Court rules effort to recall NJ senator can proceed

Tuesday, March 16, 2010

BY PEGGY ACKERMANN

STATE HOUSE BUREAU

A state appeals court Tuesday ruled New Jersey’s secretary of state must accept a petition a citizens group filed to recall U.S. Sen. Robert Menendez, but left open the question of whether the removal effort itself is constitutional.

The three-judge panel stayed its ruling to give Menendez (D-N.J.) the opportunity to appeal to the state Supreme Court. The senator has 45 days to file an appeal but did not say Tuesday whether he would. He called the recall effort a "political stunt" that won’t distract him from doing his job.

"This an organization trying to undemocratically and unconstitutionally overturn an election in which more than 2 million New Jerseyans voted," said Menendez, whose term expires in 2012. "My focus continues to be on job creation legislation and delivering a successful extension of my local property tax relief bill."

The court found existing New Jersey law and the state’s constitution both allow U.S. senators to be recalled. For that reason, the appeals court said, the removal effort can proceed. But noting the absence of case law and precedent, it left the ultimate question of the constitutionality of the state’s recall law and amendment to a higher court.

"There are a host of genuine arguments and counterarguments that can be articulated and debated about whether or not the Federal Constitution would permit a United States Senator to be recalled by the voters under state law," the appellate judges said.

"I’m pleased," said Dan Silberstein, attorney for the Committee to Recall Senator Menendez, which is backed by the New Jersey chapter of the conservative Tea Party movement. "I think the appellate court made the right decision on where the case is procedurally."

Menendez’s attorney disagreed.

"The U.S. Constitution is clear that a senator’s term is six years and is not subject to recall," said Marc E. Elias. "The state attorney general correctly argued before the court that a recall is unconstitutional and a clear disservice to voters who take part in a petition process that is invalid. We are pleased the court stayed this opinion until the appeals process is completed."

The state is reviewing the ruling and has not decided whether it will appeal, a spokesman for the Attorney General’s Office said.

The case began last fall after then-Secretary of State Nina Mitchell Wells rejected the committee’s recall notice, the filing of which is necessary before petitions can be circulated. Wells said the U.S. Constitution supersedes the state’s.

After a notice is approved, a committee must get the signatures of 25 percent of registered voters of the affected district — 1.3 million in the case of Menendez — before a recall election can be held.

NJ Tea Parties United and the Sussex County Tea Party say they want Menendez removed because he votes for too much government spending.

The case put the state in the unusual position of arguing earlier this month against its own law and calling part of its constitution unconstitutional.

Silberstein, however, told the judges the case is about whether the secretary of state will allow "core political speech." He said state voters approved a constitutional amendment in 1993 allowing them to recall public officials — including U.S. senators. The Legislature enacted the amendment in 1995.

Democratic state chairman John Wisniewski, who is also an assemblyman from Middlesex County, criticized the Tea Party group’s actions.

"Attacking the constitutionality of the Constitution is a strange, hypocritical effort, which contradicts the system of elections that most Americans have taken pride in for more than 200 years," Wisniewski said.

Assemblywoman Alison Littell McHose (R-Sussex) disagreed.

"Our state constitution is clear: The voters of this state overwhelmingly decided to extend their rights to recall any elected official who is elected and serving the people of this state on all levels of government," she said.

Tea Party Patriots

Tea Party Patriots is a national grassroot organization that provides logistical, educational, networking and other types of support to over 1000 community based tea party groups around the country. Tea Party Patriots national coordinators understand that we are mere servants to the grassroot groups. We understand that we do not set the course for our member groups, as they have developed their own vision and plan for how to address the local and national challenges that they are facing.

Mission Statement
The impetus for the Tea Party movement is excessive government spending and taxation. Our mission is to attract, educate, organize, and mobilize our fellow citizens to secure public policy consistent with our three core values of Fiscal Responsibility, Constitutionally Limited Government and Free Markets.

Fiscal Responsibility: Fiscal Responsibility by government honors and respects the freedom of the individual to spend the money that is the fruit of their own labor. A constitutionally limited government, designed to protect the blessings of liberty, must be fiscally responsible or it must subject its citizenry to high levels of taxation that unjustly restrict the liberty our Constitution was designed to protect. Such runaway deficit spending as we now see in Washington D.C. compels us to take action as the increasing national debt is a grave threat to our national sovereignty and the personal and economic liberty of future generations.

Constitutionally Limited Government: We, the members of The Tea Party Patriots, are inspired by our founding documents and regard the Constitution of the United States to be the supreme law of the land. We believe that it is possible to know the original intent of the government our founders set forth, and stand in support of that intent. Like the founders, we support states' rights for those powers not expressly stated in the Constitution. As the government is of the people, by the people and for the people, in all other matters we support the personal liberty of the individual, within the rule of law.

Free Markets: A free market is the economic consequence of personal liberty. The founders believed that personal and economic freedom were indivisible, as do we. Our current government's interference distorts the free market and inhibits the pursuit of individual and economic liberty. Therefore, we support a return to the free market principles on which this nation was founded and oppose government intervention into the operations of private business.

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