Peggy Ackermann/Statehouse Bureau
TRENTON — A recall committee cannot proceed with its effort to unseat U.S. Sen. Robert Menendez, the state Supreme Court ruled today in a decision that strikes down part of the state constitution.
Voting 4-2, the justices said parts of the state law and constitution that allow such recalls are unconstitutional. The decision reverses an appellate court, which had said the recall could proceed but stayed its decision to allow Menendez to appeal.
"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," Chief Justice Stuart Rabner wrote for the majority.
Menendez's attorney hailed the ruling.
"We are pleased that the New Jersey Supreme Court decided this case correctly in holding that this tea party effort was clearly unconstitutional," attorney Marc Elias said. "We strongly believe that this is the end of the matter. There is no basis for further review as the U.S. Supreme Court is highly unlikely to take up an appeal of a decision in which the U.S. Constitution was upheld on clearly correct grounds."
Afshin Mohamadi, Menendez's spokesman, said the group failed in its attempt targeting an effective senator.
"The New Jersey Supreme Court today ruled that this fringe effort to recall a leader in the fight against special interests is definitively unconstitutional," Mohamadi said. "It is a resounding victory against the tea party’s Washington-based, right-wing corporate backers, who are waging economic war on the middle class. Bob Menendez was their No. 1 target because they want to silence the most effective voices speaking out in defense of the middle class against powerful interests that are stacking the deck against New Jersey’s hard working families, like Big Oil, Big Insurance and corporate polluters.
"Bob Menendez will continue his leadership in delivering tax relief to families and small businesses, creating a clean energy jobs boom and growing New Jersey’s economy – it’s a record that mainstream New Jerseyans can support, and he’ll be proud to run on it in 2012," he added.
But the recall committee's founder and attorney said they will ask the U.S. Supreme Court to hear the case.
"The recall committee sees this as an opportunity to open the doors of recall for the entire nation because we fully intend to take this case to the U.S. Supreme Court," said RoseAnn Salanitri, founder of Sussex County Tea Party Patriots and founder and spokeswoman for the recall movement.
Attorney Andrew Schlafly of Far Hills said the group has 90 days to seek a hearing before the nation's highest court. He praised both the 73-page decision and 65-page dissent from the New Jersey Supreme Court as scholarly. Voting in the majority with Rabner were Justices Virginia Long, Jaynee LaVecchia and Barry Albin. Justices Roberto-Rivera Soto and Helen Hoens dissented.
"I find the dissent to be particularly compelling," Schlafly said. "It recognizes that the people are sovereign, that it's the people who hold the ultimate authority."
Daniel Silberstein, a Clark attorney who argued the case at the appellate level, said the case was about free speech.
"The case has always been about respecting the will of the 1.3 million New Jerseyans who cast their vote in 1993 in favor the amending our constitution to provide for a unique, irreplaceable form of collective political speech, a right guaranteed by the First Amendment, and most fundamental to our democracy," Silberstein said. "The Supreme Court's decision amounts to a content-based restriction on political speech. It is very, very worrisome."
In the case, which is being watched in several states, the recall committee sought the removal of Menendez (D-N.J.), whose six-year term expires in 2012. The Committee to Recall Senator Robert Menendez says on its website that it opposes the senator’s votes on health care and cap and trade and that he has "consistently voted for legislation favoring illegal immigration and irresponsible fiscal spending."
The case began last fall when then-Secretary of State Nina Mitchell Wells rejected the committee’s recall notice, the filing of which is necessary before any petitions can be circulated. In turning the committee down, Wells said the U.S. Constitution supersedes the state constitution.
The issues before the high court included whether the U.S. Constitution, in the absence of a specific prohibition, preempts the state’s constitution — which permits the recall of federal lawmakers; whether the matter should have been before the court before signatures on petitions were collected; whether "core political speech" was being infringed upon; and what the framers of the federal Constitution had in mind regarding recalls.
Schlafly, son of conservative activist Phyllis Schlafly, argued the case before the high court for the recall committee in May. Schlafly cited a letter George Washington wrote to his nephew Bushrod Washington on Nov. 10, 1787. In that letter, the founding father said when the people’s representatives act contrary to their wishes "their Servants can, and undoubtedly will be, recalled."
But Justice Jaynee LaVecchia pointed out the notion of recalling members of the House of Representatives — U.S. senators originally were chosen by state legislatures — got a thumbs down from the founders. Justice Virginia Long agreed.
Justice Roberto Rivera-Soto asked Schlafly if there is a distinction between a recall and a recall election. The attorney said that was key to his case.
"What we’re talking about here is some healthy petitioning activity that works well here in New Jersey," Schlafly said. He maintained the issue of whether Menendez could be removed from office would not have needed to be decided until signatures were collected and accepted.
After a notice is approved, a committee must get the signatures of 25 percent of registered voters of the affected district — in this case, the state — before a recall election can be held. The 1.3 million signatures that would have been required to recall Menendez would have posed a potentially insurmountable burden for the recall committee.
Elias, of Washington, D.C, told the Supreme Court justices a recall effort that could not result in a recall is a sham.
"The fact that this is a complicated case and a novel case does not make it a difficult case," Elias said. He noted a recall would be costly to Menendez, who would have to raise money and take time to fight it.
Elias also said allowing the recall to proceed would harm New Jerseyans because they would waste time participating in it and be deceived by petitions bearing "the imprimatur of the state of New Jersey."