Eagle Forum Legislative Alerts

Tuesday, May 25, 2010

NJ high court hears arguments on recalling senator


TRENTON, N.J. -- Lawyers for a tea party-inspired group and U.S. Sen. Robert Menendez squared off before the New Jersey Supreme Court on Tuesday over whether New Jersey voters have a right to attempt to recall the senator.

Conservative groups in several states have initiated efforts to recall senators over their votes in Washington and their positions on issues such as immigration and health insurance reform.

Andrew Schlafly, a lawyer for the Committee to Recall Robert Menendez, told New Jersey's high court that because the federal constitution does not mention the right of citizens to recall members of Congress, it's an issue regulated by the states.

State law in New Jersey does allow recall of elected officials - including those the state sends to Washington.

"The people here have the final say," Schlafly, the son of conservative activist Phyllis Schlafly, told the court. "The legislators are their spokesmen. That's the basis of our Constitution."

Activists in New Jersey would need to have a petition drive certified by the state and gather signatures of one-fourth of the state's voters - about 1.3 million - just to get a recall on the ballot.

Earlier this year, Nina Mitchell Wells, then the state Secretary of State, refused to allow the petition drive to start, saying it violated the federal Constitution.

Since then, the issue has been before courts.

In one twist in the case, Paula Dow, the Attorney General appointed by first-year Republican Gov. Chris Christie, has bowed out of efforts to defend the action of Wells, who was appointed by Democratic Gov. Jon Corzine. Dow told the court in a letter that it may never need to rule in the case because it would be so difficult for recall supporters to gather the necessary signatures.

Instead, it's lawyers for Menendez who are pressing for courts to quash a recall of the senator.

"It is a novel case and a complex case, but it is not a difficult case," Marc Elias, a Washington-based lawyer for the senator, told the justices on Tuesday.

The answer, he said, is spelled out in the U.S. Constitution: Senators are elected to six-year terms.

Lawyers for both sides fielded pointed questions from the six justices.

Justice Roberto Rivera-Soto told Elias: "You're asking us to invalidate a provision of the New Jersey Constitution voted on by the people of the state of New Jersey and enacted by the Legislature."

Elias responded that he is - because it contradicts the federal Constitution, which takes precedence when there's a conflict.

Schlafly, trying to dig into history to give evidence that the framers of the Constitution intended for the people to have the right to recall their representatives in Washington, quoted a letter from George Washington to his nephew that seemed to advocate the idea.

"The only thing you can find is some handwritten note from Washington and you want to disregard the Federalist Papers?" Justice Barry Albin asked, referring to the set of arguments mostly from Alexander Hamilton and James Madison to explain and promote the Constitution.

Schlafly responded that the personal note written just after the Constitutional Convention of 1787, over which Washington presided, may have been the most accurate reflection of his true beliefs.

State Assemblyman Donald Wisniewski, who is also chairman of the Democratic State Committee, said after the hearing that the state court needs to step in now because ultimately federal courts will not allow a recall to happen.

He said he's not sure Menendez critics really believe they can remove him from his job in Washington. Rather, he said, they're seeking "to parade up and down the state, collecting signatures and tarnishing the reputation of a U.S. Senator."

RoseAnn Salanitri, president of Recall NJ, the group that would run the campaign to oust Menendez, said how New Jersey courts rule in the case could resonate elsewhere. There are at least nascent efforts to recall Democratic senators in Louisiana, Colorado, Washington, Michigan and North Dakota.

It's not clear when the court may rule.

It heard the case with six members because Chief Justice Stuart Rabner declined to name a temporary jurist after Justice John Wallace left the court last week when Christie refused to reappoint him.

Source: http://www.seattlepi.com/local/6420ap_nj_nj_senator_recall.html

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