Republicans are claiming control over the New York State Senate after a judge Tuesday denied the Democrats motion to overturn last week's coup.
At a hearing in Albany, State Supreme Court Justice Thomas McNamara dismissed the case and told the state Legislature to resolve the issue of leadership.
"The failure of the Senate to resolve this issue in an appropriate manner will make them answerable to electorate," said the judge. "Absent circumstances not present here a court should not impose a legal solution. Accordingly, the motion is granted and the complaint is dismissed."
Republicans claim the judge's dismissal validates last week's Republican takeover, as he did not rule that it was illegal.
Democrats say they will appeal the judge's decision.
The Senate is currently divided at 31 Democrats and 31 Republicans after State Senator Hiram Monserrate rejoined the Democrats on Monday.
Democrats say that a coalition government with Malcolm Smith as the president pro tempore to gavel in the session is the only viable option with the split the way there is.
However, an indignant Pedro Espada Jr., the senator who voted with Monserrate to sway the power toward the GOP majority, and Dean Skelos insisted that since the vote was 32-30 to oust Malcolm Smith, the session should resume with Espada as president pro tempore and Skelos as majority leader.
At a press conference Tuesday afternoon, they said that all senators should come together to get back to work.
"Now we're calling all senators to report to work," said Espada. "We need them to act. We ask them to honor not just the court decision, but their sworn oath."
Democrats called the 32-30 vote "last week's news."
They say they offered Republicans several perks at Monday's meeting, including alternating leadership on certain days and a bi-partisan review process for bills before they come to the floor.
Governor David Paterson offered to step into the Senate chamber and run the session as he did when he was lieutenant governor, thus eliminating the problem of having no one to gavel in the session. He says this temporary move will allow both parties to enter the chamber and pass essential bills.
"What this is delaying is about 21 bills that expire in a couple of weeks that are sunsetting, mostly involving sales taxes and other local government operations," said Paterson. "There are another 20 bills or so that need immediate action, for instance the New York City sales tax, the bond issue in Nassau County. I'm getting calls from leaders all around the state who are anxious that if there isn't immediate action, it actually hurts the financial stability of their governments and their own chagrin that the Legislature is not conducting the people's business in favor of having a political fight."
Paterson says the Democrats have been more open to the power-sharing agreement than the Republicans.
Skelos said that since Paterson was not elected as a state senator he should not lead a session.
Several dozens of protesters gathered outside the state Capitol Monday, criticizing the inactions of the state government.
Despite his vote last week to oust Malcolm Smith as leader, in an exclusive interview, Monserrate told NY1 on Monday that he never stopped being a Democratic senator.
"I took one vote, and that was to change leadership in the State Senate," Monserrate said. "It was to remedy dysfunction in a system that was broken and not working."
Senator Malcolm Smith is insisting that he still retains the title of majority leader. But Monserrate only agreed to rejoin the Democratic conference on a key demand – that Smith, in essence, be replaced as head of the party.
Senator John Sampson of Brooklyn was given the title of leader of the Democratic conference.
"We had a vote, we voted for John Sampson to be our leader for day-to-day business," said Smith. "As you know, any business or corporate structure where you have a chairman, you have a CEO. You can look at John Sampson as the CEO."
Meanwhile, Pedro Espada Junior -- who was named President Pro Tempore under the takeover -- is being investigated by the Bronx District Attorney in connection with earmarks he's received.
The DA is also looking into whether Espada's primary home is in his Bronx district.
In an interview on "Road to City Hall," Smith says Espada requested two million dollars in earmarks from Senate Democrats to fund two groups linked to his health clinic chain, the Soundview Healthcare Network.
"There were two organizations he had basically had formulated and was trying to put the money in that direction," said Smith. "Whether or not he was going to spread amongst other organizations thereafter, I don't know. I only can tell you what we received, what the Secretary of the Senate received, and we made a judgment based on that."
Espada says the Bronx DA has subpoenaed his senate records dating back to 1993 -- but he already has those records, from a lawsuit a jury threw out in 2000.
Espada says the subpoenas are politically motivated, and he's asking the state's Inspector General to get involved.
NY1 has reached out to District Attorney Robert Johnson's office, and is awaiting a response.
In a separate legal action, Democrats are seeking to hold Espada in contempt of court for holding a short session Monday.
Espada insists last week's vote is binding, despite Monserrate's decision to flip back to the Democrats.
"It's no longer up to Monserrate; quite frankly, it's no longer up to any individual senator," Espada said. "A legal, binding resolution has passed and the Constitution of this state must be respected. I will go to my grave defending the 32 votes that counted last Monday and transformed this place for good."
At a news conference with the Democratic conference, Monserrate said he and Espada remain friends. But Monserrate walked out before answering whether he views Espada as the president of the Senate.