The Case to Recall Senator Robert Menendez

NJ court agrees to hear US senator recall case.

On November 7, 2006, Robert Menendez was elected to represent New Jersey in the United States Senate, and on January 4, 2007, Menendez was officially seated after taking the "oath prescribed by law." On September 25, 2009, the Committee To Recall Robert Menendez From The Office of U.S. Senator initiated the recall process by filing a notice of intention to recall him. On January 11, 2008, the New Jersey Secretary of State rejected the notice and petition for filing and review.

As any spin doctor worth his salt knows, facts speak for themselves. And any astute citizen knows government officials wrangle for power through political maneuvering. Much less frequently, however, the legal landscape provides context for these observers. Therefore, the case to recall the election of Robert Menendez will undoubtedly provide political pundits with fodder for the public. Furthermore, for those who are keen about the law that governs politics, this case involves the Constitution of New Jersey, the Uniform Recall Election Law, N.J.S.A. 19:27A-1 to -18, and the Constitution of the United States.

As to state constitutions generally, voter understanding is one tool to interpret a provision's meaning. In addition, some state constitutional provisions are self-executing while others are not. The distinguishing feature is that a non-self-executing provision requires legislative action in order for the constitutional provision to be implemented.

In respect of both the New Jersey Constitution and the case of Robert Menendez, in 1993 the people of New Jersey amended the state constitution by a three-to-one vote to provide for the recall of elected officials. As with other referenda, an interpretive statement appeared on the ballot to provide voters in the booth with information about the question at issue. It explained not only the core purpose of the amendment, to recall elected officials, but also the scope. More particularly, the recall law would apply "to any elected official in this State and to the United States Senators and Congressmen elected from New Jersey." It also explained voter approval on this amendment would authorize the legislature to enact relevant election laws.

Consistent with all of this evidence about voter understanding, the New Jersey Constitution, art. I, ¶ 2 was amended to provide, "The people reserve unto themselves the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress." In addition, this provision commands the legislature to enact the relevant enabling statutes. Notably, this amendment appears immediately after the provision declaring "All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it." N.J. Const. art. I, ¶ 2.

The clash between the Federal and New Jersey Constitutions provide only one of many interesting legal issues in this matter. As this article indicates, the New Jersey Supreme Court granted certification to the parties as to all the issues in this controversy. Until then, the decision of the Superior Court of New Jersey, Appellate Division is available here.

The Penitent's Privilege, A Ring of Truth, and Common Sense

I blogged the other day about the cleric-penitent privilege based on the recent decision State of New Jersey v. J.G.

This opinion reminded me of a family court trial in Philadelphia I observed a couple of years ago. The evidence in that trial, in brief, implicated a group of male students who caused a very big commotion in their school. They were charged, among other things, with starting a riot.

The government's witnesses testified, and at the end of the trial the judge acquitted the boys for the riot offense. The Assistant District Attorney argued, citing the statutory elements of "riot" and insisting the testimony satisfied these requirements.

The judge responded succinctly, telling the A.D.A. he had obviously never witnessed a real riot. The debate on legislative intent ended there.

Justice Rivera-Soto's argues in his dissenting opinion here that the law should parallel a penitent's religion in affording a privilege in court. We are talking, after all, about the cleric-penitent privilege. Were it not for any participation in organized religion, the party would not be able to raise it.

Even in light of the majority opinion--based on statutory history, the legislative record, and canons of construction--the majority apparently ignored the title of the privilege. From this perspective, the majority analysis, impressive though it is, simply does not ring true. State of New Jersey v. J.G.

Cleric-Penitent Privilege

The "Cleric-Penitent Privilege" has received recent coverage in some New Jersey media due to the recent decision in State of New Jersey v. J.G.

News reports indicated the Court's majority expanded the privilege because it adopted a new test to determine whether the privilege could be raised.

With its eponymous title suggesting a centuries old vintage, the Cleric-Penitent Privilege derives from the Code of Canon Law of the Roman Catholic Church. Canon Law not only criminalized breaking the seal of the confessional by a priest, but also emphasized the significance of this breach by imposing excommunication for revealing information acquired during a confession.

England, however, broke away from the Roman Catholic Church in the Sixteenth Century during the English Reformation, and likewise, English courts abandoned this privilege. As a result it was totally foreign to American Common Law.

Under New Jersey law, for example, there was no Cleric-Penitent Privilege until 1947. In that year the New Jersey legislature enacted it, and subsequently the government has amended this law.

It is no surprise, therefore, that the centerpiece of both the majority and the dissenting opinions in State v. J.G. consists of analysis using tools of statutory interpretation.

Courts employ tools of statutory interpretation to determine legislative intent and, accordingly, to apply the law. J.G. may pique one's interest because the majority and dissenting opinions apply similar tools to reach very different conclusions. And if the outcome is politically undesirable, the legislature can amend the statute.

State of New Jersey v. J.G.