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By: Scott A. Coffina
The entire New Jersey Legislature is up for election this year, and over 200 legislative candidates — plus scores more in down-ballot races — finally got word from the state Supreme Court as to whether they may lawfully accept bribes during their campaigns.
The answer is a definitive no.
In State v. O’Donnell,[1] the New Jersey Supreme Court decided unanimously on Aug. 7 that New Jersey’s bribery statute applies to candidates accepting bribes, as well as the patrons who offer them.
Presumably, this decision will not alter any candidate’s fundraising strategy.
All jokes about the integrity of New Jersey politics aside, the outcome in O’Donnell is less obvious than the 7-0 decision would suggest — although even before the decision came down, being caught receiving $10,000 in a Baskin-Robbins bag was a bad look for any candidate.
Now, it is undeniably illegal, at least under state law.
O’Donnell arises from a 2018 sting operation in which a tax attorney cooperating with the government allegedly gave then-Bayonne mayoral candidate Jason O’Donnell $10,000 in “street money” in exchange for a promise to make this cooperator the city’s tax counsel if O’Donnell won the election.
O’Donnell lost, and was subsequently indicted for bribery under New Jersey Statutes Annotated 2C:27-2(d).[2]
The Hudson County Superior Court dismissed the bribery charge against O’Donnell, agreeing that because he was merely a candidate, not a public official, the bribery statute did not apply to him, citing a 2012 federal decision by the U.S. District Court for the District of New Jersey in U.S. v. Manzo,[3] which concluded Section 2C:27-2(d) does not apply to candidates who are never elected to public office.
The Appellate Division reversed, employing a broader reading of the statute, holding that the statute applies to unelected candidates, and it is irrelevant to the candidate’s culpability whether the candidate in fact ever assumes office.[4]
The New Jersey Supreme Court accepted the case to determine whether the bribery statute “applies to a candidate for political office who is not an incumbent and is ultimately not elected.”[5]
The Supreme Court was definitive in answering that question in the affirmative, and because it relied primarily on the plain words of the statute, they are set forth here, in relevant part:
A person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another: …
(d) Any benefit as consideration for the performance of official duties. …
It is no defense to prosecution under this section that a person whom the actor sought to influence 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.[6]
The plain language of the statute may not be so plain here, hence the need for the Supreme Court to take this case.
As O’Donnell argued, the word “candidate” is not mentioned in the statute, and a candidate who is not elected never has official duties with which to fulfill their end of the quid pro quo.
The defendant further claimed that the language of the no-defense provision merely forecloses an impossibility defense of the bribe giver, i.e., “the actor,” and not the person they sought to influence, i.e., the candidate — who, the argument goes, never had the capacity to meet their demand.
O’Donnell found support for both of his arguments from the court in Manzo. Interpreting the same provision, Section 2C:27-2(d), the federal district court observed that “since a candidate cannot perform official duties until elected, the Court does not find that this provision on its face applies to candidates that are never elected to public office.”[7]
And regarding the no-defense provision, it held:
[I]n strictly interpreting that language of the provision, it is clear to the Court that the language addresses two distinct parties: the person whom the actor sought to influence, and the actor himself. The “actor” is presumably the individual prosecuted under the statute — in this case, Defendant Louis Manzo — and substituting the named defendant for the term “actor” in the provision indicates that the provision was intended to exclude any “not qualified to act” defenses as made by bribe givers, rather than bribe receivers.[8]
Moreover, as the New Jersey Supreme Court was considering this case, the U.S. Supreme Court decided the factually analogous Percoco v. U.S.,[9] which determined that a private citizen — i.e., someone with no official duties — with influence over government decision making cannot be convicted for honest services fraud for accepting payment to exercise that influence.
Percoco extends a trend in U.S. Supreme Court jurisprudence narrowing the scope of bribery offenses, even for public officials.[10]
Interestingly, therefore, the federal and state jurisprudence has settled in opposite positions regarding the interpretation of the plain language of Section 2C:27-2(d).
When it comes to a question of state law, of course, the New Jersey Supreme Court’s interpretation prevails. And when addressing a case of such crass corruption — $10,000 in a paper bag delivered to O’Donnell’s campaign headquarters — the justices in New Jersey made it emphatically clear, notwithstanding the relevant federal authority, that mere candidates can be bribed, and it does not matter if they ever actually assume official duties.
The court concluded that O’Donnell’s charged conduct aligns with the elements of Subsection (d). O’Donnell is “a person” who accepted a benefit — i.e., $10,000 cash — as consideration for “the performance of official duties,” i.e., appointing his benefactor, the cooperating witness, as Bayonne’s tax counsel.
The court dismissed O’Donnell’s contention that he was not alleged to be a public servant or person with official duties or authority, noting that the provision “applies to any ‘person,'” and “[h]ad the Legislature intended to exclude candidates from the statute’s reach, it would have said so.”[11]
The court also rejected O’Donnell’s argument that the no-defense provision means that an unelected candidate with no official duties cannot be convicted of bribery.
The court cited commentary concerning an identical provision in the Model Penal Code, on which New Jersey’s bribery statute was based, that directly addressed this provision:
[T]he language of the preclusion may seem to be worded so that literally it would apply only where the defendant was the person who sought to influence the official conduct of another. It is intended, however, to apply with equal force where the defendant is a public official who solicits or accepts a bribe.
This commentary makes clear the bribery statute applies equally to a bribe giver and to a bribe taker who is a public official. It does not, however, directly refute O’Donnell’s argument that the law does not apply to someone who is not a public official.
On that point, the court cited approvingly State v. Schenkolewski, where the Appellate Division held in 1997 that
neither the offeror nor the recipient of [a] bribe need be a public official to prove bribery. Rather, it is sufficient if the recipient created the understanding with the briber that he could influence matters in connection with an official duty, whether or not he was capable of actually effecting such an act.[12]
There were a couple more interesting points raised in the O’Donnell decision. O’Donnell argued that the serial attempts by the Legislature to amend the bribery statute since the Manzo decision in 2012 by adding the phrase “a candidate for public office” to the statute’s definition of “public servants” demonstrate that the law does not presently apply to candidates.
This argument has surface logic, but the court correctly noted the folly of relying on legislative action or inaction, which could be driven by many factors.
True enough, the introduction of the amendment could reflect a recognition the law presently excludes candidates, but following Manzo, it equally could be intended merely to make explicit what the Legislature and now the court see as implicit in the existing language.
Finally, the state Supreme Court succinctly dispatched O’Donnell’s argument that the rule of lenity should apply because the applicability of the bribery statute to a candidate is ambiguous, as demonstrated by the Manzo decision. The court wrote, “The rule does not apply ‘simply because there are competing judicial interpretations of the statutory language.'”[13]
It continued, “[T]his Court looks to federal district court opinions for their persuasive reasoning, but their conclusions are not binding authority.”[14]
Of course, the New Jersey Supreme Court does not have to be bound by Manzo to acknowledge that this competing interpretation illustrates some ambiguity in the law as it applies to candidates.
But the court found that “the language of the bribery statute applies to candidates for office and is not ambiguous, even without resort to other relevant sources,” and thus it held that the rule of lenity does not apply.
The facts of O’Donnell depict a caricature of ham-handed corruption, with its paper bag full of cash handed over in the campaign headquarters. All that was missing is the proverbial meeting in a darkened garage while wearing trench coats.
The case thus presented about the cleanest possible factual case for the court to declare that the law unambiguously applies to candidates for public office who are not elected.
Credible arguments were raised that this statute is not nearly as straightforward as all seven justices determined it to be. But it is clear now that going forward — as surprising as it might be that this message needed to be reinforced — unelected candidates should not seek to enhance their finances by accepting paper bags with cash.
O’Donnell does leave some interesting questions unresolved. Its focus on the statutory term “person” to bring candidates within the statute broadens the potential reach of New Jersey’s bribery law considerably.
The court determined the law applies to a declared candidate, because the Legislature did not expressly exclude candidates. So what about a person who is considering a run for office, but has not yet announced?
Potential candidates, too, have not been expressly excluded from the term “person.” As this person tries to attract support for their potential candidacy, would this statute apply to them if they accept a benefit in exchange for a future official action if this person runs, and if they ultimately win? Where does this line get drawn?
And given the court’s approving citation of Schenkolewski, can an influential person who is neither a candidate nor a public official, and who accepts money to persuade lawmakers in New Jersey to adopt or reject certain policies, be convicted of bribery, notwithstanding the Supreme Court’s recent Percoco decision to the contrary?
Are New Jersey lobbyists at risk for bribery prosecutions merely for being paid to do their jobs? It is not clear that O’Donnell rules that out.
Also left unresolved by O’Donnell are the perennial gray lines surrounding when a campaign contribution that is intended to secure favorable treatment if the candidate is successful, or a candidate’s campaign promise to advance certain policies that might benefit a contributor, could cross the line from protected political speech to acceptance of a bribe in violation of Section 2C:27-2.
That question was not before the court in O’Donnell, but the court did cite approvingly commentary to the Model Penal Code that explains, “‘a person may be convicted of bribery for offering a campaign contribution, and a candidate may be guilty of bribery for receiving such a contribution, if the other requirements of the offense are met.'”[15]
Given the potential breadth of the court’s opinion — the potentially expansive definition of “a person,” and the impertinence of there being any official act — those involved in making and accepting campaign contributions should be careful to disavow any quid pro quo.
And of course, don’t give or accept bags of cash.
[1] 2023 WL 5005787 (N.J. August 7, 2023).
[2] The Indictment did not specify which subsection the government was charging O’Donnell with violating, but counsel for the State clarified during oral argument before the Supreme Court that they were proceeding under subsection (d).
[3] 851 F. Supp. 2d 797, 811 (D.N.J. 2012).
[4] See, 471 N.J. Super. 360 (App. Div. 2022).
[5] 252 N.J. 171 (2022).
[6] N.J.S.A. 2C:27-2.
[7] 851 F. Supp. 2d at 811.
[8] Id., at 812.
[9] 143 S.Ct. 1130 (2023).
[10] See, e.g., McDonnell v. U.S. , 579 U.S. 550 (2016) (concluding that an “official act” for purposes of establishing bribery under an honest services fraud theory requires a public official to “make a decision or take an action,” or agree to do so, on a “question, matter, cause, suit, proceeding or controversy.”).
[11] O’Donnell, at 10. The Court observed that “public servant” is specified in other subsections of the statute, but not in subsection (d), fairly surmising that the omission in subsection (d) was intentional. Id., citing N.J.S.A. 2c:27-2(a) & (c).
[12] 301 N.J. Super. 115, 138-39 (App. Div. 1997).
[13] 2023 WL 5005787, at *11.
[14] Id.
[15] Id., at *8.
Scott A. Coffina, NJ Justices Clarify Bribery Law Scope, But Questions Remain, Law360 (August 21, 2023), https://www.law360.com/articles/1710730/nj-justices-clarify-bribery-law-scope-but-questions-remain