The 2009 New York State Senate leadership crisis was a political dispute and constitutional crisis that prevented the New York State Senate from functioning for a month.
In 2009, the State Senate was controlled by Democrats with a narrow 32–30 majority. On June 8, 2009, a coalition of all 30 Senate Republicans and two Democrats, Hiram Monserrate and Pedro Espada Jr., voted to replace Senate Majority Leader Malcolm Smith with then-Senate Republican Leader Dean Skelos. The coalition appeared to have gained control of the Senate in a move that was described as a political coup. However, on June 15, Monserrate left the coalition and returned to the Democrats' side. The result was a 31–31 tie in the Senate. Upon the March 17, 2008, resignation of Gov. Eliot Spitzer following a sex scandal, then-Lieutenant Governor David Paterson had been sworn in as Governor of New York; this left the position of Lieutenant Governor vacant. The absence of a Lieutenant Governor (whose duties include serving as President of the Senate) left no apparent way to break the 31–31 deadlock; therefore, the Senate was unable to conduct business. Governor Paterson attempted to pressure the Senate into action by withholding their salaries and convening mandatory special Senate sessions, but his efforts were unsuccessful.
On July 8, Governor Paterson appointed Richard Ravitch as Lieutenant Governor in an effort to break the Senate deadlock. However, Attorney General Andrew Cuomo argued that the appointment was illegal. The next day, Espada announced that he was returning to the Democrats, giving them a 32–30 majority once more and effectively ending the crisis; following this move, Espada was given the title of Senate Majority Leader, while Smith remained Temporary President of the Senate. The appointment of Ravitch as Lieutenant Governor was eventually upheld by the New York Court of Appeals.
History Background The State Senate had been controlled by Republicans since 1965, but Democrats were able to win a majority in the 2008 elections. The change was helped by upstate billionaire Tom Golisano, who had donated $5 million to the Democrats' campaigns. However, dissatisfaction with the job that Majority Leader Malcolm Smith was doing was growing with his fellow Democrats, as well as with Golisano.
Golisano, with the aid of his political adviser Steve Pigeon, set up a series of private meetings between Republican senators Dean Skelos, Tom Libous, and George D. Maziarz, and after Pigeon convinced him, Democratic senator Pedro Espada Jr. The first meeting took place at a club in Albany, followed by one at Golisano's house in Rochester, followed by a series at Espada's house in Albany. Espada said that Senator Monserrate was the only one among his fellow Democrats that knew of the meetings.
Republican strategist Roger Stone may have been involved in the discussions, and according to Pigeon, knew about the plan in advance. Golisano, who recently moved to Florida, did not take part in the meetings at Espada's house, but was kept informed by Pigeon. On June 4, Pigeon told Golisano that the deal "was real solid," and on June 8, Golisano was in Albany to watch the events unfold from the Senate chamber balcony.
June 8 Senate 'coup'
During the Senate session on June 8, Republican Senator Thomas Libous proposed a resolution, similar to a motion of no confidence, that would allow for the election of a new leader of the Senate. The entire 32-senator coalition voted for the resolution. After the resolution was passed, but before the vote was recognized by officiating officer, Senator 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 Breslin declared the meeting adjourned, all but four Democratic senators walked out of the Senate chamber. The Democrats who stayed were Espada and Monserrate, who had voted for the resolution, and Carl Kruger and Ruben Diaz, who abstained from all voting during the course of events but stayed to show their support.
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 of the Senate session. Nevertheless, 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 as Majority Leader, and Pedro Espada as Temporary President.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. In addition, the legal terminology has changed as the New York Constitution was changed. For more, see Majority Leader of the New York State Senate. Historically, the majority leadership and the temporary presidency of the Senate were held by the same person. However, in the new arrangement, Espada was to be the Temporary President of the Senate, while Skelos would become Majority Leader.
After the election of the 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. Despite voting for the change in leadership, Espada and Monserrate stated that they were still Democrats, and that there was still a 32–30 Democratic majority in the Senate.
Immediate reaction The Democrats claimed that the change was illegal, and that therefore Malcolm Smith was still the Majority Leader and Temporary President. According to Smith and other Democrats, Senator Neil Breslin had accepted a motion to adjourn, and therefore ended the session before the Republicans voted to change leadership.
Smith also claimed that the attempted power shift was not legal, even if the resolution did pass. He 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". However, there was precedent for changing the majority leader midterm, as Ralph J. Marino was ousted during the Thanksgiving holiday in 1994.
Lieutenant Governor David Paterson criticized the initial motion by Senator Libous as "despicable" and "an outrage" due to the issues that were still on the table in the remainder of the legislative session.
Legal actions On June 10, Malcolm Smith said he was seeking a temporary court order to prevent the Republicans from taking power. Later in the day, Justice Karen Peters, a judge in the Appellate Division of the 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 IV, §6, of the New York Constitution, which include the elevation of Senate president to acting governor when the governor is out of state or incapacitated. The order was valid until the outcome of a Supreme Court hearing, which was scheduled for the next day. The ruling put Sheldon Silver, Speaker of the New York State Assembly, temporarily next-in-line of succession to the governor's office. This restraining order was vacated by Justice Thomas J. McNamara on June 16. 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"; McNamara urged the senators to solve the problem by negotiation.
Separately from Senator Smith's request, Senator Neil Breslin attempted to file an injunction on June 11. The injunction was denied by New York Supreme Court Justice George Ceresia.
On June 24, Republican senators John Flanagan and George Winner filed a petition with Justice McNamara, requesting that Aponte be forced to recognize the authority of Skelos and Espada. Aponte had instructed the chamber's stenographer, journal clerk, and sergeants-at-arms to ignore any orders from the Republican leaders. On June 26, McNamara adjourned the case to allow the Senators more time for discussion.
Initial attempts to hold session On June 9, the day following the attempted power shift, 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, responding "I was appointed legislatively for a two year term and I intend to serve out my two year term." The following day, June 10, Espada acquired the keys, but not from Aponte or any of the Senate Democrats.
On June 11, minutes after Neil Breslin's requested injunction was denied, 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. This proved immaterial, as the coalition would not have had the required votes necessary to pass a bill. Hiram Monserrate voted "present", and then left the session, leaving 31 senators in the session, one shy of the 32 votes needed to pass a bill. Monserrate 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. Monserrate's decision to not vote on any issues led to rumors that he might flip back to the Democrats' side.
Hiram Monserrate returns to the Democratic caucus; legislative deadlock results Senate Republicans were confident that Monserrate would stay on their side. However, on June 12, Monserrate was praising Democratic Senator John Sampson, who was the front-runner to replace Senator Smith as the Democratic leader. On June 15, in an apparent effort to woo Monserrate, Democrats voted Senator John Sampson as their de facto leader. The move proved successful for the Democrats, as later that day Senator Monserrate declared he would once again caucus with the Democrats.
Monserrate's decision to return to the Democrats meant that the Senate was evenly divided between the 31-member Democratic caucus and the 31-member Republican caucus; there was no clear way to break the tie. In the case of a tie vote in the Senate, a casting vote—also called a tie-breaking vote—can be taken by the Lieutenant Governor; however, there is debate over the meaning of the term "casting vote".For more information about legislative crises in New York, see Theophilus C. Callicot and the tied Assembly of 1863; the seven weeks lasting deadlock of the 1881 United States Senate special elections in New York; John C. Jacobs and the Senate leadership crisis of 1882; Daniel D. Frisbie and the U.S. Senatorial election crisis in 1911; and Joseph Zaretzki and the Senate leadership crisis of 1965. Furthermore, the lieutenant governorship had been vacant since David Paterson ascended to the governor's office upon the resignation of former Governor Eliot Spitzer. According to the State Constitution, if the Lieutenant Governor's office is vacant, the Temporary President of the Senate is to perform all of the Lieutenant Governor's duties. However, Senators Smith and Espada each claimed to be Temporary President of the Senate.