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The oath of office issue has been labeled a technicality by many and shoulders are shrugged, eyes rolled and deep sighs exuded when a litigant or defendant raises the issue if the judge or other public officer has taken and filed his or her oath, if he or she has the authority to sit on the case and if decisions are void if the judge has no oath or bond.
One of the biggest questions surrounding the oath issue is if rulings are void or deemed de facto if a judge has failed to take and file the Constitutional oath.
No oath, no office in Texas and rulings are void if the judge hasn't taken the oath, according to a 1999 Court of Appeals ruling which is still good law.
In the case of George W. Greer in Florida, who claims to be the Pinellas County probate court judge, public records clearly indicate that he failed to qualify for office as mandated by Florida Statutes by not properly executing his oath of office. As a matter of law, Greer vacated the office he claimed 30 days after the beginning of his term. He lacked legal jurisdiction in every case he's handled since he's claimed office in 1992. His judgments are void-----particularly the death sentence he handed down to disabled Terri Schindler Schiavo.
The issue becomes even more complex in the case of retired visiting judges who aren't elected and acquire their assignments, rotating among courts, by appointment of the Chief Justice.
Such is the case in Ohio with retiring visiting judge Richard Markus in the free speech case of Elsebeth Baumgartner, facing 109 years in state prison for having exercised her First Amendment right to make public criticism of public officers, including Markus. The matter of Markus is further exacerbated by his ownership of a private judicial service and in essence, his double dipping---collecting private fees for judicial services while at the same time collecting a public salary while utilizing state resources for his private business.
According to public records, retired visiting judge Richard Markus, appointed by Chief Justice Thomas Moyer, allegedly has not taken or filed his constitutional oath of office or filed the requisite bond. Therefore all actions he has undertaken against Elsebeth Baumgartner while acting as a retiring visiting judge, and in fact all cases adjudicated, would appear to be null and void.
Even appointed retired visiting judges have to file an oath of office, the Texas Court of Appeals has ruled, and if they have not done so, all acts and decisions rendered are indeed void.
Unfortunately, decisions in the Texas Court of Appeals aren't binding in Ohio or other states but the principles and applicable statutes are generally the same.
"Without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void."
That was the unanimous 3-0 decision rendered in May, 1999 by the Texas Court of Appeals in Prieto Bail Bonds v. the State of Texas and although there have been several challenges to the decision and there is some negative history to the finding, it hasn't been overturned and is still good law.
In fact, the State of Texas asked for a rehearing on the decision and was overruled in 1999.
The case involved the revocation of a bail bond for a defendant who failed to appear for a court proceeding and the judge revoked the bond which had been issued by Prieto. However, Prieto sued, saying that the judge lacked authority to order the bond forfeiture because as a retired appointed visiting judge, he had failed to take his oath of office.
The Texas high court agreed with Prieto and reversed the judge's order.
The decision ruled that judges have to take and file their Constitutional oath of office at the beginning of each and every term and that even after retiring, if judges are appointed to serve as senior judges or in other appointed judicial duties, they are deemed public officers and are required to take and file their Constitutional oaths. No oath, no office and all acts which the imposter judge engaged in during the term in which he acted without having taken the oath were ruled void.
After the criminal defendant failed to appear in court in the Texas case, the presiding judge of the 34th District Court in El Paso County entered judgment forfeiting the $40,000 bail bond. Prieto, the bondsman, appealed the decision. The Court of Appeals initially affirmed the judge's ruling but the Court of Criminal Appeals vacated the ruling and sent it back for reconsideration. Thereafter, the Court of Appeals in an opinion rendered by Judge Larsen, (994 SW 2d 316) held that the senior judge who had signed the judgment was required as an appointed official to take the Constitutional oath and because the judgment was invalid, the application the judge had made for bail forfeiture was supported. The Court reversed the lower court's decision of bail forfeiture.
The appeals court held that according to the Texas State Constitution, retired judges who exercise statutory election to become judicial officers are nevertheless "appointed" to a position of availability by the presiding judge who determined the retired judge's eligibility for service. Thus the retired judge who, as senior judge, signed the judgment ordering the bail forfeiture was not excused from taking the oath that is required of "appointed officers".
The Court found that a senior judge, who held no true permanent office and was merely assigned to various courts from time to time, nevertheless qualified as public "officer" by virtue of his being trusted with independent and sovereign powers, and thus, senior judge, who signed judgment nisi, was not excused from taking oath required of "appointed officers."
"An individual is a public 'officer' within meaning of constitutional provision requiring oaths of appointed officers, if any sovereign function of the government is conferred upon that individual to be exercised for the benefit of the public largely independent of the control of others; public officer is one who is authorized by law to independently exercise functions of either an executive, legislative, or judicial character according to the Texas Constitution, Art. 16, Section 1. Therefore, the court held, that senior judges, as retired visiting judges, must take the oaths of office required of appointed officers under the Texas Constitution.
Oaths of office that the senior judge previously took while serving as district judge and justice of the court of appeals did not survive expired terms of office and satisfy his current constitutional obligation to take oaths, the unanimous appeals court decision held. Those oaths taken previously while the judge had served as a district judge and justice of the court of appeals were incomplete as a matter of law and thus, even if such oaths somehow survived his expired terms of office, they did not satisfy the judge's current constitutional obligation while sitting on the case involving Prieto, where earlier oaths did not include the "anti-bribery" oath then required in Texas, much like the loyalty oath required in Florida.
Because Judge Jerry Woodward, acting as a senior judge, was required to take the constitutional oaths, but did not do so, all judicial actions taken by him, including signing of the judgment nisi in regard to the bond, were without authority, and the state's application for bail bond forfeiture, which depended on judgment nisi issued by Woodward, was unsupported.
In its first point of error, Prieto contended that athe judgment of forfeiture was invalid because the judgment nisi, a procedural prerequisite to the forfeiture, was defective as the judge who signed it failed to take an oath of office. The Court of Appeals initially affirmed the trial court's judgment by holding that the presiding judge was a de facto judge acting under color of title and the only means to challenge his authority was by quo warranto proceeding.
The court of Criminal Appeals, however reversed the ruling and remanded the case for analysis.
Woodard was District Judge of the 34th District Court of El Paso County for 17 years, from 1969 until 1986. He was justice on the Eighth Court of Appeals from 1986 until April 1992. In 1992, he retired and requested assignment as a senior judge pursuant to the Texas Government Code. Judge Woodard took his last oath of office as a judge when he became justice of the appellate court in 1986; that term of office expired upon his retirement in 1992. He had not taken the oaths required by the Texas Constitution since that time.
The Texas Constitution requires that all elected and appointed officers of the State, before taking the oath of office, shall swear or affirm that they have not paid or promised any money or thing of value or promised public office or employment to secure votes or an appointment (the "anti-bribery oath"). This oath must be filed with the Secretary of State before swearing or affirming to the oath of office, in which the officer swears to faithfully execute his or her duties and preserve, protect, and defend the Constitutions of the United States and of Texas.
Pursuant to the Texas Government Code, the presiding judge of the sixth administrative judicial region appointed Judge Woodard to preside over the West Texas Impact Court No. 1. Judge Woodard met all statutory requirements for the appointment. No statute explicitly requires that judges appointed under Section 74 take an oath of office before being assigned to cases as visiting judges.
Prieto contended that, when presiding over this case, Judge Woodard sat as a senior judge without taking the two oaths of office required by the Texas Constitution. Thus, having failed to fulfill the constitutional prerequisites to holding office, his judicial actions were void or voidable, including his signing of the judgment nisi forfeiting the bond in question.
The state made several arguments as to why a senior judge need not take the constitutional oaths upon electing that status. First, the state contended that Judge Woodard was not an officer subject to the oath requirement because he was not 'appointed' to the position of senior judge, nor did he "hold office" as a senior judge. He therefore was not an "appointed officer" required to take an oath under Article 16, Section 1 of the Texas Constitution. In the alternative, the state argued that the oaths Judge Woodard took as a Justice of the Eighth Court of Appeals and as a District Judge satisfied the constitutional requirements.
"Having found that senior judges are 'appointed' and are 'officers,' the appellate court concluded that they must take the oaths required of appointed officers when taking status as a senior judge subject to assignment. We recognize that the position of senior judge does not fit neatly within the traditional notion of an 'appointed officer.' We are hard pressed, however, to hold that one with authority to preside over litigation and adjudicate the interests of the litigants in a courtroom in the State of Texas should, or can, be exempt from taking an oath to preserve, protect, and defend the Constitution and laws of the United States and of the State of Texas", the court ruled.
"The State contends, in the alternative, that the oaths Judge Woodard took as District Judge and Justice of the Eighth Court of Appeals satisfy the constitutional requirements. The State offers no authority in support of this contention and we do not find the argument persuasive. Elected judges must take a new oath with each new term: we can see no logic whereby a senior judge's oath would survive an expired term of office, while that taken by a judge successfully seeking re-election would not. In any event, we find that Judge Woodard's prior oaths were incomplete as a matter of law. Judge Woodard's earlier oaths of office, which were taken in 1986 and before, did not include the 'anti-bribery' oath. This oath was added to the Texas Constitution only in 1989. It was required in 1992 when Judge Woodard took senior status and in 1993 when he entered the judgment nisi in question. Accordingly, even if Judge Woodard's previous oaths continued to bless his status as a senior judge, they did not meet the constitution's requirements at the time he presided over this case.
Because Judge Woodard was required to take the constitutional oaths, but did not do so, all judicial actions taken by him in the case below were without authority, the court held. The Judgment Nisi therefore is without authority. Actions taken by judge who failed to meet all requisites for qualification as retired judge subject to assignment held null and void.
"Because Prieto Bail Bonds raised its complaint about Judge Woodard's qualifications at the trial level, as required……… we need not reach the question of whether his actions in this case were done wholly without authority, and thus are void, or were simply procedurally infirm, and therefore merely voidable. Under either analysis, we must reverse. But we feel bound to observe that the Court of Criminal Appeals has held in a similar situation, involving an "alternative" municipal judge who had never taken the oaths of office, that: "without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void." 5-07-06
© 2006 North
Country Gazette
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