JUSTICES OF THE COURT, GOOD AFTERNOON. LEO HURLEY, CONNELL FOLEY. ON BEHALF OF
PETITIONER JASON O'DONNELL. LAWRENCE S. LUSTBERG: LAWRENCE S LUSTBERG,
GIBBONS. RESPONDENT: ANGELA CAI, DEPARTMENT ATTORNEY GENERAL.
LEO J. HURLEY: MAY IT PLEASE THE COURT, I'D LIKE TO PRELIMINARILY REQUEST FIVE MINUTES
FOR REBUTTAL. JASON O'DONNELL IS NOT NOW NOR WAS HE AT THE TIME OF THE
INDICTMENT A PUBLIC SERVANT OR PARTY OFFICIAL. HE NEVER HAD OFFICIAL DUTIES. NOR DID
HE HAVE ACCESS TO A PERSON WITH OFFICIAL DUTIES. THE TRIAL COURT CORRECTLY FOUND THAT
FOR THIS REASON THE INDICTMENT MUST FAIL AS A MATTER OF LAW. N.J.S.A.
2C-27-TWO CRIMINALIZES THE BEHAVIOR OF THOSE WHO AT THE TIME THEY ACCEPT BRIBES STAND IN
THE POSITION OF ACTUAL OR APPARENT AUTHORITY AT THE TIME OF THE BRIBE TO EFFECT THE DESIRED
OUTCOME OR RESULT. THIS CONCLUSION IS BUTTRESSED BY THE PLAIN LANGUAGE OF THE STATUTORY
SCHEEM. THE COMMON LAW HISTORY OF BRIBERY IF THIS CASE. THE COURT INTERPRETATIONS OF THE
PREDECESSOR STATUTE AND INTERPRETATIONS OF N.J.S.A. 2C 27-TWO BY BOTH INTERMEDIARY
COURTS AND THE SUPREME COURT OF THIS STATE. THE POSITION TAKING BY THE ATTORNEY GENERAL'S
OFFICE AND THE POSITION HE IS SOUSED BY THE APPELLATE DIVISION IN THE DECISION THAT LED
TO THIS DECISION WOULD HAVE THE EFFECT OF WRITING OUT IMPORTANT NECESSARY DEFINITIONAL
SECTIONS OF THE STATUTORY SCHEME WHILE DISREGARDING LAW THAT MAKES PLAIN THE
FOLLOWING CONCEPT IN ORDER TO BE BOUND GUILTY OF BRIERG UNDER AND ITS PREDECESSORS AT THE TIME
OF THE EXCHANGE THE BRIBE RECIPIENT MUST HAVE ACTUAL OR APPARENT AUTHORITY BASED ON THEIR
POSITION TO DISCHARGE THAT WHICH THEY ARE ALLEGEDLY BRIBED FOR. I WOULD
SUGGEST TO THE COURT THAT THE PLACE TO START THE ANALYSIS HERE IS IN LOOKING AT BOTH THE
INDICTMENT AND THE RELEVANT PORTIONS OF THE STATUTORY SCHEME 2C AND THE DEFINITIONAL
SECTIONS. THE INDICTMENT IN RELEVANT PART CHARGES THAT MR. O'DONNELL ON OR ABOUT FEBRUARY
1, 2018, AND THROUGH MAY THREE OF 2018 DID DIRECT OR IN-DIRECTLY SOLICIT, ACCEPT OR AGREE
TO ACCEPT FUNDS IN ACCESS OF $200 AS CONSIDERATION AS PERFORMANCE OF OFFICIAL OR
THE VIOLATION OF OFFICIAL DUTIES. THAT IS TO SAY, JASON O'DONNELL DID SOLICIT OR AGREE
TO ACCEPT APPROXIMATELY $10,000 IN UNITED STATES CURRENCY FROM SOMEONE WHO'S IDENTITY
IS KNOWN TO THE GRAFRND JURORS. TWO THINGS FROM THE OUTSET. FIRST AND
FOREMOST, THE GRAND JURORS WERE NOT PRESENTED WITH NOR DOES THE INDICTMENT SPECIFY WHICH
SUBSECTION OF 2C 27-TWO MR. O'DONNELL IS PURPORTEDLY BEING PROSECUTED FOR. THE SECOND
THING THAT IS NOTABLE AND I DO NOT BELIEVE IS IN DISPUTE BEFORE THIS COURT RIGHT NOW IS
THAT DURING THE RELEVANT TIME PERIOD, FEBRUARY 1, 2018, THROUGH MAY THREE, 2018, MR. O'DONNELL
WAS NEITHER A PUBLIC SERVANT NOR PARTY OFFICIAL. HE WAS A MERE CANDIDATE FOR OFFICE.
A PRIVATE CITIZEN AS SPIERG FOR OFFICE. NOT ONE WHO HAD OFFICIAL DUTIES AT THE TIME.
IN FACT, DURING THE VERY PERIOD THAT MR. O'DONNELL IS ALLEGED TO HAVE VIOLATED 2C
27-TWO, THE ELECTION AT ISSUE FOR WHICH HE HAD CONTESTED HIS CANDIDACY HAD NOT EVEN TAKEN
PLACE. THE ELECTION TOOK PLACE ON MAY 18TH. THE WINNER WOULD HAVE BEEN SWORN IN ON JULY
1ST. THIS IS NOT REASONABLY IN DISPUTE. THESE ARE SIMPLY THE FACTS BEFORE THE COURT.
IN LOOKING AT THE INDICTMENT, ONE IS FORCED TO GLEAN WHAT SECTION IS IT THAT
THE STATE IS ATTEMPTING THE PROSECUTE MR. O'DONNELL UNDER UNDER 2C 27-TWO. IF YOU LOOK
AT THAT SECTION, I NOTE THE PORTION OF THE INDICTMENT THAT INDICATES THE PERFORMANCE OF
OFFICIAL DUTIES OR VIOLATION OF OFFICIAL DUTIES. IF YOU REVIEW 2C 27-2A THROUGH D, THERE ARE
ONLY TWO SUBSECTIONS THAT CONTAIN THE LANGUAGE PERFORMANCE OF OFFICIAL DUTIES AND VIOLATION
OF OFFICIAL DUTIES. AND THOSE ARE SUBSECTIONS C AND D. LET'S START WITH
SECTION C. SECTION C PROVIDES, ANY BENEFIT AS CONSIDERATION FOR A VIOLATION OF AN OFFICIAL
DUTY OF A PUBLIC SERVANT OR PARTY OFFICIAL. NOTABLY, THE WORDS PUBLIC SERVANT AND PARTY
OFFICIAL DO NOT APPEAR IN THE INDICTMENT. IN FACT, THERE'S TESTIMONY BEFORE THE GRANDE
JURY IN THIS CASE THAT IN FACT HE WAS NOT A PUBLIC SERVANT. HE WAS SIMPLY A CANDIDATE
FOR OFFICE. NEXT YOU GO TO THE DEFINITIONAL SECTIONS. WHICH I THINK ARE
IMPORTANT FOR THE COURT TO UNDERSTAND THE STATUTORY SCHEME WITHIN WHICH THIS 2C 272,
THE SUBSTANTIVE SECTION OPERATES. FIRST AND FOREMOST, PARTY OFFICIAL. A PARTY OFFICIAL
IS DEFINED AT N.J.S.A. 2C 271 E. AND IT SAYS, A PERSON WHO HOLDS AN ELECTIVE -- OR HOLDS,
HOLDS, PRESENT TENSE -- AN ELECTIVE OR APPOINTED POST IN A POLITICAL PARTY IN THE UNITED
STATES BY VIRTUE OF WHICH HE DIRECTS OR CONDUCTS OR PARTICIPATES IN DIRECTING OR CONDUCTING.
WARN WARN DO YOU AGREE THAT SUBSECTION D DOES NOT MENTION THE WORD PARTY OESHT. ANY
BENEFIT AS CONSIDERATION FOR THE PERFORMANCE OF OFFICIAL DUTIES, NOT FOR THE PERFORMANCE
OF OFFICIAL DUTIES OF A PUBLIC SERVANT OR PARTY OFFICIAL. LEO J. HURLEY:
I DO AGREE WITH THAT, JUSTICE. TO THAT END, I WOULD POINT THE COURT TO THE LEGISLATIVE
HISTORY OF THAT PARTICULAR PROVISION. WHEN ADOPTED INITIALLY, 2C 272 ONLY HAD AN A
SECTION, A B SECTION AND A C-SECTION. A YEAR LATER, THE LEGISLATURE ADOPTED THE D SECTION.
AND IF YOU REVIEW BOTH THE (CASE CITED) ANNOTATED AND THE NOTES FROM THE ASSEMBLY JUDICIAL
LAW AND PUBLIC SAFETY AND DEFENSE COMMITTEE, IT INDICATES AS FOLLOWS. THE
ONLY CODIFIED AMENDMENT TO THE BRIBERY STATUTE TOOK PLACE ONE YEAR ACHTD ADOPTION. THE
AMENDMENT WAS MEANT TO RESOLVE THE FOLLOWING. NOW I'M QUOTING FROM THE COMMENTARY FROM
THE ASSEMBLY COMMITTEE. BY AMENDMENT, RECEIPT OF UNAUTHORIZED BENEFITS AS A PUBLIC OFFICIAL
IS MADE ILLEGAL WITH RESPECT TO MINISTERIAL AS WELL AS DISCRETIONARY ACTS. THERE ARE
OTHER AMENDMENTS, BUT ONLY TO LANGUAGE FOR CONSISTENCY AND CLARITY. THERE ARE NO OTHER
SUBSTANTIVE CHANGES. THE POINT BEING, JUSTICE, THAT WHILE THE WORDS PARTY
OFFICIAL AND PUBLIC SERVANT DO NOT APPEAR EXPLICITLY IN THE D SECTION, IT'S ABUNDANTLY
CLEAR FROM THE LEGISLATIVE HISTORY THAT THE AMENDMENT WAS NOT DESIGNED TO EXPAND THE
SCOPE OF THOSE WHO COME WITHIN THE BOUNDARIES AND AMBIT OF THE DEFINITIONAL SECTIONS OF
THE STATUTE AS A PERSON. IT'S DESIGNED TO SIMPLY MIRROR OR CREATE A PARADIGM WITHIN WHICH
ONE OF THOSE INDIVIDUALS WHO'S ALREADY COVERED PRESENTLY WOULD BE HELD LIABLE FOR BOTH
DISCRETIONARY AND MINISTERIAL ACTS WARN WARN BUT THE WAY THAT THE LEGISLATURE ENDED UP
AMENDING THE STATUTE DOESN'T IMPLICATE THE DEFINITIONAL SECTIONS, BECAUSE THE
DEFINITIONAL SECTIONS APPLY DEFINITIONS OR -- I'M SORRY, SET FORTH DEFINITIONS OF THE WORD
PUBLIC SERVANT OR PARTY OFFICIAL BUT THOSE WORDS DOESN'T APPEAR IN SUBSECTION D. INSTEAD
IT JUST READS, THE INTRODUCTORY PART OF THE STATUTE, IT SAYS, A PERSON IS GUILTY OF
BRIBERY IF HE DIRECTLY OR IN-DIRECTLY ACCEPTS OR AGREES TO ACCEPT FROM ANOTHER ANY BENEFIT
AS CONSIDERATION FOR THE PERFORMANCE OF OFFICIAL DUTIES. SO THE DEFINITIONAL SECTIONS
ARE JUST NOT IMPLICATED BECAUSE THOSE WORDS DON'T APPEAR THERE. LEO J. HURLEY:
RESPECTFULLY, YOUR HONOR, I WOULD SUGGEST THE ANALYSIS HERE BEGINS WITH THE PLAIN LANGUAGE
OF THE STATUTE ACCORDING TO THE CASE LAW AND IT REQUIRES THE COURT TO ENGAGE IN AN ANALYSIS
OF THE MEANING OF THE STATUTE TO THE EXTENT THERE WOULD BE ANY AMBIGUITY. IN THIS INSTANCE,
ONE WHO IS NOT AN OFFICIAL CANNOT HAVE OFFICIAL DUTIES AND IF THE STATEMENT OF THE ASSEMBLY
COMMITTEE IS THAT THE PURPOSE OF THE AMENDMENT IS NOT TO EXPAND THE SCOPE OF THOSE COVERED
UNDER THE STATUTE BUT SIMPLY TO EXPAND THE NATURE OF THE ACT, BY IMPLICATION, WHAT OCCURS
HERE IS SIMPLY TO RENDER LIABLE THOSE WHO ARE PARTY OFFICIALS OR WHO ARE PUBLIC SERVANTS
FOR BOTH MINISTERIAL AND DISCRETIONARY ACTS. CHIEF JUSTICE RABNER: AND YOUR
POINT IS THAT NO PART OF THE STATUTE APPLIES TO CANDIDATES WHO DO NOT HOLD AN OFFICE?
LEO J. HURLEY: CERTAINLY, YOUR HONOR, THAT'S THE CASE. CHIEF
JUSTICE RABNER: YOU BROUGHT UP LEGISLATIVE HISTORY. LET'S EXPLORE THAT A LITTLE
FURTHER. THE MODEL PENAL CODE ON WHICH THIS STATUTE IS BASED HAS SOME RELEVANT COMMENTS
WITH RESPECT TO THAT VERY QUESTION. SECTION 240.1, COMMENT 5B, EXPRESSLY SAYS, QUOTE,
A CANDID MAY BE GUILTY OF BRIBERY FOR RECEIVING A CAMPAIGN CONTRIBUTION IF THE OTHER
REQUIREMENTS OF THE OFFENSE ARE MET. AND THEN IT GOES ON, THE LANGUAGE SAYS AS TO THE
OTHER REQUIREMENTS, QUOTE, THERE SEEMS TO BE NO BETTER WAY TO PUT THE QUESTION THAN TO
ASK WHETHER THE PAYMENT WAS PROFFERED OR RECEIVED AS CONSIDERATION FOR OFFICIAL ACTION
TO BE TAKEN BY THE CANDID AFTER ELECTION. DOESN'T THAT SUGGEST TO IT THAT
THE STATUTE COVERS CANDIDATES? LEO J. HURLEY: YOUR HONOR, I WOULD SUGGEST
IT DOESN'T FOR ANY NUMBER OF DIFFERENT REASONS. AND LET'S START WITH -- AND I JUST WANT TO
MAKE SURE THAT I HAVE THIS IN FRONT OF ME. THE PROVISION AT ISSUE, YOUR HONOR,
ALSO PHRASES PUBLIC OFFICIAL IN THE PRESENT TENSE. CANDIDATES -- OR IT SAYS, IF THE
OTHER REQUIREMENTS FOR THE OFFENSE ARE MET. THE STATE'S POSITION IGNORES THE REQUIREMENT
THAT THE INDIVIDUAL AGREEING TO ACCEPT A BRIBE IS A PUBLIC SERVANT OR OTHER COVERED OFFICIAL
WITHIN THE DEFINITION OF MODEL PENAL CODE SECTION 240.0. AND THAT VERY PARTICULAR POINT
IS REFERENCED AT COMMENT ONE, PAGE FIVE. IT'S AT P A 50 IN THE APPENDIX. SO THE OTHER
REQUIREMENTS I WOULD SUGGEST TO THE COURT REQUIRE THE OTHER ELEMENTS OF THE OFFENSE TO BE
MET, WHICH BY DEFINITION IS THAT THE PERSON IS PRESENT TENSE A PUBLIC SERVANT OR PUBLIC
SEFB VACANT. CHIEF JUSTICE RABNER: NOTWITHSTANDING THE SPECIFIC LANGUAGE
I READ TO YOU THAT SAYS THE CONTRARY? LEO J. HURLEY: NOTWITHSTANDING THAT
SPECIFIC LANGUAGE, YOUR HONOR. CHIEF JUSTICE RABNER: SO THE MODEL PENAL
MODE COMMENTARY IS WRONG? LEO J. HURLEY: A CANDIDATE CAN IN FACT BE LIABLE
UNDER THE STATUTORY SCHEME IF THEY ARE ALSO MEETING THE OTHER QUALIFICATIONS OF THE
OFFENSE. CHIEF JUSTICE RABNER: MOMENTS EARLIER YOU SAID NO PART OF THIS
STATUTE WOULD APPLY TO A CANDID WHO IS NOT IN OFFICE. DO YOU STAND BY THAT?
LEO J. HURLEY: NO PART OF THE STATUTE WOULD APPLY TO A CANDIDATE WHO IS NOT IN OFFICE
OR DOES NOT ACHIEVE OFFICE. CHIEF JUSTICE RABNER: IECHL NOT SURE WHAT THAT
MEANS, THAT LAST PHRASE. LEO J. HURLEY: WELL, A CANDIDATE IS NOT A PUBLIC
SERVANT. CHIEF JUSTICE RABNER: WHAT DOES ACHIEVE PUBLIC OFFICE MEAN?
LEO J. HURLEY: BECOME ELECTED. CHIEF JUSTICE RABNER: BEFORE TAKING THE
OATH? WHEN YOU'RE IN OFFICE IT'S AFTER YOU PUT YOUR HAND ON THE BIBLE OR TAKEN A DECLARATION
OR AFFIRMATION. BUT THAT'S THE MOMENT YOU BECOME THE PUBLIC OFFICIAL, RIGHT? LEO
J. HURLEY: YES, SIR. CHIEF JUSTICE RABNER: SO THE MODEL PENAL CODE LANGUAGE
SUGGESTS THAT AT LEAST PARTS OF THE STATUTE PLAINLY INTENDED TO ENCOMPASS CONDUCT BY
CANDIDATES. DO YOU DISAGREE WITH THAT? LEO J. HURLEY: I DO DISAGREE WITH
THAT. CHIEF JUSTICE RABNER: YOU DISAGREE WITH THE READING OF THE MODEL PENAL
CODE OR THE CONCEPT OF THE MODEL PENAL CODE ITSELF PUT FORTH? LEO J.
HURLEY: I DISAGREE WITH THAT PARTICULAR READING OF THE MODEL PENAL CODE SECTION BECAUSE
YOU CAN GO TO ANOTHER SECTION OF THE MODEL PENAL CODE THAT ACTUALLY DRAWS THE DISTINCTION
BETWEEN THOSE WHO ARE PUBLIC SERVANTS AND THOSE WHO ARE NOT AND THEIR LIABILITY UNDER
THIS STATUTORY SCHEME. CHIEF JUSTICE RABNER: SO LET'S LOOK AT ANOTHER
PART OF THE MODEL PENAL CODE. LEO J. HURLEY: SURE. CHIEF JUSTICE
RABNER: THIS IS WITH RESPECT TO THE NO DEFENSE PROVISION. SECTION 240.1, COMMENT NINE,
FOOTNOTE 127. AND IT SAYS, QUOTE, WHERE A PURPORTED BRIBE GIVER OFFERS A BRIBE TO ONE
WHO IS NOT A PUBLIC SERVANT, THE NO DEFENSE EXCLUSION PERMITS A CONVICTION FOR BRIBERY.
DOES THAT LANGUAGE FROM THE MODEL PENAL CODE LOGICALLY COVER A CANDID FOR
OFFICE? IT APPLIES TO A PERSON WHO IS NOT AND WILL NOT BE A PUBLIC OFFICIAL. WHY WOULDN'T
IT LOGICALLY EXTEND TO AN INDIVIDUAL WHO IS A CANDID? LEO J. HURLEY: BECAUSE
IF READING FOOTNOTE 127, WHICH I BELIEVE YOU'RE CITING TO IN THE MODEL PENAL CODE, IN
CONJUNCTION WITH THE SECTION FROM WHICH THAT FOOTNOTE STEMS, ONCE AGAIN WE'RE IN A
POSITION WHERE THE WORDS -- WHERE EVERYTHING IS IN THE PRESENT TENSE. AND I'LL READ IT TO
THE COURT OR TO YOUR HONOR IF YOU WISH VMENT THE LANGUAGE OF PRECLUSION MAY SEEM WORD
ED 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. CHIEF JUSTICE RABNER:
BUT FOOTNOTES ARE OFTEN ADDED TO TEXT TO CLARIFY. AND I READ FOR YOU THE FOOTNOTE THAT
DOES EXACTLY THAT AND GOES BEYOND THE PRINCIPLE IN THE TEXT TO SPEAK ABOUT INDIVIDUALS
WHO ARE NOT PUBLIC SERVANTS AND SAYS THEY ARE COVERED AS WELL. IT SEEMS
TO ME YOU'RE DISAGREEING WITH SOME OF THE PLAIN LANGUAGE THAT'S CONTAINED IN THE MODEL
PENAL CODE. LEO J. HURLEY: NO, SIR. AND WHAT I WOULD SUGGEST TO YOU, CHIEF,
IS YOU LOOK AT THE NEXT SENTENCE AND IT MAKES MY POINT FOR ME. THIS RESULT IS DEFENSIBLE
ON THE GROUNDS THAT THE BRIBE GIVER IS EXPRESSING A WILLINGNESS TO CORRUPT BRIBE WHERE
THE PURPORTED BRIBE RECEIVER IN SUCH A CASE IS NOT CORRUPTING GOVERNMENT BUT IS ENGAGING
IN A FRAUD. AND THAT'S BECAUSE THE BRIBE RECIPIENT IN THAT SITUATION IS NOT A PUBLIC
SERVANT. IS NOT A PARTY OFFICIAL. IS NOT OTHERWISE COVERED AS REFERENCED EARLIER RE-
LATED TO THAT WHICH WAS ON PAGE FIVE OF THE MODEL PENAL CODE. THERE IS A HISTORY
HERE. AND THE HISTORY IS BORN OUT THROUGH YEARS OF DECISIONAL LAW. THROUGH THE COMMON
LAW. THROUGH 2A 266 AND THROUGH 2C 27-TWO. THERE'S NOT A SINGLE CASE THAT CAN BE CITED
FOR THE PROPOSITION THAT SOMEONE HAS EVER BEEN PROSECUTED OR FOR THAT MATTER FOUND GUILTY.
WITHOUT BEING A PUBLIC SERVANT OR PARTY OFFICIAL. THE KEY TO THE STATUTE
AND THE KEY TO THE PENAL CODE IF READ HOLE HIFK KELLY IS THAT THERE READS TO BE ONE MUST BE
A COVERED ENTITY AT THE TIME OF THE ALLEGED BRIBE. IT HAS TO DO WITH ACTUAL APPARENT
AUTHORITY WARN WARN YOU SAID EARLIER I THINK YOUR WORDS WERE AT THE TIME OF THE EXCHANGE
THE PERSON MUST BE A PUBLIC SERVANT OR PARTY OFFICIAL. THEN IT SEEMED LIKE IN RESPONSE
TO THE CHIEF'S QUESTION YOU WERE SAYING ONE WHO IS A CANDID WHO DOES ULTIMATELY WIN WOULD
STILL BE COVERED BY THE STATUTE AND I'M NOT SURE HOW I UNDERSTAND HOW, BECAUSE AT THE TIME
OF THE CHANGE, THE PERSON, IF THEY ARE ONLY A CANDID, I ASSUME YOU MEAN A CANDID WHO
IS NOT AN INCUMBENT, CORRECT? LEO J. HURLEY: I AM TALKING ABOUT SOMEONE
WHO IS NOT AN INCUMBENT. JUSTICE WAINER APTER: HOW DOES THAT PERSON AT THE
MOMENT A PUBLIC SERVANT. LEO J. HURLEY: THE ARGUMENT I WOULD MAKE IF I WAS
THE PROSECUTOR WOULD BE THAT IT'S AN ONGOING CONSPIRACY. IT'S INCHOATE. ONCE THE PERSON
ACHIEVES THE OFFICE AND THEY DISCHARGE IT, THAT WOULD BE THE POINT IN WHICH THE ACT BECOMES
COMPLETE. JUSTICE WAINER APTER: SO WHEN THE PERSON ACTUALLY UPHELD THEIR
SIDE OF THE BARGAIN, NOT ONCE THEY WERE SWORN IN? LEO J. HURLEY: IN THAT
CONTEXT, YES, YOUR HONOR. JUSTICE WAINER APTER: IT SEEMS LIKE A LOT OF YOUR
ARGUMENT ON THE COMMON LAW, BUT ISN'T IT TRUE THE CRIME IS COMPLETE WHEN THE AGREEMENT
IS REACHED AND NOT WHEN EACH PART IS PERFORMED. LEO J. HURLEY: ALL PRESUMING
UNDER THE COMMON LAW THAT THE PERSON WAS IN A POSITION WHO EITHER HAD THE AUTHORITY OR
WAS ATTENDANT TO SOMEONE WHO HAD THE AUTHORITY TO DISCHARGE THAT WHICH IS THE CORRUPT
BARGAIN AT THE TIME. SABATINO SABATINO DOESN'T THAT CONFLICT WITH THE NO DEFENSE PROVISION?
YOU'RE MAKING A CATEGORICAL POINT. AT THE MOMENT OF THE EXCHANGE OR AGREEMENT, YOU MUST HAVE
THE CANDID INDICATE ACTUALLY BE A PUBLIC OFFICIAL FOR LIABILITY TO ATTACH. BUT THE PHRASE
IN THE NO DEFENSE PROVISION SPECIFICALLY RULES OUT THAT KIND OF ARGUMENT CONCERNING ONE
WHO HAS NOT YET ASSUMED OFFICE. DOESN'T THE NO DEFENSE PROVISION BY ITS LANGUAGE THEN
IMPOSE LIABILITY IN SOME SITUATIONS AT LEAST WHERE THE RECIPIENT OF THE BRIBE OR
CONSIDERATION HAS NOT YET ASSUMED OFFICE? LEO J. HURLEY: IN THIS INSTANCE,
THERE WAS NO OFFICE TO ASSUME. AND NEVER WAS AN OFFICE TO ASSUME. SABATINO SABATINO
BUT YOUR ARGUMENT THOUGH IS YOU MUST BE ABLE TO DELIVER ON THE BRIBE. AND AT THE TIME
THAT THE CONVERSATION -- THE AGREEMENT TAKES PLACE. AND THAT WOULD BE TRUE OF SOMEBODY
THAT HAD NOT ASSUMED OFFICE. THERE'S HERE A SPECIFIC RECOGNITION THAT THERE CAN BE
LIABILITY OF SOMEONE WHO IS NOT IN THE JOB YET. LEO J. HURLEY: ON THE PART
OF THE BRIBE GIVER, NOT ON THE PART OF THE BRIBE RECIPIENT. AND WHAT I WOULD SUGGEST
TO YOU, YOUR HONOR, IS THAT THAT'S WHERE THE APPELLATE DIVISION GOT IT WRONG AND THAT'S
WHERE THE STATE IS NOT BEING TRUE TO THAT WHICH IS WRITTEN INTO THE MODEL PENAL CODE,
BECAUSE IT'S ABUNDANTLY CLEAR HERE IF YOU READ THIS PROVISION THAT IT SAYS IT IS NO DEFENSE
UNDER THIS SECTION THAT A PERSON WHOM THE ACTOR SOUGHT TO INFLUENCE, MEANING THE ACTOR
IS THE BRIBE GIVER, IS NOT QUALIFIED TO ACT IN THE DESIRED WAY. THE STATE
WISHES TO HAVE THAT PROVISION APPLIED BOTH WAYS. BUT THAT'S NOT HOW IT READS. AND THE
REASON IT READS THE WAY IT DOES IS BASED UPON THE VERY COMMON SECTION THAT THE CHIEF BROUGHT
UP RE-LATED TO HOW THAT PROVISION IS TO BE INTERPRETED. THERE ARE INSTANCES WHERE A
BRIBE GIVER CAN BE HELD LIABLE, BUT THE BRIBE RECIPIENT CANNOT. WHERE THE BRIBE RECIPIENT
IS NOT SOMEONE WHO IS OTHERWISE COVERED BY THE STATUTORY SCHEME, THE COMMENT MAKES CLEAR
THAT IN THOSE INSTANCES AND ONLY IN THOSE INSTANCES DOES IT WORK THAT WAY.
CHIEF JUSTICE RABNER: COULD I ASK YOU TO CLARIFY SOMETHING. I WANT TO MAKE SURE I UNDERSTAND.
CANDID FOR OFFICE ACCEPTS A PAYMENT. NOT YET ELECTED. NOT COVERED BY THE STATUTE.
CORRECT? LEO J. HURLEY: CORRECT. CHIEF JUSTICE RABNER: CANDID
FOR OFFICE NOT YET HAVING TAKEN THE OATH WINS AND TAKES MONEY AT THAT POINT BEFORE OFFICIAL
LY BECOMING A PUBLIC SERVANT. DOES THE STATUTE COVER THAT INDIVIDUAL? LEO J.
HURLEY: I WOULD ARGUE THAT IT DOES. BECAUSE HE OR SHE IS IN A POSITION WHERE THERE IS
AN OFFICE TO ACTUALLY ASSUME. CHIEF JUSTICE RABNER: WHERE DOES THE STATUTORY
LANGUAGE HELP YOU WITH THAT? LEO J. HURLEY: NOT YET ASSUMED OFFICE. THERE
WOULD HAVE TO BE AN OFFICE TO ASSUME. IT'S NO DIFFERENT THAN A POLICE OFFICER.
CHIEF JUSTICE RABNER: YOU JUST TOLD US THAT PROVISION APPLIES TO THE BRIBE GIVER.
LEO J. HURLEY: IF I MAY, CHIEF, IN THE PROVISION THAT I READ FROM THE MODEL PENAL
CODE, IT DRAWS ONE SPECIFIC CARVE OUT AND DISTINCTION. IT INDICATES THAT IT CAN BE
APPLIED MUTUALLY AND SHOULD BE APPLIED MUTUALLY. WHEN ALL OF THE OTHER PREREQUISITES
ARE CHECKED OFF. CHIEF JUSTICE RABNER: WHAT IF YOU HAVE A BRAZEN CANDID
WHO DOESN'T HAVE SCRUPLES THAT WE MIGHT ADMIRE, WHO GETS ELECTED, WINS THE ELECTION AND
THEN SENDS THE WORD OUT, THIS IS A GOOD TIME FOR YOU TO APPROACH ME WITH ENVELOPES FULL
OF CASH TO TRY TO INFLUENCE MY DECISIONS AND HAVING RECEIVED THOSE ENVELOPES SAYS, NO
THANKS. I DECLINE TO TAKE THE SEAT. STATUTE DOESN'T COVER THAT ACCORDING TO YOUR
INTERPRETATION? LEO J. HURLEY: I THINK WHAT WE'RE TALKING ABOUT THERE, CHIEF,
IS A VERY CLOSE QUESTION. BUT I GO BACK TO THE LANGUAGE FROM FOOTNOTE 127, WHERE THAT
APPEARS TO BE MORE ALONG THE LINES OF A SPECIES OF FRAUD THAN A CORRUPTION OF THE OFFICE.
CHIEF JUSTICE RABNER: STAY WITH THE LANGUAGE OF THE STATUTE HERE. IS THAT
PERSON COVERED BY THE STATUTE ACCORDING TO THE WAY YOU READ IT? LEO J. HURLEY:
YES. CHIEF JUSTICE RABNER: EVEN THOUGH HE HAS NEVER TAKEN THE OFFICE.
LEO J. HURLEY: HE HAS NOT YET ASSUMED OFFICE. CHIEF JUSTICE
RABNER: AND HOW IS IT THAT THAT CANDID IS COVERED BUT NOT OTHER CANDIDATES? LEO
J. HURLEY: THERE IS AN OFFICE TO ASSUME. JUSTICE FASCIALE: HE WAS ELECTED.
LEO J. HURLEY: CORRECT. THERE WAS AN OFFICE TO ASSUME AT THAT POINT.
JUSTICE PIERRE-LOUIS: IT'S MY UNDERSTANDING THAT -- ALL RIGHT. SOMEBODY WHO'S BEEN
ELECTED, OBVIOUSLY. THERE MIGHT BE 50 CANDIDATES FOR A POSITION. YOUR ARGUMENT IS NOT
ALL OF THOSE CANDIDATES WOULD FALL WITHIN THE STATUTE BECAUSE NONE OF THEM HAVE BEEN
ELECTED AND THERE'S NO OFFICE TO ASSUME. THE NOT YET ASSUMED OFFICE FOLKS ON THAT PERIOD
OF TIME BETWEEN SOMEONE BEING ELECTED AND -- LEO J. HURLEY: PRECISELY, YOUR
HONOR. JUSTICE PIERRE-LOUIS: BUT WHAT I WANT TO UNDERSTAND, IF THAT'S YOUR
UNDERSTANDING THAT THAT INDIVIDUAL WOULD BE COVERED BY THE STATUTE, WHY THEN DO YOU THINK
THE NO DEFENSE PROVISION DOES NOT APPLY TO THAT INDIVIDUAL? IT SOUNDED LIKE EARLIER YOU
SAID THE NO DEFENSE PROVISION DOESN'T APPLY TO SOMEONE WHO HAD YET ASSUMED OFFICE BECAUSE
IT ONLY APPLIES TO THE BRIBE GIVER, BUT IF YOU BELIEVE THAT THE INDIVIDUAL WHO'S BEEN
ELECTED BUT TAKES A BRIBE IN THE INTERIM PRIOR TO TAKING THE BOEJ FALLS WITHIN THE STATUTE,
THEN THAT NO DEFENSE PROVISION SHOULD APPLY. LEO J. HURLEY: YOUR HONOR,
I THINK THE BEST WAY TO DESCRIBE OUR POSITION ON THIS AND OUR ARGUMENTS HERE ARE BY SEEKING
TO AND CHANNELING THE ANALYSIS THAT WAS USED BY THE CHIEF JUDGE IN MANZO. WHAT THE JUDGE
SAID IN MAN'S SEE, UNLESS A CANDID FOR PUBLIC OFFICE WHO IS THE RECIPIENT OF THE BRIBE
ACTUALLY TAKES OFFICE, THE HARM COMMITTED IS NOT DELINEATED TO A PRIVATE HARM.
JUSTICE WAINER APTER: WHY IS THERE NO PUBLIC HARM IF A CANDID FOR OFFICE MAKES A PROMISE
THAT IN EXCHANGE FOR CASH THEY WILL TAKE CERTAIN OFFICIAL ACTIONS ONCE ELECTED. THAT
DOES NOT SOUND LIKE A PRIVATE FRAUD AND SOUNDS EXACTLY LIKE WHAT WE'RE TALKING ABOUT.
LEO J. HURLEY: BUT WE'RE BACK TO THE PORTIONS OF THE STATUTE THAT DECLARE
EVERYTHING TO BE IN THE PRESENT TENSE. WHILE SOMEONE IN THE LEGISLATURE MIGHT ENVISION
THAT AS BEING A PUBLIC HARD, IN SOME OTHER SET OF FACTS, IN SOME OTHER SET OF LAW, THAT'S
NOT THE LAW THAT'S ON THE BOOKS. THE LAW THAT'S ON THE BOOKS IS SUCH THAT BY WAY OF EXAMPLE,
PARTY OFFICIAL AS DEFINED IS IN THE PRESENT TENSE. PUBLIC SERVANT AS DEFINED IS IN THE
PRESENT TENSE. CHIEF JUSTICE RABNER: CAN I TRY ONE OTHER EXAMPLE WITH
YOU. THIS SAME NEFARIOUS CANDID THAT WE WERE TALKING ABOUT, INSTEAD SENDS THE WORD OUT
DURING THE CAMPAIGN SEASON, DISCRETELY, TO A FEW INDIVIDUALS, I WILL GIVE YOU THIS POSITION,
THIS BENEFIT, I WILL GIVE YOU THIS VOTE. NOW IS THE TIME TO COME TO ME WITH ENVELOPES
FULL OF CASH. HAVING COLLECTED THOSE ENVELOPES, STEPS DOWN FROM THE ELECTION THE DAY BEFORE.
COVERED BY THIS BRIBERY STATUTE? LEO J. HURLEY: NO, NOT COVERED. AND I
WOULD USE THE -- CHIEF JUSTICE RABNER: ISN'T THAT AN ABSURD READING OF THE STATUTE? LEO J. HURLEY: I DON'T BELIEVE SO. BECAUSE IT REQUIRES -- THE
AT THE TIME, MANY YEARS AGO HOWARD STERN RAN FOR MAYER OF NEW YORK. DID ANYONE REASONABLY
ANTICIPATE HOWARD STERN WOULD HAVE AN OFFICE TO ASSUME? IF HOWARD STERN HAD SOLICITED
BRIBES, DOES THAT MEAN HE CORRUPTED THE PROSPECT? HE NEVER CORRUPTED THE OFFICE ITSELF
AND THE KEY IS THE OFFICE ITSELF. BECAUSE THE WAY THAT THIS IS -- THE WAY THE STATUTE
IS DRAFTED IT DOESN'T JUST APPLY TO PEOPLE CONTESTING OFFICE. IF YOU GO THROUGH THE
HISTORY OF THE STATUTE, IT APPLIES TO ANY SPECIES OF PUBLIC SERVANT. IT COULD BE COPS,
IT COULD BE FIREMEN, IT COULD BE THE DOG CATCHER. ALL OF WHAT WE ARE TALKING
ABOUT HERE IS ASPIRATIONAL IN NATURE. SOMEONE WANTS TO BE SOMETHING. THAT DOESN'T
NECESSARILY MEAN THEY'RE EVER GOING TO GET THERE. TO USE AN EXAMPLE, I DON'T KNOW IF ANYONE
ON THE COURT IS A BASKETBALL FAN, BUT WITH THE LAST NAME HURLEY AND CLOAK UP IN HUDSON
COUNTY -- I'M GETTING THERE. IT WAS ASPIRATIONAL FOR ME FROM THE TIME THAT I WAS ABOUT
TEN YEARS OLD TO EITHER WANT TO GO BE A POINT GUARD AT DUKE OR U COULDN'T. BECAUSE I
ASPIRED TO BE THOSE THINGS. I DID EVERYTHING I COULD TO GET TO THE POINT WHERE I CONVINCED
FOLKS THAT SOME DAY I WAS GOING TO BE THAT. WELL, AS I STAND HERE BEFORE
THIS COURT, I DIDN'T GO TO SETON HALL. I DIDN'T GO TO DUKE. I WENT TO GEORGETOWN AND
THE ONLY BASKETBALL I EVER PLAYED WAS ON AN INTERMURAL TEAM. SIMPLY BECAUSE I ASPIRED
TO ACHIEVE A DESIGNATION, A PLACE AS SOMETHING, DOESN'T MEAN I EVER GOT THERE. I NEVER
HAD THE TRAPPINGS OF AN OFFICE OF WEARING NUMBER 11. JUST LIKE IN THIS CASE OR IN OTHER
CASES, THERE ARE 12-YEAR-OLD CHILDREN ACROSS THE STATE OF NEW JERSEY WHO SAY I WANT TO BE
A COP. THAT DOESN'T MEAN THAT THEY EVER ASCEND TO THE OFFICE. IT DOESN'T MEAN THEY EVER
ASSUME THE OFFICE. THAT'S THE POINT ABOUT THE ASSUMPTION OF OFFICE LANGUAGE.
JUSTICE WAINER APTER: WHERE IN THE STATUTE DOES IT TALK ABOUT EVEN ANY OFFICE
JUST WHEN WE'RE TALKING ABOUT D? LEO J. HURLEY: IT'S IN THE NO DEFENSE
SECTION WHICH IS LIFTED DIRECTLY FROM THE MODEL PENAL CODE AND THE LANGUAGE THAT'S USED
IS BECAUSE HE HAD NOT YET ASSUMED OFFICE. THERE WOULD HAVE TO BE AN OFFICE TO ASSUME.
JUSTICE WAINER APTER: THEN IT SAYS OR LACK OF JURISDICTION OR FOR ANY OTHER
REASON SO IT'S NOT ONLY BECAUSE HE HAD NOT YET ASSUMED OFFICE OR FOR ANY OTHER REASON
IS VERY BROAD. LEO J. HURLEY: IT SEEMS ALMOST VOID FOR VAGUENESS BROAD.
THE PROSECUTOR COULD INSERT ANY REASON THEY WISH. AS TO THE JURISDICTION PIECE WHERE
THE WORDS LACKED JURISDICTION, THAT SPEAKS TO THE ENTIRE LINE OF DECISIONAL LAW THAT GOES
BACK TO THE 2A SECTION AND TO 272. PERFECT CASES IN THIS REGARD. CASES LIKE SHERWIN,
LIKE FERRO, LIKE SCHENG. ALL OF CHL INVOLVE SITUATIONS WHERE THE RE-ZIP YENLT OF THE
BRIBE WAS IN FACT A PUBLIC SERVE SANITY BUT DIDN'T HAVE JURISDICTION WITHIN THE
GOVERNMENT TO AFFECT THOSE THINGS. THE LACK OF JURISDICTION DEALS WITH ONE WHO IS ALREADY
WITHIN THE GOVERNMENT. AND THE POINT OF THAT AND THE REASON FOR THAT FROM A THEORETICAL
PERSPECTIVE IS THAT SOMEONE COULD APPROACH A PRIVATE CITIZEN AND INDICATE THAT BY VIRTUE
OF THEIR OFFICE THAT THEY ARE IN THEY HAVE THE IMMEDIATE ABILITY TO AFFECT THAT CHANGE
BASED ON THEIR POSITION. JUSTICE WAINER APTER: HOW DOES THAT WORK WITH STATE
VERY FERRO WHERE THE DEFENDANT WAS NOT ACTUALLY IN ANY GOVERNMENT POSITION. LEO
J. HURLEY: IT'S A GREAT QUESTION, JUSTICE. AND ULTIMATELY IN THE FERRO CHAIN THERE IS
SOMEONE WHO IN FACT HAD THAT AUTHORITY. WHAT MR. SAL LER KNOW IN FERRO, WHICH, UNFORTUNATELY,
YET ANOTHER HUDSON COUNTY CASE, MR. SALERNO WAS A PARTY OFFICIAL IN JERSEY CITY AND SOMEONE
WENT TO HIM AS A PARTY OFFICIAL WHO BELIEVED THAT HE HAD AUTHORITY TO DO SOMETHING AND
SAID, CAN YOU HELP ME GET THIS DONE. THROUGH SOMEONE AT THE COURTS. I NEED A CONTINUANCE.
AND THAT PERSON RE-LIED UPON HIS ABILITY IN THE PRESENT AND HIS ACCESS TO SOMEONE IN
GOVERNMENT AT THAT TIME TO GET THE RESULT. THAT'S THE POINT IN FERRO. IN
THE CHAIN IN FERRO, IN THE PURPORTED BRIBERY CHAIN, THERE IS SOMEONE WHO AT THAT PRESENT
MOMENT, THOUGH IT MAY NOT BE THE PERSON WHO'S RECEIVING THE BRIBE, COULD IN FACT IN THE
VIEW OF THE PERSON GIVING THE BRIBE AFFECT THAT RESULT. AND THAT'S THE POINT.
JUSTICE WAINER APTER: BUT THERE'S NO ACTUAL LANGUAGE IN FERRO THAT POINTS OUT IT WAS AT
THAT EXACT MOMENT IN TIME AND IT WAS ALL CONTINGENT ON BEING IN THE PRESENT TENSE
ESPECIALLY GIVEN THE COMMON LAW AS WE DISCUSSED EARLIER THAT A CRIME IS COMPLETE WHEN THE
AGREEMENT IS REACHED AND NOT WHEN EACH PART OF THE BARGAIN IS PERFORMED AND ALSO THAT
A -- THAT CONSIDERATION CAN BE FOR SOME FUTURE PROMISE. LEO J. HURLEY:
I DON'T NECESSARILY AGREE WITH YOU. AND I'M QUOTING FROM PAGE 361 OF FERRO. WHEN I STATE
THAT THE ENACT NLT OF N.J.S.A. 2A 936 CAN THUS FAIRLY BE CONSIDERED TO HAVE COMPLETED
A LEGISLATIVE SCHEME WHICH HAS BECOME APPARENT OVER THE YEARS. I.E. TO PENALIZE THOSE
IN AN APPARENT POSITION OF TRUST, PRESENT TENSE, WHO WOULD UTILIZE THEIR POSITION OR RAPE
RELATIONSHIP TO INFLUENCE SOME GOVERNMENT ACTIVITY OF A PUBLIC OFFICIAL. IT'S WRITTEN
IN THE PRESENT TENSE. IT'S NO DIFFERENT THAN ANY OF THE OTHER DECISIONAL LAW.
ULTIMATELY WHAT THE STATE IS ATTEMPTING TO DO HERE AND WHERE THE APPELLATE DIVISION GETS
THIS WRONG IS THAT THIS IS -- NOT WHERE THERE'S A FUTURE ACT THAT IS TO BE DONE BY SOMEONE
IN THE GOVERNMENT. SOMEONE IS IN THE FUTURE GOING TO GET TO POTENTIALLY A GOVERNMENT
POSITION MAYBE AT SOME POINT IN TIME. TO USE THE LANGUAGE OF THE JUDGE IN SPEAKING ABOUT
OFFICIAL DUTIES, OF WHICH MY CLIENT HAD NONE AT THE TIME OF THE INDICTMENT, AND I'M QUOTING,
THE DEFENDANT NEVER HAD ANY OFFICIAL DUTIES -- I'M SORRY. GIVEN THE RULE OF STRICT KRUKZ
APPLICABLE TO THE PROVISIONS OF THE PENAL CODE, IT IS TOO SPECULATIVE TO INTERPRET THE
PROVISION AS STATING AS CONSIDERATION FOR THE PERFORMANCE OF OFFICIAL DUTIES. CANDIDATES
FOLLOWING ELECTION OR NOMINATION TO PUBLIC OFFICE, WHETHER LIKELY OR UN-LIKELY AT ANY
FUTURE POINT IN TIME. EVERYTHING ABOUT THE STATUTORY SCHEME HERE SURROUNDING
BRIBERY AND THE DECISIONAL LAW THAT'S AT PLAY THROUGH ALL OF THE CASES THAT I'VE CITED
DEALS WITH THE STRUCTURAL RELATIONSHIPS BETWEEN THE PARTIES. IN THIS INSTANCE, THERE IS
NO INDIVIDUAL IN THE ALLEGED BRIBERY CHAIN WHO HAS ANY POWER AT THAT TIME OR IS SAYING
THAT THEY HAVE ACCESS TO POWER, TO SOMEONE IN POWER AT THAT TIME. I'M RE-MINDED OF THE
LINE FROM THE DANCER CASE WHICH IS A THIRD CIRCUIT CASE WHERE THE COURT IS SPEAKING IN
DANCER ABOUT CANDIDATES AND WHAT CANDIDATES WHO THE GENTLEMAN ON THE PARKING AUTHORITY
IN FORT LEE IS THREATENING TO RUN TO GET TO A RESULT. AND THE QUOTE FROM THE THIRD CIRCUIT
WAS, AS TO THE CANDIDATES AT THE TIME, THEY OBVIOUSLY NO AUTHORITY WHATSOEVER IN THESE
MATTERS PRIOR TO THEIR ELECTION. AND NOW WE'RE BACK TO THE COMMENTARY SECTION OF THE
MP C. THIS IS ABOUT WHAT AUTHORITY EXISTS IN AN INDIVIDUAL AT THE TIME. AND WHAT IS
BEING ASKED FOR BY THE STATE AND THE POSITION THAT THE APPELLATE DIVISION HAS TAKEN HERE
READS OUT THE REQUIREMENT, A, THAT SOMEONE BE CONTEMPORANEOUSLY WITHIN ONE OF THE
DEFINITIONAL SECTIONS AT THE TIME AND EXPANDS IT BEYOND THE REACH OF ANY PRIOR PROSECUTION
OR INTERPRETATION OF THE STATUTE OR ITS PREDECESSORS. THAT'S NOT WHAT THE POINT OF
THE SCHEME WAS OR IS. MR. O'DONNELL HAD NO OFFICIAL DUTIES. HE NEVER ACCEDED TO
OFFICIAL DUTIES. HE'S NOT A PUBLIC SERVANT. HE'S NOT A PARTY OFFICIAL. HE'S A PRIVATE
CITIZEN. AND TO THE EXTENT THAT THESE ALLEGATIONS EXIST, I GO BACK TO THE LANGUAGE
OF THE JUDGE IN MANZO. SUMMARIZING. THAT DOES NOT MAKE THIS SOMETHING THAT SHOULD BE
FROWNED UPON MORALLY, BUT IT ALSO DOESN'T MAKE IT ILLEGAL UNDER THE STATUTORY SCHEME AS
WRITTEN. I RE-MIND THE COURT THAT THIS SECTION OF THE NEW JERSEY CODE IS
LIFTED ALMOST VERBATIM FROM THE MP C. AND THERE'S TWO POINTS I WANT TO MAKE ABOUT THAT,
BECAUSE THE MP C, AS THE COURT IS WELL AWARE, IS A MODEL SECTION. STATES AROUND THE COUNTRY
IN VARIOUS FORMS AND FASHIONS HAVE ADOPTED IN SUM AND IN SUBSTANCE WITH AMENDMENTS THIS
VERY SECTION. THERE ARE NO LESS THAN TWO STATES, 20 THAT HAVE RECOGNIZED THROUGH THEIR
OWN AMENDMENT PROCESSES THAT CANDIDATES ARE NOT COVERED UNDER THE STATUTE AS WRITTEN BY
THE MP C AND HAVE SPECIFICALLY ADOPTED PROVISIONS THAT BRING CANDIDATES FOR OFFICE WITHIN
THE AMBIT. CERTAINLY THE LEGISLATURE OF THIS STATE, WHO WRITES THE CRIMINAL LAWS, OF
COURSE, IS WELL AWARE OF THE DISTINCTIONS BETWEEN CANDIDATES FOR OFFICE AND THOSE WHO
HOLD THE OFFICE. THERE ARE NO LESS THAN FOUR STATUTORY PROVISIONS THAT ARE CITED IN OUR
BRIEF WHERE THE LEGISLATURE KNEW WELL ENOUGH TO DRAW A DISTINCTION WITHIN THE APPLICABILITY
OF THOSE STATUTES BETWEEN THOSE WHO ARE CANDIDATES AND THOSE WHO IN FACT ARE IN
OFFICE. AND PERHAPS MOST IMPORTANTLY, PERHAPS MOST IMPORTANTLY, THIS -- THE LEGISLATURE
OF THIS STATE FOUR TIMES IN THE PAST ATTEMPTED TO PASS REMEDIAL LEGISLATION THAT WOULD
CHANGE THE STATUTE. JUSTICE WAINER APTER: BUT WEREN'T ALL THOSE AFTER THE
DECISION IN MANZO? LEO J. HURLEY: OF COURSE. AND WHAT I WOULD SUGGEST
TO YOUR HONOR IS THE FIFTH ONE IS THE MOST IMPORTANT ONE. AND WHY? IT'S THE MOST
IMPORTANT ONE BECAUSE THE LEGISLATURE, THOUGH VETOED BY THE GOVERNOR ON A CONDITIONAL VETO,
RECOGNIZED THE INFIRMITIES IN THE STATUTE BY INCLUDING NEW SECTION THAT'S WOULD ACTUALLY
BRING CANDIDATES WITHIN THE AMBIT OF THE STATUTE. JUSTICE WAINER APTER:
BUT IF THE LEGISLATURE AFTER A DISTRICT COURT DECISION HOLDING THAT THE STATUTE DOES NOT
REACH A PARTICULAR CIRCUMSTANCE, WHY IS THE LEGISLATURE ICON THE LEGISLATURE JUST BE
SAYING, THAT DISTRICT COURT DECISION WAS WRONG AND HERE WE ARE GOING TO AMEND THE STATUTE
JUST TO MAKE SURE THAT IT IS EXPLICITLY CLEAR THAT THAT DECISION WAS WRONG AND THAT NO
ONE SHOULD FOLLOW THAT DECISION IN THE FUTURE? LEO J. HURLEY: WHAT I WOULD
SUGGEST IS THE VOTE OF THE LEGISLATURE IN THE MOST RECENT PIECE OF LEGISLATION THAT HAS
MOVED THROUGH IS AN EXPRESSED AND IMPLICIT ACKNOWLEDGEMENT OF THE INFIRMITIES WITHIN THE
STATUTE. JUSTICE FASCIALE: DID THE LEGISLATIVE HISTORY ON THE MOST RECENT
ONE INDICATE WHETHER THE BILL WAS CLARIFYING? LEO J. HURLEY: THE SENATE
-- THE REASON THAT IT WAS SENT BACK, I BELIEVE, ON THE CONDITIONAL VETO WAS BECAUSE THAT
PROVISION WAS NOT INCLUDED. IT WAS NOT CLARIFIED. JUSTICE WAINER
APTER: WHAT THE GOVERN SPECIFICALLY STATED, THAT HE BELIEVES THAT 2C-22 HAD ALWAYS COVERED
CANDIDATES FOR OFFICE AND THAT MANZO WAS WRONG. LEO J. HURLEY: IF I MAY
WITH ALL DUE RESPECT TO GOVERNOR MUROSKI FAY, HIS OWN SUBJECTIVE BELIEVES ABOUT WHAT'S
IN THE STATUTE IS VERY DIFFERENT THAN WHAT THE LEGISLATURE -- CHIEF JUSTICE
RABNER: CAN YOU POINT OUT TO CASE LAW THAT SAYS WE SHOULD RELY ON LEGISLATION THAT IS
NOT ENACTED? LEO J. HURLEY: YOUR HONOR, I CAN'T POINT YOU TO ONE THAT SAYS
-- CHIEF JUSTICE RABNER: BECAUSE IT DOESN'T EXIST. LEO J. HURLEY:
I AGREE WITH YOU, YOUR HONOR. BUT WHAT I AM SIMPLY STATING BEFORE THIS COURT IS THAT
YOU CAN, THE COURT CAN RELY ON IT AS EVIDENCE OF THE EXISTENCE OF INFIRMITY. PARTICULARLY
GIVEN THE LINE OF LAW THAT INDICATES THAT A LEGISLATURE DOES NOT ACT IN AN I THAT IS
SUPERFLUOUS. I THINK IT DOES, JUSTICE. AND I WANT TO TALK ABOUT THAT A
LITTLE BIT. AND I WANT TO FRAME IT IN VERY, VERY BASIC TERMS. WE DON'T JUST HAVE A TRIAL
COURT JUDGE IN THE STATE OF NEW JERSEY WHO HAS TAKEN A RADICALLY DIFFERENT VIEW OF THE
INTERPRETATION OF THE PLAIN LANGUAGE OF THE STATUTE FROM THE APPELLATE DIVISION. WE HAVE
ACHIEVE JUDGE FROM THE FEDERAL DISTRICT COURT WHO HAS TAKEN THAT SAME VIEW. AND THE
POINT OF THE RULE IS A NUMBER OF THINGS. FIRST AND FOREMOST, IF THERE'S ANY BELIEF
WHATSOEVER THAT THE STATUTE COULD BE SUBJECTED TO AN INTERPRETATION THAT IS -- LET ME TAKE
A STEP BACK. FIRST OF ALL, IF THERE'S ANY AMBIGUITY UNDER THE RULE OF 11 NITTY, THE
STATUTE IS COULD BE CONSTRUED IN FAVOR OF THE DEFENDANT. HERE WE HAVE MULTIPLE COURTS
OVER THE SPAN OF TEN YEARS WHO INDICATED A CONTRARY VIEW OF THE PLAIN LANGUAGE OF THE
STATUTE TO THAT ESPOUSED BY JUDGE THE JUDGE AND THE THREE JUDGE PANEL IN THE APPELLATE
DIVISION. QUITE SIMPLY, OBJECTIVELY REASONABLE INDIVIDUALS OF REASONABLE INTELLIGENCE
HAVE COME TO A VERY, VERY DIFFERENT VIEW OF THE IMPORT AND DUE PUBLIC APPLICABLE OF THIS
STATUTE TO THIS SET OF FACTS. JUSTICE WAINER APTER: ARE YOU ARGUING EVERY
TIME ONE JUDGE INTERPRETS A STATUTE IN A PARTICULAR WAY, THAT RULE SHOULD APPLY.
LEO J. HURLEY: I'M NOT ASKING THIS COURT TO HARD RULE BASED ON THOSE FACTS. I'M
SIMPLY STATING THAT IF THE ANALYSIS, WHICH IT IS, REQUIRES AN OBJECTIVELY REASONABLE INDIVIDUAL
OF REASONABLE KNOWLEDGE TO COME TO -- COULD COME TO TWO DIFFERENT CONCLUSIONS RELATED
TO THE STATUTE, WELL, JUSTICE WAINER APTER, IT'S RIGHT IN FRONT OF YOU. WE HAVE A TRIAL
JUDGE IN A STATE COURT, A TRIAL JUDGE IN A FEDERAL COURT TEN YEARS AGO IN A PUBLISHED
DECISION COMING TO DIFFERENT CONCLUSIONS AND I MIGHT ADD IN VERY PUBLIC FASHION IN 2012
AS TO WHAT THE METES AND BOUNDS OF THE STATUTE ARE. I'M MINDFUL OF THE FACT THAT THE
GOAL AND THE PLACE OF THE FEDERAL DISTRICT COURT IS OF COURSE TO MAKE IN THAT INSTANCE
A DETERMINATION ABOUT WHAT THEIR REASONABLE BELIEF OF WHAT THIS SUPREME COURT MIGHT DO
IF CONFRONTED WITH THAT SAME ISSUE. SABATINO SABATINO HYPOTHETICALLY, WHETHER
IT'S THIS CASE OR ANOTHER, WHY SHOULDN'T RELIANCE ON MANZO BEAR ON THE VALIDITY OF THE
STATUTE BUT SOMETHING THE DEFENDANT CAN PUT FORWARD ON -- I RE-LIED ON MAN'S SEE SEW,
ET CETERA, ET CETERA, AND THAT'S WHY WE WENT FORWARD WITH THIS CONDUCT OR THIS BEHAVIOR
TOOK PLACE. SO ISN'T THAT A PLACE WHERE PRINCIPLES OF RELIANCE COULD BE BROUGHT TO
BEAR RATHER THAN INTERPRETING THE STATUTE IN THE FASHION THAT SOME OF US MIGHT BELIEVE
ISN'T A CORRECT ONE? LEO J. HURLEY: RESPECTFULLY I BELIEVE THE DECISIONAL
LAW DEALS VERY SPECIFICALLY WITH THE FACT THAT YOU CAN'T SHIFT THE BURDEN OVER TO A CRIMINAL
DEFENDANT TO HAVE TO ARTICULATE -- SABATINO SABATINO IN TERMS OF MENS REA,
STATE OF MIND. HYPOTHETICALLY IT COULD BE PART OF IT. LEO J. HURLEY: IF
YOU TRIED THE CASE, ONE COULD ARGUE YOU COULD DO THAT THAT BUT YOU WOULD HAVE TO WAIVE
YOUR RIGHTS. I'M SAYING ON ITS FACE THE DIVERGENT OPINIONS HERE IN THE PUBLIC FASHION
AND THE DRAMATIC DIVERSION OF THE OPINIONS IS EVIDENCE IN ITSELF THAT THERE IS AN AMBIGUITY
AND AN UN-SETTLED FOR WHICH THE RULE OF 11 NITTY. IF NOT IN THIS CASE, THEN WHEN, I
WOULD SUGGEST. JUSTICE SOLOMON: IT SEEMS LIKE YOUR ARGUMENT IS THERE MAY HAVE
BEEN CRIMES I COMMITTED. BUT I DIDN'T COMMIT BRIBERY. LEO J. HURLEY: THE
ARGUMENT THAT I'M MAKING -- I UNDERSTAND WHAT YOU'RE SAYING. JUSTICE SOLOMON:
IT SOUNDS LIKE THAT'S THE ARGUMENT. I'M NOT SAYING THAT'S A BAD ARGUMENT.
LEO J. HURLEY: MY ARGUMENT HERE IS THAT THERE'S AN INDICTMENT. THEY CHARGED SOMETHING
UNDER THE BRIBERY STATUTE THAT THEY HAVEN'T SPECIFIED. THE BRIBERY STATUTE IS NOT
WITHOUT MEETS, BOUNDS, LIMITS AND DEFINITIONS. ALL OF WHICH ARE DEFINED BY THE LEGISLATURE.
WE CAN AGREE THAT CANDID, CAI CANDIDATE IS NOT APPEAR IN THE SCHEME WHAT IS A CANDID.
IT'S SOME PRIVATE INDIVIDUAL WHO SIMPLY AS SPIRES TO BECOME A PUBLIC SERVANT. THAT DOESN'T
GIVE HIM POWERS, OFFICIAL DUTIES. IT DOESN'T GIVE HIM AUTHORITY TO DO ANYTHING. AND
WHEN YOU LOOK AT THAT THROUGH THE PARADIGM OF THE LEGISLATIVE HISTORY AND THE PLAIN LANGUAGE
OF THE STATUTE, WHICH I WOULD SUGGEST AGAIN EVERYTHING ABOUT THIS STATUTE IS WRITTEN IN
THE PRESENT TENSE AS IT APPLIES TO WHETHER OR NOT SOMEONE IS A PUBLIC SERVANT, IT SIMPLY
DOESN'T APPLY. IF SOMEONE ELSE WANTS TO MAKE THE ARGUMENT THAT MY CLIENT COMMITTED CRIMES,
THEY CAN MAKE THAT ARGUMENT. BUT THE PURPOSE HERE TODAY I WOULD SUGGEST IS TO DETERMINE
WHETHER OR NOT ON THIS SET OF FACTS THE BRIBERY STATUTE ACTUALLY APPLIES HERE AND I WOULD
SUGGEST THAT IT DOESN'T. I GO BACK -- I KEEP TALKING ABOUT THE PRESENT SENTENCE,
JUSTICE SOLOMON, AND I WANT TO GO BACK TO ANOTHER PORTION OF THE HISTORY HERE. AND THE
REASON I WANT TO GO BACK IS BECAUSE I REALLY WANT TO EMPHASIZE IS IT HAS ALWAYS BEEN A
PRESENT TENSE ISSUE RE-LATED TO HOLDING A STATUS AS A PUBLIC SERVANT OR PARTY OFFICIAL.
IF YOU JUST GIVE ME ONE MOMENT. THE STATE HAS CLAIMED THAT THE N.J.L. R
C COMMENTARY TO THE DISCUSSION OF COMMON LAW BRIBERY STATES THAT THE OFFENSE IS
RECIPROCAL. WHENEVER IT'S A CRIME TO RECEIVE A BRIBE IT'S A CRIME TO TENDER ONE. BUT
THAT PROVISION DOESN'T STATE IT'S A CRIME TO RECEIVE ONE. IT'S TWO DIFFERENT THINGS.
AND, IN FACT, WHEN YOU WORK YOUR WAY THROUGH THAT PROVISION -- AND IF YOU JUST GIVE ME
A QUICK SECOND. AND WHAT PRECEDES THAT, IT SAYS I -- THE PROVISION, THE FINAL REPORT
OF THE MODEL PENAL CODE IN 1971 OR THE COMMISSION IN 1971 THAT ADOPTED THE MODEL PENAL
CODE OF THE OFFENSE INDICATES THAT BRIBERY IS THE RECEIVING OR OFFERING ANY UN-DUE TO
A PERSON WHATSOEVER IN A PUBLIC OFFICE. NOT WHO MAY GET TO A PUBLIC OFFICE. NOT WHO
MIGHT SOME DAY BECOME A MAYER, A COP, A FIREMAN. IN THE OFFICE. JUSTICE WAINER
APTER: IN TERMS OF YOUR PRESENT TENSE ARGUMENT, YOU AGREED ALREADY THAT A CANDID FOR OFFICE
WHO IS NOT AN INCUMBENT BUT WHO IS ULTIMATELY ELECTED WOULD STILL BE GUILTY UNDER THE
STATUTE EVEN THOUGH AT THE MOMENT THE EXCHANGE WAS COMPLETE THAT PERSON WAS NOT IN ANY
OFFICE. CORRECT? LEO J. HURLEY: I WOULDN'T SAY THAT THEY WOULD BE GUILTY.
I'D SAY IT'S SOMETHING THAT YOU COULD PROSECUTE WITHOUT IT BEING SUBJECTED TO A MOTION TO
DISMISS. I THINK THERE WOULD BE DIFFERENT FACTS THAT WOULD HAVE TO BE ELICITED AT TRIAL
IN ORDER TO PROVE THAT THAT ARE DIFFERENT FROM HERE. MEANING, IF YOU WERE ABLE TO PROVE
AS A PROSECUTOR THAT THE AGREEMENT TOOK PLACE ON DAY X. THERE WAS AN ELECTION. THAT
PERSON ASSUMED OFFICE AND THEN THEY DISCHARGED THAT FUNCTION. I THINK YOU WOULD NEED
TO TIE ALL OF THAT UP IF YOU WERE TRYING IT AS A PROSECUTOR. I CAN'T SAY THAT THEY WOULD
BE GUILTY OR NOT. BUT I THINK IT WOULD BE A COLORABLE PROSECUTION. JUSTICE
WAINER APTER: WHAT ABOUT AN INCUMBENT CANDID WHO IS RUNNING FOR OFFICE AND SAYS, I'M
CURRENTLY THE MARE MAYER, YOU'RE NOT OUR CITY ATTORNEY, BUT IF I'M ELECTED, AS LONG AS
YOU GIVE ME CASH IN A BAG THEN YOU CAN BE OUR CITY ATTORNEY AND THEN THAT PERSON IS NOT
RE-ELECTED. LEO J. HURLEY: I WOULD ARGUE THAT THAT PERSON CAN BE PROSECUTED.
BECAUSE HE'S LEFRG THE WEIGHT OF HIS OFFICE INTO THAT SITUATION. AN OFFICE HE PRESENTLY
HOLDS. JUSTICE WAINER APTER: BUT YOU KEPT SAYING THE PRESENT TENSE IS ABOUT
BEING ABLE TO DELIVER ON YOUR PORTION OF THE AGREEMENT. AND IN THE PRESENT TENSE, IF
HE PHRASES IT AS YOU'RE NOT THE CITY ATTORNEY NOW, I'M THE MAYER, WE ALREADY HAVE A CITY
ATTORNEY, THERE'S NOTHING I CAN DO TO MAKE YOU THE CITY ATTORNEY RIGHT THIS SECOND, BUT
IF I AM RE-ELECTED THEN I WILL MAKE YOU THE CITY ATTORNEY, PERHAPS BECAUSE THE CITY ATTORNEY
HAS TO SERVE FOR THE TERM OF THE MAYER. LEO J. HURLEY: THE KEY IS, HE OR
SHE HAS THE POWER RIGHT THEN AND THERE AND THE POWER WORKS IN ANY NUMBER OF DIFFERENT
WAYS. IT'S THE POWER TO DISCHARGE. IT'S THE POWER TO IN ESSENCE CONTROL THE OFFICE THAT
YOU ARE ALREADY IN. YOU'RE USING THE OFFICE YOU'RE IN IN FOR CORRUPT BENEFIT.
JUSTICE FASCIALE: JUST VERY BRIEFLY. THE LANGUAGE FOR ANY OTHER REASON IN THE NO
DEFENSE PARAGRAPH, EXPLAIN TO ME WHAT YOU UNDERSTAND THAT MEANS. FOR ANY OTHER REASON
LANGUAGE THAT APPEARS AT THE END OF THE PARAGRAPH, THE NO DEFENSE PARAGRAPH.
LEO J. HURLEY: WELL, IT SURE STRIKES ME THAT THE FOR ANY OTHER REASON LANGUAGE IS
SOMETHING ANY PROSECUTOR GIVEN HOW VAGUE IT IS COULD INSERT INTO IT WHATEVER IT WISHED
AND SAY ANY OTHER REASON WHATSOEVER. YOU CAN'T HAVE LIMITLESS CRIMINAL LIABILITY. THAT'S
THE ENTIRE POINT. FOR ANY OTHER REASON COULD BE LITERALLY ANYTHING. AND THE POINT OF THE
RULE OF (CASE CITED) AND THE POINT -- WHICH I BELIEVE MR. LUSTBERG WILL BE TALKING TO YOU
ABOUT -- IT'S SO UN-INTERNALED TO ANY CONCEPT OF BOUNDARIES AND LIMITATIONS AS TO BE USELESS
AND TO BE UN-ENFORCEABLE. JUSTICE PIERRE-LOUIS: THAT SECTION, THAT FOR
ANY REASON, IS DEPENDENT UPON THE PREVIOUS STATEMENT IN THE NO DEFENSE PROVISION THAT
THE PERSON WHO THE ACTOR SOUGHT TO INFLUENCE WAS NOT QUALIFIED TO ACT IN A DESIRED WAY
WHETHER BECAUSE OF THIS, THAT OR ANY OTHER REASON. SO THAT FOR ANY OTHER REASON
QUALIFIES THE -- WAS NOT QUALIFIED TO ACT. IT'S NOT THAT SOMEONE WOULD BE LIABLE FOR --
WOULD BE ABLE TO BE PROSECUTED UNDER THIS PROVISION FOR ANY REASON. I'M NOT SURE IF
THAT'S WHAT YOU WERE SAYING, THAT THERE'S NO BOUNDS WHATSOEVER TO THE LIMITATIONS OF
PROSECUTING SOMEONE UNDER THAT STATUTE. IT'S THAT PARTICULAR PROVISION, SPECIFIC TO WHETHER
THE PERSON WHO'S THE RECIPIENT OF THE BRIBE WAS NOT QUALIFIED TO ACT. WHETHER THEY HADN'T
ASSUMED OFFICE OR LACKED JURISDICTION OR FOR WHATEVER REASON. WHICH IS BROAD BUT I THINK
IT'S DIFFICULT TO READ IT AS WELL THAT FOR ANY REASON STATEMENT MEANS THAT ANYONE COULD BE
PROSECUTED UNDER THIS PROVISION. LEO J. HURLEY: I APPRECIATE WHAT YOU'RE
SAYING, BUT I THINK THAT THE PROVISION THEN GETS INFORMED ONCE AGAIN BY THE COMMENTARY
TO THE MODEL PENAL CODE RE-LATED TO THAT SECTION WHICH MAKES VERY PLAIN IN THE COMMENTARY
-- AT FOOTNOTE 127 AND THAT WHICH 127 EMANATES FROM THAT IF YOU'RE NOT A PUBLIC SERVANT
AT THE TIME, THAT IS NOT SOMETHING YOU CAN BE PROSECUTED FOR. THE FOOTNOTE AT 127 MAKES
QUITE PLAIN AND QUITE CLEAR THAT IF A BRIBE GIVER GIVES TO SOMEONE WHO IS NOT A PUBLIC
SERVANT AT THE TIME, THAT DOES NOT MEAN AND DOES NOT COME WITHIN THE AMBIT OF CRIMINAL
LIABILITY IN THE WORDS OF THE MODEL PENAL CODE THAT'S FOR OF A SPECIES OF A CIVIL FRAUD.
SO I WOULD SAY I UNDERSTAND WHAT THE JUSTICE IS SAYING AND I APPRECIATE WHAT
THE JUSTICE IS SAYING, BUT I WOULD ASK THAT THE JUSTICE CONSIDER THAT WITHIN THE CONTEXT
OF THE COMMENTARY THAT SPEAKS TO THE VERY SITUATION THAT WE HAVE HERE WHERE THE
INDIVIDUAL WHO IS THE ALLEGED BRIBE RECIPIENT IS NOT CONTEMPORANEOUSLY A PUBLIC SERVANT.
IN OTHER WORDS, THE FOR ANY OTHER REASON SECTION IS NOT DESIGNED BASED ON THE MP C COMMENTARY
TO OVERCOME THIS PARTICULAR FACT SET. CHIEF JUSTICE RABNER: MR. HURLEY,
ON A COUPLE OF OCCASIONS NOW YOU'VE REFERENCED THE LANGUAGE IN C ABOUT VIOLATION OF OH
FESHL DUTY OF A PUBLIC SEFB VACANT OR PARTY OFFICIAL AND YOU'VE ALSO COMMENTED THAT ONCE
THE INDICTMENT IS UN-CLEAR THAT IT CHARGES SOMETHING BUT I'M NOT SURE WHAT IT IS. LET'S
LOOK AT THE LANGUAGE OF THE INDICTMENT AND TELL ME WHAT IT'S NOT CLEAR. THE INDICTMENT
EXPRESSLY SAYS SOLICIT, ACCEPT OR AGREE TO ACCEPT FROM ANOTHER A BENEFIT, DOT DOT DOT,
AS CONSIDERATION FOR THE PERFORMANCE OF OFFICIAL DUTIES. THE STATUTE USES THOSE EXACT
WORDS, SOLICIT, ACCEPT, ACCEPT TO ACCEPT FROM ANOTHER ANY BENEFIT AS CONSIDERATION FOR
THE PERFORMANCE OF DUTIES. HOW IS THAT UN-CLEAR? IS IT JUST BECAUSE IT DIDN'T INCLUDE
THE LETTER D? DOES THE TEXT NOT PLACE YOU ON NOTICE THAT 27-2D IS THE OBJECT OF THIS
INDICTMENT? LEO J. HURLEY: NO. I WOULD GO A STEP FUNERAL, CHIEF. IF YOU
LOOK AT THE C-SECTION, THERE'S LANGUAGE MISSING AFTER THE WORDS OF PERFORMANCE OF OFFICIAL
DUTIES. IT SAYS, CONSIDERATION FOR VIOLATION OF AN OFFICIAL DUTY OF A PUBLIC SERVANT
OR PARTY OFFICIAL. THE WORDS PUBLIC SERVANT AND PARTY OFFICIAL DO NOT APPEAR IN THE
INDICTMENT AND THE REASON THEY DON'T IS BECAUSE THEY CAN'T. CHIEF JUSTICE
RABNER: ISN'T THE REASON IF WE JUST TAKE IT AT FACE VALUE BECAUSE THE INDICTMENT IS CHARGING
SECTION D AND THAT'S WHY IT'S PARROTING THE LANGUAGE IN D AND NOT C? LEO J.
HURLEY: WHAT I WOULD SUGGEST TO YOU IS THAT, AGAIN, VIOLATION OF OFFICIAL DUTIES,
PERFORMANCE OF OFFICIAL DUTIES. VIOLATION IS CONTAINED WITHIN C. PERFORMANCE IS CONTAINED
WITHIN D. VIOLATION AFTER IT IN THE C-SECTION, VIOLATION OF OFFICIAL DUTIES OF A PUBLIC
SERVANT OR A PARTY OFFICIAL. CHIEF JUSTICE RABNER: SO YOU THINK IT CHARGES
BOTH C AND D? LEO J. HURLEY: I THINK ARGUABLY IT DOES BECAUSE C DOESN'T
PENALIZE PERFORMANCE JUST LIKE D DOESN'T PENALIZE VIOLATION. CHIEF JUSTICE RABNER:
DOES IT PLAINLY CHARGE D? LEO J. HURLEY: IT PLAINLY CHARGES D EXCEPT TO
THE EXTENT IF YOU GO BACK AGAIN TO THE LEGISLATIVE HISTORY, IT BECOMES ABUNDANTLY
CLEAR FROM THE ASSEMBLY COMMITTEE THAT THE POINT OF THE CHANGE -- AND THIS IS THE LANGUAGE
AS REPORTED OUT OF THE ASSEMBLY COMMITTEE, WAS DESIGNED NOT TO EXPAND THE SCOPE OF
INDIVIDUALS WHO COME WITHIN THE AMBIT OF THE STATUTE BUT TO SIMPLY DEAL WITH BOTH
DISCRETIONARY AND MINISTERIAL VIOLATIONS OF THOSE WHO ARE ALREADY COVERED. THAT'S WITHIN
THE LEGISLATIVE HISTORY AND THAT'S HOW IT WAS REPORTED OUT. CHIEF JUSTICE
RABNER: ANY QUESTIONS ANYONE ELSE HAS IN. LEO J. HURLEY: I JUST WANT TO
THANK YOU EVERYONE HERE. THE APPELLATE DIVISION DECISION AND THE POSITION TAKEN BY THE
STATE ARE THE DRAMATIC EXPANSION OF 70 YEARS WORTH OF HISTORY, BOTH STATUTORILY, COMMON
LAW, BUTTRESSED BY LEGISLATIVE HISTORY AND POLLED PENAL CODE SECTIONS ALONG WITH DECISIONAL
LAW. NEVER BEFORE, NEVER BEFORE, WITH THE EXCEPTION OF THE MANZO CASE HAS A PROSECUTOR
ATTEMPTED TO EXPAND THE SCOPE OF THAT WHICH IS COVERED BY THESE STATUTES TO INDIVIDUALS
WHO ARE NOT COVERED WITHIN THE DEFINITIONAL SECTIONS. THE COURT IS WELL AWARE THAT THE
LEGISLATURE SETS THE METES AND BOUNDS OF WHAT IS CRIMINAL AND WHAT IS NOT. I WOULD RESPECTFUL
LY SUGGEST THAT NO COURT, THE APPELLATE DIVISION OR THIS COURT, CAN EXPAND THAT BEYOND
ITS PLAIN LANGUAGE AND I WOULD ASK THAT THE COURT DISMISS THE INDICTMENT.
LAWRENCE S. LUSTBERG: Here's the most important single undisputed thing about this case,
this statute does not use the word candidate. It's just that clear, and so all of the
discussion that we've been having today has been about whether it should be read to include
the word candidate, a word that is known to this legislature because it's used it in
other statutory provisions that's known to the U.S. Congress that uses it in statutory
provisions and which clearly is what this whole discussion is about. So then the question
becomes is it fair and that's all here to talk about, is it fair to charge this defendant
with an offense that occurred while he was a candidate, when what we have to do is to
interpret a number of provisions to somehow strain to include him in the categories that
are set forth in the statute. That's really all this is about. The question here under
this court's case law is whether this law is sufficiently clear and precise people here,
Mr. O'Donnell are given fair notice and adequate notice of its reach, that to me is the
single most important issue in this case, and not only the most important issue, but
it has to at the end of the day be what troubles us. CHIEF JUSTICE RABNER:
Taking a broad view of the question of fairness, do you think many candidates debate in
their mind, can I accept envelopes with cash that are seeking to influence my decision
if I were to win? A, the statute doesn't have the word candidate in it I can probably
do that. LAWRENCE S. LUSTBERG: No, Your Honor, and it really is the single
-- that's a great question because it's really what this is about. Here's the story,
if I believe really -- if I do something really bad and I think it's so bad that it's
a crime but it isn't clearly a crime, then the statute doesn't cover it as applied. The
statute is vague. You're right, I mean, he should have known when he did that that it
was wrong and I'm sure he didn't consult any statutory. This goes to Judge Sabatino's
point want this be a defense to mens rea. Mens rea also alone is not enough. There has to
be a statutory provision that clearly the phrase Justice Wainer Apter used is explicitly
clear that it covers the conduct. We in the criminal -- in criminal cases, we insist
that the legislation be clear. CHIEF JUSTICE RABNER: Let's come to some
of the basic canons that we do use when we try to statutes, you point out the statute
doesn't include the word candidate but it also doesn't expressly exclude candidates from
its coverage. So is it not appropriate then to go and lock at the legislative history.
LAWRENCE S. LUSTBERG: I think it's find to go look at the legislative
history. At the end of the day you'll still be left, Your Honor, with the question of
whether this defendant -- because this is an as applied official challenge, let me be
quickly clear about this we're not arguing this is a facial challenge this is an as applied
challenge. We're not stating the statute is vague in all of its respect, that has never
been our position, there certainly are people who can be particulars cuted under 2C:27-2.
There's no doubt. The question here is whether it is vague as applied to these actions.
That's the only question. And that vagueness goes to the question of whether a reasonably
-- a person of ordinary intelligence and it would -- would not know, and.
JUSTICE WAINER APTER: Are you saying a person of ordinary intelligence would believe
that it would not be a crime for a candidate for mayor to accept a bass kin Robins bag
with $10,000 cash in exchange for telling someone that they could be the new city tax
attorney. LAWRENCE S. LUSTBERG: Respectfully it's the wrong question,
because the question is not whether that candidate would know that it is -- whether it
is or isn't a crime. The candidate would have to know that it's this crime, that this
-- that a political corruption statute covers those activities. There's zero doubt in my
mind, absolutely none that what New Jersey could do and in fact the legislature has tried
to do on a number of occasions and even the legislature passed legislation that the
governor vetoed that is it could absolutely criminalize this conduct but we don't dash
when we look to whether conduct has been criminalized, we don't look to see whether
generally it's really bad or whether it's immaterial mobile. JUSTICE
WAINER APTER: Agreed but when we're reading the statutory text a person is guilty of
bribery if he directly or indirectlily agrees to accept from another any benefit as
consideration for performance of official duty, appointing someone the city tax attorney
is the performance of official duties, correct. LAWRENCE S. LUSTBERG: Yes.
JUSTICE WAINER APTER: So why would someone of common intelligence not
believe that accept Carroll Farrell bag with $10,000 in cash in exchange for appointing
someone the city tax attorney would not violate D. LAWRENCE S. LUSTBERG: The
question is whether a person who is a candidate would understand that he -- that his conduct
is covered by A through D, Athrough D which talks repeatedly in terms of the language
of public action, the public A is a public servant party official voter, B the exercise
of official discretion, C is violation of an official duty D, as you point out is
performance of official duties,. The question -- and this has to be
contextualized historically. This person would be determining whether his activities
were covered in light of -- and you asked this question before, in light of a decision
of a federal court that went the other way. It would -- he would be doing that in the
context of understanding that the model penal code really talks both ways, and respectfully
there certainly is language without question in the model penal code. JUSTICE
WAINER APTER: So are you saying that if you can read the plain language of the statute
fairly easily to cover the conduct at issue, but a district court decision from 11 years
ago went the other way then that is enough to make the statute vague such that for rule
of Lennity for void for vagueness purposes, a person of common intelligence would not
know that their actions were prohibited. LAWRENCE S. LUSTBERG: Your Honor,
I think it really depends on the entire context and I'm not going to repeat all of Mr.
Hurley's arguments but what Mr. Hurley has pointed out is that there's legislative history
both ways, there's provisions -- there's comments to the model penal code that goes both
ways there's conflicting law among Judges of reason let alone persons of reason, I won't
comment whether there's any air space between persons of reason and Judges of reason,
the. JUSTICE SOLOMON: I'd like to hear more about that. LAWRENCE
S. LUSTBERG: We can do that. I do think that the disagreement among courts
is critical but that disagreement also exists here in a larger historical context, one
in which -- in which no case other than Manzo had gone that way. So remember, Manzo
made it clear that it's writing essentially on a historically blank slate. If you look
at all the other cases, whether Schenkolewski, the person was the shame chairman of a
board of adjustment. Ferro who's as you discussed earlier was a person who had access
to a public official, Sherwin who is was a defendant who conspired with the New Jersey
secretary of State, Ellis which the State relies upon a great deal who's a member of
the Jersey City council, gore rah was another case about that. The case
law with just one exception which is wood Ward and is really easily distinguishable, are
all cases about -- about affecting public officials as public officials. The
legislative history does, to use Mr. Hurley's -- to Mr. Hurley's point, uses the present
tense in critical ways, and let me just point out just one of them, which is so -- we
talked about a little bit about section 240.1, comment 9 of the model penal code, that
comment says, and the state cites it I believe on page 30 of its brief, that the provision
is intended -- I'll eliminate irrelevant words to apply where the defendant is a public
official who solicits or accepts a bribe. If you had the person of common intelligence
write looking at a situation where there's only one case and it says that this conduct
is not covered, where there's no case law and a body -- where there there's no case law
where the language, where the entire sort of gestalt of the statute is about -- it's
a public corruption statute. It's about official actions where the legislative history
goes both ways r the model penal code goes both ways, where the assembly judiciary committee
that amended the statute as Mr. Hurley points out talks specifically about receipt of
unauthorrized benefits as a public official, whereas Manzo points out contemporaneous
literature and he talks about a book called criminal laws of New Jersey in Perkins,
criminal law, support the position that this is meant to govern the conduct of public
officials themselves. He shouldn't be penalized for guessing wrong. And I get that it's
easy to say how could you guess wrong when you're doing something that's so obviously
inappropriate where maybe even so obviouslily criminal, but that's the respectfully.
It's just the wrong question, the right question is whether this legal -- this statutory
provision, clearly I think your wordses were explicitly clearly governs this conduct
that the only question. JUDGE SABATINO: Would a person of common
intelligence reasonably believe the hypothetical Appellate Division that if there's an incumbent that's my opponent. That incumbent could be entitled for bribery if the
be a reasonable assessment of what the statute does for person as you said common
intelligence. LAWRENCE S. LUSTBERG: A person of common intelligence, Judge
Sabatino, would read the statute as saying that that the person who's an incumbent in
an office can't do that. JUDGE SABATINO: But I can and that would be a
reasonable interpretation. LAWRENCE S. LUSTBERG: That not that I can
do it should do it or a good thing to do but that this statute doesn't govern it and, you
know, this is so easily fixed and I know that's maybe not part of the analysis in some
sense, but it is not for courts to write words into statutes, and that's what the Supreme
Court -- JUSTICE WAINER APTER: It soundses like you're asking us to write
words out of a statute on the basis of saying a district court Judge and that the trial court
Judge here and that some legislative history that a person of ordinary intelligence should
know about said that D doesn't mean what it says when we just read the plain language
D says any benefit as consideration as the performance of official duties and appointing
someone as the city tax attorney would be an official duty. LAWRENCE S.
LUSTBERG: Right. So I think that it's important to contextualize that in the context
of it is no defense provision. So because let's be clear, there's no question
about the chronology, the question is whether a candidate who takes a bribe to potentially
do something if he's elected in the future is the argument is is a benefit as consideration
for the performance of potential official duties. That's the word that have to be read
into it because he doesn't have official duties at this point. So now the question becomes
what is the legislature say about that and the legislature says certain things about
it. It says that a person who the actor sought to influence, it's no defense 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 so that's number one, and the not yet assumed office
I believe covers the person and this was an issue that came up before who has been elected
but hadn't yet, you know, raised his hand and been sworn in. So clearly
if he had been bribed in that interim period, no defense. Or lacked
jurisdiction and we know from the case law what lacked jurisdiction meant, which is, you
know, if somebody bribes me to give them, you know, a dog license when they shouldn't
get one but my Your Honor is construction licenses, it doesn't matter, if I'm holding
myself out as someone who can do that, that's that. Or for any other reason.
JUSTICE PATTERSON: Does that jurisdiction language include those who
have no office? In other words your dog license example is somebody who has some government
responsibilities, and authority but not others. LAWRENCE S. LUSTBERG: So
the case law Justice Patterson indicates it's more the person if you're going to a public
official who doesn't have the decision making authority with regard to that particular
area. JUSTICE PATTERSON: It's not someone who just lacks -- it's not
a synonym nor really for lacks the authority to make good on the bribe.
LAWRENCE S. LUSTBERG: It really doesn't, and one of the reasons I say that, if somebody
came up to me today and gave me a bag of money in a bass kin Robins bag of money and
said you know some day you may be in office, so just in case I want to give you this money.
I don't think anybody would say that I've committed a crime. JUSTICE
PATTERSON: You'd be in a long line of people trying to accept that money by the way,
the random people. LAWRENCE S. LUSTBERG: But it's really in some ways the
point. I mornings a candidate is a little different. He's already running. So this
is a reasonable discussion to be having but, you know, the idea of lacking jurisdiction
meaning anybody who has no decision making authority respectfully is too broad, and then
we get to the question of what -- JUSTICE PATTERSON: We were talking
earlier with your colleague Mr. Hurley, about the aspiring people to be all these different
things, basketball coaches and all those things, but a candidate is a real deal especially
a candidate who is representing a party in an election in which there are viable -- there's
a chance of winning, so a candidate is not just a random person. LAWRENCE S.
LUSTBERG: Yeah, such a real deal that it would have been so easy for the legislature
to put it right there in the statute so there would be no doubt about it. And but let
me just get back for one second to the for any other reason piece because I think the
case law from the U.S. Supreme Court these days starting with Johnson and project any
is very clear that that sort of residual type of of clause that doesn't have definition
truly fails the void for vagueness test as applies, so I would urge the court in
thinking about thinking for any other reason and I agree with the argument that, you know,
that it's even contextualized, it's not just for any reason whatsoever. It has to be
within language that a person to whom an actor sought to her influenced was not qualified
to act. You're absolutely right about that, but nonetheless, it's extremely broad and
does not put the reasonable person on notice and that's all, respectfully that this is
about. I'd like to just chief justice say one more thing to ask me whether
I have any other points. CHIEF JUSTICE RABNER: We're nearing 20 minutes.
LAWRENCE S. LUSTBERG: He are here's my last point. You asked a question
reasonably is there any case law that supports the idea that a statute that was never
enacted plays any role in this discussion. And respectfully, I think it does. There's
no -- I'm you're probably right, that there's no cases, there's certainly are cases that
stand for the proposition that fundamental canons of statutory construction support the
idea that events like These properly considered because a change of language in the a
statute ordinarily implies an alteration in the law, here it's pretty close to that and
I think putting blinders on to the fact that the legislature with respect to this very
statute passed and the Governor vetoed but the legislature passed a statute that would
have corrected the very problem that we're talking about today and made it clear for ached
not just that this was a bad act, which everyone agrees. CHIEF JUSTICE RABNER:
Your argument assumes that the legislatures who krafted this had in mind we need to fix
a mistake as opposed to we need to put an exclamation mark next to what we always
intended and that's why courts don't rely on it. We can't read into the minds of
legislatorrors in that respect. LAWRENCE S. LUSTBERG: But here there was
a precedent that they were concerned about which was Manzo that said exactly what the
problem was. JUSTICE WAINER APTER: But if the left laters thought all
along that Manzo was wrong why would the way to express that not be in the amendment
that you're referring to? So why could the amendment not have simply been the
legislature's way of saying Manzo was wrong and here is how we are going to make sure
no error like Manzo happens again in the future. LAWRENCE S. LUSTBERG: I
think that's exactly what happened. JUSTICE WAINER APTER: So then if they
are believing that Manzo was long and all along they were prohibiting candidates from
accepting thigh bribes under D -- LAWRENCE S. LUSTBERG: I don't know
whether they were thinking Manzo was wrong because it was not what they intended in the
first place or Manzo was wrong because they want to outlaw this kind of conduct, you're
right, we I don't know that but what we're doing is correcting it which we're assure to
maybe sure that criminal defendants are on proper notice and understand when they commit
an act whether it's going to fall within the scope of a statute they're making sure that
all know and that's the one thing that's clear is that they were making -- they were
attempting to make that clear. Whether because they thought Manzo was clue to decide
it wrong to decide it in the first place or whether they needed to clarify it because
people didn't understand it. JUSTICE FASCIALE: And that's why you it's
it's relevant to your Lennity argument and due process. LAWRENCE S. LUSTBERG:
Our argument is not simply rule of Lennity but it's vagueness as applied.
CHIEF JUSTICE RABNER: Thank you, Mr. Lustberg. Ms. Cai. ANGELA CAI: May it
please the court. New Jersey's bribery law does not contain the loophole that defendant
wishes it did. As the Appellate Division correctly found, when a candidate accepts
$10,000 of cash in a shopping bag as consideration for giving the bribe give a government
job, if elected, that is a bribe under N.J.S.A. 2C:27-2. And this is a case which the
legislative intent is abundantly clear from the plain text of the statute. The text provides
no exemption for nonincumbent candidates as evidenced in two separate way, first, the
alleged conduct false within the statute's substantive prohibitions, neither sections
A nor D requires the bribe taker be a public official at the moment that the elicit
bargain is struck. Instead, the provisions hinge on a particular promised action. They
only require that a bribe be accepted as consideration for taking official action or
the decision of a public servant. Defendant's focus on official status at the time of
the elicit deal is wrong. His reading ads wordses into the statute that aren't there.
And in this case, the fact that the contemplated action is in the future
makes no difference. The word consideration by definition includes promises to perform
a future action, contingent on events that have not yet occurred and might never occur.
That's true for example, for a promise to vote a certain way on legislation that has
not yet been put up for a vote or enter died that's true for a promise to deny a permit
which has not yet been filed, and that's true in this case. For a promise to sell a
government position that was not yet the defendant's to appoint. But
nothing in the statute ricer that the bribe taker ultimately deliver on an elicit promise.
Second, the legislature expressly included a no defense provision that it is no defense
that, quote, the person who the actor sought to influence was not qualified to act, including
for any reason. Defendant acknowledges that this means that the person who offers a bribe
to a candidate can be guilty of bribery, but he insists that the bribe taker on the other
end of the exact same deal is exempt from prosecution, there is no valid reading of
2C:27-2 that would lead to that ill logical result especially since the statute maintains
a reciprocal grammatical structure throughout. What the texts not enough,
the legislative history and New Jersey precedence both confirm the State's position,
the model penal code on which New Jersey's law was based expressly states in its commenter
are thes that one, the law does apply to candidates, and two, that the no defense
provision applies equally to bribe gives and takers, more over, the notion that crimes
of bribery are reciprocal so that whenever it is a crime to give a bribe, it is also
a crime to receive one, that has been established in cases going back over 150 years.
Finally, because the taxed legislative history and precedence all
confirm the illegality of the alleged conduct, the rule of Lennity cannot save defendant
here, in invoking Lennity, defendant and amicus overlooked the fact that it is a tool
that only kicks in only after the tools of legislative intent have Albany exhausted and
still leave the statute hopelessly goods, as I just discussed that is the opposite of
what we have here Xis fear of legislative inaction does not help defendant it will, to
begin this court already doubted the notion as an action probative of legislative intent
in general but the theory is especially weak in this case. Because the only case at
issue Manzo is not a decision of our appellate courts but rather a decision of a federal
trial court which itself is not binding on any other court. Further more, since the
legislature subsequently also failed to act after the Governor's vote toe and the Appellate
Division ruling the theory of legislative inactive if adopted would cut against defendant's
position I welcome the court's question. JUSTICE WAINER APTER: How do
you respond to the argument from your adversary that this was an unprecedented expansion
of the statute and that no prosecutor in the history of New Jersey, aside from Manzo
has ever attempted to apply this to a candidate. ANGELA CAI: I don't think
as an unpress dissent dead expansion of the statute because the plain text of the statute
covers the conduct alleged here, the fact that it may be rare to charge this kind of
conduct is not because the statute doesn't cover the conduct but perhaps because it is
difficult to find examples where the prosecutor has what they believe to be beyond a
reasonable doubt evidence of a quid pro quo in which a candidate has accepted money or
other benefits is and express agreement for some official action, the brace certainness of
that kind of quid pro quo exchange and the evidence needed to prove up the mens rea is
going to be rare, I acknowledge that and I think that is why you don't see this kind
of case brought very frequently and bribery, the statute of bribery includes within its
elements those specific issues that are not before this court. The court here is not
dealing with the question of whether or not a quid pro quo has been proven, that is often
a very difficult thing to prove and a thing in which a jury would have to evaluate the
evidence for. And that -- JUDGE SABATINO: I'm just wondering if the
statute is limitless. Does there need to be some temporal nexus between, you between,
you know, the offer and the consideration and capacity to take action I'll give you a
hypothetical. Let's say that a person owns a condominium, beach front condominium and
as a good friend involved in politics but hasn't been elected to anything yet said look,
friend, I will let you use my condo any time you want but if you ever get to be elected
governor I want to be your attorney general and the recipient says that sounds great.
That happens years before any election takes place, is there some temporal limit that
we should read into the statute or would my hypothetical potentially be the basis for
an indictment. ANGELA CAI: Your Honor, I think your hypothetical is unlikely
a case to be indicted not because the elements that we're concerned with today are not
met, i.e. that the person who accepts the condo offer is not yet a public official, but
rather it is very unlikely that a deal like that is a true quid pro quo and that the
prosecutor would think that they could demonstrate the mens rea for that. I.e., that
the friend is truly only offering the time share in the condo in exchange for this very
unlikely action in the future. JUDGE SABATINO: Let's tighten it up to
something likely. Let's say an incumbent loses an ell election and after the results
are announced, there's a gathering and somebody approaches next time if you run again,
here's -- I'm going to give you some money and then make me whatever, the tax attorney
for the town, that obviously is not very remote at all, the person was previously elected
or appointed that position and, you know, has some very realistic capacity to be nominated
as justice Paterson suggested by a party to be a credible candidate down the road is
that indictable. ANGELA CAI: Yes, Your Honor, if there is -- if the State
can prove that the bribe give offered the cash or benefit or whatever it is in exchange
for ap pointment to a future job and the bribe give can, you know, can consider the
likelihood of that and offer the amount of money that he believes would, you know, comesst
with the probability of that happening that is all part of the deal and the bribe taker
accepts, that is very much a bribe and I think that's both evident in the text of the
substantive provisions of the statute as well as in the no defense provision.
JUDGE SABATINO: What's the limiting principal. You say that's close enough. My other
hypothetical too far remote so what's the limiting principal. ANGELA
CAI: The limiting principal is the ability to proof both a quid pro co-that the accident
Exchange is actually promised premised for the money official action and demonstrating
that whoever is being charged, the defendant actually had the requisite purposeful mens
rea to make that happen. JUSTICE PIERRE-LOUIS: So the limiting principal
is what the State can prove and not what the language of the statute prescribes as
unlawful. I just want to make it clear because the manner in which you're
responding to Judge Sabatino sounds as though you know with his first hypothetical well
that would be really difficult. It's my understanding -- my recollection your answer
was that will be really difficult for the State to prove and in this particular hypothetical
we're a bit closer in time tighter the State would be able to prove that. That seems to
be a really -- that doesn't seem to be what our law stands for. We should be able to
look at the statute and determine whether someone's conduct will be unlawful or not
independent of what the State believes the State can prove, and I think these hypotheticals
are different because in both of these instances, it seems as though we're writing into
the statute. So for example, section A, you know, you started your comments, indicating
that section A says nothing about dash did she doesn't exclude candidates, but, you know,
if we're looking at section capacity those hypothetical are are we including in that
language the public servant or party official includes a future public servant or party
official or voter on a public issue because it seems like in all these hypotheticals
we're talking about somebody who may at some point in time become a public official even
in that last hypothetical this is an incumbent who lost who's no longer a public official
but may at some point in time in the future run and be elected. So I'm just trying to
understand first with regard to your responsible that what the State can prove seems to
be the driving force here versus adding language into the statute that includes future
public servants, future public officials. ANGELA CAI: Yes, the statute
includes future public servant and future public officials what I was responding to what
is the practical limitation for what happens, nothing in that you statutes they would
be if they did indeed engage in a quid pro Co. bribery scheme. JUSTICE
PIERRE-LOUIS: What's the limit on how far in the future, what is that limit just practically
based on every prosecutor's offices determination of what they can prove? ANGELA
CAI: Your Honor, there is no statutory limit and that is is designed to be that way for
several different reasons and I'll get to that later, practically speaking there are
two probably more limiting realities that make that unlikely to occur, one is the propensity
of a bribe give to be coming out cash to people who have very unlikely ability to effectuate
what they actually want that is just practically unlikely but if it does happen, for
example, in the instance of someone who really wants to be tax attorney and goes up to
the three people he thinks is most likely to attain that to be able to give him that
position and bribes all of them, that is certainly something that could happen, and under
defendant's view, only one of those people, the person who is either the incumbent or
happens to win the election, I'm not sure which, is the only one who would be guilty
and the other people who accepted that bribe would not be, so I would suggest that that
is not -- that is not a correct interpretation. The second limiting principal
as a practical matter on why that would not be a likely prosecution is proof. It is
very difficult to proof that someone who says I'm going you money, keep me in mind that
not is quid pro Co. It has ton an exchange for the official action to be taken, nothing
in the statute that says that those could not be crimes, however, the statute like other
criminal statutes of course require mens rea and in this case it's the highest level of mens
rea. So practically speaking, those are unlikely prosecutions but that is not to say
I'm not suggesting that they're exempted from the statute if the proofs are there.
What I think is clear though -- CHIEF JUSTICE RABNER: Is that issue
in front of us, we're deally simple with an candidate here? ANGELA CAI:
Correct, correct. The case before this court is whether or not the identity of the person who
can a Septembered the bribe at the moment of the exchange was at that point in time a
public official or just a nonincumbent candidate and the statute does not distinguish
between the two. I was just going to suggest that the legislature knew how to write a
statute that operates in the way that defense counsel wants it to operate and that is
based on the status of the person receiving the benefit, for example, in 2C:27-9 the
legislature wrote a statute that prohibits self dealing that operates based on the status
of the recipient or the person who is doing the self dealing, it says a public servant
commits this crime, if dot, dot, dot, in 27-10, the pro his on acceptance received of
unlawful benefits, the legislature wrote a statute that says a public servant commits
a crime if he knowingly receives under office a benefit. The code of 2C:30-2 is also
written in the same one, a public servant is guilty of official misconduct when he with
purpose to obtain a benefit commits certain actions, and this is actually something that
the legislature was aware of because the Ferro case made it clear that if you wanted to
have a statute that does operate on the identity of the person, Ferro said the legislature
would have to amend the statute to say that, it did not, and so under some of what I
was hearing to do about the theory of legislative inaction if the court were truly to
adopt that it would have to rule in favor of the State because the legislature has been
snows ill but on notice of the division of the Appellate Division if you want the statute
to operate as a status based offense this is how you would have to amend it and it chose
not to in the 40 or 50 years since. CHIEF JUSTICE RABNER: The indictment
in this case, what section of the bribery statute does it allege was violated.
ANGELA CAI: Subjectings D, Your Honor, but the State's position is subsection A could
have also been charged, subsection D is just what was charged in the indictment.
JUSTICE PATTERSON: I'm sorry, you said D, not B. ANGELA CAI: Yes, D,
as in David. So I think what it comes down to in terms of the substance is what provision
and I'll get down to the no defense provision in a second is I think what's left is defense
counsel's repeated insistence on the present tense of the statute and I'm quite puzzled
by this because he has no response to the legislature's explicit reference to black
letter contract law that the idea of consideration can and often does include promises
of future action. And in using the word consideration, the legislature
intended to make all of the actions that are exchanged for an unlawful benefit illegal
and that is includes future actions,. And so I think that that's why the
idea that the sobs Detective provisions are somehow excluding candidates or excluded
future actions cannot be the case. I do want to touch for a second on what
I heard was a second theory, a distinct theory from the defendant which is that not the
status based theory but rather an outcome based theory and Justice Wainer Apter was right
to point out that this other theory that the defendant if he happens to twin election
becomes someone who can be prosecutorred for bribery of a deal that he made in the past.
That is contradictory and would lead to conflicting outcomes with defendant's initial
theory that what matters is the status of the person who at the moment he struck the
deal because someone who was not a public official at that time time of candidacy and
at the time the deal was struck could effectuate the drive if he's elected but smokehos
a incumbent i.e. a public official at the moment he takes that same bribe and loses would
not be able to effectuate that bribe so I think that just doesn't make any sense, furthermore
it also contradicts case law, cases like bag Gannett which is a decision of the New Jersey
Supreme Court and Sherwin and other cases make clear that the bribe is complete at the
moment the promise is made, not on when the recipient eventually gains power to make
good on the promise or does indeed make good on the promise. So under the
defendant's view, this is why that view would not be realistic, the prosecutor would
have to weight and see who wins the election before it decides to charge an individual
for the exact same action, and that leads me to a hypothetical and there's a lot of
hypotheticals in this case but I think this is probably the most important one and it's
this, if a bribe give a very enterprising person who wants to be the city tax counsel
offers the same bribe to the incumbent candidate and a nonincumbent candidate, same bribe,
same bribe as in this case, and both accept, this demonstrates why defendant's theory
based on official status cannot be correct because defendant's position would have to
be only the incumbent is guilty because he happened to be a public official at the time
the bargain was struck, even if that incumbent had no ability to effectuate that promise
because somebody else is already tax counsel because there's no statutory ability to
appoint somebody tax counsel until a new cycle comes in, doesn't matter, the incumbent would
be able to be charged. But that doesn't make any sense because the incumbent
is in the same position as the non-paint candidate, both of them are promising to take
future contingent action in exchange for the cash. JUDGE SABATINO: I'm
going to circle back to something you said about future action, the way I see the words
of the statute, it's only a one way analysis of future action, it talks about an agreement
to confer and pay the consideration in the future both in the first line and then if
we go after to the very bottom of it, and any prosecution under the section of an actor
offered or convert or agreed to confer, et cetera, et cetera, a benefit.
So it's looking certainly to sweep in a promise to make a future bribe, a future payment,
but it doesn't say anything about a future performance by the elected official, it's
only talking about future action in the sense of what the consideration was that was being
remitted to the candidate or to the individual. Right. ANGELA CAI: I
don't think so, Your Honor. JUDGE SABATINO: I don't see where in the words
or statute the future performance, it talks about the future receipt of the benefit but
not the government action that is the basis for bribe. JUSTICE FASCIALE:
Could I just hypothetical to Judge Judge Sabatino's question, candidate runs for
office, candidate takes money during the campaign and promises in exchange for the receipt
of that money to name somebody to a particular position, candidate wins but then never
performs, can you still indict that candidate under section D. ANGELA CAI:
Absolutely. JUSTICE FASCIALE: So the actual performance itself whether
the individual performance is not the focus but rather the focus is on the legal definition
of consideration meaning future promise to do something in the future, whether you do
it or not. ANGELA CAI: Correct, and that's going back cases as far back
a (CASE CITED). Performance of this elicit deal is not an element of the crime, and
so a person can accept cash from ten different people Who all want to be tax counsel and
only perform on one of them or perform on none of them and he has committed bribery in
ten different way, but to answer your question Judge Sabatino, the question of the language
confer or agrees to confer, I agree does talk about the benefit. JUDGE
SABATINO: Solely the benefit, not the performance, it doesn't say agrees to perform
in exchange for the receipt of that benefit. ANGELA CAI: Correct, that
language does refer to the benefit and I'm going to give you an example in a second that
shows you why that that doesn't really matter. JUDGE SABATINO: I'm with
you. ANGELA CAI: But as a matter of the text of the statute, the person
who agrees to accept from another on really or Accepts from the another any benefit as
consideration for, and I'm looking at sub section A, a decision of a public servant.
That in and of itself, a consideration for decision of a public servant does not have to
be a decision that a public servant today is going to perform or is performing. In fact,
most bribes are not effectuated at the moment that the bargain is struck, most political
bribes at least take some time to come to fruition, it's something that's gonna happen
in the future. So the acceptance of the benefit as an agreement as
consideration to take some future official action is explicitly covered by the statute
itself. And the reason that actually doesn't matter so much as a matter of in terms of
what the statute provides, is in this example -- so imagine a case of mutual corruption,
I'm the mayor of a town and you're the police chief of the town, and I agree to approve
any business license that your family business submits to me, and in exchange, you agree
to never arrest me for any crimes I may or may not commit. In that case, both are benefits
and both are, you know, consideration for future official action, it doesn't matter which
part of the statute you're looking at, and the reason the statute is written in this
reciprocal way in every turn is because there are examples of mutual corruption where
the benefit does not have to be pecuniary it can also be itself an official action, and
so 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
either as an agreement to confer, a benefit or an agreement to exchange that benefit
for a future official action. And so I think we've talked about the text
of the substantive provision I want to quickly gloss on the legislative history but I
think what I have to say is similar to what chief justice Rabner has stated, the model
penal code monetaries make it explicitly clear that quote a candidate may be guilty of
bribery for receiving a campaign contribution if other requirements of the offense are
met. Defendant's reading of that is the other elements are that you can't
be a candidate. You have to be a current official that makes no sense why would the model
penal code say you can be a candidate may be guilty of bribery if what they really meant
is a candidate cannot be guilty of bribery, that is and the better reading of the other
requirements of the offense are what I just discussed before, i.e. that there was a
benefit, that it was a quid pro quo exchange that there was the requisite mens rea of
purposefulness and the thing being changed for is an official action as opposed to private
action so those are the other requirements that the State is required to prove in any
case but the model penal code which defendants -- defendant Carroll Farrell knowledges
is the basis for Snapchat already makes clear that even without the no defense provision,
candidates are swept under the substantive provisions. And the Appellate
Division explains why the case law also tracks this exact development. The post model
penal code case law forekoases defendant's position because cases like Ferro confirm
that the statute in 2 C was meant to expand on the prior statute in 2A which explicitly
said that you can have a quid pro quo exchange for anything connected with or ap pertaining
to office or department of the government of the state and other entities, and that
example under the prior statute certainly there's no requirement that the person who is
accepting the bribe has to be a current public official, it just has to be that what's
exchanged is ap pertaining to any office or department of government. And Ferro confirms
that our legislature only meant to expand the predecessor statute in enacting the model
penal code provision so it makes no sense to say that today the statute is more limited
than it was in the past. Schenkolewski also confirmed the statute is supposed to be as
broad as the predecessor statute. Next I want to turn to the no defense provision and
what's interesting I think is that defendant seemed to abandon the textural analysis they
were engaging before following the Manzo court decision about what the word actor means
but I do want to gloss on that because they rely on Manzo so much and this is where the
Manzo court was just wrong, it read a part of the statute plainly incorrectly. So 2C:27-2
no defense provision says that it is not a defense to prosecution under this section,
not prosecution of a bribe give but any prosecution under this section that a person
whom the actor sought to influence was not qualified to act in the desired way, the
Manzo court thought that this means this provision only applies to the person who gives
the bribe and not the person who takes the bribe, and to reach that conclusion, it has
to believe two things, one, that the word actor means bribe give only and two that the
word actor and only the word actor can refer to the person being prosecuted. Neither
is correct. The first premise that the word actor can only mean bribe give is
not correct for the reason that I explain in terms of the example of mutual corruption,
in the example of the mayor and the COP who mutually agreed to influence one another
both individuals can be the actor or person, those two words are interchangeable. And
you can see throughout the statute that the legislature uses the word person and actor
interchangeably throughout the statute. I do agree that in this particular
case, it's natural to read the Pershing actor to mean the bribe give and the person to
be influenced the defendant but that doesn't have to be the case in every example.
But more importantly, the second part of the premise is incorrect. It is not the case
that only the word actor in the no defense provision can refer to the defendant, the
word person can also refer to the defendant and that's the big error with the defendant's
logic and the logic of the Manzo court, the statute's very opening word says a person
can be guilty of bribery, obviously meant to refer to the word person as a possible
defendant, of course the word actor can also mean defendant and that's evident in the
second paragraph, the paragraph right after the no defense provision in which it says,
any prosecution of an actor who offered or accepted a benefit would be acceptable not
withstanding allegations of and torsion. So we know that the legislature
intended to refer to the word person and actor interchangeably and by the plain text of
the statute this no defense provision is fully reciprocal. And so then
we look to the legislative history and I think the legislative history I think clearly
confirms that, the entire statute as discussed by the model penal code explains that
the whole model -- the whole provision is applies with equal force to both the recipient
and the give of the the bribe and this is evident at PA 82. And in fact,
I think we explained in our briefing how the development of the model penal code confirms
this, because the earlier draft of the MCP from 1958 only had the no defense provision under the bribe give section but later in 19 experience it decided to merge the bribe
defense provision in that enter greated section, and so that's evidence that the drafters
of the model penal code and of course New Jersey's legislature that adopted it fully
intended for this to be a reciprocal offense, and of course that's evident in the final
report that and the commission on revision of New Jersey criminal law which says explicitly
the offense is reciprocal whenever it is a crime to receive a bribe, it is also a crime
to tender one and that is PA 42 do 43. And of course it's also logical because I think
what's been discussed so far in terms of whether or not the defendant should have known
what he did was wrong and whether or not that matters, but I think what defendant's
position is the bribe give has committed some kind of offense against the public institutions
integrity but the bribe taker somehow has not because what he has to demonstrate is that
there has to be a logic behind having the no defense provision be not reciprocal and
he hasn't done that. He acknowledges that what the bribe taker has done is also wrong
but in other parts of his brief, he says the same harm to the public institution is not
apparent with respect to the bribe recipient that just cannot be true. Both individuals
on both ends of the elicit handshake has denigrated the public's trust in the
positions and fusions. The defendant in this case has USED the elect to recall process
as a pay to pay scheme that is something equally a harm that the legislature wanted to
pro describe in enacting the no defense provision and the statute in general.
Unless the court has any questions about those issues, I do want to talk about the role
of Lennity very briefly and I'll Start with this, this is model Lennity case because
defendant's argument is the bribery statute contains a loophole but only if he doesn't
win, that's a logical as it gets when it comes to Lennity bright because he appears to
be saying, I knew what I did would be this crime if I won my ell election so it's hard
to her me sitting here to see how you could say that the person wasn't on notice that
what they were doing at that time moment they were doing doing it wasn't a crime that's
the first -- the first very common sense observation I'll make in terms of 11 netted
before I get to the doctrine on the doctrine I think this is very clear, the precedence
of this court and the United States Supreme Court make clear that the role of Lennity
only applies after every other mode of statutory analysis fails, what I hear from both
amicus counsel and defendant you should put a thumb on the scale in favor of the defendant
whenever you see some ambiguity or arguments to be made in favor of the defendant from
the text of the statute or whatever, that's not now Lennity works and that's because Lenity
is only went to resolve hopeless am big goods statutes when you don't know what it means,
the reason we engage in statute interpretation at all in all cases is to glean what the
legislature meant, if you know what the legislature meant you don't receipt to Lenity
and cases likes redress and DeMarco and Supreme Court cases like (CASE CITED) make that
abundantly clear, finally to the extent that defendant is relying on the Manzo decision
to tip the scales in favor of Lennity that is also wrong I'm not aware of any decision
where the court has applied the law of Lenity on the basis of a different court's
interpretation in the defendant's favor, when the court reviewing believed the other court
was wrong, if you believe the Manzo court is right, obviously defendant wins I'm not
suggesting you do that but if you think that Manzo was wrong you should not be applying
the rule of lenity because, well, first, our court has said the opposite so in state
versus reach Just this court said the rule of lenity is not invoked simply because there
are competing judicial interpretations of statute your language in New Jersey or elsewhere.
But second if you zoom out for a second, on what defendant and amicus counsel are arguing
they're arguing regarding of what this court thinks about the appropriate meaning of the
statute, you should give the defendant a free pass because once upon a time a federal
district court in New Jersey held differently. But that's the not how this works because
the federal district court's decision is obviously not binding on this court or any
other court, and just because the Manzo court was wrong doesn't mean that this court cannot
correct that interpretation as a matter of interpretation of State law.
Finally on legislative inaction it's not really clear what defendant's argument is at
this point because it's changed over time because the legislature has done and not done
different things but the bottom line is this, this court should not be guessing at what
the legislature meant by inaction or be action because it is very difficult to know what
that is and the defendant can't show whether any particular inaction or action by the
legislature is because of agreement with the Manzo court sew decision on its
interpretation or discuss agreement with that and wanting to correct misconceptions and
there's none in the bill that was passed that suggests that legislature thought Manzo
was correctly decided but our policies should be different. It does not say that at
all. More over, in this case I think it's very strange to rely on any kind
of gleaning of legislative motivation because the governor did conditionally vote toe
the bill because he believed that the language of the new bill introduced loopholes, it
notaried that the Appellate Division was right but still recommended amendments to fix
the loopholes and sort of tightly belt and suspenders the whole thing, the assembly then
passed the Governor's recommendations, the senate has not yet take action so it's unclear
what to do to read from the action on the one hand and I'm suggesting to the court that
none of that is protective of what the legislature meant when it enacted 2C:27-2.
JUSTICE PATTERSON: Is there a time limit on what both houses have to do, I
thought there was a time limit that if they don't act within a certain amount of time
after a condition vote toe. ANGELA CAI: That's correct. Don't quote me
I believe it's when the session expires which I believe would be in December of January
of this year and thal several Li has passed the conditional vote toe version virtually
anonymouslily. So if you're reading into the actions of legislaturors I don't know what
you would read into that the other State's position. Finally on the constitutional
arguments which I don't think are really properly before this court based on the petties but
I'll touch on anyways. Number one, residual clauses are not by definition void for
vagueness, that is not the holding of sessions versus domainy or Johnson versus United
States that's a totally different statute that was interpreted by the speak to to be vague
because it was possible to determine whether certain crimes were. That
is not the case before you in this case if you look at it seems like the focus on the
vagueness argument is on the no defense provision I submit to you we don't need the no
defense provision to win so it's irrelevant but even if you were to look at it it seems
like amicus counsel arguing by adding the or for any other reason language the legislature
has turned a perfectly clear language into something unclear. If the legislature had
ended the sentence at it is no defense to this prosecution that a person whom the actor
sought to influence was not qualified to act in the desired way period I don't think
amicus counsel would be saying it's unconstitutionally vague but it would have
the same effect as what we are suggesting today, that it doesn't matter why the person
was not qualified to act. In fact that he gave cameras had not yet assumed office lacked
jurisdiction does not make the provisioner more vague. And for any other reason addendum
perhaps it is possible in some hypothetical case that is so far out that you may say,
well, was that really something the legislature meant to include but I think the principal
of (Inaudible) or I'm not sure if I'm pronouncing that. Not assuming office, not winning
the election are the types of things the legislature was concerned with especially in
the backdrop of the penal code language so I think that's explicitly something that is
not vague and that doesn't really make sense to say that it's vague just because that
catch all provision exist. JUSTICE FASCIALE: Although it wasn't not yet
assuming office. ANGELA CAI: Correct. I guess a hypothetical case could
be someone who was elected chose not to take the position and nonetheless, would that
fall under is it statute I would say yes because it's not the first clause is not yet
assumed office but it is for any other reason. JUSTICE PATTERSON: Read
that as the interim between November and January. ANGELA CAI: I do agree
not yet assumed office is most reasonably to be read the interim period between ell election
and taking office, but for any other reason can certainly include any of the. Examples
and I think when you start to think about the person who has been elected versus the
candidate not yet elected you get into problems with the hypothetical we raise in our
brief which is the land side favorite winner or the unopposed candidate certainly has
not yet been elected right but has the equal opportunity probability whatever it is to
effectuate the problems of the bribe give is enacting. At what point does the candidate
become so likely to win that they are covered by the statute versus not I don't think
that this is an exercise this court wants to engaged in and I certainly don't think t
hat's an Exercise that the legislature intended for the statute to be engaging in.
What the legislature chose is a broad statute. Statutes can be broad but just because
they're broad doesn't mean they're vague and that's the Genesis of the problem with the
amicus counsel position just because the legislature's choice was to be a broad
bribery statute that that it needs to be vague thans true. I just want
to end that something that I thought it wasn't lost in all the hypothetical cans what
is the harm? And I think throughout this case what defendant and amicus counsel has not
grappled with is that the very agreement to put positions of public trust up for sale
by definition denigrates the public's trust in those positions and institutions, that
is why the statute operates based on the agreement and not the actual fulfillment of the
agreement, you can think of any number of examples of a person in position of power something
someone that defendant agrees is covered by the statute ultimately chooses not to take
the action that they took a bribe for. Under their theory no harm has happened because
the position has not actually been sold but that's not what the statute of bribery is
solely designed to cover. It is designed to cover the very act of sending a signal that
decisions are not made in the public's interest or rather for private gain and the Appellate
Division has explained this over 25 years on in Schenkolewski the idea that the promise
is what denigrates that. Public institutions, as no point has defendant identified any
reason why our legislature would want candidates to use the elect Troll process as a
open market for the for these reasons the court should affirm. CHIEF JUSTICE
RABNER: Mr. Hurley you have the last word. LEO J. HURLEY, JR.: Very
briefly. CHIEF JUSTICE RABNER: Please come. LEO J. HURLEY,
JR.: Contrary to what attorney general's office just told you all I actually think the
most important hypothetical that you heard today was the one posed by Judge Sabatino
in the context of that which was said by or discussed by Justice Pierre-Louis. There
is no limit other than the practical considerations of prosecutorial dissection
trot meets and bounds of the statute as articulated boo You the state.
What you've just heard is literally, literally what Judge 11 fare said in his decision,
that the limits of this statute from their perspective taken to its logical conclusion
are as consideration for the performance of official duties to candidates following ell
election or nomination to public office whether likely or unlikely at any future point
in time. There is no temporal nexus, in Ms. Cai's Word V words, the only thing that
matters is the practically of prosecuting the case, there are no limits, and That is not
what this statute is about. This is a statute by its claim terms that does not include
candidates, that is phrased in the present tense, that is designed to target people in
office at the time. Ms. Cai and the AG's office say that's nonsense there's
nothing that stands for that prop it's, I am model penal code stands for the proposition,
the model penal code in its plain language makes Crystal clear that on a purported bribe
give offer as bribe to one who is not a public servant, the preclusion under the conviction
of bribery this results that the bribe give is expressing a to corrupt government who
is a bribe receiver is not who is not a public servant. In such a case, is not corrupting
government but engagening a species of fraud, this is where there's a divergence between
the policy positions being articulated by the State and the plain language of the model
penal code, the language that was just used by the State is that it couldn't have been
contemplated by the legislature that the elect tore rail process and the denigration
thereof that's what they were talking about. But it's not and the model penal code tells
you it's not because the model penal code's commentary makes Crystal clear that it
applies too public official not candidates for office, not the elect tore y'all at charge.
I would ask narrow. I would ask the court view it narrow. The language does not indicate
future use of official duties if you ever get them or you ever succeed to office at some
point in time for identification God knows when. The playing language is simpler I would
ask that the court adhere to the plain language and dismiss the indictment. Thank you.