TRENTON, N.J. -- A New Jersey appeals court ruled Tuesday that a conservative tea party group should have the right to try to throw a U.S. senator out of office, but also said the group would have to wait for a final decision by a higher court before proceeding.
The three-judge panel initially ordered New Jersey's Secretary of State to accept a petition from the group seeking to recall Democratic Sen. Robert Menendez. But the court also issued a stay because the case was certain to be appealed.
The ruling would have allowed the group to begin collecting the 1.3 million voter signatures needed to get a recall on the ballot.
The court set aside the larger question of whether New Jersey voters have a constitutional right to recall a federal lawmaker. New Jersey is among 18 states that allow recalls of statewide elected officials, but there is no right to recall congressmen and senators under the U.S. Constitution.
The court said it would take up that question when, and if, the petition drive succeeds.
"There is, and there will be, no necessity for our courts to resolve this difficult constitutional issue if the committee's petition drive fails," the panel said in the decision.
Daniel Silberstein, a lawyer for the Committee to Recall Robert Menendez, argued for the tea party group's right to try to oust Menendez, whose six-year term expires in 2012. He argued that the appellate panel should not weigh until after the activists collect the signatures, giving them the chance to express frustration with Menendez.
He said the decision was a blow to "all the pundits and part-time constitutional scholars" who predicted the group's legal defeat.
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.
Elias said the U.S. Supreme Court was unified in its position that there is no right to recall a federal legislator.
Donna Kelly, an assistant New Jersey attorney general representing the state, argued that it would be misleading for voters to be asked to sign a recall petition then later told they're not legally part of the process.
"The U.S. Constitution is clear that a senator's term is six years and is not subject to recall," Elias said in a statement. "We are pleased the court stayed this opinion until the appeals process is completed."
Lee Moore, a spokesman for the Attorney General, said the decision is being reviewed.
RoseAnn Salanitri, a spokeswoman for NJ Tea Parties United and the Sussex County Tea Party, which are behind the move to throw out Menendez, said the committee is targeting him because he supports health care reform, which they oppose, and because of his past votes in favor of government spending.
She said the group is not pleased with New Jersey's other Democratic senator, Frank Lautenberg, but is not targeting him because at age 86, he is unlikely to seek another term. Lautenberg would face voters again in 2014.
The group petitioned the secretary of state to begin collecting signatures in September; it has not specified whether it is seeking to have a Menendez recall in the primary or general election. The group sued after its request was denied.