Original Article

A federal judge who is weighing whether to block the first expulsion of a member of the New York State Legislature in nearly a century appeared unmoved on Thursday by arguments that the removal was unlawful.

In a pointed exchange, Judge William H. Pauley, of United States District Court in Manhattan, peppered lawyers for Hiram Monserrate, the Queens Democrat who was expelled from the State Senate this month, with skeptical questions about their contention that the ouster robbed their client of due process and usurped the rights of voters in his district.

Judge Pauley also raised questions about the separation of powers, asking whether it was appropriate for the courts to intervene in an issue that involves a decision by state legislators.

But lawyers for Mr. Monserrate, Norman Siegel and Steven J. Hyman, argued that the Senate recklessly and hastily removed him in an act of political retribution. They contended that the Legislature lacks any authority to expel an elected member.

“The Senate claims it has inherent powers to do what it wants with regard to its members,” Mr. Hyman said. “We claim that’s wrong.”

The counsel for the attorney general’s office, which is defending the Senate against Mr. Monserrate’s lawsuit, told the judge that the claim that the Senate could not remove one of its own members was “a breathtaking argument,” especially considering that every other state has a process for expelling legislators.

The attorney general’s office also disputed the argument by Mr. Monserrate’s lawyers that he was being punished by his colleagues for his outspoken statements condemning the Senate investigation into his conduct and for his role in a failed leadership coup last summer.

“This case has nothing to do with core political speech,” said Henry M. Greenberg, counsel to Attorney General Andrew M. Cuomo. “It has everything to do with conduct.”

Mr. Monserrate was removed from office on Feb. 9 by a vote of 53 to 8. He was convicted last fall of misdemeanor assault after a fight with his female companion that left her requiring more than 20 stitches on her face. A video camera recorded Mr. Monserrate dragging his companion through the hallway of his apartment in Jackson Heights, Queens.

A judge acquitted the former senator of more serious felony assault charges. State law says that legislators are automatically removed from office upon a felony conviction.

But the law is essentially silent on whether lesser offenses warrant expulsion, and Mr. Monserrate’s lawyers argued that the law’s vagueness — it says only that each chamber of the Legislature has the power to expel “any of its members” — makes it unconstitutional.

“There needs to be a narrowly tailored standard,” Mr. Siegel said.

Mr. Monserrate, who sat in court at the plaintiff’s table during the arguments, was cheered as he left the courthouse by several dozen supporters brought in from his district in Queens on three yellow school buses.

“Ultimately, I believe justice will prevail,” Mr. Monserrate said outside the courthouse.

One of his supporters, Rolando Bini, said: “I like him. He’s a rebel. And every once in awhile you need someone like him to shake things up.”