On August 7, 2023, the New Jersey Supreme Court decided the Hudson County case of State v. Jason O’Donnell. The principal issue under N.J.S.A. 2C:27-2 concerned whether unsuccessful candidates for public office could be convicted for accepting a bribe.
Chief Justice Rabner wrote for the unanimous Court in relevant part: At the same time that defendant emphasizes the statute does not explicitly contain the word “candidate,” he suggests the law applies to payments to candidates who are later elected. The operative language in the bribery statute, however, focuses on the exchange of a benefit for a commitment to perform. That means the offense is complete when a benefit is solicited or accepted, not at a later point. Under defendant’s interpretation of the law, the offense is only complete if and when the person takes office. Despite language in the statute to the contrary, defendant maintains no offense is committed in this situation at the time a bribe is paid.
Second, defendant claims that he cannot have committed bribery because he could not deliver on any bribe as an unelected candidate. But subsection (d) does not say the recipient must be able to perform any official duties at the time the bribe is paid. The subsection’s expansive language instead makes it a crime for “a person” to accept a bribe “as consideration for the performance of official duties.” N.J.S.A. 2C:27-2(d) (emphasis added).
The Legislature could have made the law clearer if it used the phrase “as consideration for the promise to perform” as opposed to “as consideration for the performance.” Under contract law, consideration only exists if there is an exchange of value for an exchange of value. Without actual performance of an official duty, there is no consideration in the contract law sense of the word. That logic would favor the defendant’s argument about a candidate needing to take office before he can be found guilty for accepting a bribe.