PHILADELPHIA, Nov 18 (Reuters Legal) - New Jersey's Supreme
Court on Thursday rejected a bid to recall U.S. Senator Robert
Menendez, ruling that state law cannot be used to remove a
sitting federal representative outside of scheduled elections.
"The court finds that ... the federal Constitution does not
allow states the power to recall U.S. senators," Chief Justice
Stuart Rabner wrote in a majority 4-2 opinion.
The Committee to Recall Robert Menendez, a group linked to
the conservative Tea Party movement, wanted to recall the
Democratic senator because of his support for policies
including healthcare, immigration reform and cap-and-trade
legislation to limit greenhouse gas emissions.
The court's decision was being watched by conservative
activists seeking the recall of elected members of Congress in
other states including Louisiana, North Dakota, and Colorado.
RoseAnn Salanitri, a spokeswoman for Recall NJ Inc, which
led the court challenge, said the group will appeal the ruling
to the U.S. Supreme Court. "This is indeed a dark day in the
history of this court," Salanitri said.
She accused the court of "judicial activism" and said the
majority of the justices disregarded a 1995 amendment to the
state constitution which established procedures for New Jersey
citizens to recall, after at least one year of service, any
U.S. senator or representative elected by the state.
The Committee to Recall Robert Menendez filed a notice of
intention to recall the senator in September 2009 under the
state's recall election law. The New Jersey secretary of state
denied the committee's notice on the grounds that the federal
Constitution is the sole legal authority that governs the
qualifications and right to expel a member of Congress. The
committee filed for emergency relief with the New Jersey Court
of Appeals, seeking a temporary injunction and expedited
The committee's bid was upheld by the appeals court, but on
Thursday it was reversed by the state's highest court, which
found the state's recall law unconstitutional.
Afshin Mohamadi, a spokesman for Menendez, said the
committee could appeal to the U.S. Supreme Court, but he
believed the top U.S. court would not take the case.
"The chances that the U.S. Supreme Court would overturn a
ruling upholding the Constitution are minuscule," he said,
calling Thursday's ruling a defeat "for the Tea Party and its
Washington-based, right-wing corporate backers."
Dissenting justices Roberto Rivera-Soto and Helen Hoens
issued a stinging rebuke to the majority, accusing it of
denying voters the right to criticize elected officials.
"In effect the majority sees the Senate as an institution
immune from criticism ... an elitist institution the members of
which should not have to be troubled by what the people they
represent believe," the two justices wrote. "Today is indeed a
sad and dark day in the history of this court."
Citizens in some states can attempt to remove local or state
officials before the end of their term in office by holding a
recall election. According to the National Conference of State
Legislatures, 18 states allow recall elections for state
officials. Menendez is a federal lawmaker.
In 2003, Republican Arnold Schwarzenegger ousted former
California Governor Gray Davis, a Democrat, in a recall
election 10 months into Davis' second term.
The case, which was argued on May 25, is The Committee to
Recall Robert Menendez from the Office of U.S. Senator v. Wells
et al, Supreme Court of New Jersey, No. A-86. Marc Elias of
Perkins Coie in Washington, D.C. argued the case on behalf of
Menendez, and Angelo Genova of Genova, Burns & Giantomasi in
New Jersey was listed on Menendez's briefs. Andrew Schlafly
argued on behalf of the Committee to Recall Robert Menendez.
Schlafly and Richard Luzzi of Oller & Luzzi in New York were
listed on the committee's briefs.
(Reporting by Jon Hurdle of Reuters; Additional reporting by
Terry Baynes of Reuters Legal)