UPDATE: JUDGE URGES LAWMAKERS TO TALK IT OUT

 UPDATED JUNE 12, 2009 10:29am Albany Supreme Court Justice Tom McNamara has urged lawyers for both Senators Malcolm Smith and Pedro Espada, Jr. to attempt to resolve their Senate concerns on their own.

McNamara said if the senators can't sort out their issues by Monday afternoon, when they are supposed to return to session, then he will rule in time for session.

Both parties appeared before Judge McNamara at 9:30 Friday morning, after Supreme Court Justice George Ceresia denied Smith's motion Thursday, seeking declaratory and injunctive relief. Justice Ceresia also attempted to get both parties to "talk it out", but an agreement could not be reached.

Legal counsel for Senator Malcolm Smith contends he is the Senate's President Pro Tempore and therefore he is the only person who can call a senate session to order. Espada's attorneys counter Monday's political coup and subsequent vote of Espada as President Pro Tempore ousted Smith. They also maintain as second in command, Espada has the constitutional privilege to call a session into order and thus allow Republicans and dissident democrats to conduct the people's business.

Although Smith did not receive the relief he sought in a Troy court Thursday, Appellate Judge Karen Peters in Kingston granted him a temporary restraining order, which according to Republicans, only refers to Article 4, Section 6 of the New York State Constitution thus limitings Espada's duties should Governor Paterson leave the state for any reason. If something should happen to the Governor, the President Pro Tempore would step in as Acting Governor.

Republicans claim that this ruling does not impact Senator Espada's authority to continue as Temporary President of the Senate.

-----------------------------

ALBANY NEWS CHIEF KEN SCREVEN IS COVERING THIS LEGAL BATTLE AS IT MOVES THROUGH THE COURTS, FRIDAY. HE'LL HAVE A FULL REPORT AT NOON, 5 AND 6PM.