The Monserrate Legal Battle: A Brief Primer

Tuesday’s vote to expel Hiram Monserrate from the Senate is the latest development in one of the livelier constitutional debates in New York since last summer’s Senate coup. Monserrate’s attorneys filed a request for a temporary restraining order and preliminary injunction delaying his expulsion in federal court today.

Monserrate’s supporters rely on two arguments as to why the Senator’s ouster is illegal. First, they argue that his removal denies his right to due process of law, and that only his constituents can legally remove him from office (by voting him out at the next election, as New York doesn’t have a recall process).

Black’s Law Dictionary defines due process, which is guaranteed under the New York and United States constitutions, as “[t]he conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.”

Others argue that the ‘rules and principles’ in question here are codified in a section of legislative law that grants the Senate the authority to decide the case. This section reads: “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.” As followers of the Monserrate saga know, the Senate did, in fact, convene a committee to inquire into the charges against the Senator, and Tuesday’s vote conforms to the recommendations made in the committee’s final report.

The second argument against expulsion made by Monserrate’s attorney is that the Senate lacks the constitutional authority to expel a member. The attorney, Normal Siegel, argues that given that New York’s colonial charter granted the legislature the right to expel its members, when the state constitution was changed in 1821 to remove a clause stipulating that the state legislature would “do business in a like manner as the assemblies of the colony of New York,” it deliberately disallowed expulsion.

At least six members of the legislature have been expelled since 1821, including five Assemblymen accused of disloyalty on account of their affiliation with the Socialist Party in 1920. That hasn’t settled the debate over constitutional authority to expel, however. In 1987, an Assembly committee considered whether it had the authority to expel an Assemblywoman who was guilty of payroll fraud. In what is commonly known as the Lipschutz Report, the committee held the same view as Monserrate’s attorney that expulsion is not permissible in the absence of explicit constitutional authority. The Monserrate Committee disagrees, obviously, citing an 1874 legal scholar’s opinion that, “[i]n the states of Massachusetts, New Hampshire, New York, and North Carolina there being no constitutional provision on this subject, the power to expel exists as a necessary incident to every legislative body and may be exercised at the discretion of the assembly and in the normal way of proceeding.”

At the end of the day, it will be up to a judge to sort this out. Let’s just hope that the now nearly dead-even partisan split in the Senate doesn’t precipitate another thorny legal fight over legislative procedure.