UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------)( 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. -------------------------------------------------------------------)( 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").