Bill > S1123

Introduced Session

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 council of proprietors of West 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).

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Joe Vitale (D)*, 

Introduced in the Senate, Referred to Senate Judiciary Committee (on 01/25/2018)