God, Rule 122 and other lore.

Today, I attended a continuing legal education class, sponsored by the Colorado Bar Association, which had some helpful hints on how an attorney's practice is influenced by a variety of court rules recently adopted or about to be adopted. I learned a lot.

I also discovered an unusual provision of one of those rules, adopted effective July 1, 2005, which is newly adopted Rule 122. Colorado Rule of Civil Procedure 122 implements a statute, Section 13-3-111 of the Colorado Revised Statues, adopted twenty-five years ago, and amended a few times since, which permits litigants, by mutual agreement, to have their cases tried before a retired judge who has be deputized by the Chief Justice of the Colorado Supreme Court, with all of the powers and limitations of an ordinary judge, at the sole expense of the litigants. The law hasn't been used much. Our speaker advised us that since about 2000 when it was rediscovered by a frustrated divorce lawyers, it has been used about five times a year. Before that, it was used far less frequently.

The statute allows the courts to adopt implementing court rules to deal with this kind of judge, who is called an "appointed judge," but the court system didn't finally get around to doing so until last summer. According to our speaker, Richard P. Homle, a senior trial partner at the law firm of Davis Graham & Stubbs LLP, the Chief Justice Mary Mullarkey was a driving force in getting the new rule adopted, and he also worked on the committee that drafted the new rule.

Overall, it is a well drafted rule. The odd part of the Rule is Colorado Rule of Procedure 122(c)(7) which sets forth one of the required contents of a Motion to have an appointed judge named in a case. It states that the Motion to have a judge appointed must include:

A copy signed by the Appointed Judge of the following oath: "I, (name of Appointed Judge), do solemnly swear or affirm by the ever living God, that I will support the Constitution of the United States and of the State of Colorado, and faithfully perform the duties of the office upon which I am about to enter."

(Emphasis added).

The clause "do solemnly swear or affirm by the ever living God" also has the noxious character, given its word order and lack of punctuation, of having the word "affirm" appear to be modified by the words "the ever living God", which sort of defeats the purpose of an affirmation, both for those who don't want to swear because they, out of their religious beliefs, feel it violated the Ten Commandments by taking the Lord's name in vain, and those who would prefer to affirm because they don't wish to assent to the existence of a God.

After the presentation was over, I asked Mr. Holme where the unusual oath came from, and he stated that the committee didn't make it up, that it was the standard oath taken by every judge in the state, and that he believed it came from a statute or the state constitution. I fully believe that he was being honest with me regarding his belief, but being inquisitive and being spoiled by having a Colorado Lexis-Nexis account with a flat monthly fee for Colorado searches, I did a search to further look into the issue.

It turns out that the word God almost never appears in Colorado's statutes apart from the non-religious idiom "act of God.", and a description of the State Seal at Section 24-80-901, Colorado Revised Statutes, which has the same masonic "eye of God" symbol found on the dollar bill.

The oath of a grand jury ends with the coda "so help you God." Section 13-72-105, Colorado Revised Statutes. A similar coda is found for the obscure post of a juror on a coroner's jury, Section 30-10-607, Colorado Revised Statutes, although this form need only be "in substance" similar to the suggested form. The oath for witnesses at a coroner's inquest, Section 30-10-610, Colorado Revised Statutes, contains no such qualification. Grand juries are rare in Colorado because in Colorado practice, unlike federal practice, prosecutors can charge someone with a felony without one, thus use them only in political cases and cases requiring certain kinds of confidential investigations. Coroner's inquest juries, which have six jurors, are called only on very rare occasions, in the coroner's discretion, such as an unsolved 1995 murder in Pueblo, where are about 80 deaths in Colorado each year on average, with undetermined unnatural causes, and only a small proportion of them are resolved through coroner's juries. Cornor's inquests are a quasi-judicial sort of public grand jury to determine a cause of death, designed primarily to free the coroner from political responsibility for exercising his or her professional judgment in a close or highly public case.

The U.S. Presidential oath is often taken with the same coda, but in fact reads "I do solemnly swear (or affirm) that I will faithfully execute the office of president of the United States, and will, ot the best of my ability, preserve, protect, and defend the constitution of the United States." United States Constitution, Article II, Setion 1, Clause 9.

Colorado's state constitution offers this secular take on oaths:

Every civil oficer, except members of the general assembly and scuh inferior officers as may be by law exempted, shall, before he entered upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States, and of the state of Colorado, and to faithfully perform the duties of the office upon which he shall be about to enter.

Colorado Constitution, Article XII, Section 8.

This is similar to the Rule 122 oath, and a similar religious phrase is permitted, but not required, by state statute:

Whenever any person is required to take an oath before he enters upon the discharge of any office, position, or business or on any other lawful occasion, it is lawful for any person employed to administer the oath to administer it in the following form: The person swearing, with his hand uplifted, shall swear "by the everliving God".

Section 24-12-101, Colorado Revised Statutes.

This statute dates back to, at least, 1877, although the pre-1973 history does not reflect amendments that may have occurred prior to 1973. (The statutory history reads: "G.L. § 1925. G.S. § 2471. R.S. 08: § 4669.C.L. § 7958.CSA: C. 115, § 1.CRS 53: § 98-1-1.C.R.S. 1963: § 98-1-1." G.L. is the 1877 version of the General Laws of Colorado, adopted to clarify which territorial laws remained on the book after Colorado became a state in 1876. G.S. is the general statutes of Colorado published in 1883. R.S. 08 is the revised statutes of 1908.) Hence, it far predates modern First Amendment jurisprudence, the clear establishment of law that shows that no religious test may be required for public office means that not even a belief in God may be required, and it predates the notion that the First Amendment applies to the states (this law was likely carried over from territorial days and may predate the 14th Amendment which is the basis for that legal doctrine).

In the only known case that has interpreted Colorado's form of oath statute, a divided Colorado Supreme Court once overturned a perjury conviction for a lack of proof that an oath was administered at all, but didn't specifically hold that it had to contain those words. Rogers v. People, 161 Colo. 317, 422 P.2d 377 (1966) (the dissenter argued that a contemporaneous written document reciting that an oath had been administered in connection with the perjured statement was a sufficient evidentiary basis upon which to the jury could have concluded beyond a reasonable doubt that an oath was indeed administered). Perhaps, the Court was feeling generous two days after Christmas when the case was decided.

Bottom line: The oath is Colorado Rule of Civil Procedure 122(c)(7) is not required by either the state constitution or state law, espouses a particular view about God that is not universally shared, goes beyond mere ceremonial deism, and is not something that the State Supreme Court should be adding to the Rules of Civil Procedure in 2005. The nearly universal drafting practice in other Colorado statutes and other parts of the Colorado Rules of Civil Procedure, is to not specify a specific form of oath. To do so was in this case was an unnecessary and improper move which may be unconstitutional under both the state and federal constitutions.

Indeed, we would do well to repeal all four of the obscure instances where the statutes expressly provide for including God in oaths, two mandatorily and two voluntarily, as well as the form of oath in C.R.C.P. 122(c)(7). While we are at it, it wouldn't hurt to repeal the vestigal institution of the coronor's jury entirely, either. We do need someone with subpeona power to determine a cause of death in difficult cases (which coroner's would have anyway), and we occasionaly find it useful to have grand juries establish whether crimes were committed, but we don't need another institution which is half of each.