Monserrate v. New York State Senate, No. 10-604 (2d Cir. 2010)

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10-0604-cv Monserrate, et al. v. New York State Senate, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: March 12, 2010 Decided: March 16, 2010) Docket No. 10-0604-cv - - - - - - - - - - - - - - - - - - - -x HIRAM MONSERRATE, individually and as an elected official and member of the New York State Senate, CELESTE RODRIGUEZ, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, MICHAEL A. NARDIELO, III, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, MONIFA AFIA BEY, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, NANCY TORRES, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, LORETTA HENDERSON, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, and MALIKA K. SHABAZZ, individually and as duly registered and qualified voter in the New York State 13th Senatorial District, Plaintiffs-Appellants, - v.NEW YORK STATE SENATE, MALCOLM A. SMITH, in his official capacity as Temporary President of the New York State Senate, ANGELO J. APONTE, in his official 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 capacity as Secretary of the New York State Senate, THOMAS P. DiNAPOLI, in his official capacity as State Comptroller of the State of New York, ERIC T. SCHNEIDERMAN, in his official capacity as a Senator of the State of New York and Chair of the New York State Senate Select Committee to Investigate the Facts and Circumstances Surrounding the Conviction of Hiram Monserrate on October 15, 2009, DAVID A. PATERSON, in his official capacity as Governor of the State of New York, RICHARD RAVITCH, in his official capacity as Lieutenant Governor of the State of New York, LORRAINE CORTESVAZQUEZ, in her official capacity as Secretary of State for the State of New York, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, LYNCH, Circuit Judge, and RESTANI, Judge.* Appeal from an interlocutory order of the United States 28 District Court for the Southern District of New York 29 (Pauley, J.), denying a preliminary injunction that would 30 have unwound the expulsion of Hiram Monserrate from the New 31 York State Senate. 32 33 We affirm. NORMAN SIEGEL, New York, NY, for Appellants. * The Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 STEVEN J. HYMAN (Alan E. Sash and Rachel Nicotra, on the brief), McLaughlin & Stern, LLP, New York, NY, for Appellants. BARBARA D. UNDERWOOD, Solicitor General of the State of New York (Peter Karanjia, Special Counsel to the Solicitor General, and Sasha Samberg-Champion and Diana R.H. Winters, Assistant Solicitors General, on the brief), Office of Andrew M. Cuomo, Attorney General of the State of New York, for Appellees. DENNIS JACOBS, Chief Judge: Hiram Monserrate, who has been expelled from the New 20 York State Senate, along with six voters in New York s 13th 21 Senatorial District who voted for Monserrate (the 22 Monserrate voters ) (collectively, the Monserrate 23 Appellants ), pursue this expedited appeal from the denial 24 of a preliminary injunction in the United States District 25 Court for the Southern District of New York (Pauley, J.). 26 The requested preliminary injunction sought primarily to 27 unwind Monserrate s expulsion and to cancel the Special 28 Election scheduled for March 16, 2010. We affirm. 29 30 31 I On November 4, 2008, Monserrate received approximately 3 1 66 percent of the votes cast in New York s 13th Senatorial 2 District, thereby winning election to a two-year term as 3 State Senator. 4 office and assumed a seat in the Senate. 5 On January 7, 2009, he took the oath of On December 19, 2008--after the election but before the 6 oath of office--a woman suffered injuries to her face and 7 left arm in Monserrate s apartment and in the common area of 8 his apartment building. 9 After assuming a seat in the Senate, Monserrate was 10 indicted on three felony and three misdemeanor counts of 11 assault arising out of the December incident. 12 15, 2009, Monserrate was convicted of one count of 13 misdemeanor reckless assault after a bench trial in New York 14 Supreme Court, Queens County.1 15 sentenced to three years of probation, 250 hours of 16 community service, one year of domestic-abuse counseling, 17 and a $1,000 fine. 18 required Monserrate to refrain from any contact with the On October On December 4, 2009, he was A family offense order of protection 1 Pursuant to New York Penal Law § 120.00(2), a person is guilty of assault in the third degree when he recklessly causes physical injury to another person. 4 1 woman for a period of five years.2 2 from his judgment of conviction; the appeal remains pending. 3 Monserrate has appealed On November 9, 2009--after Monserrate s conviction but 4 prior to his sentencing--the Senate adopted Resolution 3409, 5 formally establishing a Select Committee to Investigate the 6 Facts and Circumstances Surrounding the Conviction of Hiram 7 Monserrate on October 15, 2009 (the Select Committee ). 8 Resolution 3409 recited the seriousness of the[] domestic 9 violence charges brought against Monserrate, found that 10 the circumstances surrounding [the charges] warrant further 11 investigation by the Senate, and observed that those 12 circumstances may warrant the imposition of sanctions by 13 the Senate. 14 directed to investigate the facts and circumstances relating 15 to the conviction against Senator Monserrate, and was 16 required to report to the Senate with its recommendations. 17 Resolution 3409 also directed the Select Committee to 18 ensure a full and fair investigation, ensure fairness in The Select Committee was authorized and 2 A family offense order of protection may be granted [w]hen a criminal action is pending involving a complaint charging any crime or violation between spouses, former spouses, parent and child, or between members of the same family or household . . . . N.Y. Crim. Proc. Law § 530.12(1). 5 1 the hearing process, specifically providing Senator 2 Monserrate and his counsel with notice of all public 3 committee proceedings, as well as ensuring opportunities for 4 Senator Monserrate to be heard. 5 The Select Committee convened on six occasions. It 6 reviewed, inter alia, the trial record, certain grand jury 7 testimony, phone records, a notarized statement by the 8 victim, and Monserrate s media interviews. 9 declined the invitation to present arguments and evidence in 10 11 Monserrate person, through counsel, or in writing. The unanimous report of the Select Committee (the 12 Report ), issued January 13, 2010, recommended that 13 Monserrate be expelled or that he be censured with 14 revocation of privileges: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Having considered the available evidence and evaluated the facts relating to the conduct that provided the basis for Senator Monserrate s conviction, the Select Committee finds that this case is serious enough to warrant a severe sanction. In doing so, we are mindful that ultimately, the voters of Senator Monserrate s district, where he plans to run for re-election, will decide whether or not he is returned to office. The Select Committee finds that the nature and seriousness of Senator Monserrate s conduct, as demonstrated by the surveillance video and other unrebutted evidence outlined in this Report, showed a reckless disregard for Ms. Giraldo s 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 The Special Committee further concluded that (i) Senator 16 Monserrate s assault . . . was a crime of domestic violence 17 and therefore in direct contravention of New York s well- 18 established zero-tolerance policy in such matters, and 19 (ii) Senator Monserrate has failed to accept responsibility 20 for his misconduct, or to cooperate in any way with the work 21 of the Select Committee. 22 well-being and for the severity of her injury. We therefore find, that under the particular facts and circumstances presented here, Senator Monserrate s misconduct damages the integrity and the reputation of the New York State Senate and demonstrates a lack of fitness to serve in this body. Accordingly, the Select Committee recommends that Senator Monserrate be sanctioned by the full Senate, and that the Senate vote to impose one of two punishments: expulsion, or in the alternative, censure with revocation of privileges. On February 9, 2010, the Senate voted 53 to 8 to expel 23 Monserrate. 24 Senator Monserrate surrounding his conviction for reckless 25 assault and concluded that his behavior has brought 26 disrepute on the Senate, and damaged the honor, dignity and 27 integrity of the Senate. 28 conduct is incompatible with the duties of the Senate to 29 uphold public confidence in government and promote the Resolution 3904 condemn[ed] the conduct of The Senate resolved that such 7 1 administration of justice under law, and further resolved 2 that Monserrate s actions in totality are not compatible 3 with the responsibilities of the office, and with the 4 qualifications and behavior expected of and by a State 5 Senator of New York. 6 On February 10, 2010, Governor David A. Paterson 7 proclaimed a Special Election to be held on March 16, 2010. 8 On February 11, 2010, the Monserrate Appellants filed this 9 action pursuant to 42 U.S.C. § 1983 seeking a temporary 10 restraining order and a preliminary injunction. 11 day, the district court denied the motion for a temporary 12 restraining order. 13 denied the motion for a preliminary injunction. 14 Monserrate Appellants timely appealed and this Court granted 15 their motion for an expedited appeal. The same On February 19, 2010, the district court The 16 17 18 II A preliminary injunction is an extraordinary remedy 19 never awarded as of right. 20 Council, Inc., 129 S. Ct. 365, 376 (2008). 21 denial of a preliminary injunction for abuse of discretion. 22 Lynch v. City of N.Y., 589 F.3d 94, 99 (2d Cir. 2009). Winter v. Natural Res. Def. 8 We review the A 1 district court has abused its discretion if it has (1) based 2 its ruling on an erroneous view of the law, (2) made a 3 clearly erroneous assessment of the evidence, or (3) 4 rendered a decision that cannot be located within the range 5 of permissible decisions. 6 omitted). Id. (internal quotation marks 7 8 9 10 A The Second Circuit has articulated the following standard for granting a preliminary injunction: 11 12 13 14 15 16 17 18 19 20 Id. at 98 (internal quotation marks omitted). 21 plaintiff cannot rely on the fair ground for litigation 22 alternative in challenging governmental action taken in the 23 public interest pursuant to a statutory or regulatory 24 scheme. 25 580 (2d Cir. 1989). 26 must establish a likelihood of success on the merits to In general, the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party. However, a Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, The Monserrate Appellants therefore 9 1 2 succeed on appeal.3 The district court did not err in determining that the 3 Monserrate Appellants failed to establish a likelihood of 4 success on the merits of any of the three claims they press 5 on appeal. 6 7 8 9 B The voting rights claim asserts that Monserrate s expulsion violates voting rights under the First and 10 Fourteenth Amendments of the United States Constitution, but 11 is largely ambiguous as to the specific rights that are 3 Because we conclude that the Monserrate Appellants fail to establish a likelihood of success on the merits of any of the claims they press on appeal, several issues are obviated: (i) whether they establish irreparable injury; (ii) whether their requested relief is properly framed as a mandatory preliminary injunction or a prohibitory preliminary injunction, see Mastrovincenzo v. City of N.Y., 435 F.3d 78, 89 (2d Cir. 2006); and (iii) any tension between the Second Circuit standard set forth above the line and the Supreme Court s recent articulation of the preliminary injunction standard, see Winter, 129 S. Ct. at 374 ( A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. ). The third issue is obviated because the Monserrate Appellants fail to establish a likelihood of success on the merits of any claim, a failure that is fatal under both standards. 10 1 infringed. 2 burdens constitutional rights related to voting and 3 political association, any such burden is justified by the 4 state interest in maintaining the integrity of the Senate. 5 However, assuming that Monserrate s expulsion Flexible Framework. The district court did not err in 6 declining to apply strict scrutiny; indeed, it is an 7 erroneous assumption that a law that imposes any burden 8 upon the right to vote must be subject to strict scrutiny. 9 Burdick v. Takushi, 504 U.S. 428, 432 (1992). Rather, it is 10 useful to look to a more flexible standard in which the 11 rigorousness of our inquiry into the propriety of a state 12 [action] depends upon the extent to which a challenged 13 [action] burdens First and Fourteenth Amendment rights. 14 Id. at 434. 15 restrictions, the [action] must be narrowly drawn to advance 16 a state interest of compelling importance ; but when such 17 rights are subjected to less than severe burdens, the 18 State s important . . . interests are generally sufficient 19 to justify the restrictions. 20 and citations omitted); see also Anderson v. Celebrezze, 460 21 U.S. 780, 789 (1983) (directing courts to balance the 22 character and magnitude of the asserted injury against the When such rights are subjected to severe Id. (internal quotation marks 11 1 precise interests put forward by the State as justifications 2 for the burden imposed ); accord Schulz v. Williams, 44 F.3d 3 48, 56 (2d Cir. 1994). 4 less than severe and reasonably related to the important 5 state interest, the Constitution is satisfied. 6 Therefore, if the burden imposed is It seems clear enough that this flexible framework, 7 used in ballot access cases, is not limited to the pre-vote 8 context. 9 voting rights are distinguishable from ballot access cases, 10 Burdick, 504 U.S. at 438, because the rights of voters and 11 the rights of candidates do not lend themselves to neat 12 separation, Bullock v. Carter, 405 U.S. 134, 143 (1972). 13 Furthermore, the Monserrate Appellants fail to offer a 14 persuasive reason why we should not be guided by this 15 flexible framework in the post-vote context. 16 The Supreme Court minimized the extent to which Less than severe burden. For at least two reasons, the 17 district court did not err in determining that Monserrate s 18 expulsion imposed a less than severe burden. 19 the weight of the burden imposed by Monserrate s expulsion, 20 we proceed by the totality approach. 21 56 (internal quotation marks omitted). 22 To evaluate Schulz, 44 F.3d at First, the district court properly reasoned that the 12 1 Special Election will reduce any burden imposed on voting 2 rights. 3 voters of the 13th Senatorial District are without 4 representation, (ii) allow those voters to exercise their 5 voting rights anew, and (iii) provide those voters an 6 opportunity to re-elect Monserrate should they choose to do 7 so following his misdemeanor conviction. 8 be no Special Election but for Monserrate s expulsion, does 9 not diminish the Special Election s value. It will (i) reduce the amount of time that the That there would 10 Second, the district court properly found that the 11 burden (if any) imposed by a Senator s resignation or death 12 is a useful analog to the burden (if any) imposed by 13 Monserrate s expulsion. 14 Monserrate Appellants concede that a vacancy automatically 15 created by operation of New York Public Officers Law 16 § 30(1)(e)--based on a conviction for a felony or a crime 17 involving a violation of the oath of office--need not pass 18 muster under equal protection analysis. 19 voting rights is the same whether the vacancy arises by 20 death or expulsion. 21 Justification. 22 In their reply brief, the The impact on The district court did not abuse its discretion in determining that Monserrate s expulsion 13 1 vindicates an important state interest in maintaining the 2 integrity of the Senate. 3 legislature has an important interest in upholding its 4 reputation and integrity. 5 U.S. 661, 668 (1897) (recognizing that Congress necessarily 6 possesses the inherent power of self-protection ); French v. 7 Senate of State of Cal., 146 Cal. 604, 606 (1905) ( [E]very 8 legislative body in which is vested the general legislative 9 power of the state, has the implied power to expel a member It is fundamental that a See, e.g., In re Chapman, 166 10 for any cause which it may deem sufficient. ); Hiss v. 11 Bartlett, 69 Mass. 468, 473 (1855) ( The power of expulsion 12 is a necessary and incidental power, to enable the house to 13 perform its high functions, and is necessary to the safety 14 of the State. 15 [n]o power to . . . expel a member, is contained in the 16 [New York] State Constitution . . . . [t]he necessity of 17 [such a] power[] . . . is apparent, and is conceded in all 18 the authorities. 19 N.Y. 463, 481 (1885). 20 It is a power of protection. ). Although People ex rel. McDonald v. Keeler, 99 Moreover, Monserrate s expulsion is reasonably related 21 to securing the Senate s integrity. 22 recognized New York s zero tolerance policy for domestic 14 Resolution 3904 1 violence, determined that Monserrate s conduct is 2 incompatible with the duties of the Senate to uphold public 3 confidence in government and promote the administration of 4 justice under law, and is in totality . . . not compatible 5 with the responsibilities of the office, and with the 6 qualifications and behavior expected of and by a State 7 Senator of New York. 8 Monserrate s expulsion is reasonably related to protecting 9 the Senate s integrity.4 10 Given these determinations, Accordingly, the district court did not abuse its 11 discretion in determining that the flexible framework 12 articulated in Burdick, Anderson, and Schulz is useful to 13 analyzing any burden on voting rights imposed by post- 4 The Monserrate Appellants misconstrue the relevant state interest. The district court remarked that New York has an interest in the orderly operation of its legislature. Based on this remark, the Monserrate Appellants argue that such an interest cannot justify Monserrate s expulsion because the conduct at issue occurred prior to Monserrate s assumption of a Senate seat and does not bear on his Senate responsibilities. This argument ignores the district court s further explication of the state interest: In concluding that Monserrate severely damaged the institution s honor, dignity, integrity, and public reputation, the Senate articulated its legitimate state interest. The district court did not abuse its discretion in determining that the Senate s exercise of the expulsion power was a reasonable way to satisfy that interest. 15 1 election actions; that any burden imposed by Monserrate s 2 expulsion is less than severe; and that the protection of 3 the Senate s integrity justifies the expulsion. 4 Monserrate Appellants thus fail to establish a likelihood of 5 success on the merits of the voting rights claim. 6 Equal Protection. The The Monserrate Appellants, relying 7 on two district court cases from the 1970s, raise the 8 subsidiary argument (sounding in equal protection), that 9 during the period between Monserrate s expulsion and the 10 Special Election--approximately five weeks--the citizens of 11 the 13th Senatorial District lacked representation that 12 citizens in other districts enjoyed. 13 Forbes, 432 F. Supp. 1101, 1117 (N.D. Ohio 1977) (finding 14 that different classes of voters were established by [the] 15 City Council s suspension of Gary Kucinich ); Ammond v. 16 McGahn, 390 F. Supp. 655 (D.N.J. 1975) (finding that the 17 exclusion of a state senator from her party s caucus 18 created two classes of voters. 19 citizens whose Senators could effectively participate fully 20 in the legislative process and another class whose Senator 21 could participate only to a limited degree. ), rev d on 22 other grounds, 532 F.2d 325 (3d Cir. 1976). 16 See Kucinich v. One class consists of those But they 1 concede that a vacancy arising when a Senator resigns or is 2 convicted of a felony is not subject to equal protection 3 analysis. 4 vacancy on voters rights is identical to the impact of 5 Monserrate s expulsion, the concession is fatal. 6 Since (as discussed above) the impact of such a Moreover, concession or no concession, the voters of 7 every Senatorial District are alike subject to the expulsion 8 of their elected representative pursuant to Legislative Law 9 § 3. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 10 10 (1982) ( [T]he Puerto Rico statute at issue here does not 11 . . . afford unequal treatment to different classes of 12 voters or political parties. . . . [T]he interim appointment 13 provision applies uniformly to all legislative vacancies, 14 whenever they arise. ). 15 contend that the Senate was motivated to expel Monserrate by 16 any invidious bias against the voters of the 13th Senatorial 17 District. 18 The Monserrate Appellants do not Accordingly, the Monserrate Appellants fail to 19 establish a likelihood of success on the merits of the 20 subsidiary argument. 21 22 C 17 1 The Monserrate Appellants challenge Legislative Law § 3 2 on the grounds of as-applied and facial vagueness and 3 overbreadth. 4 exercise a respectful reluctance to interfere in the 5 measures taken by a state legislature to regulate its 6 affairs, discipline its members, and protect its integrity 7 and good name. Prudence dictates that a federal court should 8 Considerations of prudence aside, a comparison of 9 Legislative Law § 3 with Article I, section 5 of the United 10 States Constitution provokes considerable skepticism of the 11 Monserrate Appellants federal due process challenges. 12 Legislative Law § 3 provides that [e]ach house has the 13 power to expel any of its members, after the report of a 14 committee to inquire into the charges against him shall have 15 been made. 16 Constitution, Article I, section 5, provides that [e]ach 17 House may determine the Rules of its Proceedings, punish its 18 Members for disorderly Behaviour, and, with the Concurrence 19 of two thirds, expel a Member. 20 that the disorderly Behaviour ground for punishment in any 21 way limits Congress s expulsion power. 22 does, the wording does little to guide, channel, or limit N.Y. Legis. Law § 3. 18 The United States It is not absolutely clear Even assuming it 1 that power.5 2 quite vague, but it is not appreciably more vague than the 3 counterpart provision in the United States Constitution. 4 And it would therefore be anomalous to rule that the 5 Constitution prohibits a state legislature from exercising, 6 in the regulation of its internal affairs, a latitude 7 comparable to that expressly allowed to Congress. 8 9 Legislative Law § 3 is (as vigorously argued) Moreover, as Appellees persuasively argue, while Legislative Law § 3 establishes certain procedural 10 prerequisites to expulsion, it is not the sole source of 11 guidance on the substantive standard to be applied to 12 expulsion decisions. 13 long tradition, in New York and elsewhere, of assessing the 14 fitness of members of a legislative body to hold office, and 15 the Select Committee made explicit reference to that 16 tradition in making its recommendations with respect to 17 Monserrate. 18 difficult to see how a legislature s inherent power of Rather, the Senate had access to a While this standard is hardly precise, it is 5 The Supreme Court offered the following gloss on Article I, section 5: The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member. In re Chapman, 166 U.S. 661, 669 (1897). This gloss also does little to guide, channel, or limit Congress s expulsion power. 19 1 self-protection, In re Chapman, 166 U.S. at 668, can be 2 reduced to a more predictable formula. 3 The void-for-vagueness doctrine is chiefly applied 4 to criminal legislation. 5 receive less exacting vagueness scrutiny. 6 Mukasey, 521 F.3d 219, 222-23 (2d Cir. 2008). 7 the historical acceptance of an extremely broad standard for 8 legislatures decisions about the fitness of its members, a 9 court asked in effect to review such a decision Laws with civil consequences Arriaga v. In light of 10 appropriately applies a less exacting, and more deferential, 11 test of vagueness than that appropriate in judging statutes 12 that impose criminal punishments on ordinary citizens. 13 Article I, section 5, the standard applied in New York does 14 not fail that test. 15 Like The Monserrate Appellants thus fail to establish a 16 likelihood of success on the merits of their challenge to 17 Legislative Law § 3. 18 19 D 20 The Monserrate Appellants press a claim that Monserrate 21 was deprived of a liberty interest in his reputation without 22 due process of law--a so-called stigma-plus claim. 20 To 1 prevail on such a claim, they must prove (1) the utterance 2 of a statement . . . that is injurious to . . . reputation, 3 that is capable of being proved false, and that he or she 4 claims is false, and (2) some tangible and material state- 5 imposed burden in addition to the stigmatizing statement. 6 Velez v. Levy, 401 F.3d 75, 87 (2d Cir. 2005) (internal 7 quotation marks and ellipsis omitted). 8 this appeal, the availability of adequate process defeats a 9 stigma-plus claim. 10 11 But, critical to Segal v. City of New York, 459 F.3d 207, 213 (2d Cir. 2006). [D]ue process is flexible and calls for such 12 procedural protections as the particular situation demands. 13 Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 14 determining how much process is due, a court must weigh (1) 15 the private interest affected, (2) the risk of erroneous 16 deprivation through the procedures used and the value of 17 other safeguards, and (3) the government s interest. 18 Spinelli v. City of N.Y., 579 F.3d 160, 170 (2d Cir. 2009) 19 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 20 The private interest factor clearly favors the In 21 Monserrate Appellants, see Patterson v. City of Utica, 370 22 F.3d 322, 336 (2d Cir. 2004) (recognizing that a stigma-plus 21 1 claim affects the plaintiff s reputational interest, and 2 how that interest can [a]ffect his standing in the community 3 and his future job prospects ), and the government interest 4 factor clearly favors the Appellees, see Segal, 459 F.3d at 5 215 (recognizing that [t]he government interest at stake in 6 a stigma-plus claim is its ability to execute and explain 7 its personnel decisions quickly ). 8 decisive--factor concerns the risk that the false charges 9 against the plaintiff will go unrefuted and that his name The remaining--and 10 will remain stigmatized. 11 risk will vary depending on the effectiveness of the 12 procedures available and the promptness by which they are 13 afforded. Patterson, 370 F.3d at 336. The Segal, 459 F.3d at 215. 14 The pre-expulsion process available to Monserrate 15 sufficiently reduced the risk that the charges against him 16 would go unrefuted. 17 course, is the requirement that a person in jeopardy of 18 serious loss (be given) notice of the case against him and 19 opportunity to meet it. 20 (internal quotation marks omitted). 21 22 The touchstone of due process, of Spinelli, 579 F.3d at 169 The district court did not abuse its discretion in determining that the notice that Monserrate received was 22 1 sufficient. 2 misconduct must be described varies with the facts and 3 circumstances of the individual case; however, due process 4 notice contemplates specifications of acts or patterns of 5 conduct, not general, conclusory charges unsupported by 6 specific factual allegations. 7 notes the seriousness of the[] domestic violence charges 8 against Monserrate, indicates that further investigation 9 into the circumstances surrounding them is warrant[ed], 10 and further indicates that Monserrate s conduct may warrant 11 the imposition of sanctions by the Senate. 12 a Select Committee of the Senate to investigate the facts 13 and circumstances surrounding the conviction of Senator 14 Hiram Monserrate and authorized and directed the Select 15 Committee to investigate th[ose] facts and circumstances. 16 Resolution 3409 thus notified Monserrate of the parameters 17 of the Select Committee s investigation. 18 one letter from Monserrate s counsel to the Select 19 Committee s counsel argued that expulsion is not a 20 legitimate sanction, thereby acknowledging Monserrate s The particularity with which alleged 23 Id. at 172. Resolution 3409 It established Moreover, at least 1 2 awareness that expulsion was a possible recommendation.6 Nor did the district court abuse its discretion in 3 determining that Monserrate received a sufficient 4 opportunity to be heard. 5 required hearing will depend on appropriate accommodation of 6 the competing interests involved. 7 F.3d 40, 51 (2d Cir. 2002) (internal quotation marks 8 omitted). 9 § 73(3), Monserrate s counsel was informed that Monserrate The timing and nature of the Krimstock v. Kelly, 306 In accordance with New York Civil Rights Law 10 or his counsel could testify and present arguments or 11 evidence . . . through an oral presentation or present 12 arguments or . . . any evidence in writing. 13 Monserrate was invited to submit proposed relevant 14 questions in advance to be asked by the Select Committee. 15 Monserrate thus had an opportunity to present reasons, 16 either in person or in writing, why proposed action should 17 not be taken, Cleveland Bd. of Educ. v. Loudermill, 470 18 U.S. 532, 546 (1985), but declined to avail himself of that 6 Moreover, In any event, the core of Monserrate s stigma-plus claim is not that he was deprived of his Senate seat without due process, but that he was deprived of his reputation without due process. Whether he had notice that he might be expelled, rather than merely censured, is thus peripheral to his due process contention. 24 1 2 opportunity. Monserrate contends that any such opportunity was 3 impaired because (i) he was not given copies of the 4 materials considered by the Select Committee, (ii) he was 5 not able to cross-examine the two witnesses that Select 6 Committee staff attorneys interviewed,7 and (iii) five of 7 the six meetings of the Select Committee were held in 8 executive session, closed to the public.8 9 process Monserrate received did not include these features, 10 he nevertheless received a sufficient opportunity to clear 11 his name--and that is all the Constitution requires. 12 Even if the Accordingly, the district court did not abuse its 13 discretion in determining that the Monserrate Appellants 14 failed to establish a likelihood of success on the merits of 7 The district court observed that the Select Committee heard from no witnesses but relied on the transcript of Monserrate s criminal trial where he had a strong interest in defending himself. This observation may be misleading. Staff attorneys of the Select Committee interviewed two individuals, Mr. Nieves and Mr. Castro, in connection with a notarized statement by the victim of Monserrate s assault, and reported on those interviews to the Select Committee on January 13, 2010. 8 The transcripts of the Select Committee meetings were posted on the internet on January 19, 2010, after the Report issued but well in advance of the Senate s February 9, 2010 vote to expel Monserrate. 25 1 the stigma-plus claim.9 2 3 CONCLUSION 4 The district court did not abuse its discretion in 5 determining that the Monserrate Appellants failed to 6 establish a likelihood of success on the merits of any of 7 the claims they press on appeal. 8 of the other arguments advanced by the parties. 9 foregoing reasons, we affirm the district court s denial of 10 We thus need not reach any For the the preliminary injunction. 11 9 Even if Monserrate were to prevail on his stigma-plus claim, the appropriate remedy presumably would be a nameclearing hearing and/or damages, rather than an injunction reinstating him in the Senate and cancelling the Special Election. 26

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