Tuesday, August 19, 2014

Governor's administering oath to Rush was ceremonial, not official

Loretta H. Rush has become Chief Justice of Indiana. She's the fifth justice to serve in that capacity since a 1970 amendment made it a permanent office. Before that, justices had rotated into the role.

In one of the stories covering her swearing-in ceremony, I learned that the Indiana Code doesn't give a governor the power to swear in a chief justice. Apparently, every chief justice has been ceremonially sworn in by the sitting governor. (See the video here at 1:43) Of course, the news coverage didn't provide a section, so I just had to look it up. Very soon into my journey, I realized why the young journalists didn't say any more. It's no simple task.

The long and short of it is that there are many, many places authorizing people to "administer oaths" and a handful of places saying something like a specific person "shall administer the oath of office." Nowhere in any of those is the governor mentioned. But where did then-Chief Justice Dickson's power to administer now-Chief Justice Rush's oath of office come from? Even that answer isn't straightforward.


What gives the chief justice power to administer oaths?

Ind. Code § 33-42-4-1 (yes, that's in the article governing notaries public) lists people who are granted authority to "subscribe and administer oaths and take acknowledgements of all documents pertaining to all matters where an oath is required":
  • Notaries public
  • Official court reporters 
  • Justices and judges of courts, in their respective jurisdictions 
  • The secretary of state
  • The clerk of the supreme court
  • Mayors, clerks, clerk-treasurers of towns and cities, and township trustees, in their respective towns, cities, and townships
  • Clerks of circuit courts and master commissioners, in their respective counties.
  • Judges of United States [federal] district courts of Indiana, in their respective jurisdictions.
  • United States commissioners appointed for any United States district court of Indiana, in their respective jurisdictions.
  • A precinct election officer (as defined in IC 3-5-2-40.1) and an absentee voter board member appointed under IC 3-11-10, for any purpose authorized under IC 3.
  • A member of the Indiana election commission, a co-director of the election division, or an employee of the election division under IC 3-6-4.2.
  • County auditors, in their respective counties.
  • Any member of the general assembly anywhere in Indiana.
  • The adjutant general of the Indiana National Guard, specific active duty members, reserve duty members, or civilian employees of the Indiana National Guard designated by the adjutant general of the Indiana National Guard, for any purpose related to the service of an active or reserve duty member of the Indiana National Guard.
The caselaw interpreting this provision deals exclusively with oaths affirming the truth of some statement or document, not oaths of office.

Ind. Code § 33-24-3-5 also provides, "The supreme court may … impose and administer all necessary oaths." The rest of this section provides for holding people in contempt and compelling attendance, so the context suggests this is for oaths of witnesses and similar oaths, not oaths of office.

Essentially, today's task was an attempt to prove a negative: the governor doesn't have this power. So I pretty much looked everywhere. While I was at it, I came across a few other interesting tidbits.

Indiana doesn't have an official oath

We're all aware of the U.S. Constitution's oath for the President of the United States. It's right there in the text of Article II § 1: "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" There is no guidance for any other officers in the federal constitution.

But Indiana doesn't have an equivalent. Its constitution, out of concern for freedom of conviction and to ensure that all people would be bound by the oaths they take, states, "The mode of administering an oath or affirmation, shall be such as may be most consistent with, and binding upon, the conscience of the person, to whom such oath or affirmation may be administered." Ind. Const. art. 1 § 8. For oaths of office, it gives some guidance in Article 15's Section 4: "Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath or affirmation, to support the Constitution of this State, and of the United States, and also an oath of office."

The Code doesn't give much more guidance for most offices. It does have a general provision:

Oaths; officers and deputies; prosecuting attorneys and deputies
     Sec. 1. (a) Except as provided in subsection (c), every officer and every deputy, before entering on the officer's or deputy's official duties, shall take an oath to support the Constitution of the United States and the Constitution of the State of Indiana, and that the officer or deputy will faithfully discharge the duties of such office.
    (b) A prosecuting attorney and a deputy prosecuting attorney shall take the oath required under subsection (a) before taking office.
    (c) This subsection applies to a deputy of a political subdivision. An individual appointed as a deputy is considered an employee of the political subdivision performing ministerial functions on behalf of an officer and is not required to take the oath prescribed by subsection (a). However, if a chief deputy assumes the duties of an office during a vacancy under IC 3-13-11-12, the chief deputy must take the oath required under subsection (a) before entering on the official duties of the office.
(I.C. § 5-4-1-1)

Here are places where the Code gives some guidance:
  • Attorney general "shall take and subscribe an oath of office to be administered to him in the usual form by any officer authorized to administer oaths, which oath shall be deposited in the office of the secretary of state." (I.C. § 4-6-1-3; see also I.C. §§ 4-6-1-4, 4-6-5-2, 4-6-6-2 (deputies and similar officers of the attorney general))
  • Oath of office "filed with the secretary of state" (I.C. § 4-12-1-3 (budget director); I.C. § 4-15-1.5-4, )
  • Agents who must file with the heads of their agencies (I.C. 4-33-4.5-2 (gaming agents), I.C. § 4-33-20-12 (gaming control officers))
Some officers have broader guidelines for what the oath should contain
  • Gaming commissioners ("that the member will faithfully execute the duties of the member's office according to Indiana law and rules adopted under Indiana law") (I.C. § 4-33-3-12)
  • Referees (same oath of office as provided for the judge") (I.C. § 33-35-3-5)
Some officers actually do have a statutory oath:
  • Interpreters for administrative proceedings under the Administrative Orders and Procedures Act (AOPA) (I.C. § 4-21.5-3-16)
  • Grand jurors (I.C. § 35-34-2-3(e))

 

Customary oath

There are basics to a customary oath that most officials take. It varies from person to person, so I'll share a couple I found.

Governor Pence

I, Michael R. Pence, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Indiana and that I will faithfully, impartially, and diligently discharge the duties of the office of Governor of the State of Indiana according to law and to the best of my abilities, so help me God.

Video here.

Chief Justice Rush

Chief Justice Rush has now taken four oaths on the Indiana Supreme Court: a written oath, a ceremonial oath for her robing ceremony, an oath with then-Chief Justice Dickson to become Chief Justice, and a ceremonial oath with Governor Pence. I've found records of three of them:

Her signed, written oath to assume the duties of a justice:

https://www.flickr.com/photos/incourts/8164351042/in/set-72157631953094015

Her ceremonial oath at her robing ceremony:


I, Loretta H. Rush, do solemnly swear that I will support the Constitution of the United States, and the Constitution of the State of Indiana, and that I will faithfully and impartially discharge my duties, as Justice of the Indiana Supreme Court, to the best of my skill and ability, so help me God.

Video at http://www.in.gov/judiciary/citc/3582.htm, oath starts at 37:30

And her ceremonial oath administered by Governor Pence to become Chief Justice:
        
I, Loretta H. Rush, do solemnly swear that I will uphold the Constitution of the United States and the Constitution of the State of Indiana and that I will faithfully and impartially discharge my duties, as Chief Justice of Indiana to the best of my skill and ability, so help me God.


Video at http://www.in.gov/judiciary/4220.htm, where the oath starts at 16:15.

Chesterton Town Council members in 2008

I do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Indiana, and that I will faithfully, impartially, and diligently discharge the duties of the office of Town Council Member, according to law and to the best of my ability.

Found in a Chesterton Tribune article here


Places where the Indiana Code specifies the person to administer particular oaths

Indiana Senate (Ind. Code § 2-2.1-1-6)

  • The President of the Senate (who is the Lieutenant Governor under Ind. Const. art. 5 § 11)  presides at the Senate's organizational meeting for the election of the President Pro Tempore and other officers. If the President is unable, the Chief Justice or a designated associate justice presides.
  • The oath is administered to "senators-elect by the Chief Justice of the Supreme Court of Indiana, or an associate justice designated by the Chief Justice."
  • The C.J. also administers the oath to the President Pro Tempore.

Indiana House of Representatives (Ind. Code § 2-2.1-1-7)

  • The Secretary of State presides at the House's organizational meeting for the election of the Speaker of the House. If the Secretary of State is unable, the Chief Justice or a designated associate justice presides.
  • The oath is administered to "representatives-elect by the Chief Justice of the Supreme Court of Indiana, or an associate justice designated by the Chief Justice."
  • The C.J. also administers the oath to the Speaker.
  • The Speaker presides and swears in other officers after that.

Conventions to amend the United States Constitution proposed by Congress

  • "A justice of the supreme court shall administer the oath of office." (I.C. § 3-10-5-26)

Verification of amounts spent by Supreme Court Clerk for books and stationery

  • "The account presented by the clerk must be verified by an oath taken and subscribed by the clerk, to be administered by a justice of the [Supreme] court." (I.C. § 33-24-4-3)

Members of the Egg Board

  • The oath of office for members of the state egg board "shall be filed in the office of the secretary of state. The secretary of state shall administer the oath as part of the duties of the office of secretary of state." (I.C. § 16-42-11-4(d))


Others who have the power to administer oaths

 There really are two basic kinds of oaths: those that you promise to fulfill your obligations in an office and those that you promise you're telling or will tell the truth. But the Indiana Code doesn't do a very good job of distinguishing between the two. Sometimes the text itself specifies that the oath authorized is for truth-telling or for matters before the body. Other times, the context suggests that truth-telling oaths are what's intended. Most of the time, however, the statute merely gives a person the power to "administer oaths." Here is a collection of people I found in today's tangential journey who are authorized to administer oaths of one kind or another. They are in no particular order. And, you'll notice the list is pretty long, and I have no illusions that it is comprehensive. But the governor's not on the list or anywhere related to oaths.
  • Judges of city or towns (I.C. § 33-35-2-1(a)(3))
  • Indiana board of tax review and its administrative law judges (I.C. § 6-1.5-5-9)
  • Chief clerks in Marion and Lake Counties ("oaths that are convenient or necessary to be administered in the discharge of the clerk's duties") (I.C. § 33-38-4-3)
  • Precinct election inspectors (for "judges, poll clerks, assistant poll clerks, and election sheriffs that they will faithfully discharge their duties") (I.C. § 3-6-6-19)
  • Precinct election judges where no authorized person is present and only to administer the oath to the election inspector, who then administers oath to others, including election judge (I.C. § 3-6-6-20)
  • Appointed probate hearing judges, probate commissioners, referees, and bail commissioners ("oaths … in connection with duties") (I.C. § 33-33-49-16)
  • State employees appointed by heads of state agencies "in matters pertaining to said office" (I.C. § 4-2-4-1)
  • Inspector general (I.C. § 4-2-7-4)
  • Attorney general, deputies, and assistants "authorized to administer oaths and take acknowledgements throughout Indiana" (I.C. § 4-6-1-5)
  • Auditor of state ("oaths in the adjustment or settlement of all claims for or against the state") (I.C. § 4-7-1-4)
  • State board of accounts or gubernatorially appointed accountant ("oaths to the treasurer of state, the auditor of state, or their employees for the purpose of obtaining sworn testimony" in an audit) (I.C. § 4-8.1-1-6)
  • State personnel department (I.C. § 4-15-2.2-48)
  • Administrative law judges under AOPA (I.C. § 4-21.5-3-25(e))
  • State lottery commission (I.C. § 4-30-3-2)
  • Indiana Gaming Commission ("[f]or purposes of conducting an investigation or a proceeding under" the article governing charity gaming (I.C. § 4-32.2-3-2); "for the purposes of administering, regulating, and enforcing the system of riverboat gambling ... [a]dminister oaths and affirmations to the witnesses" (I.C. § 4-33-4-1); "for purposes of administering regulating, and enforcing the system of gambling games at racetracks ... administer oaths and affirmations to the witnesses" (I.C. § 4-35-4-1); and "[f]or the purposes of conducting an investigation or a proceeding" concerning type II gambling operations")
  • Judges of small claims courts in Marion County (Ind. Code § 33-34-4-1 provides, "A judge may … administer oaths.")
  • Foremen of grand juries ("to any witness appearing before the grand jury")
  • Commission on Judicial Qualifications ("to witnesses in a matter under the commission's jurisdiction") (I.C. § 33-38-13-30)
  • Unemployment Insurance Board, Department of Workforce Development, the Unemployment Insurance Review board, and administrative law judges at administrative hearings (I.C. § 22-4-19-8; I.C. § 22-4-17-7 (and their authorized representatives))
  • Wayne Superior Court No. 3 judge (for some reason, the general article on superior courts doesn't apply to court 3) (I.C. § 33-33-89.3-5)
  • Trustees of trusts "to a creditor in reference to the validity and justice of a claim" filed with the trustee related to assignments of real property (I.C. § 32-18-1-16)
  • Tippecanoe Superior Court judges (I.C. § 33-33-79-11(b)(1))
  • Vanderburgh Superior Court judges (I.C. § 33-33-82-12)
  • Vigo Superior Court judges (I.C. § 33-33-84-7)
  • Wayne superior court No. 2 (I.C. § 33-33-89.2-8)
  • Wayne superior court No. 1 (I.C. § 33-33-89-8)
  • Circuit courts ("all necessary oaths") (I.C. § 33-28-1-5)
  • Members and masters of the Commission on Judicial Qualifications ("to witnesses in a matter under the jurisdiction of the commission")
  • Clerks of second-class cities (I.C. § 33-35-3-2)
  • Liability administrative law judges of the Department of Workforce Development (I.C. § 22-4-32-2)
  • Private judges ("for each case the private judge hears") (I.C. § 33-38-10-4(b))
  • Marion superior court judges (I.C. § 33-33-49-11)
  • Grant superior court No. 2 judge (I.C. § 33-33-27.2-7)
  • Morgan superior court judges (I.C. § 33-33-55-7)
  • Tippecanoe superior court No. 2 (I.C. § 33-33-79.2-7(b))
  • Tippecanoe superior court No. 3 (I.C. § 33-33-79.3-5)
  • Judges of standard superior courts (I.C. § 33-29-1-4)
  • Joseph County Probate Court (I.C. § 33-31-1-16(b))
  • Grant Superior Court No. 3 (I.C. § 33-33-27.3-5)
  • Porter superior court judges (I.C. § 33-33-64-6)
  • Lake superior court judges (I.C. § 33-33-45-8(b))
  • Administrative law judges of the Indiana Board of Tax Review ("to obtain information that is necessary to the Indiana board's conduct of a necessary or proper inquiry") (I.C. § 6-1.5-4-2)
  • City and town clerks ("when necessary in the discharge of the clerk's duties, without charging a fee") (I.C. § 36-4-10-4)
  • Notaries public (I.C. § 33-42-2-5)
  • Civil Rights Commission (I.C. § 22-9-1-6(h))
  • The parole board ("administer oaths and take testimony of persons under oath") (I.C. § 11-9-1-2)
  • Board of Massage Therapy ("in matters relating to the discharges of the official duties of the board") (I.C. § 25-21.8-3-1(b))
  • Probate commissioners and referees of courts in Allen County (I.C. § 33-33-2-14(f))
  • Temporary judges ("oaths required by law") (I.C. § 33-38-11-2)
  • Magistrates ("oaths required by law") (I.C. § 33-23-5-5)
  • Part-time juvenile court referees ("in the performance of duties assigned by the juvenile court") (I.C. § 31-31-3-6)
  • Tippecanoe superior courts Nos. 4, 5, and 6 (I.C. § 33-33-79.4-5)
  • St. Joseph superior court judges (I.C. § 33-33-71-11)
  • Probate commissioners and juvenile referees in Vigo County (I.C. § 33-33-84-9)
  • Officers of the National Guard appointed to a summary court "for breaches of discipline and violations of laws when governing the organizations" (I.C. § 10-16-9-2(e))
  • Local civil-rights commissioners, where local ordinances grant the power (I.C. § 22-9-1-12.1(c))
  • Allen superior court judges (I.C. § 33-33-2-12)
  • Judges of Warrick superior courts Nos. 1 and 2 (I.C. § 33-33-87-9)
  • Town clerk-treasurers (I.C. 36-5-6-6(a))
  • County auditors ("oath of office to an officer who receives the officer's certificate of appointment or election from the auditor" and "to a member of the board of directors of a solid waste management district established under IC 13-21 or IC 13-9.5 (before its repeal)") (I.C. §§ 36-2-9.5-6 (Marion County); 36-2-9-9(a))
  • Circuit court clerks ("A clerk may administer all oaths.") (I.C. § 33-32-2-5)

My oath for Indiana

On a personal note, this subject first caught my interest when researching the oath of office for Indiana YMCA Youth and Government students to take at the beginning of its annual Model Government. Here's the oath we settled on:


I, [state your name]
do solemnly swear
that I will support the Constitution of the United States
 and the Constitution of the State of Indiana
 and that I will faithfully, impartially, and diligently
 discharge the duties of my office
 in Indiana YMCA Youth and Government
 to the best of my abilities, so help me God.






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