Scarinci: N.J. Supreme Court Rules Bribery Law Applies to Losing Candidates

NJ Supreme Court Rules Bribery Law Applies to Losing Candidates

By Donald Scarinci

In State v. Jason M. O’Donnell (A-17-22/087023) (Decided August 7, 2023), the Supreme Court of New Jersey held that the state’s bribery statute applies to any “person” who accepts an improper benefit, including incumbents, candidates who win, and candidates who lose.

Facts of State v. O’Donnell

Defendant Jason O’Donnell was a candidate for mayor of Bayonne in 2018. During the campaign, he allegedly accepted $10,000 in cash in a paper bag from an individual. The State alleged that, in exchange for the money, O’Donnell promised to appoint the individual as tax counsel for the city.

The State charged defendant under New Jersey’s bribery statute, N.J.S.A. 2C:27-2(d), which states it is a crime for any “person” to accept “[a]ny benefit as consideration for the performance of official duties.”

The defendant did not win the election. He maintained that the law does not apply to him because it does not cover candidates who accept improper payments but are not elected. The trial court agreed and dismissed the indictment, holding that N.J.S.A. 2C:27-2(d) did not apply to defendant. The Appellate Division reversed, holding that the bribery law “reveals an intent to render unlawful what defendant is alleged to have done and that the statute imposes criminal liability on … unsuccessful candidates for public office” who accept bribes.

NJ Supreme Court’s Decision in State v. O’Donnell

The New Jersey Supreme Court affirmed and remanded the case for trial. It rejected the defendant’s argument that the bribery statute does not apply to unsuccessful candidates, citing that the “plain words of the bribery statute” do not support his position.

The New Jersey Supreme Court first rejected the defendant’s argument that the law does not apply to him because it does not explicitly apply to a candidate running for office who is not an incumbent and does not ultimately win. “The law instead applies to any ‘person’ who solicits or accepts a bribe,” the Court explained. “Had the Legislature intended to exclude candidates from the statute’s reach, it would have said so.”

The New Jersey Supreme Court similarly dismissed the defendant’s claims that he couldn’t have committed bribery because he could not deliver on any bribe as an unelected candidate, noting that the offense is complete when a benefit is solicited or accepted, not at a later point.

“Suppose someone else makes bribe payments to two opposing candidates, neither of whom is an incumbent. Under defendant’s approach, only the person who wins is culpable, even though both candidates engaged in the exact same conduct with the same corrupt intent,” the Court wrote. “That outcome is not supported by the text of the statute.”

In further support of its decision, the New Jersey Supreme Court cited the bribery statute’s no-defense provision, which states: “It is no defense to prosecution . . . that a person . . . was not qualified to act in the desired way whether because he had not yet assumed office, or lacked jurisdiction, or for any other reason.” According to the Court, if anything, that provision rebuts defendant’s argument that no crime occurred if a person “had not yet assumed office” and therefore could not perform official duties.

The New Jersey Supreme Court also reviewed the bribery statute’s history and relevant caselaw, concluding that it confirms that the law extends to candidates. It did not give weight to the model jury charges for bribery, which include the no-defense provision in the charge for bribe givers but not the one for bribe recipients. According to the Court, it does not evaluate model jury charges other than when they are reviewed as part of an appeal.

Finally, the New Jersey Supreme Court dismissed the defendant’s constitutional arguments, citing that due process is satisfied when ordinary people can understand what conduct is prohibited, and when the offense is defined in a manner that does not encourage arbitrary and discriminatory enforcement.

“For the reasons outlined above, we find that the bribery statute provides sufficient notice that no person—candidate or incumbent—may accept unauthorized benefits ‘as consideration for the performance of official duties,’” the Court wrote. “The law plainly states it is no defense that someone in defendant’s position was not yet qualified to act. And ordinary people can understand that New Jersey’s bribery statute does not allow them to accept a bag of cash in exchange for promising a future appointment to a city post.”