60 Op. Att'y Gen. 429 (1971)
 
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Wisconsin Attorney General Opinions

30 November 1971

Oaths. Affirmations. (Informal)
Oaths, affirmations, notary publics
and jurats discussed.

ROBERT C. ZIMMERMAN, Secretary of State

In your letter of August 12, 1971, you pose
a number of questions relating to oath
administered by notaries public, and
the use of the phrase, "So help me God."

The common law is that an oath is an
acknowledgement or pledge by a person bound
by his or her accountability to God or by his
conscience to the Supreme Being that what he
or she is averring is true.

See cases cited in
Black's Law Dictionary, 4th ed.

On the other hand, an affirmation is a
solemn declaration of truthfulness without an
appeal for divine guidance.

Again, see Black's Law Dictionary, 4th ed.

Wisconsin recognizes this distinction.

Section 887.03, Stats., provides:

887.03 Oath, how taken.

   Any oath or affidavit required or
   authorized by law may be taken in
   any of the usual forms, and every person
   swearing, affirming or declaring in any
   such form shall be deemed to have been
   lawfully sworn.

Section 887.04, Stats., reads:

887.04 Affirmations.

887.04(1)

   Every person who shall declare that he
   has conscientious scruples against
   taking the oath, or swearing in the
   usual form, shall make his solemn
   declaration or affirmation, which may be
   in the following form: Do you solemnly,
   sincerely and truly declare and affirm
   that the testimony you shall give in
   [here indicate the action, proceeding or
   matter on trial or being inquired into]
   shall be the truth, the whole truth and
   nothing but the truth; and this you do
   under the pains and penalties of
   perjury.

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887.04(2)

   The assent to the affirmation
   by the person making it may be
   manifested by the uplifted hand.

In considering these two statutory
provisions, we must also read Section
990.01(24), Stats., which provides:

990.01(24) Oath.

   "Oath" includes affirmation in all cases
   where by law an affirmation may be
   substituted for an oath.

If any oath or affirmation is required to be
taken such oath or affirmation shall be taken
before and administered by some officer
authorized by the laws of this state to
administer oaths, at the place where the same
is required to be taken or administered,
unless otherwise expressly directed, and,
when necessary, duly certified by such
officer.

If an oath is administered it shall end
with the words "so help me God."

In many places in the statutes the
legislature uses the term "oath"
when it is obvious that it meant
to mean "oath or affirmation."

For example, in Chapter 6,
entitled, "The Electors," the legislature
uses "oath," "swear," and "affirm" (or
variants) interchangeably.
 

Section 6.15(2)(a), Stats.:

  "application . . signed in the presence
   of . . any officer authorized by law to
   administer oaths . . I, . . hereby
   solemnly swear . ."

Section 6.18, Stats.:

   ". . I, . . hereby swear or affirm . .
    . .  Subscribe and sworn to . . "

Section 6.30, Stats.:

   ". . (b) He shall appear before any person
   authorized to administer oath . . .
    . . The person administering the oath .

Section 6.33(2), Stats.

   "The registration affidavit form shall
   be substantially as follows . . . I
   hereby swear (or affirm ) . ."

We may summarize, as follows: When a notary
public administers an oath, the words, "So
help me God" must be utilized, unless some
other form of oath is set forth in or
otherwise clearly allowed be the
particular statute involved.

This is in conformity with
Section 887.03, Stats.

If the deponent or declarer asserts
"conscientious scruples against taking
the oath" then, and only then, the notary
public may "swear" the deponent or declarer
in affirmation form as provided in Section
887.04, Stats.

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However, by virtue of Sections 887.03 and
990.01(24), Stats., an affirmation has
the same legal effect as does an oath.

Therefore, the jurat, "subscribed and sworn,"
will embrace either the oath or affirmation
situation.

The jurat need not specify whether the
words, "So help me God" were utilized since
it will be presumed that the notary public
administered the oath in accordance with law.

I note that Section 137.01(5), Stats.,
setting forth the powers of notaries public,
grants the power to "administer oaths."

While a very narrow construction of this
section might lead to the conclusion that a
notary public does not have the power to
administer affirmations, in my opinion,
this would not be a reasonable
interpretation of this section.

It is incongruous that the legislature would
empower notaries public to administer oaths
and consciously withhold the power to
administer affirmations.

Rather, when Sections 137.01(5), 887.03 and
990.01(24), Stats., are read in harmony,
we must conclude that the word "oath" in
Section 137.01(5) necessarily
includes "affirmations."

RWW:WHW

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