3) he used the hospital's phone; and (4) he used a pay phone. Finally, included with Ms. Giraldo's phone records is a map that shows T-Mobile's cell tower sites, which provides an approximate location for where a mobile phone is when a particular call is made. This map indicates that when the first call was placed to Ms. Toro at 3:03 a.m., Senator Monserrate and Ms. Giraldo were already traveling on Interstate 678 (the Van Wyck Expressway) approaching the voss Island Parkway. At 3:25 a.m., when a call was placed from Ms. Giraldo's phone to Ms. Rojas', the map indicates that Ms. Giraldo's phone was located near ilJ. Accordingly; it may be inferred from the map that Senator Monserrate and Ms. Giraldo utilized the Cross Island Parkway to travel to ilJ, which, according to Google Maps, should have taken approximately 19 minutes (without traffic) but was not, in any event, the fastest route to il] from Senator Monserrate's apartment. It may be further inferred that it took Senator Monserrate and Ms. Giraldo greater than 22 minutes to actually travel the distance based on the location of Ms. Giraldo's phone at 3:03 a.m. (on Interstate 678) and 3:25 a.m. (near LIJ).

20 5. Senaror Monserrate's Inten.Iem Wth the Media Because Senator Monserrate exercised his right not to testify at his criminal trial and has declined to malre any statements to the Select Committee, his viewpoint regarding the events of December 19, 2008 was notably absent from the record before the Committee. However, on December 8, 2009, Senator Monserrate gave two television interviews regarding his conviction and sentence." The Select Committee cautions that these interviews are of limited value because they were not under oath nor were they subject to the kind of questioning that would happen in a formal proceeding. Nevertheless, the interviews are useful to document Senator Monserrate's then current contentions, motivations, and state of mind. In the interviews, Senator Monserrate said, among other things, that: (1) he looked forward to proving his innocence on appeal; (2) he did not intend to cause harm to anyone; (3) his sole pUIpOse on December 19, 2008 was to take Ms. Giraldo to the hospital; (4) his actions were motivated only by concern for Ms. Giraldo; (5) he took Ms. Giraldo to LIJ, at her request. He also stated that he believed that the Select Committee's current process is "clearly unfair." The Select Committee has reviewed and considered these interviews along with the other evidence before it.

I I, I I I " Sre em the Raul to Oty HaU: IJererrkr 8, 2009 Intmiew7Jith HiramMwserrate (NY1 television I broadcast), awilaJ:ie at http://nyl.comf1.all-boroughs-news-contentl11018S/nyl-online- queens-senator-hiram-monserrate-on--road-to-city-hall- (transcript attached at Exhibit 11), I and New York NiiPtly Neus Wth 0Mk S~: IJererrkr 2009 Inteniew Wth Hiram ! Monserrate (NBC television broadcast), awilaJ:ie at http://www.nbcnewyork.comlstationlas seen-onl79105902.html (transcript attached at Exlnbit 12).

21 ~"._------

IV. FINDINGS OF TI-JE SELECT COMMITTEE A THE SHEer COMMlTIU'S MANDATE Based on the factual record before it, the Select Committee has been able to make findings on the relevant issues before it. We have not been charged with the task of determining whether the actions within Senator Monserrate's apartment that led to Ms. Giraldo's facial lacerations were intentional or accidental. It is not the mandate of the Select Committee to revisit the allegations for which Senator Monserrate was acquitted or to conduct a second "trial" of those matters. The facts agreed on by both sides at Senator Monserrate's trial are relatively simple. All agree that Ms. Giraldo was cut badly enough that she needed medical attention, and no one disputes that Senator Monserrate took her to a hospital, where she was given medical care. In the context of criminal prosecutions that go on every day throughout the Otyand State of New York, this one did not involve a complicated set of facts. Unfortunately, the only two people that truly know the entirety of what happened that night have never had their versions of events tested by cross-examination under oath. Both Senator Monserrare and Ms. Giraldo refused to cooperate with the Select Committee, and neither appeared to answer its questions on the circumstances underlying the misdemeanor conviction. For that reason, the Select Committee, like the trial court, had to spend much of its eHon parsing out of-court statements made by both Senator Monserrate and Ms. Giraldo in an effort to ascertain the true circumstances surrounding the misdemeanor conviction. In reviewing the evidence, the Select Committee concluded, consistent with the trial verdict, that Senator Monserrate recklessly assaulted Ms. Giraldo. It quickly became clear, however, that the Select Committee's ultimate task would be to derettnine, based on the available evidence and reasonable inferences to be drawn, why the assault occurred. If, as Senator Monserrate and Ms. Giraldo have asserted, the Senator had simply been too exuberant in perfonning the salutary task of getting Ms. Giraldo medical assistance as quickly as possible, it would be difficult to argue that even a criminal conviction in such circumstance is deserving of any sanction. On the other hand, if, as Justice Erlbawn suggested when he delivered his verdict, Senator Monserrate's assault of Ms. Giraldo in the hallway of his apartment building demonstrated that he was clearly concerned with matters other than the health of a bleeding woman, a different recommendation would be in order. The Select Committee detennined early on to look at the evidence with that backdrop, and its findings are geared towards answering these questions."

In the Select Committee's letter affording Senator Monserrate the opportunity to be heard before the Select Committee, his counsel were specifically informed that the Select Committee would ask Senator Monserrate to address the portion of Justice Erlbaum's verdict in which he suggested that the Senator's actions might have been designed to "keep the things under the radar" (Record 1293:14-25). Sre Letterfrorn Daniel R. Alonso, Esq. to Joseph Tacopina, Esq. and Glad Seigel, Esq. (Nov. 25, 2009). (Attached at Exhibit 13).

22 B. KARLA GIRALDO'S VERSIONS OF EVENfS ARE INOONSISTENf AND UNRELIABLE The Select Committee has reviewed the following sources of testimony and statements by Ms. Giraldo: (1) Ms. Giraldo's statements to LIJ emergency room personnel (reflected in Ms. Giraldo's medical records, the statements and trial testimony of Dr. Kort, Dr. Frogel, and Nurse Gtbibbo); (2) Ms. Giraldo's notarized statement, dated December 19, 2008, given to Senator Monserrate's spokesman, Michael Nieves; (3) Ms. Giraldo's grand jury testimony; (4) Ms. Giraldo's trial testimony; and (5) Ms. Giraldo's victim impact statement given at the sentencing of Senator Monserrate. Comparing these statements, the Select Committee notes the following assertions made by Ms. Giraldo that are either inconsistent or otherwise lack credibility and are therefore not reliable: • Ms. Giraldo testified before the grand jury that she had consumed two drinks on the evening of December 18, 2008 and that that was the extent of her drinking that night. At trial, Ms. Giraldo claimed that she was intoxicated and, when confronted with her grand jury testimony, stated that the prosecutor's question about how many drinks she had was limited to what she had consumed at the party that evening. In fact, the prosecutor specifically asked her if the two drinks she consumed at the party was the extent of her drinking that evening and Ms. Giraldo replied that it was. Indeed, Ms. Giraldo further testified that when she went to Senator Monserrate's apartment after the party she was not drunk but was "okay." • Ms. Giraldo initially testified before the grand jury that she did not exit the apartment after Senator Monserrate disposed of the PBA card. But after watching the surveillance video, she acknowledged that she had, but stated that she had not remembered doing so. • Ms. Giraldo also testified before the grand juty that Senator Monserrate was not angty after discovering the PBA card in her purse, but was calm. But after being shown the surveilIance video of Senator Monserrate disposing of the PBA card, Ms. Giraldo stated that "sometimes he's a little bit jealous" and that she was surprised that he had thrown the card out and "lilt was like the devil gOt inside of him because he threw away the card and he had never done this before." At trial, Ms. Giraldo acknowledged that Senator Monserrate was a "little jealous," but remained calm and did not seem angty. • In her December 19, 2008 notarized statement, Ms. Giraldo wrote that she and Senator Monserrate had "argued in the bedroom." Ms. Giraldo testified before the grand jury that she did not care that Senator Monserrate was going to throwaway the PBA card he had removed from her purse and that she was I1fJt upset. After watching her apparently agitated state on the surveillance video, however, Ms. Giraldo stated that she was a "little sad" that Senator Monserrate had thrown the card away and acknowledged that there had been an argument, which she characterized as "norrna~ without any fighting." At trial, however, Ms. Giraldo testified that when Senator Monserrate told her that he was going to throw the card away she became angry. .

23 • While stressing that our task is not to determine whether the ghss incident was accidental or intentiona~ in evaluating MS. Giraldo's credibility, we note the following inconsistency in her descriptions of that incident:'5 o In her notarized statement dated December 19, 2008, MS. Giraldo wrote that "I was accidentally cut by a ghss containing water after we argued in the bedroom" and "[t]hat evening 1 was vety upset and moving around frantically and therefore careless around the ghss." o In her grand jury testimony MS. Giraldo testified that Senator Monserrate bumped into something, spilled water onto her, and she reacted by "trying to sit up. That's when we bump [sze] into each other." • MS. Giraldo initially testified at trial that she did not recall asking Senator Monserrate to call 911 after her face was cut. The prosecution referred Ms. Giraldo to her grand jury testimony where she stated that she said to Senator Monserrate "if you want, call an ambulance," and he replied "I want to drive you over." Nonetheless, MS. Giraldo insisted that her grand jury testimony did not refresh her recollection and insisted that she did not recall whether she asked Senator Monserrate to call an ambulance. Justice Erlbaum concluded that MS. Giraldo ha~ in fact, requested an ambulance an~ at the sentencing, specifically questioned MS. Giraldo regarding Senator Monserrate's failure to call 911, asking her if she thinks she is "entitled to the respect of your wishes, or do you think that your wishes are of no account if he thinks better of it, he can just decide for you like a parent or guardian can decide for a minor child?" MS. Giraldo did not answer the question and only reiterated that the incident was an accident that could happen to anyone. Upon further questioning by the colUt, MS. Giraldo stated that she thought that it was better to go to the hospital than call 911 because she wanted to be with Senator Monserrate. When asked if she thought Senator Monserrate would not have accompanied her in the ambulance if 911 had been calle~ Ms. Giraldo responded that she did not know and that she had acted nervously because she was confused and intoxicated • MS. Giraldo wrote in her December 19, 2008 notarized statement that she initially refused to go to the hospital, but that Senator Monserrate insisted. She also testified before the grand jury that she did not want to go to the hospital because she was afraid of needles. However, she also testified before the grand jury that she approached the neighbor's door because she thought the neighbor could help her get to the hospital. Additionally,

'5 The noted inconsistency is entirely separate from the central inconsistency at trial, namely, that hospital personnel testified that MS. Giraldo told them that the incident was not an accident, whereas after Senator Monserrate was arreste~ she consistently asserted both that the incident had in fact been an accident and that she had not made the initial statements attributed to her.

24 contrary to her professed fear of needles, she stated to the grand jmy that she specifically told Senator MonseITate to bring her to LIJ so that she could see a surgeon. o Ms. Giraldo testified to the grand jUlY that she "knocked on some neighbor's door suddenly, I thought maybe he could help me to get to the hospital." At trial, Ms. Giraldo claimed that she did not recall having done so. When confronted with her grand jUlY testimony about having knocked on a neighbor's door because she wanted help, Ms. Giraldo repeatedly insisted that she was "very confused", "nervous" and "panicky," and continued to be evasive in response to questions about whether and why she rang a neighbor's doorbell or knocked on the door. o In her December 19, 2008 notarized statement, Ms. Giraldo wrote that "[a]s I walked down the hallway of the aparrment building with Hiram, I refused to go to the hospital but Hiram insisted that I go for my own good, and thankfully forced me to go for my own good." In her grand jury testimony, prior to watching the surveillance video, Ms. Giraldo insisted that there had been no struggle in the hallway and that she went with Senator Monserrate willingly. Even after watching the video, Ms. Giraldo maintained that she accompanied Senator MonseITate willingly.

o Ms. Giraldo testified before the grand jmy that the emergency room personnel realized that "he's a politician then this nightmare began." Ms. Giraldo stated that the hospital personnel"did not clean the blood from my face" when they realized who she was and that they "starred to gossip and to make problems by calling the police." Ms. Giraldo repeated these claims at sentencing, but these claims were dismissed by Justice Erlbaum, who stated that "[a] seriously bleeding woman, brought in to the most remote hospital in the counry, abutting another county, saying: 'It's not an accident, he is crazy,' trying to get him out of the room so they can give treatment, and you think that they cared one wit whether he was the sweeper or the president?" It is clear from the numerous inconsistencies and unreliable statements outlined above that there is reason to doubt Ms. Giraldo's credibility about the events of December 19, 2008, and most imponantly her testimony at Senator MonseITate's criminal trial. The motivation for her apparent lack of truthfulness appeared to be a desire to assist Senator Monserrate in avoiding criminal liability for the charges brought against him. As the prosecutor stated at Senator Monserrate's sentencing: "It's also clear throughout the course of the proceedings [Ms. Giraldo] was doing anything possible to assist the defendant in this case in terms of the trial. She was testifying opposite of Grand Jmy Testimony, she was not recalling testimony that she had recalled earlier in the proceeding, and I think that the coun had an opponunity to see in fact when your Honor questioned Miss Giraldo exactly what was going on in connection with their relationship." The Select Conunittee agrees with the prosecutor's assessment. Accordingly, based on all of the above-listed inconsistencies and statements lacking in credibility, the Select Conunittee finds that Ms. Giraldo's testimony cannot be relied on. Specifically, with respect to the hallway incident and the decision not to call 911, the Select Conunittee finds that Ms. Giraldo's trial testimony cannot be credited. On the critical issue of

25 whether Ms. Giraldo specifically asked Senator Monserrate to call 911, the Select Committee concurs with the conclusion of justice Erlbaum that, notwithstanding the inconsistency between Ms. Giraldo's trial and grand jury testimony, she did, in fact, request that Senator Monserrate call an ambulance. The Select Committee further finds that Ms. Giraldo knocked or rang on the neighbor's door because she was seeking assistance, as she testified before the Grand jury, and not because she was "nervous," as she testified at trial. Finally, Ms. Giraldo's grand jury testimony that there was no "struggle" in the first floor hallway, contrary to the obvious struggle depicted on the video surveillance, cannot be credited. . C. SENATORMoNSERRATE FAILED TO CooPERATE WI1HTIiE SELECT COMMITTEE On October 20, 2009, Senator Monserrate's office issued a public statement announcing that the Senator and his lawyers would "cooperate fully" with the Select Committee's investigation." Despite this announcement, Senator Monserrate refused to provide any materials requested by the Select Committee and declined the opponunity to appear before the Committee." Specifically, Senator Monserrate refused to provide those materials that the Queens District Attorney's office had provided to defense counsel in connection with Senator Monserrate's criminal case, including Ms. Giraldo's grand jury testimony." In a November 13, 2009 letter, Senator Monserrate's counsel rejected the Select Committee's request for trial exhibits (documents of public record that were in counsel's custody), criticized the legitimacy of the Committee's work and the impartiality of its members, and recommended "that if the Committee does nOt disband and is instead intent on continuing this process, you order and review the transcript of Senator Hiram Monserrate's triaL"" In a letter dated November 9, 2009, Senator Monserrate's counsel retreated from Senator Monserrate's initial public promise of cooperation with the Select Committee and defended the decision not to provide the requested materials on the basis that Senator Monserrate's spokesperson had only stated that "we 'expect to cooperate fully'" with the Select Committee's inquiry.3D Senator Monserrate specifically commented in a December 8, 2009 interview with WNBC that, "Well, I think that some, several of them including those that are on the committee

26 Sre jeremy W. Peters & Nicholas Confessore, State Senate to Consider ExpellirlgMOI1Serrate in Wake ifHis Assault Qndaicn, N.Y. Times (Oct. 20, 2009) auzilableat http://www.nytimes.coml2oo9/10/21/nyregionl21hiram.html ("[Senator Monserrate's] office issued a statement that said the Senator pledged his cooperation during the Senate investigation.") (Attached at Exhibit 14). " Senator Monserrate communicated his refusal to cooperate to the Select Committee via Tacopina & Seigel, his counsel forthis matter, as well as the criminal matter. " Letter from Daniel R. Alonso, Esq., to joseph Tacopina, Esq. and Chad Seigel Esq. (Nov. 11,2009) (Attached at Exhibit 15). Letter from Chad Seige4 Esq. to Daniel R. Alonso, Esq. (Nov. 13, 2009) (Attached at Exhibit 16). 30 Letter from joseph Tacopina, Esq. to Daniel R. Alonso, Esq. (Nov. 9, 2009) (Attached at Exhibit 17).

26 today, have asked me to resign prior to knowing all the facts. And I think that that really speaks to what kind of committee of inquiry this is. That people walking into the inquiry before reviewing a piece of evidence or any type of witness accountings would say you should resign. That's unfortunate. Unfortunately half of the committee has already gone in there with a predisposed opinion. I think that speaks to the lack of due process of that committee." In fact, Senator Monserrate's counsel had raised these very same concerns with the Select Committee's Special Counsel on October 27, 2009. The Select Committee took these concerns very seriously and, at the Select Committee's first meeting, the Chair specifically questioned the Committee's members, who all confinned on the record that each member could review the evidence and participate in the task mandated by the Resolution fairly and dispassionately. In accordance with New York Qvil Rights Law § 73, Senator Monserrate was invited to appear with counsel and provided with an opportunity to "submit proposed relevant questions in advance that [he] would like the Select Committee to ask"" Further, Senator Monserrate was provided with the options of testifying in person, presenting arguments or evidence through an oral presentation by counsel, or making arguments or presenting evidence in writing." Although Senator Monserrate refused to cooperate with the Select Committee in any way, he has willingly provided the media with details relating to his misdemeanor conviction. For example, in his December 8, 2009 interview with NY1, Monserrate provided information regarding his perspective on the decision to take Karla Giraldo to Long Island Jewish Medical Center on December 19, 2008. In the interview, he claimed that his actions on December 19, 2008 were motivated only by concern for Karla Giraldo and he took Giraldo to LIJ at her request. He also indicated that his decision not to call an ambulance may have been a mistake.]] 'These assenions are material to the Select Committee's inquiry. However, due to Senator Monserrate's decision not to testify in the criminal proceeding or before the Select Committee, Senator Monserrate deprived the Select Committee of the ability to test the veracity of his version of events using "the greatest legal engine ever invented for the discovery of truth,"" cross-examination under oath. It is well-settled law that a patty inay invoke the Fifth Amendment's protection against self-incrimination in both civil and criminal proceedings." It is equally well-settled that while a fact-finder in a crirrinal proceeding may not draw an adverse inference against an individual who assens the Fifth Amendment in that criminal proceeding," a fact-finder in a am proceeding is free

Letter from Daniel R. Alonso, Esq. to Joseph Tacopina, Esq. and Chad Seigel, Esq. (Nov. 25,2009). 32 Id

]] em the Rcwi to City Hall: Dererr/:;er 8, 2009 111te'r'1iewuiJh HiramMmserrate, supra. 5JWigmore, Evidence 1367, p. 32 a. Chadbourn rev. 1974). " Sre McCarthy'll A mitein, 266 U.S. 34, 40 (1924) (Brandeis, J) (stating that the Fifth Amendment's "privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."). " Griffin'll C:difomia, 380 U.S. 609 (1965).

27 to draw an adverse inference against an individual who asserts the Fifth Amendment in that civil proceeding or has asserted the Fifth Amendment in a prior civil or criminal proceeding." The Select Committee is thus entitled, as it does, to draw an adverse inference against Senator Monserrate based on his refusal to provide infonnation as requested by the Select Committee. D.ADDITIONAL FINDINGS OF THE SELEer COMMITIEE 1. The Too Vmims r{E= AreMut!!4lJ:jlntXlrISistent During the course of the District Attorney's investigation and the trial, and throughout the Select Committee's investigation, two fundamentaUy inconsistent versions of the facts have been put forward. In Senator Monserrate's version, backed up since his arrest by Karla Giraldo, he did what was necessary to make sure that Ms. Giraldo - injured, bleeding, and upset was given the medical treatment she desperately needed. In the second version, advanced by the District Attorney, a terrified Karla Giraldo attempted to escape from Senator Monserrate, while Senator Monserrate violently puUed her through the hanway, doing his best to ensure that the incident would stay, in the trial judge's words, "under the radar." These two versions are mutually inconsistent, and both cannot be true. 2. The Selea C.'.orrnittuJ RrjOClS Senator Monsen-are's Versiort r{E= Based on all of the evidence it has examined, the Select Committee agrees with the latter view, which is closer to that presented at trial by the prosecution. We are compelled to this conclusion by the fact that Ms. Giraldo's story lacks credibility, the obvious terror on Ms. Giraldo's face on the video recording together with Senator Monserrate's violent actions in the hallway, and the supporting evidence that corroborates Senator Monserrate's intent to avoid the incident's coming to light. Q:mversely, to believe Senator Monserrate's version of events, the Select Committee would need to conclude that LIJ medical personnel were dishonest under oath, his neighbor was unreliable, and that LIJ medical personnel inunediately became biased against Ms. Giraldo, a seriously injured woman, when they found out her boyfriend was a politician, despite the fact that there is no clear evidence adduced regarding such dishonesty, unreliabiliry, or bias. The more compelling version of events is straightforward and heavily corroborated by a video that is unimpeachable. Thus, the Select Committee finds that Karla Giraldo and Senator Monserrate engaged in a long argument before she was injured. There was enough blood to require several towels, and Ms. Giraldo was in distress. She asked Senator Monserrate to call an ambulance for her, but instead, he decided that he was going to take her to the hospital. As they were leaving to go to the hospital, Ms. Giraldo attempted to get away from Senator Monserrate. In the middle of the night, in a building that was not hers, at a time when she was not intoxicated (see below) she raOg the doorbell of a neighbor because she "thought maybe he could help me get to the hospital" When Senator Monserrate saw that Ms. Giraldo rang Ms. Loudon's bell, his behavior changed. Rather than reconsider his decision not to call 911, or even to soothe Ms. Giraldo and try to convince her that his decision was somehow better than calling paramedics, he deliberately chose to grab her forcefully and puu her out of the building. His intent to do so is evident from the video

37 Baxter1.1 Pabrigiano, 425 U.s. 308 (1976).

28 evidence showing Ms. Giraldo clinging to the banister in terror, resisting Senator Monserrate's effort to force her to leave the building. Additionally, when Ms. Giraldo dropped the towel she was pressing on her face to stop the bleeding, Senator Monserrate continued to drag her out of the building. Indeed, he appeared to pull harder afterMs. Giraldo no longer had the towel pressed to her face. The combination of all of these facts led in part to the Court's conclusion - with which the Select Olinmittee agrees - that the Senator was proceeding in a reckless manner. The Select Committee considered many factors, including (1) the delay in obtaining treatment; (2) the choice of hospital; (3) the explanation Senator Monserrate advanced at trial; (4) the Court's findings; (5) the cell-site information; (6) the various possible routes to ilJ and the apparent route used; (7) the decision to park on the street rather than use the emergency entrance; (8) the need for the long walk through the hospital; and other evidence concerning Ms. Giraldo's treatment and Senator Monserrate's behavior. Based on those factors, the Select Committee concludes that the decisions made that night by Senator Monserrate as to the treatment of someone he ostensibly loved and cared for, were not consistent with the obvious need to obtain swift medical care for an injury of the seriousness of Ms. Giraldo's, Whether the Senator was worried for his political future or not, the evidence demonstrates both recklessness and callousness. The Select Committee was also troubled by the fact that three individuals who worked for Senator Monserrate appear to have been involved in "managing" Ms. Giraldo in connection with the Senator's defense in his criminal triaL As described in Section IILC.2 above, Edward lrizzary, an attorney who is currently employed as counsel to the New York State Senate Consumer Protection C'nmminee, chaired by Senator Monserrate, drafted Ms. Giraldo's notarized statement dated December 19, 2008 in English. Additionally, Michael D. Nieves, who acted as a spokesman for Senator Monserrate, notarized the statement. Luis E. Castro, who currently works for Senator Monserrate on the Senate Consumer Protection Committee, was in contact with Ms. Giraldo throughout the criminal trial and sentencing, and escotted her to and from court on the day that she testified. " Finally, the Select Committee finds that although Ms. Giraldo had been drinking earlier in the evening, she was not intoxicated at the time 'of the events in the hallway, contrary to the defense position at triaL This is evident based on two facts. First, in her grand jury testimony, she swore, at a time before she knew that Senator Monserrate's defense would try to establish that

3B Sre Barbara Ross, Pal ifstate Sen. HiramMCJ'l5emlt£ armrgr! Karia Giraldo's trial seanity, N.Y. DAlLY NEWS, Nov. 16, 2009. As discussed above, counsel for the Select Committee interviewed both Mr. Nieves and Mr. Castro. Both individuals confinned that they have significant personal and!or professional relationships with Senator Monserrate. Mr. Nieves stated, that he advised Senator Monserrate in his campaign for District Leader, worked for Senator Monserrate while the Senator was a New York GtyCouncilman, and has served as a political consultant and spokesman for Senator Monserrate. Mr. Castro acknowledged that he accompanied Ms. Giraldo to court on the day that she testified at trial, September 30, 2009. He also stated that he has known Senator Monserrate since the Senator's birth, worked for Senator Monserrate when the Senator was a New York Gty Councilman, and communicates with Senator Monserrate approximately every other day. Additionally, Mr. Castro confinned that he is employed currently as a Special Assistant to the New York State Senate Consumer Protection Committee, chaired by Senator Monserrate.

29 she was intoxicated, that she was not intoxicated The Select Committee finds that more convincing than her testimony at the trial, which was clearly intended to bolster the defense's arguments. Second, in the video recording made at ilJ, just 37 minutes after the hallway incident, Ms. Giraldo is plainly not intoxicated and clearly walked through the hospital in a normal stride.

3. Senatar Mmerrate Has NatA W?J1ted RAAJ11SibiliJ,y FIffHis A cti

Sentencing 130:20-21,23-24.

30 statements make clear, he instead effectively blamed Ms. Giraldo for the decisions made that night, and blamed himself only secondarily for not overruling her putponed decisions.'" Senator Monserrate made similar representations in his interview with NBC's Chuck Scarborough, stating, "I still look forward to fighting to prove the innocence of these charges" and that the only thing that he was guilty of was that "I took someone who was reluctant, reticent to go and seek medical attention to the hospital." Notably, Senator Monserrate has refused even to acknowledge that his misdemeanor conviction was a domestic violence offense. In the NY1 interview, Senator Monserrate rejected the assenion that he committed any act of "domestic violence," and stated that he does not believe that counseling is warranted (although he noted that he would follow the Coun's instruction, pending appeal). Additionally, in a letter dated November 13, 2009, Senator Monserrate's counsel assened that Ms. Giraldo "takes umbrage at being dejamd as a 'domestic violence' victim.,,41 Based on its review of the entire record in this case, the Select Committee frods that the reckless assault of Karla Giraldo by Senator Monserrate on December 19, 2008 = a crime of domestic violence involving the use of physical force against an intimate partner, Ms. Giraldo, resulting in physical injury to Ms. Giraldo. This is evident from Ms. Giraldo's own testimony. At trial and again at sentencing, she repeatedly referred to Senator Monserrate as her "boyfriend"" or "beau"" and acknowledged that, while she does not have a key to his apanment,'" she kept a "small amount" of her clothes there." In trying to convince the judge during the sentencing proceeding that she did not need an order of protection issued on her behalf, Ms. Giraldo explained to the Coun that she "want[s] to continue ... [her] normal life" with Senator Monserrate and that "prior to this [incident] happening we had plans and we would like to get married."" Senator Monserrate's own comments to the judge at sentencing emphasizing his love for Ms. Giraldo," his desire to "continue to be... with her,"" and his being committed to "providing her with happiness and good," further suppon the Committee's belief that this relationship was not a ttansitory or "one-night" affair, but rather a non-marital "intimate relationship" as that term is used in the "family offense" section of the Criminal Procedure Law. Thus, pursuant to CPL § 530.11(1) (e), persons who are in a non-marital "intimate relationship" are included within the definition of "member of the same family or household" for

On the Read to City Hall; D«mi::er 8, 2009 Inteniewuith HiramMr:nerrate, supra. 41 Letter from Chad Seigel, Esq. to Daniel R. Alonso, Esq. (Nov. 13,2009). 42 Record 610, 612; Sentencing 55. 43 Record 668. 44 Record 611. 45 Record 635. Sentencing 53. 47 Sentencing 130, 132. 48 Sentencing 132.

31 purposes of determining whether an offense is a "family offense" under that section. Under this recently-added provision of CPL § 530.11, "members of the same family or household" include: persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an "intimate relationship" include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two inc1ividuals in business or social contexts shall be deemed to constitute an "intimate relationship."" Certain Penal Law offenses, including assault, when committed between "members of the same family or household," are considered "family offenses" for which the victim has a statutory right to proceed civilly (through the filing of a family offense petition in Family Court), criminally or both. Notably, the judge at sentencing in this case issued a "family offense" final order of protection under CPL § 530.12 rather than a "non-family offense" order under CPL § 530.13, thus entitling the victim to the added protections and safeguards of a CPL § 530.12 order. These include automatic entry of the order into the statewide electronic registry of orders of protection.50 Despite his protestations to the contrary, Senator Monserrate was indeed convicted of an act of domestic violence.

CPL § 530.11(1)(e). 50 In spite of Ms. Giraldo's claims as to the benevolent nature of Senator Monserrate's forcible conduct in the hallway, no effon was made by the defense in this case to characterize that conduct as non-criminal under the "justification" defense set fonh in Penal Law § 35.05(2). Under that section, forcible conduct that would othetwise rise to the level of a criminal assault is "justifiable and not criminal" when, under specified circumstances, "such conduct is necessary as an emergency measure to avoid an inuninent public or private injury." Penal Law § 35.05(2). The failure to raise this possible defense was apparently not an oversight but rather a recognition by the defense, based on the clear weight of the evidence, that Senator Monserrate had in fact /ailed to seek immediate emergency mec1ical assistance for Ms. Giraldo by calling 911 or promptly transponing her to the closest hospital emergency room following the broken glass incident.

32 V. LEGAL AUTHORITY TO SANCTION It is well established that a legislative body has the right to regulate the conduct of its members and may discipline a member as it deems appropriate.'1 The power to judge the qualifications of members includes the power to discipline a seated member." "It is a power of self protection that is inherent in legislative assemblies."" The New York Court of Appeals has observed that although the New York Constitution, like many state constitutions, does not explicitly enumerate the "power to keep order or to punish members or others for disorderly conduct, or to expel a member," "[t]he necessity of the powers mentioned is apparent, and is conceded in all the authorities."" Such sanctions may also include censure, removal of privileges," or other remedies which the Senate may choose to fashion. 56 This power is inherent in parliamentary bodies as a "self disciplinary action necessary to protect the integrity of the institution and its proceedings. »57 It is a "power of protection" that has a long history in parliamentary systems and in the legislatures of the United States.58 As the Judiciary Committee of the New York Assembly explained in 1920,

51 Sre MAsON'S MANuAL § 561.2; B1')I:ln 'lJ LihurrI, 1996 WL 785997 (V.1. Dec. 30, 1996) (holding that the Virgin Islands Legislature, pursuant to its power to "judge of qualifications of its members" had the power to suspend a member without pa:0. 52 B1Jtln, 1996 WL 785997, at *4.· " Id The B1Jtln court noted that this inherent power to sanction a member included the power to expel a member. 54 People ex rei. McDO!1t1ldl1 Kader, 99 N.Y. 463, 481 (1885). 55 As noted below, the New York State Senate and Assembly have previously utilized all of these measures. " CUsHING §675 (the punishments "within the competency of a legislative assembly to inflict" include "the withdrawal of privileges conferred," fonnal reprimand, and expulsion). 57 Sre CoNGRESSIONAL RESEARCH SERVICE, RECALL OF LEGISLATORS AND TIiE REMOVAL OF MEMBERS OF CoNGRESS FROM OFFICE 2 (updated Mar. 20, 2003); see also Hiss 'lJ Bartlett, 69 Mass. 468 (1855). 58 Hiss, 69 Mass. at 475. In this seminal expulsion case, the Massachusetts Supreme Court explained that despite the fact that the Massachusetts Constitution does not contain express language providing for punishment or expulsion of members, the omission of explicit language conferring the poweno punish was of no moment: because it was regarded as inherent, incidental and necessary, and must exist in every aggregate and deliberative body, in order to the exercise of its functions, and because without it such body would be powerless to accomplish the purposes of its constitution; and therefore any attempt to express or define it would impair, rather than strengthen it.... But independently of parliamentary custom and usages, our legislative houses have the power to protect themselves, by the punishment and expulsion of a member. Id

33 Each house has also the sanction to punish members for disorderly behavior and other contempts of its authority, as well as to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. 'This power is generally enumerated in the Constitution among those which the two houses may exercise, but it need not be specified in that instrument since it would exist whether expressly conferred or not. It is a necessary and incidental power to enable the House to pertorm its high functions and is necessary to the safety of the State; it is a power of protection." It should be noted that while the Select Committee may make a recommendation regarding an appropriate sanction, the Select CDInmittee does not itself have the power to issue any sanction under Senate Resolution 3409. Any Senator may choose to adopt or disregard the report and recommendation of the Select Committee as his or her conscience and duties under his or her oath of office dictate."'

" 3 PROCEEDINGS OF TIlE JUDIaARY CoMMITI'EE OF TIlE AsSEMBLY IN TIlE MATI'ER OF TIlE INVESTIGATION BY TIlE AsSEMBLY OF THE STATE OF NEW YORK AS TO TIlE QUALIFICATIONS OF LOUIS WALDMAN, AUGUST Q.AESSENS, SAMUEL A DEWiTT, SAMUEL ORR AND G-lARLES SOLOMON, TO RETAIN THEIR SEATS IN SAID BODY, Assembly Doc. No. 35 at 2746-47 (1920), quoting JUSTICE THOMAS M CcX)LEY, A 'TREATISE ON TIlE CoNSTITUTIONAL L!MITATIONS WHIm REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 133 (1871). Sre also In re Lithuanian Womm'Literature Soc, 196 App. Div. 262, 268 (2d Dept. 1921), in which the court acknowledged the Assembly's ultimate determination as to its authority to sanction and ultimately expel members, stating that "I am not insensible that there was and still is a wide difference of opinion as to the propriety of that action of the Assembly, but we, as a court of the State, are reasonably bound to give respectful consideration to its action in that regard, as being that of the constitutional authority having final jurisdiction in the matter.' Absent contrary authority, this decision is binding. Mountain ViewOxidJ Lim, Inc 'U StOIm, 102 AD.2d 663, 664 (.1984)

Sre Pm 'U Senate, 146 Cal. 604 (1905). In this seminal case on the disciplinary powers of state legislatures, the Supreme Court of California explained that decision of the full Senate to discipline a member (in that case, to expel a member) rested on "[t]he oath of each individual member of the Senate, and his duty under it to act conscientiously for the general good." Id at 1034. The California Oath of Office on which the Pm Court relied is virtually identical to the current New York Oath of Office. Sre CAL. CoNST. art. xx, sec. 3 (1879), am'l>iaiNov. 4, 1952. The New York Oath of Office states: I do solemnly swear (or affirm) that I will support the constitution of the United States, and the.constitution of the State of New York, and that I will faithfully discharge the duties of the office of , according to the best of my ability. N.Y. CoNST. art. XIII, § 1.

34 A EXPULSION 1. LlJislatiu Law§ 3 In general, "[t]he power to expel a member is naturally and even necessarily incidental to all aggregate, and especially all legislative bodies; which without such power, could not exist honorably, and fulfill the object of their creation."" The New York legislature has established procedures for the exercise of this power in the enactment of Legislative Law § 3, which provides simply: 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." This power may only be exercised by the full ~enate, provided that prior to the vote to expel, a Senate committee (1) conducts an inquiry into the charges against that member, and (2) issues a report of its inquiry to the full Senate for its consideration. As is evident from the minimal requirements of Legislative Law § 3, the expulsion power is necessarily broad, deriving from "an ancient parliamentatyprivilege."" As noted judge and scholar Luther Steams Cushing explains in his authoritative treatise on the subject of legislative procedure in the United States, the power "is in its vety nature discretionaty, that is, it is impossible to specify beforehand all the causes for which a member ought to be expelled; and, therefore, in the exercise of this power, in each particular case a legislative body should be governed by the striCtest justice."" Therefore, other than compliance with requirements of Legislative Law § 3, and the requirement of a majority vote of the Senate that would be required for any typical Senate action, "[i]n all other respects the power is absolute."" The Senate therefore has the discretion to deterntine, as it has through Senate Resolution 3409, the composition of the corrunittee, its procedures, and the required contents of its report, and any other issues. By delegating the "inquiry" in this matter to a "committee" and mandating the issuance of a "report" of this inquiry upon the full Senate, the requirements of Legislative Law § 3 have been met.'" By implication, Legislative Law § 3 places no limits on the

61 OJsHlNG § 625. " N.Y. LEGIS. LAW§ 3. " Sf£ 1 OiARLEs Z. LrNCDLN, THE CONSTITIJTIONAL HISTORY OF NEW YORK 98-99 (1906) ("LrNCDrn"). 64 OJsHlNG § 625. OS' MAsoN's MANuAL § 562.2. It should again be noted that the Senate did not rely on Legislative Law § 3 in establishing the Select Corrunittee, nor is the Select Corrunittee solely directed to consider expulsion. As explained in the section entitled "I,nvestigation of the Select Committee," above, the Select Corrunittee was fanned not pursuant to the Senate's expulsion powers, but pursuant to the Senate's broad investigative powers and disciplinaty powers. Senate Resolution 3409 also granted the Select Committee the discretion to consider "sanctions" generally, which includes, but is not limited to expulsion. Reganlless, by conducting a corrunittee inquiry and (continued...)

35 Senate and by extension, on the Select Committee, in determining whether and how to hold hearings, take testimony, and conduct fact-finding. The only limitations on the procedures adopted are those that may be imposed by due process." The language of Legislative Law § 3 was enacted in its present fonn pursuant to "AN ACT in relation to legislation" on.May 18, 1892." A predecessor version of the statute appears in Chapter VII of The RedsedStatJ.I1J5 ifthe StateifNewYmk, published in 1829, as § 12 of Trrle II and reads: Each house has the power to expel any of its members, and to punish its members and officers for disorderly behavior, by imprisonment; but no member shall be expelled, until the report of a committee, appointed to inquire into the facts alleged as the ground of his expulsion, shall have been made." This statute was drafted by a commission appointed by the legislature in 1825 to update the legislative law, with a specific view to elucidate an area that was,' at that time, governed principally by uncodified privileges and rights inherited by tradition at common law.70 It is apparent that by enacting this provision, the legislature sought simply (1) to fonnally declare an already existing inherent right of the legislature, and (2) to generally define its contours," the rationale being that providing additional notice and general guidelines for the exercise of venerable and well-worn legislative rights and privileges through written law was proper - one of the Commission's stated goals was to provide some" legislative definition of those privileges of the houses" and remove any "snare forthe unwary.""

issuing a report to the full Senate, the requirements of Legislative Law § 3 have been met, and the full Senate is free to expel or not expel Senator Monserrate as each Senator's conscience and oath of office dictates. " This includes compliance with New York Gvil Rights Law § 73, which enumerates a "Code of fair procedure" for investigative bodies. Most of the requirements relate to the treatment of witnesses and witness testimony. As no witnesses appeared before the Select Committee, the majority of the requirements are inapposite in the present case. Senator Monserrate was invited to testify and served with a copy of § 73, but declined to patticipate in the Select Committee's process. " 1892 N.Y. Laws ch. 682, at Vol. 2, at 1670. " 1 Revised Statutes of New York, part 1, ch. VII, tit. II, § 12, at 154 (1st ed. 1829). The statute appears in subsequent editions of the RedsedStatutes in subsrantiallythe same form. 70 REpORT OF TIlE CoMMISSIONERS, APPOINfED BY TIlE Acr OF APRIL 21, 1825, TO REVISE TIlE STATIJrE LAws OF TIllS STATE (1827) (Legislative Document No. 7) ("1827 REpORT OF TIlE CoMMISSIONERS"). This Report was made to the Senate on February 10, 1827. The Commissioners submitted a draft of OIapter VII, entided "Of the Legislature." " According to the note to § 12, the expulsion provision was "[d]eclaratory, and partly new." 1827 REpORT OF TIlE CoMMISSIONERS at 12. " Id at 14.

36 Because Legislative Law § 3, as an act of the Legislature, is presumptively valid," and has never been challenged nor held Wlconstitutional, the Select Committee's analysis of the legal basis of the power of expulsion could end there. However, for the benefit of the Senate as it considers this matter, we set forth in the following sections an analysis of the relevant authority from the New York State Constitution that gtant the Senate the power to expel a member. 2. O:nstitutimal A 1!!bariJy Unlike some state constitutions," the New York Constitution has no express provision explicitly authorizing either house to expel its members. The most our Constitution states relating to the subject is simply that "[e]ach house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members."" However, the weight of authority is that a house of the state legislature has the power to expel its members even without an express constitutional mandate. As GIshing explains, "[~n the States of Massachusetts, New Hampshire, New Yom, and North Carolina there being no constitutional provision on this subject, the power to expel exists as a necessary incident to evety deliberative body and may be exercised at the discretion of the assembly and in the usual way of proceeding."" Moreover, "[w]here no provision is made relating to this subject, expulsion takes place in the same manner with any other proceeding. In some of the constitutions there are express provisions upon this subject which in those States, of course, must be obselVed."77 In other words, because there is no express provision to the contrary, the New York Senate may expel a member by a simple majority vote.

73 LaValk 'U Haylen, 98 N.Y.2d 155 (2002) "Legislative enactments enjoy a strong presumption of constitutionality. While the presumption is not irrefutable, parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity 'beyond a reasonable doubt'. Moreover, courts must avoid, if possible, interpreting a presumptively valid statute in a way that will needlessly render it unconstitutional." Id at 161. 5(£ also Patersw 11 Urtiwsity ifState ifN. Y., 14 N.Y2d 432, 438, (1964); Prople 11 TUhemr, 89 N.Y.2d 769, 773,(1997); Prop!e 'U PagrJOtta, 25 N.Y.2d 333, 337, (1969); AlliancE ifAm Inswm 11 011, 77 N.Y.2d 573, 585 (1991). 74 See, e.&, F'fErKh, 146 Cal. 604, 606 (1905) (stating that the California Constitution expressly provides that the senate "shall determine the rule of its proceeding, and may, with the concurrence of two tItirds of all the members elected, expel a member." (CAL. CONST., ART. IV, § 9.); State Ex Rei. HaUiand 11 fuuIk, 111 P. 720, 722 (Mont. 1910) ("Section 9, art. 5, provides that each House shall judge of the election, returns, and qualifications of its members. Section 11 provides that each house shall have power, with the concurrence of two-thirds, to expel a member.") u.s. CONST. ART. I, §5 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and ... may determine the Rules of its Proceedings, pWlish its Members for disorderly Behavior, and, with the Concurrence of two-tltirds, expel a Member.") 75 N.Y. CONST. ART. III, §9. 76 CusHING §687. 77 Id § 683.

37 In the well-known expulsion case of Fren:h 'll Senate, the California Supreme Court entertained a mandamus action initiated by duly elected members of the California Senate who had been expelled for, allegedly, the taking of bnbes. 1be Senate refused to allow the Senators to sit and did not afford them any process to contest the charges, although none was convicted of any crime. The court held, based on "high authority," that "even in the absence of an express provision conferring the power, every legislative body in which is vested the general legislative power of the state, has the implied power to expel a member for any cause which it may deem sufficient. »78 In explaining the existence of explicit expulsion provisions that exist in many constitutions (including the federal Glnstitution) and often contain a super-tpajority requirement, the Conn stated that "[t]he only effect of th[ose] provision(s] is to make the concurrence of two thirds of the members elected necessary to its exercise. . .. If this provision were omitted, and there were no other constitutional limitations on the power, the power would nevertheless exist and could be exercised by a majority.""

Frm:h relied in part on the important case of Hiss 'll Bartlett, which observed that "The only clause in the constitution which can have a bearing on this question [the legislature's power to expel a member] is as follows: '1be house of representatives shall be judge of the returns, elections and qualifications of its own members, as pointed out in the constitution; shall choose their own speaker, appoint their own officers, and settle the rules and orders of proceeding in their own house.""o 1be Conn held that "this clause gives the power [to expel members]." The Conn acknowledged the clause's express omission of the ability to punish representatives, but reasoned that "the omission of an authority to punish members, when that of punishing persons, not members, is so distinctly given, may well have been made because their implied power over their own members was full and complete, though an express grant of power was necessary, in regard to persons not members.... There is nothing to show that the framers of the constitution intended to withhold this power. It may have been given expressly in other states, either ex =jari o:tuteIa [as a precaution] or for the purpose of limiting it, by requiring a vote of more than a majority."" This view is shared by most of the authoritative resources on legislative procedure. MtlScn's Manud ifLegjsltaure Prrxr:dure explains that "[m]ost state constitutions provide that each house, with the concurrence of two-thirds of all members elected, may expel a member. If these constitutional provisions were omitted and there were no other constitutional limitations, the power to expel would nevertheless exist and could be exercised by a majority. 1be only effect of the constitutional provisions is to make the concurrence of two-thirds of the members necessary to expel a member. In all other respects the power is absolute."" In his treatise, GJshing explains that "[t]he power to expel a member is naturally and even necessarily incidental to all aggregate, and especially all legislative bodies; which without such power, could not exist honorably, and fulfill the

78 146 Cal. at 606. 79 Id '0 69 Mass. at 471-72. " Id at 472-473. " MAsON'S MANuAL §§ 562.1-562.2.

38 object of their creation."" As stated previously, the New York courts have acknowledged this g power. 4- a. The Nature of State Legislative Power Unlike the houses of the United States Congress, which under the federal Constitution wield only those powm that have been specificallyentllW'attd, the powers possessed by state legislatures are general and plenary unless expressly lirrited or prdil;ited by the state (or federaQ constitution." [I]n determining whether state government possesses the requisite power to act in a given area ... it must 0 be presumed that the state government possesses the inherent power to act in the area involved. This presumption of inherent power can only be overcome by an express prohibition in a state constitution on the exercise of the power at issue, or a provision regulating the manner in which it is to be exercised." As explained succinctly by the Kansas Supreme Court, "the sources of power of the legislative branches of the federal and state governments differ profoundly. Federal legislative power derives solely from the federal Constitution; a state legislature is free to act except as it is restriCted by the state constitution."" This is the same view that has been adopted in New York: "[state] Constitutions, unlike the federal Constitution, are not grants of power but, on the contrary, are limitations 'of the powers of the people themselves, self-imposed by the constitutional compact.''''' The courts have emphatically explained the significant breadth of this legislative power in New York: "except as limited by the Constitution, the power of the Legislature to enact laws is absolute, plenary and unlimited and mayor may not be exercised, as the legislators choose, and-its acts may be general in their application or may enunciate a rule for special cases."" Likewise, the Court of Appeals has

" CuSHING § 625. " Sa: Prop/eex rei. McDonald'll Ki£ler, 99 N.Y. 463, 481 (1885); In re Lithuanian WOIkm' Literature Soc, 196 App. Div. 262, 268 (2d Dept. 1921). " Sa: THoMAS C. MARKs, JR. & JOHN F. CooPER, STAlE CoNSTITUTIONAL LAw IN A NUTSHELL § 6 (2d ed. 2003). .. Id 87 Sedlak v [)Uk, 256 Kan. 779, 791 (1995) (internal citation omitted). 88 Peq;kv Long Is/andRR, 185 N.Y.S. 594 (Sup. 0.1920), reddcnetherg;uunds, 186 N.Y.S. 589 (2d Dep't 1921) (quoting Propk v Draper, 15 N.Y. 532, 1857 WL 7076, at *9 (1857)). The Draper court goes so far as to hold that "[t]he constitution vests all legislative power in the senate and assembly, with certain restrictions and limitations imposed on that body by the constitution itself. Independent of those limitations, the /eislathe pauer is OI'mipxent Wthin its propersphere." 1857 WL 7076, at *9 (emphasis added). " 89 RiJ5ekrgv State, 243 N.Y.S.2d 887, 892 (N.Y. Ct. d. 1963).

39 stated that "[t]he general legislative power is absolute and unlimited except as restrained by the Constitution. Every act of the Legislature must be presumed to be in harmony with the fundamental law until the contrary is clearly made to appear."" b. The New York Constitution The history of New York's Constitution further supports the view that each house of the legislature may exercise this expulsion power, either as an "inherent power," or as a power necessarily implied in Article III, § 9's provision that pennits each house to judge the qualifications of its members. As noted previously, this is essentially identical to the provision of the Massachusetts Constitution that the Hiss court relied upon in finding that the Massachusetts House has constitutional authority to expel a member." According to Charles Z. Lincoln's authoritative multi-volume history of the New York Constitution, the right of a house to remove its members traces its roots at least as far back as the original 1683 New York C1Jarter if LiJ:ertie; and Pri'likg?s, which provided "1HAT TIlE said Representatives are the sole Judges of the Qualifications of their own members, and likewise of all undue Eleccons [sic] and mryftum tirrE to tirrE fJU1IJ' their haise as they shall sre =sWn during the said sessions."" In the note on this section, Lincoln indicates that this provision is the predecessor to the clauses that appear in subsequent versions of the New York O:mstitution granting the legislative houses the power to "judge ... the qualifications" (the "Qualifications Clause") of their respective members:' The note also states that "[t]his was an assenion of an ancient parliamentary privilege and it has continued in all our Constitutions."" The first Constitution, adopted in 1777, does not contain the "purge" language, but instead reads: "the Assembly, thus constituted, shall choose their own speaker, be judges of their own members, and enjoy the same privileges, and proceed in doing business, in like manner as the Assemblies of the colony of New-York of right formerly did."" Thus, by implication, the power to expel (along with other privileges and powers inherent under this clause) were expressly, if indirectly, retained. By contrast, the second Constitution, adopted in 1821, reads simply "each house shall determine the rules of its own proceedings, and be the judge of the qualifications of its own members."96

" People'l1 Bradley, 207 N.y. 592, 610 (1913) (internal citations omined). " 69 Mass. at 473. " IJNCOLN at 98-99 (emphasis added). 9l Id at 99. " Id " N.Y. CONST. § 9 (1777). " N.Y. CONST. ART. I, § 3 (1821). The 1821 provision is very similar to the current version, with the only difference being the addition of the italicized words in the present version: "[e]ach house shall determine the rules of its own proceedings, and be the judge of the eleaions, mums and qualifications of its own members. NY Q)NST. ART. III, § 9.

40 The reports of the convention debates themselves do not shed light onto the motivation for this change, but there is no indication that it was intentionally abrogated.97 This question was expressly addressed just six years later in the 1827 Repon of the Commissioners responsible for the drafting of Legislative Law § 3." As explained previously, the Commission descnbed Legislative Law § 3 as "[d]eclaratOly, and pattIy new."" More imponantly, the Commissioners observed from the outset that "[t]he amended constitution of this state, is silent upon the subject of the privileges of the legislature, or of either house," and noted the above discrepancy between the 1777 and 1821 Constirutions. It was the Commission's determination that "the omission of these words in the amended constitution, was not intended to deprive, and cannot have the effect of depriving, the two houses of the legislature of the indispensable power of punishing contempts." While the Commissioners' reference is to the legislature'S inherent and "indispensible" power to punish contempts (a power that is enumerated in § 13 of their draft revisions) and § 12 is not specifically discussed, the OJmmissioners' logic is easily extended to the rationale behind § 12 - that it is simply a "declaratory" expression of an "indispensible" parliamentary power that had previously been held at common law, and that the Commission felt

97 This is in contrast to the conclusion of the New York State Assembly's eight-member Ethics and Guidance Conuniuee in its 1987 repon regarding its inquiry into the actions of Assemblywoman Genii E. Lipschutz (the "Lipschutz Repon"). (Auached at Exhibit 18). The Conuninee concluded that the Assembly did not have the authority to expel Assemblywoman Gercli E. Lipschutz, and instead recommended other discipline. Although a complete analysis of the Assembly's position is beyond the scope of this repon, the Select Conuniuee notes that the Lipschutz conuninee did not consider or even cite to Legislative Law § 3 or any of its legislative history, nor did it cite to any of the cases or authorities relating to the inherent authority of a legislature to expel a member. It is also worth noting that the Select Conuninee finds the Lipschutz Repon's extensive reliance on the Supreme Coun's decision in Pmudl 'U McConnuk, 395 U.S. 486 (1969), similarly inapposite. That decision construed the parallel provision in the federal Constitution, which, as explained previously, does not function in the same manner as a state constitution. While the New York Constitution's "qualifications" provision is worded similarly to the federal Constitution's (and most other states' Constitutions), the profound differences between federal and state constitutional structure minimize any precedential value or persuasive authoriry of Pms interpretation of the federal Constitution to the question of interpreting the New York Constitution. As the Maine Supreme Court explained in Lea[ff4f! if W<:mn V= 'U Strn?tary ifSlate, states are not bound to adopt the Supreme Coun's interpretation of the federal Constitution where the history and structure of their Constitutions differ, even where the language in question is identical 683 A2d 769, 772-73 (Me. 1996). The coun specifically noted Pmudl 'U McConnuk as an example of this. Moreover, Pmudl is an exdusioo case, not an expulsitn case. There is no argument here that the member does not meet the "qualifications" for membership and is seeking to prevent him from taking his seat (which was the case in Purull). The invocation of the power of expulsioo is analytically distinct. 98 1827 REpORT OF TIlE COMMISSIONERS at 12. " Id

41 the need to statutorily declare and define it pursuant to their stated belief that it was "peculiarly proper, that all the privileges, both of the body and of its members, should be defined by written law." 100 Finally, two other provisions of the New York Constitution strongly support the Senate's power to expel a member. First, Article XIII, § 6 grants the legislature the power to "declare the cases in which any office shall be deemed vacant when no provision is made for that purpose in this constitution." Because the New York Constitution contains no provision for determining when a member's office is vacant due to expulsion, this provision authorizes the legislature to "declare the cases" in which the offices of members are vacated. The legislature has thus acted in accord with this provision in enacting Legislative Law § 3, which sets out the mininuun procedures required to expel a member and thus deem the member's seat vacant. Second, Article I, § 14 (entitled "Common law and acts of the colonial and state legislatures") specifically preserves powers and rights that were accorded at common law and by the laws of the colony of New York prior to the 1777 Constitution that have not been expressly abrogated. 101 Such "continu[ing]" powers would include the power to "purge" members of a legislative house, since this was a right deriving from the colonial charter - an "act of the legislature" - and expressly recognized in the pre-1777 "colony of New York" which was never expressly abrogated. 3_ Ef/ir:t

100 Id at 14. It is likely that the Commissioners' specific focus on the inherent power of a legislative house to punish for contempt is in response to the then-recent case of A ndersrn u Dunn, 19 U.S. (6 Wheat) 204 (1821), which is in fact cited by the Commissioners in their note to Title II. In A ndersan, the seminal American case on the power of legislative bodies to punish for contempt, The Supreme Court held that the houses of Congress had the inherent power to punish for contempt "by necessary implication," despite the "constitution of the United States being equally silent [as the New York Constitution] on this subject." Id 101 "Such parts of the common law, and of the acts of the legislature of the colony of New York, as together did fonn the law of the said colony, on the nineteenth day of April, one thousand seven hundred seventy-five, and the resolutions of the congress of the said colony, and of the convention of the State of New York, in force on the twentieth day of April, one thousand seven hundred seventy-seven, which have not since expired, or been repealed or altered; and such acts of the legislature of this state as are now in force, shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this constitution, are hereby abrogated."

42 ----~ --~

of a member for an act of misconduct that occurred prior to that member's taking the oath of office is disfavored under certain circumstances, given the strong policy supponing the right of the electorate to choose its members, it is important to distinguish between the policy choices that a legislative body may make on the one hand, and its ultimate power to act on the other. As a recent report of the O:mgressional Research Service on the subject of expulsion explains, "[a]lthough such authority appears to be extensive as to the grounds, nature, timing, and the procedure for the expulsion of a M.ember, pdicy considerations, as opposed to questions of fXJ1iEI' or authority, may have generally restrained the Senate and the House in the exercise of their authority to expel." 102 This "reticence [] to expel a M.ember for past misconduct after the M.ember has been duly elected or re-elected by the electorate, with knowledge of the M.ember's conduct, appears to reflect in some part the deference traditionally paid in our heritage to the popular will and election choice of the people." 10' Moreover, the Judiciary Committee of the United States House of Representatives has explained that "the power of the House to expel or punish by censure a M.ember for misconduct occurring before his election or in a preceding or fonner Congress is sustained by the practice of the House, sanctioned by reason and sound policy and in extreme cases is absolutely essential to enable the House to exclude from its deliberations and councils notoriously corrupt men, who have unexpectedly and suddenly dishonored themselves detailed various policy considerations in expulsions for past misconduct."'04 This policy has been applied in New York as well In 1910, Senator Jonathan P. AlIds was investigated by the Senate on a bribety allegation stemming from actions he had taken in the Assembly nine years earlier, prior to his being seated in the Senate. While AlIds resigned before he could be expelled, the Senate nonetheless voted to sustain the charges, affirming that it was its duty to expel, despite the timing of the incident relative to AlIds's service in the Senate.'os The Select Committee finds that the Senate unquestionably has the power to discipline a member for misconduct occurring prior to the member's taking of the oath of office. It is particularly so in this case, as the misconduct in question occurred when Senator Monserrate was already a Senator-elect, and is extremely close in time to Senator Monserrate's taking of the oath. Moreover, the normal policy considerations underpinning the general reluctance of legislative bodies to punish prior misconduct do not apply here; the Select Committee agrees with the proposition that deference should be paid "to the popular will and election choice of the people," but notes that

'02 CbNGRESSIONAL RESEARGi SERVICE, RECALL OF LEGISLATORS AND TIlE REMOVAL OF MEMBERS OF CbNGRESS FROM OFFICE 3-4 (updated Mar. 20, 2003). 103 Id at 4. 104 REpORT OF~ TIlE HOUSE JUDIOARY CbMMITIEE, H Rept. No. 570, 63rd Cong., 2d Sess. (1914). lOS PROCEEDINGS OF TIlE JUDIOARY CbMMITIEE OF TIlE AsSEMBLY IN TIlE MATIER OF TIlE INVESTIGATION BY TIlE AsSEMBLY OF TIlE STATE OF NEW YORK AS TO TIlE QuAliFICATIONS OF LOUIS WALDMAN, AUGUST QAESSENS, SAMUEL A DEWiTT, SAMUEL ORR AND OiARLEs SOLOMON, TO RETAIN THEIR SEATS IN SAID BODY, Assembly Doc. No. 35 at 2290-91 (1920).

------~ ---- .~~._~.---~------' although Senator Monserrate "has been duly elected ... by the electorate," it was decidedly not "with knowledge of the Member's conduct." As stated previously, Senator Monserrate was elected on November 4,2008, prior to the date of the incident, which occurred on December 19, 2008, in the intervening period before he officially took the oath of office on January 7, 2009. In this instance, there is little risk of countervailing the will of the electorate, which had already elected Senator Monserrate without the benefit of foreknowledge of his misconduct, and which had no recourse once it had occurred. It is not sound policy to afford Senator Monserrate protection from punishment because of the mere happenstance that the crime for which he was convicted took place prior to the ministerial act of his taking the oath of office. From a policy perspective, the important question is whether the voters had the benefit of knowledge of his behavior, and in this case, that can be answered in the negative. 106 4. Prwxfent firrExpulsion a. New York EJ>Pulsion Cases Contrary to the statements made in the Lipschutz Report, there have been a number of cases since the adoption of the first New York Constitution in 1778 where a member of the New York legislature was expelled from the Senate or the Assembly, or where expulsion was considered.107

1. Senator John Williams (1779) Colonel John Williams was a member of the New York State Senate from the Eastern District during the First Session consisting of 1777-78. 108 During the Revolutionary War, Williams was charged with defrauding the officers and privates of his regiment.'''' He was charged with seven counts, including a number of treasonous activities. 11O The Senate resolved that the charges, "if true, render him unworthy to hold his Seat in this Senate.,,11I Williams denied all of the

106 It is worth noting that a similar issue recently arose in a Congressional investigation into possible impeachment charges against United States District Judge G. Thomas Porteous, Jr. Many of the charges against Porteous involve activities prior to his taking the oath to serve. Nonetheless, the distinguished legal experts testifying before the HOuse Judiciary Committee unanimously and unequivocally agreed that PorteOUS could be impeached for activities that predated his oath, even though some of these activities took place years prior to his elevation to the federal bench. See Statement of Akhil R Amar, Statement of O1arles G. Geyh, and Statement of Michael J. Gerhardt, amilable at http://judiciary.house.gov/heariI)gs Ihear_091215.html. 107 See EDGAR L. MURLIN, NEW YORK RED BOOK 387, 485 Games B. Lyon 1897) ("RED BOOK"). 108 Id at 387. I'" 1 JABEZ D. HAMMOND, 1HE HISTORY OF TIlE POLITICAL PARTIES IN TIlE STATE OF NEw YORK 85 (1850) ("HAMMOND"). 110 JOURNAL OFTI-IE SENATE OF TIlE STATE OF NEW YORK 136-37 (1778). III Id at 121.

44 charges in relevant pan, but the Senate found him "guilty" of the fraud charges which had been leveled against him.'l2 On February 8, 1779, the Senate detennined that [t)he Glines of which John Williams, Esq., stands adjudged by the Resolutions of this Senate ... hold him up as entirely without Integrity, evidenced by his unjust Misapplication of Military Authority, his flagrant Perculation on the United States of North America, his dishonest Attempts to deprive the Militia under his Command of their just Pay, and his after Attempts to cover his injustice by undue Applications of a great Pan of the Monies which he had received from the Pay-Office of the said United States, upon false and fraudulent Pay-Abstracts, fabricated and attested by himself. In this accumulated and just View of his Conduct, he appears to this Senate, wholly unworthy to represent the good People of this State in the clignified and important Place of a Senator thereof. Resolved, therefore, That the said John Williams, Esquire be, and he is hereby expelled from this Senate." 3 n. Senator Ephraim Paine (1781) Ephraim Paine joined the State Senate in October 1780 but was expelled for "neglect of duty" on March 15, 1781.'14 He was initially cited on a series of contempt charges for failing to "attend in his seat."'15 The Senate ultimately detennined That the said Ephraim Paine, Esq.; hath undutifully, against the Privilege of this Senate, and in Breach of the Trust committed unto him by the Freeholders of the Middle District of the State, obstinately, unfaithfully, and against his Duty, absented himself from the Service of the Senate, in contempt of the Privilege of this Senate, and to the Evil example of others. Risdwi therrfore, that the said Ephraim Paine, Esq.; be and he is hereby expelled from this Senate." 6

112 Id at 159-60. 113 Id at 166. 114 HAMMOND at 46; RED BOOK at 387. 115 JOURNAL OF TIlE SENATE OF TIlE STATE OF NEW YORK 57, 60, 64, 70 (Fish-Kill 1781). 116 Id at 78. While the motivation underlying Paine's expulsion is not immecliatelydearfrom the historical record, Alexander Hamilton described him as "a man of strong prejuclices; his zeal is fiery, his obstinacy unconquerable," and it has been suggested that he was viewed by his colleagues as a raclical and that it was this raclicalism that motivated his expulsion from the Senate. Sa; 5 ALEXANDER HAMiLTON, THE PAPERS OF ALEXANDER HAMILTON 139 (Harold C. Syrett ed., 1962); Gtizendia.org, Ephraim Paine, http://www.citizenclia.orglEphraim_Paine (last visited Dec; 28, 2009).

45 w. Assemblyman IayGibbons (1861) Jay Gibbons, an Assemblyman from Albany's First District, was expelled from the Assembly on April 13, 1861. 117 On February 17, 1861, Gibbons was arrested and charged with bribery'I' - soliciting consideration for taking official action on a pending bill to increase the salary of the assistant district attorney of A1banYO>Wlry.ll9 The Assembly appointed a five-member select committee to "investigate said charge, and to report the facts to this House, with their O>nclusions thereon."I20 The resolution also granted subpoena power to the select committee. l2l The committee presented a written report to the full Assembly on March 20, 1861 along with a proposed resolution expelling Gibbons from the Assembly.122 The Resolution read: "Resolved That Jay Gibbons, the member from the 1st Assembly district of the COWlry of Albany, has been guilry of official misconduct rendering him unwonliy of a seat in this House, and that he be, and hereby is expelled"m After a series of delays, the motion was again presented to the Assembly on April 4, 1861. Gibbons's counsel argued that the Assembly lacked the power to expel a member, and asked that the matter be referred to the judiciary committee, but the motion was defeated. One Assemblyman then moved to substitute the expulsion resolution for one of censure, which was likewise defeated and Gibbons was subsequentlyexpelJed bya majorityvote.124 It should be noted that the report of the select committee cited as the rationale for its recommendation of expulsion the fact that it independently determined, through its investigation, that Gibbons had indeed committed a bnbery offense that the Assembly found constituted "misconduct rendering him WlWOrthy" of his seat, although it does not appear that he was ever criminally convicted for the offense. 125 This is a further indication of a New York legislative body's wide latitude in independently considering the consequences of member misconduct for its own purposes as distinct from any criminal law process related to that misconduct.

IV. Senator O1arles G. O>melJ (1867) In October 1866, The New York Gty Gtizens' Association sought the expulsion of O>rnell from the Senate based on a number of charges of corruption in his capacity as New York

117 RED BOOK at 485. 118 The bnbery statute in question is a general criminal statute, SI£ 5 Revised Statutes, ch. 539, § 10, p. 159 (John W. Edmonds ed, 1862). 119 JOURNAL OF TIlE AsSEMBLY OF TIlE STATE OF NEW YORK 349 (1861). 120 Id Id 122 Id at 601. Id 124 Id at 795. us Sre REpORT OF TIlE SELECf CoMMITTEE APPOINTED TO INVESTIGATE TIlE OfARGE AGAINST JAY GmBONS, AMEMBER OF TIlE FIRST AsSEMBLY DISTRICf OF ALBANY CoUNIT, Assembly, No. 104, at 1-3 (N.Y. Mar. 20,1861).

46 ----_.------.

City's Street CommissioneL126 Cornell refuted the charges and in November 1866, resigned as Street Commissioner. Nonetheless, the charges were pressed and the maner was referred to a five member Senate comminee, which issued a report on FebruaJY 1, 1867. The commitree determined that it would not determine"guilt or culpability of so high a grade as to be worthy of expulsion" based on an inference that Cornell's resignation as Street Commissioner was intended to foil an investigation of the charges against him and was an implicit admission of guilt. The comminee concluded that "there must be affinnative evidence" of misconduct. Thus, the comminee recommended that no sanction be forthcoming and was "accordingly discharged."'27 v. Five Socialist Assembly Members (1920) During the Red Scare, five Socialist Party Assembly Members were prevented from taking their seats in the New York State Assembly on the grounds that membership in the Socialist Parry constituted disloyalty to the United States and thus constitutionally disqua1ified them from membership. These assemblymen (August Claessens, Samuel A DeWin, Samuel Orr, Glades Solomon, and Louis Waldman), in conjunction with the Socialist Party, anempted to overturn the Assembly action and be seated as duly elected representatives of their respective assembly districts. 128 As the Judiciary Commitree explained, Legislative Law § 3, while recognized as legitimate, was not implicated in the case because the question was not one of expwlsicn of the members for some misconduct, but rather exdusicn of the members on the basis that they did not meet the qualifications of the office due to their failure to adhere to the oath of office to uphold the Constitution because of their allegiance to the Socialist Party.'" It is noteworthy that the Judiciary Committee also concluded that [t]he right of the Assembly to exclude and expel members is fundamental, inherent and exclusive and would undoubtedly exist even in the absence of constitutional or statutory provisions, such provisions being generally regarded as merely declaratory of the power and inserted ex nujori cautela. Such power is declared in the Constitution and statutes of this State. The power to exclude for disqualification is necessarily implied in the power declared by Section 10 of Article III of our State Constitution. Section 3 of the

"6 4 Proceedings and Debates of the Constitutional Convention of the State of New York, Held in 1867 and 1868 at 3050 (1868). 127 Id at 3051-52. 128 See The Tamiment Library/Robert F. Wagner Labor Archives, Guide to the Socialist Assemblymen Papers, ami1able at http://dhb.nyu.eduifindingaids/htmVtamwaglsa.htm!.

129 3 PROCEEDINGS OF TIlE JUDIQARY CoMMITTEE OF TIlE AsSEMBLY IN TIlE MATTER OF TIlE INVESTIGATION BY TIlE AsSEMBLY OF TIlE STAlE OF NEW YORK AS TO TIlE QuAUFICATIONS OF LOUIS WAWMAN, AUGUST QAESSENS, SAMUEL A DEWrTI, SAMUEL ORR AND O1ARLEs SOLOMON, TO RETAIN THEIR SEATS IN SAID BODY, Assembly Doc. No. 35 at 2450-56, 2679. (1920).

47 - .. ------

Legislative Law of this State is merely declaratory of the power of expulsion. 'JO b. Other Notable Ex,pulsion Cases

1. Senators Frank French. Eli Wright. E. 1. Emmons. &Hany Bunkers (1905) This case, discussed above and given lengthy treattnent by the California Supreme Coun, arose out of a number of expulsions relating to the taking of bribes. lJl As explained previously, the coun agreed that the Senate had the power to expel these members and explained that the expulsion power was limited only by "[t]he oath of each inclividual member of the senate, and his duty under itto act conscientiously forthe general good."'32

ll. Representative Thomas E. Wright (2008) In a recent case, a Select Commiuee of North Carolina's House of Representatives investigated public corruption charges against State Representative Thomas E. Wright. Recognizing that "the House has the inherent authority to discipline its own members, a power not otherwise limited by the Constitution and thereby remaining with the people of North Carolina which is to be acted upon by and through their elected representatives," the House voted in favor of expulsion, finding that Wright's conduct constituted "conduct unfiuing and unbecoming a member."133

ill. Senator David faye (2001) In 2001, the Michigan State Senate expelled State Senator David Jaye, preclicated in part on unconvicted allegations of domestic violence. The Senate charged that Jaye had engaged in "a recurring pattern of personal misconduct," and noted in particular that [i]n spite of sincere efforts to help Senator David Jaye alter his egregious pauern of behavior, he has continued to auempt to use his position as a State Senator in an effort to engage in and subsequently excuse his mistreattnent of those less powerful than he. This is evidenced by his conduct on November 19, 2000, when he was involved in a violent physical altercation with his fiancee in Bay County, Michigan, which was witnessed by numerous citizens. This resulted in a citizen's emergency 911 call, and his subsequent apprehension by Michigan State Police troopers.'" The Senate concluded the expulsion resolution by explaining that a member "violat[es] the public trust by using his position as a Michigan State Senator against those who are in a lesser position of power." Id at 522.

110 Id at 2679. Fmu Senate, 146 Ca1. at 605. 132 Id at 609. III HR. 2, Gen. Assem., 2008 Extra Sess. (N.C 2008). 134 Mich. S. Res. 47 (2001), as reprinted in 45 Michigan Joumal of the Senate 521.

48 IV. Senator William Blount (1797) In this early and important federal expulsion case, Williams Blount was charged with attempting to "seduce an American agent among the Indians from his duty,. and to alienate the affections and confidence of the Indians from the public authorities of the United States, and a negotiation for services in behalf of the British government among the Indians." Blount challenged the Senate's actions in coun, leading to the Supreme Court's ruling that "[t]he right to expel extends to all cases where the offense is such as in the judgment of the senate is inconsistent with the trust and duty of a member." 135 v. Senator Harrison Williams (1982) The vast majority of cases in which the United States Senate has actually expelled a member have been for perceived disloyalty to the United States.'" Some more recent cases, however, have involved other issues. One such case is that of Harrison A Williams who was investigated in 1980 in connection with the ABSCAM scandal. The Ethics Committee recommended his expulsion based on the rationale that his conduct, which involved influence peddling and intentional concealment of wrongdoing, was found to have been"ethically repugnant," and tended to "bring the Senate into dishonor and disrepute." Williams resigned before the full Senate considered the committee's recommendation.'" v!. Senator Bob Packwood (1995) The mOSt recent expulsion case in the United States Senate is that of fonner Senator Bob Packwood of Oregon, who was alleged to have engaged in multiple acts of sexual misconduct. Following a protracted investigation, the Senate Ethics Committee issued a lengthy report of the charges and recommended expulsion. The committee relied in part on a 1964 Senate resolution granting it the power to recommend expulsion where it found that a member engaged in "improper conduct which may reflect upon the Senate" - even where such conduct does not specifically violate any law, the Senate code of conduct, or some other rule.'" The Senate additionally based its expulsion recommendation on the finding that Packwood's sexual misconduct constituted "a pattern of abuse of his position of power and authority." 139 Like Williams, Packwood resigned before the full Senate was able to vote on the committee's recommendation. Notably, the Senate specifically intended to afford the committee a high degree of flexibility in determining when particular conduct is worthy of discipline, and permits them to apply a rationale that is tailored to the specific facts and circwnstances, rather than apply a "bright:line legal standard" in the traditional sense:

IJS Inre 0Japmm, 166 U.S. 661, 669-670 (1897); srealso United States Senate]oumal892 (1797) . . '" See ANN M BUIl.ER & WENDY WOLFF, UNIlED STAlES SENAlE ELECTION, EXPULSION AND CENSURE CAsES 1793-1990 (1995) ("BUILER&WOLFF"). 1.1' Id at 435. '" Sre S. Rep't 104-137 at 6 (1995). 139 /d

49 ------

The Senate did not attempt to delineate all the types of conduct or the guidelines which the Committee should follow in detennining which actions by a Member would constitute "improper conduct" reflecting on the Senate. It appears that the standards and guidelines of what would be deemed proper or improper conduct for a Member would change and evolve, both as to the perception of the general public as well as for those within the legislature itself. The drafters of the resolution in 1964 intended that "improper conduct" would be cognizable by the Senate when it was so notorious or reprehensible that it could discredit the institution as a whole, not just the individual, thereby invoking the Senate's inherent and constitutional right to protect its own integrity and reputation.I'" B. SANCTIONS OTHER THAN EXPUlSION 1. Authority As stated previously, the Senate possesses broad disciplinaty powers, of which expulsion is but one. For purposes of self-protection, "[a] legislative body has the right to regulate the conduct of its members and may discipline a member as it deems appropriate."l41 Some of the sanctions that may appropriately be considered by the Senate are formal censure, withdrawal of 14 privileges, or other informal methods which it may choose to fashion. ' As Cushing explains, the punishments, besides the withdrawal of privileges conferred, which are usually within the competency of a legislative assembly to inflict are those of fine, imprisonment and reprimand, to which must be added, where the offender is a member, that of expulsion_ Similar to the expulsion power, these disciplinary measures derive from the inherent power of the legislature to protect itself and from parliamentary tradition. They also are declared in pan by another clause of Anicle III, § 9 of New York's Constitution, which provides that "[e]ach house shall determine the rules of its own proceedings." 143 According to a survey and repon issued by the National Conference of State Legislatures, "[t]he power to discipline and expel members is inherent to a legislative body. It originated with the English Parliament in the sixteenth century, and it was exercised by colonial

140 ld at 35. 141 MAsoN's MANuAL § 561.2. 142 Sre BUI1.ER & WOLFF at xxix-xxx; CENSURE, EXPUlSION AND OTHER DISCIPUNARY ACTIONS in NATIONAL CoNFERENCE OF STATE LEGISLATIJRES, INSIDE THE LEGISLATIVE PROCESS, Tab 6 (1996) ("NCSL Repon"); CusHING § 625. 143 New York Senate Rule IX, § 7, for example, is an expression of the Senate's broad power to censure or inflict other penalties: "In all cases of absence of Senators during the sessions of the Senate, the Temporary President or a majority of the Senators elected may take such measures as they deem necessary to secure the presence of the absentees, and in addition to suspension for a given period, may inflict such censure or penalty as they may deem just on those who shall not render sufficient excuse for their absence."

50 legislatures prior to American independence. When responding to member misconduct, legislatures have the flexibility to view censure, expulsion and other disciplinary actions as points on a continuum."loH 2. Preredent a. Censure Censure is a less severe form of discipline used by a legislative body against its members. A censure does not remove a senator from office, and "has no tangible effect on a senator's abiliry to hold his office."'" It is merely a formal statement of disapproval, which can, however, have a powerful effect on a member and his or her relationships within the body.146 Demeter's Manual of Parliamentary Procedure describes censure as "a reprimand, aimed at reformation of the person and prevention of further offending acts." Normally, censure requires the passing of a resolution by a majoriry vote. .

1. Senator Richard Schermerhorn (1980) While the Second Department was incorrect that Senator Richard Schermerhorn "became the target of the first resolution in the history of the New York State Senate to call for the censure of a Senator; censure has rarely been used in the Senate and is considered a serious response to misconduct. Schermerhorn was charged with allegedly making racial slurs, prompting a number of members to call for a resolution of censure against him. The resolution was eventually defeated when it was shown that the allegations were untrue. There is no indication that any patty challenged the Senate's authority to censure Senator Schermerhorn. 147

ll. Senators Irwin, Saxton. & O'Connor (1892) These three Senators were held in contempt after refusing to vote on a panicular issue. The contempt charges were referred to a committee, which after hearings were conducted, declared the right of the Senate to censure its members when the member's actions cause "an affront to the dignity of the Senate." The committee recommended that the Senators be formally censured, and the Senate passed the resolution by"a strict pattyvote." 148 b. Withdrawal of Privileges This is a relatively common sanction and is used in a wide variety of cases, often in conjunction with a censure or reprimand.

I. Assemblyman Mike Cole (2007) While at a bar, Assemblyman Mike Cole shared drinks with a member of the Assembly Intern Program and eventually, after imbibing a large amount of alcohol, accompanied the

14. NCSL Repon at 6-l. 145 BUILER&WOLFF at xxix-xxx. 146 Id 147 Sre SdJm1l?1horn 'U Ra;enkrg, 426 N.Y.S.2d 274,279 (2d Dep't 1980). 148 Senarors A '" Censwrri, N.Y. TIMES, January 20, 1892.

51 intern back to her apartment and stayed overnight in her bedroom. The Committee on Ethics and Guidance conducted an investigation of ,the incident and detennined that Cole had violated the "non-fraternization" policy of the intern programs and had, therefore, "brought disfavor on the New York State Assembly and the members thereof." The Committee recommended a number of punishments, including (1) removal as Ranking Minoriry member of the Assembly Committee on Alcoholism and Drug Abuse, (2) prohibition from participation in the Assembly Intern Program, (3) forfeiture of any rights or privileges of senioriry, and (4) a public Letter of Censure and Admonition on behalf of the Assembly and its members. The Select Committee is not aware of any suggestion that the authoriry of the committee, the Speaker, or the Assembly to take this action was H placed at issue. ' u. Assemblywoman Gerdi E. Lipschutz (1987) Following a five-week investigation by the Ethics and Guidance Committee, the Committee found that Lipschutz had committed misconduct by falsely certifying personal service vouchers, approving the hiring of and continuation on the Assembly payroll of a "no-show" employee after knowledge that such employee in fact performed no official duties for the Assembly, and that she had committed these acts in order to obtain or maintain a political benefit for herself. Although the matters had criminal implications, Lipschutz cooperated with the United States Attorney, after a grant of immuniry, and provided essential testimony in the case against Richard Rubin, who had participated in the fraud. She was neither charged nor convicted of any crime. Even though the Committee concluded that it lacked the power to recommend expulsion, it nonetheless concluded that it had the power to recommend other punishments. Among these recommendations were that: (1) Lipschutz be removed as O1air of the Assembly Majoriry Steering Committee and stripped of any allowances payable to the O1air of that Committee; (2) Lipschutz be removed as C1lair of the Assembly Subcommittee on Oime Victims and stripped of any allowances payable to the C1Jair of that Committee; (3) Lipschutz be stripped of any adc1itional staff allotments; (4) Lipschutz be stripped of any rights or privileges of seniority; (5) the committee report be sent to the attorney general with instructions that a lawsuit be filed to recover the money that Lipschutz wrongly steered; and (6) a resolution censuring the conduct of Lipschutz be considered in an open session of the Assembly and, if adopted, be read to the House in her presence. Lipschutz chose to resign before these sanctions could be acted upon. ISO

149 News Release: Assembly Speaker publicly censures and Admonishes Legislator For Violation of Assembly Policy Prohibiting Fraternization With Student Interns, May 3,2007. ISO 51£ Lipschutz Report.

52 VI. RECDMMENDATIONS The Select Comminee concludes and believes that sanctions against Senators should only be imposed in cases of serious misconduct. Expulsion should be considered only in the most egregious circumstances. 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 Comminee finds that the nature and seriousness of Senator Monserrate's conduct, as demonstrated by the surveillance video and the other unrebuned 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. lSI The Select Committee recommends that the full Senate convene to consider, debate and vote on both resolutions as soon as reasonably possible. Some members of the Select Committee believe that it would be logical and efficient for the Senate to consider and vote on the resolution for expulsion first, and only consider the second resolution if the resolution to expel fails. However, the Select Committee failed to reach a consensus on whether or not to include such a specific procedural recommendation in this report. The Select Committee notes that its determinations are based on the totality of the facts and circumstances surrounding Senator Monserrate's overall conduct, not on the fact of his misdemeanor conviction. The Committee has determined that Senator Monserrate's conduct in this case presents particular factors that support the imposition of the sanctions set forth above. Specifically, the Select Committee gave substantial weight to the following factors: First, Senator Monserrate's assault on :Ms. Giraldo was a crime of domestic violence, and therefore in direct contravention of New Yom's well-established "zero-tolerance" policy in such matters. The following excerpts from the statement of legislative findings in the Family Protection and Domestic Violence Intervention Act of 1994 clearly reflect the Legislature's policy in this area: The legislature hereby finds and declares that there are few more prevalent or mOre serious problems confronting the families and households of New York than domestic violence. It is a crime which

LSI The proposed sanction of censure with revocation of privileges would apply for the remainder of Senator Monserrate's current term only. Neither proposed sanction would bar Senator Monserrate from seeking future election as a New York State Senator, with all of the attendant privileges of a Senator. Funhennore, the Committee recommends that the resolution for censure with the revocation of privileges include the stripping of any Committee position or leadership post, the cessation of any payment of a legislative stipend beyond the Senate's base salary, and the loss of all seniority privileges.

53 destroys the household as a place of safety, sanctuary, freedom and nurturing for all household· members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath. Domestic violence affects people from every race, religion, ethnic, educational and socia-economic group. It is the single major cause of injury to women. More women are hun from being beaten than are injured in auto accidents, muggings and rapes combined The corrosive effect of domestic violence is far reaching. The batterer's violence injures children both directly and indirectly... [and] no age group is immune from domestic violence... The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York's laws. The integrity of New York's families from its youngest to its oldest members is undermined by a permissive or casual attitude towards violence between household members. Therefore, the legislature finds and determines that it is necessary to strengthen materially New York's statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for new York's families consistent with the interests of fairness and substantial justice.'" The New York State legislature has passed approximately 108 pieces of legislation relating to domestic violence that were enacted into law between 1995 and 2009. A list, together with summaries, of several of these domestic violence statutes is attached to this Report at Exhibit 19. Ser:md, as discussed in detail in Sections IV.B, IVD.1, and IVD.2, above, the Select Committee finds that Ms. Giraldo and Senator Monserrate's statements about the events of December 18 and 19,2008 are not credible. Third, as discussed in detail in Sections IV.C and IV.D.3, above, Senator Monserrate has failed to accept responsibility for his misconduct, or to cooperate in any way with the work of the Select Conunittee.

152 Laws of 1994, c.222 § 1.

54 1D [lated: 1/\3/20

Respectfullv Submittcd,

/~J ~~ (/\ifh)a, . , ,:--,ell:ltOt i\ndrcw.J. Lanza (ranliJng mtlwrircrpember) f j! ,/""\ ! .' .' j i !

~--~ (!J~ffA~Ti/~ S.cvbtor Catharine "r'oung {' \ 1\ / . \ ~\ l /• \JI '\IV

55 SEN MONSERRATE Fax:518-426-6909 Feb 10 2010 13:10 P.02 RESOLUTIO S Page2of4

Senate Reso ution No; 03904

BY, Senator FO~EY

EMIIlNG the conduct and calling for the laion of~Senator Hiram Monserrate

WHEREAS, November 4, 2006, Hiram Monserrate was 'elected to the New York S ate Sena~e for the 13th Senate District and took bis oath of office on J uary 2, ~2009; and

WlmREAS, enator Monserrate is currently the Chair of the Senate Consumer P otection' Committee and as such receives a stipend for that se.rvioe; an

WHEREAS, ithin two months of Senator Monserrate's election, the Senator-ele t was Charged with multiple crimes alleged to have been committed 0 his gir~friend on December 19, 2006, as a result of an incident oc urring i~itially in and outeide of the Senator's apartment; and

WHEREAS, Sen~tor was indicted and tried for said crimes in a non-jury tr'al before the Supreme Court of Queens County, Justice William Erl aum presiding; and

WHEREAS, Erlbaum found the Senator guilty of misdemeanor reckless a by recklessly causing physical injury to his girlfriend;

WHEREAS, the' conviction and prior to the sentencing, the New York State enate addpted Senate Resolution 3409 establishing a Select Committee f the Senate to Investigate the Facts and Circumstances surrounding the conviction of Sena.tor Hiram Monserra'te; the resolueion stated tha the in

WH:Bll-EAS, he Resqlution mandated that the Committee ensure a full and fair in: stigatidn and, to that end, notice of the meetings of the Committee s prov~ded to the public and senator Monserrate's counsel, and further he Senat-or was offered the opportunity to appear before the Committee; d

WHIlR~S, he Committee reviewed the entire transcript of the Senator's c iminal trial, the videotapes of the events of the night at the Senator' buildirig and at Long Island Jewish Hospital, the Grand Jury testim ny and: the written statement of the Senator's girlfriend, routes to La g Island Jewish Hospital where the Senator took his girlfriend or treat~entl relevant telep~one records ot the Senator and his girlfrie d, as we~l as Senator Monserrate's interviews with the medi..a after the ee~tencing, and other relevant in£ormation, including some, but no all, of~the detenae exhibits SOlely because the defense attorneys re used to provide said exhibits to the Committee; and

WHIlREAS, T e Committee with staff mst a number of times in Executive Session to review ~vidence, ask questions and deliberate concerning matters befo "e it; and http://leginfo.ste.ny.usJNYSLBDCl/bstfrme.cgi?QUERYTYPE=SPECIAL+&SESSYR=... 2/10/2010 Feb 10 2010 13:10 P. 03 SEN IWNSERRATE Fax:518-426-6909 Page 3 of4

WllEREAS, Though asked through counsel, both Senator Monserrate and his girlfri d refused to appear before the· Select committee to answer its quest ons on the circumstances underlying his misdemeanor conviction; and

WllEREAS, committee completed its investigation of this matter on December 31, 2009, and, in accordance with Senate Resolution 409, filed a 60 page report with recommendations detailing the facts, he invescigation, the Bvidence reYiewed, the findi.nga of the Committee the legal authority of the Senate to act; and

WllERns, The Committee found that Senator Monserrate's actions were serious eno gh to warrant severe sanctions; that Senator Monserrate's crime of onviction constituted domestic violence; that the Senate of . the State 0 New YorK a:nd the laws of the State of New York have a zero tolerance licy far domestic Violence; and that the version of events propounded Senato~ Monserrate at trial through counsel and in his own. statements n the 'media after the sentencing were not credible; t:02~''=== moreove.r t r did ene Committee find the version of events provided by the Senator' girlfriend credible; in ac:1ditiont the committee turther 'found that the versions of events of Senator MonserratB and his girlfriend a mutua;lly inconsistent; and, that Senator Monserrate himself and by and through couns@l failed to cooperate with the Commi.ttee; d

WHERI!lA.S , @CommitteefoundthatsenatorMonserratefailedto ~~.====~ accept rasp nsibility . for his actions, failing to take responsibility for being th cause o~ the sourCe of harm to his gir~friend on the evening an December: 19, 2008, and refusing to acknowledge that his misdemeanor onvictioh was a domestic violence offense; and

WHEREAS, T e Senate~ pursuant to the New York State Constitution, Articl@ III section'9, shall be the judge of the qualifications of its own members; and

WH8REAS, T 's Legislative Body has express authority under section 3 of the Legis ative Law to expel any of its members, aft@~ the report of the Committ e to inqUire into the charges against any such member; now, therefore, b it

RESOLVED, hat the Senate of the State of New York does hereby condE!Jll11 the onduct of Senator Monserrate surrounding his conviction for reckless ass ult; and:be it further

RBSOLVED, That S~ator Monserrate's behavior has brought disrepute on the Senat and danlaged the honor, dignity and intergrity of the Senate; and it further

RESOLVED, the' foregoing conduot of" Senator Monaerrate is incompatible ith the fluties of the Senate to uphold public confidence in governmen and prbrnote the administration of justice under la",; and be it further

RESOLVED, T a~tions of Senator MonserratB in totality are not compatible wi responsibilities of the office, and with the qualification and behavior expected of and by a State Senator of New York; and be. further

RESOINED, t upon' the Report of the Select Committee, in light of

.http;/Ileginfo.sta e.ny.us/NXSLBDClibstfrme.cgi?QUERYTYPE=SPECIAL+&SESSYR=... 2/10/2010 P.04 SEN MONSERRATE Fax:518-426-6909 Feb 10 2010 13:11 RESOLUTI S Page 4 of4 elle gravit of the foregoing facts and circumstances as duly determined pursuant t law, ·and by the authority vested in the Senate by the Constituti and laws of the State of New York, the Senate hereby expels Senator Mon errate from the New York State Senate; and be it further

REBOIoVBD, That coples of this ReSOlution, suitably engrossed, be transmitted to the Governor of the State of New York, the ·Secretary of State of th State of New York, and the Secretary of the Senate of the state of ew York' for the purpose of removing Hiram Monserrate as a Senator in d for the l3th District.

http://leginfo.ste.ny.usINYSLBDC1/bstfrme.cgi?QUERYTYPE=SPECIAL+&SESSYR=... 2/1012010 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------X

HIRAM MONSERRATE, individually and as an Docket No. elected official and member of the Civ. ( --- New York State Senate, CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALIKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13th Senatorial District,

Plaintiffs,

-against-

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 T. 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. ------x

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR REQUEST FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

NORMAN SIEGEL McLAUGHLIN & STERN, LLP 260 Madison Avenue 260 Madison Avenue New York, NY 10016 New York, NY 10016 (212) 532-7586 (212) 448-100 Attorneys for Plaintiffs PRELIMINARY STATEMENT

This case is about a constitutional democracy and the right

of the people to choose their elected officials and the federal

and state protections that are in place to ensure that those

choices are not usurped under color of state law. There can be

no doubt that political and personal factors envelop the

legislative process. However, like all branches of government, no power is absolute and checks and balances are in place to protect the people. Here, the Constitutions of the United States and New York State and the laws promulgated thereunder protect the plaintiffs in this action.

As set forth more fully below, the laws of the United States and New York State protect the people from their own legislative bodies by ensuring that no legislative body (local, state or national) act contrary to law. Here, the New York State Senate conducted an unconstitutional and unlawful coup of a Senate seat and unseated Senator Monserrate from representing the constituents of New York Senatorial District 13. The New York

State Senate created an "ad hoc" committee to "investigate and report" on Senator Monserrate. At no time in the process did the committee or Senate inform Senator Monserrate that expulsion was an option. Furthermore, at no time did they lodge any specific charges against him. The New York State Senate gave Senator

Monserrate what can best be described as a "surprise ending".

2 What started off as a simple resolution to investigate Senator

Monserrate morphed into his expulsion without any standards or

adequate procedure being followed.

Without the Temporary Restraining Order and Preliminary

Injunction requested herein, the New York State Senate will have

succeeded in a political usurpation contrary to law - the ousting

of a sitting New York State Senator without either the

constitutional power to do so or the due process required under

both the United States and New York State Constitutions.

Accordingly, we respectfully submit that this Court stay the expulsion of Senator Monserrate pending this lawsuit. Without a

stay, over 41,000 voters will be disenfranchised, and no sum of money damages can rectify the violation of their civil rights.

Each elected official's constituents have a vested interest in representation by a qualified candidate of their choice.

Fellow legislators may not determine when those voters are dissatisfied with their representative. Expelling a legislator deprives the constituency, even for a temporary period, of any voice. For if you expel those who are disagreeable to the majority or whomever you please, the legislative body will ultimately be self-created and self-existing. See, 18

Parl.Hist.Eng. 367 (1775).

3 STATEMENT OF FACTS

On November 4, 2008, Senator Monserrate was elected to serve as Senator to the New York State Senate for a two-year term representing the 13th Senatorial District of the State of New

York (which includes the neighborhoods of Corona, East Elmhurst,

Elmhurst, Woodside, and Jackson Heights). He received more than

41,000 votes (66% of the vote in his district).

On January 7, 2009, after meeting all of the required qualifications under law, Senator Monserrate was sworn into office and was seated as a New York State Senator on January 7,

2009.

Between being elected and being seated as a New York State

Senator, however, Senator Monserrate was involved in an incident with Karla Giraldo. On December 19, 2008, Ms. Giraldo sustained cuts to her face during a dispute with Senator Monserrate.

Senator Monserrate took Ms. Giraldo to the hospital that same day and while she was being treated, Senator Monserrate was arrested at the hospital on the suspicion that he had assaulted her.

Prior to this incident, Senator Monserrate lacked a prior criminal record or a history of violence.

Since December 19, 2008, the New York State Senate was aware of the incident involving Senator Monserrate, his subsequent arrest, and the charges against him. Nevertheless, on January 7,

2009, the New York State Senate permitted him to be sworn-in, to

4 take his seat in the Senate Chamber, and placed him on

legislative committees within the New York State Senate. While

Senator Monserrate was actively serving as a New York State

Senator, he was indicted, tried, and acquitted of five counts.

He was convicted of one misdemeanor count, and sentenced to,

among other things, probation, all in connection with the

incident involving Ms. Giraldo. The conviction of the sole misdemeanor count is currently under appeal.

After Senator Monserrate was convicted on the one misdemeanor count, the New York State Senate adopted Resolution

3409 on November 9, 2009. The resolution established a Select

Committee to investigate the facts and circumstances relating to

Senator Monserrate's misdemeanor conviction. The resolution did

no more than establish an "ad hoc" committee to investigate and

report. No where in the resolution was Senator Monserrate

explicitly put on notice that he was in jeopardy of being

expelled from the New York State Senate. No specific charges were lodged against him in this or any other resolution.

The Select Committee, which was comprised of nine New York

State Senators, was required to conduct a "full and fair

investigation". However, the term "full and fair" was not

defined and did not set forth any procedure or standard to be

followed to ensure its fairness. No provisions were made and no

opportunity was provided for Senator Monserrate to listen to the

5 evidence used against him and to listen to and/or confront all the witnesses/interviewees against him or cross-examine them before the Select Committee. Similarly, no provisions were made and no opportunity was provided for Senator Monserrate to confront and cross-examine witnesses or present evidence before the full New York State Senate.

The Select Committee's role did not include inquiry into the criminal charges against Senator Monserrate. The Select

Committee specifically reported that "li]t is not the mandate of the Select Committee to revisit the allegations for which Senator

Monserrate was acquitted or to conduct a second 'trial'".

Moreover, the Select Committee stated that it did not base its decision "on the fact of his misdemeanor conviction". The actual purpose of the committee at the time was unclear but came into focus after-the-fact when it issued a report with its findings and recommendations.

On January 12, 2010, the Select Committee ultimately concluded that "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." The

Select Committee ultimately based its' decision on "the totality of the facts and circumstances" and its subjective belief that

Senator Monserrate's private conduct prior to becoming a New York

State Senator made him unfit and unworthy of holding the office

6 of a New York State Senator. In the end, the Select Committee acted as a de facto Committee on Character and Fitness and recommended that Senator Monserrate be expelled from the New York

State Senate.

On February 9, 2010, the New York State Senate voted to expel Senator Monserrate from his duly elected post in a swift and summary manner. There was no debate, no hearing, no charges and no opportunity to present evidence to the full SENATE.

On February 11, 2010, counsel for the plaintiffs filed the within action and motion for a temporary restraining order and preliminary injunction. Plaintiffs' claims are, for the most part, based on the First and Fourteenth Amendments to the

Constitution of the United States and their counterparts in the

New York State Constitution.

LEGAL ARGUMENT

I. THE PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION

To prevail on a motion for a preliminary injunction, the moving party must demonstrate (1) a threat of irreparable injury and (2) either (a) a probability of success on the merits or (b) sufficiently serious questions going to the merits to make them fair grounds for litigation, as well as a balance of hardships

7 tipping decidedly in the moving party's favor. Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir.1997)."

When, however, the moving party seeks a "mandatory

injunction that alters the status quo by commanding a positive

act," the standard is higher. Garcia v. Yonkers School Dist.,

561 F.3d 97 (2d Cir. 2009). A mandatory injunction should issue

only upon a clear showing that the moving party is entitled to

the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief. SEC v. Unifund

SAL, 910 F.2d 1028, 1039 (2d Cir.1990); Jacobson & Co. v.

Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir.1977). Where the moving party is requesting a stay of "'government action taken in

the public interest pursuant to a statutory or regulatory

scheme,'" the district court may enter a prohibitory preliminary

injunction, after the moving party has shown that "absent

injunctive relief, he will suffer 'irreparable injury," and that

"there is 'a likelihood that he will succeed on the merits of his

claim.'" Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d

Cir.2006) (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d

577, 580 (2d Cir.1989)) .

1 The standard for a temporary restraining order is the same as for a preliminary injunction. Jackson v. Johnson, 962 F.Supp. 391, 392 (S.D.N.Y. 1997).

8 A prohibitory preliminary injunction is distinguishable from a mandatory injunction when, as here, the injunction "is prohibitory in form," and "promises no severe or irreversible changes to the status quo." Id. at 90.

The district court has wide discretion in determining whether to grant a preliminary injunction. Grand River Enter.

Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007).

A. THE PLAINTIFFS ARE THREATENED WITH IRREPARABLE INJURY AND EXTREME AND VERY SERIOUS DAMAGE WILL RESULT FROM A DENIAL OF THE REQUESTED PRELIMINARY RELIEF

To establish irreparable harm, a party seeking preliminary injunctive relief must show that "there is a continuing harm which cannot be adequately redressed by final relief on the merits" and for which "money damages cannot provide adequate compensation." New York Pathological & X-Ray Labs., Inc. v. INS,

523 F.2d 79, 81 (2d Cir.1975)). Irreparable harm must be shown to be actual and imminent, not remote or speculative. Id.

Here, money damages cannot redress the illegal expulsion of

Senator Monserrate or the disenfranchisement of the voters in the

13th Senatorial District for the State of New York. If Senator

Monserrate is not restored to his lawful position as a New York

State Senator, he will be unable to represent his district in the

Senate on important legislative issues. His views as well as the views of the more than 41,000 voters who voted for him will be

9 marginalized and ignored in violation of law. This harm will

continue for anywhere from 30 days (when there will be a special election) to approximately eleven months when Senator

Monserrate's term expires. No sum of money could rectify the violation of these civil rights including the right to vote, the right to have a representative democracy and the right to due process of law. Furthermore, this harm is actual. Senator

Monserrate was expelled from the Senate on February 9, 2010. As of that moment, his civil rights as well as the civil rights of the voters were violated.

A violation of the Constitution persists, so long as Senator

Monserrate is prohibited from entering the Senate Chamber and prevented from exercising his right to represent the people of the 13th Senatorial District. The loss of Senator Monserrate's time in office, the deprivation of plaintiffs' civil rights, and the passing of legislation in which the people of the 13th

Senatorial District are not represented by the person of their choice, are harms which cannot be recouped or made whole with money damages.

10 B. Probability of Success on the Merits and Sufficiently Serious Questions Going to the Merits to make them Fair Grounds for Litigation

Set forth below are the reasons why we respectfully submit that we are likely to succeed on the merits, as well as the serious questions at issue that are fair ground for litigation.

i. SENATOR MONSERRRATE'S EXPULSION VIOLATED PLAINTIFF-VOTERS RIGHTS UNDER THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION

The expulsion of Senator Monserrate violates the Plaintiffs- voters rights under the First and Fourteenth Amendments to the u.S. Constitution and Article I, Sections 8 and 11 of the New

York State Constitution. By depriving them of their duly elected representative, plaintiff-voters have been disenfranchised, and denied the equal protection of the law.

The expulsion and removal of an elected official raises fundamental questions concerning the nature of a democracy. A democratic society is one that has consciously chosen to provide its participants with the power to determine who shall govern.

The U.S. Supreme Court recognized this democratic precept when it maintained: "[a] fundamental principle of our representative democracy is, in Hamilton's words, 'that the people should choose whom they please to govern them. , H Powell v. McCormack, 395 u.S. 486, 547 (1969) (quoting 2 ELLIOT'S DEBATES 257); see also

United States Term Limits v. Thornton, 514 U.S. 779, 783 (1995).

11 In Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), the U.S.

Supreme Court referred to the franchise as "a fundamental political right, because preservative of all rights." Thus, the

U.S. Supreme Court maintained in Reynolds v Sims, 377 U.S. 533,

562 (1964) that "any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized."

The electoral franchise is "close to the core of our constitutional system," Carrington v. Rash, 380 U.S. 89, 96

(1965), and it is "beyond cavil that 'voting is of the most fundamental significance under our constitutional structure.'"

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Illinois

Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184,

(1979)). The franchise is a manifestation of the people's sovereignty, because "an aspect of sovereignty is the right of the people to vote for whom they wish." U.S. Term Limits v.

Thornton, 514 U.S. 779, 794 (1995) (citing Powell v. McCormack, supra) .

This same concept was expressed in an opinion by Mr. Justice

Fortas, joined by Mr. Chief Justice Warren and Mr. Justice

Douglas, dissenting in Fortson v. Morris, 385 U.S. 231, 250

(1966) :

A vote is not an obj ect of art. It is the sacred and most important instrument of democracy and freedom. In simple terms, the vote is meaningless-it no longer serves the purpose of the democratic society unless it, taken in the aggregate with the votes of other citizens, results

12 in effecting the will of those citizens provided that they are more numerous than those of differing views. [O]ur Constitution protects not just the right to cast a vote but the right to have a vote fully serve its purpose.

As Mr. Justice Douglas also pointed out, "[t]here is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. ff South v. Peters, 339 U.S. 276, 279 (1950). For the right to vote to be meaningful, it must accomplish the purpose of placing in office the candidate dUly elected by a majority of the people.

Here, the expulsion of Senator Monserrate has deprived the constituents of the 13th Senatorial District of their chosen representative. This was the same basic problem faced in Bond v.

Floyd, 385 U.S. 116 (1966), and Powell v. McCormack, 395 U.S. 486

(1969), both of which involved the issue of unseating duly elected representatives. Bond, which is primarily a free speech case,' involved an attempt by the Georgia House of

Representatives to discount the votes of a group of persons because their chosen representative, a racial minority, who had expressed unpopular views about the Vietnam War. The Supreme

Court held that the Georgia legislature could not exclude Bond from the seat for which he was constitutionally qualified and to which he had been properly elected.

2 Free speech and the franchise are inseparable because the First Amendment is an inevitable element of voting cases.

13 In Powell, the matter in issue was the power of the United

States Congress to exclude duly elected and qualified members from being seated simply by adding new requirements not specified in the Constitution. There, as in Bond, the effect of upholding the exclusion order would have been to disenfranchise a group of electors. In recognition of this consequence, the exclusion order was struck down because Powell "[had been] duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provisions of the

Constitution." Powell v. McCormack, 395 U.S. 486, 550. The historical analysis in Powell that revealed the Constitutional limits on the congressional power to exclude or expel was reaffirmed by Justice Stevens in U.S. Term Limits v. Thornton.

Writing for the majority, Justice Stevens held that state-imposed term limits on their national representatives were unconstitutional, because they violated a central tenet of democracy: "that the right to choose representatives belongs not to the States, but to the people." U.S. Term Limits v. Thornton, supra, 514 U.S. at 820-821.

Thus, a citizen's right to freely elect a qualified candidate of his choice is a fundamental right consistently recognized by the U.S. Supreme Court. That the vote as their means of participation be given its full weight and effect is doubly important, for "representative government is in essence

14 self-government through the medium of elected representatives of the people ... " Reynolds v. Sims, supra, 377 u.S. at 565. The u.S. Supreme Court decisions concerning the right to vote point to the importance of insuring that each person is allowed one vote that counts equally with those of his fellow citizens. The bedrock principle of "one-person-one-vote" in Reynolds v. Sims has been reiterated again and again. See, e.g., Cox v. Larios,

542 U. S. 947, 949 (2004); Mahan v. Howe 11, 410 u. S. 315, 324

(1973); Wesberry v. Sanders, 376 u.S. 1 (1964); Gray v. Sanders,

372 u.S. 368 (1963). To realize the basic principles of representative, democratic government, the weight and effect of the franchise must not be diluted or nullified.

Moreover, the expulsion of Senator Monserrate deprives the plaintiff-voters of the equal protection of the law, in violation of the Fourteenth Amendment. Although this case is one of first impression, in the Second Circuit, in situations analogous to the instant case, other Circuits have granted injunctive relief to elected state officials because the state-imposed restrictions on their office would have deprived their constituents of equal representation, in violation of the Equal Protection Clause of the Fourteenth Amendment.

In Kucinich v. Forbes, a district court of the Sixth Circuit held that implementing a two-week suspension of an elected city councilman would violate the rights of his constituents to the

15 equal protection of the law, guaranteed under the Fourteenth

Amendment to the U.S. Constitution. 432 F. Supp. 1101, 1117

(N.D. Ohio 1977). There, the court found that the City Council's suspension of city councilman Gary Kucinich established two different classes of voters, and that the City Council's articulated state interest for the suspension did not justify eroding "the fundamental interests of the voters to representation." rd. The court concluded on these grounds that depriving the plaintiff-constituent, Dennis Kucinich, of his right to representation by his city councilman, was a denial of his right to equal protection under the law, and that only the electorate was permitted to judge and punish their duly elected representative. rd.

Similarly, a district court of the Third Circuit held that the exclusion of a New Jersey State Senator by the State

Democratic Caucus from participating in its deliberations violated both the Due Process Clause and the Equal Protection

Clause of the Fourteenth Amendment. Ammond v. McGahn, 390 F.

Supp. 655, 660 (D.N.J. 1975), rev'd on other grounds, 532 F.2d

325 (3d. Cir. 1976).' The court there held that "[n]o elected

3 The Third Circuit reversed the preliminary injunction granted in favor of the appellee Senator, because the Caucus had voted to readmit the Senator prior to the grant of the preliminary injunction. Therefore, there was no longer any clear showing of immediate and irreparable injury. Ammond v. McGahn, 532 F.2d 325, 329 (3rd Cir. 1976). The Third Circuit explicitly

16 representative of the people may be barred from participation in the forum to which he or she was elected for misconduct, no matter how egregious, without some type of hearing." Id. (citing

Bond v. Floyd). Moreover, the exclusion action by the Caucus

deprived the plaintiff-constituents of the equal protection of the law, by creating one class of voters "whose Senators could effectively participate fully in the legislative process and another class whose Senator could participate only to a limited degree. Id. Despite the fact that Senator Ammond had not been barred from voting on the floor of the Senate, the court nonetheless recognized that her effectiveness as an elected

representative had been "vastly diminish [ed] ." Id.

In the face of these recognized restrictions, the action by the defendant, the New York State Senate, in passing the

resolution of February 9, 2010 expelling Senator Monserrate,

exceeds well-established constitutional limitations and

safeguards. To permit the dilution of "the plaintiffs' strong

interest in exercising the 'fundamental political right' to vote" with the use of a summary procedure is to negate one of the basic

freedoms of our society. Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (quoting Dunn v. Blumstein, 405 U.S. 330, 336 (1972)).

noted, however, that this reversal did not go to the merits of the controversy, and that Senator Ammond would be free to seek further injunctive relief if she were excluded again at a later date. Id.

17 "The Judiciary is obliged to train a skeptical eye on any qualification of that right." Crawford v. Marion County Election

Bd., 553 u.s. 181 (2008) (citing Reynolds, supra, at 562) (J.

Souter, dissenting).

By removing Senator Monserrate from office, the Senate's action of February 9, 2010 completely nullified the "inalienable right to full and effective participation in the political process." Reynolds, supra 377 U.S. at 565. The U.S. Supreme

Court continues to caution that "'the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.'" Purcell, supra 549 U.S. at 4

(quoting Reynolds, supra 377 U.S. at 555). Because its end result is the disenfranchisement of the voters of the 13th

Senatorial District, the February .9, 2010 resolution is unconstitutional both on its face, and as applied.

ii. LEGISLATIVE LAW §3 IS UNCONSTITUTIONAL BECAUSE IT IS VAGUE AND OVERBROAD

Legislative Law §3 violates the First Amendment and the Due

Process Clause of the Fourteenth Amendment insofar as it is void for vagueness and void for over breadth. Because the grounds for expulsion in Legislative Law §3 do not meet the stringent requirements imposed by the Constitution, permitting the expulsion of Senator Monserrate on the basis of a statutory

18 authority that admits of the widest discretionary latitude' risks turning the New York State Senate into a place where the First and Fourteenth Amendment rights of voters will "be subject to disparate treatment." Hadnott v. Amos, 394 U.S. 358, 364 (1969).

As Mr. Justice Douglas recognized in Hadnott, the dangers of discriminatory impact are compounded when, as here, the state action is irrevocable, and implemented "without notice or an opportunity for contest and correction." Id.

Today, the gains of the Civil Rights Movement and the Voting

Rights Act have meant that racial minority groups, such as

African-Americans, Latinos and Asian-Americans are actively registering to vote and to participate in the democratic process.

In New York, racial minority groups are continuing to elect

4 During the proceedings of the Select Committee, the possible standards for expulsion were discussed. The following colloquy between Senator Andrew J. Lanza and Special Counsel Daniel Alonso is indicative of their general understanding:

Senator Lanza: I think everyone can draw their own conclusion, but for me it just seems as though there really is no real framework with respect to what the options are, in fact it seems to be pretty wide open. Dan, would you agree with that?

Mr. Alonso: I would agree.... The legislative law does not give you guidance. You have the sound discretion to vote your conscience as you do or the Senate does to vote it's conscious [sic] as it does on any other matter.

Transcript of Proceedings of the Select Committee at 93-94 (Dec. 8, 2009).

19 members of their group to state, county, and local offices for the first time in the New York State history. Permitting

Legislative Law §3 to stand will invite future removals of those elected officials who express unpopular views, or who diverge from convention or stereotype. Allowing such provisions to stand is to roll-back the progress of the last forty years, and to say to the registered qualified voters of New York that their votes can, and will be, nullified.

Generally, the minimum procedural requirements necessary to satisfy due process are notice and an opportunity to be heard.

See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990); Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985); Dixon v.

Alabama State Board of Education, 294 F. 2d 150, 155 (5th Cir.) cert. denied, 368 U.S. 930 (1961). The New York State Senate's actions leading up to and including the passage of the February

9, 2010 Resolution failed to give adequate notice of what conduct might lead to such an action. To satisfy the notice requirement and to avoid the infirmity of vagueness, the wording of a statute or a constitutional provision must provide a reasonable person with a clear guide so as to what he or she mayor may not do.

While no "[i]mpossible standards of specificity are required,"

Jordan v. DeGeorge, 341 U.S. 223, 231 (1951), it is nonetheless important that all people affected by the statute or provision know what conduct will violate it, so they will not be chilled in

20 the exercise of their fundamental constitutional rights. See.

~, Buckley v. Valeo, 424 U.S. 1 (1976).

The question of whether a legislative enactment may be struck down for vagueness and uncertainty as to its terms is dealt with at length in Connally v. General Construction Co., 269

U.S. 385 (1926). The terms "must be sufficiently clear to inform those who are subject to [them] what conduct on their part will render them liable to [the] penalties... " 269 U.S. at 391.

Moreover, where a statute implicates a right protected by the

First Amendment, it must meet a "greater degree of specificity than in other contexts." Smith v. Goguen, 415 U.S. 566, 573

(1974). The lack of any articulated grounds for expulsion renders Legislative Law §3 constitutionally infirm, because elected officials of the New York State Senate have no way of knowing what specific actions will cause them to be subject to expulsion. s

'The meeting transcripts reveal that the Select Committee itself was not entirely clear on the applicable standards, as the following statement by their special counsel demonstrates:

Mr. Alonso: It's not like writing a statute and saying if you do A, B, and C you are expelled. Its more of a you've done A, Band C, here is what we believe our recommendation is because of [sic] it's not appropriate for a Senator, it's not fitting, its unbecoming, whatever it is you want to call it. And that's going to be up to you, but I think that's my sense of what a good report might look like.

Transcript of Proceedings of the Select Committee, 105 (Dec. 8, 2009) .

21 In addition to the failure to give notice as to the actual conduct that may be grounds for expulsion, Legislative Law §3 is over broad because it grants complete discretionary authority for the removal of a State Senator.' Any state action, including expulsion, amounting to an invidious discrimination would be patently unconstitutional. Bond v. Floyd, 385 u.S. 116 (1966);

Baker v. Carr, 369 u.S. 186 (1962); Gomillion v. Lightfoot, 364 u.S. 339 (1960). The lack of clearly defined standards for expulsion creates an inherent risk that an abuse may occur by virtue of the overly broad power vested in the New York State

Senate. Because the vagueness of the statute essentially vests the New York Senate with the power to summarily remove by majority vote their political opponents from office, the "dangers of arbitrary and discriminatory application," are particularly acute. Grayned v. City of Rockford, 408 u.S. 104, 108-109

(1972). Because a very substantial risk of abuse exists, Hadnott v. Amos, 394 u.S. 358 (1969), statutes and constitutional

'During their deliberations, Senator James S. Alesi stated:

Whatever simple means can be taken to find out, I don't think it's life and death, but it would be beneficial for the committee here to know because I think it's fair that we can suppose anything, we are not really bound by any standards, that we could suppose if it were written by somebody other than her that it might be helpful to us. (Emphasis added)

Transcript of Proceedings of the Select Committee, ~ 0132-0133 (Dec. 8, 2009).

22 provisions that implicate voting rights must be worded with

~precision". Kramer v. Union Free School District, 395 U.S. 621,

632 (1969).

It is also important to compare the instant case with those free speech cases in which statutes have been voided for vagueness and over breadth. See, e.g., Keyishian v. State Bd. of

Regents, 385 U.S. 589 (1967); Whitehill v. Elkins, 389 U.S. 54

(1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Dombrowski v.

Pfister, 380 U.S. 479 (1965); Baggett v. BuHit, 377 U.S. 360

(1964). As already noted, First Amendment standards and standards affecting the franchise are of the same high degree of stringency. The four contemporary standards which must be met in cases involving fundamental rights are the same whether applied to the right to vote or to first amendment freedoms:

(a) The ~compelling" state interest test, as set out in

Cipriano v. City of Houma, 395 U.S. 701 (1968); Kramer v. Union

Free School Dist., 395 U.S. 621 (1966); Castro v. California, 38

U.S.L.W. 2522 (Cal. Mar. 24, 1970), is comparable to the First

Amendment requirement of an ~overriding and compelling interest" in DeGregory v. New Hampshire, 383 U.S. 825, 835 (1966);

(b) The close scrutiny required by Wesberry v. Sanders, 376

U.S. I, 18 (1964) and the ~precision" required by Kramer and

Carring~on v. Rash, 380 U.S. 89, 95 (1965), find their equivalent in the First Amendment doctrine of Cantwell v. Connecticut, 310

23 U.S. 296, 307 (1940) (a law must be "narrowly drawn to prevent

U the supposed evi1 );

Hadnott v. Amos, 394 U.S. 358, 364 (1969); Kramer, supra 395 U.S. at 633. This is also true where the First Amendment is involved.

See, e.g., NAACP v. Button, 371 U.S. 415, 432 (1963).

(d) Prerequisites, procedures and conditions for the use of the franchise must not be more burdensome than necessary. See,

~, William v. Rhodes, 393 U.S. 23 (1968); Harper v. Virginia

Bd. of Elections, 383 U.S. 663 (1966); Harman v. Forsennius, 380

U.S. 528 (1965); Lane v. Wilson, 307 U.S. 268 (1939). The equivalent First Amendment doctrine of not allowing unnecessarily burdensome requirements is particularly applied in cases involving permit requirements such as Shuttleworth v. City of

Birmingham, 394 U.S. 147 (1969).

The right impaired here, the right to vote, is "fundamental and personal,u Reynolds v. Sims, 377 U.S. 533, 561 (1964) and thus even if the governmental purpose to be accomplished by the constitutional provision is legitimate, that purpose cannot be pursued by means that broadly stifle personal liberties when the end can be more narrowly achieved. u Shelton v. Tucker, 364 U.S.

479, 488 (1960). The effect of the provision, vague or not,

24 would be to disenfranchise voters, and thus it is inherently unconstitutional.

Vague laws in any area suffer a constitutional infirmity.

Any statute or rule where "'men of common intelligence must necessarily guess at its meaning'" is impermissibly vague.

Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (quoting Connally v. General Construction Co., 269 U.S. 385, 391 (1926)). When

First Amendment rights are involved, we look even more closely.

Ashton v. Kentucky, 384 U.S. 195, 200 (1966). The over breadth of Legislative Law §3 must be viewed in light of its potential application in nullifying the fundamental right to vote. 7 This is analogous to the possibility of a chilling effect on First

Amendment rights. Therefore the same type of standard must be applied: a statute or state constitutional provision "susceptible

7Even the Select Committee recognized the potential infirmities of Legislative Law §3, as the following colloquy between Senator Scheiderman and Special Counsel Alonso indicates:

Senator Schneiderman: So the statute conveys this very broad authority and what I think you are saying is that the decision itself is probably not reviewable, but the statute itself the court could strike down and say you can't have authority that's this broad and this vague.

Mr. Alonso: Once the court decides that you do have the authority, I think that it would be virtually certain that it would be unreviewable how you exercise it.

Transcript of Proceedings of the Select Committee, ~ 0105 (Dec. 8, 2009).

25 of sweeping and improper application" is unconstitutional. NAACP v. Button, 371 U.S. 415, 433 (1963).

iii. SENATOR MONSERRATE WAS DEPRIVED OF HIS LIBERTY INTEREST WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION

In the weeks leading up to his expulsion from the Senate,

Senator Monserrate endured a string of stigmatizing statements.

These statements were public accusations made by various Senators in the media, impugning Senator Monserrate's personal integrity, challenging his moral standing and fitness to hold office, and alleging that his misdemeanor conviction constituted a domestic violence crime.

"[A] person may not be discharged or expelled from a state public office upon a ground involving criminal guilt, infamy, disgrace, or other grave injury to the individual until after such notice and hearing as is requisite to due process of law."

McCarley v. Sanders, 309 F. Supp. 8, 11 (M. D. Ala. 1970) (citing

Wieman v. Updegraff, 344 U.S. 183, 191-92 (1952)). The U.S.

Supreme Court has recognized that a government employee's liberty interest is implicated where the government dismisses her/him based on allegations "that might seriously damage his standing and associations in his community" or that might impose "a stigma or other disability that foreclose[s] his freedom to take advantage of other employment opportunities." Bd. of Regents v.

26 Roth, 408 u.s. 564, 573 (1972). The stigma from such widely publicized statements, coupled with Senator Monserrate's expulsion from the Senate without any notice or opportunity to contest the charges or to examine witnesses, amounts to an unconstitutional deprivation of liberty without sufficient process. See Velez v. Levy, 401 F.3d 75, 90 (2d Cir.2005)

(holding that an elected official's removal from office in response to various stigmatizing statements was an adequate assertion of a deprivation of liberty).

It is axiomatic that, under the Due Process Clause of the

Fourteenth Amendment, a person must be afforded the opportunity for a hearing prior to being deprived of a constitutionally protected liberty or property interest. u.S. Const. amend XIV, §

1; Hodel v. Va. Surface Mining & Reclamation Ass'n, 452 u.S. 264,

299 (1981); Roth, supra 408 u.S. at 569-70; Patterson v. City of

Utica, 370 F.3d 322,330 (2d Cir.2004). For a cognizable § 19838 liberty interest claim arising from the termination of government employment - commonly referred to as a "stigma plus" claim, see, e.g., Segal v. City of New York, 459 F.3d 207, 214 (2d Cir.2006)

- a plaintiff must allege (1) the public utterance of a statement

'Section 1983 of Title 42 provides that "every person who, under color of [state law] subjects. . any citizen of the United States. . to the deprivation of any rights, privileges, or immunities secured by the [United States] Constitution and laws, shall be liable to the party injured." 42 U.S.C. § 1983.

27 injurious to his or her reputation, "'that is capable of being proved false, and that he or she claims is false,'" and (2)

'" some tangible and material state-imposed burden . in addition to the stigmatizing statement.'" Velez, 401 F.3d at 87

(internal citations omitted). A plaintiff need only raise an issue of falsity as to the stigmatizing statements, not prove they are false. See Patterson, 370 F.3d at 330, Brandt v. Bd. of

Coop. Educ. Servs., 820 F.2d 41, 43 (2d Cir.1987) (citing Codd v.

Velger, 429 u.S. 624, 628 (1977)).

Senator Monserrate meets all of the enumerated requirements.

He has publicly disputed the statements appearing in the media that accuse him of having committed a domestic violence crime, and is also currently appealing the misdemeanor conviction upon which his opponents base their allegations of domestic violence.

This creates an issue of falsity as to the public statements injurious to Senator Monserrate's reputation. Secondly, Senator

Monserrate was expelled from the Senate as a result of Senator

Foley's resolution calling for his expulsion, which cited the allegations of domestic violence in the Select Committee report.

This establishes a state deprivation of Senator Monserrate's employment, with a clear nexus to the stigmatizing statements made against him.

Where, as here, a plaintiff successfully proves a stigma plus claim, due process mandates that his remedy is a hearing to

28 clear his name. Roth, 408 u.s. at 573 & n.12; Donato v.

Plainview Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d

Cir.1996). Although post-deprivation name clearing hearings do not offend due process in certain limited contexts, see, e.g.,

Segal, supra 459 F.3d at 215 (holding that post deprivation process may be adequate in the termination of an at will government employee), it is a "long-standing and well settled proposition" that where the government actor is a high ranking official with final authority over significant matters, only pre removal hearings will vindicate stigma-plus liberty interests.

Velez, 401 F.3d at 91 (citing DiBlasio v. Novello, 344 F.3d 292,

302 (2d Cir. 2003)) .

Examining facts analogous to the instant case, the Second

Circuit decided in Velez that an elected school board official should have been given a pre-deprivation name-clearing hearing, after the Chancellor duly removed her in response to allegations of criminal behavior made against her by her fellow board members. The Court reasoned that because the Chancellor was a government official of sufficient influence and authority, and since the "state acts through its high-level officials," actions taken by such high ranking officials constituted state established procedures, and could not qualify for the post deprivation hearing exception for "random and unauthorized" state action. Id. at 92-93. Accordingly, the Second Circuit found

29 that the plaintiff in Velez had stated a valid claim under the

Due Process Clause of the U.S. Constitution, based on her removal from elected office without adequate pre-deprivation process.

Id. at 93.

The rationale adopted by the Second Circuit in Velez is applicable to the instant case: Senator Monserrate is an elected official who has been removed from office by government actors of the highest rank and significance -- the members of the New York

State Senate -- in a Senate resolution motivated by stigmatizing statements made against him by members of the same body. Because his liberty interests have been trammeled by such state action,

Senator Monserrate states a valid claim under the due process clause of the Fourteenth Amendment, and must receive adequate pre-removal process.

As to what process is adequate, the hallmark of due process of law has been the basic requirements of notice and a hearing.

Mullane v. Central Hanover Trust Co., 339 U.S. 306,313 (1952). A case which is factually similar to the instant one is McCarley v.

Sanders, 309 F. Supp. 8 (M.D. Ala. 1970) (three judge court), concerning the expulsion of a Senator from the Alabama State

Senate. In the procedure utilized to expel him, Senator McCarley was denied even the most basic due process requirements. At no time were the formal charges against him presented, nor did he receive adequate notice of them. The "hearingU carried out by

30 the senate investigating committee was secret and thus denied

Senator McCarley a full hearing and the right to confront any witnesses against him.

A comparison of the procedure employed to expel Senator

Monserrate with the proceedings in McCarley presents similarities. Defendants did not provide Senator Monserrate at any time during their proceedings from the creation of the Select

Committee to the passage of the Resolution on February 9, 2010 with adequate notice as to the specific charges or grounds for expulsion. Nor was he allowed a hearing in which he would have had an opportunity to present his case and to refute the allegations against him with the right to confront and cross examine witnesses, to call his own witnesses and to examine all the evidence against him before such drastic disciplinary action was taken.

Here, Senator Monserrate and his counsel were "extended an open invitation... to address the committee, whether in person or by written submissionff and afforded "the opportunity to be heard

ff before the Select Committee • Without more, these procedures fail to comport with the basic requirements of due process of law. When the invitation was extended, Senator Monserrate was not advised of his rights, nor was he informed that expulsion was a possible outcome. Fundamental fairness requires a lot more.

See, McCarley v. Saunders, supra. Bond v. Floyd, supra.

31 iv. SENATOR MONSERRATE WAS EXPELLED IN RETALIATION FOR THE FREE EXERCISE OF HIS RIGHTS UNDER THE FIRST AMENDMENT TO THE U.S. CONSTITUION

By expelling him, the New York Senate retaliated against

Senator Monserrate for the free exercise of his First Amendment right to the freedom of speech and association. This retaliation was motivated by Senator Monserrate's part in the "parliamentary coup" and statements to the media, when he expressed his opinion on a matter of public concern regarding the adequacy of the procedures adopted by the Select Committee.

Here, the Select Committee had a separate section in its report entitled "Senator Monserrate's Interviews and the Media".

The Select Committee went out of its way to unfavorably comment on the fact that Senator Monserrate told the media that he

"believed that the Select Committee's current process is 'clearly unfair'". Furthermore, when the issue of Senator Monserrate's expulsion was first raised, several Senators expressed the view to him that the establishment of the Select Committee, and the expulsion resolution, were both in retaliation for his involvement in the parliamentary coup. This same view was publicly expressed on February 10, 2010 during the expulsion vote.

To consider Senator Monserrate's public statements regarding his thoughts on the Select Committee's process and his political

32 party affiliations as part of the "evidence before it" is not only inappropriate, it also violates Senator Monserrate's First

Amendment Right to express his opinions about the Select

Committee and his right to associate with the political party of his choice. The possibility that Senator Monserrate's viewpoint regarding the Select Committee's process and his political party affiliation could have entered into the Senate's analysis and findings about his future to sit in the Senate taints the Select

Committee's recommendations, the Senate's expulsion and is otherwise unlawful. STATE PENDENT CLAIMS

Apart from the federal causes of action against the defendants which arise under the U.S. Constitution, there are other causes of action under New York State Law upon which plaintiffs are likely to prevail on the merits. This court has jurisdiction over these pendent claims which arise under state law. i. THE NEW YORK STATE SENATE DOES NOT HAVE THE AUTHORITY TO EXPEL SENATOR MONSERRATE

As a matter of New York State Constitutional law, the legislature may not expel a sitting member. This legal conclusion receives ample support from the amendments to the New

York State Constitution, and the text of the New York State

Constitution itself.

33 Beginning with the New York Colonial Charter of Liberties and Privileges of 1683, the legislature had the right to expel its members. See New York State Assembly, Committee on Ethics and Guidance, Chaired By Assemblywoman Eileen Dugan Reports

Findings in Charges Against Assemblywoman Gerdi E. Lipschutz,

Calls for Resignation and Sanctions Including Loss of Pay,

Seniority and Censure, 8 (1987) (hereinafter referred to as the

"Lipschutz Report H and attached hereto as Exhibit A to the

Memorandum) . It provided explicit textual authority that the legislature "may from time to time purge their house as they

H shall see occasion during the said sessions. ' That authority mayor may not have been continued by New York State's First

Constitution of 1777, Section 9, which declared that the legislature of New York State shall do "business in like manner as the assemblies of the colony of New York of right formerly did. H Id. The New York State Constitution of 1821, Article I,

§3, broke from this practice by deleting the above quote and inserting instead that "Each house shall determined the rules of its own proceedings, and be the judge of the qualifications of its own members. H Id.

Four important observations should be noted about this change:

'Colonial Charter of Liberties and Privileges, ~ 9 (1683) (quoted in the Lipschutz Report, 8).

34 First, the language parallels the Federal power of exclusion" while omitting the Federal power of expulsion which is found in the very same section of the Federal Constitution;"

Second, during the 1846 New York State Constitutional

Convention it was noted that "it would be necessary to make [aJ constitutional provision for removing those officers elected by the people. H Lipschutz Report, 9 (quoting Debates and

Proceedings, Constitutional Convention at 157 (1846)).

Third, at the 1846 New York State Constitutional

Convention the following amendment was proposed and was rejected:

"The Governor, Lieutenant-Governor and Chief Justice of the Court of Appeals, shall constitute a commission for hearing and investigating all suspicions or other malversation in office, of the officers who shall be elected at general elections They may, .... removed such officers, and appoint others in their place. H See Lipschutz Report, 9 (quoting id. at

1076) .

Fourth, an amendment was made and passed at the 1846

New York State Constitutional Convention by John Porter of

Saratoga County which expressly prevented the expulsion of

10 Exclusion is the refusal to swear-in or seat an elected official, while expulsion is expelling him or her from office after he or she has already been sworn-in and seated. See, Powell v. McCormack, 395 U.S. 486, 509-10 (1969).

11 U.S. Constitution, Art. 1, §5.

35 officers with legislative powers. See Lipschutz Report, 10.

The current New York State Constitution, Article III, §9, states in relevant part that "Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members ... " In stark contrast to the Constitution of the United States (Art. I, sec.

5, cl. 2), which states that each House may expel a member, the

New York State Constitution contains no language authorizing expulsion of a legislator.

The history as well as the text of the New York State

Constitution supports the proposition that the New York State

Legislature may not expel a member. For instance, explicit provisions are made in the New York State Constitution for the removal of all other kinds of public and judicial officers who abuse their official positions such as sheriffs, court clerks, district attorneys, Governor, Lieutenant-Governor, and judges.

See, New York State Constitution, Article XIII, §§S, 13; Article

VI, §§ 23-24. The one section of the New York State Constitution which one may expect to authorize the expulsion of legislators

(Article XIII, §5 "Removal from Office for Misconduct") specifically excludes legislators ("Provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative ... ). Id.

36 A plain reading of the legislative exemption contained in the New York State Constitution coupled with the fact that the

New York State Constitution expressly authorizes the expulsion of other elected officials leads to the legal conclusion that the

New York State Legislature may not expel its members.

In 1987, the New York State Assembly's Committee on Ethics and Guidance'2 had an opportunity to address the constitutionality of expelling a member from the New York State

Legislature. According to the Committee on Ethics and Guidance:

An extensive historical study of the Assembly's ability to compel resignation or expulsion revealed a gap in the New York Constitution. While Federal Law expressly authorizes expulsion for disorderly behavior, comparable provisions in New York law were deleted in 1821. Never in the history of the New York Legislature has a member been expelled. Therefore, the Committee also made a recommendation that a Constitutional Amendment be placed before the voters permitting expulsion in the same manner as provided by Federal Law. (Emphasis added)

Lipschutz Report, 2.

In light of the Committee's determination that the absence of any provision in the New York Constitution authorizing expulsion casts significant doubt upon the power of the Assembly to expel a Member, an amendment to the New York Constitution to clarify the power of each House to punish or expel its members for disorderly behavior be adopted forthwith. Id. at 3.

"lI]t is highly likely that a court in 1987, presented with a case where a Member was excluded for reasons, other than those

12 Former Governor George Pataki was on this committee when he was an Assemblyman from Peekskill, New York.

37 explicitly delineated as qualifications for office by the

Constitution or statute, under the rubric of 'disqualification' would find that the House had exceeding its authority. Further, where the member was already seated and expulsion rather than exclusion was sought, court intervention would be almost certain." Id .. at 7-8 ..

Committees in both the New York State Assembly and Senate have considered the question of whether the legislature has the power to expel for misconduct prior to taking office. The committees held that such power does not exist. In 1853, the New

York State Assembly referred to the Assembly Judiciary Committee the question of "whether a person could be impeached and deprived of his office for mal-conduct, or offences done or committed under a prior term of the same or any other office." See Report of the Assembly Judiciary Committee Relative to the Power of

Impeachment, Leg. Doc. #123 (1853). The Committee concluded that even in the absence of any express constitutional limitation upon the power to impeach, the intention was to confine the time to the term of office because "any other conclusion would lead to results which could not be sustained ... However much it may be desired to have men of high integrity and honesty fill our public offices of trust and honor, yet by our Constitution and the fundamental principles of.our Government, no particular scale of integrity, honesty or morality is fixed; it is enough that the

38 people have willed the person should hold the office." Id. at 2-

The New York State Senate also considered this issue and arrived at a similar conclusion. In 1872, Senator James Wood was found to have received loans from "Boss" Tweed. However, since the misconduct occurred during a previous session of the Senate, it decided not to pursue the matter further. '3 See, Leg. Docs.,

Vol. 13, 2462 citing Senate Journal 639 (1872).

Based upon the above, the New York State Senate did not have the authority to expel Senator Monserrate. However, even assuming it did, it could not expel a member for private conduct which occurred prior to taking office. A sub-committee of the

Judiciary Committee of the New York State Assembly ("Judiciary

Sub-Committee") dealt with this issue on April 9, 1918 "In the

13 This result accords with the historical practice adopted by Congress. In Powell v. McCormack, the majority noted that:

"The fifth section of the first article of the Constitution authorizes 'each house to determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member. ' This power is evidently given to enable each house to exercise its constitutional function of legislation unobstructed. It cannot vest in Congress a jurisdiction to try a member for an offense committed before his election; for such offense a member, like any other citizen, is amenable to the courts alone."

Powell v. McCormack, supra, 395 U.S. at 510 (quoting Report of the Judiciary Committee, H. R. Rep. No. 815, 44th Cong., 1st Sess.,2 (1876))

39 Matter of the Protest Against Hon. Lucas E. Decker, Jr. a Member of Assembly from the Fourth Assembly District of Queens County".

In Decker," Lucas E. Decker was nominated for the New York

State Assembly in September 1917. Qn November 6, 1917 he won the election, got married on November 9, 1917, and, in accordance with federal law, registered with the War Department on November

23, 1917. He was Assemblyman-Elect between November 6, 1917 and

January 1, 1918 when he took the oath of office and was seated as a New York State Assemblyman.

Apparently, Decker was required to register with the War

Department for the draft beginning July 24, 1917 but failed to do so until November 23, 1917 when he claimed two exemptions, being married and holding State office. Based upon the convenient timing of events and the fact that Decker was not sworn-in and seated as an Assemblyman at this time, certain members of the

Assembly sought his expulsion for both evading the draft and misrepresenting himself as a State officer prior to being sworn- in.

The Judiciary Sub-Committee held that Decker was not a State officer at any time prior to January 1, 1918 and since becoming a

State officer, committed no acts which would warrant expulsion

l4Journal of the Assembly of the State of New York, Vol. 3, p. 2067-a (1918).

40 (all of the alleged bad acts at issue were known before Decker took the oath of office and were a matter of public record).

The sub-committee further held that "in order to remove a

Member of the Assembly from office under the [New York State]

Constitution that some question involving the election or the returns is necessary before the Assembly has jurisdiction in the premises, or further, that the Person so elected, must be entirely disqualified under the [New York State] Constitution; or by his conduct in the House must disqualify himself. The regulations are specifically set forth in the [New York State]

Constitution itself, and there is no evidence before us that any of them are lacking as far as the respondent in this proceeding is concerned." After confirming that Decker met all of the qualification for us, the sub-committee dismissed the complaint against him.

The precedents indicate that no constitutional authority to expel a member of the legislature exists, and any argument for an

"inherent" right to do so flies in the face of settled principles of constitutional construction. A generally accepted proposition is that "whenever the language of the constitution is not explicit or admits of doubt it is presumed that it inhibits the violation of acknowledged principles of justice and liberty; and nothing should be implied from the constitution which would increase the burden or detract from individual rights."

41 McKinney's, Rules of Interpretation, §4. The power to expel a

legislator on a bare majority, simply by invoking a nebulous and undefined procedure is too slender a reed upon which to rest the foundation of democracy in the State of New York. 's

v. LEGISLATIVE LAW §3 WAS NOT COMPLIED WITH

Legislative Law §3 states that "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."

Although the constitutionality of this law has never been tested until now, assuming its constitutionality arguendo, the Senate nonetheless did not comply with its provisions.

Here, no specific charges were brought against Senator

Monserrate. As set forth above, the Select Committee's role was merely to investigate the facts and circumstances regarding

Senator Monserrate's conviction. No specific charges from the

Senate were ever brought against him, and Senator Monserrate was not informed of his rights. The Select Committee as well as the full Senate completely skipped this stage. They went from

15 It should be noted that the prohibition against expelling a member of the legislature may not be absolute. For example, N.Y. Civil Rights Law §79 suspends the civil rights of those who are convicted of felonious acts during their terms and thus become ineligible to hold public office. Furthermore, if a legislator is imprisoned, the Governor may call a Special Election to fill the vacancy. However, these are extreme scenarios which are not present here.

42 creating a committee to investigate and report to expelling him within a matter of weeks.

C. The Balancing of the Hardships Here Clearly Tips in Favor of the Plaintiffs Because Their Civil Rights are Violated

"In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction." Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312 (1982). "For 'several hundred years,' courts of equity have enjoyed 'sound discretion' to consider the 'necessities of the public interest' when fashioning injunctive relief." United States v. Oakland Cannabis Buyers'

Coop., 532 U.S. 483, 496 (2001) (quoting Hecht Co. v. Bowles, 321

U.S. 321, 329-330 (1944)).

Here, the public interest is paramount. Over 41,000 voters have been disenfranchised, and, for the first time in modern history, a New York State Senator has been expelled in spite of the lack of textual support in the New York State Constitution.

The 13th Senatorial District's chosen representative, Senator

Monserrate, may no longer represent its interests in the New York

State Senate. Legislation will be passed without the voice of the people of the 13th Senatorial District. The people are entitled under federal law to a republican form of government and their chosen representative should not be whisked away from them based upon the current political climate. Due process requires

43 much more than declarations of "unfitness," delivered to the media, to oust a sitting New York State Senator.

Senator Monserrate should have received a fair hearing based upon actual charges brought against him, but this basic requirement was denied to him. The mere creation of an "ad hoc" committee which issued no formal charges but simply recommends the draconian and unconstitutional sanction of expulsion is clearly unfair. By endorsing this recommendation, the full New

York State Senate has likewise violated the guarantees of the

U.S. Constitution to both Senator Monserrate and his constituents. Within one month of this "ad hoc" committee's recommendation, the full Senate expelled Senator Monserrate with no specific charges and no opportunity for him to confront and cross-examine witnesses or present evidence before the full

Senate.

In the end, pursuant to Resolution 3409, the Select

Committee's remit was limited to investigate and report on

Senator Monserrate. That mandate warped into a recommendation to expel Senator Monserrate. Neither notice, nor specific charges were given to Senator Monserrate advising him that expulsion was being sought. Fairness, at the very least, requires that someone knows of the charges against them and the ultimate penalty if found culpable with an opportunity to have a fair hearing on the charges. Senator Monserrate received none of this.

44 CONCLUSION

For the aforementioned reasons, we respectfully request that

this Court issue a Temporary Restraining Order and Preliminary

Injunction as set forth in the Order to Show Cause for "If I err

in these conclusions [against a power to expel], I err on the

side of constitutional liberties, trusting in the strength of the

sovereign people to maintain itself." Assemblyman H.A. Blodgett,

N.Y. Leg. Docs., 143d Sess., Vol. 13 at 2770 (1920).

Dated: New York, New York February 10, 2010

Respectfully submitted, C11£UU&/I 1~oQf~_ ~AN SIEGEL a e 260 Madison Avenue New York, NY 10016 (212) 532-7586

& STERN, LLP

B. Steven Alan E. Sash 260 Madison Avenue New York, NY 10016 (212) 448-1100

Attorneys for the Plaintiffs

45 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------X

HIRAM MONSERRATE, individually Docket No. and as an elected official and member Civ. (--) of the New York State Senate, CELESTE RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY TORRES, LORETTA HENDERSON, MALlKAH K. SHABAZZ, individually and as duly registered and qualified voters in the New York State 13~ Senatorial District,

Plaintiffs,

-against-

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 T. 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. ------x

ORDER TO SHOW CAUSE FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER

Upon the Declaration of Steven J. Hyman dated February 10,

2010, affidavit of HIRAM MONSERRATE sworn to on February 10, 2010 and the exhibits annexed thereto and the affidavits of CELESTE

RODRIGUEZ, MICHAEL A. NARDIELO III, MONIFA AFIA BEY, REV. NANCY

TORRES, LORETTA HENDERSON, and MALIKAH K. SHABAZZ all sworn to on

February 9, 2010, a copy of the Complaint in this action and the accompanying memorandum of law, it is

ORDERED, that the above named defendants show cause before a motion term of this Court at Room , at the United States

Courthouse located at 500 Pearl Street, New York, New York, on

February ,2010 at am/pm, or as soon thereafter as counsel may be heard, why an Order should not be issued pursuant to Rule 65 of the Federal Rules of Civil Procedure enjoining the defendants during the pending of this action from (a) enforcing and implementing the February 9, 2010 Resolution expelling

SENATOR HIRAM MONSERRATE from the NEW YORK STATE SENATE; (b) holding a Special Election on March 16th in the 13th Senatorial

District of the State of New York in connection with the expulsion of SENATOR HIRAM MONSERRATE; (c) removing SENATOR HIRAM

MONSERRATE from the payroll of the State of New York in connection with his role as Senator of the 13th Senatorial

District of the State of New York; and it is further

ORDERED that, sufficient reason having been shown, pending the hearing of plaintiffs' application for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil

Procedure, the defendants are hereby temporarily restrained and

2 enjoined from (a) enforcing and implementing the February 9, 2010

Resolution expelling SENATOR HIRAM MONSERRATE from the NEW YORK

STATE SENATE; (b) holding a Special Election on March 16th in the

13th Senatorial District of the State of New York in connection with the expulsion of SENATOR HIRAM MONSERRATE; (c) removing

SENATOR HIRAM MONSERRATE from the payroll of the State of New

York in connection with his role as Senator of the 13th

Senatorial District of the State of New York; and it is further

ORDERED that personal service of a copy of this Order together with the papers upon which it was based, upon defendants or their counsel on or before o'clock in the noon,

February , 2010, shall be deemed good and sufficient service thereof.

Dated: New York, New York February 10, 2010

United States District Judge