Where Did Last Week Go?

Last week was a hectic week. So much so that two particularly significant Appellate Division opinions did not get covered here. Belatedly, here are summaries of those two opinions (shamelessly borrowed verbatim from the well-written opinions themselves):

State v. O’Donnell, 471 N.J. Super. 360 (App. Div. 2022). Judge Fisher’s opinion in this case concisely summarized the issue and the court’s ruling in the first two paragraphs of the decision:

“N.J.S.A. 2C:27-2 imposes criminal liability on ‘person[s]’ who offer or accept from another ‘[a]ny benefit as consideration’ for, among many things, the performance of official duties. A grand jury charged defendant Jason M. O’Donnell with a violation of N.J.S.A. 2C:27-2 based on evidence that, during his 2018 campaign for the office of Bayonne Mayor, he agreed to accept from an attorney $10,000 in “street money” in exchange for becoming Bayonne’s tax attorney once defendant was elected. Defendant wasn’t elected.

Because he never took office and was never able to perform his part of this alleged corrupt bargain, defendant moved for a dismissal of the indictment, claiming N.J.S.A. 2C:27-2 does not criminalize an unsuccessful candidate’s acceptance of a bribe. In granting the motion, the trial judge agreed with defendant’s interpretation largely because that is how the statute was interpreted in United States v. Manzo, 851 F. Supp. 2d 797 (D.N.J. 2012). In rejecting both the trial judge’s decision and the Manzo decision, we conclude N.J.S.A. 2C:27-2’s plain language reveals an intent to render unlawful what defendant is alleged to have done and that the statute imposes criminal liability on bribe-accepting but unsuccessful candidates for public office.”

The Appellate Division’s opinion is unusually passionate and is well worth reading in full. The bottom line, as Judge Fisher stated, is that candidates who take bribes but, despite that, do not succeed in getting elected, do not get a “get out jail free” card by virtue of their electoral failure.

Facebook, Inc. v. State of New Jersey, 471 N.J. Super. 430 (App. Div. 2022). This case was so important to Facebook that it retained one of the nation’s leading appellate advocates, from a Washington, DC law firm, to argue on its behalf before the Appellate Division. Like Judge Fisher in O’Donnell, Judge Rothstadt, writing for the panel in this case, encapsulated the basics at the start of his opinion:

“In these two appeals, which we calendared back to back and have consolidated for the purpose of writing one opinion, we are asked to determine as a matter of first impression whether communication data warrants (CDWs) or, conversely, wiretap orders had to be served on Facebook, Inc. n/k/a Meta Platforms, Inc. (Facebook) in order for law enforcement officers to secure prospective electronically stored information from two of Facebook’s users’ accounts as part of separate ongoing criminal investigations. For the reasons stated in this opinion, we conclude that only the CDWs and not wiretap orders were required, where, as here, the data sought was from information that would be stored by Facebook as compared to simultaneous transmission of information through interception. However, we also conclude the CDWs relied upon in these two matters were too lengthy in duration under our state’s warrant procedures, and therefore require modification, as discussed herein.”

The Appellate Division affirmed, as modified, the ruling of the Law Division that quashed the subject subpoenas, “without prejudice to the State’s ability to reapply to the trial courts for approval of warrants consistent with the limitations set forth in this opinion.” The result may not satisfy either the State or Facebook.

Either or both of these decisions may result in Supreme Court review should parties seek it. Stay tuned.