by Jerry Kopel
Oaths, affirmations, and subpoenas. You might expect to see some if the present clashes between the governor and the legislature increase in 2006.
Putting legislative witnesses under oath is not new. The original language in our state statutes for 120 years was 1877-1997.
It read in CRS 2-2-315: "The chairman or any member of any committee appointed by either branch of the general assembly of this state, or any member of any joint committee appointed by the two houses of the general assembly, is authorized to administer oaths and affirmations to witnesses, touching on any matter or thing which may be under consideration or investigation of the committee."
In 1997, then-Rep. Mark Paschall, R-Arvada, vice-chairman of State Affairs Committee, had Dr. Warren Hern sworn in as a witness first on Rep. Barry Arrington's (R) partial birth abortion measure, and next on Rep. Doug Lamborn's (R) measure on late term abortions.
The battle (and there was one) was whether Dr.Hern, as to the second bill considered, would be forced to swear an oath, as provided in CRS 24-12-101 "The person swearing, with his hand uplifted, shall swear by the everliving God", or whether Dr. Hern could use CRS 24-12-102: (If a) "person has conscientious scruples against taking an oath, he shall be permitted to make his solemn affirmation.."You do solemnly, sincerely, and truly declare and affirm."
Rep. Paschall insisted the legislature's Legal Services department, in a footnote to CRS 2-2-315 suggested using the oath found in CRS 24-12-101. This footnote was totally wrong (and is also wrong in the 2005 statutes) in overlooking CRS 24-10-102 and also failing to consider CRS 2-4-401 (7) "Oath" includes affirmation and "swear" includes affirm.
CRS 2-4-401 begins "The following definitions apply to every statute, unless the context otherwise requires."
If Paschall wanted publicity, he got it. Unfortunately, he also destroyed the strength of the oath provision for most legislators.
In the same year, 1997, the legislature passed and the governor approved HB 1145 by Rep. Bill Kaufman (R) and Sen. Dick Mutzebaugh (R) which supposedly strengthened criminal laws. Buried in the bill was a rewrite of the oath provision. The authority to require an oath is now limited to the chairman of the committee.
If the new version had been in effect at the start of the 1997 session, Rep. Paschall, as vice-chairman of State Affairs Committee, could not have required an oath from Dr. Hern. The media reported the battle between Hern and Paschall, but never reported the change in the law.
The other tool is the subpoena, which is set out in detail in the joint rules of the House and Senate. The effect of the rule is that a witness may be subpoenaed, be required to testify under oath and to "assemble records, documents, and other evidence..." The statute used is CRS 2-2-313, based on Article 5, Section 12 of the state constitution which gives each house power "to enforce obedience to its process."
Use of the power has to be approved by a majority of the committee or by the house or senate.
I was involved with one committee that used the oath and subpoena. It was the Judiciary Interim Committee, holding hearings from August to October of 1979, investigating appointments by Gov. Richard Lamm of judges. All witnesses were sworn in.
The committee, by five Republicans vs. four Democrats, voted to subpoena witnesses even though no one had refused to attend the hearings.
The intimidation of possible subpoena or taking an oath is often sufficient without using the powers. Abuse of the power weakens the power.
(Jerry Kopel served 22 years in the Colorado House. This column first appeared in the Colorado Statesman.)
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