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The 2009 New York State Senate leadership crisis is a political dispute in the New York State Senate that began on June 8, 2009 and effectively shifted control of the Senate from Democratic to Republican and later, because of a defection, caused an electoral tie that left the entire chamber in leadership limbo.

The Senate was controlled by Democrats with a 32-30 advantage, when a self-proclaimed bipartisan coalition of all 30 Republicans and 2 Democrats attempted to change the leadership in the Senate. The result was a disputed change of majority leader and Senate president, in a reversal of power that was described as a political coup. After several days, one of the senators that had defected returned to the Democrats, resulting in a 31-31 deadlock. Due to the vacancy of the lieutenant governor's office, it is doubtful if the tie can be broken. Legislative work has been resumed in a "joint-split" session on June 23 with all senators in the senate chamber, but each caucus holding its own session ignoring the other half.

Course of events

During the State Senate session on June 8, Republican Senator Thomas Libous proposed a resolution for the election of a new leader of the Senate. All 30 Republicans and 2 Democrats, Pedro Espada and Hiram Monserrate, voted for the resolution. After the resolution was passed, but before the vote was recognized by Senator and officiating officer Neil Breslin, Senator Jeffrey Klein moved for adjournment. Libous demanded that his resolution be recognized, but instead Breslin quickly granted Klein's motion for adjournment. Republicans objected, claiming a majority of the Senate did not vote to adjourn. After Klein declared the meeting adjourned, all but four Democratic senators walked out of the Senate chamber. The only Democrats who stayed were those who had voted for the resolution, Espada and Monserrate, and Carl Kruger and Ruben Diaz, who abstained from all votes during the course of events, but stayed to show their support.

The remaining senators proceeded to vote for new leadership, removing Democratic Senator Malcolm Smith from his position as Majority Leader and Temporary President of the Senate, and replacing him with two people: Republican Minority Leader Dean Skelos was chosen Majority Leader, and Pedro Espada, Jr., was chosen Temporary President. After the election of new leadership, the coalition enacted reform rules including a six-year term limit for the majority leader, steps to equalize budget differences between opposing parties, as well as rules about the distribution of pork barrel projects.

As a result of the coup, Senate Democrats voted for John L. Sampson to replace Malcolm Smith as Democratic leader. This led Hiram Monserrate to declare that he would once again caucus with the Democrats, which resulted in a 31-31 split. With Monserrate's defection from the coalition, and Espada still aligned with the Republicans, both sides of the dispute have 31 votes.

On June 21, Governor David Paterson announced that he would convene a special session on June 23 - setting "routine" but "time-sensitive" bills such as mayoral control over New York City schools, sales tax, and same-sex marriage bills on the agenda. He also stated that he would convene a special session every day, including weekends and July 4, until the senators finish their job.

Power shift

Despite voting for the change in leadership, Espada and Monserrate initially stated that they were still Democrats, keeping a 32-30 Democratic majority in the Senate.

Historically, the majority leadership and the temporary presidency of the Senate were held by the same person. However, in the new arrangement, Espada is Temporary President of the Senate, while Skelos is Majority Leader and vice president. Because there is currently no lieutenant governor, Espada, as temporary president, would become Acting Governor if Governor Paterson left the state, resigned, was removed from office or died. The position is named "temporary" because the lieutenant governor is the ex officio president of the state senate, while the temporary president is chosen by the senators. It is common, especially in the newsmedia, for the terms "temporary president", "president pro tempore", or "Senate president" to be used synonymously.

However, Monserrate's return to the Democratic caucus on June 15 means that the Senate is divided 31-31, with neither party able to change the leadership structure. Under the provisions of the state constitution, in the event of a tie, the Lieutenant Governor of New York uses his casting vote to break it. The lieutenant governorship, however, is currently vacant since the last elected lieutenant governor, David Paterson, has succeeded to the governor's office upon the resignation of Governor Eliot Spitzer. Special elections for lieutenant governor were forbidden by an amendment after the death of Thomas W. Wallace and subsequent election of Joe R. Hanley in 1943, and there is no provision in state law that allows the governor and legislature to appoint a replacement, as there is with other statewide positions. Espada has asserted that because he was elected temporary president, he would effectively get to vote twice, which is not entirely correct. As a member he would vote on the issue, and as temporary president - "performing all the duties of lieutenant governor", according to the state constitution - he would, after a tied vote, not vote again, but exercise the casting vote, meaning to declare which side won. This casting vote is a tie-breaker which purports to represent the majority of the people, either cast by the popularly elected lieutenant governor, or by the temporary president elected by a majority of the senate members. The purpose of the casting vote is to avoid stalemates, but since no temporary president has yet given the castng vote, the disagreeing half might cast doubt on the procedure, and the current stalemate situation might continue until the next elected senators or a new lieutenant governor take office.

Legality of the move

Democrats have argued that the move was illegal, and therefore Malcolm Smith is still the majority leader and temporary president. One argument presented is that the session was adjourned before the vote to change leadership took place. According to Malcolm Smith, senator Neil Breslin had accepted a motion to adjourn, and therefore ended the session, before the Republicans were able to gain control. Senator Libous argues that since his original motion was on the floor, the session could not have been adjourned. According to Libous, who based his argument upon Robert's Rules of Order, the rules of order used by the state Senate, “you cannot adjourn when a motion is on the floor.” Furthermore, like all motions, motions for adjournment require a vote, which never took place before the Senators left.

Malcolm Smith claims that the attempted power shift was not legal, even if the resolution was passed, and issued a statement saying that he "was elected to a two year term pursuant to a resolution passed by a majority of Senators in January 2009", and that "the purported coup was an unlawful violation of New York State law and the Senate rules" which he does not accept. However, contrary to Smith's personal opinion, the Majority Leader is not elected to a fixed term, but remains in office only as long as the majority supports him, as the ouster of Ralph J. Marino in November 1994 shows. The election of Joseph Bruno, to succeed Marino against the latter's wishes, was not disputed by either Republicans or Democrats.

Angelo Aponte, the Secretary of the Senate, has further complicated matters by refusing to recognize the coalition, and has engaged in various efforts to prevent them from taking control, including locking Senate chambers, cutting off lights and video cameras, locking away bills, and withholding the court stenographer. Senate Republicans have sought legal action against Aponte for his behavior.

Democratic reaction

After the 28 Democratic senators walked out of the Senate chamber, Secretary of the Senate Angelo Aponte turned off the lights in the Senate Chamber and stopped the TV broadcast.

Shortly after the vote, the office of Malcolm Smith released a statement, read by spokesperson Austin Shafran:

This was an illegal and unlawful attempt to gain control of the Senate and reverse the will of the people who voted for a Democratic majority. Nothing has changed. Senator Malcolm A. Smith remains the duly elected temporary president and majority leader.

— The office of Malcolm Smith

The next day, Aponte denied Espada the keys to the Senate chamber, at which point Espada accused Aponte of abusing his power and asked for his resignation. Aponte refused: "I was appointed legislatively for a two year term and I intend to serve out my two year term."

On June 10, 2009, Malcolm Smith was said to be seeking a temporary court order to prevent the Republicans from taking power. On the morning of June 11, 2009, Democratic senator Neil Breslin went to court to file an injunction, but New York Supreme Court Justice George Ceresia denied the request. Minutes later, the Republican-led coalition held a brief session, but they were unable to conduct business because the Democratic conference had locked away the bills, and also had withheld the stenographer, who is required for official business. The coalition would not have had the required votes necessary to pass a bill anyway, because Hiram Monserrate voted "present", and then left the session, leaving 31 senators in the session, 1 shy of the 32 votes needed to pass a bill. Monseratte said that he would not vote on anything until more Democrats joined the Senate session, and instead wanted to create a compromise that included the Democrats who were boycotting the session.

Later in the day, Justice Karen Peters, a judge in the Appellate Division of the New York State Supreme Court, granted senator Smith's request for a temporary restraining order against Espada. The restraining order prevented Espada from exercising the power granted to the temporary president of the Senate under Article 4, Section 6 of the New York Constitution. These powers elevate the temporary Senate president to acting governor when the governor is out of state or incapacitated. The order was valid until the outcome of a Albany County Supreme Court hearing, which was scheduled for the next day, June 12, at 9 a.m. The ruling put Sheldon Silver, Speaker of the New York State Assembly, temporally next in line of succession in case a vacancy occurs in the governor's office. The restraining order was vacated by Justice Thomas J. McNamara on June 16. Besides, Justice McNamara refused to intervene in the dispute, saying that "a judicially imposed resolution would be an improvident intrusion into the internal workings of a co-equal branch of government", and he urged the State senators to solve the problem by negotiation.

Governor David Paterson criticized the coup attempt as "despicable" and "an outrage" due to the issues that are still on the table in the remainder of the legislative session. He later announced that he would avoid out-of-state travel, since the acting lieutenant governor becomes acting governor when the governor leaves the state. Since there is disagreement over whether Espada succession was legal, Paterson said: "The best thing for me to do is to stay here."

Former Governor Eliot Spitzer has been more supportive of the moves, saying: "The use of that power by two Democratic senators, though perhaps for questionable purposes, is emboldening others to use their leverage to bargain for worthwhile causes."

Unrelated legal troubles

Both Espada and Monserrate have had recent legal troubles which, although not directly conected with the political deadlock, might have bearings on it. Monserrate was indicted on felony assault charges in March 2009 for allegedly slashing his girlfriend's face with broken glass, and if convicted, would automatically be removed from office. Espada is accused of not filing around 41 campaign reports since 2001, which casts doubt on the cashflow of his campaigns. Espada currently has $13,000 in outstanding fines to the state for not filing contribution records related for his 2008 campaign. He was also ordered to pay the Campaign Finance Board $60,000 in fines related to his 2001 campaign for Bronx borough president. Espada is under investigation by State Attorney General Andrew Cuomo in relation to a non-profit Espada founded, Soundview Health Clinic, amid allegations that Espada used state money directed at the clinic for his political campaigns. Espada is also under investigation for possibly living out of district in Mamaroneck, instead of at his claimed residency in the Bronx.

References

1. ^ Hakim, Danny (2009-06-15). "Monserrate Flips Back to Democrats". New York Times. Retrieved 2009-06-15. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
2. Odato, James M. (2009-06-09). "Republicans flip Senate". Albany Times Union. George Hearst. p. 2. Retrieved 2009-06-11. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
3. ^ Hakim, Danny (2009-06-08). "G.O.P. Regains Control of New York State Senate". The New York Times. p. 2. Retrieved 2009-06-10. {{cite news}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
4. Lovett, Kenneth (2009-06-15). State Senate standoff means even bigger mess with Sen. Hiram Monserrate's change of heart. New York Daily News Retrieved 2009-06-15.
5. Hakim, Danny and Peters, Jeremy W (2009-06-22). "Paterson Vows Vote on Gay Marriage Before Break". New York Times. Retrieved 2009-06-22. {{cite web}}: Italic or bold markup not allowed in: |publisher= (help)CS1 maint: multiple names: authors list (link)
6. Frazier, Michael (2009-06-09). "Albany coup confuses some Espada constituents in the Bronx". www.newsday.com. Newsday. Retrieved 2009-06-10.
7. Odato, James (2009-06-08). "Two Democrats join Republicans to topple Smith as Senate leader". www.thetimesunion.com. Times Union. Retrieved 2009-06-10.
8. Ordered Liberty: A Constitutional History of New York by Peter J. Galie (Fordham University Press, 1995, ISBN 0823216527 , ISBN 9780823216529 ; page 271)
9. ["No election of a lieutenant-governor shall be had in any event except at the time of electing a governor." see New York Constitution, Art. 4, § 6
10. For more information about legislative crises in New York, see John C. Jacobs and the Senate crisis 1882, Daniel D. Frisbie and the U.S. senatorial election crisis 1911, Joseph Zaretzki and the Senate crisis of 1965
11. "Governor: "I recognize Malcom Smith"". www.cbs6albany.com. Freedom Communications, Inc. Retrieved 2009-06-11.
12. Arco, Matthew (2009-06-09). "Libous: 'We're going into session'". www.legislativegazette.com. Legislative Gazette. Retrieved 2009-06-11.
13. "Smith holds on … for now". libn.com/politbureau/. Long Island Business News. 2009-06-10. Retrieved 2009-06-11.
14. Liu, Irene Jay and Robert Gavin. Day of discord; new trip to court. Albany Times-Union. Retrieved 2009-06-25.
15. ^ Blain, Glenn (2009-06-09). "State Senate plotters targeting a loyal Malcolm Smith ally: Angelo Aponte". www.nydailynews.com. Daily News. Retrieved 2009-06-10. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
16. ^ Peters, Jeremy W. (2009-06-08). "Republicans Seize Control of State Senate". cityroom.blogs.nytimes.com. The New York Times. Retrieved 2009-06-10. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
17. "UPDATE: Coalition refused keys to NY Senate after coup". www.cbs6albany.com. The Associated Press. Retrieved 2009-06-11.
18. Benjamin, Elizabeth (2009-06-10). "Aponte Emerges". www.nydailynews.com/blogs/dailypolitics/. Daily News. Retrieved 2009-06-11.
19. Bauman, Valerie (2009-06-10). "Senate Dems seek court order against coalition". wnyt.com. WNYT-TV, LLC. Retrieved 2009-06-10.
20. "Judge Denies Injunction; Republicans say session is at 11". www.cbs6albany.com. Freedom Communications, Inc. 2009-06-11. Retrieved 2009-06-11. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
21. ^ Virtanen, Michael (2009-06-11). "Coalition enters NY Senate, but stymied". www.newsday.com. The Associated Press. Retrieved 2009-06-11.
22. Lovett, Kenneth (2009-06-11). "Judge rules against Democrats in Albany; GOP holds session without them". www.nydailynews.com. Daily News. Retrieved 2009-06-11. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
23. Benjamin, Elizabeth (2009-06-11). "Score One For Smith (Updated)". www.nydailynews.com/blogs/dailypolitics/. Daily News. Retrieved 2009-06-11.
24. Scott, Brendan and Fred Dicker (2009-06-11). TURNCOAT'S VOTE IS UP FOR GRABS. New York Post. " Meanwhile, Assembly Speaker Sheldon (D-Manhattan) will serve as next in line to the chief executive. "
25. Judge Refuses to Undo Change of Control in State Senate in NYT on June 17, 2009
26. Lovett, Kenneth (2009-06-09). "GOP coup in Albany: Senators Hiram Monserrate and Pedro Espada Jr. vote against fellow Democrats". www.nydailynews.com. Daily News. Retrieved 2009-06-10. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
27. Precious, Tom (2009-06-09). "With New York's Senate in chaos, governor stays put". www.buffalonews.com. The Buffalo News. Retrieved 2009-06-11.
28. Spitzer, Eliot (2009-06-10). Why the state senate circus will be good for New York. Slate.com. Retrieved 2009-06-10.
29. ^ Kugler, Sara (2009-06-10). "Constituents of dissident Dems are angry, confused". www.newsday.com. Newsday. Retrieved 2009-06-10.
30. Saltonstall, David (2009-06-10). "Sen. Pedro Espada hounded by questions on ethics and residency". www.nydailynews.com. Daily News. Retrieved 2009-06-10.
31. "Bronx DA Launches Investigation Of Sen. Espada". wcbstv.com. CBS Broadcasting Inc. 2009-05-11. Retrieved 2009-06-10.

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