final monserrate pi memo

8/14/2019 Final Monserrate PI Memo

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

HIRAM MONSERRATE, et al. ,

Plaintiff, against

THE NEW YORK STATE SENATE, et al .,

Defendants.__________________________________________

Index No. 10-CV-1106 (WHP)

DEFENDANTS' MEMORANDUM OF LAW IN OPPOSITION TOPLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

Of Counsel :Henry M. Greenberg, Counsel to

the Attorney GeneralDouglas J. Goglia, Assistant Attorney GeneralTelephone: (518) 474-6800Facsimile: (518) 473-1572

ANDREW M. CUOMOAttorney General of the Stateof New York Attorney for DefendantsThe Capitol

Albany, New York 12224-0341

February 16, 2010


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

F. Monserrate was well aware that a consequence of the Investigation could beexpulsion.................................................................................................................. 10

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

H. Governor Patersons Order for a Special Election for the 13 th Senate District. ....... 11

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

ARGUMENT................................................................................................................................ 14

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

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

1. Plaintiffs Claims Of Voter Disenfranchisement Are Meritless ....................... 142. 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 ................... 182. Monserrate Has Not Pleaded, and Cannot Prove, a Cognizable "Stigma-

Plus" Due Process Claim .................................................................................. 213. Legislative Law 3 Is Not Unconstitutionally Vague...................................... 24

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

1. Plaintiffs' "Overbreadth" Claim is Unavailing.................................................. 282. Plaintiffs' Free Speech Claims Are Legally Deficient ...................................... 29

D. The Court Should Refrain From Encroaching In Important Matters of Stateand Legislative Law................................................................................................ 34

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1. The Court Should Refrain From Reviewing Monserrate's ExpulsionBecause the Senate is the Exclusive Judge of the Qualifications of its OwnMembers............................................................................................................ 36

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

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

a. New York State Constitutional Authority .................................................. 38b. Legislative Law 3..................................................................................... 42c. The Lipschutz Reports 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


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iii

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 (5 th 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 Hawaiis ban on write-in

voting), affg , 937 F.2d 415, 473-74 (9 th 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................................................................................ 23County 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


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iv

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 Assn 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


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v

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)........................................................................... 27Valenti 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. Kelle y, 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 ................................................................................................................................... 6Election 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


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vi

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


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Concluding that Monserrates 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 suchlimitations. 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 Monserrates 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

Monserrates seat unlawfully impinge on his constituents rights. Further, Monserrates 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, Monserrates 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

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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 Senates 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 intolegislative 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

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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: Monserrates 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.

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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 Committees 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 toanother person. Penal Law 120.00(2)

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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 Monserrates criminal trial, the Peoples exhibits admitted at the trial, the grand

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

minutes of Monserrates sentencing, and publicly available recordings of Monserrates

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

conviction.

B.

Monserrate's Sentencing and the Family Offense Order of ProtectionPrior 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

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Monserrates 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. Monserrates conduct showed a reckless disregard for [his domestic

companions] 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

Monserrates 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 " itsdeterminations [were] based on the totality of the facts and circumstances surrounding Senator

Monserrates 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 Monserrates specific crime contravenes New Yorks well-established zero-tolerance

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

Legislatures 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)

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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 Attorneys

Office in connection with Monserrates 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 Monserrates

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

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E. The Select Committee Provided Monserrate with Notice of the Charges Against Him andthe 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 Monserrates 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

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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 Monserrates political reputation may have factored

into his disregard for his companions 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 beExpulsion

As set forth above, Monserrate, through his attorneys, challenged the Committees

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

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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 Committees

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

H. Governor Patersons Order for a Special Election for the 13 th 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 theemployment of his staff serving the 13 th Senate District in both the district office and in Albany.Aponte Dec. at 20.

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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 thestatus 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

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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 Senates 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 Yorks speech and equal protection provisions). The

Complaints 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 Senates 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 Hawaiis ban on write-in voting), affg , 937

F.2d 415, 473-74 (9 th 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.

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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 states 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

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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 Plaintiffsflawed 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 the13 th Senate District in both the district office and Albany).

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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

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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 Ive committed, he said, do not rise to the level of expulsion.). 4

Plaintiffs assert that Monserrates 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 andattempted to explain the actions that he took on December 19, 2008. See Select Report, at 27.Thus, having declined the Committees invitation for an opportunity to clear his name,Monserrate apparently elected to attempt to clear his name in a different forum.

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

contemporary conscience could be shocked by Monserrates 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 Monserrates 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.)

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(citations in original). 5 Moreover, Monserrate declined the Committees 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" DueProcess 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 priorto 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 processwas 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 herequested to cross-examine or whose cross-examination would have changed the outcome of thereport or of the expulsion vote, (d) had the opportunity to cross-examine witnesses and presentevidence 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 wasnot allowed to be present during the testimony of any witnesses. McCarley , at 8, 10. Theinvestigating 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 protectibleliberty interest under the Fourteenth Amendment. See Siegert v. Gilley, 500 U.S. 226, 233

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

statements could have stigmatized him. To be sure, Monserrates 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 Monserrates ability

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

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). Monserrates

(1991); Paul v. Davis, 424 U.S. 693, 701, (1976); Walentas v. Lipper, 862 F.2d 414, 420 (2dCir.1988).7 A stigma-plus plaintiff must also show that the stigmatizing statements were madeconcurrently with, or in close temporal relationship to, the plaintiffs dismissal from governmentemployment. 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 assertingthat he did not recklessly cause physical injury to his domestic companion. See, e.g., Marinacciov. Boardman , 02 CV 831, 2005 WL 928631, *11-12 (N.D.N.Y., Apr. 19, 2005) (Plaintiff's pleaof guilty to charge of disorderly conduct precluded him from assertion that his conduct was notintentional, or at least reckless).

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

Statements regarding Monserrates personal integrity, moral standing or fitness to hold office,

cannot be proved false because they are subjective matters of opinion. Wiese v. Kelle y, 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 (5 th 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.

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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-arbitrar

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.

y

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

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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 perilouslyclose 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.

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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).

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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); s ee 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 FirstAmendment claims. Martinez v. Sanders , 307 Fed.Appx. 467, 468 n.2 (2d Cir. 2008); Anemonev. Metropolitan Transp. Auth. 410 F.Supp.2d 255, 268 (S.D.N.Y. 2006).

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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 orcasting 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 ,

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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:

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[t]he purpose of the protection afforded legislators is not to forestall judicialreview of legislative action but to insure that legislators are not distracted fromor 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 theSpeech 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

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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. S ee 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 adefendant'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 dutie s, 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").

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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 (5 th

2007)). See also Tamayo v. Blagojevich , 526 F.3d 1074, 1092 (7 th 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 andLegislative 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 stateentities and officers acting in their official capacities are not persons under 1983. Will v.

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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 states 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 prematureadjudication 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 Assn 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 Dept of State Police , 491 U.S. 58, 71 (1989); Spencer v. Doe , 139 F.3d 107, 111 (2dCir. 1998). Moreover, the Eleventh Amendment bars 1983 claims against a state, its agenciesand 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. NewYork State Senate, 115 Fed. Appx. 482, 483 (2d Cir. 2004) (Senate is an arm of the State forEleventh Amendment Purposes).

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Where a decision is to be made on the basis of state law . . . the Supreme Courthas long shown a strong preference that the controlling interpretation of therelevant statute be given by state, rather than federal, courts. This preference isrooted 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 theSenate is the Exclusive Judge of the Qualifications of its Own Members

The Senates 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. N EW 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

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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), affd 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 Courts 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).

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