Monserrate Sues To Overturn Expulsion From State Senate

Charges Racism, Says Only Voters Have the Power To Ban Him From Office

THE CHIEF
By RICHARD STEIER

Two days after the State Senate voted overwhelmingly Feb. 9 to expel Hiram Monserrate over his misdemeanor assault conviction last year for dragging his girlfriend through his building following a quarrel, he sued in Federal court in Manhattan to regain his job.

Questions Authority to Expel

His attorney, Norman Siegel, said in an interview a day before bringing the court case that he believed the Senate “does not have the constitutional or legal authority to expel Hiram Monserrate or any other Senator. Their actions have not been consistent with due process of law.”

State Sen. Diane Savino, a member of the select committee tapped by the Senate to decide what action to take against Mr. Monserrate that ultimately recommended that he either be censured or expelled, disagreed with those contentions.

Even before that panel, consisting of rank-and-file members rather than Senate leaders, was appointed, she said, “There was significant research done by Senate counsel, both Democratic and Republican, about the authority to act. Clearly the law under which we acted allows us to do this” after having the select committee issue its findings.

The 53-8 tally in favor of expulsion included a unanimous vote by the 30 Republican Senators. There was also a strong majority of the 31 other Democrats, even though banishing Mr. Monserrate left them one vote short of what is required to pass legislation unless Republican colleagues support it.

Governor Paterson has called a special election for March 16 to choose a replacement to represent Mr. Monserrate’s Queens district.

Claims Double Standard

Mr. Monserrate and his supporters have charged that he was the victim of a double standard in the Senate and that he was being treated differently because he is Latino.

Senator Savino branded those claims “absolute nonsense. In fact it’s incredibly insulting to Latino people [to make that charge]. It has nothing to do with ethnicity. It has to do with his conduct that night and since then; what Eric Schneiderman [who chaired the select committee] said was using intimacy to manipulate and control.”

She was alluding to the fact that Mr. Monserrate’s girlfriend, Karla Giraldo, after telling personnel at Long Island Jewish Hospital that the deep gash on her face that brought her there for treatment resulted from his slashing her with a broken drinking glass in a fit of jealousy, later testified at his trial that the cut was inflicted accidentally. Because of that testimony by the victim, the trial judge in Queens Supreme Court acquitted Mr. Monserrate of felony assault but convicted him of a misdemeanor charge for dragging her from his building while she could be seen on a video camera beseeching neighbors for help.

Had he been convicted of a felony in the case, he would have automatically been removed from office.

Refused to Appear Before Panel

After initially pledging to appear before the Senate committee deliberating on what action to take, Mr. Monserrate changed his mind and did not cooperate with the panel.

Mr. Siegel declined comment when asked whether, had he been representing him at the time, he would have urged Mr. Monserrate to speak to the panel. He said he did not think it would have made a difference in its recommendations, contending, “It seemed to me that it was all predetermined.”

Mr. Monserrate and some of his supporters contend the expulsion vote was based less on his conduct with Ms. Giraldo than with remaining anger over his first bolting the Democratic conference last June to align with Senate Republicans and then, a short time later, jumping back to the Democratic side. His defection, along with Bronx Sen. Pedro Espada, brought Albany business to a standstill for a month at a time when most legislation is typically decided.

A Mix of Motives?

Asked whether he believed the expulsion vote was motivated by retaliation, concern about the Senate’s image because of the damning videotape of Mr. Monserrate dragging Ms. Giraldo, or principle because of outrage at what Senators viewed as clear-cut domestic violence, Mr. Siegel said, “There are probably people in that body who would fall into all three categories. And some of them individually would fall into all three.”

His lawsuit cites improper retaliation as one ground for overturning the expulsion. But Mr. Siegel is focused much more heavily on the issues he said the ban raises “as to what a constitutional democracy is all about.”

Several voters from Mr. Monserrate’s district are named as co-plaintiffs. “The argument will be that they were disenfranchised,” Mr. Siegel said. “I think regardless of what you think about Monserrate, these are very important issues.”

Last Expulsion in 1781

He called it a potentially precedentsetting case because there had never been a legal challenge to the Senate’s right to banish members. “The last time that I can tell that someone was expelled in the Senate was 1781,” Mr. Siegel said.

In more-recent cases, he said, individuals who faced such bans resigned their positions before they could be formally expelled.

Ms. Savino argued that legislators until now who faced the strong disapproval of their colleagues chose not to file lawsuits and instead “did the responsible, honorable thing and they resigned. [Assemblyman] Roger Green when he was guilty of something not nearly so serious [acceptance of free travel from someone with state business], he resigned. He ran for office again after he regained the trust of the voters.”

Monserrate Ready to Run

Mr. Monserrate, however, maintained that he retained the trust of his constituents, and that the only way to prove otherwise would be if he were defeated in his bid for re-election later this year. He has indicated that he will run in next month’s special election if his lawsuit has not been decided by that time.

Senator Savino said that in making its recommendations on punitive action, the select committee was “sensitive to the concern that some people would feel that we were usurping the will of the voters.” Ultimately the panel decided, however, that his conduct was too egregious to not take action.

Mr. Siegel said any attempt to defend the Senate’s action that relied primarily on the shock value of the videotape of Mr. Monserrate dragging Ms. Giraldo was likely to fail. Rather, he said, “I think they’ll rely on absolute inherent authority to cleanse the body.”

Cites Deep South Cases

He noted, however, that as a young American Civil Liberties Union lawyer 40 years ago he had handled cases in which legislatures in southern states tried to bar newly elected black officials from being seated because they had made militant speeches at one point that those legislators regarded as anti-American. That was one reason Mr. Siegel was willing to take the case when Mr. Monserrate— whom he previously represented when he was a vice president of the Latino Officers Association in legal actions against the NYPD—approached him.

“The Constitution doesn’t give the government absolute, unlimited power; it limits and checks it,” Mr. Siegel said.