Both sides claimed victory when Justice Thomas McNamara dismissed a suit filed last week by the Democrats, a suit which would have declared Malcolm Smith (still!) the majority leader and president pro tempore in the Senate. Democrats said they would not appeal the ruling, and once again reiterated their desire to work out some sort of power-sharing agreement. Once again, the Republicans demurred, claimed the 32-30 vote taken last week was valid and held a "session" without enough members to pass any legislation. Once again, David Paterson tried to offer a middle way, and it was rebuffed.
As the day's activity wound down, I found an unlikely voice of reason in State Senator Ruben Diaz Sr., a Bronx Democrat: "This mess is worse than ever."
As we spoke, and Diaz proclaimed that he was "just a soldier, not a general in this fight," deputy Democratic leader Jeff Klein walked out of a conference room still controlled by the Democrats and into an elevator. I asked him why no appeal was being filed.
"There was a victory—what it did was the judge says that is what we have been saying all along: that in order to continue government, we need to work it out," Klein said. "And the way we work it out, when its temporarily tied, 31-31, is by forming a temporary coalition."
This is not, in fact, what the Democrats have been saying all along. Immediately after the coup, they initiated the court action to overturn the coup, which they called "illegal."
But no matter.
A few minutes before I spoke to Klein, I stood in the chamber for another "session" convened by Republicans. They called a quorum, which failed, with only 30 Republicans plus defector-Democrat Pedro Espada Jr. answering "present." Then Republican Leader Dean Skelos read from the list of bills that would have been acted on in the chamber, and said Democrats were abdicating their responsibilities as senators for not showing up.
Espada Jr. went a step further, telling me and other reporters afterward that he would seek legal action against them. Earlier, he called on David Paterson to force them into the chamber.
"We would just ask them to please come to work," Espada Jr. He said he was open to talking about legislation, but not about leadership. "We feel that there is a fiduciary responsibility. As senators, we cannot be in violation of the State Constitution."
Espada Jr. was asked if this meant some kind of action would be appropriate to "compel" the Democrats to come to session.
"That's the thrust of it, obviously," Espada Jr. said. "When senators are saying, unilaterally, we will not forfeit our responsibilities that we're getting paid for, then something needs to kick in. What I'm hoping will kick in is a self-acknowledgement by them that they need to be here as part of their jobs, and the self-acknowledgement is that most of the bills that are under consideration are theirs."
He was asked if that meant they would escorted by police, or have their pay docked.
"I think, let's wait and see. I am reaching out to Senator Sampson."
State Senator Craig Johnson, a Democrat from Long Island who is an attorney, offered this response when I told him what Espada Jr. had said.
"I didn't know that Senator Espada became an attorney overnight," Johnson said. "I don't know who Senator Espada is to present himself as an authority on the New York State Constitution."
UPDATE: At a press conference late in the afternoon, David Paterson reiterated his call that all senators return to the chamber to settle the leadership matter, but emphasized: "I'm not telling anyone what to do here."
"You've got to put the issues of the people first, and that's what they need to do right now. And I'm not going to impede on that branch of government, and my not impeding on it isn't a sign of weakness, it's a sign of strength to understand that I'm following the law," he said, pounding the podium. "I'm not doing it to sell anything, I'm doing it because that's my sworn duty."