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Mole's Progressive Democrat

The Progressive Democrat Newsletter grew out of the frustration of the 2004 election. Originally intended for New York City progressives, its readership is now national. For anyone who wants to be alerted by email whenever this newsletter is updated (usually weekly), please send your email address and let me know what state you live in (so I can keep track of my readership).

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Location: Brooklyn, New York, United States

I am a research biologist in NYC. Married with two kids living in Brooklyn.

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  • Saturday, January 30, 2010

    New York State Senate: The Monserrate Dilemma

    This last week at the monthly meeting of the Central Brooklyn Independent Democrats there was a long discussion about what to do about the violent, nasty scum of a human being named Hiram Monserrate who currently is oozing around the State Senate.

    State Senators Eric Adams and Velmanette Montgomery as well as Assemblywoman Joan Millman were there and focused mostly on the Monserrate dilemma.

    Let me first be clear, that EVERY SINGLE PERSON IN THE ROOM seemed to agree that Monserrate is a miserable, disgusting human being whose only way to feel big is to beat up on women and betray his constituents. No one in the room defended Monserrate as a person. [NOTE: It has been pointed out to me that this might be an evolution of Eric Adams' views--see here and here. I would speculate that if it is an evolution in his views perhaps the video of Monserrate abusing his girlfriend, which Adams did refer to at CBID, might have been the inspiration for such an evolution]. I think Assemblywoman Joan Millman put it right when she expressed how you just want to pick him up from behind his desk and throw him out.

    However...

    The discussion focused on whether the State Senate, given that Monserrate was convicted of a misdemeanor and not of a felony, could or should expel him or strip him of his leadership positions.

    Although every single person in the room would love to see Monserrate expelled, and expressed that wish in no uncertain terms, opinion on whether it could or should actually be done was sharply divided.

    The problem rests on procedures. The arguments against expelling the piece of human excrement named Hiram Monserrate are the following, expressed in detail by Eric Adams and more tersely and bluntly by Velmanette Montgomery.

    1. It is unclear whether the State Senate has the legal right under the state constitution to expel Monserrate.

    The rules specifically state that any member convicted of a felony will automatically be expelled. However, the rules are silent, as Eric Adams emphasized, on members convicted of a misdemeanor. Case law from New York State on this issue seems absent, so this would be a precedent setting move by the state senate and would certainly be challenged in court (with, I hear, civil rights champion Norman Siegal defending Monserrate). Eric Adams mentioned case law from two states. I believe the first was Florida where the expulsion was upheld specifically because due process according to the rules of the legislature were followed. The second was from Alabama where the expulsion was overturned because due process was NOT observed. The ambiguities in New York State law mean what constitutes due process is not clear and so the legalities are not clear.

    Eric Adams, Velmanette Montgomery and Joan Millman all felt that given the way the rules are written and the likely strong legal challenge, they hesitate to set a precedent that could be misused in the future. I might argue that their job in the legislature is not necessarily to decide the constitutionality of their move. I think it would be legitimate to expel Monserrate because he was caught on film abusing a woman and convicted of a misdemeanor based on that action, and then let the court decide if due process was observed. I can understand being uncomfortable making such a move, but I think our legislature should consider that as a legitimate approach.

    It was brought up rather heatedly at this point, that it is discouraging that such a fastidious attention to due process is awarded Monserrate while all proper process, common sense, capitalist economic theory and propriety are routinely thrown out by the state legislature (and, I would add, our city government) when it comes to giving wealthy developers like Bruce Ratner our tax money as well as the benefit of eminent domain so they can keep getting richer at our expense. It is a valid point that this kind of discrepancy in terms of what is the right thing is so painstakingly awarded to Monserrate but not to the massive giveaways to developers without any real oversight or guarantees that taxpayers benefit. However, it is not an argument against giving such care to Monserrate so much as a chastisement to our legislators that they fail miserably in giving such care to what they do with taxpayer money when it comes to giveaways to wealthy developers.

    Our legislators argued that the law does need to be changed so that the State Senate (and presumably Assembly) does have the right to expel any legislator convicted of a crime, including misdemeanors. There is some logic to this and, if properly done, might be a long term solution, though not a solution to the dilemma posed by the criminal Monserrate. However, I am also not sure I am comfortable with legislators being expelled, for example, for being arrested protesting the closing of a firehouse or for being caught smoking pot or something. I guess there are some misdemeanors I don't consider worth expelling and some I do...and yet the law has to be clear in the end.

    2. The voters should decide:

    This argument is based on the idea that it is up to the voters in a district to decide if someone represents them, not other legislators. This idea respects the integrity of the democratic process, although some pointed out that the democratic process does not always work well. My wife later observed to me that the overwhelming influence of money and developers has already subverted the democratic process. But that doesn't alter the validity of the concern over whether it is right for the legislators (who, I might add, are the very ones already over influenced by money and developers) to go over the heads of the voters. In some cases perhaps it is. But it also is good for legislators to hesitate in doing so and, as outlined above, it is unclear where legislators have that power.

    3. Expelling Sleaze Monserrate would return the State Senate to the paralysis that it saw earlier where Republicans could prevent the legislature from doing anything.

    The irony here is thick as can be since Monserrate is at the center of both periods of paralysis. He was one of the dissident Democrats who betrayed their constituents by throwing control the Republicans and allowing the Republicans to paralyze government (something Republicans love doing more than governing). And he is the scum whose actions might lead right back to that same paralysis.

    Eric Adams was particularly angry about this possibility. He outlined how Albany dysfunction was a function of the Republicans for nearly 70 years and didn't start a year ago when Democrats took over. Furthermore it was the Republicans who refused to let the legislature meet during the time the three dissident Democrats, including Monserrate, collaborated with the Republicans to prevent Albany from doing anything. He pointed out that the Democrats sat in the chambers every day, but the refusal of the Republicans to join them prevented a session from being called. Paralysis was strictly a Republican-caused (with their three little helpers) phenomenon. Had Monserrate not collaborated with Republicans to paralyze government, or had the Republicans allowed the legislature to meet, there wouldn't have been paralysis in Albany...or, I would probably say, there would have been far less.

    Eric Adams believes Governor Patterson would refuse to call a special election to replace Monserrate, leaving his seat empty and thus bringing about the same conditions that previously led to paralysis where the Republicans refusal to do the job they were elected to do prevents Albany from accomplishing anything. Adams believes Patterson wants to run his whole platform based on Albany dysfunction (which I'd say has some logic to it) so he WANTS the legislature to be paralyzed (which I think is a disgusting move on Patterson's part if he does it).

    Velmanette Montgomery put it typically bluntly: she does not want to see the entire state legislature paralyzed due to Hiram Monserrate yet again, so this alone is sufficient to leave it to the voters in the next election.

    Again this gets back to the problem that dysfunction never seems to interfere with getting Bruce Ratner the taxpayer money he wants, but it does interfere with expelling a sleaze who beats women.

    In the end all three arguments together are fairly compelling. It may well be that it is the wrong thing to do to expel Monserrate for procedural, democratic and strategic reasons. And yet it will be hard to defend a refusal to expel Monserrate. I still have the gut feeling that it would be the right thing to do to expel him and let the courts decide (as is their job) the legality. And yet when I think it through, I am swayed by the combination of the three arguments above as well as by the fact that four people I respect (Eric Adams, Norman Siegel, Joan Millman and Velmanette Montgomery) all are convinced or are leaning towards opposing expulsion despite their agreement that Monserrate is a sleazy criminal and pitiful bully.

    And in the end this is another example of why New York politics is so disheartening. The very fact that someone like Monserrate was ever elected in the first place, and as a Democrat, no less, shows our democratic system is flawed. And yet, how do we get beyond this dysfunction? Throwing the legislature back into Republican-led paralysis is NOT the answer. Hear that David Patterson? I think it would look better if you actually showed some LEADERSHIP rather than banking on the legislature failing.

    When I published the above piece on Daily Gotham, one of my State Senate connections responded. So I append that response here.

    I read your post re: Monserrate and the CBID meeting. Allow me to help you clarify a few things.

    First, the legislature absolutely has the authority to expel a member...the law is clear. It does not speak to felony or misdemeanor convictions. If a member is convicted of a felony, they are required to resign, as you know.

    The statute states that the legislature has the power to discipline a member up to an including expulsion, but, prior to that action, a committee must review the facts and circumstances around any alleged wrongdoing. In this case, it is the conviction of monserrate for misdemeanor reckless assault.

    The senate convened a select committee to study the facts and circumstances, after two months and thousands of pages of testimony we concluded that his actions warrant the consideration of the most severe penalty, and if that does not pass the senate, then the second most severe penalty, revocation and stripping of priveleges and censure. [Editor's note: as noted, the committee has already been convened and the recommended expulsion or censure. This procedure arguably fulfills the due process required to legally expel a member of the State Senate, but I am sure that would be decided in court. As stated in the previous article, previous case law includes one case where expulsion was upheld because due process was observed, another case was thrown out because due process was not observed].

    I suggest you read our report [PDF],review the evidence we did, then make up your own mind. We also included twenty pages of legal research to establish the right of the legislature to invoke the section of the public officers law we are acting under. Contrary to what senator adams said, or anyone else, it is undeniable [the State Senate] has the right to act.

    In response to the fear of chaos if the senate expels monserrate, that is the most unpersuasive argument. Consider this, if [the State Senate does] not expel him, but censure and punish him, it is foohardy to assume he will be a willing vote for our conference. The governor has assured those concerned he will in fact call a special election to fill the seat as soon as possible.

    He can run again, and if the voters of his district re-elect him, so be it. Then they own him...[the State Senate] shouldn't.

    Hope that was helpful


    It will be interesting to see if Paterson does or does not call a special election if Monserrrate is expelled. Some I talk to are convinced Paterson WANTS chaos in the State Senate and so will not call a special election. Others say he has assured them he will. If expulsion occurs, time will tell. A court case could give Paterson the excuse not to call a special election if he so chooses.

    A further discussion of this same issue was carried out on the Albany Project.

    You can also read a discussion of the State Senate's report on Daily Kos (yes, Albany's problems are so entertaining in that train wreck kind of way that it reaches national media as well).

    All of this reminds me of that old Chinese curse: may you live in interesting times. Well, Albany sure makes our times interesting around here.

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