A federal judge set a hearing next week on whether to temporarily block the expulsion of State Senator Hiram Monserrate, whose colleagues voted to remove him because of a misdemeanor assault conviction involving his girlfriend and a broken glass.
In a civil rights suit filed Thursday in Manhattan, Queens Democrat Monserrate asked Judge William Pauley to reverse his removal and bar a March 16 special election to replace him. He said the state Senate denied him due process and his constituents their right to representation.
"The office is up and running. I will be stopping in today to speak with the staff," Monserrate said after the court filing. "I will continue to serve."
Pauley declined to issue an immediate stay, noting the Senate is out of session and Monserrate's staff is still being paid. The hearing is next Thursday. The Senate is next scheduled to meet again four days later.
The case "raises substantial questions concerning what constitutional Democracy is all about," attorneys Steven Hyman and Norman Siegel argued in the lawsuit. "The defendants did not have the constitutional or legal authority to expel Senator Monserrate from office against the will of the people and even if they did have the power to expel him, the 'ad hoc' nature of how they did so was in violation of his due process rights."
The judge is expected to rule before the special election called by Gov. David Paterson to fill the Senate seat. Monserrate said he won't be on the ballot in March, though his staff said he plans to run for a second two-year term in the November election.
"The special election is the outgrowth of what we believe is an illegal act," Monserrate said. "There should be no special election."
The Senate voted 53-8 Tuesday night to remove Monserrate, who was convicted last fall of the misdemeanor for dragging his girlfriend through his apartment lobby. The former New York City policeman and councilman was acquitted of felony assault. A felony conviction would have automatically cost him the Senate seat.
Karla Giraldo had a cut requiring stitches near her eye from a glass Monserrate was holding on Dec. 19, 2008 in his apartment. Both said afterward the cut was an accident and the hallway surveillance footage of him dragging her out was him taking her to the hospital.
The suit, also filed on behalf of six of his constituents, said the Senate violated their voting rights. They requested temporary and permanent injunctions barring the Senate, governor and other officials from implementing the expulsion order. The suit also asks for back pay for Monserrate and attorneys' fees.
Lawyers from Attorney General Andrew Cuomo's office are defending the Senate. "The judge's decision to deny the (temporary restraining order) speaks for itself. We will of course continue to represent the Senate in this matter," spokesman John Milgrim said.
The expulsion vote followed an investigation by a special committee of nine senators. Monserrate and Giraldo refused to appear before the committee, which recommended censure or expulsion. The expulsion resolution noted his conviction was for domestic violence and the Senate has a zero tolerance policy for that.
Monserrate supporters and the lawsuit said the expulsion was at least partly payback for his decision along with Sen. Pedro Espada to briefly join with Republicans last year in a coalition that caused a monthlong legislative gridlock. The Democrats had a 32-30 Senate majority with Monserrate and Espada.
The eight senators who voted against expulsion are all Democrats. They are Sens. Ruben Diaz, Carl Kruger, Martin Dilan, Eric Adams, Kevin Parker, Espada, Monserrate and Democratic Conference leader John Sampson, who appointed the special committee and said Monserrate shouldn't be expelled while the appeal of his criminal conviction is pending.