Justices skeptical of New Jersey bribery law’s loophole for unelected candidates

New Jersey’s Supreme Court justices appeared skeptical of claims attorneys made during oral arguments Monday that unelected political candidates cannot be charged with bribery under state statute.

The court heard arguments Monday in the case of former Bayonne mayoral candidate Jason O’Donnell, who was accused of accepting $10,000 from confidential informant Matt O’Donnell in exchange for the promise of tax work in the city. (The two O’Donnells are not related.)

Leo Hurley Jr., an attorney for Jason O’Donnell, argued the former three-term Assemblyman could not be charged under state law because he held no elected or party office when he accepted the money, which was given to him in a Baskin-Robbins bag.

O’Donnell could not perform an official favor because he was unelected, Hurley said, and “one who is not an official cannot have official duties.”

But Chief Justice Stuart Rabner pointed to provisions in the Model Penal Code, which holds that anyone charged with accepting a bribe cannot base a legal defense on their inability to follow through with a deal because they lacked jurisdiction, had not assumed office, or “for any other reason.” The 1962 document drafted by the American Legal Institute is the foundation of New Jersey’s current criminal code.

Hurley responded that the “for any other reason” language was overbroad and argued the no-defense clause applied only to those offering a bribe.

But some bribery involves mutual corruption, Deputy Solicitor General Angela Cai countered. Cai, who argued the case on behalf of the state, gave the example of a mayor promising to hire a police chief’s relative in exchange for the chief ignoring the mayor’s criminal activity.

“In that example, it doesn’t matter who is conferring or agreeing to confer which part of the deal. Both sides of the deal are subject to the exact same analysis under the statute,” Cai said.

New Jersey’s bribery law has been in a state of uncertainty since a federal judge dismissed bribery charges against former Assemblyman Louis Manzo in 2012, ruling candidates who were not elected could not be charged under the statute because they couldn’t uphold their end of an illicit bargain.

New Jersey lawmakers had more than a decade to adjust the state’s bribery law after the Manzo decision, Hurley said. The fact they never did should confirm that candidates can’t be charged under the statute, he added.

Still, lawmakers have sought to clarify the bribery statute since then and came close last spring after sending a reform bill to Gov. Phil Murphy’s desk. The governor conditionally vetoed that bill over concerns that its language would create additional loopholes in the bribery law. Since then, the measure has not moved in the Senate.

But the justices said they couldn’t draw conclusions from bills not enacted into law.

New Jersey’s bribery law drew renewed attention only after a Superior Court judge dismissed the bribery charges against O’Donnell in June 2021, finding he could not be charged because he lost his election and did not hold office when he accepted cash for a promise of city work.

An appellate panel reversed that dismissal last April after deciding the lower court reached a “nonsensical conclusion” by relying on the Manzo decision, which the panel also said was ruled in error.

It’s unclear when the Supreme Court will issue its opinion.