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Virtually all of New York’s state senators insist the struggle for control of their chamber is a problem for them alone to resolve. Yet as the paralyzing dispute entered its fifth week, frustrated parties both in the Senate and outside state government are increasingly turning to the courts to break the stalemate. No fewer than six suits have been filed in Albany County Supreme Court stemming from the June 8 vote in which Senators Pedro Espada Jr., D-Bronx, and Hiram Monserrate, D-Queens, joined with the chamber’s 30 Republicans to, they insist, rightfully elect Espada president pro tem and Republican Senator Dean Skelos of Rockville Centre, N.Y., as majority leader. Monserrate subsequently switched back to the Democratic side, miring the Senate in a so-far unbreakable tie. The Associated Press reported late Tuesday that all sides in the monthlong standoff say they have agreed to work out a power-sharing deal from two proposals that could end the stalemate as early as Thursday. Gov. David A. Paterson and leaders of the Democratic conference and a Republican-dominated coalition said they would share top leadership positions, share resources and staff more equitably, and rotate top leaders of the Senate. However, the details remain to be worked out, and there was disagreement about whether there was a deadline for agreement. Meanwhile, the newest court action was filed Tuesday by Suffolk County Executive Steve Levy seeking declaratory judgment on whether the June 8 “coup” was valid. Levy v. New York State Senate asks a judge to decide who legally holds the title of Senate president pro tem. Levy said the ruling by a judge would not break the 31-31 deadlock between the two factions. But by designating who can “legally hold the gavel,” the court would remove questions about who can set the agenda in the Senate and, if the chamber manages to approve bills with a quorum, who can legally pass those bills on to the governor for his consideration. Levy’s suit is substantially the same as Smith v. Espada, in which Smith challenged Espada’s ostensible election as president pro tem. After delaying a decision for days while pleading with the parties to negotiate a settlement themselves, Supreme Court Justice Thomas S. McNamara (See Profile) ruled that his intervention in the battle would be an “improvident intrusion into the internal workings of a co-equal branch of government” (NYLJ, June 17). Justice McNamara never reached the question of whether Espada or Smith is the properly elected president pro tem. Among the other cases related to the leadership dispute to have reached the courts so far are: • Paterson v. Adams. Supreme Court Justice Joseph Teresi (See Profile) issued a writ of mandamus ordering all 62 senators to appear in the Senate chamber to attend the daily special sessions Paterson has called for the past two weeks (NYLJ, June 30). However, the senators have not been compelled to vote on any of the bills on the agendas. Republicans are appealing the ruling. • Winner v. Aponte. Senate Republicans are arguing that Angelo Aponte, the Democrat-appointed secretary of the Senate, improperly altered the Senate Journal for June 8 to delete references to the elections of Espada and Skelos. Republicans also accuse Aponte of locking up bill jackets and otherwise obstructing their operation of the Senate. The plaintiff is Senator George Winner Jr., R, Elmira. The issue is before Justice McNamara. • DiNapoli v. Espada. State Comptroller Thomas P. DiNapoli is seeking a declaratory judgment on whether he can legally withhold the paychecks and expense payments to senators for as long as the leadership impasse continues. The parties — legislative leaders, Paterson and Treasurer Aida Brewer — have 20 days to answer DiNapoli’s summons. • Aubertine v. The New York State Assembly. On Monday, Senator Darrel J. Aubertine, D-Cape Vincent, filed a suit to compel the Assembly to deliver more than 100 bills to Gov. Paterson that the Senate approved in a disputed session on June 30. The bills were approved after Sen. Frank Padavan, R-Queens, wandered into the Senate chamber, ostensibly seeking a shortcut to the members’ lounge to find a beverage, and was immediately counted as “present” by Democrats, who said his presence broke the 31-31 tie and gave them a quorum. Assembly Speaker Sheldon Silver and Gov. Paterson both said they doubted the legality of any of the bills approved on June 30. A hearing is scheduled for July 17. Levy, a Democrat, said he does not care who is declared president pro tem but that the courts must step in to break the impasse. ‘CONSTITUTIONAL CRISIS’ Levy argued that the political conflagration has created a “constitutional crisis,” not unlike the crisis created by the disputed vote count in the 2000 presidential election between George W. Bush and Al Gore. Just as the U.S. Supreme Court ultimately decided the winner in that contest, the state courts should intervene to decide if Espada was duly elected president pro tem or whether Senator Malcolm Smith, D-Queens, remains the temporary president due to his election in January, Levy said. Levy, an attorney who was an assemblyman from 2001 to 2003, acknowledged that courts are generally reluctant to become involved in procedural fights in the Legislature, a co-equal branch of government. But he argued that courts have occasionally intervened in such disputes if they determine that parties are being aggrieved due to inequitable legislative rules or procedures. Levy said his county is, indeed, an aggrieved party because it stands to lose millions of dollars through the Senate’s inability to approve an increase in motel-hotel taxes or a fee on cell phones to pay for 911 emergency services. “We have a crisis here that is probably not going to be resolved any time soon,” Levy told reporters yesterday. “That’s why you have a judiciary, to cut through all the baloney.” Levy said the warring factions have had time enough to work out their problems by themselves. “There’s been time enough to settle this,” he said. “It’s time now for the court to perform its function as an independent part of our three branches of government to make a definitive ruling through our declaratory judgment as to who the leader of the Senate is.” Senate Democrats have so far declined to pursue an appeal of Justice McNamara’s ruling. With a few exceptions, the same attorneys have been handling most of the litigation. Shelley B. Mayer, counsel to the Senate Democrats, has frequently argued for Smith and those senators loyal to him, often with assistance from Senate staff attorney David Marcus. Richard D. Emery and Andrew G. Celli Jr. of Emery Celli Brinckerhoff & Abady also appeared for Senate Democrats in the case ruled on by Justice McNamara. Gov. Paterson’s counsel, Peter Kiernan, has frequently appeared for the governor, sometimes with help from Thomas F. Gleason of Gleason, Dunn, Walsh & O’Shea in Albany. John J. Ciampoli, John Casey and David Lewis, all full- or part-time counsels for the Senate, have principally represented Espada or Senate Republicans. While Justice McNamara urged the lawyers to encourage their principals to sort out their dispute, Justice Teresi chided lawyers for the papers he received in the Paterson v. Adams aspect of the litigation. Justice Teresi said he was “astounded” and “disappointed” at the quality of the briefs filed before him. He complained that the papers were “replete with hearsay, innuendo, speculation [and] conclusory statements without any facts to back them up.” In addition to the potential legal questions swirling around the validity of the bills approved June 30, a novel theory was promoted this week by Assemblyman Michael Gianaris, D-Queens, who argued that he believes Public Officers Law could give Gov. Paterson the power to appoint a lieutenant governor if, as now, the office is open. Gov. Paterson was elevated to the governorship from lieutenant governor in March 2007 after then Gov. Eliot Spitzer resigned in a prostitution scandal. Constitutionally, the lieutenant governor can vote to break ties when the Senate vote is 31-31. Attorney General Andrew M. Cuomo immediately shot down the idea, however. Cuomo said the state Constitution provides for lieutenant governors to be simultaneously elected with the governors rather than unilaterally appointed by a governor to fill a vacancy.

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