The Comm. To Recall Robert Menendez From the Office of U.S. Senator v. Wells

• Decision Date: 18 November 2010
• Citation: 204 N.J. 79,7 A.3d 720
• Parties: The COMMITTEE TO RECALL ROBERT MENENDEZ FROM THE OFFICE OF U.S. SENATOR, Plaintiff-Respondent, v. Nina Mitchell WELLS, Esq., Secretary of State, and Robert F. Giles, Director of the Division of Elections, Defendants-Respondents, and United States Senator Robert Menendez, Indispensable Party-Appellant.
• Court: New Jersey Supreme Court

7 A.3d 720

204 N.J. 79

The COMMITTEE TO RECALL ROBERT MENENDEZ FROM THE OFFICE OF U.S. SENATOR, Plaintiff-Respondent,

v. Nina Mitchell WELLS, Esq., Secretary of State, and Robert F. Giles, Director of the Division of Elections, Defendants-Respondents,andUnited States Senator Robert Menendez, Indispensable Party-Appellant.

Supreme Court of New Jersey.

Argued May 25, 2010.

Decided Nov. 18, 2010.

Marc E. Elias, a member of the District of Columbia bar, argued the cause for appellant (Genova, Burns & Giantomasi, attorneys; Angelo J. Genova, Newark, on the briefs).

Andrew L. Schlafly, Far Hills, argued the cause for respondents (Mr. Schlafly and Oller & Luzzi, attorneys; Mr. Schlafly and Richard T. Luzzi, Rockaway, on the briefs).

Peter J. Ferrara, a member of the Pennsylvania bar, submitted a brief on behalf of amicus curiae American Civil Rights Union(James K. Pryor, Parsippany, attorney; Mr. Pryor, on the briefs).

Michael P. Laffey, Holmdel, submitted a brief on behalf of amici curiae Conservative Legal Defense and Education Fund, Institute on the Constitution, U.S. Justice Foundation, Gun Owners Foundation, Gun Owners of America, Inc., Vision to America, The Lincoln Institute for Research and Education, Public Advocate of the United States, Inc., U.S. Border Control, U.S. Border Control Foundation, American Coalition for Competitive Trade, and The Constitution Party National Committee (Messina Law Firm, attorneys; Mr. Laffey, Gary G. Kreep, a member of the California bar, William J. Olson, a member of the Commonwealth of Virginia and the District of Columbia bars, and Herbert W. Titus, a member of the Commonwealth of Virginia bar, on the brief).

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 breakwith 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 theydivided 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 Constitutionwhich 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.

I.

A.

The UREL implements a state constitutional amendment that New Jersey voters approved in 1993. A public question on the ballot that year asked, "Shall Article 1, paragraph 2 of the Constitution be amended, as proposed by the Legislature, to provide for the recall election of elected officials?" Public Question No. 1 (1993), available at http:// nj. gov/ state/ elections/ 1993 results/ 1993- public- questions. pdf. The accompanying interpretive statement explained that the proposed recall provision "applies to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey." Ibid.

New Jersey citizens voted in favor of the amendment by a margin of 1,326,657 to 414,925. Ibid. As a result, article I, paragraph 2 of the State Constitution now provides, in relevant part,

b. The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress. The Legislature shall enact laws to provide for such recall elections. Any such laws shall include a provision that a recall election shall be held upon petition of at least 25% of the registered voters in the electoral district of the official sought to be recalled. If legislation to implement this constitutional amendment is not enacted within one year of the adoption of the amendment, the Secretary of State shall, by regulation, implement the constitutional amendment, except that regulations adopted by the Secretary of State shall be superseded by any subsequent legislation consistent with this constitutional amendment governing recall elections. The sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.

[ N.J. Const. art. I, ¶ 2(b) (Recall Amendment).]

The UREL, which went into effect on May 17, 1995, established procedures for New Jersey citizens to seek to "recall, after at least one year of service in the person's current term of office, anyUnited States Senator or Representative elected from this State or any State or local elected official." N.J.S.A. 19:27A-2.

Under the UREL, a registered voter seeking to initiate recall proceedings must first file "with the appropriate recall election official"—currently, the Secretary of State—a notice of intention containing the name and office of the official to be recalled and information about the sponsors and the committee petitioning for recall. N.J.S.A. 19:27A-6. The recall election official must then review the notice of intention within three business days for "compliance with the provisions of [ N.J.S.A. 19:27A-6]." N.J.S.A. 19:27A-7(a).

If the notice is found to be in compliance, the official must imprint her approval and sign her name and office on the notice, return a copy of the approved notice to the recall committee, prepare an estimate of the cost of conducting the recall election if a special election is requested, make the notice available for public inspection, serve a copy on the officer sought to be recalled, and publish the notice of intention in a newspaper. N.J.S.A. 19:27A-7(a), (b). If the notice "is found not to be in compliance, the recall election official shall ... return the notice, together with a written statement indicating the reasons for that finding, to the recall committee, which shall have the opportunity to file a corrected notice of intention." N.J.S.A. 19:27A-7(a).

If the notice of intention is accepted, the recall committee must then submit a proposed recall petition to the election official in a form consistent with the requirements listed in N.J.S.A. 19:27A-8. The official's approval of the petition starts the relevant time period—320 days for recall of the Governor or a U.S. Senator, and 160 days for all other elected officials—in which the recall committee must gather signatures from twenty-five percent of registered voters in the relevant electoral district as of the date of the preceding general election. N.J.S.A. 19:27A-5, -10. (The parties agree...