Political Bribes (Part 6)

Judge Fisher concluded with the following in relevant part: Because we find no statutory ambiguity, the rule of lenity has no application. But, even if we were to assume an ambiguity exists within N.J.S.A. 2C:7-2, the rule doesn’t provide a defendant with a get out of jail free card. As Chief Justice Wilentz said in De Marco, “it does not invariably follow that every time someone can create an argument as to the meaning of a penal sanction” the rule of lenity should excuse the conduct. And it does no good for defendant to assert that the statute is ambiguous because Manzo held that what he allegedly did was not a crime. In Regis, the Court observed that the rule of lenity is not available “simply because there are competing judicial interpretations of the statutory language, in New Jersey or elsewhere.” To support a lenity argument based on competing judicial interpretations, defendant can only offer the trial court decision in Manzo whereas our binding decisions in Schenkolewski, Ferro, and Woodward all would have, if consulted, counseled a candidate for office in 2018 of the criminal jeopardy he was facing on accepting a bribe. Although forcefully argued, we cannot take seriously the contention that defendant acted under the assumption that he was not accepting a bribe within the meaning of N.J.S.A. 2C:27-2, if what he is accused of is ultimately proven.

We lastly observe that the Legislature just passed a bill which, if signed into law by the Governor, will both expand N.J.S.A. 2C:27-2’s definition of “public servant” to include candidates for public office and rephrase the scope of the no-defense provision. See A. 2472 (passed by the Legislature on March 24, 2022). The commentary offered in support of the bill states, among other things, that these amendments to N.J.S.A. 2C:27-2 are “intended to respond” to Manzo by “ensuring that such future incidents involving persons seeking public or political office are punishable as criminal acts.”

This bill has no bearing on our decision. It reveals only the Legislature’s desire to avoid future decisions like Manzo. This bill is neither an admission that N.J.S.A. 2C:27-2 is inadequate or ambiguous when applied to candidates for public office nor is it evidence of the legislative intent when N.J.S.A. 2C:27-2 was enacted decades ago. In the same vein, we find no significance in the fact that there were prior failed attempts to modify N.J.S.A. 2C:27-2 in the wake of Manzo. See Amerada Hess Corp. v. Dir., Div. of Taxation (1987) (quoting 2A Sutherland Statutory Construction § 49.10 (4th ed. 1984), in observing that “legislative inaction is ‘a weak reed upon which to lean’ in construing a statute”).

The order dismissing the indictment is reversed and the matter remanded for further proceedings. We do not retain jurisdiction.

The Manzo case was decided in 2012 by Federal District Judge Jose Linares. The case was unsuccessfully argued by then U.S. attorney and future Monmouth County Prosecutor Christopher Gramiccioni.