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Committee to Recall Robert Menendez from the Office of U.S. Senator v. Wells

March 16, 2010

COMMITTEE TO RECALL ROBERT MENENDEZ FROM THE OFFICE OF U.S. SENATOR, PLAINTIFF-APPELLANT,
v.
NINA MITCHELL WELLS, SECRETARY OF STATE, AND ROBERT F. GILES, DIRECTOR OF THE DIVISION OF ELECTIONS, DEFENDANTS-RESPONDENTS, AND ROBERT MENENDEZ, INDISPENSABLE PARTY.



On appeal from the Division of Elections and decision of the Secretary of State.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: March 2, 2010

Before Judges Stern, Graves and Sabatino.

Plaintiff Committee appeals from the final administrative determination of the Secretary of State declining to accept its notice of intention to recall United States Senator Robert Menendez. The New Jersey Constitution, art. I, ¶ 2b, and its implementing statute, the Uniform Recall Election Law, permit such a petition, but the Secretary of State declined to accept the filing because "the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and... neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official." Plaintiff argues that the Secretary of State erred in refusing to file the notice of intention because the notice met the State's statutory requirements and the Secretary of State had "no authority to unilaterally determine which provisions of the New Jersey Constitution are valid." The plaintiff also asserts that the issue of the federal constitutionality of the recall of a United States Senator is not yet "ripe" for consideration (and that "the doctrine of 'judicial restraint'" requires us "to defer resolution of the constitutional question until such time as the Committee collects the requisite number of signatures") but that "the Committee is entitled to an injunction ordering respondents to approve their notice of intent to recall," in part, because the recall process must proceed as "core political speech," protected by the First Amendment to the Federal Constitution and N.J. Const. art. I, ¶ 18.

I.

There is no substantial factual dispute. On November 7, 2006, Robert Menendez was elected to represent New Jersey in the United States Senate. Under federal law, 2 U.S.C.A. § 1a, New Jersey presented the Senate with a certification, confirming that on November 7, 2006, Menendez was "chosen by the qualified electors of the State of New Jersey" to represent the State in the Senate for a term of six years, beginning on January 3, 2007. 153 Cong. Rec. S3 (daily ed. Jan. 4, 2007). On January 4, 2007, the Vice President administered the "oath prescribed by law," Menendez subscribed to it, and he was officially seated.

Id. at S4. His present term in the Senate is scheduled to end on January 3, 2013. Id. at S3.

On September 25, 2009, plaintiff initiated the recall process by filing a notice of intention to recall Senator Menendez, pursuant to N.J.S.A. 19:27A-6, a section of the Uniform Recall Election Law, N.J.S.A. 19:27A-1 to -18, with then-New Jersey Secretary of State Nina Wells,*fn1 and with Robert F. Giles, the Director of the Division of Elections. The notice of intention listed RoseAnn Salanitri, Suzanne M. Kimble, and Adrianne S. Knobloch, as the members of the recall committee who would serve as the representatives of the sponsors and signers of a recall petition. The notice of intention also provided, in accordance with N.J.S.A. 19:27A-6(b), the addresses of the sponsors, which were all within the State, and a statement that the sponsors supported the recall.*fn2

By letter dated October 5, 2009, Giles advised plaintiff that the notice of intention was "currently under legal review."

On November 10, 2009, plaintiff filed a second notice of intention to recall Senator Menendez, substituting Daryl Haggerty as a member of the recall committee in place of Salanitri. The sponsors set forth that under N.J.S.A. 19:27A-6(e) and (f), they "elected not to provide a statement regarding this recall," meaning they would not provide a reason for removal, and did not request a special election.

On January 11, 2010, the Secretary, in her capacity as the State's chief election official, issued a final administrative agency determination that "neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review."*fn3 As already noted, she stated, albeit without citation to any specific legal authority, that "[i]t has been determined that the qualifications and election of a Member of the United States Senate is a matter of exclusive jurisdiction of federal authority and that neither the United States Constitution nor federal statute provide for a recall proceeding for a federally-elected official."

On January 13, 2010, plaintiff filed an application for emergent relief with this court, seeking temporary injunctive relief and expedited review. On January 14, 2010, we permitted plaintiff to "file a motion for emergent relief and/or a motion to accelerate the appeal." On February 4, 2010, we entered an order granting plaintiff's motion for acceleration and a separate order granting the American Civil Rights Union's emergent application to participate as amicus curiae.

II.

Plaintiff argues that the Secretary of State erred in determining that its notice of intention to recall Senator Menendez could not be accepted for filing or review even though the notice met the statutory requirements. It also argues that the Secretary, as a member of the State's Executive Branch of government, had no authority to determine that the State's recall election laws were invalid. We need not address that issue, however, because we were advised at oral argument that the determination was made pursuant to advice of the Attorney General, who is charged by law with the obligation to represent the State and render legal advice*fn4 to State officers and administrative agencies which is binding on the Executive Branch until such time as the courts address the issue. See N.J.S.A. 52:17B-5; 52:17A-4(e). See also Quarto v. Adams, 395 N.J. Super. 502, 513 (App. Div. 2007). At the argument before us, plaintiff did not contend otherwise.

III.

The recall provision of the State Constitution, N.J. Const. art. I, ¶ 2b, was adopted in 1993. On the November 2, 1993 ballot, public question number one asked voters, "[s]hall Article 1, paragraph 2 of the [New Jersey] Constitution be amended, as proposed by the Legislature, to provide for the recall election of elected officials?" The interpretive statement provided, in part, that:

This amendment to the Constitution permits the voters to remove elected officials, after at least one year of service, through the process of a recall election.... This applies to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey.... The amendment also provides that the reasons for a recall election shall be a political question, so that the courts cannot set aside a recall on the grounds that the reasons for it are in some way inadequate.

At present, statutory provisions make certain elected municipal and county officials subject to removal by a recall election. However, constitutional rather than statutory provisions are necessary to provide for the recall election of the Governor, members of the Legislature, U.S. Senators, and Congressmen. There are presently 15 states that have a statewide recall election.

By an overwhelming margin of more than three to one,*fn5 the citizens of New Jersey voted in favor of the public question, and article I, paragraph 2 of the New Jersey Constitution was amended and now provides:

a. All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.

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 ...


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