Bill Text: NJ S841 | 2012-2013 | Regular Session | Introduced
Bill Title: Revises the statutes concerning oaths and affidavits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-10 - Introduced in the Senate, Referred to Senate Judiciary Committee [S841 Detail]
Download: New_Jersey-2012-S841-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator JOSEPH F. VITALE
District 19 (Middlesex)
SYNOPSIS
Revises the statutes concerning oaths and affidavits.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning oaths and affidavits, enacting a new title known as Title 41A, and repealing parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. An additional title, Title 41A, is added to the Revised Statutes as follows:
TITLE 41A
OATHS AND AFFIDAVITS
TABLE OF CONTENTS
CHAPTER 1. OFFICIAL OATHS
41A:1-1 Oath of Office; Form
41A:1-2 Oath of Allegiance; Form
41A:1-3 Official Oaths; Persons Required to Take
41A:1-4 Solemnities of Official Oaths
41A:1-5 Official Oaths; Who May Administer
41A:1-6 Signing and Filing of Judicial Oaths
41A:1-7 Enrollment by County Clerk
CHAPTER 2. OATHS AND AFFIDAVITS
41A:2-1 Who May Administer Oaths, Affirmations and Take Affidavits
41A:2-2 Formalities of Oaths, Affirmations and Affidavits
41A:2-3 Oaths and Affidavits Taken Out of State
41A:2-4 Certification in Place of Oath, Affidavit, Affirmation or Declaration
41A:2-5 Oaths to Witnesses in Examinations Before Legislature or Committees; Perjury
41A:2-6 Oaths Administered by Notaries Public in Financial Institutions Matters
41A:1-1. Oath of Office, Form.
If no oath of office is specially prescribed by law for a particular office, the form of the oath of office shall be as follows:
"I, ..............., do solemnly swear (or affirm) that I will faithfully, impartially and justly perform all the duties of the office of ............... to the best of my ability."
Any person taking the oath of office may add the phrase "So help me God."
The taking of an oath of office by affirmation shall have the same effect as a sworn oath of office.
Source: R.S.41:1-3, R.S.41:1-4, R.S.41:1-5, R.S.41:2A-6
41A:1-2. Oath of Allegiance; Form.
The oath of allegiance shall be as follows:
"I, ..............., do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of New Jersey, and that I will bear true faith and allegiance to the same and to the Governments established in the United States and in this State, under the authority of the people."
Any person taking the oath of allegiance may add the phrase "So help me God."
The taking of an oath of allegiance by affirmation shall have the same effect as a sworn oath of allegiance.
Source: R.S.41:1-1
41A:1-3. Official Oaths, Persons Required to Take.
Each of the following, prior to undertaking the duties of office, shall take and sign the oath of office and the oath of allegiance set forth in 41A:1-1 et seq., unless another form of Oath is specially prescribed by law:
a. Every person elected or appointed to any public office in the Executive, Legislative or Judicial branch of this State, including:
(1) The Governor and Lieutenant Governor;
(2) The Chief Justice and each Associate Justice of the Supreme Court;
(3) Every judge of the Superior Court and the Tax Court; and
(4) Every judge of the Office of Administrative Law and the Division of Workers' Compensation.
b. Every judge of a municipal court.
c. Every surrogate, deputy surrogate, and special deputy surrogate.
d. Every person elected or appointed to a public office in this State in any county, municipality or special district, or in any department, board, commission, agency or instrumentality of any of them.
e. Every person appointed to any office in the militia of the State.
f. Every attorney-at-law of the State.
Source: R.S.41:1-2, R.S.41:1-3, R.S.41:2A-1, R.S.41:2A-4, R.S.41:2A-6
41A:1-4. Solemnities of Official Oaths.
Any person taking the oath of allegiance or oath of office prescribed by this Title may do so by uplifting a hand or by placing a hand on religious scriptures. Failure to uplift a hand or to place a hand on religious scriptures shall not affect the validity of the oath.
Source: R.S.41:1-4 and R.S.41:1-5
41A:1-5. Official Oaths, Who May Administer.
a. The oath of office and oath of allegiance of the Governor and the Lieutenant Governor, elect or acting, shall be administered by the Chief Justice or an Associate Justice of the Supreme Court, or a member of the Senate. If the Legislature is in session, the oaths shall be administered in the presence of the Senate and General Assembly at the place they designate.
b. The oath of office and oath of allegiance of a member of the Senate or of the General Assembly shall be administered by a fellow member of the same house.
c. The oath of office and oath of allegiance of the Clerk of the Supreme Court, Clerk of the Superior Court, Secretary of State or Attorney General, shall be administered by the Chief Justice or an Associate Justice of the Supreme Court, or by a judge of the Superior Court or the Tax Court.
d. The oath of office and oath of allegiance of the Chief Justice or an Associate Justice of the Supreme Court shall be administered by a Justice of the Supreme Court;
e. The oath of office and oath of allegiance of a judge of the Superior Court or Tax Court shall be administered by a Justice of the Supreme Court or by a judge of the Superior Court or Tax Court;
f. The oath of office and oath of allegiance of a judge of a municipal court or any surrogate, deputy surrogate or special deputy surrogate shall be administered by a judge of the Superior Court or the Tax Court.
g. If no other provision is made by law for the administration of the oath of office or the oath of allegiance for any State elective or appointive office, the oaths may be administered by:
(1) The Governor or Lieutenant Governor;
(2) A member of the Legislature;
(3) The Chief Justice or any Associate Justice of the Supreme Court;
(4) A judge of the Superior Court or Tax Court;
(5) A judge of the Office of Administrative Law or the Division of Workers' Compensation;
(6) The county clerk of any county.
(7) A commissioned officer of the United States Armed Forces, provided that the signed oath contains a recital that the oath was administered by a commissioned officer, a specification of the officer's rank and official designation, and a statement that the officer taking the oath is a commissioned officer in the United States Armed Forces.
h. If no other provision is made by law for the administration of the oath of office or the oath of allegiance for any elective or appointive office in any county, municipality, school district, or other local government agency, board, committee, commission or other entity, these oaths may be administered by any of the following officers:
(1) Any of the officers enumerated in subsection g. of this section;
(2) Judges of municipal court;
(3) Mayors and other elected municipal officers;
(4) Surrogates, registers of deeds and mortgages, county clerks and their deputies;
(5) Municipal clerks and clerks of boards of chosen freeholders;
(6) Sheriffs of any county;
(7) County Executives, members of the Board of Chosen
Freeholders, and other elected county officials;
(8) Clerks of all courts;
(9) Notaries public;
(10) Commissioners of deeds;
(11) Attorneys-at-law of this State;
(12) Certified court reporters, as defined in section 10 of P.L.1940, c.175 (C.45:15B-10).
Source: R.S.41:2-4, R.S.41:2-5, R.S.41:2-6, R.S.41:2-7, R.S.41:2-8, R.S.41:2-10, R.S.41:2-14, R.S.41:2-15, Section 3 of P.L.1948, c.335 (C.41:2A-3).
41A:1-6. Signing and Filing of Judicial Oaths.
The signed oaths of every Supreme Court Justice, judge of the Superior Court and judge of the Tax Court shall be filed in the office of the Secretary of State.
Source: Section 4 of P.L.1948, c.335 (C.41:2A-4)
41A:1-7. Enrollment by County Clerk.
Upon taking the oath of allegiance and oath of office, the county clerk shall enroll his own name and the time of his being sworn into office, and transmit a copy of the enrollment to the Secretary of State for filing.
Source: R.S.41:2-15, R.S.41:2-12
41A:2-1. Who May Administer Oaths, Affirmations, and Take Affidavits.
a. All ordinary oaths, affirmations and affidavits, other than oaths, affirmations and affidavits required to be taken or made in open court, may be taken by or made before any of the following:
(1) the Governor or Lieutenant Governor;
(2) a Chief Justice or an Associate Justice of the Supreme Court;
(3) a member of the Legislature;
(4) a judge of the Superior Court or the Tax Court;
(5) Judges of municipal court;
(6) Mayors and other elected municipal officers;
(7) Surrogates, registers of deeds and mortgages, county clerks, and their deputies;
(8) Municipal clerks, clerks of boards of chosen freeholders;
(9) Sheriffs of any county;
(10) County Executives, members of the board of chosen freeholders, and other elected county officials;
(11) Clerks of all courts;
(12) Notaries public;
(13) Commissioners of deeds;
(14) Attorneys-at-law of this State;
(15) Certified court reporters, as defined in section 10 of P.L.1940, c.175 (C.45:15B-10); and
(16) a commissioned officer of the United States Armed Forces, provided that the signed oath contains a recital that the oath was administered by a commissioned officer, a specification of the officer's rank and official designation, and a statement that the officer taking the oath is a commissioned officer in the United States Armed Forces.
b. State investigators attached to the Division of Criminal Justice and county detectives and investigators attached to the office of a county prosecutor may administer oaths or take affirmations and affidavits only in relation to a matter involving a violation of the criminal laws of this State.
Source: R.S.41:2-1, R.S.41:2-3, Section 1 of P.L.1939, c. 276 (C.41:2-3.1), Section1 of P.L.1982, c. 221 (C.41:2-3.2)
41A:2-2. Formalities of Oaths, Affirmations and Affidavits.
a. Any person required or permitted by law to take an oath or to make an affidavit may instead make a solemn affirmation in the following form or its equivalent:
"I, ..............., do solemnly affirm the truth of what I say."
b. Any person taking an oath or making an affirmation or affidavit required or permitted by law may do so by uplifting a hand or by placing a hand on religious scriptures. The failure to uplift a hand or to place a hand on religious scriptures shall not affect the validity of the oath.
c. It shall not be necessary to the validity or sufficiency of any oath, affirmation, declaration or affidavit that it is certified under the official seal of the officer before whom it is made.
Source: R.S.41:1-6, R.S.41:1-7
41A:2-3. Oaths, Affirmations and Affidavits Taken Out of State.
a. Any oath, affirmation, or affidavit required or permitted by the law of this State to be made, when made outside of the State, may be administered or taken by the following:
(1) By any notary public of the State, territory, or country in which the oath, affirmation or affidavit is made; or
(2) By any officer authorized by the laws of this State to take an acknowledgment of deeds in the State, territory, or country in which the acknowledgment if being taken.
b. The jurat or certificate of an oath, affirmation or affidavit made outside the State shall contain:
(1) the officer's official designation annexed to his signature; and
(2) a statement that the notary or officer is authorized by the law of that jurisdiction to administer an oath or take an affirmation or affidavit; and
(3) the officer's official seal, if the affixation of a seal is required by the law of the officer's jurisdiction.
The inclusion of these recitals in the jurat or certificate shall be sufficient proof that the person before whom the oath, affirmation or affidavit was made is a notary or officer.
Source: R.S.41:2-17
41A:2-4. Certification in Place of Oath, Affidavit, Affirmation or Declaration.
Any person required or permitted by law to take an oath or to make an affirmation or affidavit before an administering officer, may instead make a written certification in the following form:
"I,..............., hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment."
The certification shall include the person's signature and the date the certification was made.
Source: New (See R.1:4-4)
41A:2-5. Oaths to Witnesses in Examinations Before Legislature or Committees; Perjury.
The President of the Senate, the Speaker of the General Assembly and the chairman of a committee of the whole, or of any select or standing committee of either house of the Legislature, are respectively empowered to administer oaths and affirmations to witnesses, in any matter or case under their examination. Any person who willfully makes a false statement under oath or affirmation shall be guilty of perjury or false swearing under N.J.S.2C:28-1 or N.J.S.2C:28-2.
Source: R.S.41:2-2
41A:2-6. Oaths Administered by Notaries Public in Financial Institutions Matters.
a. A notary public who is a stockholder, director, officer, employee or agent of a financial institution or other corporation may administer an oath to any other stockholder, director, officer, employee or agent of the corporation.
b. A notary public employed by a financial institution may follow directions or policies of the employer which provide that during the hours of the notary public's employment by the financial institution the notary public shall not administer oaths except in the course of the business of the employer.
As used in this section, "financial institution" means a State or federally chartered bank, savings bank, savings and loan association or credit union.
Source: R.S.41:2-3
2. To the extent this act contains provisions not inconsistent with those of prior laws it shall be construed as a continuation of such prior laws and relevant case law interpreting or applying those provisions shall be preserved.
3. The following are repealed:
Revised Statutes:
R.S.41:1-1 through R.S.41:1-7 both inclusive;
R.S.41:2-1 through R.S.41:2-3 both inclusive;
R.S.41:2-4 through R.S.41:2-8 both inclusive;
R.S.41:2-10 through R.S.41:2-15 both inclusive;
R.S.41:2-17 through R.S.41:2-20 both inclusive;
R.S.41:3-1;
R.S.41:3-2.
Pamphlet Laws:
Section 1 of P.L.1939, c. 276 (C.41:2-3.1);
Section 1 of P.L.1982, c. 221 (C.41:2-3.2);
Section 1 of P.L.1948, c.335 (C.41:2A-1);
Section 3 of P.L.1948, c.335 (C.41:2A-3);
Section 4 of P.L.1948, c.335 (C.41:2A-4);
Section 1 of P.L.1951, c.351 (C.41:2A-6).
4. This act shall take effect on the 90th day following enactment and shall apply to all oaths or affidavits taken or administered on or after the effective date.
STATEMENT
This bill would clarify and reorganize the statutes concerning oaths and affidavits set out in Title 41 of the Revised Statutes. The bill would replace the current Title 41 with a new title, Title 41A. The bill was recommended by the New Jersey Law Revision Commission, which has found the current statutes on oaths and affidavits to be repetitive and confusing.
The bill concerns two types of oaths: (1) official oaths (oaths of office taken by public officials), set out in chapter 1 of the new Title, and (2) "ordinary" oaths and affidavits (asserting truthfulness), set out in chapter 2.
Chapter 1: Official Oaths
Chapter 1 of the new Title 41A concerns official oaths. Under the New Jersey Constitution, "every State officer" before taking office must "take and subscribe an oath or affirmation to support the Constitution of this State and of the United States and to perform the duties of his office faithfully, impartially and justly to the best of his ability." (N.J. Const., Art. VII, sec. 1, para. 1.) The statutes have historically separated this requirement into two components: an "oath of office" encompassing the provision concerning performance of the duties of the office, and an "oath of allegiance" encompassing the provision to support the State and United States constitutions. This bill continues this separation.
Currently, several separate statutes in chapters 1 and 2 of Title 41 govern official oaths for various State officers. For example, R.S.41:1-2 concerns the governor and persons appointed or elected legislative, executive or judicial office; R.S.41:2A-1 concerns Justices of the Supreme Court and judges of the Superior Court and Tax Court.
Section 41A:1-1 of this bill would combine the provisions of the source laws into a single section pertaining to the oath of office. This language tracks the language established in the New Jersey Constitution. However, this new section would clarify that the words "so help me God," which are not included in the constitutional text, would be optional.
Section 41A:1-2 of the bill would largely continue what is currently N.J.S.A.41:1-1, pertaining to the oath of allegiance. Like section 41A:1-1, this section would also clarify that the words "so help me God," which are not included in the constitutional text, would be optional. The section also provides that taking an oath of office by affirmation would have the same effect as a sworn oath of office.
Section 41A:1-3 of the bill would consolidate into one statutory section all officials who are required to take official oaths. The bill refers to these officials as follows:
"Every person elected or appointed to any public office in the Executive, Legislative or Judicial branch of this State, including:
(1) The Governor and Lieutenant Governor;
(2) The Chief Justice and each Associate Justice of the Supreme Court;
(3) Every judge of the Superior Court and the Tax Court; and
(4) Every judge of the Office of Administrative Law and the Division of Workers' Compensation.
b. Every judge of a municipal court.
c. Every surrogate, deputy surrogate, and special deputy surrogate.
d. Every person elected or appointed to a public office in this State in any county, municipality or special district, or in any department, board, commission, agency or instrumentality of any of them.
e. Every person appointed to any office in the militia of the State.
f. Every attorney-at-law of the State."
Section 41A:1-4 of the bill, concerning the solemnity of the oath, clarifies that raising a hand or placing a hand on religious scriptures is not required.
Section 41A:1-5 consolidates into one section the various officials who may administer official oaths to particular persons. This section provides, among others, that the Governor's official oath shall be administered by a Justice of the Supreme Court or a member of the Senate; the oath of a member of the Legislature shall be administered by a fellow member of the same house; the oath of the Secretary of State or Attorney General shall be administered by a Justice of the Supreme Court or a judge of the Superior Court or the Tax Court; the oath of the Chief Justice or an Associate Justice of the Supreme Court shall be administered by a Justice of the Supreme Court; the oath of a Superior Court or Tax Court judge by a Justice of the Supreme Court or a Superior Court or Tax Court judge; and the oath of a municipal court judge by a Superior Court or Tax Court judge. The section also provides that if no other provision of law specifies the person who will administer an official oath for State office, the oaths may be administered by the Governor, Lieutenant Governor, a member of the Legislature, a Supreme Court Justice, Superior Court or Tax Court Judge, a judge of the Office of Administrative Law or the Division of Workers' Compensation, the county clerk of any county or a commissioned officer of the United States Armed Forces.
In addition, section 41A:1-5 provides that in the case of county and local officials, if no other provision of law specifies the person who will administer the oath, it may be administered by any of the persons authorized to administer oaths for State offices or by certain other persons, including municipal court judges, mayors, surrogates, county clerks, notaries public and attorneys.
Chapter 2: "Ordinary" Oaths and Affidavits
This bill would also create a chapter 2 of Title 41A, which would govern "ordinary" oaths and affidavits. (those that assert truthfulness).
Section 41A:2-1 of the chapter would consolidate the lists of individuals authorized to administer "ordinary" oaths and affidavits. Currently these individuals are listed in several different sections of law.
Section 41A:2-1 lists those individuals who would be authorized to administer an "ordinary" oath or affidavit, which is an identical list to those individuals who are authorized to administer an official oath found in section 41A:1-5. This would be a clarification of current law. According to the Commission report, "the list of authorized officials in the source sections overlapped and caused confusion. There does not appear to be any reason why an official authorized to administer an official oath may not also administer an ordinary oath."
The Commission report notes that this section is not an exclusive list of officials specifically authorized to administer oaths and affidavits, and that statutes outside of Title 41 which authorize other officials under certain circumstances are still valid. For example, the Commissioner of Banking and Insurance is authorized to examine under oath the officers of foreign banks (N.J.S.A.17:9A-325), and the Secretary of Higher Education is authorized to administer oaths with regard to any matter pertaining to higher education (N.J.S.A.18A:3B-34). This bill would not alter these other statutory provisions.
Section 41A:2-2 clarifies that a person may make an affirmation instead of an oath. It also eliminates the provision in R.S.41:1-6 that refers to a "declaration." The Commission's report states that "there does not appear to be any difference between an affirmation and declaration."
Section 41A:2-3 continues the source section N.J.S.A.41:2-17. The section provides the manner in which any oath, affirmation, or affidavit required or permitted by the law of this State to be made may be administered or taken out of State.
Section 41A:2-4 adds a new provision authorizing a "certification in lieu of oath." This provision is modeled on R.1:4-4(b) of the Rules Governing the Courts of the State of New Jersey. This section provides that any person who takes an oath or makes an affirmation or affidavit before an administering officer may instead make a written certification in the following form:
"I,..............., hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment."
Section 41A:2-5 of the bill would continue N.J.S.A.41:2-2 which provides that the President of the Senate, the Speaker of the General Assembly and the chairman of a committee of the whole, or of any select or standing committee of either house of the Legislature, are respectively empowered to administer oaths and affirmations to witnesses, in any matter or case under their examination. This section also provides that any person who willfully makes a false statement under oath or affirmation shall be guilty of perjury or false swearing under N.J.S.2C:28-1 or N.J.S.2C:28-2.
Under the bill, section 41A:2-6 would continue N.J.S.A.41:2-3, which provides that a notary public who is a stockholder, director, officer, employee or agent of a financial institution or other corporation may administer an oath to any other stockholder, director, officer, employee or agent of the corporation. The section also provides that a notary public employed by a financial institution may follow directions or policies of the employer which provide that during the hours of the notary public's employment by the financial institution the notary public would not be permitted to administer oaths except in the course of the business of the employer.
Section 2 of the bill provides that to the extent the bill contains provisions not inconsistent with those of prior laws it shall be construed as a continuation of such prior laws. This provision is intended to clarify that existing case law, common practices and interpretations pertaining to oaths and affidavits, to the extent they are not inconsistent with this bill, would still be lawful and permissible after the enactment of this bill.
Section 3 of the bill repeals Title 41, which in addition to those statutes replaced by the provisions of this bill includes obsolete provisions regarding the Board of Proprietors of the Western Division of New Jersey, provisions concerning perjury and false swearing which have been obviated by the enactment of the Criminal Code (Title 2C), and provisions concerning coroners (an office which no longer exists).
