Monserrate Brief

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OFNEW YORK

HIRAM MONSERRATE, e t a l., Plaintiffs, Index No. 10-CV-l106 (WHP)-- against --

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THENEW YORK STATE SENATE,eta l . ,Defendants .

MEMORANDOUM OFLAW IN SUPPORT OF FEDERALCONSITUTIONAL CHALLENGE TO THE EXPULSIONOFHIRAM MONSERRATE SUBMITTED ON BEHALFOF THE NEW YORK CIVIL LIBERTIES UNION AS

AMICUS CUR IAE.

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February 17,2010

Arthur N. EisenbergNew York Civil Liberties Union125 Broad Street, 19th FloorNew York, NY 10004(212) 607-3324Counsel for Amic us Curia e


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TABLE OF CONTENTSTABLE OF AUTHORITIES ; iiINTRODUCTION AND INTEREST OF AMICUS : 1ARGUMENT ; 4I. THE EXPULSION OF HIRAM M ONSERRATE FROM THE NEW YORKSENATE CANNOT B E SU STAIN ED WHER E, A S HER E, TH E SENATE 'SIN TE REST S CAN B E SE RVED BY THE MORE "NARROWLY TA ILORED "VEHICLE OF CENSURE 4II. TH E DECISIO NTO EX PEL M R. M ONSERRATE IN THE ABSEN CE OFANY STANDARDS GOVERNING SUCH DEC ISIONS CANNOT B ERECONCIL ED W ITH REQU IR EMENTS OF "PRECIS ION OF

R EGULATION" WHER E, A S HER E, FIR ST AMENDMENT R IGHT S ARE ATSTAKE 8III. TH E D ECISIO N TO PUNISH MR. MON SERRA TE B Y EX PELLIN G H IMFROM THE SENAT E CONSTIT UTE S AN UNCONST ITUTINOAL B IL L O FATTAINDER 9

CONCLUSION ; : 11

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TABLE OF AUTHORITIESCasesAnderson v . Celebrezze , 460 tJ.S. 780, 787 (1983) .1,6, 8Burdickv. Takushi, 504 U.S. 428,438 (1992) 5Carrington v . Rash , 380 U.S. 89 (1965) ,' 1Dunn v . Blumstein, 405 U.S. 330 (1972) .1, 7NAACP v . Button, 371U.S. 415,438 (1963) ~ 8Nixon v . Admin is tr a to r o f Gene ra l S e rv ic e s, 436 U.S. 425, 468 (1977) .10Powel l v . McCo rmack, 395 U.S. 486,547 (1969) : 1, 4Reynolds v . Sims, 377 U.S. 533,561 (1964) .. ; 1,5Selec tive Serv ice v . Minne so ta Pub lic in te re st R e se a rc h Grou p,468 U.S. 847,846 (1984).: ' .10Shutt leworth v . Birmingham, 382 U.S. 87,90 (1965) , ; 8Uni ted Sta tes v . Brown, 38 U.S. 437 (1965) ' 9, 10us. Term Limit s v . Thornton, 514 U.S. 779 (1995) 5Will iams v . Rhodes , 393 U.S. 23, 30 (1968) 1, 6

StatutesPublic Officers Law 30 8, 10, 11

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INTRODUCTION AND INTEREST OF AMICUSIt is a fundamental principle of our democracy that the people retain the right to

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choose their representative and thehavetht representative' serve. Powell v. McCormack,395 U.S. 486, 547 (1969). This democratic principle finds precedential support in twointerrelated doctrinal lines of constitutional authority. The first involves the basic right tovote, a right that the Supreme Court has reco gnized as fundamental because it ispreservative of all other rights. See Reynolds v. Sims, 377 U.S. 533,561 (1964);Carrington v. Rash, 380 U.S. 89 (1965); Dunn v. Blumstein, 405 U.S. 330 (1972). Thesecond precedential source lies in the First Amendment right of voters to associate insupport of a candidate, a right recognized by the Court only the term before Powell wasdecided. See Williams v. Rhodes, 393U.S. 23, 30 (1968).

The democratic right of the people to representation by their elected legislator isnot, however, absolute. Nevertheless, as Powell suggests, the power to nullify

democratic choice must be narrowly construed. Powell, 395 U.S. at 547 ("Had the intentof the framers emerged from these materials with less clarity, we would neverthelesshave been compelled to resolve any ambiguity in favor of a narrow construction of thescope of the power to exc1ud~ a member-elect.") Moreover, locating the democraticprinciple of elected-representation as an inherent aspect of the fundamental right to voteand to associate in support of candidates means, as Powell suggests, that there is a strongconstitutional presumption against efforts to abridge that principle. In this regard, theCourt has found that the imposition of substantial burdens upon the right to vote and toassociate in support of candidates can only be sustained if found "necessary" and"narrowly tailored" to the pursuit of substantial governmental interests. Anderson v.

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Celebrezze, 460 U.S. 780, 787 (1983). Accordingly, the decision to expel Senator HiramMonserrate from the New York State Senate must be measured against that constitutionaltest. Additionally, because First Amendment rights of political association are implicatedby the expulsion decision at issue here, that decision must also be subjected toconstitutional vagueness principles and the requirement of clear regulatory standards.Finally, the constitutional prohibition, against Bills of Attainder is implicated where, ashere, the expulsion of Mr. Monserrate constitutes a punishment specifically directed at asingle individual and where the determination of blameworthiness extends beyond thescope of any judicial determination and is unsupported by any law of general.applicability.

The New York Civil Liberties Union (NYCLU) is the New York State affiliate ofthe American Civil Liberties Union. As such, the NYCLU is deeply devoted to theprotection of fundamental constitutional rights. Among the most fundamental of rights'are the right to vote, to associate in support of candidates and to have electedrepresentatives serve their constituencies. These rights are, as noted.foundational to ourdemocracy. Accordingly, the NYCLU respectfully seeks leave to participate inthislitigation as am icus c ur ia e in order to address these basic constitutional principles andtheir application to the expulsion of Hiram Monserrate from the New York State Senate.

This controversy involves ~.difficult yet important test of our commitment to

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democratic values. Domestic abuse is a deeply malevolent problem which properlyrequires both vigorous responses by law enforcement and pointed condemnation bysociety as a whole. And in the minds of many, if not most people, Mr. Monserrate isbelieved to have engaged, on the evening of December 19, 200~, in a brutal act of


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domestic abuse notwithstanding his acquittal on the more serious charges arising out ofthe events of that date. In such a circumstance, there may well be a popular impulse to

compromise constitutional principles as inconvenient and obstructive of the sincere yetclamorous call for Mr. Monserrate's removal. However, in circumstances such as this, itis important to remain mindful of our most enduring constitutional values. It is aparticular responsibility ofthe NYCLU to insist upon adherence to our most cherishedvalues even in the face of an unpopular cause. We seek leave to submit this amicus brieffor this reason, as well.

In so doing, this brief will first address the federal rights that are implicated by the'expulsion decision and evaluate thy decision to expel Mr. Monserrate against the

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constitutional standards that have developed to protect those rights. In this regard, weconclude that the expulsion decision cannot be sustained where, as here, a censureresolution could have provided a "more narrowly tailored" vehicle to address the Senate ',sinterests. This matter is amplified in Point I of the Argument below.

In Point II, we address the question of whether the absence of substantivestatutory standards governing the decision to expel can be reconciled with FirstAmendment principles that 'seek to cabin ad hoc decision-making by proscribing vaguestandards in the regulation of expressive or associational activities. We conclude that the

," .. 'absence of clear statutory standards governing the expulsion decision renders thatdecision impermissible.

Finally, the expulsion decision violates the prohibition against Bills of Attainderwhere, as here, the ad hoc, free-wheeling nature of the Senate's punishment directedspecifically at Mr. Monserrate, in this case, rests upon conclusions of blameworthiness

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"dem ocratic system " w as reaffirm ed by the C ourt in u . s . T erm L im it s v . T ho rn to n,5 14U .S . 7 79 (1 99 5).

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Neith er th e Powel l C ourt nor the Thornton C ou rt specifically lo cated th e textual orprecedential sou rce for its reco gnition of the peo ple's r igh t t choo se th eir electedrepresentative and to have that representative serve. B ut tw o potential sou rces areapparent. The first involves the basicright to vote w hich the Court has recognized asem br acin g th e r ig ht to re pr ese ntatio n o n a leg islativ e b od y w ith o th er r ep rese ntativ es.Reynolds v. S im s, su pra , (one person, one vote case in w hich "equal r ight to vote" isevaluated interm s of its im pact on legislative body as a w hole) and w hich the Court hasfurth er recog nized n ot as an abstractr igh t of po litical ex pressio n bu t as an instrum entalr ig h t to c hoos e o ff ic eho ld er s. Burdick v. Takushi, 504 U .S. 428, 438 (1992) (the functionof electio ns is "to w inn ow out an d fin ally reject all bu t th e ch osen can didates.").

In str iking d ow n a m alap po rtio ned legislative d istr icting sch em e in Reynolds Y.Sims, the Court recognized that "[a]slong as ours is a representative form of goverm nentand ou r legislatu res are tho se in strum en ts o f g overnm en t elected directly and d irectlyrep resen tativ e of th e people, the rig ht to elect legislators in a free and un im paired fash ionis a b edro ck of ou r po litical system ." Reyn ol ds , s up ra at 561. The im pairment that w asfo un d im permissib le in Reynolds involved a dilu tion of the equal r ight to vote as ita ffe cte d th e c ompos itio n o f th e le gis la tu re .

B ut if th e d ilu tio n, thro ugh m alapp ortio nm ent, of th e rig ht to cho ose legislators isa s ou rce o f co nstitu tio nal co ncer n, sim ilar s olicitu de m ust also ex ten d to th e n ullific atio nof a distr ict's electoral choice through the expulsion of that choice by other m em bers ofthe legislative body. This is not to say that expulsion is never perm itted. But, as

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discussed below, the right of the voters to representation by their elected representativesshould not lightly be abridged.

The second precedential source lies in the First Amendment right of voters to

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associate in support of a candidate, a right recognized by the Supreme Court only theterm before Powell was decided. See Williams v. Rhodes, 393 U.S. 23, 30 (1968). In thisregard, the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780, 787 (1983) lookedback at Williams v. Rhodes, supra, in recognizing the inter-relationship between the rightto vote andto associate in support of candidates. Quoting from Williams, the CelebrezzeCourt noted:

"State laws [affecting theelectoralprocess] place burdens on two different,although overlapping kinds of rights:'" the right of individuals to associa.te for theadvancement of political beliefs, and the right of qualified voters, regardless oftheir political persuasion, to cast their votes effectively, Both of these rights, ofcourse, rank among our most precious freedoms," Anderson, 460 U.S. at 787citing Williams, 393 U.S. at 30-31.The Anderson Court went on to suggest the constitutional standard applicable

whenever courts are called upon to evaluate electoral schemes that implicate the right tovote and to associate in support of candidates and, perforce, officeholders. Itnoted thatcourts:

"Must first consider the character and magnitude of the asserted injury to therights protected by the First and Fourteenth Amendment that plaintiff seeks tovindicate. It then must evalate 'the precise interests put forward by the State asjustifications for the burden imposed by [the restriction]. In passing judgment,[courts] must not only determine the legitimacy and strength of each of thoseinterests; it also must consider the extent to which those interests make itnecssary to burden the plaintiffs rights." Anderson, 460 U.S. at 789.Beyond reciting this broad balancing test, however, the Anderson Court

recognized that where the State significantly burdens the right to vote and to associate insupport of an office-seeker, such burdens Can only be sustained if found "necessary" and


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"narrowly tailored" even where stteinterests are substantial. Anderson, 460 U.S. at 805-806. See also, Dunn v. Blumstein, 405 U.S. 330, 342-343 C'In pursuing [an] importantinterest, the State cannot choose means that unnecessarily burden or restrictconstitutionally protected activity.") That is the standard that should apply here.

In this case, the State Senate has chosen to remove an elected representative fromthe Thirteenth District. This represents a significant nullification of the rights of votersand supporters within Mr. Monserrate's district. The question must therefore be asked asto whether any substantial interest supports the Senate's nullification of the electoraldecision reached by the Thirteenth District. In defense ofits decision, the Semite hasoffered a range of explanations as to why it concluded that the expulsion of Mr.Monserrate was justified. See the Senate's Memorandum of Law at 1. At bottom,however, the expulsion decision rested upon a desire to condemn vigorously Mr.Monserrate for his conduct on the evening of December 19,2008. And, as noted above,

this interest in condemning Mr. Monserrate can well qualify as a substantial state interest.But this interest can be just as vigorously advanced by a strong statement accompanyinga vote of censure or even removal from his powerful position of committee chair, whichis an honor and responsibility granted by the Senate itself, not by the voters. Sounderstood, other measures provides a more "narrowly tailored" remedy to advance theSenate's interest, without implicating the fundamental rights of voters, and expulsioncannot be found "necessary" to that interest. For this reason, the expulsion decisioncannot be reconciled with constitutional standards.

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Il. THE DECISION TO EXPEL MR. MONSERRATE IN THE ABSENCE OFANY STANDARDS GOVERNING SUCH DECISIONS CANNOT BERECONCILED WITH REQUIREMENTS OF "PRECISION OFREGULATION" WHERE, AS HERE, FIRST AMENDMENT RlGHTS AREAT STAKE.

As noted above, the decision to expel a sitting legislator implicates the FirstAmendment rights of voters to associate in support of a candidate and to have that

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candidate serve if elected. Anderson v. Celebrezze, supra. Itis further understoodthat where First Amendment rights are at stake, government must regulate withcareful precision. NAACP v. Button, 371 U.S. 415, 438 (1963) ("Precision ofregulation must be the touchstone in an area so closely touching our most preciousfreedoms."). This prohibition against vague standards in the regulation of FirstAmendment activities rests, in part, upon the need to cabin official discretion so thatthose who are called upon to administer the law fully understand the limits of theirdiscretionary decision-making. Shuttleworth v. Birmingham, 382 U.S. 87,90 (1965). ,

In this case, the decision to expel Mr. Monserrate was undertaken in the absenceof any standards whatever governing the decision to expel. The legislature hadenacted a statutory provision, Public Officers Law 30, that deemed a public officevacant, inter alia, if the officeholder were found guilty of a felony. But that statutoryprovision was inapplicable to theM~nserrate situation since Mr. Monserrate Was notfound guilty of a felony.The Senate was, therefore, left to expel Mr. Monserrate without any statutory

guidance at all. The State Senate's assertion of unfettered authority to expel one of itsmembers cannot be reconciled with the First Amendment rights of politicalassociation. Under the Senate's view of its authority, for example, it could expel a

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member for holding the wrong ideological views. And, indeed, the Report oftheNew York State Senate Select Committee To Investigate the Facts and CircumstancesSurrounding the Conviction of Hiram Monserrate on October 15,2009 at 47-48(hereafter "The Report"), cites, with apparent approval, the 1920 exclusion of fivemembers of the State Assembly upon the grounds that they were members of the .Socialist Party. And, of course, ifmembers of the Socialist Party can be excludedfrom the Legislature on ideological grounds it would similarly be permissible to expelany of the current members for holding the Wrong opinions or even for changingpolitical parties out of ideological disagreement with their original party.

Amicus does not here contend that the Legislature moved against Mr. Monserratebecause of his party-switching in the Spring and Summer of2009. We accept thegood faith and sincerity of those who voted to expel. We raise this issue, however,simply to demonstrate the danger to democratic principles in allowing a legislative

,body to expel one of its members in the absence .of any substantive standards. That iswhat has taken place in this case.III. THE DECISION TO PUNISH MR. MONSERRATE BY EXPELLING HIM

FROM THE SENATE CONSTITUTES AN UNCONSTITUTINOAL BILLOF ATTAINDER.

Bills of Attainder are unconstitutional. Article I Section 9 of the federalConstitution prohibits Congress from adopting such measures .: Article I Section lOafthe Constitution extends such a prohibition to the States. InUn ite d S ta te s v . B rown,38 U.S. 437 (1965), the Court explained the underlying purposes of theseprohibitions. The Court observed:

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"[T]h e B ill of A ttaind er C lause[s] n ot only [w ere] intend ed as o ne im plem en tatio no f th e g eneral p rin ciple of fractio nalized p ow er, b ut also reflected th e Fram ers' b eliefthat the Legislative B ranch is not so w ell suited as politically independent judges andjuries to the task o f ru lin g upo n th e blam ew orthin ess, of and levyin g appro priatepu nishment up on, sp ecific p erson s ... B y b an ning bills of attain der, the F ram ers of theC onstitution soug ht to g uard again st such d ang ers by lim itin g leg islatu res to the taskof rule-making. It is th e p eculiar pro vince o f th e legislature to prescribe gen eral rulesfor the governm ent of society; the ap plication s o f tho se rules to in divid uals in so cietyw ould seem to be the duty of other departm ents." Id. at 445A6.

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C on sistent w ith this con stitu tio nal p urp ose, th e S up rem e C ourt has recog nized that alegislativ e m easure w ill co nstitute a B ill o f A ttainder if a legislative bod y attem pts toim pose punishm ent upon a specific individual in the absence of a law of generalap plica bility an d in th e ab se nce o f a ju dicial d eter min atio n o f b lam ew or th in ess. SelectiveService v. Minnesota Public Interest Research Group, 468 U ,S. 847, 846 (1984). In thisregard, the C ourt has held that a B ill of A ttainder is "a law that legislatively determ inesth e guilt an d inflicts pu nislunentup on an id entifiable in divid ual w ithou t p rov isio n of the.. '. :p ro te ctio ns o f a ju dic ia l tr ia l." Nixon v. Administrator of General Services, 436 U .S. 425,4 68 (1 97 7).

In this case, Pu blic O fficers Law . 30 offers a law of gen eral ap plicab ility. Itp ro vid es th at an office shall be deem ed vacant if the officeholder is convicted of "afelony or a crim e involving a violation of his oath of office." Put to one side the questiono f w hether so b road a d isq ualification is consisten t w ith the co nstitutional p rinciples of"narrow tailoring" articulated above. In this case, the Senate apparently does not - andcannot - rely upon Public O fficers Law 30 because M r. M onserrate w as not convictedof a felony or a crim e involving a v io latio n o f'h is o ath o f o ffice .

So understood, the Senate has acted here in an entirely ad hoc and f re e-whee li ngm ann er and in th e ab sen ce of a law of g eneral ap plicab ility. Ithas undertaken a


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, ,~ 'Under such circumstances: the punishment imposed upon Mr. Monserrateconstitutes an impermissible Bill of Attainder.

Respectfully submitted,

CONCLUSION

For the foregoing reasons, the decision to expel Hirarn Monserrate from the NewYork State Senate should be vacat'd. ' ',"

Arthur EisenbergNew York Civil Liberties Union

125 Broad Street, 19th FloorNew York, NY 10004(212) 607-3324

Counsel for Amicus Curiae,

New York, NYFebruary 17,2010

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Monserrate Brief

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