Senate Will Decide Monserrate's Fate Next Week

By Karen DeWitt

Albany, New York – Senate Democrats have pledged to take action to punish State Senator Hiram Monserrate, convicted of a misdemeanor in a domestic violence incident, before the winter break.

A Senate committee earlier this year voted to take two possible actions against Senator Hiram Monserrate, who was convicted of misdemeanor assault, involving his then- girlfriend.

The committee recommended that Monserrate be either expelled from the Senate, or censured.

Senate Democratic Leader John Sampson has promised that some kind of action will be taken against Monserrate, a Queens Democrat, on Monday or Tuesday, but Sampson won't say which choice he recommends.

Democratic Senators were scheduled to hold a private conference on the matter, but it was later cancelled. Senator Sampson has expressed reservations about setting any legal precedents by going through with an expulsion.

Republicans in the Senate have been pushing for Monseratte's ouster, as well as many Democrats, including Seantor Brian Foley, of Long Island, who's said he'll attempt to introduce a resolution when the Senate meets on Monday or Tuesday.

If Senator Monserrate had been convicted of a felony, he would be automatically removed from the Senate under a provision in the State's constitution. But there is no constitutional provision or statute that specifically bars a legislator convicted of a misdemeanor from serving. Patricia Salkin, Associate Dean of the Government Law Center at Albany Law School, says there is legal precedent to remove a legislator for criminal acts or negligence.

"There is authority in the legislative law," said Salkin who said the state's common law also includes similar provisions.

If Monserrate were expelled, it would be the first time a State Senator has been thrown out of his seat by colleagues since 1781, when a Senator was thrown out for negligence. Members of the Assembly have been expelled more recently, though the last time was in the 1920's.

Getting rid of Monserrate poses some political problems for Senate Democrats. They currently have just 32 members, the minimum number required to form a quorum in the Senate. Last summer the Senate was deadlocked for over a month, split into two factions of 31 members. Either side had the power to prevent the Senate from forming a quorum and meeting, and both sides often exercised that power during that tumultuous time.

Salkin, with Albany Law School, says that potential stalemate, at least, would be short lived.

"The governor would be able to call a special election within 30 days," Salkin said.

There's another potential political problem, a growing backlash from some Hispanic Senators. Senator Ruben Diaz, of the Bronx, says he would not vote for expulsion, or even censure, calling the proceedings a "mockery" and a "show".

"I would not vote for anything, no censure, no expulsion, nothing" said Diaz.

Senator Pedro Espada, who has in the past been an ally of Monserrate, has introduced a bill that would expel any member of the Senate convicted of a violent misdemeanor, but Espada says any such law should not be applied retroactively.

Monserrate says if Senators try to expel him, he'll sue. He's said he wasn't a sitting Senator at the time of the incident, but a Senator- elect, and so the Senate has no jurisdiction over what happened. Monserrate was elected to the Senate in November 2008, and not sworn in until January 2009. The incident occurred in December 2008.

Salkin, with Albany Law School, says the Senator does not likely have a good case.

"He voluntarily ran for office, he voluntarily took his seat," said Salkin, who said those actions imply agreement with the rules of the Senate.

She says Monserrate also refused to cooperate with the Senate investigating committee, and that would likely be held against him.

The Senate is scheduled to be in session on Monday and Tuesday, before it takes a nearly two week break for the President's Day holiday.