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

November 18, 2010

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.



On appeal from the Superior Court, Appellate Division. (A-86-09).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The important constitutional issue raised in this appeal is whether a United States Senator can be recalled under state law.

New Jersey voters approved a constitutional amendment in 1993 that provides for the recall of any elected official "in this State or representing this State in the United States Congress." N.J. Const. art. I, para. 2(b). The amendment further provides for the enactment of laws to include the requirement that a recall election be held on the petition of 25 percent of the registered voters in a district. The Uniform Recall Election Law (UREL), N.J.S.A. 19:27A-1 to -18, which went into effect on May 17, 1995, implemented the constitutional amendment and established procedures for New Jersey citizens to seek to recall "any United States Senator or Representative elected from this State or any State or local elected official." N.J.S.A. 19:27A-2.

On November 7, 2006, petitioner Robert Menendez was elected to represent New Jersey in the U.S. Senate for a six-year term. Senator Menendez took the required oath of office and was officially seated in the Senate on January 4, 2007. His term is set to end on January 3, 2013.

On September 25, 2009, pursuant to the UREL, plaintiff-respondent, the Committee to Recall Robert Menendez from the Office of U.S. Senator (Committee), submitted to Nina Wells, then-New Jersey Secretary of State (Secretary), and Robert Giles, Director of the Division of Elections (Director of Elections), a notice of intention to recall Senator Menendez. On January 11, 2010, acting on the advice of the Attorney General, the Secretary issued a final agency determination that the notice of intention would not be accepted for filing or review. The Secretary explained that 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 provides for a recall proceeding for a federally-elected official.

The Committee filed an application with the Appellate Division, seeking temporary injunctive relief and expedited review. In a published, per curiam decision, the Appellate Division questioned the constitutionality of the UREL but declined to pass on the ultimate validity of the recall process regarding a United States Senator and ordered the current Secretary of State to accept and file the petition and to proceed under the statute. 413 N.J. Super. 435 (App. Div. 2010). The panel framed the issue before it as whether the State's constitutional and statutory recall measures, as applied to a United States Senator, are so manifestly invalid under the Federal Constitution that they must depart from the norms of judicial restraint and compel that the Committee's process in circulating a recall petition be halted. In light of the constitutional ambiguity it had identified, the panel was not convinced that it could safely predict what the United States Supreme Court would do if it were presented with the issue. The panel therefore found a sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function without the Appellate Division passing on the ultimate validity of the recall process.

On April 27, 2010, this Court granted Senator Menendez's petition for certification.

HELD: The matter is ripe for adjudication and 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. Those portions of the UREL and the State Constitution which authorize the recall of U.S. Senators are unconstitutional.

1. This issue is appropriate for review. The Secretary's refusal to accept and review the notice of intention generated an ongoing controversy. To resolve this case, it is necessary to decide whether the Secretary's decision was correct. The principle of judicial restraint does not call for courts to avoid ruling on a case if an answer can only be found by resorting to constitutional analysis. This case is fit for review because the issues are purely legal and appropriate for judicial resolution without developing additional facts. Additionally, there is a sufficient showing of harm that the parties would suffer if the Court were to abstain from resolving this case. Continuing with this recall process would also inject uncertainty into the State's electoral scheme. The Court is disinclined to allow the process to go forward, and the citizens of this State to believe they are participating in a recall process, if it is certain that the court would have to decide, shortly thereafter, that the process was manifestly unconstitutional. (pp. 24-29)

2. The Supremacy Clause of the Federal Constitution provides the backdrop for the Court's analysis, proclaiming that "this constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State notwithstanding." U.S. Const. art. VI, cl. 2. State laws and constitutional provisions that conflict with the Federal Constitution are without effect. The plain language of the Federal Constitution suggests that a Senator's term is fixed and that any right to prevent a Senator from completing his or her term is vested in the Senate, not the States. To the extent that the Federal Constitution is unclear or ambiguous, the Court looks to interpretive aids for guidance. In particular, the Court examines the intent of the Framers expressed at historical debates at both the Constitutional Convention and the state ratifying conventions. (pp. 29-34)

3. Leading into the Constitutional Convention, the people and their delegates were familiar with the concept of recall, as such provisions appeared in the Articles of Confederation and in two state constitutions. At the Constitutional Convention, the right of recall was considered and rejected. Certain delegates at the Constitutional Convention who favored recall of Senators acknowledged that recall was not part of the draft constitution. None suggested that recall remained alive under the new constitutional form of government that was created. Other delegates extolled the benefits of not including a recall provision. The inability of the States to recall Senators became a rallying point for the Anti-Federalists, who opposed ratification of the Constitution. The debate concerning the decision not to insert a recall provision in a draft of the Constitution continued in several of the state ratifying conventions, with certain participants voicing displeasure over the absence of a recall provision in the Constitution. Three states proposed amendments that would explicitly allow for the recall of Senators, but none of the proposals survived. 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. In light of that substantial body of evidence, it is not surprising that in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), the U.S. Supreme Court's majority and dissenting opinions both noted that the Framers rejected a recall provision and denied the states the power to recall. (pp. 34-45)

4. The Committee relies on the Seventeenth Amendment as a source of authority for states to recall U.S. Senators. The Seventeenth Amendment, passed in 1913, provided for direct election of U.S. Senators. While it changed the mode of selecting Senators, it did not provide for the power of recall. Based on the reports accompanying the Amendment and the statements of a number of representatives in both Houses, it is clear that the intent of Congress was to confine the scope of the Amendment to the direct election of Senators. The Elections Clause, U.S. Const. art. I, § 4, cl. 1, also offers no support for recall. The clause invests the States with the responsibility for the mechanics of congressional elections -- namely, their time, place and manner. It grants States authority to create procedural regulations, not to enact substantive legislation, like recall laws, which would alter the duration of congressional terms of office. The inability to recall Senators accords with the basic principles of our democratic system established in the Constitution. The Framers deliberately structured the Senate as a stable and independent body capable of instilling national character, with Senators able to take an extended view of issues in light of their six-year terms. In sum, the Court's review of the constitutional text, history, and structure of the democratic system reveals that the Federal Constitution does not permit recall. (pp. 45-53)

5. Certain States and a number of legal scholars have likewise concluded that state law cannot be used to recall federal officials. Like New Jersey, numerous other States have laws authorizing procedures for the recall of public officials. Although no precedential case has squarely tested any of the recall laws, no member of Congress has ever been recalled in the history of the United States. The Attorneys General in several States have opined on the question, and most have rejected the notion that state recall laws could be used to recall Members of Congress. A resounding consensus of legal scholarship agrees that state law cannot be used to recall a Member of Congress. (pp. 53-59)

6. In a manner consistent with the analysis of the preceding sections of this opinion, the U.S. Supreme Court has considered and rejected supplemental conditions to congressional terms of service. In a trilogy of cases: Powell v. McCormack, 395 U.S. 486 (1969); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995); and Cook v. Gralike, 531 U.S. 510 (2001), the Court engaged in historical and textual analysis to determine whether rules could be added to congressional terms of service when the Federal Constitution was otherwise silent. On each occasion, the Court concluded that the express provisions of Article I of the Federal Constitution were fixed and exclusive. That analysis demonstrates that the six-year term in Article I, Section 3, Clause 1 is similarly fixed and exclusive. (pp. 59-64)

7. The Committee and amici assert that the omission from the Federal Constitution of any mention of recall -- a power that pre-dated the Constitution -- signals that that power was reserved to the States or the people via the Tenth Amendment. However, that reasoning was explored and repudiated by the U.S. Supreme Court in Thornton and Cook. There can be no reserved power relating to the election of Members of Congress whose very offices originated with the Constitution. The Committee and amici also argue that the UREL protects constitutional rights to political activity and expression. Citizens plainly are free to petition Congress to allow for recall elections of U.S. Senators. Those rights do not, in and of themselves, establish or guarantee a right to recall under the Federal Constitution. The Committee also advances various policy arguments in favor of recall elections. The Court cannot resolve that policy debate over recall any more than the Thornton Court could decide the wisdom of term limits. A change to the fabric of the Constitution, which a power of recall would represent, can only be achieved through the amendment process. (pp. 64-69)

8. The UREL and the Recall Amendment offer New Jersey voters the power to hold state and local public servants accountable through the recall process. The Court recognizes the important and legitimate aims of both laws. The proper way to preserve aspects of the laws is through judicial surgery. The Court therefore concludes that the provisions of the UREL and the Recall Amendment pertaining to U.S. Senators are invalid, but otherwise will allow the laws to remain in effect as they relate to state and local officials. (pp. 70-71)

9. The dissent uses various techniques to challenge the above analysis. It attempts to bypass the historical record with broad swipes; it champions marginal items; it offers rousing rhetoric about disenfranchising voters; and it appeals to emotion. But those techniques cannot rewrite the Constitution. (pp. 71-73)

10. For the reasons set forth above, the Court finds that the case is ripe for review and that the Federal Constitution does not allow States the power to recall U.S. Senators. That conclusion is faithful to the rule of law; it is faithful to the written words in the Constitution as illuminated by the Framers; it is guided by relevant case law and informed by thoughtful scholarship; and it also is faithful to the enduring form of our constitutional democracy, which the Framers established more than 200 years ago. (p. 73)

The judgment of the Appellate Division is REVERSED and the order requiring the Secretary of State to accept the notice of intention is VACATED.

JUSTICES RIVERA-SOTO and HOENS have filed a separate, DISSENTING opinion, expressing the view that because there is no present need to reach the constitutional question urged upon the Court and, in any event, this appeal raises nothing unconstitutional about New Jersey's recall election provisions, the recall process should go forward.

JUSTICES LONG, LaVECCHIA, and ALBIN, join in CHIEF JUSTICE RABNER's opinion. JUSTICES RIVERA-SOTO and HOENS have filed a separate, dissenting opinion.

The opinion of the court was delivered by: Chief Justice Rabner

Argued May 25, 2010

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 break with 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 they divided 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 Constitution which 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/1993results/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, any United 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 that approximately 1.3 million signatures are required.) The signatures are submitted all at once to the recall election official for counting and verification, N.J.S.A. 19:27A-11; once the election official confirms the signatures on the petition, and any challenge is resolved, a recall election is scheduled. N.J.S.A. 19:27A-13(a), (b). If a majority of votes at the recall election favor recalling the sitting official, then "the term of office of the elected official shall terminate upon the certification of the election results"; otherwise, "the official shall continue in office as if no recall election had been held." N.J.S.A. 19:27A-16.

B.

On November 7, 2006, petitioner Robert Menendez was elected to represent New Jersey in the U.S. Senate for a six-year term.

In compliance with federal law, the State submitted a "Certificate of Election for Six-Year Term," which the Senate found to "contain all the essential requirements." 153 Cong. Rec. S1, S3 (daily ed. Jan. 4, 2007). Senator Menendez took the required oath of office and was officially seated in the Senate on January 4, 2007. Id. at S4. His term is set to end on January 3, 2013. Id. at S3.

On September 25, 2009, pursuant to the UREL, plaintiff-respondent, the Committee to Recall Robert Menendez from the Office of U.S. Senator (Committee), submitted to Nina Wells, then-New Jersey Secretary of State (Secretary), and Robert Giles, Director of the Division of Elections (Director of Elections), a notice of intention to recall Senator Menendez. It is undisputed that the Committee included in its notice of intention all the information required by N.J.S.A. 19:27A-6. The Committee originally listed three representative sponsors; pending the Secretary's review of the first notice of intention, the Committee filed an amended notice on November 10, 2009, replacing one of the named sponsors. Because it had not received a response from the Secretary by December 1, 2009, the Committee filed a complaint in lieu of prerogative writs with the Law Division seeking to compel the Secretary and the Director of Elections to either accept or reject the notice of intention.

On January 11, 2010, acting on the advice of the Attorney General, the Secretary issued a final agency determination that "neither the Notice of Intention to Recall nor the Proposed Petition can be accepted for filing or review" 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[s] for a recall proceeding for a federally-elected official." Three days later, the Secretary and the Director of Elections moved to dismiss the Law Division complaint on the ground that it was moot, and the Committee, in turn, voluntarily dismissed the matter.

In response to the Secretary's determination, on January 13, 2010, the Committee filed an application for emergent relief with the Appellate Division, seeking temporary injunctive relief and expedited review. The Committee named the Secretary and the Director of Elections as defendants. The following day, the Appellate Division permitted the Committee to file its motion and instructed it to serve papers on Senator Menendez, an indispensable party, in addition to the Secretary and the Director of Elections. On February 4, 2010, the Appellate Division granted the Committee's motion to accelerate the appeal, as well as the application of the American Civil Rights Union (ACRU) to participate as amicus curiae.

Before the appellate panel, the Committee presented the following arguments: the Secretary improperly denied the notice of intention even though the notice complied with all statutory requirements; the Secretary, as an agent of the executive branch, was in no position to opine on the validity of the UREL; the constitutionality of the UREL would not be ripe for judicial review until (1) the Committee obtained roughly 1.3 million signatures of registered voters needed to force a recall election, (2) a majority of voters voted to recall Senator Menendez, and (3) the Secretary ordered his recall; and the Committee must be allowed to proceed with the recall process because it is a matter of "core political speech" protected by the Federal and State Constitutions.

Both the Attorney General, on behalf of the Secretary and the Director of Elections, and Senator Menendez asserted the following: the Federal Constitution is the sole legal authority that governs the qualifications and right to expel a Member of Congress; the UREL and the Recall Amendment, which extend to Members of Congress, are therefore unconstitutional; and the issue was ripe for adjudication.

In a published, per curiam decision, the appellate panel questioned the constitutionality of the UREL but declined to "pass[] on the ultimate validity of the recall process regarding a United States Senator" and "order[ed] the current Secretary of State to accept and file the petition, and to proceed under the statute." Comm. to Recall Robert Menendez from the Office of U.S. Senator v. Wells, 413 N.J. Super. 435, 458 (App. Div. 2010). At the outset, the panel concluded it did not need to address the authority of the Secretary to determine that the UREL was invalid. Id. at 440-41. The panel reasoned that her determination was based on the advice of the Attorney General, who is obligated to "render legal advice to State officers," and whose advice is binding "until . . . the courts address the issue." Id. at 441. The panel also noted the benefit of not resolving a constitutional issue that could be addressed at a later time. Id. at 446-47. Nonetheless, the panel stated that it was "disinclined to allow the process to go forward, and the citizens of this State to believe they are participating in a recall process, if it is certain that the court would have to decide, shortly thereafter, that the process was manifestly unconstitutional." Id. at 447. Accordingly, it framed the issue before it as "whether our State's constitutional and statutory recall measures, as applied to a United States Senator, are so manifestly invalid under the Federal Constitution that we must depart from the norms of judicial restraint and compel that the Committee's process in circulating a recall petition be halted." Id. at 449 (citation omitted).

In examining the constitutionality of the UREL, the panel found that "from what has been written and not provided in the Federal Constitution," based both on its text and relevant historical evidence, "one could reasonably conclude that the Constitution precludes the recall of a United States Senator." Id. at 451. In addition, the panel recognized that, in line with the U.S. Supreme Court's holdings in Thornton, supra, and Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed. 2d 44 (2001), the Tenth Amendment did not reserve to the States the power to recall U.S. Senators. Id. at 452 (citations omitted).

However, the panel noted that it could "find no case or precedent which . . . precludes recall under the Seventeenth Amendment." Id. at 452 & n.13. Moreover, citing the dissent in Thornton, the panel opined that "the silence of the federal Constitution may well result in the conclusion that [the recall of a U.S. Senator] may be done." Id. at 455 (citing Thornton, supra, 514 U.S. at 845, 115 S.Ct. at 1875, 131 L.Ed. 2d at 926 (Thomas, J., dissenting)). In light of the constitutional ambiguity that it identified, the panel was not "convince[d] . . . that [it] can safely predict what the United States Supreme Court would do if it were presented with the issue." Id. at 454.

Therefore, citing to New Jersey's "rich tradition . . . of recognizing individual rights that often go beyond the bare minimums conferred by the Federal Constitution," "the overwhelming majority of voters who approved the recall measure in 1993," and respect for "a component of our State's charter that fortifies the democratic role of our citizens," id. at 454-55, the panel perceived "no urgent reason" "to resolve this difficult constitutional issue if the Committee's petition drive fails to collect the necessary, approximately, 1,300,000 signatures." Id. at 457. The panel thus found that there was a "sufficient basis for the Committee to proceed with its initiative and for the Secretary of State to perform her ministerial function" without the Appellate Division "passing on the ultimate validity of the recall process." Id. at 457-58.

On April 27, 2010, this Court granted Senator Menendez's petition for certification. The Attorney General, representing the Secretary and the Director of Elections, elected not to petition for certification in deference to judicial restraint, but has maintained her position that the application of the UREL and the Recall Amendment to U.S. Senators violates the Federal Constitution.*fn1

The ACRU and the Conservative Legal Defense and Education Fund, et al. (CLDEF)*fn2 were permitted to submit briefs as amicus curiae.

II.

Senator Menendez argues that the constitutionality of the UREL is ripe for review and that the Appellate Division mistakenly invoked "judicial restraint" to justify its refusal to reach the constitutional issues in this case. Specifically, he notes that the Secretary's final agency determination pivoted on a purely legal question and, thus, no further factual development will enhance the fitness of this dispute for review. Moreover, although no recall election is imminent until the necessary signatures have been obtained, if the notice of intention is accepted, Senator Menendez argues he will need to divert attention from his senatorial duties to mount a recall defense, and the public will be harmed if it is led to believe that it is participating in an electoral process that inevitably will be deemed invalid.

In addressing the merits, Senator Menendez argues that by extending recall to U.S. Senators, the UREL and the Recall Amendment conflict with, and are thus preempted by, the Federal Constitution by virtue of the Supremacy Clause. Even if there is no express preemption, he argues that the Tenth Amendment did not reserve to the States the power to recall a Senator. Therefore, Senator Menendez insists that because the UREL and the Recall Amendment cannot be interpreted in a manner that avoids their constitutional defects, this Court must find the laws unconstitutional.

The Committee argues that Senator Menendez's claim is premature because he will not face any judicially recognizable harm unless and until a recall election is held and he loses it, and neither the Senator nor the State will bear any significant expense during the initial signature-gathering stage. The Committee asserts that the UREL is critical to democratic participation in this State and necessary to ensure that New Jersey citizens retain representation when their Senators are not fit or able to fulfill their duties. Absent an express conflict with a federal constitutional or statutory provision, the Committee maintains, States are empowered to adopt procedures for the recall of federal representatives. Finally, the Committee contends that both a private letter by President Washington and the history of the Seventeenth Amendment confirm the constitutional right to recall.

The ACRU and CLDEF filed amicus briefs in support of the Committee. They echo the Committee's arguments with regard to justiciability, the constitutional reservation of a right to recall U.S. Senators, and the democratic principles that recall furthers. The ACRU adds that the UREL gives New Jersey citizens constitutional rights to political activity and expression, with which neither the State nor Senator Menendez can interfere by invoking an alleged "freedom from criticism." The CLDEF emphasizes that recall is nowhere prohibited in the Federal Constitution or foreclosed by U.S. Supreme Court case law.

III.

A.

This issue is appropriate for review. The Secretary's refusal to accept and review the notice of intention generated an ongoing controversy. The Committee then filed an action in court. As a result, two adverse parties now dispute whether the final administrative determination was correct, and the decision, if allowed to stand, prevents the recall process from moving forward. Therefore, this is not an abstract or hypothetical debate. The existence of an actual controversy at this time is not called into question because the dispute might be rendered moot if 1.3 million signatures are not gathered; the process simply cannot proceed unless and until the Secretary's decision is reviewed in the courts. In other words, to resolve this case, it is necessary to decide whether the Secretary's decision was correct. The Appellate Division's contrary approach mistakenly glosses over the core issue the parties presented.

In addressing this and like disputes, we strive to avoid reaching constitutional questions unless required to do so. See Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2683, 65 L.Ed. 2d 784, 798 (1980) ("[I]f a case may be decided on either statutory or constitutional grounds, this Court, for sound jurisprudential reasons, will inquire first into the statutory question."); Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006) ("Courts should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." (citations omitted)); accord Burnett v. County of Bergen, 198 N.J. 408, 420 (2009) (quoting Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 109 (1992) (Pollock, J., concurring)); Bell v. Twp. of Stafford, 110 N.J. 384, 389 (1988).

In accordance with that principle, courts routinely consider factual issues and statutory questions first, but this case cannot be resolved on those grounds. In any event, the principle of judicial restraint does not call for courts to avoid ruling on a case if an answer can only be found by resorting to constitutional analysis. See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-47, 108 S.Ct. 1319, 1323-24, 99 L.Ed. 2d 534, 544-45 (1988) (addressing constitutional issues notwithstanding canon of judicial restraint because those issues were necessary to decisions below); see also Citizens United v. Fed. Election Comm'n, 558 U.S. ___, ___, 130 S.Ct. 876, 892, 175 L.Ed. 2d 753, 775 (2010) ("It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling.").

The Committee requests that we direct the Secretary to accept its notice of intention without considering the constitutional dimensions of the state process for recalling a U.S. Senator. We decline to follow that approach, which might entail ordering a constitutional officer to carry out unconstitutional acts. See N.J.S.A. 41:1-1 (requiring officers of State to swear to uphold both "the Constitution of the United States and the Constitution of the State of New Jersey"). Simply put, we cannot force the State to apply its imprimatur to a process that may contravene the Federal Constitution while ignoring the very constitutional questions necessary to resolve the case.

The Committee also maintains that the Secretary of State lacked discretion to decline to carry out ministerial acts under section 7 of the UREL. But she did not act alone. In light of doubts about the constitutionality of the recall statute, which she still harbors, she properly sought counsel from the State's chief legal advisor -- the Attorney General. See N.J.S.A. 52:17A-4(b), (e) (listing among powers and duties of Attorney General, acting through Division of Law, responsibility to give to State officers and departments "legal advice on such matters as they may from time to time require[,] . . . interpret all statutes and legal documents, . . . and otherwise control their legal activities"); see also Paff v. Div. of Law, 412 N.J. Super. 140, 151 (App. Div. 2010) (recognizing as "well-settled that there exists an attorney-client relationship between the Division [of Law] and the state agencies to which it provides legal advice"), certif. denied, 202 N.J. 45 (2010).

By entrusting to the Attorney General the decision whether acceptance of a notice of intention to recall a U.S. Senator would run afoul of the Federal Constitution, the Secretary avoided any impropriety that a unilateral action might have invited. See Hodges v. Dawdy, 149 S.W. 656, 658 (Ark. 1912) (finding that Secretary of State, "acting upon the advice of the Attorney General," was within right to refuse to file and certify proposed law and holding that "[m]andamus will not lie to compel an officer to do an act which is forbidden or not authorized by law" (citation omitted)); Barr v. Watts, 70 So. 2d 347, 351 (Fla. 1953) (concluding that rather than opine on legality of statute, ministerial officer should "channel[] all such attacks on the validity of statutes through the duly-elected public officer whose duty it is to protect the public interest in this respect -- the Attorney General of this state" (citation omitted)); State ex rel. Test v. Steinwedel, 180 N.E. 865, 867 (Ind. 1932) (allowing ministerial public officers to offer as defense for refusing to follow statute their belief that it is unconstitutional because, among other things, they "usually act, or refuse to act, only after advising with competent legal counsel"); Associated Hosp. Serv. of Me. v. Mahoney, 213 A.2d 712, 717 (Me. 1965) (recognizing "when an officer acts under advice of the State's Attorney General" as one exception to "general rule preventing a ministerial officer from questioning the constitutionality of the law under which his performance is sought" (citations omitted)); State ex rel. Equal. Sav. and Bldg. Ass'n v. Brown, 68 S.W.2d 55, 58 (Mo. 1934) (acknowledging that although "[o]rdinarily, a ministerial officer . . . may not question the constitutionality of a statute," there is "well-recognized exception that even such an officer can justify his refusal to perform when advised by the Attorney General of the State that the statute is unconstitutional" (citations omitted)); State ex rel. Johnson v. Baker, 21 N.W.2d 355, 364 (N.D. 1945) (holding that ministerial officer improperly refused to comply with statute based on belief that it was unconstitutional because "if she doubted its validity her duty was to consult and advise with the attorney general, the chief legal officer of the state, and to act in accordance with such opinion as he might give her").

For all of those reasons, this concrete matter does not present traditional concerns about justiciability. We also note that, at oral argument, counsel for the Committee focused almost entirely on the constitutional question and arguably conceded the issue of ripeness.*fn3 We nonetheless briefly address the Committee's arguments pertaining to the doctrine of ripeness.

B.

A case's ripeness depends on two factors: "'(1) the fitness of issues for judicial review and (2) the hardship to the parties if judicial review is withheld at this time.'" K. Hovnanian Cos. of N. Cent. Jersey, Inc. v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 9 (App. Div. 2005) (quoting 966 Video, Inc. v. Mayor & Twp. Comm. of Hazlet Twp., 299 N.J. Super. 501, 515-16 (Law Div. 1995)).

First, this case is fit for review. The issues in dispute are "purely legal," and thus "appropriate for judicial resolution" without developing additional facts. Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed. 2d 681, 691 (1967); see also Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 479, 121 S.Ct. 903, 915, 149 L.Ed. 2d 1, 20 (2001) ("The question before us here is purely one of statutory interpretation that would not benefit from further factual development of the issues presented." (citation and internal quotation marks omitted)). Senator Menendez's objection to the portions of the UREL and the Recall Amendment relating to U.S. Senators amounts to a facial challenge, which "is generally 'ripe' much earlier than a claim that the [law] is void as applied." Trombetta v. Mayor & Comm'rs of Atl. City, 181 N.J. Super. 203, 223 (Law Div. 1981), aff'd o.b., 187 N.J. Super. 351 (App. Div. 1982); see also Town of Morristown v. Twp. of Hanover, 168 N.J. Super. 292, 300 (App. Div. 1979) ("Since the invalidity of these provisions is apparent on the face of the ordinance, further factual exploration was not essential . . . ."). Furthermore, because the Secretary's decision constitutes a final administrative agency determination, this Court's review will not "inappropriately interfere with further administrative action." Am. Trucking Ass'ns, supra, 531 U.S. at 479, 121 S.Ct. at 915, 149 L.Ed. 2d at 21 (citation and internal quotation marks omitted); see also Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 10-11 (App. Div. 2001) (finding that agency's declaratory ruling was ripe for review because it constituted final determination).

Second, there is a sufficient showing of harm that the parties would suffer if we were to abstain from resolving this case. N.J.A.C. 19:25-14.7(b) requires that elected officials who oppose a recall effort under the UREL "shall establish . . . a recall defense committee" subject to various organizational and reporting requirements, as well as limits on the receipt of contributions. A U.S. Senator's coordination and oversight of such efforts would come at the expense of his or her congressional responsibilities.

The recall initiative also injects uncertainty and instability into the State's electoral scheme -- inviting citizens to sign petitions in the belief that they are participating in a constitutional process -- and adversely affects public confidence in the integrity of the system. See Smith v. Penta, 81 N.J. 65, 77 (1979) ("[T]he state has a strong public interest in maintaining the integrity of the electoral process."); cf. City of Newark v. Benjamin, 144 N.J. Super. 58, 66-67 (Ch. Div.) (explaining that "[i]f an ordinance is invalid on its face, it would be a useless expenditure of effort and money to submit it to the electorate before its validity has been determined"), aff'd o.b., 144 N.J. Super. 389 (App. Div. 1976), aff'd o.b., 75 N.J. 311 (1978). In the words of the appellate panel, we are "disinclined to allow the process to go forward, and the citizens of this State to believe they are participating in a recall process, if it is certain that the court would have to decide, shortly thereafter, that the process was manifestly unconstitutional." Menendez, supra, 413 N.J. Super. at 447.

It is also "importan[t to] decid[e] a challenge to the constitutionality of an election law before it takes effect." Thorsted v. Gregoire, 841 F. Supp. 1068, 1074 (W.D. Wash. 1994) (discussing state-imposed term limits for Members of Congress) (citing Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 300 n.12, 99 S.Ct. 2301, 2310, 60 L.Ed. 2d 895, 908 (1979)), aff'd sub nom. Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1996). "Justiciability in [election] cases depends not so much on the fact of past injury but on the prospect of its occurrence in an impending or future election." Babbitt, supra, 442 U.S. at 300 n.12, 99 S.Ct. at 2310, 60 L.Ed. 2d at 908 (citations omitted); see also U.S. Term Limits, Inc. v. Hill, 872 S.W.2d 349, 354 (Ark. 1994) (finding challenge to term limits justiciable before officeholders were excluded from election and noting "daunting" "uncertainty over what the future holds" for elected officials), aff'd sub nom. Thornton, supra, 514 U.S. 779, 115 S.Ct. 1842, 131 L.Ed. 2d 881. The Committee contends that this matter will not be ripe until Senator Menendez is recalled in an actual election. But when the law giving rise to an election "is defective on its face," there is "good reason" to review the law's validity before voting. Benjamin, supra, 144 N.J. Super. at 66 (citation and internal quotation marks omitted); see also Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199, 233 (1960) (addressing post-election challenge to language of ballot question and noting "[t]he time to protest is before the election, and not . . . after the event"). But cf. Herbst Gaming, Inc. v. Heller, 141 P.3d 1224, 1229 (Nev. 2006) (describing rule in other jurisdictions that "[c]courts generally refuse, at the preelection stage, to consider . . . [whether] the measure, if enacted, would violate substantive federal or state constitutional provisions").*fn4

Accordingly, in view of the value to the electoral system in clarifying "'[t]he construction of the [UREL], an understanding of its operation, and possible constitutional limits on its application,'" we need not wait to "remove any doubt about the existence of concrete injury." Babbitt, supra, 442 U.S. at 300 n.12, 99 S.Ct. at 2310, 60 L.Ed. 2d at 908 (first alteration in original) (quoting Storer v. Brown, 415 U.S. 724, 737 n.8, 94 S.Ct. 1274, 1282, 39 L.Ed. 2d 714, 727 (1974)) (finding labor unions' challenge to statute governing election procedures justiciable even though union had not yet participated in election or invoked procedures).

Finally, any concern about passing judgment on an abstract injury is tempered by the fact that this Court is "not limited to the 'case or controversy' requirement imposed on the federal courts by way of Article III of the Federal Constitution." In re Application of Boardwalk Regency Corp. for Casino License, 90 N.J. 361, 367 (1982) (citations omitted). In that regard, the constitutionality of the UREL and the Recall Amendment is an issue "of major public importance," which also favors review. City of Atl. City v. Laezza, 80 N.J. 255, 266 (1979).

The Attorney General's current position does not alter the above analysis. Although now prepared to abide by the Appellate Division's approach, which we do not approve, she specifically informed this Court that her view that the UREL is unconstitutional remains unchanged.

IV.

To assess the constitutionality of term limits for congressional service, the U.S. Supreme Court in Thornton, supra, 514 U.S. at 806, 115 S.Ct. at 1856, 131 L.Ed. 2d at 902, reviewed the text and structure of the Federal Constitution, relevant historical materials, and principles of our nation's democratic system. We follow that same approach to determine whether States may recall U.S. Senators.

A.

The Supremacy Clause of the Federal Constitution provides the backdrop for our analysis. It proclaims that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Therefore, state laws and constitutional provisions that conflict with the Federal Constitution are "without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed. 2d 576, 595 (1981) (citing, inter alia, McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819). In other words, a state may not legislate in an area in which it is preempted by the Federal Constitution or federal law. Maher v. N.J. Transit Rail Operations, Inc., 125 N.J. 455, 463 (1991) ("Under our federal system of government the States possess sovereignty concurrent with that of the federal government, subject only to the limitations imposed by the supremacy clause of the United States Constitution, article VI, clause 2." (citation omitted)); Gangemi v. Berry, 25 N.J. 1, 9 (1957) (stating that although "the legislative authority in the States consists of the full and complete power as it rests in, and may be exercised by, the sovereign power of any country," any state law or constitutional provision is still subject "to the limitations which are contained in the Constitution of the United States" (citation and internal quotation marks omitted)).

That same prohibition applies even when the challenged law, like the UREL, is authorized under a state constitutional provision. Thornton, supra, 514 U.S. at 809 n.19, 115 S.Ct. at 1858, 131 L.Ed. 2d at 904 ("We are aware of no case that would even suggest that the validity of a state law under the Federal Constitution would depend at all on whether the state law was passed by the state legislature or by the people directly through amendment of the state constitution."); Whitcomb v. Chavis, 403 U.S. 124, 180, 91 S.Ct. 1858, 1888, 29 L.Ed. 2d 363, 398 (1971) ("[T]he state constitution must give way to requirements of the Supremacy Clause when there is a conflict with the Federal Constitution."); Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed. 2d 506, 540 (1964) ("When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.").

There is also State precedent for evaluating the validity of a state constitutional provision that allegedly conflicts with the Federal Constitution. E.g., Jackman v. Bodine, 43 N.J. 453, 461, 473 (1964) (holding that state constitutional provision that allocated a portion of seats in Legislature without regard to population violated "one person, one vote" mandate of Fourteenth Amendment as interpreted in Reynolds, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed. 2d 506); see also McNeil v. Legislative Apportionment Comm'n, 177 N.J. 364, 371, 388 (2003) (concluding that application of State Constitution's political-boundary requirement to two largest municipalities was preempted by "one person, one vote" mandate and federal Voting Rights Act in light of Supremacy Clause). Bound as we are to adhere to the supreme law of the land, we cannot permit a provision of the State Constitution to remain in force if it conflicts with the Federal Constitution. Chamber of Commerce of U.S. v. State, 89 N.J. 131, 141 (1982) (quoting U.S. Const. art. VI, cl. 2).

B.

Our analysis begins with the plain language of the Federal Constitution. See State v. Trump Hotels & Casino Resorts, Inc., 160 N.J. 505, 527 (1999). "If the language is clear and unambiguous, the words used must be given their plain meaning." Ibid. (citing Gangemi, supra, 25 N.J. at 10).

The plain language of the Federal Constitution suggests that a Senator's term is fixed and that any right to prevent a Senator from completing his or her term is vested in the Senate, not the States. Article I, Section 3, Clause 1 provides without exception that a Senator's term of service is six years. The only instance in which abridgment of that term is expressly discussed appears in Article I, Section 5, Clause 2, which empowers each house to "determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member." Thus, in 1906, the U.S. Supreme Court noted in dicta that a Senator's seat "could only become vacant by his death, or by expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers." Burton v. United States, 202 U.S. 344, 369, 26 S.Ct. 688, 694, 50 L.Ed. 1057 (1906). In addition, each house of Congress is "the Judge of the Elections, Returns and Qualifications of its own Members." U.S. Const. art. I, § 5, cl. 1.

The Constitution delegates limited power to the States in the realm of elections for Members of Congress: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const. art. I, § 4, cl. 1 (Elections Clause).

The Committee and amici assert that silence about recall in the text of the Federal Constitution is not a prohibition against recall. To the extent that the Federal Constitution is unclear or ambiguous, we look to interpretive aids for guidance. Trump Hotels & Casino, supra, 160 N.J. at 527-28 ("[I]f the language of the constitutional provision is unclear or is susceptible to more than one interpretation, courts may consider sources beyond the instrument itself to ascertain its intent and purpose."). In particular, we examine the intent of the Framers expressed at historical debates at both the Constitutional Convention and the state ratifying conventions.

C.

Prior to ratification of the Constitution, recall provisions appeared in the Articles of Confederation and in two state constitutions. Articles of Confederation art. V, ¶ 1 ("[D]elegates [to Congress] shall be annually appointed . . . with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year."); Pa. Const. of 1776 Declaration of Rights, § VI ("[T]he people have a right, at such periods as they may think proper, to reduce their public officers to a private station, and supply the vacancies by certain and regular elections."); Vt. Const. of 1786 ch. 1, § VIII ("[T]he people have a right, by their legal representatives, to enact laws for reducing their public officers to a private station, and for supplying their vacancies in a constitutional manner, by regular elections, at such periods as they may think proper."). Thus, leading into the Constitutional Convention, the people and their delegates were familiar with the concept of recall.

At the Constitutional Convention, contrary to the Committee's position, the right of recall was considered and rejected. A recall provision was first introduced at the Convention by Virginia delegate Governor Edmund Randolph as part of the Virginia Plan for structuring the national government. On May 29, 1787, Randolph proposed the following provision to govern Representatives' terms of office:

Resd. that the members of the first branch of the National Legislature*fn5 ought to be elected by the people of the several States every [ ] for the term of [ ]; to be of the age of [ ] years at least, to receive liberal stipends by which they may be compensated for the devotion of their time to public service; to be ineligible to any office established by a particular State, or under the authority of the United States, except those [p]eculiarly belonging to the functions of the first branch, during the term of service, and for the space of [ ] after its expiration; to be incapable of re-election for the space of [ ] after the expiration of their term of service, and to be subject to recall. [1 Records of the Federal Convention of 1787 20 (M. Farrand ed. 1911) (hereafter Farrand) (emphasis added).]

However, on June 12, 1787, Governor Charles Pinckney, delegate from South Carolina, moved to strike the portion of the resolution underscored above. 1 Debates on the Adoption of the Federal Constitution 172 (J. Elliot ed., 1836) (hereafter Elliot); 5 Elliot 185. The States voted unanimously to approve Pinckney's motion. 1 Elliot 172; 5 Elliot 185.

Certain delegates at the Constitutional Convention who favored recall of Senators acknowledged that recall was not part of the draft constitution. On August 14, 1787, Elbridge Gerry, delegate from Massachusetts, expressed to the rest of the Constitutional Convention his ...


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