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ALBANY – A state judge refused to intervene yesterday in a leadership fight that has paralyzed the Senate, reiterating that the feuding parties should settle their own differences. Acting Supreme Court Justice Thomas J. McNamara of Albany ( See Profile) ruled that the imbroglio, which has two 31-senator factions each recognizing different presidents pro tem, is a “wholly internal” matter for the Senate to resolve. “A judicially imposed resolution would be an improvident intrusion into the internal workings of a co-equal branch of government,” Justice McNamara wrote in Smith v. Espada, 4912-09. “The practical effect of having a court decide this issue would be that its decision, if only by perception, would have an influence on the internal workings of the Senate including the setting of the Senate agenda. To have a court decide this issue would be improper.” The Albany Supreme Court decision appears on page 35 of the print edition of today’s Law Journal. Senate Democrats brought the suit seeking invalidation of the June 8 election of Senator Pedro Espada, D-Bronx, as president pro tem in place of Senator Malcolm Smith, D-Queens. The insurgents also voted to replace Mr. Smith as majority leader with Senator Dean Skelos, R-Rockville Centre. Initially, one of the Democrats’ attorneys, Andrew G. Celli Jr., said that Justice McNamara’s ruling would be appealed, but after discussing the decision, Democrats decided not to pursue the matter. “The court did not reaffirm the legitimacy of what took place on June 8,” said Senator John Sampson, D-Brooklyn, the new conference “leader” of the Senate Democrats. “Basically, the judge has thrown this back in our lap today and said, ‘You members, this is an internal issue that has to be decided by the members of the state Senate.’” Mr. Sampson said Democrats would do what Justice McNamara directed them to do: try to negotiate a solution to the leadership rift. Richard Emery of Emery Celli Brinckerhoff & Abady, another of the Democrats’ attorneys, said in an interview that a notice of appeal was filed by Democrats yesterday before the Appellate Division, which preserves the Democrats’ right to seek an appeal in the future. A temporary restraining order issued last week by Justice Karen K. Peters of the Appellate Division, Third Department, prohibiting Mr. Espada from being in the line of succession for governor as president pro tem also expired yesterday and Democratic attorneys did not seek to renew it. Justice Peters’ order stipulated that the TRO would expire when Justice McNamara rendered his ruling in Smith v. Espada . Mr. Espada apparently would serve as the state’s top executive if Governor David A. Paterson leaves the state or is incapacitated. The state has not had a lieutenant governor since Mr. Paterson replaced former Governor Eliot Spitzer, who resigned last year in a prostitution scandal. Democrats, who have a 32-30 advantage over Republicans in the Senate, elected Mr. Smith on Jan. 7 as president pro tem and majority leader. His hold on the position was seen as shaky from the beginning, however, as several Democratic members, including Mr. Espada and Senator Hiram Monserrate, D-Queens, sometimes seemed as close to Republicans as they were with Democrats. On June 8, Senators Espada and Monserrate voted with Republicans on a resolution appointing Senators Espada and Skelos to new positions. Mr. Monserrate has since rejoined the Democratic fold, leaving a 31-31 tie. In their suit, Democrats contended the June 8 vote was void because it occurred after the Senate had been gaveled out of session for the day. They also argued that Mr. Smith was properly elected in January to a term that lasts for the entire two-year cycle of the 2009-2010 legislative session. Albany attorney John Ciampoli countered for Senate Republicans and Mr. Espada that the leadership dispute is not justiciable. ‘Strong Suggestion’ Justice McNamara, who read his ruling from the bench, accepted Mr. Ciampoli’s reasoning. While the judge noted that courts “may well be suited” to analyzing the constitutional and legislative issues related to the leadership battle, it is not the court’s business to intervene. “In the present context, the question calls for a solution by the members of the State Senate, utilizing the art of negotiation and compromise,” he wrote. “The failure of the Senate to resolve this issue in an appropriate manner will make them answerable to the electorate.” Justice McNamara also acknowledged how disruptive the dispute has been. Democrats again refused to attend yesterday’s session, which Mr. Espada and the Republicans quickly ended because they did not have a quorum. “The court is aware that the inability of the Senate to resolve these issues has had, and may well continue to have, a profound effect on the ability of the government to address many issues which are of vital importance to the citizens of this state,” the judge wrote. Since the case came before him late last week, Justice McNamara repeatedly has urged attorneys to get their principals to settle the dispute without legal intervention. Yesterday morning, the judge said he had been persuaded during a conference with attorneys in his chambers that enough progress was being made to grant two more hours to negotiate. However, once the deadline expired, he issued his decision following another much briefer closed-door discussion with lawyers. After reading the ruling, Justice McNamara said he was repeating his “strong suggestion” to the parties to settle the leadership stalemate by themselves. Mr. Paterson’s counsel, Peter Kiernan, said the governor had proposed the idea of the Senate holding “stipulated” sessions at which all senators would appear in the chamber and take up an agreed-upon agenda of bills. The recognition of a president pro tem —necessary to formally begin the session­—would not prejudice the parties in the litigation before Justice McNamara, under the Paterson proposal. Both Senators Sampson and Skelos said they were not interested in that approach. In a post-ruling news conference, Mr. Paterson also called on the Senate to reconvene as if it were the start of its session and hold a new vote on its leadership. As an alternative, so that the Senate could deal with pressing, time-sensitive legislation in the next few weeks, Mr. Paterson also suggested that the Senate could designate a non-member acceptable to both camps to preside. The governor said Chief Judge Jonathan Lippman or former Chief Judge Judith S. Kaye were both examples of “non-partial” people who could serve in that role. According to Mr. Sampson, Mr. Espada and Senate Republicans were not interested on Monday or yesterday in discussing a meaningful power-sharing arrangement that would make the Senate functional again despite the 31-31 split. Mr. Smith said Democrats would not return to the Senate chamber unless Republicans recognize him as president pro tem or until they agree to share power. “We will call the session when the Republicans recognize we need a coalition government,” Mr. Smith said following yesterday’s ruling. Senators Skelos and Espada, meanwhile, said yesterday’s ruling validated Mr. Espada’s standing as president pro tem and the June 8 vote. “When your cases gets dismissed, that’s about as unequivocal as the 15-0 Yankee win Sunday over the Mets,” Mr. Espada said.

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