SYLLABUS (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 Committee to Recall Robert Menendez v. Nina Wells (A-86-09) Argued May 25, 2010 -- Decided November 18, 2010
RABNER, C.J., writing for a majority of the Court.
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
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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)
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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, ALBIN, and WALLACE join in CHIEF JUSTICE RABNER’s opinion. JUSTICES RIVERA-SOTO and HOENS have filed a separate, dissenting opinion.