Senate Lawyers Wait on Menendez Case

Posted March 24, 2010 at 6:18pm

The Senate has no immediate plans to send the chamber’s attorneys into the tussle over a tea party effort to recall Sen. Bob Menendez (D-N.J.), a legal case that could potentially address whether voters can recall federal lawmakers.

A spokesman for Senate Majority Leader Harry Reid (D-Nev.) declined to comment on the ongoing legal battle, stating only that the Office of Senate Legal Counsel has not been asked to intercede to date.

“The litigation is not at a stage when we would need to consider involving OLC,” Reid spokesman Jim Manley said.

The counsel’s office represents Senators and their aides in matters related to their official duties as well as the Senate itself.

The lawsuit centers on an effort to recall Menendez under a New Jersey law. The measure, enacted in 1995 as part of the state’s constitution, allows for the recall of any House or Senate lawmaker, or state or local official.

A group of state residents, backed by tea party activists, first filed a recall notice with the New Jersey secretary of state’s office in late 2009.

But the office rejected that application and a second version, stating that the U.S. Constitution does not include any provisions for the recall of Senate or House lawmakers, nor does any federal statute.

In its request to the New Jersey appellate court, the Committee to Recall Robert Menendez from the Office of U.S. Senator — state law dictates the group’s name — argued that the recall effort represented “‘core political speech,’ protected by the first Amendment,” and should be allowed to proceed.

The group also argued that the question of whether the recall would violate the U.S. Constitution is not yet “ripe” for judicial review, meaning there is no pressing need for the court to review that specific conflict.

In a March 16 ruling, a three-judge panel agreed, ruling that the petition could go ahead, although it also stayed its decision pending expected appeals from the state or Menendez.

[IMGCAP(1)]”To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid. There is, and there will be, no necessity for our courts to resolve this difficult constitutional issue if the Committee’s petition drive fails to collect the necessary, approximately, 1,300,000 signatures,” the ruling stated. “Pending that possible eventuality, we see no urgent reason to now decide the question of invalidity or validity with finality.”

Although the Senate has not yet requested to submit a friend-of-the-court brief in the case, it could seek to do so if the focus of the lawsuit shifts to the question of recalling federal lawmakers — and not merely whether voters can collect signatures to put the recall on the ballot — in either state or federal court.

Menendez, who did not seek to join the lawsuit himself but is required to take part as an “indispensable party” by the court, expressed disdain for the effort in a statement last week.

“This is an organization trying to undemocratically and unconstitutionally overturn an election in which more than 2 million New Jerseyans voted,” Menendez told the New Jersey Star-Ledger. The New Jersey Senator is represented by Perkins Coie attorney Marc Elias.

The Senate Legal Counsel’s office does not comment on its activities.

While the office can recommend cases to Senate leadership — such as those with an institutional interest to the Senate, in which the chamber would want to submit a friend-of-the-court brief — and lawmakers can request the office’s involvement, the Senate must approve any action to be taken.