Judge Approves Appeal of Menendez Recall Decision to Move Forward

UPDATE: Oral argument in Committee to Recall Robert Menendez v. Nina Wells, Secretary of State et al. has been rescheduled for Tuesday, March 2 at 10:30 a.m. in the Appellate Courtroom on the 5th floor of the Richard J. Hughes Justice Complex, 25 Market St., Trenton.  (Due to the snow in NJ)

View announcement at NJ Courts website

Will Hear Oral Arguments February 26th, American Civil Rights Union to Join Appeal

Mercer County, New Jersey – February 6, 2010.

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 Appellate Division Judges Stern, Graves, and Sabatino at 10:00am on Friday, February 26th in Mercer County, NJ.

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

Download Briefs:

Brief, Attorneys for Senator Robert Menendez

Brief, NJ Attorney General for Secretary of State and Director of Division of Elections

Brief, Attorneys for the Committee to Recall Robert Menendez

Legal Contact:

Dan Silberstein, Esq.

Email: dsilberstein@dpspc.com

Sussex County Tea Party Contact:

RoseAnn Salanitri, Founder (Branchville, NJ)

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.



Filed under congress, Constitution, elections, First Amendment, menendez, Recall, Secretary of State, Senate

24 responses to “Judge Approves Appeal of Menendez Recall Decision to Move Forward

  1. there has never been any federal court decision holding that the States do not have the power to recall their Senators

    Actually, the USDC for Idaho found that it was not within the power of the State to recall a Federal Senator – to be precise, Frank Church.

    • That’s a different example. The state of Idaho did/does not have a provision in its own Constitution stating that its citizens can recall their federal Senators, like NJ does. There has never been a case that has determined one way or the other that NJ’s provision (and the other eight states with recall provisions) is not constitutional.

      • Regardless, the argument stands – Federal officers are not subject to recall by State actors because their offices are a creation of the Federal Constitution, and the COTUS specifies that the only means by which members may be expelled from Congress is via internal discipline. State Constitutions cannot override because of the Supremacy clause.

      • See, that’s the problem – with all due respect, you and many others unfamiliar with the details of the case are misinterpreting the argument…the question before the court is not the constitutionality of the federal recall. The question before the court is the First Amendment right to petition the public as a matter of free political speech; and as a matter of NJ election law.

        I’ve consulted with numerous Federal and State Judges, constitutional lawyers, and many others (including my own background in legal research). All agree, when the argument is framed in the context of the first amendment question, the case has merit. The committee simply wants the court to protect their right to free speech – to petition – as stated in NJ election law and the first amendment of the US Constitution. They’re not asking for the judge to rule on whether they can be granted the recall election if in the end they even collect enough signatures. (And if they did, as is the point of my article, then let it go to court and get decided so that the state of NJ then has a written precedence to refer to when addressing this issue in the future. Even if that ruling is that it’s unconstitutional, which I expect it would be. But without that determination, the state of NJ – and possibly others too – can’t really effectively address revising the recall procedure for its citizens so that they aren’t in limbo on this).

  2. Pingback: » Menendez NJ Recall Update: The Tea Party Goes to Court - Big Government

  3. Pingback: Menendez NJ Recall Update: The Tea Party Goes to Court « Count Us Out

  4. We the People have the Right of Recall based on the Declaration of Independence. “Whenever ANY form of government becomes destructive of these ends, it is the Right of the People to ALTER or abolish it.” How do we alter or abolish a system of oppressive government if not by altering or abolishing the ACTORS promoting and supporting the oppression? Recall would be the non-violent alternative to what the Founders did to “alter or abolish” their oppressors.

  5. While I understand your clarification, the people involved already seem to have made their petition and have had it denied.

  6. Pingback: Spartanburg Tea Party | NJ Tea Party group attempts Senator Menendez recall

  7. Henry

    “Menendez lawyer Marc Elias argued that the petition drive should be halted now because voters do not have the right under the U.S. Constitution to recall a federal legislator.”
    Well, in reality Menendez lawyer or liar Marc Elias is another deceiving snake in the grass for the simple fact that according to the US Constitution “we the people” can bring impeachable charges for Treason, Bribery, or other High Crimes and Misdemeanors against all civil Officers of the United States, including the President and Vice President. Article II of the United States Constitution (Section 4) states that “The President, Vice President, and all other civil Officers of the United States shall be removed from Office on Impeachment or charged by the people, or Congress, or both, and followed by a majority vote of the U.S. House of Representatives, and then convicted by a two-thirds vote of the Senate. The House of Representatives has the sole power of impeaching, while the United States Senate has the sole power to try all impeachments. The removal of impeached officials is automatic upon conviction in the Senate.

    • Henry, the Constitution provides that the House shall have sole power to ring charges, and that the Senate shall have sole power to try them; where do you think the people are involved in this process? Joe Bloggs can’t just stroll up and lay charges against members of the government.

      • Henry

        The American Republic is the government of the people, by the people, and for the people. The Declaration of Independence makes it very clear that the government derive its power from the governed or from the people.

        Declaration of Independence
        We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

  8. The American Republic is the government of the people, by the people, and for the people. The Declaration of Independence makes it very clear that the government derive its power from the governed or from the people.

    It also isn’t a legally binding document, and it has no real bearing on the actual machinery of government.

    • Henry

      Body, you can say that pig’s fly but that doesn’t make it so. You sound like you are a proponent of same sex marriage; in that case I can understand your perverted way of thinking, but not your perversion. The United States of America is a Constitutional Republic and the US Constitution is the supreme law of the land, period.

      • And this has what to do with the DoI and what to do with the fact that you’re reading something into it which isn’t there? And more to the point, what does it have to do with SSM?

    • Henry

      So, who told you that the US Constitution isn’t a legally binding document, and it has no real bearing on the actual machinery of government.

      • That isn’t what I said, Henry. I said that the DoI isn’t a legally binding document which has no bearing on the actual working of govt.

      • Henry

        Americans can’t have the power, and the wisdom of God since they kicked him out sixty-three years ago by establishing and illegal separation of Church and State, by trampling on the Ten Commandments, and by replacing the Bible in public education with the theory of evolution or science fiction, with sex education or sex perversion, and with the promotion and advancement of filthy sodomites. Now Americans can only have the same simple mindlessness of the Amoeba, which consists of single cell mass of protoplasm resembling its contemporary offsprings, the American people.

        The whole world knows that America is a country made up mostly of money loving fools, beginning with the fools at the bottom, and going up, up, and up, to the very top. Only fools will disagree that there are fools everywhere, from the fools teaching in schools, colleges, and universities, to the fools of the mainstream news media, to the political fools in Washington DC. Only a country made up of fools would elect crooks and liars as their leaders, and enlist the enemy in the armed forces, and tolerate the enemy preaching hate against America in colleges, and universities all across America. And only a country made up of fools would prohibit children from reading the Bible in school in their own time. America went from the home of the free and the brave, to the home of the dumbed-down fools lacking the common sense that God gave geese.

        God is holding back the immediate catastrophic destruction of America for the sake of his few and true followers sprinkled like salt throughout the land. Otherwise America would have suffered the same fate Sodom and Gomorrah suffered. Instead, God has unleashed his holy wrath on America through the world’s wickedest Religious Leaders, and the world’s wickedest Elitists that have a strong grip on the Banking System, the U.S. Congress, the U.S. Courts, Public Education, Christian Churches, the News Media, the People, and the state of the Economy.

        The Lord is decimating America in an orderly manner, and it really does not matter if we have Tom, Dick or Obama as president, since he is another puppet of the ruling Elite, therefore he is also God’s instrument of wrath, who will put the finishing touches to the U.S. Constitution, and render it totally worthless, not even worth the paper written on.
        Make no mistake God cannot be mocked, Americans are reaping what they have sowed for the last sixty-three years, and now we are witnessing the rapid decline, and ultimate demise of the once proud shining city upon a hill, the American Republic.

  9. Henry
    March 18, 2010 at 6:26 pm

    OK, Henry; in light of my personal policy of not arguing with people online who are clearly insane, I’m just going to back away slowly and easily…

    • Henry

      How can you, or anyone else argue against the truth? No one can, but when the majority is silent, the proponents of evil have a free rein to do as they damn well please, and that’s exactly what happened in America in the last sixty-three years.

      In 1947, the tyrannical Justices of the US Supreme Court enacted a fictitious wall of separation between Church and State upon the fifty states of the Union. Chief Justice Hugo Black who was a former member of the Ku Klux Klan, fooled the spiritless American people, and together with the so-called Christian Leaders of America formed an unholy union, and succeeded in erecting a fictitious wall of separation between Church and State, contrary to what the Founding Fathers envisioned, in violation of the U.S. Constitution, and Romans 13.

      Jesus said, how can anyone enter a strong man’s house and carry off his possessions unless he first ties up the strong man? And that’s exactly what Senator Lyndon B. Johnson did in 1954. Johnson introduced in the U.S. Congress a devious amendment to the IRS 501c3 Tax-Exempt Code, and established Secular Humanism, with the idea of binding, and gagging the Church of Jesus Christ, thus eliminating the significant influence it had up until that time in shaping sound legislation, and in support of godly political candidates.

      In 1963, the tyrannical Justices of U.S. Supreme Court bypassed the US Congress Legislative Branch in violation of the U.S. Constitution, and legislated from the bench in Abington v. Schempp by a majority vote of 8-1, declaring the Bible, and Prayer Recitation unconstitutional, after being a part of America’s public schools curriculum for over two hundred and fifty years. Consequently, America is now like a ship without a rudder, and without a compass being tossed back and forth, and blown here and there by every wind of doctrine, and by the craftiness and scheming of deceitful men.

      Public schools is where innocent children are being taught by godless impostors, the theory of evolution or science fiction, sex education or sex perversion, and the perverted homosexual agenda, and they are also being indoctrinated into Satan’s so-called deep secrets, such as the practices of sodomy, fornication, violence, hate, murder, Satanic worship, and ignorance. It’s no wonder why the average American today is nothing more than a wimp, and a morally deficient fool.

      Again in 1973, the tyrannical Justices of the US Supreme Court imposed legalized premeditated murder on demand, or abortion on demand, consequently over 52 million children have been slaughtered since 1973, and counting.

      And in 1998, U.S. President William J. Clinton signed executive order 13087, which was nothing more than the glorification, and affirmation of homosexuals, lesbians, and transgender into public education, and into America’s workforce, and once more as predictable as the sun, the Christian Clergy of America compelled by greed, played out their blind, and dumb act one more time.

      Instead of demanding a complete reversal of their ungodly rulings, “we the people” bowed their knees in reverential fear, and committed idolatry by elevating the members of Congress, and the Justices of the Us Supreme Court above God Almighty, consequently America is another country being devastated inside the vile cauldron of Globalism.

      Isaiah 60:12, “For the nation or kingdom that will not serve you will perish; it will be utterly ruined.”

      • Yeah, see, I’m going to have to refer you to my previous reply, and add a corollary about nasty little bigots.

      • Henry

        Stop, and think for a moment how weak and powerless you really are. When you was conceived in your mother’s womb you did not choose the color of your hair, the color of your eyes, the color of your skin, your sex, your height, and you certainly did not choose your parents, everything was chosen for you by God, who is the King, Master, Judge and Creator of the Universe, and everything in it, including you.

        Now get this, God demands moral perfection from His subjects, that’s why He gave us the Ten Commandments for us to obey, but since we are born sinners, and separated from the love, and wisdom of God, it is impossible for humans to obey Him, therefore the whole human race stands condemned to the eternal fire of hell.

        But because of his great love for us, God, who is rich in mercy, chose to save us through His only begotten Son, Jesus Christ, who is the atoning sacrifice for our sins, and not only for ours only but also for the sins of the whole world.

        For God so loved the world that he gave his one and only Son, that whoever believes in him shall not perish but have eternal life. For God did not send his Son into the world to condemn the world, but to save the world through him. Whoever believes in him is not condemned, but whoever does not believe stands condemned already because he has not believed in the name of God’s one and only Son

        Jesus Christ did not only divided time in half, but He also drew a line in the sand, thus forcing humanity, the subjects of his kingdom, to choose sides, a person will either stand with Jesus, or will crawl on the outside with Satan, and eventually will be tormented in hell forever.
        Before your brief life on earth is over, what are you going to do with Jesus Christ? Will you embrace him as your savior? Or will you continue to reject him, and at any moment find yourself in hell being tormented forever and ever? I know that you are thinking it’s all nonsense. What if you are wrong? Are you willing to risk a temporary life of sin on earth for eternal torment in hell?

        These are the words of Jesus Christ which he gave to his Disciple John, to be recorded in the book of Revelation, “But the cowardly, the unbelieving, the vile, the murderers, the sexually immoral (the fornicator, adulterer and homosexual), those who practice magic arts, the idolaters and all liars–their place will be in the fiery lake of burning sulfur or (hell). This is the second death (or spiritual death).”

  10. Henry
    March 22, 2010 at 12:42 pm

    Wow, you just have an unlimited supply of the crazy, don’t you?

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