If you didn't take, subscribe, and file your oath your office is vacant!
From: Gary Marbut-MSSA
Sent: Saturday, July 11, 2009 11:11 AM
Subject: Oath of office
Dear MSSA Friends,
All persons elected to office in Montana must have taken, subscribed (signed under penalty of perjury) and filed (usually with the county clerk) an oath of office to defend the U.S. and Montana constitutions.
Article III, Section 3 of the Montana Constitution requires:
"Section 3. Oath of office. Members of the legislature and all executive, ministerial and judicial officers, shall take and subscribe the following oath or affirmation, before they enter upon the duties of their offices: 'I do solemnly swear (or affirm) that I will support, protect and defend the constitution of the United States, and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God).' No other oath, declaration, or test shall be required as a qualification for any office or public trust."
Those of you interested in good government in Montana should check with the county clerk to confirm that ALL elected officials, appointed officials, peace officers and others have taken, subscribed and filed the required oath of office. If any of these official have not done all three, they cannot hold office - they have not officially assumed their office and their office is vacant.
This applies to county commissioners, sheriffs, county attorneys, city council members, legislators and everyone else elected to office. It applies to all appointed offices, and to all Montana peace officers. These officials cannot be held to compliance with their oath (to defend the constitutions) unless they have taken, signed and filed the oath.
Pasted below are some Montana statutes and some Montana court cases about this, if you want more detailed information.
Feel free to redistribute this email to interested friends. Do check to see if all local officials have taken, signed and filed the required oath of office. If they haven't, they're imposters. Moreover, every supposedly official act they have done before their oath was taken, signed and filed is void.
Check it out.
Gary Marbut, president
Montana Shooting Sports Association
author, Gun Laws of Montana
1-6-101. Officers who may administer oaths. Every court, judge, clerk of any court, justice, notary public, and officer or person authorized to take testimony in any action or proceeding or to decide upon evidence has power to administer oaths or affirmations.
1-6-102. Form of ordinary oath. An oath or affirmation in an action or proceeding may be administered as follows: the person who swears or affirms expressing his assent when addressed in the following form, "You do solemnly swear (or affirm, as the case may be) that the evidence you shall give in this issue (or matter), pending between .... and ...., shall be the truth, the whole truth, and nothing but the truth, so help you God".
1-6-103. Variation of oath to suit witness's belief. The court shall vary the mode of swearing or affirming to accord with the witness's beliefs whenever it is satisfied that the witness has a distinct mode of swearing or affirming.
1-6-104. Affirmation or declaration in lieu of oath. Any person who desires it may, at his option, instead of taking an oath make his solemn affirmation or declaration by assenting when addressed in the following form: "You do solemnly affirm (or declare), etc.", as in 1-6-102.
2-16-211. Oaths -- form -- before whom -- when. (1) Members of the legislature and all officers, executive, ministerial, or judicial, must, before they enter upon the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support, protect, and defend the constitution of the United States and the constitution of the state of Montana, and that I will discharge the duties of my office with fidelity (so help me God)."
(2) No other oath, declaration, or test must be required as a qualification for any office or public trust.
(3) Except when otherwise provided, the oath may be taken before any officer authorized to administer oaths.
Case Notes: Operation and Effect: This section does not make filing of oath of office a condition precedent to entering upon discharge of duties of office, but 2-16-501 declares that, if officer fails to file his official oath within the time prescribed, the office becomes vacant. State ex rel. Muzzy v. Uotila & Certain Intoxicating Liquors, 71 M 351, 229 P 724 (1924).
2-16-212. Filing. (1) Whenever a different time is not prescribed by law, the oath of office must be taken, subscribed, and filed within 30 days after the officer has notice of his election or appointment or before the expiration of 15 days from the commencement of his term of office when no such notice has been given.
(2) Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially provided, as follows:
(a) the oath of all officers whose authority is not limited to any particular county, in the office of the secretary of state;
(b) the oath of all officers, elected or appointed for any county and of all officers whose duties are local or whose residence in any particular county is prescribed by law and of the clerks of the district courts, in the offices of the clerks of the respective counties.
2-16-501. Vacancies created. An office becomes vacant on the happening of any one of the following events before the expiration of the term of the incumbent:
(1) the death of the incumbent;
(2) a determination pursuant to Title 53, chapter 21, part 1, that the incumbent suffers from a mental disorder and is in need of commitment;
(3) resignation of the incumbent;
(4) removal of the incumbent from office;
(5) the incumbent's ceasing to be a resident of the state or, if the office is local, of the district, city, county, town, or township for which the incumbent was chosen or appointed or within which the duties of the incumbent's office are required to be discharged;
(6) except as provided in 10-1-1008, absence of the incumbent from the state, without the permission of the legislature, beyond the period allowed by law;
(7) the incumbent's ceasing to discharge the duty of the incumbent's office for the period of 3 consecutive months, except when prevented by sickness, when absent from the state by permission of the legislature, or as provided in 10-1-1008;
(8) conviction of the incumbent of a felony or of an offense involving moral turpitude or a violation of the incumbent's official duties;
(9) the incumbent's refusal or neglect to file the incumbent's official oath or bond within the time prescribed;
(10) the decision of a competent tribunal declaring void the incumbent's election or appointment.
3-5-201. Election and oath of office. (1) The judges of the district court, except judges pro tempore, must be elected by the qualified voters of the district.
(2) Except as provided in subsection (1), each judge of a district court must, as soon as he has taken and subscribed his official oath, file the same in the office of the secretary of state.
3-10-202. Oath -- proof of certification. (1) Each justice of the peace, elected or appointed, after he has received his certificate of election or appointment, shall, before entering upon the duties of his office, take the constitutional oath of office, which must be filed with the county clerk.
(2) Before the county clerk may file the oath, the elected or appointed justice must satisfy the clerk that he is certified as provided in 3-1-1502 or 3-1-1503.
5-2-212. Organization of senate. At 12 noon on the day appointed for the meeting of any regular session of the legislature, the senior member present must take the chair, call the senators and senators-elect to order, call over the senators from the certified roster prepared by the secretary of state, and then, from the certified roster prepared by the secretary of state, call over the senatorial districts and counties, in their order, from which members have been elected at the preceding election. After the same are called the members-elect must take the constitutional oath of office and assume their seats. The senate may thereupon, if a quorum is present, proceed to elect its officers.
5-2-213. Organization of house of representatives. At the time specified in 5-2-212, the secretary of state, or in case of his absence or inability then the senior member-elect present, must take the chair, call the members-elect of the house of representatives to order, and then, from the certified roster prepared by the secretary of state, call over the roll of counties and districts. After the same are called the members-elect must take the constitutional oath of office and assume their seats. The house of representatives may thereupon, if a quorum is present, proceed to elect its officers.
7-1-4137. Oath of office. (1) Every elected and appointed municipal officer shall take the oath of office prescribed in Article III, section 3, of the Montana constitution. Before the officer performs any official duties, the oath of office, certified by the official before whom the oath was taken, must be filed. An elected officer shall file the oath with the county election administrator. Except as provided in subsection (2), an appointed officer shall file the oath with the city clerk.
(2) A person appointed to fill a vacancy in an elected municipal office shall file the oath of office with the county election administrator.
7-3-4217. Oath of office and official bond. Every person who has been declared elected mayor or councilman shall, within 10 days thereafter, take and file with the city clerk an oath of office in the form and manner provided by law and shall execute and give sufficient bond to the municipal corporation in the sum of $10,000, conditioned for the faithful performance of the duties of the office. This bond shall be approved by the judge of the district court of the county in which such city is situated and filed with the clerk and recorder of the county in which such city is situated.
7-4-101. Filing of oath of office. Every oath of office, certified by the officer before whom the same was taken, must be filed within the time required by law, except when otherwise specially provided, as follows:
(1) in the office of the secretary of state for all officers whose authority is not limited to any particular county;
(2) in the office of the clerk of the respective county for all elected or appointed officers for any county, all officers whose duties are local or whose residence in any particular county is prescribed by law, and the clerks of the district courts.
7-4-2205. Term of office -- oath. (1) Each person elected to an office named in 7-4-2203 holds the office for the term of 4 years and until a successor is elected and qualified.
(2) A person appointed to any of the different offices serves at the pleasure of the commissioners.
(3) Each officer who is mentioned in this part and who is elected to office shall:
(a) take the oath of office on the last business day of December following the officer's election; and
(b) take office at 12:01 a.m. on January 1 following the officer's election.
7-32-303. Peace officer employment, education, and certification standards -- suspension or revocation -- penalty. (1) For purposes of this section, unless the context clearly indicates otherwise, "peace officer" means a deputy sheriff, undersheriff, police officer, highway patrol officer, fish and game warden, park ranger, campus security officer, or airport police officer.
(2) No sheriff of a county, mayor of a city, board, commission, or other person authorized by law to appoint peace officers in this state shall appoint any person as a peace officer who does not meet the following qualifications plus any additional qualifying standards for employment promulgated by the board of crime control:
(a) be a citizen of the United States;
(b) be at least 18 years of age;
(c) be fingerprinted and a search made of the local, state, and national fingerprint files to disclose any criminal record;
(d) not have been convicted of a crime for which the person could have been imprisoned in a federal or state penitentiary;
(e) be of good moral character, as determined by a thorough background investigation;
(f) be a high school graduate or have passed the general education development test and have been issued an equivalency certificate by the superintendent of public instruction or by an appropriate issuing agency of another state or of the federal government;
(g) be examined by a licensed physician, who is not the applicant's personal physician, appointed by the employing authority to determine if the applicant is free from any mental or physical condition that might adversely affect performance by the applicant of the duties of a peace officer;
(h) successfully complete an oral examination conducted by the appointing authority or its designated representative to demonstrate the possession of communication skills, temperament, motivation, and other characteristics necessary to the accomplishment of the duties and functions of a peace officer; and
(i) possess or be eligible for a valid Montana driver's license.
(3) At the time of appointment a peace officer shall take a formal oath of office.
(4) Within 10 days of the appointment, termination, resignation, or death of any peace officer, written notice thereof must be given to the board of crime control by the employing authority.
(5) (a) Except as provided in subsections (5)(b) and (5)(c), it is the duty of an appointing authority to cause each peace officer appointed under its authority to attend and successfully complete, within 1 year of the initial appointment, an appropriate peace officer basic course certified by the board of crime control. Any peace officer appointed after September 30, 1983, who fails to meet the minimum requirements as set forth in subsection (2) or who fails to complete the basic course as required by this subsection (a) forfeits the position, authority, and arrest powers accorded a peace officer in this state.
(b) A peace officer who has been issued a basic certificate by the board of crime control and whose last date of employment as a peace officer was less than 36 months prior to the date of the person's present appointment as a peace officer is not required to fulfill the basic educational requirements of subsection (5)(a). If the peace officer's last date of employment as a peace officer was 36 or more but less than 60 months prior to the date of present employment as a peace officer, the peace officer may satisfy the basic educational requirements as set forth in subsection (5)(c).
(c) A peace officer under the provisions of subsection (5)(b) or a peace officer who has completed a basic peace officer's course in another state and whose last date of employment as a peace officer was less than 60 months prior to the date of present appointment as a peace officer may, within 1 year of the peace officer's present employment or initial appointment as a peace officer within this state, satisfy the basic educational requirements by successfully passing a basic equivalency test administered by the Montana law enforcement academy and successfully completing a legal training course conducted by the academy. If the peace officer fails the basic equivalency test, the peace officer shall complete the basic course within 120 days of the date of the test.
(6) The board of crime control may extend the 1-year time requirements of subsections (5)(a) and (5)(c) upon the written application of the peace officer and the appointing authority of the officer. The application must explain the circumstances that make the extension necessary. Factors that the board may consider in granting or denying the extension include but are not limited to illness of the peace officer or a member of the peace officer's immediate family, absence of reasonable access to the basic course or the legal training course, and an unreasonable shortage of personnel within the department. The board may not grant an extension to exceed 180 days.
(7) A peace officer who has successfully met the employment standards and qualifications and the educational requirements of this section and who has completed a 1-year probationary term of employment must, upon application to the board of crime control, be issued a basic certificate by the board, certifying that the peace officer has met all the basic qualifying peace officer standards of this state.
(8) It is unlawful for a person whose certification as a peace officer, detention officer, or detention center administrator has been revoked or suspended by the board of crime control to act as a peace officer, detention officer, or detention center administrator. A person convicted of violating this subsection is guilty of a misdemeanor, punishable by a term of imprisonment not to exceed 6 months in the county jail or by a fine not to exceed $500, or both.
Substitute Justice of the Peace Not Duly Authorized or Properly Called -- Search Warrants Invalid: A Justice of the Peace submitted a written waiver request form for proposing substitute Justices of the Peace but failed to create a list of proposed substitutes as required in 3-10-231. One of the designated substitutes took the judicial oath of office, but not in the form required by this section. The substitute justice was called by a Deputy Sheriff, who requested warrants allowing a search of defendant's property. The warrants were issued and executed, but the warrants were challenged by defendants on the grounds that the warrants were not issued by a properly authorized substitute justice. The state argued that the authorization and call-in of the substitute justice were in substantial compliance with the law and that any technical errors in the procedures should not operate to suppress evidence. Applying Potter v. District Court, 266 M 384, 880 P2d 1319 (1994), the Supreme Court held that substantial compliance was insufficient. The procedure used in authorizing the substitute justice with a variant form of the constitutional oath of office was a major discrepancy in the authorization process, and the procedure of providing law enforcement with a menu of substitutes from which to choose clearly violated Potter. The substitute Justice of the Peace was not duly authorized, thus the warrants issued by the substitute were void ab initio. St. v. Vickers, 1998 MT 201, 290 M 356, 964 P2d 756, 55 St. Rep. 859 (1998), distinguishing U.S. v. Leon, 468 US 897, 82 L Ed 2d 677, 104 S Ct 3405 (1984).
"Civil Office" Defined: The words "civil office" as used in Art. V, sec. 7, 1889 Mont. Const., in providing that no Senator or Representative shall, during the term for which elected, be appointed to any civil office, mean any public office not of a military character. State ex rel. Barney v. Hawkins, 79 M 506, 257 P 411 (1927).
To make any position of employment a public office of a civil nature, it must be created by the state Constitution or by the Legislature or created by a municipality pursuant to authority delegated to it; it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the Legislature or through legislative authority. The duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature and by it placed under the control of a superior office or body. It must have permanency and continuity, and the incumbent must take and file an oath, hold a commission, and give an official bond, if required by proper authority. State ex rel. Barney v. Hawkins, 79 M 506, 257 P 411 (1927). See also State ex rel. Nagle v. Page, 98 M 14, 37 P2d 575 (1934).
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