Can a Maryland circuit court clerk administer the oath of office to a public official who lives in a different county?

Plain-English summary

Maryland's Secretary of State asked the Attorney General about Article I, §10 of the Maryland Constitution, which lets certain public officers qualify for office by taking an oath "before any Clerk of any Court of Record in any part of the State." The Secretary asked two things: whether that language let a clerk travel to administer an oath in a county other than the clerk's own, and whether the Clerk of the Circuit Court for Anne Arundel County could swear in an officer who lived in, or would serve in, a different county.

The Attorney General concluded that a clerk's authority is territorial: a clerk of the circuit court has no power to act outside the county the clerk serves unless a law expressly says so, and no law gave clerks that traveling authority for oaths. But the constitutional text itself answered the second question differently: it expressly contemplated an officer qualifying "out of the County in which he resides," so the Anne Arundel County clerk could administer the oath to an officer who lived in, or would serve in, another county, so long as the officer came to the clerk rather than the other way around.

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 mentioned here, particularly the current codification of the Courts and Judicial Proceedings Article provisions discussed below.

Common questions

Can a Maryland court clerk travel to another county to swear in an official?
No. The opinion concluded that a clerk of the circuit court has no authority to act outside the county in which the clerk serves, because nothing in the Courts Article or Article 70 of the Code granted clerks that out-of-county power, unlike the express out-of-county authority given to notaries public and sheriffs.

Can a clerk swear in an officer who lives in a different county?
Yes. The opinion found that Article I, §10 of the Maryland Constitution expressly allowed an officer to qualify "out of the County in which he resides," meaning the officer could travel to the clerk's county and be sworn in there, even though the clerk could not travel to the officer.

Does it matter where the officer will actually serve?
No. The opinion concluded the place where the officer would serve was immaterial to whether a given clerk could administer the oath; what mattered was that the officer appeared before the clerk within the clerk's own county.

Background and statutory framework

Article IV, §25 of the Maryland Constitution provides for the election of a circuit court clerk by the voters of that county or Baltimore City, and Article IV, §20 gives circuit courts power and jurisdiction "within the respective counties." The Courts and Judicial Proceedings Article, §1-501, similarly limits a circuit court's full common-law and equity jurisdiction to cases "within its county." Because a clerk is an officer of the circuit court, the opinion reasoned that a clerk's authority does not extend beyond that county absent an express statutory grant.

The opinion contrasted this silence with express grants of out-of-county authority elsewhere in Maryland law: Article 68, §7 let a notary public "exercise all functions of the office ... in any other county or city than the county or city for which he may be appointed," and Cts. & Jud. Proc. §2-301 authorized a sheriff to serve process in another county. No comparable provision authorized a circuit court clerk to administer oaths outside the clerk's own county. However, Article I, §10 of the Constitution separately addressed the oath itself, expressly contemplating that "an officer shall qualify out of the County in which he resides," with an official copy of the oath then filed in the clerk's office of the county where the officer resides. The opinion read this language as making the officer's residence, not the clerk's location, the variable that could cross county lines: the officer could travel to be sworn in, but the clerk's own jurisdiction to administer the oath remained confined to the clerk's home county.

Citations and references

Statutes:

• Md. Const. art. I, §10, allowing certain officers to qualify before a clerk even when the officer resides or will serve in a different county
• Md. Const. art. IV, §25, providing for county election of circuit court clerks
• Md. Const. art. IV, §20, limiting circuit court power and jurisdiction to the respective counties
• Md. Code, Cts. & Jud. Proc. §1-501, confining a circuit court's common-law and equity jurisdiction to cases within its county
• Md. Code, Art. 68, §7, the express grant of out-of-county authority to notaries public, contrasted with the clerk's lack of similar authority
• Md. Code, Cts. & Jud. Proc. §2-301, the express grant of out-of-county process-service authority to sheriffs

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/1995/80oag266.pdf

Original opinion text

PUBLIC OFFICERS - CLERKS OF COURT - CLERK ACTING OUT OF HOME COUNTY - OFFICER QUALIFYING OUT OF COUNTY OF RESIDENCE

May 23, 1995

The Honorable John T. Willis
Secretary of State

You have requested our interpretation of one portion of Article I, Section 10 of the Maryland Constitution, which describes the methods by which certain public officers may qualify.[1] Specifically, you posed two questions about an officer's qualifying "before any Clerk of any Court of Record in any part of the State":

1. Does the term "any Clerk of any Court of Record" permit a Clerk to qualify an officer in a county other than the Clerk's home county?

2. May the Clerk of the Circuit Court for Anne Arundel County swear in an officer who will serve in, or who resides in, another county?

For the reasons stated below, we conclude as follows:

1. A clerk of the circuit court may not administer an oath outside the jurisdiction in which the clerk serves.

2. The Clerk of the Circuit Court for Anne Arundel County may administer the oath to an officer who resides in, or who will serve in, another county.

I

Exercise of Clerk's Authority Out-of-County

Article IV, §25 of the Constitution provides for the election of a clerk of each circuit court by a plurality of voters for that county or Baltimore City. Under Article IV, §20, the circuit courts have power, authority, and jurisdiction "within the respective counties." Similarly, §1-501 of the Courts and Judicial Proceedings ("CJ") Article, Maryland Code, provides that a circuit court "has full common-law and equity powers and jurisdiction in all ... cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law ...." Because the clerk is an officer of the circuit court, the clerk's authority does not extend beyond the county in which the clerk serves unless some provision of law expressly provides for the exercise of out-of-county authority.

Nothing in CJ Title 2 of the Courts Article or Article 70 of the Code expressly authorizes a clerk to administer an oath outside of the county. In striking contrast, a notary public is expressly authorized by Article 68, §7 to "exercise all functions of the office of notary in any other county or city than the county or city for which he may be appointed." Likewise, a sheriff has express authority to perform certain duties outside of the county from which the sheriff was elected. See, e.g., CJ §2-301 (authorizing a sheriff to service process in another county). No comparable provision authorizes a clerk of the circuit court to carry out duties in another county.

II

Administration of Oath to Officers Serving Out-of-County

Article I, §10 of the Constitution expressly authorizes a clerk to qualify an officer by administering the oath, albeit the officer lives in a different county: "[I]n 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."[2] The place of service of the officer is immaterial. Thus, the Clerk of the Circuit Court for Anne Arundel County may administer the oath to officers who reside in (or who will serve in) another county.

III

Conclusion

In summary, it is our opinion that:

1. A clerk of the circuit court may not administer an oath outside the jurisdiction in which the clerk serves.

2. The Clerk of the Circuit Court for Anne Arundel County may administer the oath to an officer who resides in, or who will hold office in, another county.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

[1] In 80 Opinions of the Attorney General 262 (1995), we addressed your question about the role of the Governor under Article I, §10.

[2] The reference to "the Superior Court in the City of Baltimore" is outmoded. The old Superior Court is now part of the Circuit Court for Baltimore City. See Chapter 523 of the Laws of Maryland 1980 (ratified November 4, 1980).