NJ Supreme Court Rejects Tea Party's Efforts to Recall U.S. Senator Menendez

    In a 4-2 vote, New Jersey's Supreme Court in The Committee to Recall Robert Menendez v. Nina Wells (A-86-09) held that a tea-party group can't continue with its effort to recall U.S. Sen. Robert Menendez. The group, amongst Menendez's critics, argued that the states have the power to regulate recall efforts because the U.S. Constitution is silent on the issue. Specifically, the tea party group maintained that an amendment to New Jersey's state constitution later implemented by statute provides for the recall of any elected official “in this State or representing this State in the United States Congress.”

The Judges sided with lawyers for the New Jersey Democrat, who said a recall would violate the U.S. Constitution. Menendez is up for re-election in 2012. According to news reports, the Committee says it will be appeal to the U.S. Supreme Court.

The facts and procedural history of the case are as follows:   In 1993, New Jersey voters approved an amendment to the State Constitution that provides for the recall of any elected official “in this State or representing this State in the United States Congress.” N.J. Const. art. I, para. 2(b). The constitutional amendment further provides for the enactment of laws to include the requirement that a recall election be held on the petition of 25 percent of the registered voters in a district.

The Uniform Recall Election Law (UREL), N.J.S.A. 19:27A-1 to -18, which went into effect on May 17, 1995, implemented the constitutional amendment and established procedures for New Jersey citizens to seek to recall “any United States Senator or Representative elected from this State or any State or local elected official.” N.J.S.A. 19:27A-2.

On November 7, 2006, Robert Menendez was elected to represent New Jersey in the U.S. Senate for a 6 year term. Senator Menendez took the required oath of office and was officially seated in the Senate on January 4, 2007. His term is set to end on January 3, 2013.

On September 25, 2009, pursuant to the UREL, a tea group party calling themselves the Committee to Recall Robert Menendez from the Office of U.S. Senator (Committee), submitted to the New Jersey Secretary of State (Secretary), and the Director of the Division of Elections (Director of Elections), a notice of intention to recall Senator Menendez.

On January 11, 2010, acting on the advice of the New Jersey Attorney General, the Secretary issued a final agency determination declaring that the notice of intention would not be accepted for filing or review. The Secretary explained that the qualifications and election of United States Senate Member is a matter of exclusive jurisdiction of federal authority, and neither the United States Constitution nor federal statute provides for a recall proceeding for a federally-elected official.

The Committee then filed an application with the Appellate Division seeking temporary injunctive relief and expedited review. On February 4, 2010, the Appellate Division granted the Committee’s motion to accelerate the appeal, as well as the application of the American Civil Rights Union (ACRU) to participate as a friend of the Court.

Before the appellate panel, the Committee advocated the following arguments: the Secretary improperly denied the notice of intention even though the notice complied with all statutory requirements; the Secretary, as an agent of the executive branch, was in no position to opine on the validity of the UREL; the constitutionality of the UREL would not be ripe for judicial review until (1) the Committee obtained roughly 1.3 million signatures of registered voters needed to force a recall election, (2) a majority of voters voted to recall Senator Menendez, and (3) the Secretary ordered his recall; and the Committee must be allowed to proceed with the recall process because it is a matter of “core political speech” protected by the Federal and State Constitutions.

Both the Attorney General, on behalf of the Secretary and the Director of Elections, and Senator Menendez asserted that the Federal Constitution is the sole legal authority that governs the qualifications and right to expel a Member of Congress, and that the UREL and the Recall Amendment, which extend to Members of Congress, are therefore unconstitutional, and that the issue was ripe for adjudication.

In a published decision, the Appellate Division questioned the constitutionality of the UREL but declined to rule on the ultimate validity of the recall process regarding a United States Senator and ordered the current Secretary of State to accept and file the petition and to proceed under the statute. 413 N.J. Super. 435 (App. Div. 2010).

The appeals panel framed the issue as whether New Jersey’s constitutional and statutory recall measures, as applied to a United States Senator, are so manifestly invalid under the Federal Constitution that they must depart from the norms of judicial restraint and compel that the Committee’s process in circulating a recall petition be halted. In light of the constitutional ambiguity identified by the appeals panel, the Appellate Division was not convinced that it could safely predict what the United States Supreme Court would do if it were presented with the issue. Without ruling on the ultimate validity of the recall process, the Appellate Division found a sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function. In other words, the Appellate Division ordered the Secretary of State to accept the petition and proceed with the recall procedures set forth in the UREL without deciding the law’s validity. In essence then, the Appellate Division “punted” the football.

Dissatisfied with the Appellate Division’s ruling, Senator Menendez petitioned the New Jersey Supreme Court for further review. After granting the Senator’s petition for review, the Court reversed the Appellate Division’s judgment and vacated the order requiring the Secretary of State to accept the notice of intention.

The Court disagreed with the Appellate Division’s decision to punt on adjudicating the law’s validity, finding that the matter is ripe for adjudication and the text and history of the Federal Constitution, as well as the principles of the democratic system it created, do not allow the states the power to recall U.S. Senators. Accordingly, the NJ Supreme Court declared those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional.