Jerry Kopel


Putting legislative witnesses under oath is no big deal. The language has been in our state statutes for 120 years (General Laws 1877, section 1928).

Recently Rep. Mark Paschall (R) had Dr. Warren Hern sworn in as a witness in State Affairs committee hearings, first on Rep. Barry Arrington's partial-birth abortions measure and next on Rep. Doug Lamborn's measure on late term abortions.

The wording on oaths is now found 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 the consideration or investigation of the committee."

Legal Services office, in a footnote to the statute, suggests using the oath found in CRS 24-12-101: "The person swearing, with his hand uplifted, shall swear 'by the everliving God'." Rep. Paschall tried to get Dr. Hern to use those words in the second oath taking.

That attempt violated a subsequent statute: 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'".

I do recall as a legislator personally placing a witness under oath in a House Health committee chaired by Wellington Webb in 1975 or 1976. Oaths get used more often in periods when Congress is using or has used committees for investigation of wrongdoing in the executive branch. After spending twenty-two years in legislative service, I can state that placing a witness under oath is not an exceptional event, just unusual.

There has been at least one outstanding use of oath taking. In the Judiciary interim committee hearings held from August to October of 1979, which investigated appointments by Gov. Richard Lamm to the judiciary, ALL witnesses were sworn in.

The oath offered witnesses was "Do you swear (or affirm) under the penalty of perjury that the testimony you are about to give is the whole truth and nothing but the truth".

This interim committee went even further than oath giving. It voted 5 to 4 (five Republicans vs. four Democrats) to subpoena witnesses even though no one had refused to attend the hearings. Democrats were willing to subpoena if a witness promised to appear and failed to do so.

The committee's authority to subpoena comes from Article V, Section 12 of the state constitution which gives each house power "to enforce obedience to its process", spelled out in further detail in CRS 2-2-313.

Among those subpoenaed were all eleven members of the Colorado Supreme Court nominating committee; David Greenberg, Gov. Lamm's former legal adviser; Norm Early, then a member of the Denver District Attorney's staff; Brooke Wunnicke, chief deputy of the Denver District Attorney's appellate division.

Also Ken Monfort, former representative and Greeley businessman; Jack Olsen, former press aide to Lamm and also an attorney; John Althoff, then a recently appointed district judge; A.M. Dominguez Jr., then a Weld County Judicial Nominating Commission member and now a district attorney; James Klodzinski, an assistant district attorney for Las Animas county; and James Shelton, former Weld County Democratic party chairman.

One witness not subpoenaed prior to testimony was State Sen. Jim Kadlecek. The reason given was "professional courtesy" from a legislative body to a fellow legislator.

Should the present system of allowing a witness to be sworn in, continue? Legislative leaders are mulling several modifications that could be done through a joint rules change, rather than a statutory change. A member planning to swear in a witness would inform the committee chairman in advance, and ALL witnesses on that particular bill would be sworn in to avoid any appearance of discrimination.

* * *

Thanks to Senate Business Affairs Committee, Colorado's Dept. of Regulatory Agencies (DORA) wasted a lot of time researching how money is literally stolen from Colorado consumers through credit insurance. The committee voted 6 to 3 to kill SB 103 by Sen. Bob Martinez (D) which would have required a larger return in claim payments to unsophisticated consumers who are easy prey for greedy retailers and money lenders.

As reported to you in an earlier column, the retailer or lender and NOT the debtor, picks the insurance company. They pick the company that gives the retailer or lender the greatest commission. For every dollar of credit insurance purchased, the consumer gets back 40 cents, the retailer keeps 30 cents as commission and the insurance company profits 30 cents. SB 103 would have given the consumer back 60 cents.

Testifying in favor of SB 103 was John Sheehy representing the Colorado Credit Union League, the only lender group in Colorado presently returning 60 cents of every credit insurance dollar to consumer customers.

An earlier Business Affairs Committee hearing, held two days before the legislature began on Jan.8th, had voted 4 to 3 in favor of what ended up as SB 103. Two of those four votes, Sen. Stan Matsunaka (D) and Sen. Ken Chlouber (R), changed their positions and voted to kill SB 103. Otherwise, the bill would have passed to the Senate floor by a vote of 5 to 4.

Another bill recommended by DORA, SB 105 by Sen. Gloria Tanner (D) to prohibit the use of consumer credit history for insurance underwriting purposes, met the same fate...passage in early January, death in late January after monster lobbying efforts against the measure. Colorado is the ONLY state which statutorily allows such use of consumer credit history.


Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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