“Chief Justice Rabner concluded with the following in relevant part: ”Consideration” encompasses “mutual promises to do some future act.” Friedman v. Tappan Dev. Corp. (1956) (quoting Rich v. Doneghey, 177 P. 86, 90 (Okla. 1918)). The term also includes conditional promises. See 3 Williston on Contracts § 7:18 (4th ed. 2023). “An offer to insure property in exchange for a premium,” for example, “constitutes a promise to pay insurance money in case the property insured is damaged or destroyed.” The “conditional promise may be consideration.”
More specifically, for purposes of this appeal, the text of the bribery statute does not require a bribe recipient to be able to act on a promise. As the State argues, imagine a candidate or an official who accepts a bribe in exchange for a promise to vote for a piece of legislation. If the bill is never posted for a vote, the person’s conduct — accepting a payment as consideration for the performance of official duties in the future — is still an offense under the bribery statute.
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. That outcome is not supported by the text of the statute.
The statute’s no-defense provision does not lend support to defendant’s position either. If anything, it rebuts the notion that no crime has occurred if a person “had not yet assumed office” and therefore could not perform official duties. To the contrary, the law states it is not a defense if “a person whom the actor sought to influence was not qualified to act in the desired way.” N.J.S.A. 2C:27-2.
Notably, that language is not limited to individuals who have “not yet assumed office.” It expressly applies to people who are not qualified to act “for any reason,” including, as the statute says, because they lacked jurisdiction or did not yet hold office. Ibid. (emphasis added). Losing an election would be another such reason.
Regardless of the reason, the provision makes plain that a person’s inability to act and fulfill a promise is not a defense. In other words, if bribe recipients cannot deliver on a promise, the no-defense provision does not let them off the hook. As the Appellate Division observed, “it behooves neither party to the corrupt bargain that the person to be influenced ‘was not qualified to act.'”
Defendant also contends that the no-defense provision applies only to the individual who offers or pays a bribe. The text, however, does not say that. And commentary in the Model Penal Code, which we discuss later, supports the opposite conclusion. For all of those reasons, we conclude that the plain language of the bribery statute encompasses candidates for office as well as elected officials.
If the Defendant’s position were accepted, the State could still pursue a conviction for theft by deception in the case of a bribe accepter who did not have the authority to act in the way desired by the briber.
