People v. Ramos , 430 Mich. 544 ( 1988 )

Levin, J.

(for reversal). Joel Ramos was convicted of welfare fraud¹ and perjury² for filing a false application for aid to dependent children (ADC) assistance.³ Ramos was sentenced to prison terms of two to four years for the welfare fraud and ten to fifteen years for the perjury.

Ramos asserts two grounds for reversing his perjury conviction. First, that the Social Welfare Act⁴ does not authorize administration of an oath —an element of perjury — to adc applicants. Second, that the requisite oath was not administered.

We hold that because administration of an oath is an element of perjury, and an oath was not administered to Ramos when he signed the application, his perjury conviction must be reversed. We therefore do not reach the question whether the Social Welfare Act authorizes the administration of an oath. We affirm the welfare fraud conviction.

i

Dealisa Husted, a Department of Social Services assistance payments caseworker, testified that she reviewed Ramos’ application during an interview with Ramos on October 29, 1980. Ramos had followed dss instructions and completed the application before the interview. Husted checked over the application with Ramos, witnessed his signature, and signed her name to indicate that she had conducted the review.

The application contained an "affidavit”⁵ stating that the intentional omission of information or the providing of false information could result in prosecution for fraud or perjury. Husted acknowledged that she neither read this affidavit to Ramos nor administered an oath to him.

Following Ramos’ conviction of welfare fraud and perjury, the Court of Appeals affirmed in an unpublished per curiam opinion.

ii

We agree with Ramos’ contention that his signing of the application does not constitute the making of an oath.

Oaths take the form of a significant and readily observable act or acts that serve to impress upon the oath taker the importance of providing accurate information, and operate as objective evidence that the oath taker understands the importance of providing accurate information and is promising, under threat of severe penalties for lying, to be truthful.⁶

The making of an oath is an element of perjury.⁷ Under Michigan law, the form of an "oath” sufficient to constitute the basis for a perjury conviction requires more than a signature following a warning of the penalty of perjury. Section 1432 of the Revised Judicature Act sets forth the mode of administering oaths and provides for the oral administration and acknowledgment of the oath, coupled with the oath taker’s raising of the right hand:

The usual mode of administering oaths now practiced in this state, by the person who swears holding up the right hand, shall be observed in all cases in which an oath may be administered by law except in the cases herein otherwise provided. The oath should commence, "You do solemnly swear or affirm.” [MCL 600.1432; MSA 27A.1432.][⁸] [Emphasis supplied.]

RJA, § 1432 was applied by this Court in People v Mankin, 225 Mich 246; 196 NW 426 (1923), where Mankin was convicted of perjury for making a false statement in an affidavit for a marriage license. Mankin claimed on appeal that his conviction should be reversed because he was not administered the "usual oath” — the words "so help you God” were omitted. While the Court rejected Man-kin’s claim, it recognized that the statute was applicable and requires some form of oral admonishment, which the oath taker receives and acknowledges with an upraised right hand:

It will be observed that this statute [MCL 600.1432; MSA 27A.1432] does not require any particular form for an oath; it provides only that the party shall swear holding up the right hand. . . . We have come to regard the uplifted hand accompanied by solemn swearing as an appeal to God for the truth of what the witness is about to testify. The words "You do solemnly swear” in and of themselves import a serious appeal to God. When addressed to the taker of an oath, who stands with uplifted hand, they signify that he is bound in conscience to tell the truth. Nothing further is necessary. [Emphasis supplied. Mankin, supra, p 252.]

RJA, § 1432 was applied by the Court of Appeals in Dawson v Secretary of State, 44 Mich App 390; 205 NW2d 299 (1973). Dawson was arrested for drunken driving and refused to take a breath test. The arresting officer filed a report noting this refusal with the Department of State, which suspended Dawson’s driver’s license for ninety days. The statute⁹ required that the reports be "sworn.” Dawson appealed the suspension on the basis that, even though the officer had signed the report, he had not "sworn” to it — he had not raised his right hand and orally sworn.

The Court of Appeals agreed with Dawson’s contention, holding that to constitute an "oath,” the oath taker must raise the right hand and orally swear. "[T]he statutes involved herein clearly and unequivocally require the police officer’s report to be sworn.”¹⁰ Because the officer did not fulfill the statutory requirement of raising his right hand and swearing to the report, the report had not been sworn, and the subsequent license suspension was invalid.

The United States District Court for the Western District of Michigan applied RJA, § 1432 to invalidate a chattel mortgage. In re Bennett, 223 F Supp 423, 427 (WD Mich, 1963). The statute providing for chattel mortgages required that they contain an affidavit.¹¹ While the chattel mortgage at issue in Bennett contained a notarized affidavit, signed by Bennett, stating that he had been sworn, he had not orally acknowledged, with upraised right hand, an orally administered oath. The affidavit was therefore invalid:

It is clear that under the State law Peterson, the notary public, was required to administer an oath to Bennett, the mortgagor, who executed the good-faith affidavit attached to the chattel mortgage, but examination of the testimony of the notary clearly shows that he did not administer any oath to the mortgagor. He merely signed the affidavit as a notary public to attest the mortgagor’s signature. [Id.]

Bennett’s signature and the notary’s attestation of the signature were insufficient to constitute an "oath.”

The State Bar of Michigan committee on the revision of the criminal code agreed that an "oath,” as presently statutorily defined, requires more than a simple signature, even if the signature is made "under the penalties of perjury.” As noted in People v Kasparis, 107 Mich App 294, 300; 309 NW2d 241 (1981), "the drafters of the proposed criminal code were of the opinion that the terms 'oath’ or 'false swearing’ as presently used in the general perjury statute do not include statements made on official forms bearing notice that answers are made under the penalties of perjury.”¹²

In affirming Ramos’ perjury conviction, the Court of Appeals relied on People v Lumbard, 94 Mich App 16, 18; 287 NW2d 354 (1979), where the Court of Appeals had earlier held that an adc applicant, by "intentionally fil[ing] an untruthful application for welfare assistance,” had committed perjury. That decision did not, however, discuss or advert to RJA, § 1432, Mankin, Dawson, or Bennett.

The statutory form of oath is designed to be sufficiently distinct so that it is recognizable by the oath taker and any observers¹³ as a clear acknowledgment of the oath taker’s assumption of responsibility for providing truthful information. Signing one’s name — to correspondence, checks, credit card receipts — is a frequent and casual act. Signing one’s name even to applications to obtain funds— for secured and unsecured loans, credit cards, insurance — is also commonplace. For perjury, a signature following a warning of the penalty of perjury is insufficient. The Legislature requires the administration of a distinctive form of oath.

hi

A

The dissenting opinion asserts that because RJA, § 1432, prescribing the form for administering oaths, is included in the Revised Judicature Act, it applies only to oaths made in "judicial proceedings.”¹⁴ This limitation is not, however, apparent in RJA, § 1432, which in terms applies "in all cases.” Further, Mankin (affidavit for a marriage license), Dawson (report of refusal to take a breath test), and Bennett (affidavit for a chattel mortgage), all applied RJA, § 1432 to out-of-court oaths.¹⁵

A number of sections of the Revised Judicature Act govern activity occurring outside "judicial proceedings.” The provisions creating and providing for the administration of the State Bar and barring the unauthorized practice of law are included in the rja.¹⁶ These provisions govern all aspects of the practice of law, not merely those aspects occurring in the context of "judicial proceedings.” A nonlawyer is not free to practice law as long as he does so outside of "judicial proceedings.”

RJA, § 1412, declaring that the Eastern Orthodox faith is a major faith,¹⁷ RJA, § 1405, governing the rights of third-party beneficiaries in contracts,¹⁸ RJA, ch 52, regarding assignments for the benefit of creditors, and former¹⁹ RJA, ch 54, concerning assignments of accounts receivable, are also not limited to "judicial proceedings.”

RJA, § 1432 applies in terms to "all cases in which an oath may be administered by law.” (Emphasis supplied.) The penalty for violating an oath is the same without regard to whether an oath was made in "judicial proceedings” or in other contexts. One of the primary functions of an oath is to place the oath taker on notice that he violates his oath at the risk of incurring severe penalties. Because the penalties for violation of oaths made in "judicial proceedings” and oaths made in other contexts are the same, there is no reason to suppose that the Legislature intended the oath taker to receive a less highly distinctive warning in the latter situation than in the former.²⁰

The argument made by the dissenting opinion is similar to the argument rejected by this Court in People v Milton, 393 Mich 234; 224 NW2d 266 (1974). Milton was arrested and bound over by a district court to circuit court for trial. The chapters creating the district court and providing its jurisdiction were added to the rja.²¹ The act conferred on the district court civil jurisdiction in cases where the amount in controversy did not exceed $3,000, and criminal jurisdiction to try certain misdemeanors and to hold preliminary examinations in felony cases.²²

Milton asserted that because the rja was limited to civil matters, inclusion in the rja of the provision creating the district court’s jurisdiction in criminal matters violated the title-object clause, Const 1963, art 4, § 24,²³ and that the resulting unconstitutionality and lack of jurisdiction rendered void the criminal prosecution against him.

Milton relied on People v Stanley, 344 Mich 530; 75 NW2d 39 (1956), where this Court had ruled that an amendment to the 1915 Judicature Act, providing that a writ of error to the Supreme Court shall issue as a matter of course following judgment in a criminal case involving the personal liberty of the appellant, violated the title-object clause.²⁴ This Court rejected Milton’s arguments and overruled Stanley.

B

The dissenting opinion also asserts that the phrase "under the penalties of perjury” in the Social Welfare Act serves as both statutory authorization for the administration of an oath and as an "oath” in itself.²⁵

In some jurisdictions, a signature following the phrase "under the penalties of perjury” may indeed provide sufficient basis for a criminal prosecution. It appears that in those jurisdictions, however, the legislature has specifically deemed that falsely signing under such language may be penalized. For example, 26 USC 7206, setting forth the crimes of fraud and false statements, explicitly deems the making of a false statement a felony:

Any person who . . . [w]illfully makes and subscribes any return, statement, or other document, which contains or is verifed by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony .... [Emphasis supplied.]

Statutes in California, Washington, and Wyoming similarly have provided that a person who falsely signs his name to forms stating that they are signed "under the penalties of perjury” is guilty of an oifense.²⁶ Just as the federal statute states that a person who falsely signs under the penalties of perjury "shall be guilty of a felony,” the California statute provides that a person who so falsely signs "is guilty of perjury,” and the Washington statute provides "shall be guilty of a felony,” and the Wyoming statute provided "shall be guilty of false swearing.”²⁷

Our Legislature has not provided that a person signing an application stating that the applicant signs under the penalties of perjury "is guilty of perjury.” It provided only that the application for welfare assistance shall be "under the penalties of perjury.”²⁸ Because the Legislature did not specify that a person who falsely signs an application under the penalties of perjury "is guilty of perjury,” it did not substitute such signing for the form of oath required by RJA, § 1432.²⁹

The statutorily prescribed form of oath remains an element of the offense of perjury. It will remain an element until the Legislature in terms dispenses with the oath by specifying the mere false signing of an application, stating that the signing is under the penalties of perjury, constitutes the offense of perjury.³⁰

IV

Many courts concur that a signature alone is insufficient to constitute an "oath.”³¹ In Spangler v Dist Court, 104 Utah 584, 590; 140 P2d 755 (1943), Spangler challenged the validity of the complaint that formed the basis for his conviction. The relevant statute required complaints to be sworn to "under oath.” The police officer filing the complaint — which contained the language " 'who on being duly sworn by me, on his oath did say . . . ’ ” — signed it in the presence of a justice of the peace, but neither received an oral admonishment nor made an oral acknowledgment.

Utah has no statute prescribing the form of an oath. A Utah statute provides rather that "[i]t is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner.”³² Yet the Supreme Court of Utah held that the officer’s signature alone was insufficient to constitute an oath. A signature was not a sufficiently distinctive act to serve as an oath:

We believe the correct interpretation of the law to be that there must be some outward formality, some manifestation of the intention to place the affiant under the penalty ánd obligation of an oath. There must be definite evidence that affiant was conscious that he was taking an oath; that is there must be not only the consciousness of affiant that he was taking an oath, but there must be some outward act from which that consciousness can be definitely inferred. That cannot be done from the mere signature to a printed form of oath. . . .

We therefore hold that the mere appearing before the justice and signing a criminal complaint does not constitute swearing to it ... . [Id., pp 591-592.][³³]

The Georgia Supreme Court, in Britt v Davis, 130 Ga 74, 77-79; 60 SE 180 (1908), similarly held that a signature alone does not constitute an "oath.” Britt concerned the validity of a distress warrant forming the basis for a property seizure for overdue rent. The relevant statute required that the request for the warrant be verified by an oath.³⁴ Davis, the complainant, filed a notarized affidavit, but did not receive an oral admonishment or make a verbal affirmation.³⁵ The court held that a signature alone was insufficient to distinguish sworn statements from those that are unsworn. "Whether the affiant testifies in view of his responsibility to God or only to the criminal law, in either event what he does is something more than merely to sign a paper.” Id., p 77.

The court concluded by noting that because the issuance of a distress warrant carries serious consequences, it is important that there be no doubt that the complainant requested the warrant under oath:

We can not but deprecate the tendency to treat the taking of an oath as a mere technical formality, worthy of little attention. In the strenuous age in which we live speed is deemed of prime importance. But one must still pause long enough to verify the statements contained in a paper prepared for use as an affidavit, by swearing to them, before he can obtain a distress warrant to be issued and have the property of another seized. [Id., pp 78-79.][³⁶]

v

Because the failure to administer an oath to Ramos is dispositive of this appeal, we do not address Ramos’ contention that the Social Welfare Act does not authorize the administration of oaths.³⁷

As to Ramos’ remaining issues, our disposition makes it unnecessary to consider his claims that his perjury conviction must be reversed because the trial court refused to make a determination of law regarding whether his failure to report ownership of the tractor was material, or failed to adequately instruct the jury with respect to the element of materiality, or that he must be resentenced because the trial court abused its discretion in imposing a consecutive sentence for the perjury conviction. As to the other remaining issues, we are no longer persuaded that those issues should be reviewed by this Court._

We reverse Ramos’ perjury conviction, and affirm his welfare fraud conviction.

Riley, C.J., and Brickley, Cavanagh, and Archer, JJ., concurred with Levin, J.

1 Any person who by means of wilful false statement or representation or by impersonation or other fraudulent device obtains or attempts to obtain, or aids or abets any person to obtain (a) assistance or relief to which he is not entitled; or (b) a larger amount of assistance or relief than that to which he is justly entitled; or any officer or employee of a county, city or district department of social welfare who authorizes or recommends relief to persons known to him to be ineligible or to have fraudulently created their eligibility; or any person who knowingly buys or aids or abets in buying or in disposal of the property of a person receiving assistance or relief without the consent of the director or supervisor of the state department, shall, if the amount involved shall be of the value of $500.00 or less, be deemed guilty of a misdemeanor, and shall, if the amount involved shall be of the value of more than $500.00, be deemed guilty of a felony, and upon conviction shall be punished as provided by the laws of this state. The amount involved as used in this subsection shall be defined as the difference between the lawful amount of assistance or aid and the amount of assistance or aid actually received. If anyone receives assistance or relief through means enumerated in this section, in which prosecution is deemed unnecessary, the state department or county departments may take the necessary steps to recover from the recipient the amount involved, plus interest at 5% per annum. On conviction of the violation of the provisions of this section of any officer or employee of any county, city or district department of social welfare, such officer or employee shall be removed or dismissed from office. [MCL 400.60(1); MSA 16.460(1).]

2 Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury, a felony, punishable by imprisonment in the state prison not more than fifteen [15] years. [MCL 750.423; MSA 28.665.]

A separate statute specifically punishes perjury committed in courts. MCL 750.422; MSA 28.664.

3 Ramos failed to report ownership of a commercial tractor. The sentences run concurrently.

4 MCL 400.1 et seq.; MSA 16.401 et seq. The act governs adc applications.

5 The affidavit provided:

I swear or affirm that I have answered all questions on this form as completely as I was able and that all the information that I have written on this form or told to a caseworker is true. I also know that I may be asked to show proof of any information I have given. I also know that if I have intentionally left any information out or if I have given false information, I can be prosecuted for fraud or perjury.

6 See June v School Dist No 11, 283 Mich 533, 537; 278 NW 676 (1938) (" 'Oath. An external pledge or asseveration, made in verification of statements made, or to be made, coupled with an appeal to a sacred or venerated object, in evidence of the serious and reverent state of mind of the party, or with an invocation to a supreme being to witness the words of the party, and to visit him with punishment if they be false.’ ”).

7 See n 2.

8 The phrase "except in the cases herein otherwise provided” refers to the scenarios described in the provisions directly following. Persons "conscientiously opposed” to taking an oath may instead "solemnly and sincerely affirm,” MCL 600.1434; MSA 27A.1434; guardians may make oaths on behalf of mental incompetents, MCL 600.1438; MSA 27A.1438; and military personnel may be administered oaths by "any commissioned officer in active service,” MCL 600.1440; MSA 27A.1440.

9 MCL 257.625d-257.625e; MSA 9.2325(4)-9.2325(5).

10 Dawson, supra, p 391.

11 1948 CL 566.140 as amended by 1961 PA 106.

12 In Kasparis the Court, while not relying on the rja, held that a signature alone was not sufficient to constitute a "swearing.” Kasparis filed a false sales tax return. The form stated that the signer certified his statements "under penalties of perjury.” Relying on the State Bar committee report noted above, and on Escobar v United States, 388 F2d 661 (CA 5, 1967), where the court held that as a matter of federal law the signer of a federal tax return that included the language "under penalties of perjury” could not be convicted of perjury, the Court of Appeals held that Kasparis had not made a "swearing.”

13 Such as the judge or jury in a case in which the oath taker is providing testimony, the reader of an application for public assistance where the applicant has sworn under oath that his representations are truthful, or the judge or jury in a proceeding in which the oath taker is charged with perjury.

14 Post, p 581.

15 Additionally, the rja contains another oath provision which clearly applies to nonjudicial proceedings:

Whenever any oath or affidavit is or may be required or authorized by law in any cause, matter, or proceeding, except oaths to witnesses and jurors in the trial of a cause, and such other oaths as are or may be required by law to be taken before particular officers, the same may be taken before any justice, judge, or clerk of any court or notary public. [MCL 600.1440C1); MSA 27A.1440(1). Emphasis supplied.]

16 MCL 600.901 et seq.; MSA 27A.901 et seq.

17 MCL 600.1412; MSA 27A.1412.

18 MCL 600.1405; MSA 27A.1405.

19 Repealed by 1962 PA 174, which enacted the Uniform Commercial Code, MCL 440.1101 et seq.; MSA 19.1101 et seq.

20 Other jurisdictions with statutes prescribing the form for administering oaths apply them to out-of-court oaths. See Rogers v People, 161 Colo 317; 422 P2d 377 (1966); State v Blaisdell, 253 A2d 341 (Me, 1969).

21 1968 PA 154; RJA, chs 81-83.

22 The $3,000 ceiling has since been increased to $10,000. 1971 PA 148, MCL 600.8301; MSA 27A.8301. The district court’s criminal jurisdiction is set forth in MCL 600.8311; MSA 27A.8311.

23 "No law shall embrace more than one object, which shall be expressed in its title.”

24 The title of the 1915 Judicature Act (1915 PA 314) and of the rja (1961 PA 236) were identical in all material respects.

25 Post, pp 576-577. MCL 400.25; MSA 16.425 provides:

An applicant for assistance or a third party acting responsibly in his behalf shall deliver his application in writing to the county department of social services in the manner and form prescribed by the state department. All statements in the application shall be over the signature or witnessed mark of the applicant or such third party and shall include a declaration under the penalties of perjury that the application has been examined by or read to the applicant or third party, and, to the best of the applicant’s or third party’s knowledge, that all facts are true in each material point and are complete; and the applicant or third party shall empower the county department of social services and the state department to obtain all necessary information concerning the recipient of social services for whom the application is made and his resources in order to determine the eligibility of the applicant. No question, inquiry or recommendation shall relate to the political opinions or religious affiliations of any person, and no grant or denial of aid under this act shall be in any manner affected or influenced by such opinions or affiliations. [Emphasis supplied.]

26 Section 118 of the California Penal Code provides:

Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law of the State of California be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which such testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and wilfully states as true any material matter which he knows to be false, is guilty of perjury. [Emphasis supplied.]

Section 74.08.055 of the Revised Code of Washington provides:

Each applicant for or recipient of public assistance shall make an application for assistance which shall contain or be verified by a written declaration that it is made under the penalties of perjury. The secretary, by rule and regulation, may require that any other forms filled out by applicants or recipients of public assistance shall contain or be verified by a written declaration that it is made under the penalties of perjury and such declaration shall be in lieu of any oath otherwise required, and each applicant shall be so informed at the time of the signing.

Any applicant for or recipient of public assistance who wilfully makes and subscribes any application, statement or other paper which contains or is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct as to every material matter shall be guilty of a felony. [Emphasis supplied.]

Section 6-8-102 of the Wyoming Code formerly provided:

False swearing other than in judicial or administrative proceeding; false claim or voucher.

Whoever, under oath or affirmation lawfully administered in any matter where an oath is authorized by law to be taken, shall willfully, corruptly and falsely make any false certificate, affidavit, acknowledgment, declaration or statement of any nature other than in a judicial or administrative proceeding, or whoever submits a false claim or voucher under penalty of perjury, shall be guilty of false swearing, and upon conviction shall be imprisoned in the penitentiary not more than five (5) years. [Emphasis supplied.]

This provision has since been replaced by § 6-5-303, which provides:

(a) A person commits a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if, while under a lawfully administered oath or affirmation in a matter where an oath is authorized by law, he knowingly makes a false certificate, affidavit, acknowledgment, declaration or statement other than in a judicial or administrative proceeding.

(b) A person is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if he knowingly submits a false claim or voucher with intent to defraud.

27 Id.

28 The drafters of the "affidavit” signed by Ramos did not proceed on the basis that including the words "under the penalties of perjury” in the application would alone constitute the administration of an oath. The "affidavit” in the application begins "I swear or affirm . . . .” See n 5. Indeed the phrase "under the penalties of perjury” was not incorporated in the "affidavit” in Ramos’ ADC application. Id. The affidavit did indeed say "I can be prosecuted for fraud or peijury,” but nevertheless did not in terms "include a declaration under the penalties of perjury.”

29 The perjury warning required by § 25 of the Social Welfare Act places the applicant on notice that a perjury prosecution may result from a false signing. Ramos, had he been administered a proper oath, might have been prosecuted for perjury. See, however, n 28.

30 Perkins & Boyce do not state that "the phrase [under the penalties of perjury] is the legally recognized equivalent of an oath.” Post, p 576. Perkins & Boyce state rather that signing a form "under the penalties of peijury” is equivalent to an oath where so deemed by the Legislature.

Recently an additional substitute for an oath has made its appearance, this one being provided for the convenience of the declarant. It is by virtue of legislation providing for certain signed statements (such as the declaration of an income tax return) to be made expressly "under the penalties of perjury.” The quoted words are a part of the signed declaration, and the statute provides the same penalties as for peijury if the signer does not believe the statement to he true and correct as to every material matter. [Perkins & Boyce, Criminal Law (3d ed), p 513.]

The authority cited in support of this statement is Dickinson v Wainwright, 626 F2d 1184 (CA 5, 1980), Cohen v United States, 201 F2d 386 (CA 9, 1953), 26 USC 7206, and Nimmo v Wyoming, 603 P2d 386 (Wy, 1979).

Dickinson discusses 18 USC 1621 (quoted post, pp 583-584), which provides that whoever makes an intentional false "statement under penalty of peijury ... is guilty of perjury.”

Cohen discusses 26 USC 3809, the predecessor of 26 USC 7206 (quoted in text preceding n 26), both of which similarly specifically provide that a person signing "under the penalties of perjury . . . shall be guilty of a felony.”

Nimmo discusses the Wyoming statute (set forth in n 26), which also provides that whoever submits a false claim "under penalty of perjury, shall be guilty of false swearing . . .

The statement in Perkins & Boyce must be read in connection with, and limited by, the authority cited in support of that statement. Since that authority concerns only statutes specifically providing that whoever signs under the penalties of perjury "is guilty of perjury,” or "shall be guilty of a felony,” or "shall be guilty of false swearing,” the Perkins & Boyce quotation does not support the conclusion that a statute merely providing for a declaration "under the penalties of perjury,” but not specifying that such a false declaration "is . . . perjury,” or "shall be . . . false swearing,” substitutes for the oath specified in RJA, § 1432.

The dissenting opinion also offers six cases to support its contention that "[t]he broad sense of the word ['oath’] has often been held to include the signing of a statement 'under the penalties of perjury.’ ” Post, p 576. None of the cases support this contention. Rather, the statutes cited in several of the cases indicate that where legislatures intend to penalize the false signing of an application containing notice that it is signed "under the penalties of perjury,” they do so explicitly.

In American Civil Liberties Union v Los Angeles Bd of Ed, 59 Cal 2d 203, 217; 28 Cal Rptr 700; 379 P2d 4 (1963), cert den 375 US 823 (1963), a school required groups wishing to use school grounds to file a statement that the grounds would not be used for the "commission of any act that is prohibited by law . . . .” The aclu challenged the requirement, contending inter alia that it violated constitutional guarantees of due process and free speech, subverted the presumption of innocence, and was arbitrary, unreasonable, vague, and overbroad. (The court upheld the requirement.) The only mention of perjury was made in discussing the aclu’s contention that the school’s requirement subverted the presumption of innocence and inverted the burden of proof:

Nor can we find — as petitioners contend — any unconstitutional limitation in the fact that the rule requires an applicant to make the statement therein set forth under penalty of perjuiy. The oath is but the vehicle by which information (constitutional or unconstitutional) is sought. It is the right to demand the particular information that is at issue, and not the form in which it is requested. Frequently an applicant for governmental benefits is required to give information under oath. This is so because the verified information is more apt to be complete and correct. If the information sought by respondent is unassailable, then the form in which it is required is of no moment. [American Civil Liberties Union, supra, p 217.]

While the opinion apparently uses the term "oath” here as shorthand for the phrase "under penalty of perjury,” this usage does not constitute a "holding.” Nowhere does the opinion discuss whether a statement made "under the penalties of perjury” suffices as an “oath” for purposes of a perjury statute requiring administration of an oath.

In People v Laws, 120 Cal App 3d 1022, 1031; 178 Cal Rptr 102 (1981), defendant Laws had previously been convicted of a separate crime and, as a condition for receiving probation, agreed to pay $27,000 in restitution. He failed to pay the money, but filed a declaration with the court claiming that he had paid. Laws was convicted of perjury and preparing false documentary evidence. Among the challenges Laws raised to his convictions was his claim that the declaration on which the charges were based was not legally sufficient to support the charges. Laws claimed that because the declaration he filed did not contain an " 'averment . . . that the same is true and correct,’ ” he could not be convicted of perjury. (The court upheld the convictions.)

Again, there was no discussion of whether the making of a statement "under the penalties of perjury” is equivalent to making a statement under oath. The California perjury statute cited in the opinion, in fact, clearly distinguished between statements made "under oath” and those made "under the penalties of perjury”:

Penal Code section 118 provides: "Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, wilfully and contrary to such oath, states as true any material matter which he knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which such testimony, declarations, depositions, or certification is permitted by law under penalty of perjury and wilfully states as true any material matter which he knows to be false, is guilty of perjury.” [Emphasis supplied. Laws, supra, p 1030.]

Unlike Michigan’s perjury statute, the California statute clearly encompassed persons who "certif[y] under penalty of perjury . . . .” If Michigan had a statute like the California statute, Ramos need not have been administered an oath to have been convicted. Simply signing the statement "under penalty of perjury” would have been sufficient.

People v Doss, 99 Ill App 3d 1026; 55 Ill Dec 349; 426 NE2d 324 (1981), concerned the adequacy of an indictment alleging perjury and filing a wilful and fraudulent tax return where the accused had prepared the form but was not the taxpayer. The opinion focused on whether a tax preparer was required by law to sign the returns he prepared. (The court upheld the trial court’s dismissal of the indictment.) Whether the signing of a document "under penalties of perjury” is equivalent to the making of a statement under oath was a question neither presented to nor addressed by the court.

Valdez v State, 300 Md 160; 476 A2d 1162 (1984), concerned the validity of affidavits supporting a search warrant. Maryland statutorily defined an affidavit as " 'an oath that the matters and facts set forth in the paper writing to which it pertains are true to the best of the affiant’s knowledge, information and belief.’ ” The statute then defined "oath” as " 'a declaration or aflirmation made under penalties of perjury, that a certain statement of fact is true.’ ” Id., p 167, quoting Maryland Rules of Procedure, Rule 5(c). (The court held that under the facts of the case, the offered affidavits met the statutory requirements and were valid.)

While here "oath” was statutorily defined as "a declaration or affirmation made under penalties of perjury,” this meaning of the term "oath” is clearly limited to this particular Maryland rule, setting forth the requirements for valid affidavits. The question raised by Bazoos — whether the signing of a statement "under the penalties of perjury” was sufficient to satisfy the separate requirement of a perjury statute that an oath be administered — was not addressed by the court.

In State v Bailey, 14 Wash App 748; 544 P2d 778 (1976), defendant Bailey challenged the constitutionality of the welfare fraud statute under which he was convicted. Bailey, like Ramos, had obtained public assistance to which he was not entitled by means of a false statement. Unlike Ramos, however, Bailey was convicted only of welfare fraud, not also of perjury. Contrary to the assertion in the dissenting opinion, the Bailey court did not hold that, or even discuss whether, the "broad sense” of the word "oath” includes the signing of a statement "under penalties of perjury.” In fact, while Bailey was not charged with perjury, the equivalent Washington statute, unlike the statute in Bazoos, clearly covered his conduct:

"Veriñcation of Applications — Penalty. Each applicant for or recipient of public assistance shall make an application for assistance which shall contain or be verified by a written declaration that it is made under the penalties of perjury. The director, by rule and regulation, may require that any other forms filled out by applicants or recipients of public assistance shall contain or be verified by a written declaration that it is made under the penalties of perjury and such declaration shall be in lieu of any oath otherwise required, and each applicant shall be so informed at the time of the signing.

"Any applicant for or recipient of public assistance who wilfully makes and subscribes any application, statement or other paper which contains or is verified by a written declaration that it is made under the penalties of perjury and which he does not believe to be true and correct as to every material matter shall be guilty of a felony.” [Emphasis supplied. Id., p 751, n 3, quoting Wash Rev Code 74.08.055, as enacted, Laws of 1959, ch 26, § 74.08.055, p 142.]

In Nimmo v Wyoming, supra, defendant Nimmo challenged his convictions of false swearing. The question presented was not whether the term "oath” included the signing of a statement "under the penalties of peijury,” but rather whether the false swearing statute incorporated the requisite mens rea element. Furthermore, unlike the perjury statute at issue in Bamos, the false swearing statute under which Nimmo was convicted would clearly encompass the filing, "under penalty of perjury,” of a false application:

"§ 6-8-102. False swearing other than in judicial or administrative proceeding; false claim or voucher.

"Whoever, under oath or affirmation lawfully administered in any matter where an oath is authorized by law to be taken, shall willfully, corruptly and falsely make any false certificate, affidavit, acknowledgment, declaration or statement of any nature other than in a judicial or administrative proceeding, or whoever submits a false claim or voucher under penalty of perjury, shall be guilty of false swearing, and upon conviction shall be imprisoned in the penitentiary not more than five (5) years.” [Id., p 388, quoting (Laws 1971, ch 71, § 1) (emphasis supplied).]

In summary, none of the cases cited by the dissenting opinion support its assertion. The question whether the term “oath” could be interpreted to mean signed "under the penalties of perjury” was neither raised nor addressed, and many of the cases involve statutory schemes substantially different from that at issue here.

The perjury and false swearing statutes cited in these opinions highlight that legislatures recognize a distinction between statements made under oath and those made "under the penalties of perjury.” See Laws, Bailey, and Nimmo, supra. Legislatures that wish to punish the making of false statements "under the penalties of perjury” explicitly provide for such a penalty.

31 See Rogers v People, n 20 supra; State v Blaisdell, n 20 supra; State v Privitt, 327 Mo 1194; 39 SW2d 755 (1931); White v State, 102 Nev 153; 717 P2d 45 (1986); People v O’Reilly, 86 NY 154; 40 Am Rep 525 (1881); People v Lieberman, 57 Misc 2d 1070; 294 NYS2d 117 (1968); Youngstown Steel Door Co v Kosydar, 33 Ohio App 2d 277; 294 NE2d 676 (1973); Lowry v State, 164 Tex Crim 178; 297 SW2d 848 (1956); Komp v State, 129 Wis 20; 108 NW 46 (1906). See, generally, anno: Formalities of administering or making oath, 51 ALR 840.

32 Utah Code Ann 1943, 103-43-4.

33 The Utah Supreme Court in Colman v Schwendiman, 680 P2d 29 (1984), recently confirmed its opinion in Spangler. Colman concerned the validity of a police report forming the basis for suspension of Colman’s driver’s license. The relevant statute required the officer to swear to the report. Utah Code Ann 1953, 41-6-44.10. The officer signed the report in the presence of a notary. The court held that a signature alone was insufficient to constitute an oath. Oaths "require a formal verbal affirmation . . . .” Id., p 31.

34 Ga Civ Code 1895, 4818.

35 As in Spangler, there was no statute prescribing a particular form for oaths.

36 The Georgia Court of Appeals in Gruber v Fulton Co, 111 Ga App 71; 140 SE2d 552 (1965), applied Britt. Gruber presented the question whether a tax return had been sworn to where it was signed but no oral oath was administered. Citing Britt and numerous other authorities, the court held that the signature alone was insufficient.

While a number of jurisdictions have held that a verbal admonishment is not necessary to constitute an "oath,” these jurisdictions either did not have a statute prescribing the form for administering oaths, United States v Troutman, 814 F2d 1428 (CA 10, 1987); Anchorage Sand & Gravel Co, Inc v Wooldridge, 619 P2d 1014 (Alas, 1980); People v Walker, 247 Cal App 2d 554; 55 Cal Rptr 726 (1967); State v Parker, 81 Idaho 51; 336 P2d 318 (1959); Dalbey Bros Lumber Co v Crispin, 234 Iowa 151; 12 NW2d 277 (1943); State v Snyder, 304 So 2d 334 (La, 1974); Plauche-Locke Securities, Inc v Johnson, 187 So 2d 178 (La App, 1966); State v Madigan, 57 Minn 425; 59 NW 490 (1894); Atwood v State, 146 Miss 662; 111 So 865; 51 ALR 836 (1927); Moore v Peterson, 218 Neb 615; 358 NW2d 193 (1984); Lebak v Freck, 212 NJ Super 234; 514 A2d 856 (1986); Cincinnati Finance Co v First Discount Corp, 59 Ohio App 131; 17 NE2d 383 (1938); Cole v State, 92 Okla Crim 316; 223 P2d 155 (1950); State v Holladay, 120 SC 154; 112 SE 827 (1922); State v Lewis, 85 Wash 2d 769; 539 P2d 677 (1975), or had statutes that were not mandatory, In re Rice, 35 Ill App 2d 79; 181 NE2d 742 (1962); Blackburn v Motor Vehicles Div, 33 Or App 397; 576 P2d 1267 (1978).

Furthermore, in each of the cases cited above, the signature of the "oath" taker was notarized or witnessed by a notary public, a justice of the peace, or some other official authorized to administer oaths. There is no evidence that the dss caseworker before whom Ramos signed his application was such an official. Additionally, a number of these decisions reached their result through applying statutes explicitly stating: It shall be no defense to a prosecution for perjury that an oath was admitted or taken in an irregular manner. Walker, Parker, Snyder, Blackburn, and Lewis, supra. Finally, in many of these cases, unlike the present case, the "oath” taker was a policeman, attorney, or other person who had had considerable experience in submitting sworn statements and who clearly understood both that a swearing was required and the consequences of swearing falsely. Troutman, Parker, Atwood, Moore, Cole, Blackburn, and Holladay, supra.

In State v Anderson, 178 Kan 322; 285 P2d 1073 (1955), the court disregarded a statute requiring oaths to be administered by placing the right hand on a bible or with an upraised hand, and upheld defendant Anderson’s perjury conviction. Anderson was a deputy sheriff and had filed a false criminal complaint. The court noted that Anderson was a deputy sheriff (who presumably understood that complaints were to be sworn to) and that he had signed the complaint before a judge.

Anderson stands alone in ignoring a statutory requirement that an oath be administered. And Anderson is unlike the present case in that there the "oath” taker clearly understood, through experience, that he was under oath. Additionally, other formalities were observed. Anderson signed the form before a judge, who affixed his official seal.

37 As originally enacted in 1939, §25 of the Social Welfare Act provided:

All statements in the application shall be sworn to or afñrmed by the applicant setting forth that all facts are true in each material point .... [1939 PA 280, §25. Emphasis supplied.]

The "sworn to or affirmed by” language remained until 1957, when it was replaced by "under the penalties of perjury.” 1957 PA 95, § 25. The amended § 25 read in pertinent part as follows (new language emphasized):

All statements in the application shall be over the signature or witnessed mark of the applicant and shall include a declaration under the penalties of perjury that the application has been examined by or read to the applicant, and, to the best of the applicant’s knowledge, that all facts are true in each material point ....

The amendment requires explicit notice to applicants that submission of fraudulent applications may be prosecuted as perjury, and prescribes the manner in which such notice shall be given. It does not change the elements of perjury by eliminating the requirement that there be an oath. Nor does it eliminate the requirements of RJA, § 1432, prescribing the form of an oath.

It might be argued that the Legislature, by amending the language, intended to by-pass both the statute prescribing the elements of perjury and the statute prescribing the form for administering oaths, so that the signing of a form containing the warning that the signature was "under the penalties of perjury” in itself constitutes an "oath.” Such an argument cannot withstand analysis for the reasons discussed in part m. Where legislatures intend to penalize the false signing of documents "under the penalties of perjury,” they do so explicitly by stating that a person who so falsely signs "is guilty of perjury,” or "shall be guilty of a felony,” or "shall be guilty of false swearing.” See 26 USC 7206 and statutes quoted in n 26 and discussion in n 30. Section 25 of the Social Welfare Act does not so provide.