Judge Approves Appeal of Menendez Recall Decision to Move Forward; Will Hear Oral Arguments February 26th; American Civil Rights Union to Join Appeal

A NJ Superior Court Appellate Judge has granted an emergency motion to fast-track the appeal of a committee seeking to recall a United States Senator.

In a two-part order issued late afternoon on Thursday, February 4th, Judge Edwin Stern granted the committee's motion to accelerate their appeal and scheduled oral arguments for Friday, February 26th. In the same order, the Judge also granted approval for the American Civil Rights Union (ACRU) to participate in the appeal as amicus curiae (friend of the court), in response to an emergent application filed by the ACRU.

The case stems from a January 11th final agency determination by NJ state election officials, in which the Secretary of State denied a Notice of Intention and proposed petition filed by the Committee to Recall Robert Menendez. Former Secretary of State Nina Wells wrote in the letter,

“It 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…Therefore, in my capacity as the Chief Election Official of the State of NJ, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review.”

Members of the Sussex County Tea Party formed the recall committee and had filed the Notice back in September, 2009, hoping to move onto the phase of petitioning the public for signatures in support of requesting a recall election.

Dan Silberstein and Richard Luzzi, attorneys for the committee, have challenged the state's decision, contending that the issue at hand is not one of whether the State has the power to issue a judicially enforceable recall order of a U.S. Senator, as the respondents maintain, but it is a question of first amendment rights. Their brief reads in part,

"Can the State [of NJ], after amending its Constitution and passing legislation to guarantee its citizens access to a formal, State-endorsed mechanism to foster collective “core political speech”, deny its citizens access to that mechanism because of the content of their political message?"

While the constitutionality of a 1995 amendment to NJ's state Constitution that granted citizens the power to recall federal officials may be open to debate, there has never been any federal court decision holding that the States do not have the power to recall their Senators. Some might contend that it is premature to determine the enforceability of a State’s recall order before a ruling on it has ever been issued.

Due to its potential broader constitutional implications, the case also attracted the attention of the American Civil Rights Union. Peter Ferrara, General Counsel for the ACRU, recently sought approval from Silberstein and Luzzi to participate in the appeal as amicus curiae, and they were happy to oblige.

The ACRU was founded in 1998 by Robert B. Carleson, long time policy advisor to President Reagan, as a non-partisan, non-profit 501(C)(3), legal/educational policy organization dedicated to defending constitutional rights. Its policy board includes former US Attorney General Edwin Meese III; Pepperdine Law School Dean, Kenneth Starr; and former Assistant Attorney General for Civil Rights, William Bradford Reynolds, among many others. In addition to the public interest in this matter regarding the functioning of our democracy and the constitutional rights of the citizens of NJ, the ACRU also maintains that the recall of US Senators is a matter of broad, national public interest across the entire country. It plans to file a brief addressing the right of recall in NJ under the law of the state of NJ, the Constitution of NJ, and the US Constitution. For more information on the state’s provisions for recall, visit recallcongressnow.org

Oral arguments will be heard by Judges Stern, Graves, and Sabatino at 10:00am on Friday, February 26th in the Appellate Division courtroom in Trenton, NJ.

Follow NJ Recall Now, Sussex County Tea Party, or NJ Tea Parties United for more on this case.

Legal Contact:
Dan Silberstein, Esq.
Phone: (732) 388-8600, Email: dsilberstein@dpspc.com

Sussex County Tea Party Contact:
RoseAnn Salanitri, Founder (Branchville, NJ)
Phone: (973)948-8553, Email: roseann216@gmail.com

Attorneys for Respondents:
Paula Dow, Acting Attorney General of NJ, on behalf of respondents [former] Secretary of State and the Director of the Division of Elections

Angelo Genova, of Genova Burns and Marc Elias, of Perkins Coie, LLP, attorneys for Senator Robert Menendez

The Committee to Recall Robert Menendez from the Office of U.S. Senator v. Nina Mitchell Wells, Esq., Secretary of State, and Robert F. Giles, Director of the Division of Elections; Appellate Docket No. is A-2254-09 T1.