When Maryland's Constitution says a newly elected or appointed official must take the oath of office 'before the Governor,' does the Governor personally have to read the oath out loud?

Plain-English summary

Secretary of State John T. Willis asked the Attorney General to interpret Article I, §10 of the Maryland Constitution, which lets a newly elected or appointed public officer qualify for office by taking the oath "before the Governor of the State" (among other options, like before a clerk of court). The specific question was whether "before the Governor" required the Governor to personally read the oath to the officer, or whether it was enough for the officer to take the oath in the Governor's presence while someone else administered it.

The opinion concluded that "before" in this context meant "in the presence of," not that the Governor personally had to administer the oath. It reached this conclusion by looking at how courts in Maryland and other states had interpreted similar "before" language in oath-taking statutes, and by noting that a prior Attorney General opinion had already established that Article I, §10 itself imposes no independent duty on the Governor to administer oaths at all, except where some other constitutional or statutory provision specifically requires the Governor's participation.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or procedure mentioned here.

Common questions

Does a newly elected Maryland official have to personally shake hands with the Governor and have the Governor recite the oath?
Under the opinion, no. The officer needs only to take the oath in the Governor's physical presence; someone else in the room, such as a staff member or another official, may actually administer or read the oath.

Was the Governor required to be involved in swearing in every state official?
No. The opinion noted that Article I, §10 does not itself impose any duty on the Governor to administer the oath at all; it is simply one of several optional ways an officer may qualify (the others being under existing law applicable to officers under the prior Constitution, or before any clerk of a court of record). The Governor is legally obligated to participate only when some other provision, such as Article V, §2 for the Attorney General, specifically requires it.

Did any prior Maryland court decision directly answer this question?
No. The opinion noted that Article I, §10 has been part of the Maryland Constitution since 1867 but that no reported Maryland decision had construed the specific "before the Governor" language, so the opinion relied on a prior Attorney General opinion addressing the related question of the Governor's role, plus case law from other jurisdictions interpreting similar "before" language in oath statutes.

Background and statutory framework

Article I, §9 of the Maryland Constitution requires every elected or appointed official whose office is created by the Constitution or by state statute to take a prescribed oath in order to qualify for office. Article I, §10 sets out alternative methods for taking that oath: under existing law applicable to officers under the prior Constitution, before the Governor, or before any clerk of a court of record anywhere in the state. If an officer qualifies outside the county where the officer resides, an official copy of the oath must be filed in the clerk's office of the relevant circuit court (or, for Baltimore City residents, the Superior Court of Baltimore City).

The opinion drew on a 1986 Attorney General opinion (71 Opinions of the Attorney General 334) that had already analyzed the origins and purpose of Article I, §10, describing it as a "catch-all and transitional section" providing alternative qualification methods, and establishing that the Governor has no independent duty under that section to administer oaths generally.

Citations and references

Statutes:

• Article I, §9 of the Maryland Constitution, prescribing the oath every elected or appointed officer must take to qualify for office
• Article I, §10 of the Maryland Constitution, describing the alternative methods (before the Governor, before a clerk of court, or under prior law) by which an officer may qualify
• Article I, §11 of the Maryland Constitution, addressing the consequence of an officer's failure to timely qualify
• Article V, §2 of the Maryland Constitution, specifically directing the Governor to administer the oath of office to the Attorney General
• Article 70, §2 of the Maryland Code, a statute requiring certain officers to take and subscribe the oath "before the Governor"
• Article 70, §11 of the Maryland Code, providing that an officer who declines or neglects to take the prescribed oath within 30 days of receiving the commission is deemed to have refused the office

Cases:

• Archer v. State, 74 Md. 410 (1891), Harwood v. Marshall, 10 Md. 451 (1957), and Thomas v. Owens, 4 Md. 189 (1853), cited for the principle that qualifying for office is equated with taking the oath of office
• In Re Keller, 36 F. 681 (D. Minn 1888); Hutchinson v. Stone, 84 So. 151 (Fla. 1920); In Re Murphy, 72 N.E. 2d 413 (Mass. 1947); State v. Murnane, 215 N.W. 863 (Minn. 1927); and Clone Component Distributors v. State, 819 S.W.2d 593 (Tex. App. 1991), cited for the general legal meaning of "before" as "in the presence of"
• Ex parte Davis, 62 S.W.2d 1086 (Mo. 1933), the Missouri Supreme Court's holding that an affidavit statute requiring the oath be made "before a magistrate" means in the magistrate's presence, not that the magistrate must administer it
• People ex rel. Gilarmini v. Elrod, 376 N.E.2d 53 (Ill. App. 1978), cited in accord with the Ex parte Davis interpretation

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1995/80oag262.pdf

Original opinion text

262 [80 Op. Att'y

                   PUBLIC OFFICERS

G OVERNOR ) G OVERNOR N EED N OT P ERSONALLY A DMINISTER
O ATH TO O FFICER W HO Q UALIFIES "B EFORE THE
G OVERNOR"

                        April 28, 1995

The Honorable John T. Willis
Secretary of State

 You have requested our interpretation of Article I, §10 of the

Maryland Constitution, which describes the methods by which
public officers may qualify. Specifically, you asked the following
question: When Article I, §10 refers to an officer's qualifying
"before the Governor of the State," does the provision mean that the
Governor must read the oath personally, or does the provision allow
the Governor to direct someone else to read the oath in his
presence?[1]

  For the reasons stated below, we conclude as follows: An

officer properly qualifies "before the Governor" if the officer takes
the oath in the presence of the Governor. The Governor need not
personally administer the oath.

                               I

                 The Qualification Process

  Every elected or appointed official whose office is created by

the Maryland Constitution or State statute qualifies for office by
taking the oath prescribed by Article I, §9 of the Constitution. As
Attorney General Burch pointed out some years ago, "the Court of
Appeals has equated qualifying for office as taking the oath of
office." 58 Opinions of the Attorney General 683, 686 (1973). See,
e.g., Archer v. State, 74 Md. 410 (1891); Harwood v. Marshall, 10
Md. 451 (1957); Thomas v. Owens, 4 Md. 189 (1853). See also 67
Opinions of the Attorney General 241, 242 (1982).[2]

  Article I, §10 of the Constitution describes the process of

qualification as follows:

               Any officer elected or appointed in
          pursuance of the provisions of this
          Constitution, may qualify, either according to
          the existing provisions of law, in relation to
          officers under the present Constitution, or
          before the Governor of the State, or before any
          Clerk of any Court of Record in any part of
          the State; but in case an officer shall qualify
          out of the County in which he resides, an
          official copy of his oath shall be filed and
          recorded in the Clerk's office of the Circuit
          Court of the County in which he may reside,
          or in the Clerk's office of the Superior Court
          in the City of Baltimore, if he shall reside
          therein.

This provision has been in the Constitution since 1867; no reported
decision construes it.

                                  II

                    The Role of the Governor

  In 71 Opinions of the Attorney General 334 (1986), Attorney

General Sachs analyzed the law applicable to the administration of
the oath of office to a State's Attorney. In the course of that opinion,
the Attorney General discussed the origins of what is now Article I,
§10.[3] The Attorney General characterized the provision as a "catch-
all and transitional section," one that provides alternative ways in
which a public officer may qualify. 71 Opinions of the Attorney
General at 340-41.

  As that opinion pointed out, Article I, §10 does not itself

impose a duty on the Governor to administer the oath. The
Governor is obliged to do so only when another constitutional or
statutory provision requires him to participate. 71 Opinions of the
Attorney General at 341-42.[4] However, the opinion did not consider
the question whether the Governor is obliged to administer the oath
personally when he does allow officers to qualify before him under
Article I, §10.[5]

  In our view, the phrase "before the Governor" means that the

Governor must be present when the officer takes the oath; it does not
mean that the Governor must personally administer the oath. The
term "before," in this context, simply means "in the presence of."
See In Re Keller, 36 F. 681, 684 (D. Minn 1888); Hutchinson v.
Stone, 84 So. 151, 154 (Fla. 1920); In Re Murphy, 72 N.E. 2d 413,
418 (Mass. 1947); State v. Murnane, 215 N.W. 863, 864 (Minn.
1927); Clone Component Distributors v. State, 819 S.W.2d 593, 598
(Tex. App. 1991). As the Missouri Supreme Court observed about
a statute requiring an affidavit to "be made before a magistrate," the
requirement means "in the presence of the magistrate, not that he
actually must administer the oath." Ex parte Davis, 62 S.W.2d
1086, 1088 (Mo. 1933). Accord, People ex rel. Gilarmini v. Elrod,
376 N.E.2d 53, 55 (Ill. App. 1978). We have no reason to think that
the Court of Appeals would view the issue differently.

                            III

                       Conclusion

  In summary, it is our opinion that the Governor must be

physically present when an officer qualifies "before the Governor,"
but the Governor need not himself administer the oath of office.

                                  J. Joseph Curran, Jr.
                                  Attorney General

                                  Jack Schwartz
                                  Chief Counsel
                                   Opinions & Advice

[1] You also asked two questions related to an officer's qualifying
before a clerk of court. We shall address these questions separately.

[2] An officer who declines or neglects to take the prescribed oath
within 30 days of the day when the officer's commission was received by
the court clerk "shall be deemed to have refused said office." Article 70,
§11 of the Maryland Code. See Article I, §11 of the Constitution.

[3] When first enacted in the Constitution of 1867, the provision was
§10 of Article XV. It was transferred to its present location by Chapter
681 of the Laws of Maryland 1977 (ratified November 4, 1978).

[4] For example, Article V, §2 of the Constitution specifically directs
the Governor to administer the oath of office to the Attorney General.

[5] In a footnote, the Attorney General assumed that a statute
requiring various officers to "take and subscribe the ... oath before the
Governor" was synonymous with the Governor's "administer[ing] the
oath." 71 Opinions of the Attorney General at 342, n.13 (citing Article 70,
§2). This particular question was neither posed nor explicitly considered,
however.