NJ Supreme Court Hears Oral Arguments in Bribery Case

NJ Supreme Court Hears Oral Arguments in Bribery Case

The Supreme Court of New Jersey recently heard oral arguments in State v. Jason M. O’Donnell, which involves the state’s bribery statute. The issue before court is whether a candidate who loses an election was still be convicted of accepting a bribe under NJSA 2C:27-2.

Facts of State v. Jason M. O’Donnell

Defendant Jason M. O’Donnell is charged with violating N.J.S.A. 2C:27-2, which imposes criminal liability on “person[s]” who offer or accept from another “[a]ny benefit as consideration” for, among many things, the performance of official duties. The indictment was based on evidence that, during his 2018 campaign for the office of Bayonne Mayor, O’Donnell agreed to accept from an attorney $10,000 in “street money” in exchange for becoming Bayonne’s tax attorney once defendant was elected. O’Donnell ultimately lost the election and, thus, never became mayor.

Because he never took office and was never able to perform his part of this alleged corrupt bargain, O’Donnell sought to dismiss the indictment, arguing that N.J.S.A. 2C:27-2 does not criminalize an unsuccessful candidate’s acceptance of a bribe. The trial court dismissed the indictment, but the Appellate Division reversed. “[W]conclude N.J.S.A. 2C:27- 2’s plain language reveals an intent to render unlawful what defendant is alleged to have done and that the statute imposes criminal liability on bribe-accepting but unsuccessful candidates for public office.”

In reaching its decision, the Appellate Division emphasized that the New Jersey Legislature “imposed criminal liability on ‘person[s],’ not just public officials and public servants who offer or accept bribes.” The court further stressed that adopting O’Donnell’s interpretation of N.J.S.A. 2C:27-2 “would be to declare open season on the bribing of candidates for public office.” 

“Defendant’s interpretation that candidates are not made criminally liable for accepting bribes in the performance of some future official act would mean, if correct, that a candidate could be bribed before, during, and after being elected, right up until taking the oath of office,” the court wrote.

Issues Before the NJ Supreme Court

The New Jersey Supreme Court granted certification on October 21, 2022. The justices agreed to consider the following question: “Does N.J.S.A. 2C:27-2, which imposes criminal liability for ‘bribery in official and political matters,’ apply to a candidate for political office who is not an incumbent and is ultimately not elected?

During oral arguments held on April 24, 2023, O’Donnell’s attorneys argued that prosecutors were interpreting the state’s anti-bribery statute too broadly. They maintained that although the words “party official” or “public servant” don’t appear in subsection D, the section under which O’Donnell is charged, the legislative history of the law demonstrates that the amendment was not intended to expand the statute’s scope to candidates. 

“During the relevant time period, Feb. 1, 2018, through May 3, 2018, Mr. O’Donnell was neither a public servant nor party official,” O’Donnell’s attorney argued.  “He was a mere candidate for office. A private citizen aspiring to office, not one that had any official duties at that time.”

New Jersey Deputy Solicitor General Angela Cai maintained that the statute does not require that the bribe taker be a public official when the bribe is taken. Rather, all that is required is for bribe to be accepted to solicit an official action. “Defendant’s focus on official status at the time of the illicit deal is wrong, his reading adds words into the statute that aren’t there,” Cai argued. Chief Judge Stuart Rabner appeared inclined to agree. He noted that N.J.S.A. 2C:27-2 is based on the Model Penal Code, which contains a footnote stating that a candidate could be guilty of bribery for receiving a campaign contribution “if the other requirements of the offense are met” including an understanding that official action would be taken after election. “Doesn’t that suggest that the statue covers candidates?” Justice Rabner asked. 

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