Court kills Robert Menendez recall push
http://www.politico.com/news/stories/1110/45347.html
By ALEX ISENSTADT | 11/18/10 1:11 PM EST Updated: 11/18/10 3:51 PM EST
The New Jersey Supreme Court struck down a tea party-led push to recall Democratic Sen. Robert Menendez as unconstitutional Thursday.
In a 4-2 decision, state Supreme Court justices said that the Constitution forbids the recall of a sitting U.S. senator. Lawyers for The Committee to Recall U.S. Senator Robert Menendez argued that New Jersey law allows for such a recall, but justices determined that law was pre-empted by federal statute.
The state Supreme Court heard arguments in late May after a state appellate court ruled that organizers could proceed with their campaign to recall Menendez. But the court stayed the ruling and stated that organizers could not collect signatures until Menendez lawyers had the opportunity to file appeals. The Committee to Recall U.S. Senator Robert Menendez named former New Jersey Secretary of State Nina Wells, who in January rejected the organization’s petition drive effort, in its lawsuit.
Sussex County Tea Party Patriots founder RoseAnn Salanitri, who heads up the recall effort, told POLITICO in an e-mail that the ruling marked “a sad and dark day in the history of this court.”
“In this decision four out of six N.J. Supreme Court justices practiced judicial activism as they disenfranchised the will of the people of New Jersey and our legislatures, declared our N.J. Constitution unconstitutional and disregarded the intent of our founders as they disregarded a letter by George Washington, president of the Constitutional Convention, that clearly stated that our founders intended that we retained the right to recall our representatives,” she said.
Organizers have said that they are willing to take their fight to the U.S. Supreme Court. Tea party activists have slammed Menendez for supporting the health care overhaul.
Even if the recall effort were allowed, organizers would face a high hurdle: New Jersey law requires a recall effort to collect 1.3 million signatures within 320 days of a petition drive's launch in order to appear on the ballot.
Menendez attorney Marc Elias said the state Supreme Court had interpreted the law correctly. “We are pleased that the New Jersey Supreme Court decided this case correctly in holding that this tea party effort was clearly unconstitutional,” Elias said in a statement. “We strongly believe that this is the end of the matter. There is no basis for further review.”
CHIEF JUSTICE RABNER delivered the opinion of the Court. This case involves an attempt to recall a United States Senator under a state statute. A committee of voters seeking to recall U.S. Senator Robert Menendez submitted a notice of intention to New Jersey's Secretary of State. That act triggers the recall process outlined in the Uniform Recall Election Law (UREL), N.J.S.A. 19:27A-1 to -18, which implements article I, paragraph 2 of the State Constitution.
The Secretary of State, after consulting with the Attorney General, refused to accept the notice, asserting that state recall of a U.S. Senator would violate the Federal Constitution. The Appellate Division, out of a concern about ripeness and respect for the State Constitution, reversed the Secretary's administrative determination and ordered the Secretary to accept the notice for filing.
This case presents important procedural and substantive issues of constitutional dimension. Procedurally, the parties have raised an issue that cannot be sidestepped. They sharply disagree as to whether a U.S. Senator can be recalled under state law. Without a ruling on the legal dispute, the recall process cannot lawfully proceed. That requires us to examine the merits of the case. Although courts are to avoid constitutional issues when possible, in this case there is no other appropriate way to resolve the ongoing conflict.
The U.S. Supreme Court has outlined a framework for addressing similar constitutional questions. We follow its approach by examining the text of the Federal Constitution, relevant historical materials, and principles of our nation's democratic system in order to determine whether states can recall U.S. Senators. That analysis reveals that the Federal Constitution does not permit recall.
According to the historical debates at the Constitutional Convention, the Framers considered and rejected a right to recall. That decision did not go unnoticed. Indeed, it marked a break with the Articles of Confederation, and many delegates at both the Constitutional Convention and the state ratifying conventions specifically highlighted that recall was not part of the proposed new Constitution. Some did so approvingly; others lamented that recall did not exist. None, however, suggested that recall remained alive under the new constitutional form of government that was created.
The historical record leads to but one conclusion: the Framers rejected a recall provision and denied the states the power to recall U.S. Senators. That finding is consistent with the views of nine Supreme Court Justices who made those same observations, in dicta, in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L. Ed.2d 881 (1995)-even as they divided 5-4 over the primary issue in that case.
Renewed debates around the time of the enactment of the Seventeenth Amendment offer yet more support for that view. In addition, contemporary legal scholars have uniformly reached the same conclusion about recall, despite their differing policy views on the subject.
In drafting a new Constitution, the Founders of this nation envisioned a stable, independent body with two senators from each state, whose six-year terms would enable them to take a long-term view of national issues without being subject to recall. New Jersey has chosen a different path for its State leaders-one that is not challenged and remains good law. In that regard, State voters retain the right to recall State officials. But New Jersey law goes further and permits the recall of federal officers. Such an approach could result in a patchwork of inconsistent rules about recall among the fifty states, which would be contrary to the Federal Constitution.
We therefore find that the matter is ripe for adjudication and conclude that 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, we hold that those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional, and we reverse and vacate the Appellate Division's order directing the Secretary to accept the notice of intention to recall Senator Menendez.
http://www.politico.com/news/stories/1110/45347.html
By ALEX ISENSTADT | 11/18/10 1:11 PM EST Updated: 11/18/10 3:51 PM EST
The New Jersey Supreme Court struck down a tea party-led push to recall Democratic Sen. Robert Menendez as unconstitutional Thursday.
In a 4-2 decision, state Supreme Court justices said that the Constitution forbids the recall of a sitting U.S. senator. Lawyers for The Committee to Recall U.S. Senator Robert Menendez argued that New Jersey law allows for such a recall, but justices determined that law was pre-empted by federal statute.
The state Supreme Court heard arguments in late May after a state appellate court ruled that organizers could proceed with their campaign to recall Menendez. But the court stayed the ruling and stated that organizers could not collect signatures until Menendez lawyers had the opportunity to file appeals. The Committee to Recall U.S. Senator Robert Menendez named former New Jersey Secretary of State Nina Wells, who in January rejected the organization’s petition drive effort, in its lawsuit.
Sussex County Tea Party Patriots founder RoseAnn Salanitri, who heads up the recall effort, told POLITICO in an e-mail that the ruling marked “a sad and dark day in the history of this court.”
“In this decision four out of six N.J. Supreme Court justices practiced judicial activism as they disenfranchised the will of the people of New Jersey and our legislatures, declared our N.J. Constitution unconstitutional and disregarded the intent of our founders as they disregarded a letter by George Washington, president of the Constitutional Convention, that clearly stated that our founders intended that we retained the right to recall our representatives,” she said.
Organizers have said that they are willing to take their fight to the U.S. Supreme Court. Tea party activists have slammed Menendez for supporting the health care overhaul.
Even if the recall effort were allowed, organizers would face a high hurdle: New Jersey law requires a recall effort to collect 1.3 million signatures within 320 days of a petition drive's launch in order to appear on the ballot.
Menendez attorney Marc Elias said the state Supreme Court had interpreted the law correctly. “We are pleased that the New Jersey Supreme Court decided this case correctly in holding that this tea party effort was clearly unconstitutional,” Elias said in a statement. “We strongly believe that this is the end of the matter. There is no basis for further review.”
CHIEF JUSTICE RABNER delivered the opinion of the Court. This case involves an attempt to recall a United States Senator under a state statute. A committee of voters seeking to recall U.S. Senator Robert Menendez submitted a notice of intention to New Jersey's Secretary of State. That act triggers the recall process outlined in the Uniform Recall Election Law (UREL), N.J.S.A. 19:27A-1 to -18, which implements article I, paragraph 2 of the State Constitution.
The Secretary of State, after consulting with the Attorney General, refused to accept the notice, asserting that state recall of a U.S. Senator would violate the Federal Constitution. The Appellate Division, out of a concern about ripeness and respect for the State Constitution, reversed the Secretary's administrative determination and ordered the Secretary to accept the notice for filing.
This case presents important procedural and substantive issues of constitutional dimension. Procedurally, the parties have raised an issue that cannot be sidestepped. They sharply disagree as to whether a U.S. Senator can be recalled under state law. Without a ruling on the legal dispute, the recall process cannot lawfully proceed. That requires us to examine the merits of the case. Although courts are to avoid constitutional issues when possible, in this case there is no other appropriate way to resolve the ongoing conflict.
The U.S. Supreme Court has outlined a framework for addressing similar constitutional questions. We follow its approach by examining the text of the Federal Constitution, relevant historical materials, and principles of our nation's democratic system in order to determine whether states can recall U.S. Senators. That analysis reveals that the Federal Constitution does not permit recall.
According to the historical debates at the Constitutional Convention, the Framers considered and rejected a right to recall. That decision did not go unnoticed. Indeed, it marked a break with the Articles of Confederation, and many delegates at both the Constitutional Convention and the state ratifying conventions specifically highlighted that recall was not part of the proposed new Constitution. Some did so approvingly; others lamented that recall did not exist. None, however, suggested that recall remained alive under the new constitutional form of government that was created.
The historical record leads to but one conclusion: the Framers rejected a recall provision and denied the states the power to recall U.S. Senators. That finding is consistent with the views of nine Supreme Court Justices who made those same observations, in dicta, in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 115 S.Ct. 1842, 131 L. Ed.2d 881 (1995)-even as they divided 5-4 over the primary issue in that case.
Renewed debates around the time of the enactment of the Seventeenth Amendment offer yet more support for that view. In addition, contemporary legal scholars have uniformly reached the same conclusion about recall, despite their differing policy views on the subject.
In drafting a new Constitution, the Founders of this nation envisioned a stable, independent body with two senators from each state, whose six-year terms would enable them to take a long-term view of national issues without being subject to recall. New Jersey has chosen a different path for its State leaders-one that is not challenged and remains good law. In that regard, State voters retain the right to recall State officials. But New Jersey law goes further and permits the recall of federal officers. Such an approach could result in a patchwork of inconsistent rules about recall among the fifty states, which would be contrary to the Federal Constitution.
We therefore find that the matter is ripe for adjudication and conclude that 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, we hold that those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional, and we reverse and vacate the Appellate Division's order directing the Secretary to accept the notice of intention to recall Senator Menendez.
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