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FOR IMMEDIATE RELEASE:

Determination on Menendez Recall Cites NJ Constitution and Uniform Recall Election Law as Unconstitutional; Judge May Consider Appeal

Mercer County, New Jersey – January 15, 2010  --  A judge in the Superior Court of New Jersey Appellate Division has granted an application to file an emergent motion in the case of Committee to Recall Robert Menendez v. Nina Wells, Secretary of State, et al.  On Thursday, January 14^th, Judge Jack Sabatino issued an order allowing the plaintiff to file a motion to accelerate the appeal and to file the supporting brief.

Attorneys for The Committee to Recall Robert Menendez from the United States Senate, plaintiff, filed the application on Wednesday, seeking an accelerated review of a "final determination" of January 11, 2010, made by state election officials on a Notice of Intention to Recall filed by the committee.  The election officials' determination not only prohibits the plaintiff from moving forward with the recall petition under New Jersey’s Uniform Recall Election Law, but also suggests that New Jersey’s recall statutes, as well as the recall provisions in the New Jersey Constitution adopted in 1993, are unconstitutional.  The relevant provision, Article 1, Paragraph 2B, states that the people may recall “any elected official in this State or representing this State in the United States Congress”.

In a letter dated January 11^th, New Jersey Secretary of State Nina Wells responded as follows:

“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 New Jersey, I hereby determine that neither the Notice of Intention to Recall nor the proposed Petition can be accepted for filing or review.”

The response comes nearly four months after the Notice of Intent to Recall was initially filed.

"After ignoring the statutes for almost four months, the Secretary of State has unilaterally declared that the statutes and Article 1, Paragraph 2B of the New Jersey Constitution is unconstitutional," said Daniel Silberstein, one of the attorneys representing the Recall Committee.

Silberstein and Richard Luzzi, co-counsel for the plaintiff, will appeal based upon the premise that the Recall Committee has a constitutional right to a certified recall petition, which should also be considered political speech, a type of speech afforded the highest protection by both State and Federal courts.  They maintain that the Committee should be permitted to collect signatures on a certified petition and present the required number of signatures to call an election, before a court intervenes to resolve any questions surrounding the validity of New Jersey Constitution’s recall provision and the Uniform Recall Election Law.

The recall committee, formed by several members of a local grassroots group, Sussex County Tea Party, filed a Notice of Intent back on September 25^th, 2009.  The Division of Elections and Secretary of State's office acknowledged receipt of the Notice on October 5^th, 2009, but took no further action on it.  Pursuant to N.J.S.A 19:27A-7, within three days, recall election officials must either approve the Notice or reject it and provide reason for non-compliance and allow for amended re-filing.

When the state failed to respond, the Committee filed another Notice of Intent on November 10, 2009, and then filed a civil lawsuit on December 2^nd, 2009 to force the Division of Elections to respond.  The committee’s attorneys filed a motion for summary judgment, which was scheduled to be heard on February 5.  However, the Secretary of State’s response of January 11 effectively renders that lawsuit and motion moot.

The attorneys for the Committee are planning to file a motion for an injunction compelling the Secretary of State to approve the Notices pending the final determination of the case, along with their request that the Court reverse the determination of January 11.

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