UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

HIRAM MONSERRATE, et al.,

Plaintiff,
Index No. 10-CV-1106 (WHP)
– against –

THE NEW YORK STATE SENATE, et al.,

Defendants.
__________________________________________

DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

ANDREW M. CUOMO
Attorney General of the State
of New York
Attorney for Defendants
The Capitol
Albany, New York 12224-0341

Of Counsel:
Henry M. Greenberg, Counsel to
the Attorney General
Douglas J. Goglia, Assistant Attorney General
Telephone: (518) 474-6800
Facsimile: (518) 473-1572

February 16, 2010

 Table of Contents

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 4
A. Formation of the Select Committee and the Scope of Investigation. ......................... 5

B. Monserrate's Sentencing and the Family Offense Order of Protection. ..................... 6

C. The Report and Recommendations of the Select Committee. .................................... 6

D. Monserrate Failed to Cooperate with the Committee ................................................. 8

E. The Select Committee Provided Monserrate with Notice of the Charges

Against Him and the Opportunity to be Heard .......................................................... 9

F. Monserrate was well aware that a consequence of the Investigation could be

expulsion.................................................................................................................. 10

G. Senate Action to Expel.............................................................................................. 11

H. Governor Paterson’s Order for a Special Election for the 13th Senate District. ....... 11

PRELIMINARY INJUNCTION STANDARD............................................................................ 11

ARGUMENT................................................................................................................................ 14
I. Plaintiffs Are Not Entitled To Injunctive Relief Because They Are Not Likely To
Succeed on the Merits....................................................................................................... 14

A. Plaintiffs' Federal Constitutional Claims Lack Merit ............................................... 14

1. Plaintiffs’ Claims Of Voter Disenfranchisement Are Meritless ....................... 14

2. Plaintiffs’ Equal Protection Claim Is Without Basis In Law ............................ 15

B. Plaintiffs' Due Process Claims are Baseless ............................................................. 16

1. Monserrate Received All Of The Process That Was Due To Him ................... 18
2. Monserrate Has Not Pleaded, and Cannot Prove, a Cognizable "Stigma-
Plus" Due Process Claim .................................................................................. 21
3. Legislative Law § 3 Is Not Unconstitutionally Vague...................................... 24

C. Plaintiffs' First Amendment Claims are Equally Unavailing.................................... 27

1. Plaintiffs' "Overbreadth" Claim is Unavailing.................................................. 28

2. Plaintiffs' Free Speech Claims Are Legally Deficient ...................................... 29

D. The Court Should Refrain From Encroaching In Important Matters of State

and Legislative Law................................................................................................ 34

i
 1. The Court Should Refrain From Reviewing Monserrate's Expulsion
Because the Senate is the Exclusive Judge of the Qualifications of its Own
Members............................................................................................................ 36

E. Plaintiff's State Claims Are Deficient. ...................................................................... 38

1. The New York State Senate Possesses Ample Authority to Expel a Sitting
Senator .............................................................................................................. 38

a. New York State Constitutional Authority .................................................. 38

b. Legislative Law § 3..................................................................................... 42
c. The Lipschutz Report’s Conclusion is Erroneous ...................................... 43

II. Plaintiffs Will Suffer No Irreparable Harm Should Injunctive Relief Be Denied............ 44

III. The Balance Of Hardships Tips Decidedly In Defendants' Favor.................................... 45

CONCLUSION…………………………………………………………………………………..50

ii
 Table of Authorities

Cases

Allstate Ins. Co. v. Serio, 261 F.3d 143, 150 (2d Cir. 2001)......................................................... 36
Almontaser v. New York City Dept. of Educ. 519 F.3d 505, 508 (C.A.2 (N.Y.),2008) ............. 12
Anemone v. Metropolitan Transp. Authority, 410 F.Supp.2d 255, 268 (S.D.N.Y. 2006.............. 15
Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950 (May 18, 2009)) ..................................... 16
Ashcroft v. Iqbal, 129 S. Ct. at 1950............................................................................................. 23
Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87, 93 -94 (2d Cir.
1998) ................................................................................................................................. 34
Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)....................................................................... 27
Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939, * 5, n. 84 (S.D.N.Y.
June 26, 2009)................................................................................................................... 13
Blackburn v. City of Marshall, 42. F.3d 925, 936 (5th Cir. 1995)................................................. 23
Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, N. 12 (1972)............................. 22
Bolmer v. Oliveira, 08-4113-CV, 2010 WL 424591, 7 (2d Cir. Feb. 8, 2010) ............................ 19
Bond v. Floyd, 385 U.S. 116 (1966) ............................................................................................. 28
Boyce Motor Lines v. U.S., 342 U.S. 337, 340 (1952).................................................................. 26
Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) ..................................................................... 26
Bryan v. Liburd, 1996 WL 785997, **6-7 (Terr.V.I. 1996)) ....................................................... 17
Burdick v. Takushi, 504 U.S. 428, 436-39 (1992) (upholding Hawaii’s ban on write-in
voting), aff’g, 937 F.2d 415, 473-74 (9th Cir. 1991) ......................................................... 14
Burdick v. Takushi, 504 U.S. at 436-39. ....................................................................................... 46
Cave v. State of Missouri ex rel. Newell, 246 U.S. 650, (1918)) .................................................. 17
Chicago v. Morales, 527 U.S. 41, 56-57 (1999)........................................................................... 25
Codd v. Velger, 429 U.S. 624, 628-29 (1977................................................................................ 23
County of Nassau v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008) ................................................... 12
County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)................................................... 19
DiBlasio v. Novello, 344 F.3d 292 (2d Cir.2003) ......................................................................... 22
DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003) ................................................................ 21
iii
Education v. Loudermill, 470 U.S. 532, 546 (1985 ...................................................................... 17
Flood v. County of Suffolk, 820 F. Supp. 709, 715 (E.D.N.Y. 1993............................................. 23
Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 149 (2d Cir. 1999)......... 12
Fox Ins. Co. v. Envision Pharmaceutical Holdings, Inc., CV-09-0237, 2009 WL 790312,
at * 5 (E.D.N.Y. Mar. 23, 2009) ....................................................................................... 13
Franzwa v. City of Hackensack, 567 F.Supp.2d 1097, 1107 (D. Minn. 2008)............................. 19
French v. Senate of State of Cal., 146 Cal. 604, 606 (Cal. 1905)................................................. 25
Goldberg v. Kelly, 397 U.S. 254, 264, 268 (1970) ....................................................................... 20
Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007)..................... 45
Hayden v. Paterson, ___ F.3d ___, 2010 WL 308897 (2d Cir. Jan. 28, 2010.............................. 16
Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 881 (2d
Cir.1996)).......................................................................................................................... 19
Hill v. Colorado, 530 U.S. 703, 732 (2000) ................................................................................. 25
Hill v. Colorado, 530 U.S. 703, 733 (2000) ................................................................................. 27
Hiss v. Bartlett, 3 Gray 468, 473 (1855)....................................................................................... 25
Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) ...................................................................... 12
Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 510-11 (1972) ............................................. 35
Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159 (1971)........ 26
Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-14 (2d Cir.2006)............ 12
Massachusetts v. Oakes, 491 U.S. 576, 581, 584 (1989).............................................................. 28
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)........................................................................ 12
Moore v. Consol. Edison Co. of N.Y. Inc., 409 F.3d 506, 510 (2d Cir. 2005).............................. 12
Pennhurst State Sch. & Hosp. v. Haldeman, 465 U.S. 89, 105 (1984)......................................... 34
Piccoli v. Yonkers Bd. of Educ. 08-CV-8344, 2009 WL 4794130, 4 (S.D.N.Y. Dec. 11,
2009) ................................................................................................................................. 23
Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1317 (2d Cir. 1991..................................... 15
Railroad Commission v. Pullman Co., 312 U.S. 496 (1941)........................................................ 35
Reetz v. Bozanich, 397 U.S. 82, 90 (1970) ................................................................................... 36
Roberts v. U.S. Jaycees, 468 U.S. 609, 629 (1984) ...................................................................... 24
Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982)........................................................ 46

iv
Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10, n. 10 (1982)........................................ 16
Roth, 408 U.S. at 573 (1972.......................................................................................................... 22
Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998)................................................................. 35
Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) ...................................................... 21
Segal v. City of New York, 459 F.3d 207, 218, n. 10 (2d Cir. 2006) ............................................ 19
Smith v. Lehman, 689 F.2d 342, 346 (2d Cir. 1982 ...................................................................... 23
Snowden v. Hughes, 321 U.S. 1, 7 (U.S. 1944) (citing Taylor and Marshall v. Beckham,
178 U.S. 548 (1900).......................................................................................................... 17
States Term Limits v. Thornton, 534 U.S. 779, 794, 820-21 (1995)............................................. 15
Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004)............................................. 12
Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir.1995)..................... 12
United States v. Raines, 362 U.S. 17, 23 (1960)........................................................................... 27
Valenti v. Rockefeller, 393 U.S. 405 (1969) ................................................................................. 16
Velez v. Levy, 401 F.3d 75, 90-92 (2d Cir. 2005........................................................................... 22
Ward v. New York, 291 F. Supp. 2d 188, 196 (W.D.N.Y. 2003).................................................. 13
Wiese v. Kelley, 08-CV-6348, 2009 WL 2902513, 6 (S.D.N.Y., Sept. 10, 2009)........................ 23
Winter v. Natural Resources Defense Council, Inc., – U.S. ----, 129 S. Ct. 365, 374
(2008)................................................................................................................................ 13
Winter v. Natural Resources Defense Council, Inc., ___ U.S. ___, 129 S. Ct. 365, 375 -
376 (2008)......................................................................................................................... 44

Rules

28 U.S.C. § 1367(c)(1).................................................................................................................. 35
Article 1, § 2 of the United States Constitution. Id. at 783........................................................... 15
Civil Rights Law § 73(3.................................................................................................................. 9
CPL § 530.12 .................................................................................................................................. 6
CPL §530.12 ................................................................................................................................... 6
Election Law, §§ 6-158, 10-108, 116 ........................................................................................... 11
Legislative Law § 3.................................................................................. i, ii, 24, 27, 28, 40, 42, 43
Legislative Law §3.................................................................................................................. 10, 17
N.Y. Const. Art. 1, §§ 8, 11 .......................................................................................................... 14
v
N.Y. Const. Art. I, § 8................................................................................................................... 15
New York Civil Rights Law § 73(3)............................................................................................... 9
Penal Law § 120.00(2).................................................................................................................. 26
Penal Law § 15.05(3).................................................................................................................... 26

vi
 Preliminary Statement

At issue in this case is the historic right and power of New York's Legislature to regulate

the conduct of its members and impose sanctions up to and including suspension and expulsion

from its membership. For centuries, courts and commentators have agreed that such right and

power is inherent in a parliamentary body as necessary to protect the integrity of the institution

from persons who are unworthy to be members. It is a power of protection that has been

codified in New York's State Constitution and Legislative Law, and explicitly recognized by

New York’s highest court, the Court of Appeals.

Pursuant to this authority, on February 9, 2010, by a vote of 53-8, the New York State

Senate expelled plaintiff Hiram Monserrate from its membership. The grounds for this action

were clearly and explicitly set forth in the resolution announcing Monserrate’s expulsion,

specifically:

ƒ that within two months of his election, he was charged with multiple crimes in
connection with a highly publicized incident of domestic violence against his girlfriend
that left her with a lacerated face;

ƒ that he was subsequently convicted after trial of reckless assault;

ƒ that a select committee of his fellow senators formed after his conviction had investigated
and concluded that Monserrate’s actions were serious enough to warrant severe
sanctions;

ƒ that the versions of events presented by Monserrate and his girlfriend at his criminal trial
and elsewhere were not credible and were mutually inconsistent;

ƒ that Monserrate had failed to cooperate with the select committee and failed to take
responsibility for being the cause or the source of harm to his girlfriend; and

ƒ that Monserrate’s actions violated the zero tolerance policy of New York State and the
New York State Senate towards domestic violence.

1
Concluding that Monserrate’s behavior had brought disrepute on the Senate and had damaged

the honor, dignity and integrity of that institution, his fellow senators expelled him by vote of an

overwhelming and bipartisan majority.

In bringing this action, Plaintiffs urge this court to do what no other judicial body has

done since the founding of this nation – namely, rule that a state legislature is powerless to

protect itself from persons manifestly unfit to participate in the law making process. Under

Plaintiffs' theory, taken on its face, the Senate thus could not expel a member who is

demonstrably corrupt, insane or violent. Such a position is not only absurd, but dangerous.

Defendants are aware of no state legislative body in the country which operates under such

limitations. This court should not, by judicial decree, make New York the exception to the rule.

Alternatively, Plaintiffs argue that if the Senate has the power in theory to expel one of its

members, it did so improperly in Monserrate’s case by, for example, expelling him in violation

of his constituents’ rights to representation, or in retaliation for his having exercised his rights to

free speech and association or without affording him sufficient due process.

All of Plaintiffs’ arguments are without merit. It is well-settled law that voters have no

legal right to representation by any particular individual, nor does the temporary vacancy in

Monserrate’s seat unlawfully impinge on his constituents’ rights. Further, Monserrate’s claim

that his expulsion was retaliatory is belied by the facts, as evidenced by the scrupulously detailed

investigative report record generated by a Senate select committee. Finally, Monserrate’s due

process arguments are premised upon the false assumption that an elected office holder has a

constitutionally protected interest in his seat. This is simply not the law.

Now before the court is Plaintiffs’ motion for a preliminary injunction, seeking to restore

Monserrate to the Senate and cancel the special election to fill his seat, scheduled to take place

2
on March 16, 2010. For the Court to order such extraordinary actions, it would have to conclude

both that Plaintiffs have a substantial likelihood of prevailing on the merits, and that they face

irreparable injury in the absence of interim relief. Neither conclusion is warranted.

First, to conclude that Plaintiffs have a substantial likelihood of prevailing on the merits

in this case would require the sweeping aside of generations of constitutional, statutory and

historical precedent that underpin the Senate’s authority to govern its own membership and that

privilege legislative action and debate from this type of collateral legal challenge. Plaintiffs’

motion invites this Court to trample upon bedrock principles of federalism, comity, separation of

powers, legislative immunity and justiciability. Plaintiffs would have the court inquire into

legislative motivation, notwithstanding settled law which precludes the judiciary from intruding

in the workings of other branches of government. They would have the court micromanage

legislative procedures and impose other restraints, notwithstanding well-established precedent

that gives wide latitude to the legislature in this regard. And, they would have this Court

substitute its judgment for that of the legislature, despite centuries-old law which holds that the

legislature's decision to expel a member is final, conclusive and not subject to judicial review.

Moreover, even if Plaintiffs had shown some prospect of success on the merits, which

they have not, preliminary injunctive relief would be unwarranted. Plaintiffs have failed entirely

to demonstrate that they would face irreparable injury in the absence of preliminary injunctive

relief, or that a balancing of the hardships swings decidedly in their favor. To the contrary, were

this Court to grant preliminary relief, it would cause undue hardship on the voters of the 13th

Senate District, the Defendants, and the people of the State of New York by halting the already

ongoing process to fill the seat vacated by Monserrate. It also would work chaos in the Senate

3
and give rise to further litigation, given the prospect of Monserrate potentially casting decisive

votes on legislation.

Accordingly, Plaintiffs' motion for a preliminary injunction should be denied.

Statement of Facts

On February 9, 2010, the New York State Senate (the “Senate”) voted 53-8 to expel one

of its members, plaintiff Hiram Monserrate (“Monserrate”). In so doing, the Senate approved

Resolution No. 03904, entitled “Condemning the conduct and calling for the expulsion of

Senator Hiram Monserrate.” Having overwhelmingly adopted the Resolution, the Senate

determined that: Monserrate’s behavior brought “disrepute on the Senate, and damaged the

honor, dignity and integrity of the Senate”; his “conduct [was] incompatible with the duties of

the Senate to uphold confidence in government and promote the administration of justice under

law”; and his actions “in totality [were] not compatible with the responsibilities of the office, and

with the qualifications and behavior expected of and by a State Senator in New York.” (Exhibit

D to the Declaration of Angelo R. Aponte executed on February 16, 2010). In fact, Monserrate

conceded in his explanation of his vote against the Resolution that “his behavior has brought

unwelcome discredit to this Chamber.” Aponte Dec., Exhibit C at 18. The facts and

circumstances that gave rise to this solemn action by the Senate are set forth below and more

fully in the “Report of the New York State Senate Select Committee to Investigate the Facts and

Circumstances Surrounding the Conviction of Hiram Monserrate on October 15, 2009,” (the

"Report") (attached as Exhibit N7 to the accompanying Declaration of Joel Graber, executed on

February 16, 2010) and in the accompanying Declarations of Daniel R. Alonso, Esq., Angelo

Aponte, and Lee M. Cortes, Jr, Esq.

4
A. Formation of the Select Committee and the Scope of Investigation

On October 15, 2009, Monserrate was convicted of Assault in the Third Degree, a

misdemeanor carrying a maximum jail sentence of one year, following his arrest on December

19, 2008, on suspicion that he assaulted his domestic companion Karla Giraldo, who sustained

serious facial lacerations and other injuries. 1 (Report, at 1)

On October 20, 2009, Senate Majority Conference Leader John L. Sampson announced

the formation of a Select Committee of Inquiry to investigate the conduct for which Monserrate

was convicted. On November 9, 2009, by a voice vote with no recorded “nays,” the Senate

adopted Senate Resolution No. 03409 formally establishing the Select Committee to “investigate

the facts and circumstances surrounding the conviction of Senator Hiram Monserrate,” to

“ensure a full and fair investigation” and “to report its findings, along with its recommendations

to the full Senate” (the “Select Committee”) (Aponte Dec., Exh. B ). The Senate recognized that

the “seriousness of [the] domestic violence charges and the circumstances surrounding them

warrant further investigation by the Senate, and may warrant the imposition of sanctions by the

Senate.” (Id.)

The Select Committee convened six times between November 9, 2009, and January 11,

2010. At the first meeting of the Committee, Counsel to the Committee explained the scope of

the Committee’s authority and emphasized the importance of rendering a decision based solely

on the evidence available to the Committee. Further, because Monserrate had challenged the

objectivity of four women members of the Committee, the Chairman of the Committee, Senator

Eric Schneiderman questioned each of them to ensure they were able to proceed in an objective

and fair manner. Each stated on the record that she could and would be objective in reviewing

1
A person is guilty of assault in the third degree when “[he] recklessly causes physical injury to
another person.” Penal Law §120.00(2)

5
the evidence and making a recommendation. (Transcript of November 9, 2009 meeting of the

Select Committee at 7-12, copy of which is annexed as Exhibit 21 to the Graber Dec.)

In connection with its investigation, the Select Committee reviewed, among other things,

the minutes of Monserrate’s criminal trial, the People’s exhibits admitted at the trial, the grand

jury testimony of Monserrate's domestic companion, a notarized statement of his companion, the

minutes of Monserrate’s sentencing, and publicly available recordings of Monserrate’s

interviews with various media outlets during which he discussed the events surrounding his

conviction.

B. Monserrate's Sentencing and the Family Offense Order of Protection

Prior to the conclusion of the Committee meetings and the issuance of its report on

December 4, 2009, Monserrate was sentenced to three years supervised probation, 250 hours of

community service, one year of domestic abuse counseling, and a $1,000 fine plus mandatory

surcharges. In addition, the Court entered a full order of protection precluding Monserrate from

having any further contact with his companion, which remains in effect until October 15, 2014.

The protective order is a “family offense” final order of protection under CPL § 530.12, thus

entitling the victim to added protection and safeguards including the automatic entry of the order

into the statewide electronic registry of orders of protection. Report at 32; see also N.Y. 221-a

(1) Monserrate has noticed an appeal from his Judgment of Conviction. Monserrate Declaration,

¶16.

C. The Report and Recommendations of the Select Committee

In reviewing the evidence, the Select Committee found, consistent with the trial verdict,

that Monserrate had recklessly assaulted his domestic companion. The Select Committee

concluded, however, that their inquiry did not end there. Pursuant to its charge to examine the

facts and circumstances surrounding the conviction, the Committee considered whether

6
Monserrate’s conduct was the result of being “too exuberant” and thus not deserving of any

sanction, or on the other hand, whether his conduct resulted from disregard for the health of his

companion, a grave matter. Report at 22.

Following the Committee's exhaustive review of the available evidence, it found that the

seriousness of Mr. Monserrate’s conduct “showed a reckless disregard for [his domestic

companion’s] well-being and for the severity of her injury.” Report at 53. Furthermore, the

Committee found 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.” (Id.) The Committee stated that "its

determinations [were] based on the totality of the facts and circumstances surrounding Senator

Monserrate’s overall conduct, not on the fact of his misdemeanor conviction.” Id. (emphasis

added) See Report at 22-28 for a detailed discussion of findings by the Committee regarding

Moneserrate's extensive wrong doing apart from, but related to his criminal conviction including

his behavior following his conviction.

Of particular concern to the Select Committee was the fact that the misconduct at issue

was a crime of domestic violence, which the Legislature had found to be one of the most serious

problems confronting New York families. See Report at 53, citing legislative policy supporting

enactment of Family Protection and Domestic Violence Intervention Act of 1994. That is, the

nature of Monserrate’s specific crime contravenes New York’s well-established “zero-tolerance”

policy in domestic violence matters, a policy fully embraced by the Legislature. The

Legislature’s commitment to reduce the extraordinarily harmful consequences of domestic

violence is manifest in the 108 pieces of legislation relating to domestic violence it enacted into

law between 1995 and 2009. (Report at 54)

7
 In light of these considerations, among others, the Select Committee recommended that

Monserrate be sanctioned by the full Senate, and that the Senate consider one of two

punishments: expulsion or censure with revocation of privileges. Report at 53. The Report was

released on January 14, 2010, and posted on the Senate website that day; the transcripts of all

proceedings of the Committee, including those conducted in Executive Session, were posted on

the Senate website on January 19, 2010.

D. Monserrate Failed to Cooperate with the Committee

The decision of the Select Committee reflected a consensus of its members, but was

made without the cooperation of Monserrate. Despite many entreaties, Monserrate steadfastly

refused to assist the Committee. For instance, the Select Committee requested that Monserrate

provide copies of all materials provided to defense counsel by the Queens District Attorney’s

Office in connection with Monserrate’s criminal case. See Alonso Dec., Exh. C. However

Monserrate refused, and indicated that he would not cooperate with the investigation. Id., Exh.

E. The Select Committee then sought copies of all exhibits introduced into evidence by

Monserrate at his criminal trial, so that it could provide a complete record to its members. Id.,

Exh. F. Monserrate responded by asserting that the Legislature was without authority to act,

that the Senate Resolution unfairly had accused him of domestic violence, and that he was being

unfairly targeted in retaliation for having engaged in speech protected by the First Amendment

(when he voted to form a coalition government on June 8, 2009). Id., Exh. G. Monserrate

recommended that if the Select Committee did not disband and instead remained intent on

continuing the investigative process, that it order and review the transcript of Monserrate’s

criminal trial, a request with which the Committee complied. Id.

8
E. The Select Committee Provided Monserrate with Notice of the Charges Against Him and
the Opportunity to be Heard

As Monserrate has stated, the Committee did not have before it the testimony of two key

people: Monserrate and his domestic companion. Aponte Dec., Exh. 6 at 17. However, that

was of their choosing. The Committee offered each an opportunity to present testimony and

evidence. Each chose not to cooperate with the Select Committee. (Alonso Dec., ¶¶ 27-32,

Exhs. K, O, P)

Despite Monserrate’s refusal to cooperate, the Committee continuously made him aware

of when it was meeting, and Monserrate was invited to testify in accordance with Senate

Resolution No. 3409, which directed the Committee to provide Monserrate and his counsel “with

notice of all public committee proceedings, as well as ensuring opportunities for Senator

Monserrate to be heard …” Alonso Dec. Exh A; D, F, I, and J. In addition, on November 11,

2009, the Select Committee provided Monserrate with the same briefing materials that were

provided to each of its members.

Monserrate also was on notice as to the specific charges against him and the grounds for

the imposition of possible sanctions, including his ultimate expulsion from the Senate. Senate

Resolution 03409, adopted on November 9, 2009, provided for “a Select Committee of the

Senate to investigate the facts and circumstances surrounding the conviction of Senator Hiram

Monserrate on October 15, 2009.” The Resolution unambiguously stated that “[t]he seriousness

of these domestic violence charges and the circumstances surrounding them warrant further

investigation by the Senate, and may warrant the imposition of sanctions by the Senate.” Id.

(emphasis added).

Significantly, the notice afforded notice to Monserrate was fully consistent with New

York Civil Rights Law § 73(3). This section, entitled "Code of fair procedure for investigating

9
agencies," provides many procedural safeguards for those appearing before an investigative body

such as the Select Committee. The Select Committee complied with each of its obligations

under § 73. The Select Committee explicitly informed Monserrate that he could testify or

present arguments or evidence through oral presentation by counsel, or submit arguments or

present evidence in writing. Alonso Dec. ¶¶ 27-30. It offered Monserrate the opportunity to

propose questions in advance that the Select Committee could ask. Alonso Dec., Exh. J. Special

Counsel to the Select Committee further advised Monserrate to consider addressing concerns

voiced by the court at his criminal trial that Monserrate’s political reputation may have factored

into his disregard for his companion’s health. Alonzo Dec., ¶ 30.

On December 8, 2009, Chad Siegel, Esq., Counsel to Monserrate, communicated to the

Select Committee that Monserrate was "not going to take part in the process in terms of

presenting and evidence or arguments." Mr. Siegel suggested that the Committee rely on the

transcripts of the trial and the summation of Joseph Tacopina, Monserrate's criminal counsel.

Alonzo Dec., ¶ 31 and Exh K thereto. Because Monserrate refused to testify before the

Committee, the only statements available were his public statements and interviews with the

media, in which he refuted the charges and the characterization of his conduct.

F. Monserrate Was Well Aware That a Consequence of the Investigation Could be

Expulsion

As set forth above, Monserrate, through his attorneys, challenged the Committee’s

authority from its inception. Specifically, on November 9, 2009, they questioned the authority of

the Legislature to expel a member, citing a portion of a 1987 report issued by the Assembly

regarding misconduct by Assemblywoman Gerdi E. Lipschutz. Alonso Dec., Exh. E. Special

Counsel to the Committee responded on November 11, 2009, citing Legislative Law §3, which

10
states in its entirety: “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.” Alonso Dec., Exh. F.

By letter dated November 13, 2009, counsel continued promoting their position that the

Legislature was without authority to expel by virtue of law and practice. Alonso Dec., Exh. G.

Therefore, there can be no question that prior to the issuance of the Report and prior to the vote

to expel him Monserrate was well aware that expulsion was within the range of potential

sanctions available to the Senate to respond to a member's misconduct.

G. Senate Action to Expel

On February 9, 2010, by a unanimous voice vote, the Senate adopted the Committee’s

Report. Immediately following this vote, the resolution to expel was adopted by a vote of 53 to 8. 2

H. Governor Paterson’s Order for a Special Election for the 13th Senate District.

On February 10, 2010, Governor David A. Paterson ordered a special election to be held

on March 16, 2009, to promptly fill the unexpired term of Monserrate. By letters dated February

10, 2010, the Counsel to the Governor notified the New York State Board of Elections, the New

York City Board of Elections, and the Secretary of State, so that each could immediately

exercise their respective responsibilities in connection with the special election. Governor

Paterson's proclamation triggered an expedited schedule to comply with the requirements of the

Election Law. See Election Law, §§ 6-158, 10-108, 116.

Preliminary Injunction Standard

Plaintiffs have failed to make the showing necessary to nullify an action by a house of the

Legislature of the State of New York. A preliminary injunction is “an extraordinary and drastic

2
Monserrate is no longer on the Senate payroll; however, the Senate has continued the
employment of his staff serving the 13th Senate District in both the district office and in Albany.
Aponte Dec. at ¶20.

11
remedy . . . that should not be granted unless the movant, by a clear showing, carries the burden

of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); Moore v. Consol. Edison Co.

of N.Y. Inc., 409 F.3d 506, 510 (2d Cir. 2005). Ordinarily, a party seeking a preliminary

injunction must show: (1) irreparable harm in the absence of the injunction; (2) either a

likelihood of success on the merits or sufficiently serious questions going to the merits to make

them a fair ground for litigation; and (3) a balance of hardships tipping decidedly in the movant's

favor. Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-14 (2d Cir.2006);

Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004). But where, as here, a party

seeks a “mandatory” injunction – that is, an injunction that will alter rather than maintain the

status quo – he or she must meet the more rigorous standard of demonstrating a “clear” or

“substantial” likelihood of success on the merits. Almontaser v. New York City Dept. of Educ.

519 F.3d 505, 508 2d Cir. 2008); Sunward Elecs., 362 F.3d at 24-25; Jolly v. Coughlin, 76 F.3d

468, 473 (2d Cir. 1996); Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d

Cir.1995). Likewise, a party seeking a preliminary injunction that will affect government action

taken in the public interest pursuant to a statutory or regulatory scheme must meet the more

rigorous "substantial likelihood of success on the merits" standard. County of Nassau v. Leavitt,

524 F.3d 408, 414 (2d Cir. 2008); Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175

F.3d 144, 149 (2d Cir. 1999).

In the instant case, this Court should apply the heightened standard applicable to

mandatory injunctions because Plaintiffs are not seeking to preserve the status quo, but rather to

have the Court by judicial decree anoint Monserrate, who already has been expelled from the

Senate, as a Senator. Plaintiffs also ask this Court to cancel a special election that by

gubernatorial proclamation has been scheduled to take place on March 16, 2010. Notably, it has

12
been held that a party seeking to enjoin action by the State=s duly elected Senate – and thereby

annul a determination made by that legislative body – must demonstrate a substantial likelihood

of success on the merits. Ward v. New York, 291 F. Supp. 2d 188, 196 (W.D.N.Y. 2003). See

also, Harrison and Burrowes Bridge Constructors, Inc. v. Cuomo, 743 F. Supp. 977, 995

(N.D.N.Y. 1990) (holding that greater showing is required where injunction will change the

positions of the parties as it existed prior to the grant, provide the movant with essentially all the

relief he seeks or, adversely impact upon the public interest).

Additionally, in expelling Monserrate the Senate undeniably was acting in furtherance of

the public interest and in an effort to preserve its integrity as a legislative body. Consequently,

the higher burden of persuasion applicable to mandatory injunctions should apply. Winter v.

Natural Resources Defense Council, Inc., – U.S. ----, 129 S. Ct. 365, 374 (2008). While the

Second Circuit appears not to have addressed the effect of Winter, district courts have found that

Winter may establish this requirement generally. See, e.g., Bellamy v. Mount Vernon Hosp., 07

Civ. 1801, 2009 WL 1835939, * 5, n. 84 (S.D.N.Y. June 26, 2009); Fox Ins. Co. v. Envision

Pharmaceutical Holdings, Inc., CV-09-0237, 2009 WL 790312, at * 5 (E.D.N.Y. Mar. 23,

2009).

Irrespective of the standard that the Court elects to apply, however, the result should be

the same: Plaintiffs simply have not established, and cannot establish, that they are entitled to

preliminary injunctive relief.

13
 Argument

I.
Plaintiffs Are Not Entitled To Injunctive Relief
Because They Are Not Likely To Succeed on the Merits

A. Plaintiffs' Federal Constitutional Claims Lack Merit

1. Plaintiffs’ Claims of Voter Disenfranchisement Are Meritless

The Plaintiffs other than Monserrate have demonstrated no likelihood of success on the

merits with respect to their first and sixth causes of action alleging that the Senate’s expulsion of

Monserrate violated their voting rights under the federal and state constitutions. See Cplt., ¶¶ 28-

29 (first cause of action alleging a violation of “the First and Fourteenth Amendments of the

Constitution of the United States”), and ¶¶ 55-57 (sixth cause of action alleging violations of

N.Y. Const. Art. 1, §§ 8, 11 - New York’s speech and equal protection provisions). The

Complaint’s allegations improperly conflate the “right to vote” with an alleged “right” – not

recognized in federal or state voting rights jurisprudence – to vote for or be represented by a

specific individual.

Furthermore, because there is no constitutional right to vote for, or be represented by, any

particular individual, the Senate’s expulsion of Monserrate cannot have “violated the voting

rights of the plaintiffs . . . by infringing upon their right to vote for the person of their choice,” as

is also alleged in Plaintiffs’ first cause of action at ¶ 29 of the Complaint. See Burdick v.

Takushi, 504 U.S. 428, 436-39 (1992) (upholding Hawaii’s ban on write-in voting), aff’g, 937

F.2d 415, 473-74 (9th Cir. 1991) (voter “does not have a fundamental right to vote for any

particular candidate; he [or she] is simply guaranteed an equal voice in the election of those who

govern.” (emphasis added)). Since voters do not have a recognized constitutional right to be

represented by any specific person, under no state of facts or legal theory have Plaintiffs been

disenfranchised under the federal or state constitutions.

14
 The same analysis applies to Plaintiffs’ claims under the New York Constitution, see

Cplt. ¶¶ 55-57 (sixth cause of action), because the provisions of the New York Constitution are

mainly subject to the same jurisprudence as federal constitutional claims. The same analysis

therefore, applies to the First Amendment and the speech clause of N.Y. Const. Art. I, § 8.

Anemone v. Metropolitan Transp. Authority, 410 F.Supp.2d 255, 268 (S.D.N.Y. 2006).

Similarly, “[t]he breadth of coverage under the equal protection clauses of the federal and state

constitutions is equal.” Pinnacle Nursing Home v. Axelrod, 928 F.2d 1306, 1317 (2d Cir. 1991).

Not only do Plaintiffs fail to cite any authority to the contrary, but they cite no authority at all in

support of their state law claims with respect to voters’ rights.

Finally, term limits jurisprudence completely fails to support Plaintiffs’ notion that they

have a constitutional entitlement to representation by any particular individual such as

Monserrate. See Plaintiffs' Memorandum of Law ("Pltfs' Memo") at 11, 12, 14, (citing United

States Term Limits v. Thornton, 534 U.S. 779, 794, 820-21 (1995). Thornton did not hold that

voters are constitutionally entitled to a favorite legislator as Plaintiffs imply. Rather, the Supreme

Court there invalidated an amendment to the Arkansas State Constitution purporting to term limit

the state’s members of the United States House of Representatives, plainly in violation of Article

1, § 2 of the United States Constitution. Id. at 783. In no sense does Thornton, or any other term

limits case, support an argument that elected officials attain a constitutionally-protected sinecure.

2. Plaintiffs’ Equal Protection Claim Is Without Basis in Law

To the extent that Plaintiffs claim that voters of the 13th Senate District are denied equal

protection and/or unconstitutionally “disenfranchised” for being temporarily without an elected

representative in the State Senate, such claims are without merit and have no likelihood of

15
success. Vacancies in a 212-member legislative body often occur for many different reasons.

Indeed, four special elections for the Legislature were conducted last week on February 9, 2010. 3

Temporary vacancies do not implicate voters’ constitutional rights. Rodriguez v. Popular

Democratic Party, 457 U.S. 1, 10, n. 10 (1982) (“A vacancy in the legislature is an unexpected,

unpredictable event, and a statute providing that all such vacancies be filled by appointment does

not have a special impact on any discrete group of voters or candidates.”). In Valenti v.

Rockefeller, 393 U.S. 405 (1969), the Supreme Court sustained the authority of the New York

Governor to fill by appointment a vacancy in office of United States Senator that had lasted for

twenty-nine months – a period far longer than the twenty-nine days at issue here. By Plaintiffs’

flawed logic, the voters of the entire state of New York were “disenfranchised” for over two

years – but, in affirming a direct appeal from a three-judge court, the Supreme Court in Valenti

flatly disagreed.

By reason of the foregoing, there is no plausible claim that a temporary vacancy has

worked to deny any plaintiff the equal protection of the law or any other constitutional right. See

Hayden v. Paterson, ___ F.3d ___, 2010 WL 308897 (2d Cir. Jan. 28, 2010) (confirming that in

voting cases, as well as others, Plaintiffs’ allegations must “plausibly give rise to an entitlement

to relief” as prescribed by the Supreme Court in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937,

1950 (May 18, 2009)).

B. Plaintiffs' Due Process Claims are Baseless

The United States Supreme Court has clearly held that “an unlawful denial by state action

of a right to state political office is not a denial of a right of property or of liberty secured by the

3
See, e.g., “NY Voters Fill Four Assembly Seats,” Associated Press, Feb. 9, 2010
(http://www.cbs6albany.com/news/assembly-1270969-democrat-republican.html); see also,
Aponte Dec., ¶ 20 (the Senate has continued the employment of Monserrate's staff serving the
13th Senate District in both the district office and Albany).

16
due process clause.” Snowden v. Hughes, 321 U.S. 1, 7 (U.S. 1944) (citing Taylor and Marshall

v. Beckham, 178 U.S. 548 (1900); Cave v. State of Missouri ex rel. Newell, 246 U.S. 650, (1918)).

See also Bryan v. Liburd, 1996 WL 785997, **6-7 (Terr.V.I. 1996)). Thus, Monserrate did not

have any cognizable due process right to his Senate seat. Nonetheless, it is indisputable that

Monserrate was afforded “[t]he essential requirements of due process . . . notice and an

opportunity to respond,” and thus all of Plaintiffs' claims premised on alleged due process

violations must inevitably fail. See Cleveland Board of Education v. Loudermill, 470 U.S. 532,

546 (1985).

Monserrate was on notice as to the specific charges and the grounds for the imposition of

possible sanctions against him, including his expulsion from the Senate. Senate Resolution 3409

provided for a “Committee of the Senate to investigate the facts and circumstances surrounding

the conviction of Senator Hiram Monserrate on October 15, 2009.” Aponte Dec., Exh. B. The

Resolution unambiguously states that “[t]he seriousness of these domestic violence charges and

the circumstances surrounding them warrant further investigation by the Senate, and may

warrant the imposition of sanctions by the Senate.” Id. Monserrate was invited to appear before

the Select Committee in his own defense or, in the alternative, to have counsel present witnesses

and evidence on his behalf, but he refused. Alonso Dec., ¶¶ 27-30.

Moreover, Monserrate, through his attorneys, challenged the authority of the Select

Committee from its inception and questioned the authority of the Senate to expel a member.

Specifically, they referred the Committee to the Assembly Report regarding misconduct by

Assemblywoman Gerdi Lipschutz, where the Assembly said it lack authority to expel. On

November 11, 2009, Special Counsel to the Select Committee referred counsel to Monserrate to

Legislative Law §3, which states: “Each house has the power to expel any of its members, after

17
the report of a committee to inquire into the charges against him shall have been made.” Alonso

Dec., Exh. F. Counsel continued promoting their position in further correspondence suggesting

that the Legislature was without authority to expel by virtue of law and practice. Alonso Dec.,

Exh. G. Accordingly, all parties, including Monserrate, understood that expulsion was a possible

outcome of the Select Committee's investigation.

1. Monserrate Received All of the Process That Was Due To Him

Initially, Monserrate claims that he was denied “a hearing in which he could have had an

opportunity to present his case and to refute the allegations against him with the right to confront

and cross examine witnesses and to examine all the evidence against him.” Pltfs' Memo, at 31.

Of course, Monserrate was convicted after a criminal trial at which he was afforded the full

panoply of rights provided to every criminal defendant, including the opportunity to present his

case, refute the allegations against him, confront and cross-examine witnesses, and examine all

the evidence against him. See Resolution 3409, Aponte Dec., Exh. B; Report at 4 (noting that

“the Select Committee reviewed, among other things, the minutes of Senator Monserrate’s

criminal trial.”).

Moreover, Monserrate admittedly was offered a hearing: he and his counsel were

“extended an open invitation . . . to address the committee, whether in person or by written

submission” and afforded “the opportunity to be heard before the Select Committee.” Pltfs’

Memo, at 31. Indeed, pursuant to Civil Rights Law § 73(3), Monserrate was explicitly informed

that he could testify or present arguments or evidence through oral presentation by counsel, or

submit arguments or present evidence in writing. Alonso Dec., ¶¶ 27-32. The Select Committee

also offered Monserrate the opportunity to propose questions in advance that the Select

Committee could ask of witnesses. Id. Monserrate refused to avail himself of these

opportunities. See Senate Resolution 3691; see Select Report at 27.

18
 Where, as here, a plaintiff was afforded adequate process, he cannot be said to have been

“deprived of due process simply because he failed to avail himself of the opportunity.” Segal v.

City of New York, 459 F.3d 207, 218, n. 10 (2d Cir. 2006) (quoting Hellenic Am. Neighborhood

Action Comm. v. City of New York, 101 F.3d 877, 881 (2d Cir.1996)) (internal quotation marks

omitted in original). Significantly too, Monserrate did exercise his prerogative to speak before

the entire Senate on the Senate floor. See Aponte Dec., Exh. C at 7-19; The New York Times,

February 9, 2010, New York Senate Expels Monserrate Over Assault (“In a fiery speech to the

Senate just before the vote, Mr. Monserrate said he had been made a scapegoat, accused his

critics of exploiting an ‘ethical bully pulpit’ and called the process to expel him ‘the height of

arrogance.’ ‘The actions that I’ve committed,’ he said, ‘do not rise to the level of expulsion.’”). 4

Plaintiffs assert that Monserrate’s substantive due process rights were violated by his

expulsion from the Senate. Cplt., at ¶48. Though this claim is made in the Complaint, it is

unsupported in the Plaintiffs’ Memorandum of Law, perhaps because “the theory of substantive

due process is properly reserved for truly egregious and extraordinary cases.” Franzwa v. City of

Hackensack, 567 F.Supp.2d 1097, 1107 (D. Minn. 2008) (citations omitted). For an “action to

violate substantive due process, it must be 'so egregious, so outrageous, that it may fairly be said

to shock the contemporary conscience'.” Bolmer v. Oliveira, 08-4113-CV, 2010 WL 424591, 7

(2d Cir. Feb. 8, 2010) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998).

An “[a]sserted denial [of substantive due process] is to be tested by an appraisal of the totality of

facts in a given case.” Id. (quoting County of Sacramento, 523 U.S. at 850).

4
The Select Report also notes that Monserrate appeared on NY1 on December 8, 2009 and
attempted to explain the actions that he took on December 19, 2008. See Select Report, at 27.
Thus, having declined the Committee’s invitation for an opportunity to clear his name,
Monserrate apparently elected to attempt to clear his name in a different forum.

19
 Within the context of the totality of facts of the instant case, it is inconceivable that the

contemporary conscience could be shocked by Monserrate’s expulsion from the Senate. As

stated above, Monserrate was convicted of recklessly causing physical injury to his girlfriend.

Pursuant to state law, a Select Committee investigated the matter and afforded Monserrate ample

chance to attempt to clear his name. The Committee performed an exhaustive review of the

applicable law, and of the proceedings of the criminal court and of Monserrate’s conduct, and

made its findings and proceedings known to the full body of the Senate. Having been given a

month to review the findings and proceedings of the Committee, the Senate voted to expel

Monserrate, and a special election was immediately arranged to fill the vacant Senate seat.

Plaintiffs insinuate that Monserrate should have been provided not only with a name-

clearing hearing, but with a full pre-expulsion evidentiary hearing. See Pltfs' Memo, at 31.

However, the Supreme Court has explicitly held that a pre-deprivation evidentiary hearing is not

required in the case of “the blacklisted government contractor, the discharged government

employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental

entitlements are ended,” and is only required where the “termination of aid pending resolution of

a controversy over eligibility may deprive an eligible recipient of the very means by which to

live while he waits.” Goldberg v. Kelly, 397 U.S. 254, 264, 268 (1970) (holding that welfare

recipient on proposed termination of public assistance payments must be allowed to state his

position and be given an opportunity to confront and cross-examine witnesses relied on by the

Department of Social Services); see Loudermill, 470 U.S. at 545 (“In only one case, Goldberg [],

has the Court required a full adversarial evidentiary hearing prior to adverse governmental

action. However, as the Goldberg Court itself pointed out, see Id., at 264, that case presented

significantly different considerations than are present in the context of public employment.”)

20
(citations in original). 5 Moreover, Monserrate declined the Committee’s repeated invitations to

participate in its hearings and thus cannot plausibly claim that any Defendant here interfered with

his ability to clear his name.

2. Monserrate Has Not Pleaded, and Cannot Prove, a Cognizable "Stigma-Plus" Due
Process Claim

Plaintiffs claim that Monserrate “endured a string of stigmatizing statements” in the

media, and assert that these statements – that Monserrate was called “a domestic abuser,

incredulous, and unfit to serve” – coupled with his expulsion from the Senate allegedly without

being afforded an opportunity to contest the charges against him or examine witnesses, somehow

violated his due process rights. Id., at 26-27. See also, Cplt., ¶¶ 30-34. To prevail on such a

“stigma-plus” claim, a plaintiff is required to plead and prove an “injury to [his] reputation (the

stigma) coupled with the deprivation of some ‘tangible interest’ or property right (the plus),

without adequate process.” 6 Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006)

(quoting DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003)). 7

5
Plaintiffs’ reliance on McCarley v. Sanders, is misguided because McCarley was decided prior
to Goldberg, which conclusively foreclosed any claim to a right to cross-examination. Compare
McCarley, 309 F.Supp. 8 (D.C.Ala. 1970) (decided January 27, 1970); Goldberg, 397 U.S. 254
(1970) (decided March 23, 1970). Thus, McCarley does not control the question of what process
was due and Plaintiffs could not prevail even in the event that it did because here, unlike in
McCarley, Monserrate: (a) was on notice that he faced possible sanctions including expulsion,
(b) refused to participate in the committee hearings, (c) has not identified any witness whom he
requested to cross-examine or whose cross-examination would have changed the outcome of the
report or of the expulsion vote, (d) had the opportunity to cross-examine witnesses and present
evidence at his criminal trial, the transcript of which was relied on by the Select Committee, and
(e) was expelled after the full Senate was given an opportunity to review the Select Report.
Further, McCarley was explicitly told that he was not being charged with wrongdoing and was
not allowed to be present during the testimony of any witnesses. McCarley, at 8, 10. The
investigating committee in McCarley convened secretly, its report consisted of only five pages,
and the transcripts of its proceedings were not provided to the full Senate. Id., at 11-12.
6
Injury to one's reputation, without more, does not amount to the deprivation of a protectible
liberty interest under the Fourteenth Amendment. See Siegert v. Gilley, 500 U.S. 226, 233

21
 The Second Circuit also has held that the “stigma” relevant to a “stigma-plus” claim

brought by a high-ranking state official is dispelled by the provision of a pre-deprivation hearing

whereby the official is given an opportunity to clear his name. Velez v. Levy, 401 F.3d 75, 90-92

(2d Cir. 2005) (citing DiBlasio v. Novello, 344 F.3d 292 (2d Cir.2003); see also Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 573, N. 12 (1972) (“The purpose of such notice

and hearing is to provide the person an opportunity to clear his name”).

Given Monserrate’s widely-publicized criminal conviction, the ubiquity of the security

camera footage showing his criminal behavior, the Family Offense Order of Protection that was

entered against him, and the domestic abuse counseling he was directed to participate in as part

of his sentence (see Report at 12-14), Monserrate cannot validly assert that any Senator's uttered

statements could have stigmatized him. To be sure, Monserrate’s infamy resulted from his own

conduct, 8 his conviction, and all of the attendant publicity surrounding his trial. Stated simply,

none of the Defendants made statements that could have further undermined Monserrate’s ability

to pursue his chosen profession. See Roth, 408 U.S. at 573 (1972) (ruling that the plaintiff’s

liberty interest was not infringed where the defendants “did not make any charge against him that

might seriously damage his standing and associations in his community”). Monserrate’s

(1991); Paul v. Davis, 424 U.S. 693, 701, (1976); Walentas v. Lipper, 862 F.2d 414, 420 (2d
Cir.1988).
7
A stigma-plus plaintiff must also “show that the stigmatizing statements were made
concurrently with, or in close temporal relationship to, the plaintiff’s dismissal from government
employment.” Segal, 459 F.3d at 212 (citing Velez v. Levy, 401 F.3d 75, 89 (2d Cir. 2005);
Patterson v. City of Utica, 370 F.3d 322, 335 (2d Cir. 2004)).
8
In light of his criminal conviction, Monserrate should be collaterally estopped from asserting
that he did not recklessly cause physical injury to his domestic companion. See, e.g., Marinaccio
v. Boardman, 02 CV 831, 2005 WL 928631, *11-12 (N.D.N.Y., Apr. 19, 2005) (Plaintiff's plea
of guilty to charge of disorderly conduct precluded him from assertion that his conduct was not
intentional, or at least reckless).

22
conclusory allegation that he was stigmatized therefore cannot give rise to a plausible stigma-

plus claim. Piccoli v. Yonkers Bd. of Educ. 08-CV-8344, 2009 WL 4794130, 4 (S.D.N.Y. Dec.

11, 2009). See also, Ashcroft v. Iqbal, 129 S. Ct. at 1950 (“a complaint must contain sufficient

factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”).

Further, no stigma-plus claim lies where the substantial truth of allegedly stigmatizing

statements cannot be contested. Codd v. Velger, 429 U.S. 624, 628-29 (1977); Smith v. Lehman,

689 F.2d 342, 346 (2d Cir. 1982); Flood v. County of Suffolk, 820 F. Supp. 709, 715 (E.D.N.Y.

1993). Monserrate cannot dispute that he was convicted of recklessly causing physical injury to

another person, that a Family Offense Order of Protection was entered against him, and that as

part of the sentence imposed against him, he was ordered to undergo domestic abuse counseling.

Statements regarding Monserrate’s personal integrity, moral standing or fitness to hold office,

cannot be proved false because they are subjective matters of opinion. Wiese v. Kelley, 08-CV-

6348, 2009 WL 2902513, 6 (S.D.N.Y., Sept. 10, 2009) (citing Blackburn v. City of Marshall, 42.

F.3d 925, 936 (5th Cir. 1995) (“a statement of opinion . . . is not actionable as a stigmatizing

remark”).

Plaintiffs also fail to establish a nexus between the so-called “stigma” and the “plus”; it is

not sufficient to merely allege that the two co-exist. “Where the ‘stigma’ and the ‘plus’ originate

with different actors, it is possible that ‘for any number of reasons . . . one or more defendants

whose actions collectively implicate a liberty interest may not be liable for the deprivation of that

liberty interest.’” Anemone v. Metropolitan Transp. Authority, 410 F.Supp.2d 255, 269

(S.D.N.Y. 2006) (quoting Velez, 401 F.3d at 89 n. 12). Plaintiffs cannot sustain this burden

because the allegedly stigmatizing statements at issue were purportedly made “by various

Senators in the media,” while his expulsion – the “plus” – required the vote of the full Senate.

23
However, the Senate is not a proper party to this action as it undoubtedly is entitled to Eleventh

Amendment immunity, and in any event is not a “person” subject to suit under § 1983. 9 Since

not one of the “various Senators” who uttered allegedly stigmatizing remarks possessed the

ability to expel Monserrate from the Senate, Plaintiffs cannot establish the necessary nexus

between the any stigmatizing statements and the expulsion from the Senate.

3. Legislative Law § 3 Is Not Unconstitutionally Vague

In their Fifth Cause of Action, Plaintiffs claim that New York Legislative Law § 3

violates due process because it is vague as it does not articulate standards or grounds for

expulsion of a New York State Senator. Cplt., ¶¶ 53-54. 10 The void-for-vagueness doctrine is,

at bottom, a due process concept implicating principles of fair warning and non-arbitrary

enforcement. Stated another way, requiring the government to articulate its laws with "a

reasonable degree of clarity" ensures that the government, while making "an authoritative choice

among competing social values, reduces the danger of caprice and discrimination in the

administration of the laws, [and] enables individuals to conform their conduct to the

requirements of law . . ." Roberts v. U.S. Jaycees, 468 U.S. 609, 629 (1984). Thus, a law may

be subject to a challenge for vagueness in two sets of circumstances: "First, if it fails to provide

people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.

Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v.

9
Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 71 (1989); see also Pennhurst State
School & Hospital v. Halderman, 465 U.S. 89, 100-01 (1984); Tornheim v. New York State
Senate, 115 Fed. Appx. 482, 483 (2d Cir. 2004).
10
While the Complaint makes passing mention of the New York State Constitution in its Fifth
Cause of Action, see Complt., ¶ 52, Plaintiffs' Memorandum of Law, pp. 18-26, as well as the
Complaint, ¶ 54, exclusively addresses Plaintiffs' vagueness and overbreadth arguments to the
U.S. Constitution's Fourteenth Amendment due process clause.

24
Colorado, 530 U.S. 703, 732 (2000) (citing Chicago v. Morales, 527 U.S. 41, 56-57 (1999)).

Neither circumstance is present here.

"From time immemorial it has been deemed the right of legislative bodies to expel

members thought unfit." Luce, Legislative Assemblies, 275 (1924). 11 Consistent with this long-

standing rule of law, § 3 provides that: "[e]ach 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."

Section 3 does not purport to set forth a standard to be applied with respect to expulsion; rather,

it merely sets forth the process to be followed. The expulsion standard found in New York law

emanates from the qualifications clause, N.Y. Const., art. III, § 9, and the inherent authority of a

legislature to remove a member because that member was found lacking in fitness or suitability

to serve. See, e.g., Report at 46 (citing the expulsion of a member of the New York Assembly in

1861 for "misconduct rendering him unworthy" of his seat); Hiss v. Bartlett, 3 Gray 468, 473

(1855) (stating that the "power of expulsion is a necessary and incidental power, to enable the

house to perform its high functions, and is necessary to the safety of the State"; "[i]t is a power of

protection" to expel any member who is "wholly unfit"); French v. Senate of State of Cal., 146

Cal. 604, 606 (Cal. 1905) ("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").

New York's standard of fitness for office is not unconstitutionally vague. In fact, when

the Supreme Court examined the New York attorney admissions' requirement that all applicants

for the bar must posses "character and general fitness," it had "no difficulty" in finding that this

11
Cited in The Legislature's Power to Judge the Qualification of its Members, Vol. 19 Vand. L.
R. 1410, 1411 (1966).

25
standard was not unconstitutionally vague because the court determined that unfitness

encompassed "no more than dishonorable conduct relevant to the legal profession." Law

Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159 (1971) (omits

internal quotations).

Since statutes (much less inherent legislative powers) can rarely "possess the precision of

mathematical symbols," and since a legislature "must deal with untold and unforeseen variations

in factual situations," there is an "inevitabl[e] limit [to] the specificity with which legislators can

spell out prohibitions." Boyce Motor Lines v. U.S., 342 U.S. 337, 340 (1952). Consequently, the

Supreme Court has held that it is not "unfair to require that one who deliberately goes perilously

close to an area of proscribed conduct shall take the risk that he may cross the line." Id.

At a bare minimum, this Court can conclude that Monserrate went far too "perilously

close to an area of proscribed conduct" that established his "unfitness" for office. Indeed, to be

guilty of Assault in the Third Degree one must "recklessly cause[] physical injury to another

person," Penal Law § 120.00(2), which, in turn, requires that one act in a way that is a "gross

deviation from the standard of conduct that a reasonable person would observe in the situation."

Penal Law § 15.05(3) (emphasis added). Based upon the behavior that led to this conviction, and

the fact that it constituted domestic violence unacceptable to the legislative body, the Senate

reasonably determined that Monserrate crossed the line and engaged in reprehensible conduct

that cannot be tolerated of any New York legislator, conduct which rendered him unfit to serve

as a Senator. "[E]ven if the outermost boundaries" of the qualifications to serve "may be

imprecise," any such uncertainty has little relevance here, where Monserrate's "conduct [fell]

squarely within the 'hard core,'" Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973), of what a

legislative body can determine is grounds for expulsion.

26
 In an effort to obfuscate the fact that his conduct clearly falls within the "hard core" of

conduct that would form the legitimate basis for his expulsion, Monserrate makes the outlandish

claim that allowing § 3 "to stand is to roll-back the progress [of the Civil Rights movement], and

[would] say to the registered qualified voters of New York that their votes can, and will be,

nullified." Pltfs' Memo, p. 20. While this claim is absurd on its face, "speculation about possible

vagueness in hypothetical situations not before the Court will not support a facial attack on a

statute when it is surely valid 'in the vast majority of its intended applications.'" Hill v.

Colorado, 530 U.S. 703, 733 (2000) (quoting United States v. Raines, 362 U.S. 17, 23 (1960)).

Manifestly, the Court in this action has not been called upon to address the expulsion of a

Senator for discriminatory or constitutionally impermissible reasons. Rather, this action involves

the Senate's expulsion of a member who, after being elected but before being sworn into office,

engaged in an abhorrent act of domestic violence that ultimately resulted in his criminal

conviction. It was that reasonable, non-arbitrary, and non-discriminatory action that is the issue;

not Plaintiffs' absurd and inflammatory argument about the possible future "roll back" of the civil

rights movement. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (“complaints relying on

the civil rights statutes are insufficient unless they contain some specific allegations of fact

indicating a deprivation of rights, instead of a litany of general conclusions that shock but have

no meaning”).

For these reasons, Plaintiffs have failed to meet their burden of establishing that § 3 is

unconstitutionally vague.

C. Plaintiffs' First Amendment Claims are Equally Unavailing.

Plaintiffs assert that Monserrate's rights under the First Amendment were violated

because (i) Legislative Law § 3 is overly broad, and (ii) he was expelled from the Senate in

retaliation for participating in a "parliamentary coup" and for commenting to the media that the

27
Select Committee was "unfair and constitutionally defective." Cplt, ¶¶ 36-44; Pltfs' Memo. at

23-26, 32-33; Monserrate Dec., ¶ 37. Both of these First Amendment Claims are meritless.

1. Plaintiffs' "Overbreadth" Claim is Unavailing

Plaintiffs' "overbreadth" claim is unavailing for the simple reason that Bond v. Floyd, 385

U.S. 116 (1966) makes it a legal impossibility to exclude (or, by analogy, expel) a Senator based

purely upon his protected speech. Therefore, logically, the sweep of Legislative Law § 3 cannot

envelop First Amendment protected activity.

"Overbreadth," a "judicially created doctrine" designed to prevent the chilling of

protected expression, "has wide-ranging effects"; consequently, courts consider an overbreadth

finding to be "'manifestl[y] strong medicine' that is employed 'sparingly, and only as a last

resort.'" Massachusetts v. Oakes, 491 U.S. 576, 581, 584 (1989) (quoting Broadrick v.

Oklahoma, 413 U.S. at 613). There is no reason for this Court to apply such "strong medicine"

here, where the expulsion of Monserrate clearly was the result of his criminal conduct, and not of

any speech. Particularly where "conduct and not merely speech is involved," courts "believe that

the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the

statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. at 615 (omits citation).

Thus, this Court must find that it is plainly within the "legitimate sweep" of § 3 to expel a

member of the legislature who has been found guilty of a serious crime of domestic violence.

Further, "whatever overbreadth may exist" in § 3, it "should be cured through case-by-

case analysis," id., 413 U.S. at 615-16, not by jettisoning a critical statute that allows the New

York State legislature, as Justice Joseph Story stated long ago, to "guard its own rights and

privileges from infringement, to purify and vindicate its own character, and to preserve the

rights, and sustain the free choice of its own constituents." Story, Commentaries on the

Constitution § 416 (abr. ed. 1833).

28
 For these reasons, Plaintiffs simply cannot meet their burden of proof on this preliminary

injunction motion to establish that they have any likelihood of success in proving that § 3 is

unconstitutionally overbroad.

2. Plaintiffs' Free Speech Claims Are Legally Deficient

Citing Bond v. Floyd, Monserrate claims that his First Amendment rights 12 were violated

because he was allegedly expelled from the Senate as a result of his participation in a

"parliamentary coup," as well as for making "comments to the media" to the effect that the

Senate Select Committee was "unfair and constitutionally defective." Monserrate Dec., ¶ 37.

Thus, Monserrate asserts that the 53 Senators who voted to expel him did not do so for the

reasons made explicit in Resolution 3904 – his abhorrent domestic violence crime which

"brought disrepute on the Senate, and damaged the honor, dignity and integrity of the Senate."

Resolution 3904. Instead, Monserrate speculates that an illegal motive lurked beneath the

explicit motive. Since, however, in order to advance his free speech claims Monserrate would

have to pierce the veil of the Supreme Court's centuries-old doctrine of absolute legislative

immunity and inquire into the motivations for the vote of legislators, his freedom of speech

claims would have to be dismissed on a Rule 12(b)(6) motion.

State legislators are entitled to "absolute immunity from liability under . . . § 1983 for

their legislative activities." Bogan v. Scott Harris, 523 U.S. 44, 49 (1998); see also Consumers

Union v. Supreme Court of Virginia, 446 U.S. 719 (1980). This absolute immunity enables

legislators to be free not only from "the consequences of litigation's results but also from the

burden of defending themselves." Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (emphasis

12
The State Constitution claims at issue here are subject to the same standards as the First
Amendment claims. Martinez v. Sanders, 307 Fed.Appx. 467, 468 n.2 (2d Cir. 2008); Anemone
v. Metropolitan Transp. Auth. 410 F.Supp.2d 255, 268 (S.D.N.Y. 2006).

29
added). Thus, legislative immunity protects a State Senator from having to face a trial "if the act

in question was undertaken in the sphere of legitimate legislative activity." Almonte v. City of

Long Beach, 478 F.3d 100, 106 (2d Cir. 2007) (internal citations omitted).

Legitimate legislative activity encompasses much of the work of the legislative process,

including voting on resolutions. In fact, "[t]his Circuit has recognized that 'the act of voting is

'quintessentially legislative.''" Zdziebloski v. Town of E. Greenbush, 336 F. Supp. 2d 194, 203

(N.D.N.Y. 2004) (citing Morris v. Lindau, 196 F.3d 102, 111 (2d Cir. 1999) (quoting Bogan, 523

U.S. at 55). In Almonte, the Second Circuit explained that the sphere of legislative activity

protected by absolute immunity goes well beyond just participating in a committee hearing or

casting a vote on a resolution; it even covers "alliances struck regarding a legislative matter" and

attending "meetings [that] are politically motivated, or conducted behind closed doors." Id., at

107 (quoting Tenney v. Brandhove, 341 U.S. 367, 377 (1951)).

The Senate defendants clearly were within the realm of legitimate legislative activity

when taking or participating in all actions related to the Senate Select Committee, as well as in

passing Resolution 3904. See, e.g., Larsen v. Senate of Com. of Pa., 152 F.3d 240, 251-52 (3d

Cir. 1998), cert. denied, 525 U.S. 1145 (1999) (the role legislators play in impeachment

proceedings is "within the sphere of legitimate legislative activity" entitling them to absolute

legislative immunity and preventing them from being "'questioned in any other place'") (citing

U.S. Const. art. I, § 7, cl. 1); see also N.Y. Const., art. 3, § 11 ("For any speech or debate in

either house of the legislature, the members shall not be questioned in any other place."); Rivera

v. Espada, 98 N.Y. 2d 422, 428 (2002) ("A legislator is . . . afforded immunity from any

proceeding challenging lawful action taken in his or her official capacity"); People v. Ohrenstein,

30
77 N.Y.2d 38, 53-54 (1990) (determining that the Speech or Debate Clause confers immunity on

members of the Legislature for legislative acts).

Monserrate's conclusory allegations that the Senate defendants had an illegal motive to

expel him does not undermine the protection afforded by legislative immunity, since a "claim of

an unworthy purpose does not destroy the [legislative] privilege." Tenney v. Brandhove, 341

U.S. at 377. "Whether an act is legislative turns on the nature of the act, rather than on the

motive or intent of the official performing it." Bogan, at 54 (emphasis added). Thus, the

motivation of the Senate defendants in passing Resolution 3904 is completely irrelevant to the

application of the absolute legislative immunity doctrine here.

Plaintiffs may point to Bond v. Floyd, and argue that since that case went forward, the

absolute legislative immunity doctrine cannot apply. But in Bond, the legislators' motive in

excluding Bond from the Georgia House was undisputed: it was overtly because of statements

that he made and endorsed about the Vietnam War. Bond, 285 U.S. at 118-136. Because there

was no dispute concerning what the motivation was for the legislators' actions in Bond, the

Supreme Court never addressed the issue of the legislators' absolute immunity from "the burden

of defending themselves", Dombrowski v. Eastland, 387 U.S. at 85 (emphasis added), in

discovery and at trial. But, if this case were permitted to go to trial, the motivation underlying

the vote of the 53 Senators would be hotly contested, exposing them to the very sort of litigation

burdens that would impede "the uninhibited discharge of [the Senators'] legislative dut[ies]."

Tenney v. Brandhove, 341 U.S. at 377.

Powell v. McCormack, 395 U.S. 486 (1969), which was decided three years after Bond, is

consistent with the broad application of absolute immunity. There, the Supreme Court squarely

addressed the doctrine and held that:

31
 [t]he purpose of the protection afforded legislators is not to forestall judicial
review of legislative action but to insure that legislators are not distracted from
or hindered in the performance of their legislative tasks by being called into court
to defend their actions. . . . Freedom of legislative activity and the purposes of the
Speech or Debate Clause are fully protected if legislators are relieved of the
burden of defending themselves.

Id., 395 U.S. at 505 (emphasis added). Consequently, the Supreme Court held that the action

could be dismissed against the Congressmen, while allowing the case to go forward only against

the U.S. House of Representatives' employees. Id., at 506; see also id., at fn. 26. Since, in the

instant case, there are no freedom of speech claims against anyone other than the Senators, see

Cplt., ¶¶ 35-44, 58-65, these claims necessarily must fail on the grounds of absolute legislative

immunity. Powell, 395 U.S. at 505.

Even putting aside legislative immunity, there is an additional evidentiary reason why

Monserrate cannot succeed on his claim for injunctive relief. He has not presented the Court

with any admissible evidence to support his retaliation claim, only conjecture based on what he

says "several" Senators told him. Monserrate Dec., ¶ 7. See In re Moody's Corp. Securities

Litigation, 599 F.Supp.2d 493, 503 (S.D.N.Y. 2009) ("materials properly before the court must

provide grounds for more than mere speculation or suspicion that a plaintiff is entitled to the

requested relief").

Monserrate's First Amendment retaliation claim fails for three other reasons that will be

summarily addressed. First, in a recent decision, the Supreme Court made clear that even a

defendant's "spiteful heart" cannot form the basis for a retaliation claim brought by an

"outspoken critic" of the defendant when there is proof that a "legitimate" independent ground

existed for a discharge. Wilkie v. Robbins, 551 U.S. 537, 558 n.10 (2007) (citing Mt. Healthy

City Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)). The circumstances surrounding

Monserrate's conviction surely presented the Senate with just such a "legitimate" reason for

32
action here. See Holmes v. Poskanzer, 342 Fed.Appx. 651, 653 (2d Cir. July 21, 2009) (plaintiff

disciplined after suffering conviction for harassment could not "show that retaliation was the but-

for cause of the discharge").

Second, to the extent that Monserrate faults the Select Committee for citing two media

interviews that he gave regarding the domestic violence incident, the Select Committee merely

cited those interviews to give his "side of the story," and to show that Monserrate failed to accept

responsibility for his misconduct. See Report at 30, 54. Plainly, this was not improper.

Compare, Geraci v. Senkowski, 23 F. Supp.2d 246, 267-68 (E.D.N.Y. 1998), aff'd, 211 F.3d 6

(2d Cir.), cert. denied, 531 U.S. 1018 (2000) ("[a] sentencing judge may properly consider a

defendant's remorse, or lack thereof, in determining a sentence" without there being a

constitutional violation).

Finally, Monserrate made a "formal judicial admission" 13 in his Declaration: "As a

public official and a citizen I have both a First Amendment duty and right to publicly comment

on the affairs of the Senate and that governmental body cannot use the substance of my criticism

and the fact that I expressed it publicly against me in these proceedings." Id. (emphasis added).

However, in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) the Supreme Court made clear that

"when public employees make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline." Monserrate's involvement in the "parliamentary

13
See Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 122 (2d Cir.1990) ("[A] formal
judicial admission is conclusive against [a party throughout an] action."); A. Brod, Inc. v. SK & I
Co., L.L.C., 998 F.Supp. 314, 324 (S.D.N.Y. 1998) (a declaration can also be "viewed as a
judicial admission").

33
coup" undoubtedly involved "speech" made "'pursuant to' his official duties because it was 'part-

and-parcel of his concerns' about his ability to 'properly execute his duties.'" Weintraub v. Board

of Educ. of City School Dist. of City of New York, 07-CV-2376, 2010 WL 292663, *6 (2d Cir.

Jan. 27, 2010) (quoting Williams v. Dallas Independent School Dist., 480 F.3d 689, 694 (5th

2007)). See also Tamayo v. Blagojevich, 526 F.3d 1074, 1092 (7th Cir. 2008) (dismissing claim

of "senior administrator of an agency" who "testified before a committee of the legislature

charged with oversight of the agency about allegedly improper political influence over that

agency" finding that the speech was "part of the duties of such an office"). Thus, under Garcetti,

Monserrate's First Amendment claims fail.

For these reasons, Monserrate cannot establish that he has a substantial likelihood of

success on the merits regarding his freedom of speech claims.

D. The Court Should Refrain From Encroaching In Important Matters of State and
Legislative Law.

Plaintiffs also allege that the Defendants violated the New York State Constitution and

the Legislative Law, and that they therefore are entitled to injunctive relief. These claims are not

properly before this Court, however, because federal courts have no authority to issue injunctions

against state officials based on a violation of state law. See Pennhurst State Sch. & Hosp. v.

Haldeman, 465 U.S. 89, 105 (1984); see also Bad Frog Brewery, Inc. v. New York State Liquor

Authority, 134 F.3d 87, 93-94 (2d Cir. 1998) (“[i]t is well settled that federal courts may not

grant declaratory or injunctive relief against a state agency based on violations of state law.”).

Furthermore, even if this Court could assert supplemental jurisdiction over the Plaintiffs’

state-law claims, it need not, and should not, do so. 14 A district court “may decline to exercise

14
Plaintiffs’ 42 U.S.C. § 1983 claims against the New York State Senate are barred because state
entities and officers acting in their official capacities are not “persons” under § 1983. Will v.

34
supplemental jurisdiction” over a claim that “raises a novel or complex issue of State law.” 28

U.S.C. § 1367(c)(1). It is particularly appropriate to decline supplemental jurisdiction over

important state-law issues such as the ones posed here, “concern[ing] the state’s interest in the

administration of its government.” Seabrook v. Jacobson, 153 F.3d 70, 72 (2d Cir. 1998). That

is both because “principles of federalism and comity may dictate that these questions be left for

decision by the state courts,” and because a federal court cannot offer an authoritative

interpretation of state law, but rather can make only “a tentative ruling that may be soon

displaced by a state adjudication.” Id. at 73.

Principles of federalism and comity strongly favor abstention rather than premature

adjudication of constitutional issues by a federal court. Under Railroad Commission v. Pullman

Co., 312 U.S. 496 (1941), “[t]he paradigm case for abstention arises when [a] challenged state

statute is susceptible of a construction by the state courts that would avoid or modify the

(federal) constitutional question.” Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 510-11

(1972) (citation and quotations omitted). These principles apply with particular force to

Plaintiffs’ claim that New York Legislative Law § 3 is void under the federal constitution, even

though Plaintiffs are unable to point to a single state court decision that has interpreted § 3 in the

way that Plaintiffs construe it. See Pltfs' Memo at 18-26; Cplt., at ¶¶ 51-54. As the Second

Circuit has observed:

Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989); Spencer v. Doe, 139 F.3d 107, 111 (2d
Cir. 1998). Moreover, the Eleventh Amendment bars § 1983 claims against a state, its agencies
and officers in their official capacities for alleged violations of federal or state law. Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 120-122 (1984); see also, Tornheim v. New
York State Senate, 115 Fed. Appx. 482, 483 (2d Cir. 2004) (Senate is an arm of the State for
Eleventh Amendment Purposes).

35
 Where a decision is to be made on the basis of state law . . . the Supreme Court
has long shown a strong preference that the controlling interpretation of the
relevant statute be given by state, rather than federal, courts. This preference is
rooted in basic principles of federalism, for a federal court ‘risks friction-
generating error when it endeavors to construe a novel state Act not yet reviewed
by the State's highest court.’

Allstate Ins. Co. v. Serio, 261 F.3d 143, 150 (2d Cir. 2001) (citations omitted). Where, as here,

state court oversight of a state statute is available, it is antithetical to core principles of

federalism to deprive state courts of the opportunity to exercise their judicial authority and to

develop their own solutions, if necessary, to ensure constitutional compliance. See Reetz v.

Bozanich, 397 U.S. 82, 90 (1970) (because state court decision as to constitutionality of state

statutes and regulations could avoid decision under Fourteenth Amendment and avoid any

needless friction in the federal-state relationship, federal court should have stayed its hand).

1. The Court Should Refrain From Reviewing Monserrate's Expulsion Because the
Senate is the Exclusive Judge of the Qualifications of its Own Members

The Senate’s exercise of authority under Article III, Section 9 of the New York State

Constitution (the “Qualifications Clause”) is final, conclusive and not subject to judicial review.

The Qualifications Clause provides 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.”

N.Y. Const., Art. 3, § 9 (emphasis added). “The power delegated to the . . . Senate under this

provision is a judicial power.” NEW YORK STATE CONSTITUTIONAL CONVENTION COMMITTEE,

PROBLEMS RELATING TO LEGISLATIVE ORGANIZATION AND POWERS, at 42 (1938). Stated another

way, when the Senate acts pursuant to its constitutional authority under the Qualifications

Clause, “it acts in a judicial capacity,” and determinations made in that capacity generally cannot

be interfered with or controlled by any other authority. Id. at 43; see also Matter of People ex

rel. Sherwood v. State Bd. of Canvassers, 129 N.Y. 360, 373 (1891) (determining that a court

cannot interfere with the jurisdiction of the Senate when it determines whether a member is

36
qualified to serve therein); People ex rel. Hatzel v. Hall, 80 N.Y. 117, 121 (1880) (“each of those

houses has the sole power to judge thereof, exclusive of every other tribunal”); Matter of

Scaringe v. Ackerman, 119 A.D.2d 327, 330 (3d Dept. 1986) (“a determination by the courts as

to whether a person meets the qualifications necessary to be a member of the Assembly infringes

on the power of the Assembly to be the judge of its members’ qualifications”), aff’d on decision

below, 68 N.Y.2d 885 (1986); Matter of Lithuanian Workers’ Literature Socy., 196 App. Div.

262, 268 (2d Dept. 1921) (concluding that the New York Legislature has “final jurisdiction” over

the expulsion of its members). The clear weight of authority in other States (construing

qualifications clauses similar to New York's) is consistent with this rule. 15

The United States Supreme Court’s decision in Bond v. Floyd is distinguishable. Bond

was justiciable in federal court only because it presented a substantial federal constitutional

question. Here, by contrast, no substantial federal constitutional question is presented. Instead,

Plaintiffs transparently attempt to cloak what are purely State law issues as federal constitutional

claims so as to fit them into the Bond rubric and, thereby, conjure an issue that is justiciable in

federal court. Because Plaintiffs do not, and cannot, assert any viable federal constitutional

claim, this Court should refrain from reviewing Monserrate's expulsion so as to avoid

encroaching upon the authority of the Senate under the Qualifications Clause.

Plaintiffs' reliance upon Powell, 395 U.S. 486, is similarly misplaced. There, the United

States House of Representatives excluded Adam Clayton Powell, a member-elect, because he

had misused public funds. Powell met the constitutional requirements of age, citizenship, and

15
See e.g., Burge v. Tibor, 88 Idaho 149, 154, 397 P.2d 235, 237 (1964); State ex rel. Rigby v.
Junkin, 1 So. 2d 177 (Fla. 1941); Culbertson v. Blatt, 9 S.E.2d 218, 220 (S.C. 1940); State ex rel.
Haviland v. Beadle, 42 Mont. 174, 111 P. 720, 722 (Mont. 1910); French v. Senate of State of
California, 146 Cal. 604, 606-607 (1905); Hiss v. Bartlett, 69 Mass. 468, 473 (1855).

37
residence. The Supreme Court held that the House of Representatives lacked power to exclude

Powell because he had been duly elected and was not ineligible to serve under any provision of

the Constitution. Unlike Powell, which involved only the power to exclude members of

Congress under the federal constitution, the instant case raises issues as to the power of the state

legislature to expel members.

E. Plaintiff's State Claims Are Deficient

Even if this Court should determine to reach the merits of Plaintiffs' State law claims they

would be subject to dismissal and Plaintiffs would not be entitled to injunctive relief.

1. The New York State Senate Possesses Ample Authority to Expel a Sitting Senator

Plaintiffs’ claim that, “[a]s a matter of New York State Constitutional law, the legislature

may not expel a sitting member” is without merit. As will be demonstrated, the Senate had

ample authority to expel Monserrate.

a. New York State Constitutional Authority

The New York State Constitution specifically provides that the Senate has the power to

expel a sitting member. Article III, Section 9 of the New York State Constitution provides 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” (the “Qualifications Clause”). This provision is a

constitutional recognition of the Senate’s inherent right to regulate the conduct of its members

and discipline a member as it deems appropriate. The New York Court of Appeals expressly

recognized this inherent right when it concluded that the Senate’s “power to keep order or to

38
punish members . . . or to expel a member” is a “necessity . . . and is conceded in all the

authorities.” People ex rel. McDonald v. Keeler, 99 N.Y. 463, 481, 2 N.E. 615 (1885). 16

As exhaustively explained in the Select Committee's Report at pages 33-52, the seminal

cases in other jurisdictions coincide with the Court of Appeals’ conclusion in Keeler that a

legislative body possesses an inherent right to expel its members. See, e.g., State ex rel.

Danforth v. Banks, 454 S.W.2d 498, 501 (Mo. 1970), cert. denied, 400 U.S. 991 (1971); State ex

rel. Haviland v Beadle, 42 Mont. 174, 111 P.720, 722 (Mont. 1910); Hiss v. Bartlett, 69 Mass.

468, 473-75 (Mass. 1855). Similarly, the authoritative treatises on this topic concur that “a

legislative body has the right to regulate the conduct of its members and may discipline a

member as it deems appropriate,” including the sanction of expulsion. See Report, at 33; see

also MASON’S MANUAL § 561.2, 562.2; CUSHING §§ 625, 675, 687.

Plaintiffs contend that “[i]n 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.” Pltfs’ Memo at 36 (emphasis in

original). Initially, as explained above, the Qualifications Clause constitutionally recognizes the

Senate’s inherent authority to expel its members. Accordingly, Plaintiffs’ argument that the New

York Constitution lacks language authorizing the expulsion of a Senator lacks merit.

Nevertheless, even if the Court declines to read the Qualifications Clause as a specific

constitutional recognition of the Senate’s power to expel a sitting member, the Senate still

possesses such inherent authority. As explained in the Select Committee’s Report at pages 37-

16
See also, In re Joint Legislative Committee to Investigate Educational System of State of New
York, 285 N.Y. 1, 8 (1941); McGrain v. Daugherty, 273 U.S. 135, 178 (1927); State ex rel.
Robinson v. Fluent, 30 Wash.2d 194, 206 (1948) (en banc).

39
39, a house of the state legislature has the power to expel its members even without an express

constitutional mandate. See also Keeler, 99 N.Y. at 481; Hiss, 69 Mass. at 473; French, 146 Cal.

at 606.

Plaintiffs contend that “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.” Id. at 37. However, while an express constitutional

provision may be warranted to define the circumstances and procedures for removing other

public officials from office, no express constitutional mandate is necessary to expel a Senator

because the Senate possesses the inherent right to do so. And Plaintiffs cite to no authority that

suggests otherwise.

Equally unavailing is Plaintiffs’ assertion that the adoption of the 1821 New York

Constitution stripped the Senate of its inherent authority to expel a sitting Senator. In fact, more

than 60 years after the adoption of the 1821 Constitution, the Court of Appeals expressly

recognized the Senate’s inherent authority to “expel a member.” See Keeler, 99 N.Y. at 481.

More contemporaneously with 1821, the predecessor to Legislative Law § 3 was drafted by a

commission appointed by the Legislature in 1825. In an 1827 report, the commissioners

appointed to draft amended statutes noted that the predecessor to section 3 was “Declaratory, and

partly new.” REPORT OF THE COMMISSIONERS, APPOINTED BY THE ACT OF APRIL 21, 1825, TO

REVISE THE STATUTE LAWS OF THIS STATE (1827) (Legislative Document No. 7), at 12. Thus, in

adopting the predecessor to section 3, the Legislature simply sought to (1) formally declare an

already existing inherent right of the Legislature to expel, and (2) established a procedure by

which that right may be exercised. REPORT OF THE COMMISSIONERS (1827), at 12; see also Select

Committee’s Report, at 36 & n. 71. Additionally, in conjunction with an analogous provision –

40
the Legislature’s inherent power to punish contempts – the Commissioners stated: “[i]t is

believed 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.” Id, at 14. As the Select Committee’s Report

concludes: “the Commissioners’ logic is easily extended to the rationale behind [section 3’s

predecessor] – that it is simply a ‘declaratory’ expression of an ‘indispensible’ parliamentary

power that had previously been held at common law.” Report, at 41.

Further, any argument that the linguistic distinction between the New York and federal

constitutions proves that the New York Senate lacks authority to expel a sitting member is

meritless. This is because “[u]nlike the houses of the United States Congress, which under the

federal Constitution wield only those powers that have been specifically enumerated, the powers

possessed by state legislatures are general and plenary unless expressly limited or prohibited by

the state (or federal) constitution.” Select Committee’s Report, at 39 (citing THOMAS C. MARKS,

JR. & JOHN F. COOPER, STATE CONSTITUTIONAL LAW IN A NUTSHELL § 6 (2d ed. 2003))

(emphasis in original); see Bradley, 207 N.Y. at 610; Draper, 15 N.Y. 532. Accordingly, in

order for Congress to possess the power of expulsion, the federal constitution must specifically

enumerate that power. By contrast, the New York Senate possesses the power to expel a sitting

member unless the State constitution or federal law specifically states that it does not have that

power. Because no State constitutional provision or federal law divests the Senate of the power

of expulsion, the Senate possesses inherent authority to expel a sitting Senator.

Contrary to Plaintiffs' suggestion, the Senate's expulsion of Monserrate fully comported

with the "fundamental principle of our representative democracy . . . ‘that the people should

choose whom they please to govern them.’” Powell 395 U.S. at 547 Here, Monserrate was

41
elected on November 4, 2008, while the incident leading to his domestic violence conviction

occurred on December 19, 2008. Therefore, at the time of the election, the people of the 13th

Senatorial District necessarily lacked knowledge of Monserrate’s criminal conduct for which he

was convicted after he was seated in the Senate. Given the Senate’s broad, constitutionally

recognized inherent authority to expel a sitting Senator, the Senate plainly had the authority to

expel Monserrate even though the criminal conduct for which he was eventually convicted

occurred prior to the date upon which he officially took the oath of office. This is especially true

here, where the criminal conduct occurred after the people elected Monserrate because the

Senate’s expulsion of Monserrate did not have the effect of overriding a fully-informed

electorate’s choice of representation. See Report, at 42-44.

b. Legislative Law § 3

The New York Legislature has established a procedure for the exercise of its

constitutional and inherent power to expel. Legislative Law § 3, entitled “Expulsion of

members,” provides: “Each house has the power to expel any of its members, after the report of

a committee to inquire into the charges against him [or her] shall have been made.” 17

As explained in Points I(B)(3) and I(C)(1), above, Legislative Law § 3 is not

unconstitutionally vague or overly broad. Rather, the provision is a validly enacted statute that

plainly and unmistakably authorizes the Senate to expel a sitting member of that house. Notably,

in the portion of their brief dedicated to the argument that “the legislature may not expel a sitting

member,” Plaintiffs do not even reference Legislative Law § 3. Obviously, Plaintiffs do not

mention § 3 because its existence cannot rationally be explained while advancing the argument

that the Senate may never expel a sitting member.

17
For a detailed analysis of section 3’s legislative history, see the Select Committee’s Report at
pages 35-37.

42
 Wholly without merit is Plaintiffs' argument that the Senate failed to comply with

Legislative Law § 3 because “[n]o specific charges from the Senate were brought against

[Monserrate], and [he] was not informed of his rights.” Pltfs’ Memo, at 42. Plaintiffs’ argument

is based on a fundamental misconstruction of the statute. Contrary to Plaintiffs’ contention, § 3

did not require the Senate to notify Monserrate of specific charges against him or of any rights

that he may have had in the expulsion process. Instead, the plain language of the statute makes

clear that the Senate was authorized to expel Monserrate so long as it acted after the Select

Committee’s Report had been issued. Because the Select Committee’s Report was released on

January 14, 2010 and the Senate expelled Monserrate on February 9, 2010, the Senate complied

with section 3. See Select Committee’s Report, at 35. Nevertheless, even if § 3 required the

Senate to notify Monserrate of the specific charges lodged against him, as explained above in

Point I(B)(i), supra, he was afforded such notice.

c. The Lipschutz Report’s Conclusion is Erroneous

Plaintiffs rely heavily on the New York State Assembly’s eight-member Ethics and

Guidance Committee’s 1987 report regarding its inquiry into the actions of Assemblywoman

Gerdi E. Lipschutz (the "Lipschutz Report"). That Committee expressed doubts as to whether

the Assembly had the authority to expel Assemblywoman Lipschutz, and instead recommended

other discipline. See Lipschutz Report, at 7-8.

The doubts about expulsion expressed in the Lipschutz Report’s were unwarranted for

several reasons. First, as pointed out in the Select Committee’s Report, the Lipschutz Report did

not consider or even cite to Legislative Law § 3 or any of its legislative history. Second, the

Lipschutz Report failed to cite any of the cases or authorities relating to the inherent authority of

a legislature to expel a member, including Keeler. Third, as explained in the Select Committee’s

Report, the Lipschutz Report’s extensive reliance on Powell, was misplaced. Powell, which

43
construed a federal constitutional provision parallel to the Qualifications Clause, lacks

precedential value in this case because of the differences between federal and state constitutional

structures explained above. In addition, Powell was an exclusion case, while this case is an

expulsion case. The invocation of the power of expulsion is analytically distinct.

Finally, taken to its logical extreme, the position espoused in the Lipschutz Report is

absurd. If the New York Senate absolutely lacks the authority to expel sitting members, the

Senate would be powerless to expel members unfit to participate in the law-making process, such

as persons who are demonstrably corrupt, insane or violent. Even Plaintiffs reluctantly concede

that this cannot be the case. Pltfs' Memo at 42 n. 15. The Senate plainly possesses authority to

expel a sitting Senator.

II.
Plaintiffs Will Suffer No Irreparable
Harm Should Injunctive Relief Be Denied

A party seeking a preliminary injunction must "demonstrate that irreparable injury is

likely in the absence of an injunction." Winter v. Natural Resources Defense Council, Inc., ___

U.S. ___, 129 S. Ct. 365, 375-376 (2008) (emphasis in original). "Issuing a preliminary

injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme

Court's] characterization of injunctive relief as an extraordinary remedy that may only be

awarded upon a clear showing that the [movant] is entitled to such relief." Id. at 375-376. To

establish irreparable harm, the injury alleged by the movant must be "actual and imminent," not

merely "remote or speculative," and cannot be compensated by a monetary award alone. Grand

River Enterprise Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citing Freedom

Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)).

44
 Plaintiffs contend that that they will suffer imminent and irreparable harm as a result of

the purported disenfranchisement of voters in the 13th Senate District, and the fact that they will

go without representation in the Senate for a period of days. However, such harm hardly could

be considered imminent or irreparable. As a preliminary matter, the Senate now is in recess, and

will remain in recess through February 22, 2010. Moreover, by gubernatorial proclamation, a

special election has been called to take place on March 16, 2010, and the 13th Senate District will

have a sitting senator shortly thereafter. [cite insert to Atty Aff.] And as the voters of the district

will have an opportunity to vote in less than thirty days – perhaps even for Monserrate should he

opt to run in the special election – they cannot credibly contend that they are being

disenfranchised.

III.
The Balance Of Hardships Tips Decidedly
In Defendants' Favor

The third and final prong of the preliminary injunction standard – a balancing of the

hardships tipping decidedly in movants' davor – weighs heavily against granting the injunctive

relief sought by Plaintiffs. Any alleged hardship falling upon Monserrate as a result of his

having been expelled from the Senate following his assault on his domestic companion and

resulting criminal conviction is tempered by the fact that he remains free to seek to regain his

seat both via the special election now scheduled for March 16 and the general election on

November 2.

With respect to the plaintiffs other than Monserrate (and their fellow constituents of the

13th Senate District), Monserrate’s expulsion has admittedly left them temporarily without a

Senator, though Monserrate's staff continues to serve the 13th Senatorial District. Aponte Dec., ¶

45
19. 18 As discussed above, however, voters have no right to vote for or be represented by any

particular person. Burdick v. Takushi, 504 U.S. at 436-39. Moreover, a temporary vacancy in an

elective position is not unusual and does not violate the rights of voters. Rodriguez v. Popular

Democratic Party, 457 U.S. 1 (1982). Special elections to fill legislative seats left vacant in New

York by resignation, removal, death or otherwise are far from uncommon, a fact the court itself

noted during argument on Plaintiffs’ application for issuance of a temporary restraining order in

calling attention to four special elections to fill vacant Assembly seats held just two days earlier

on February 9, 2010.

Indeed, any hardship flowing to 13th Senate District constituents from an absence of

representation would only be exacerbated by granting the preliminary injunction Plaintiffs seek

and reinstating Monserrate. Were the court to do so, then find subsequently for defendants on

the merits, it would likely make it impossible to schedule a special election at all and leave the

voters without representation until 2011. New York's Public Officers Law ("POL") provides that

vacancies in elective offices occurring before September 20th - other than vacancies in the offices

of Governor and lieutenant governor - shall be filled at the next general election. POL § 42(1).

Subdivision 4 of § 42, however, modifies that general rule by granting the Governor

discretionary authority to call a special election (including one to fill a vacant Senate seat),

provided that the vacancy does not occur after April 1st of the last year of the legislative term.

Thus, if the court were to enter a mandatory injunction returning Monserrate to office and

canceling the March 16th special election, then find for defendants on the merits and re-remove

Monserrate from the seat after April 1, there would be no way to schedule a special election and

18
As noted, however, the Senate will not be in session prior to February 22 - a mere 22 days
before the special election - nor will any of the committees upon which Monserrate once sat
convene before then.

46
the 13th Senate District seat would remain unfilled until the winner of the November general

election takes office in January 2011.

Granting the injunction Plaintiffs seek would work additional hardship on the voters of

the 13th Senate District and the defendants by halting the already-ongoing process to fill the seat

vacated by Monserrate. As the court noted at the oral argument on Plaintiffs’ application for a

temporary restraining order, the Governor’s proclamation setting March 16 as the date of the

special election set in motion numerous mechanisms, specifically:

• A certificate of party nomination for an office to be filled at a special election must be

filed not later that ten days following issuance of the proclamation. Election Law ("EL")
§ 6-158(6).

• A certificate of acceptance or declination of a party nomination for a vacant office must

be filed within twelve days of the issuance of special election proclamation. EL § 6-
158(7).

• A certificate to fill a vacancy caused by a declination of a party nomination for a vacant

office must be filed not later than fourteen days following issuance of the proclamation.
EL § 6-158(8).

• A petition for an independent nomination for an office to be filled at a special election

must be filed within twelve days of the issuance of the proclamation. EL § 6-158(9).

• A certificate of acceptance or declination of an independent nomination for a vacant

office must be filed within fourteen days of the issuance of special election proclamation.
EL § 6-158(11).

• A certificate to fill a vacancy caused by a declination of an independent nomination for a

vacant office must be filed not later than sixteen days following issuance of the
proclamation. EL § 6-158(12).

• Ballots for military voters must be mailed or otherwise distributed twelve days before a
special election. EL § 10-108(1).

47
 • The state and county boards of elections are required to determine the names of all
candidates duly nominated for office three days before the first day for distribution of
military ballots. EL § 116. 19

Since a special election must take place within a 30-to-40 day window after issuance of a

gubernatorial proclamation, POL § 42(3), and the foregoing deadlines are so tightly orchestrated

to occur within that period, if the court were to enjoin the March 16 special election but then find

subsequently for defendants on the merits, it would be impossible simply to “restart” the clock

and proceed with the special election as scheduled. Rather, a new proclamation would need to

be issued by the Governor, new party certificates and candidate petitions and nominations would

need to be created and filed, new absentee and military ballots would need to be printed and

mailed, and so forth. Depending upon when a decision on the merits was rendered, voters who

had returned absentee or military voter ballots in connection with the anticipated March 16

election might have to submit a second such ballot in connection with the new special election

date, inevitably leading to confusion and the loss of some votes.

Granting Plaintiffs an injunction and restoring Monserrate to the Senate also would work

enormous hardships on the orderly functioning of government in the Senate and the State of New

York. Even a casual observer of events in Albany over the past year is aware that the margin of

representation in the Senate now stands at 31 Democrats to 30 Republicans. Returning

Monserrate to the Senate and allowing him to cast votes on proposed legislation makes it likely if

not inevitable that one or more of his votes will prove to be decisive. That a vote providing the

margin by which law is created will have been cast by an individual who assaulted his domestic

19
The specific deadlines for these and other tasks required in connection with the March 16
special election have been posted publicly by the New York State Board of Elections and can be
viewed on-line at
http://www.elections.state.ny.us/NYSBOE/Elections/2010/Special/13thSDSpecialElectionCalen
dar.pdf.

48
partner, was convicted criminally in connection with the incident and subsequently expelled as

unworthy of the privilege of serving the public as a senator by an overwhelming and bipartisan

majority of his colleagues is repellent to the notion of responsible government and would wither

public respect for the institution of the State Senate. Not coincidentally, such an outcome would

give rise to costly and distracting litigation, as those who feel aggrieved by the enactment of any

law passed under such circumstances would challenge its legitimacy in court, further snarling the

machinery of state.

Balanced against the brief interruption in representation for voters in the 13th Senate

District if the March 16 special election is allowed to proceed, and the “inconvenience” to

Monserrate of having to stand again for election either on March 16 or November 2, the hardship

that would be worked on the democratic process in the 13th Senate District and the damage to

respect for the rule of law in the State of New York if the court grants a preliminary injunction is

of incalculably greater significance. As a result, Plaintiffs’ motion should be denied.

49
 Conclusion

For the foregoing reasons, Defendants respectfully request an Order denying Plaintiffs'

motion for a preliminary injunction, together with such other and further relief as the Court

deems just and proper.

Dated: Albany, New York

February 16, 2010

ANDREW M. CUOMO
Attorney General of the State of New York
The Capitol
Albany, NY 12224
Attorney for Defendants
Of Counsel:

s/ Henry M. Greenberg___
Henry M. Greenberg
Counsel to the Attorney General
Telephone: (518) 474-7330
Facsimile: (518) 473-9909

Of Counsel:

Leonard A. Cohen, Deputy Attorney General

Megan Levine, Deputy Attorney General
Douglas J. Goglia, Assistant Attorney General
Joel Graber, Special Litigation Counsel
Justin Levin, Assistant Attorney General
Michael McCartin, Assistant Attorney General
Bruce McHale, Assistant Attorney General
Andrew Meier, Assistant Attorney General

50