People v. Ramos

430 Miсh v RAMOS PEOPLE 19). (Calendar Argued Docket No. Decided No. 76612. October June 1988. jury by the Shiawassee Joel Ramos was convicted a Circuit J., Court, Marutiak, perjury of fraud and on Peter welfare report ownership of his failure to of commercial the basis application the on an for assistance under Social Wel- tractor P.J., Appeals, R. B. and Burns, fare Act. The Court of Bronson Hobson, JJ., unpublished opinion per in an cu- and affirmed 74409). (Docket appeals. riam No. The defendant Riley opinion by joined by Levin, In Justice Chief Justice Supreme Cavanagh, Archer, and Brickuey, and Justices Court held: of of an oath is an element Because administration to the defendant at time he

and no oath was administered benefits, signed application welfare his conviction of for perjury must be reversed. perjury. making 1. The of an oath is an element of Under law, provide Michigan of an oath form sufficient requires signature more than a basis for a conviction prescribed following warning penalty of As of statute, administered, may oaths oaths in all cases in which significant readily of observable acts that take the form upon importance provid- impress taker the serve to the oath information, operate objective ing evidence accurate providing importance oath taker that the understands promising, threat of information and is severe accurate lying, truthful. Revised Judicature Act for to be acknowledgment provides of an for the oral administration and right oath, coupled raising with the oath taker’s hand. signing in this for welfare benefits 2. making statutory oath. The did not constitute the an. case sufficiently designed so it is is to be distinct form of oath recognizable as a clear the oath tаker observers References 2d, Am Laws 111-113. Jur Welfare §§ under Poor Persons. See the Index to Annotations People v Ramos Opinion Court acknowledgment assumption provide responsibility of an name, signing appli- truthful information. The of one’s even to benefits, following warning applica- cations for welfare on the commonplace tion of the and insufficient perjury. to constitute 3. Because failure an oath the the to administer to defendant dispositive, question necessary is is not to address the whether the Act Social Welfare authorizes administration of oaths. part, part, in

Affirmed reversed in and remanded. Boyle, dissenting, wilfully Justice stated false state- setting extrajudicial ments made in an an oath or required subject penalties affirmation is are to the of punishment extrajudicial The Penal Code authorizes for false swearing, § Social Welfare Act indicates that the signing application of an for welfare assistance the under perjury of was intended as a for the substitute admin- plain language istration of an actual oath. The of 25 of the liability act authorizes criminal for false statements Perjury requires only making and omissions. of a wilful statement, being considered; false material to the issue welfare requires making fraud of a false statement which in- actually reception to tended or results of benefits applicant excess those to which an is entitled. part Justice Griffin took no in the decision of this case. Perjury — Applications — Welfare Written Declarations. making prescribed of an oath Michigan in the form perjury; signing application law is element of the mere of an following warning application for welfare benefits a on the (MCL peijury for is insufficient to constitute 27A.1432). 600.1432;MSA Kelley, Attorney

Frank J. General, Louis J. Caruso, General, Solicitor McCleman, David E. Prosecuting Attorney, Johnson, and Thomas C. Attorney plaintiff. General, Assistant for the Appellate (by Krogsrud) State Defender James for the defendant. (for reversal). Joel Ramos con-

Levin, 430 Mich Opinion of the Court filing for a perjury2 fraud1 and victed of welfare dependent for aid to children false prison to Ramos was sentenced assistance.3 (ADC) to for welfare fraud years terms of two four the perjury. to fifteen years and ten person or Any means of wilful false statement who representation by impersonation or or other fraudulent device obtain, person attempts any to or aids or abets obtains or to (b) entitled; (a) he is or or relief which obtain a assistance larger or relief than that to which he is amount of assistance entitled; county, city employee justly or or or officer department or welfare who authorizes recom district of social ineligible persons or to known to him be mends relief fraudulently eligibility; any person or their who have created disposal buys buying knowingly property of the or relief without the or in or aids or abets in receiving person assistance department, supervisor or state consent of shall, director $500.00 of the value of if the amount involved shall be shall, misdemeanor, less, guilty if deemed be $500.00, involved shall be of value of more than amount deemed ished as pun guilty felony, upon conviction shall be provided by in the laws of this state. The amount as the used in this subsection shall be defined differ volved as or aid and the ence lawful amount of assistance between anyone actually aid received. If re amount of assistance or ceives аssistance or relief through means enumerated this section, unnecessary, prosecution is deemed state may department steps county departments necessary or take involved, recipient plus the amount to recover from per of the violation of the interest at provisions annum. On conviction 5% any employee any or of of this section of officer welfare, department city county, or 400.60(1); or of social such officer district employee office. [MCL shall removed or dismissed from be 16.460(1).] MSA an law, or 750.423;MSA 28.665.] shall be in thing, respecting Any the state oath, who shall person guilty or any person prison wilfully swear authorized perjury, which such oath of whom an oath shall be more by any felony, falsely, than statute punishable by is authorized or fifteen regard of this state ^[15] imprisonment years. required required, matter [MCL take perjury specifically punishes separate committed A statute 750.422; 28.664. courts. MCL MSA report ownership The a commercial tractor. failed to Ramos concurrently. run sentences v Ramos Opinion op the Court Ramos asserts two grounds reversing his First, conviction. that perjury Social Welfare Act4 does not authorize of an administration oath —an element applicants. Sec- adc —to ond, requisite oath was not administered.

We hold that of an because administration oath is an element of and an oath was not when signed administered Ramos he the appli- cation, his conviction must reversed. We do not question therefore reach the whether the Social Welfare Act authorizes the administra- tion of oath. an We affirm the welfare fraud con- viction.

i Husted, Dealisa Department Social Services caseworker, payments assistancе testified that she reviewed Ramos’ application during an interview with Ramos on 1980. October Ramos had fol- lowed dss instructions completed applica- tion before interview. Husted checked over the Ramos, application with signature, witnessed his and signed her name to indicate she had conducted review. stating contained "affidavit”5 the intentional omission information or the

providing false information could result in pros- seq.; governs seq. MCL 400.1 et et act MSA 16.401 adc applications. provided: The affidavit questions I swear affirm that I have answered all on this completely form as as I was and that able all the information that I have written on this form or told to a caseworker true. may proof any I also that I know be asked show informa- given. intentionally I

tion I have also if I have know left information, given out or if I I information have false can prosecuted perjury. be for fraud or 430 Mich 544 Opinion of the Court acknowledged fraud or Husted perjury. ecution for to Ramos nor read this affidavit that she neither him. an oath to administered fraud of welfare Following Ramos’ conviction Appeals affirmed and the Court per opinion. curiam unpublished

ii sign- that his Ramos’ contention agree We with does not constitute the mak- ing of the ing of an oath. significant readily take the form of a

Oaths to impress upon act or acts that serve observable accu- importance providing the oath taker information, evidence operate objective rate importance the oath taker understands and is providing promising, accurate information lying, threat of severe be truthful.6 making perjury.7 of an oath is an element of law, form of an "oath” suffi- Michigan

Under for a convic- cient constitute basis signature following more than a requires tion Section 1432 of warning of the mode of the Revised Judicature Act sets forth the administering provides oaths and for the oral ad- oath, of the acknowledgment ministration raising right with the oath taker’s coupled hand: administering usual mode of oaths now 533, 537; Dist 6 See June v School No 283 Mich 278 NW 676 (1938) (" asseveration, pledge An made in verifica 'Oath. external made, made, coupled appeal or to with an to a tion of statements sacred or venerated state of mind of the to witness the words object, in of the serious and reverent evidence supreme being party, or an invocation to a with party, punishment if and to visit him with ”).

they be false.’ 7See n 2. People v Ramos 549 Opinion op the Court state, practiced person in by this who swears hand, holding up right be in shall observed all may cases which an oath by administered except in the provided. law The oath swear cases herein otherwise commence, solemnly should "You do 600.1432; or affirm.” MSA [MCL 27A.1432.][8] [Emphasis supplied.] RJA, applied 1432 was this Court by § Mankin, 246; 225 Mich 196 NW 426 where Mankin was convicted of for mak- false ing a statement in an affidavit marriage for a license. Mankin appeal claimed on that his convic- tion should be reversed he because was not admin- istered the help "usual oath” —the words "so you were God” omitted. While Court rejected Man- claim, recognized kin’s it the statute was requires applicable and some form of oral admon- ishment, which the oath taker receives ac- knowledges upraised right with an hand: It will be observed that this statute [MCL 600.1432; require any MSA does 27A.1432] particular oath; provides only form for an party holding

the hand. up right shall swear regard . . . We have come to uplifted accompanied by ap hand solemn as an peal to God for truth of what the witness is about swear” The testify. solemnly words "You do import and of themselves a serious appeal to God. to the When addressed taker oath, hand, who with uplifted they stands signify he is that Nothing bound conscience to tell the truth. necessary. [Emphasis supplied. further Mankin, supra, p 252.] phrase "except provided” in the cases herein otherwise refers following. provisions directly in the the scenarios described Persons "conscientiously opposed” taking may "solemnly an oath instead affirm,” sincerely 600.1434; 27A.1434; guardians may MCL MSA 600.1438; incompetents, make on behalf mental oaths MCL MSA 27A.1438; military personnel may "any be administered oaths service,” 600.1440; commissioned officer in active MCL MSA 27A.1440. 430 Mich Opinion op the Court Appeals RJA, applied the Court Secretary State, in Dawson v 390; 44 Mich App (1973). Dawson was arrested 205 NW2d to take a breath test. driving and refused drunken this report noting filed a arresting officer State, sus- Department refusal with ninety days. driver’s license for Dawson’s pended reports be "sworn.” required The statute9 that, the suspension the on basis appealed Dawson he signed report, had the though the officer even right had not raised his not "sworn” to it —he had sworn. orally hand Dawson’s Appeals agreed with

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

The United States District Court West- RJA, Michigan applied ern District Bennett, In re 223 F mortgage. a chattel invalidate 1963). (WD Mich, pro- The statute Supp mortgages required they for chattel viding mortgage the chattel contain an affidavit.11 While issue in Bennett contained affidavit, a notarized at sworn, Bennett, stating that he had been signed by upraised with acknowledged, he had not orally hand, The affi- an administered oath. right orally was therefore invalid: davit Peterson, the

It that under the State law is clear 9.2325(4)-9.2325(5). 257.625d-257.625e; 9 MCL MSA 10Dawson, supra, p 391. amended 1961 PA 106.

11 1948 CL 566.140 as People v Ramos Opinion op the Court required notary public, to administer an oath Bennett, mortgagor, good- to faith affidavit attached but examination who executed mortgage,

to the chattel testimony notary of the of the clearly shows that he did not administer oath mortgagor. signed affidavit as merely to the He public mortgagor’s signa- notary to attest ture. [Id.] and the attestation signature notary’s

Bennett’s signature were insufficient to constitute an "oath.” Michigan Bar of committee on the

The State agreed revision criminal code "oath,” defined, presently statutorily requires as simple signature, signa more than a even if the perjury.” ture is made "under As Kasparis, App noted in 107 Mich 300; 309 NW2d "the drafters of the proposed opinion criminal code were of the swearing’ presently terms 'oath’ 'false general used in the do not include perjury statute bearing statements made on official forms notice penalties that answers are made under ‍‌‌​‌‌​​​​​‌​‌‌‌​‌‌​‌​​‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌​​​​‌‌‍the perjury.”12 conviction, affirming

In Ramos’ the Lumbard, 94 Appeals Court relied on 16, App 18; Mich 287 354 where the NW2d Appeals Court of had earlier held that an adc untruthful applicant, by "intentionally fil[ing] an assistance,” application for had committed welfare 12 rja, Court, Kasparis relying In on held a while not signature "swearing.” alone was not constitute a Kas sufficient to paris signer filed a false sales tax return. The form stated that Relying penalties perjury.” "under on the certified his statements State Bar committee above, report United noted and on Escobar v (CA States, 5, 1967), a 388 F2d 661 where the court held that as signer matter of federal law the the perjury, of a federal tax return included language perjury” "under could not be convicted of Appeals Kasparis a Court of held that had made "swearing.” 430 Mich op Opinion the Court however, not, discuss or That decision did perjury. Mankin, Dawson, RJA, 1432, or Ben- advert § nett. to be designed form of oath is statutory recognizable by so that it is

sufficiently distinct taker and as a clear acknowl- oath observers13 assumption respon- edgment of the oath taker’s Signing for truthful information. sibility providing checks, name —to credit card correspondence, one’s Signing a and casual act. receipts frequent —is applications one’s name even to to obtain funds— loans, cards, credit for secured and unsecured commonplace. insurance —is also For signature following warning Legislature requires is insufficient. The of a distinctive form of oath. administration

hi A dissenting opinion asserts because RJA, prescribing form for administer § oaths, is in the Revised Judicature ing included Act, in "judicial to oaths made applies only not, however, proceedings.”14 This limitation RJA, applies which in terms apparent § (affidavit Further, "in all cases.” Mankin for a license), marriage (report Dawson of refusal (affidavit test), take a breath and Bennett for RJA, mortgage), applied chattel all to out-of-court oath s.15 judge jury the oath taker is Such as or a case which public

providing testimony, assistance the reader of an representations applicant oath that his proceeding where the has sworn under truthful, judge jury in a in which the oath are or the charged taker is with 14 Post, p 581. rja provision Additionally, contains another oath applies nonjudicial proceedings: clearly People v Ramos Opinion of the Court A number of sections of the Revised Judicature govern Act activity occurring outside "judicial pro- ceedings.” provisions creating and providing for the administration of the State Bar and bar- ring the unauthorized practice of law are included rja.16 in the provisions These govern aspects all practice law, not merely aspects those occur- ring in the context of "judicial proceedings.” A is not nonlawyer practice free to law as long as he does so outside of "judicial proceedings.”

RJA, 1412, declaring that the Eastern § Ortho- dox faith faith,17 RJA, is a major 1405, governing § rights third-party beneficiaries con- tracts,18 RJA, 52, ch regarding assignments for the creditors, benefit of RJA, former19 ch con- cerning assignments receivable, of accounts are also not limited to "judicial proceedings.”

RJA, to "all cases in applies in terms which an oath may be administered by law.” (Emphasis supplied.) The violating an oath is the same regard without to whether oath was made "judicial proceedings” or other contexts. One of the primary functions of an oath place is to the oath taker on notice that he violates his oath at the risk incurring severe penalties. Because for violation of oaths made in "judicial proceedings” and oaths any may required Whenever oath or affidavit is or be or cause, matter, any proceeding, except authorized law in jurors cause, oaths to witnesses and in the triаl of a and such may required by other oaths as are or particular law to be taken before officers, may any justice, the same be taken before

judge, public. notary 600.1440C1); or clerk of court or [MCL 27A.1440(1). Emphasis supplied.] MSA seq.; seq. MCL 600.901 et MSA 27A.901 et 600.1412; MCL MSA 27A.1412. 600.1405; MCL MSA 27A.1405. 19Repealed by 1962 PA which enacted the Uniform Commer Code, seq.; seq. cial MCL 440.1101 et MSA 19.1101 et Mich 544 430 554 Opinion of the Court same, is no there the are in other contexts made Legislature suppose intended the reason the warning highly distinctive a less to receive oath taker in the for- than situation in the latter mer.20 dissenting opinion argument by the made

The argument rejected Court this similar 266 People 224 234; NW2d Milton, 393 Mich v (1974). over and bound was arrested Milton chap- The trial. court for to circuit court district providing creating its and court the district ters rja.21 act con- jurisdiction The to the were added jurisdiction in civil district court on the ferred controversy did not the amount cases where exceed certain examinations try jurisdiction to $3,000, and criminal preliminary to hold and misdemeanors felony cases.22 rja limited that because Milton asserted provi- rja matters, in the inclusion to civil jurisdiction creating court’s the district sion criminal Const unconstitutionality title-object clause, violated matters resulting 24,23 4, § art jurisdiction ren- lack of against prosecution him. the criminal dered void Stanley, People 530; 344 Mich on Milton relied ruled had this Court 39 where to the 1915 75 NW2d Act, Judicature that an amendment Supreme providing to the of error that a writ following of course a matter issue as Court shall personal involving judgment case in a criminal istering 161 Colo 1969). ^[20] Other oaths 317; jurisdictions 422 P2d 377 apply them to out-of-court with (1966); statutes State v prescribing oaths. See Blaisdell, the form 253 A2d Rogers v for admin- 341 People, (Me, jurisdiction expressed 21 "No law shall MCL $3,000 ceiling PA in its 600.8301; is set forth 154; title.” RJA, embrace MSA in MCL has since been chs 81-83. 27A.8301. more than one 600.8311; MSA 27A.8311. increased to The district court’s object, $10,000. which shall criminal PA v Ramos Opinion of the Court title-object appellant,

liberty violated the arguments rejected Milton’s This Court clause.24 Stanley. overruled B dissenting opinion the in the also asserts penalties perjury” phrase "under statutory author- Act serves as both Social Welfare of an oath and as an for the administration ization in itself.25 "oath” signature following jurisdictions, a

In some perjury” may phrase in- "under prose- provide basis for a criminal in deed sufficient appears jurisdictions, how- It that those cution. ever, legislature specifically deemed that has penal- signing language may falsely be under such setting example, forth the For USC ized. crimes of fraud explicitly statements, and false making felony: of a false statement deems rja 314) (1915 Act PA and of The title of the 1915 Judicature 236) (1961 respects. PA were identical in all material 25Post, 400.25; provides: pp 16.425 576-577.MCL MSA acting responsi- applicant party An a third for assistance or writing bly application in to the in his behalf shall deliver his county department prescribed by application the tion under the in the manner and form of social services department. in the state All statements signature shall be over the or witnessed mark of applicant party a declara- or such third and shall include application penalties perjury that has of and, applicant party, or third been examined or read to applicant’s knowledge, party’s to the best of the or third point complete; are and all facts are true in each material and depart- applicant party empower county the ment of social services and the state necessary оr third shall department all to obtain concerning recipient of social ser- information application in vices for whom the is made and his resources eligibility applicant. question, order to determine the inquiry or aid under No political opinions shall relate to the or recommendation grant religious any person, of no or denial of affiliations and any this act shall be in manner affected or influenced opinions [Emphasis supplied.] by such or affiliations. 430 Mich 544 Opinion of the Court Any person who . . . [w]illfully makes and sub- return, statement, document, any scribes or other which contains or is tion that it is verifed a written declara- penalties made under the of and which he does not believe to be true and every correct as to . . . material matter shall be guilty felony [Emphasis supplied.] .... California, Statutes Washington, and Wyo- ming provided have similarly person who falsely signs his stating name forms they signed are "under of perjury” is guilty of an oifense.26 Just as the federal statute provides: Section 118 of the California Penal Code who, Every person having testify, taken an oath that he will declare, depose, tribunal, certify truly any competent or before officer, person, any or of the cases in which such an oath administered, may by wilfully law of the State of California be oath, contrary any to such states as true material matter false, person testifies, every

which he knows to who declares, deposes, penalty declarations, any or certifies under testimony, depositions, the cases which such certification is permitted by law of the State of California wilfully states true mate- false, guilty rial which he to be matter knows [Emphasis supplied.] Washington provides: Section 74.08.055 of the Revised Code reсipient public applicant Each for or assistance shall shall contain or be make an for assistance which by declaration that it is made under the verified penalties require a written regulation, secretary, by may and of rule recipi- any by applicants or that other forms filled out public by of assistance shall contain or be verified a ents penalties of it is made under the written declaration perjury any in lieu of oath and such declaration shall be applicant required, shall be so informed at otherwise and each signing. the time of the recipient public applicant Any assistance who wil- for or of application, any fully statement or other makes and subscribes by paper verified a written declaration which contains or is penalties perjury he of and which that it is made under does not believe matter shall be every as to material to be true and correct [Emphasis supplied.] guilty felony. of a Ramos Opinion op the Court person signs that a who under falsely states of "shall be of a penalties guilty felony,” provides person the California statute that a who signs so "is of falsely guilty perjury,” and Washington provides statute be guilty "shall of felony,” Wyoming provided statute "shall of guilty swearing.”27 false Legislature provided person Our has not that a signing application stating applicant signs the penalties "is of guilty It perjury.” provided application only welfare assistance shall be the penalties "under perjury.”28 Legislature Because the did not specify Wyoming provided: formerly

Section 6-8-102of the Code judicial pro- False other than in or administrative ceeding; false claim or voucher. Whoever, lawfully under oath or affirmation administered in takеn, any shall by matter where an oath is authorized law to be willfully, corruptly certificate, falsely any make false affidavit, acknowledgment, declaration or statement of judicial proceeding, nature than in other or administrative or whoever submits a false claim or voucher under guilty swearing, upon shall be of false conviction (5) imprisoned penitentiary shall be in the not more than five years. [Emphasis supplied.] provision 6-5-303, replaced by provides: This has since been (a) person felony punishable by imprisonment A commits a (2) years, for not more than two a fine of not more than two ($2,000.00), both, if, lawfully thousand dollars administered oath or affirmation in a matter where an oath is authorized or under a while law, certificate, knowingly he makes a false affidavit, acknowledgment, declaration or statement other than judicial proceeding. in a or administrative (b) person guilty felony punishable imprisonment A (2) years, for not more than two thousand dollars a fine of not more than two ($2,000.00), both, knowingly if he submits false claim or voucher with intent to defraud. 27Id. signed by proceed "affidavit” drafters Ramos did including penalties perjury”

on the basis that in the oath. The "affidavit” affirm . . . .” See n 5. Indeed the the words "under the would alone constitute the administration of an application begins "I swear or phrase "under the 558 430 544 Mich op Opinion the Court person signs falsely that who penalties per guilty under the of of "is signing jury,” it did not for the substitute such required by RJA, § form of oath 1432.29 prescribed statutorily The form of oath remains perjury. It remain an element of the offense of an element until will Legislature in terms dis penses signing by specifying the mere false with the oath application, stating signing

of an penalties is under the of constitutes the offense of perjury.30 incorporated perjury” application. in the "affidavit” in Ramos’ ADC was not prosecuted say "I can for Id. The affidavit did indeed peijury,” did not in terms "include a

fraud but nevertheless penalties perjury.” declaration under of 29 perjury warning required by 25 Act The of the Social Welfare places from a false might applicant perjury prosecution may result on notice that a Ramos, oath, signing. proper had he been administered a See, however, prosecuted n 28. have been phrase penal Boyce that "the 30 Perkins & do not state [under Post, recognized equivalent perjury] legally of an oath.” ties of p penalties Legislature. is the signing Boyce the the 576. & state rather that a form "under Perkins equivalent peijury” to an oath where so deemed of is Recently its for an oath has made an additional substitute appearance, being provided for the convenience of the this one legislation providing for certain It virtue of declarant. signed return) is (such of tax as the declaration an income statements perjury.” expressly penalties "under the of to be made declaration, signed part quoted and the are a words peijury signer penalties provides if the the same as for he statute does not believe every true and correct as to the statement (3d ed), Boyce, Criminal Law matter. & material [Perkins p 513.] support authority is Dickinson v of this statement cited (CA States, 5, 1980), Wainwright, v United Cohen 626 F2d (CA 1953), 7206, Wyoming, 603 P2d 26 USC and Nimmo F2d 386 386 1979). (Wy, 583-584), (quoted post, pp which 18 USC 1621 Dickinson discusses false "statement provides penalty makes an intentional that whoever perjury.” peijury guilty ... predecessor USC 26 USC Cohen discusses specifically 26), similarly preceding (quoted provide perjury n both which in text signing person "undеr felony.” guilty . . shall be . v Ramos Opinion Court (set 26), Wyoming forth in n Nimmo discusses the statute provides penalty of also perjury, that whoever submits a false claim "under guilty shall be of false . . . with, Boyce The statement in Perkins & must be read in connection support by, authority and limited the that statement. Since cited of authority only specifically providing that concerns statutes that who- signs penalties guilty perjury,” perjury ever "shall be under the of "is of or guilty guilty swearing,” felony,” of a or "shall be of false the Boyce quotation support Perkins & statute perjury,” not that does the conclusion a providing merely penalties for a declaration "under the of specifying but not such a false declaration perjury,” swearing,” "is . . . or "shall be . . . false substitutes for RJA, specified the oath 1432. dissenting opinion support also six offers cases to its contention that include the broad sense of the word has often been held to "[t]he ['oath’] ” signing perjury.’ penalties of a statement 'under the of Post, p Rather, support 576. None of the cases this contention. the legislatures statutes cited in several of the cases indicate that where penalize signing application containing intend to that it is the false of an notice signed penalties perjury,” they explic- "under the of do so itly. Angeles Ed, In American Civil Liberties v Union Los Bd of 59 Cal 203, 217; Rptr 700; (1963), 2d (1963), 28 Cal 4P2d cert den 375 US 823 required groups wishing grounds a school to use school to file a grounds statement that the would not be used for the "commission of any prohibited by challenged act that is . . . law .” The aclu requirement, contending inter alia that it violated constitutional guarantees process speech, presumption of due and free subverted the innocence, unreasonable, arbitrary, vague, of (The and wаs and overbroad. upheld requirement.) only court perjury mention of discussing made in require- the aclu’s contention that the school’s presumption ment subverted the of innocence and inverted the bur- proof: den of petitioners any Nor can we find—as unconstitu- contend— requires tional limitation in applicant the fact that the rule an to make the statement penalty therein set forth under of perjuiy. (constitutional The oath is but the vehicle which information unconstitutional) sought. right or is It is the to particular issue, demand the information that is at and not the requested. Frequently applicant form in governmental which is for required give benefits is to information under oath. This is so apt because the verified information is more to complete sought by and correct. If respon- the information unassailable, required dent is then the form in which it is is of Union, supra, p no moment. Civil [American Liberties 217.] opinion apparently While the uses the term "oath” here as short- phrase perjury,” usage hand for the constitute a statement made for "under of this does not "holding.” opinion Nowhere does the discuss whether a penalties perjury” "under the suffices as an “oath” purposes perjury requiring statute administration of an oath. 430 Mich op Opinion the Court Laws, 1031; Rptr App 178 Cal 3d In Cal separate previously been defendant Laws had convicted and, receiving probation, agreed pay as a condition crime $27,000 pay money, but filed in restitution. He failed to claiming paid. Laws was with the court he had declaration convicted Among that the declaration sufficient declaration is documentary preparing false evidence. challenges his claim raised to his convictions was Laws charges legally not on were based was support charges. that because Laws claimed " . . . that the same he filed did correct,’ contain an 'averment ” (The court not be convicted of true and he could convictions.) upheld the making Again, no of whether of a state- there was discussion making penalties perjury” equivalent "under ment statement in the statute cited under oath. The California fact, clearly distinguished opinion, der oath” and made "un- between statements perjury”: those "under the made who, having provides: "Every person Penal Code section 118 declare, testify, depose, certify or taken an oath truly he will tribunal, officer, person, any competent before administered, bymay the cases in which such an oath law be oath, any wilfully matter which contrary material and such states as true to false, person every he who knows to be declares, testifies, perjury deposes, penalty of or certifies under declarations, testimony, any of the cases in which such by penalty permitted depositions, or certification is law under any perjury wilfully matter as true material of states false, guilty [Emphasis perjury.” knows to is of which he be Laws, supra, supplied. p 1030.] statute, clearly Michigan’s perjury the California statute Unlike encompassed persons "certif[y] penalty perjury . .” . . of who statute, Michigan Ramos need not had a statute like the California If Simply have an oath to been convicted. have been administered perjury” signing sufficient. have been the statement "under of would Doss, 1026; 349; People App 55 Ill 426 NE2d 324 v Ill 3d Dec (1981), filing prepared whether alleging perjury adequacy indictment and the accused had concerned the of an return a wilful fraudulent tax where taxpayer. opinion thе focused on the form but was not sign preparer required by law the returns he a tax was (The ‍‌‌​‌‌​​​​​‌​‌‌‌​‌‌​‌​​‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌​​​​‌‌‍upheld prepared. ment.) court’s of the indict court the trial dismissal per penalties signing of the of a document "under Whether making jury” equivalent was of a statement under oath the presented by question nor addressed the court. neither State, (1984), 160; 476 A2d 1162 concerned Md Valdez Maryland supporting statuto- validity rily forth the affiant’s a search warrant. of affidavits " facts matters and set an affidavit as 'an oath defined pertains paper writing true to the best of in the to which are ” knowledge, and belief.’ The statute then information v Ramos Opinion op the Court " penalties defined "oath” as 'a declaration or aflirmation made under ” Id., perjury, p of quoting that a certain statement of fact is true.’ 5(c). (The Procedure, Maryland Rules of Rule court held that case, statutory under the facts of the the offered met affidavits valid.) requirements and were statutorily While here "oath” was defined as "a or declaration penalties perjury,” meaning affirmation made under of this clearly rule, particular term setting Maryland "oath” is limited to this requirements question forth the for valid affidavits. The raised by signing penalties Bazoos—whether the of a statement "under the perjury” satisfy separate requirement of perjury was sufficient to by statute that an oath be administered —was not addressed the court. Bailey, 748; App In State v 14 Wash 544 P2d 778 defendant Bailey challenged constitutionality of the welfare fraud statute Bailey, Ramos, under which he was convicted. like had obtained public by assistance to which he was not entitled means of a false Ramos, however, Bailey statement. Unlike only was convicted of fraud, perjury. welfare Contrary of also to the assertion in the dissenting opinion, Bailey that, court did not hold or even discuss whether, the signing "broad sense” of the word "oath” includes the of penalties fact, a not perjury.” statement "under Bailey of In while charged equivalent Washington statute, with unlike Bazoos, clearly the statute in covered his conduct: Applications Penalty. "Veriñcation applicant of Each for or — recipient public of assistance shall make an assistance which shall declaration that it is made under by contain or be verified a written penalties director, by regulation, may require rule and any other applicants by forms recipients public filled out assistance shall contain or be verified a written declaration that it is penalties made under the and such declaration shall required, be in lieu of oath applicant otherwise and each shall be so signing. informed at the time of the "Any applicant recipient public for or assistance who wilfully any application, makes and subscribes statement or paper other contains or is verified a written declara- tion that it is made under he does not believe to be and which every true and correct as to material guilty felony.” matter shall [Emphasis supplied. Id., p 751, 3, quoting 74.08.055, n enacted, Wash Rev Code Laws of 26, 74.08.055, p ch 142.] Wyoming, In supra, Nimmo v challenged defendant Nimmo his swearing. question presented convictions of false The was not whether the penalties incorporated perjury signing term "oath” included the of a statement "under the peijury,” of but rather swearing whether the false statute requisite the Furthermore, mens rea element. unlike the Bamos, statute at issue in swearing the false statute under which Nimmo was clearly encompass convicted filing, would the perjury,” application: "under of of a false 544 430 Mich 562 op Opinion the Court IV signature alone is that a courts concur Many v Spangler In an "oath.”31 insufficient constitute Court, 104 584, 590; 140 755 Dist P2d Utah the validity complaint the of Spangler challenged conviction. The rele basis for his formed the to be sworn required complaints vant statute filing the com police officer "under oath.” " 'who on language the plaint contained —which me, on oath did his being duly by sworn ’ signed presence . the justice . . say ”— oral admon but neither received an peace, of oral ishment nor made an acknowledgment. swearing judicial than in or adminis- 6-8-102.False other "§ proceeding; claim trative false or voucher. "Whoever, lawfully or affirmation administered under oath taken, any an oath is authorized law to matter where certificate, willfully, corruptly falsely any and make false shall affidavit, acknowledgment, or statement of declaration proceeding, judicial administrative or nature other than or penalty of submits false claim or voucher under whoever swearing, upon guilty

perjury, shall be of false conviction (5) penitentiary imprisoned not more than five shall be years.” [Id., p supplied).] 1) (Laws 1971, (emphasis quoting ch dissenting opinion summary, In cited none of cases support interpreted question the term “oath” could be its assertion. The whether penalties perjury” signed to mean "under addressed, statutory many involve nor cases neither raised substantially that at here. different from issue schemes opinions in these and false statutes cited recognize highlight made legislatures a distinction between statements penalties perjury.” oath and those made "under Nimmo, supra. Laws, Bailey, Legislatures punish thаt wish to See perjury” making "under false statements provide penalty. explicitly such 31 Blaisdell, supra; Rogers People, supra; n n 20 State v 20 See v State, Privitt, 1194; (1931); 102 39 755 White v State v 327 Mo SW2d 154; Rep (1986);People O’Reilly, 153; 40 86 NY Am Nev 525 (1968); 717 P2d v Lieberman, 1070; (1881); People v Misc 2d 294 NYS2d 277; App Youngstown Kosydar, 33 294 848 Co 2d Steel Door v Ohio State, 178; (1973);Lowry Tex Crim 297 SW2d v NE2d 676 (1906). See, State, generally, (1956);Komp 20; 129 Wis 108 NW administering making oath, 51 ALR 840. anno: Formalities People v Ramos 563 Opinion op the Court Utah has no prescribing statute form the of an oath. A provides Utah statute rather that is "[i]t no to a prosecution defense for that the oath was administered taken in an irregular manner.”32 Yet Supreme the Court Utah held that signature the officer’s alone was insufficient an oath. signature constitute A not a was suffi- distinctive act ciently to serve as an oath: interpretation We the believe correct the law to be that there formality, must be some outward place some manifestation of the intention to the affiant under the obligation ánd of an oath. There must be definite evidence that affiant oath; taking was conscious that he an that must be not only there that he was consciousness affiant oath, taking an but must there some outward act from which that consciousness definitely can be inferred. That cannot be done signature from the printed mere to a form of oath. . .. We therefore hold appearing the mere be justice signing complaint

fore the does not constitute a criminal [Id., . pp to it ... 591-592.][33] Davis, in Britt v Georgia Supreme Court, 74, 77-79;

130 Ga 180 SE similarly held signature a alone does not constitute an "oath.” Britt concerned of a validity distress forming warrant for property basis seizure rent. required overdue The relevant statute request for the warrant be verified an Ann Utah Code 103-43-4. Supreme Schwendiman, The Utah Court in Colman v 680 P2d 29 (1984), recently opinion Spangler. confirmed its Colman concerned police forming validity report suspension the basis for required Colman’s swear to the signed signature license. driver’s The relevant statute officer to report. Ann Utah Code 41-6-44.10. The officer report presence notary. held that a court "require alone was insufficient to constitute an oath. Oaths Id., p a formal verbal affirmation . . . .” 31. 430 Mich Opinion of the Court complainant, Davis, a notarized filed oath.34 admonish- affidavit, did not receive oral but The court make affirmation.35 ment or a verbal signature was insufficient alone held that distinguish from those that are sworn statements the affiant testifies view unsworn. "Whether only responsibility God to the criminal his to or something law, what he does is in either event sign p paper.” merely Id., 77. more than to a noting because the concluded that court warrant carries serious con- issuance distress sequences, important no it is there be doubt requested complainant warrant oath: deprecate tendency to not treat can but We taking as mere technical formal of an oath a age ity, worthy in In the of little attention. strenuous impor speed prime is we live deemed enough pause long still to tance. But one must verify pared pre paper in a the statements contained them, affidavit, for use as an can a warrant

before he obtain distress property of another seized. issued and have pp [Id., 78-79.][36] 34 Ga 4818. Civ Code 35 prescribing particular Spangler, As there was no statute form for oaths. 36 Co, App Georgia Appeals v 111 Court of in Gruber Fulton Ga (1965), presented question 71; applied 140 552 Britt. Gruber SE2d signed no return sworn to where it was but whether a tax oral oath ties, had been Citing Britt and numerous other authori administered. was signature the court held that the alone insufficient. jurisdictions admonish number of have held that a verbal While a "oath,” jurisdictions necessary to constitute an these ment either did not oaths, is not administering prescribing the have form for a statute Troutman, (CA 10, 1987); An States 814 F2d 1428 United v (Alas, Wooldridge, chorage Co, Inc v 619 P2d 1014 Sand & Gravel 554; (1967); 1980); Walker, Rptr People App 55 726 Cal v 247 Cal 2d (1959); Parker, 51; Dalbey 336 Bros Lumber v 81 Idaho P2d 318 State 151; (1943); Snyder, Crispin, v 304 234 12 NW2d 277 State Co v So 2d Iowa Securities, Johnson, (La, 1974); 187 So 2d Plauche-Locke Inc v 334 (La 425; Madigan, App, 1966); 59 490 57 Minn 178 State v NW 565 v Ramos op Opinion the Court

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

As to Ramos’ disposition our (1894); State, 662; 865; (1927); Atwood v 146 Miss So 51 111 ALR 836 Peterson, 615; Freck, (1984); Moore v 218 358 193 Neb NW2d v Lebak Super 234; (1986); 212 NJ 514 A2d 856 Cincinnati Co v Finance First Corp, 131; State, App (1938); Discount 59 17 383 Ohio NE2d v 92 Cole 316; (1950); 154; Holladay, Okla Crim SE 827 223 P2d 155 State 120 SC v (1922); Lewis, 769; v State Wash 2d P2d 677 or Rice, mandatory, App 33 Or 79; had statutes that were not re In 35 Ill 2d (1962); Div, App NE2d Blackburn Motor Vehicles (1978). 397; 576 P2d 1267 Furthermore, above, signature in each cases cited of the by notary public, justice "oath" taker was notarized witnessed peace, or some other official authorized to administer oaths. There is no evidence the dss caseworker before whom Ramos signed Additionally, his was such an official. a number of through applying explic- these decisions reached result their statutes itly stating: prosecution It shall perjury be no defense to a for that an irregular Walker, Parker, oath was in admitted or taken an manner. Blackburn, Lewis, Snyder, supra. Finally, cases, many and in of these present case, policeman, unlike or attorney, the the "oath” taker was a person experience submitting other who had had in considerable clearly swearing sworn statements and who both understood that required consequences Troutman, was and falsely. the of Parker, Atwood, Moore, Cole, Blackburn, Holladay, supra. and Anderson, 322; In State v Kan 285 P2d 1073 the court disregarded requiring by placing a statute oaths to be administered right upraised hand, upheld the hand on a bible with an perjury defendant deputy Anderson’s conviction. Anderson was a complaint. sheriff Anderson was a had filed a false criminal The court noted that understood that (who deputy presumably sheriff to) complaints signed complaint were to be sworn and that he had the judge. before a ignoring statutory requirement Anderson stands alone in that an present oath be administered. And Anderson is unlike the case in understood, clearly through experience, that there the "oath” taker Additionally, that he oath. other formalities were observed. signed judge, Anderson the form before a who affixed his officialseal. originally 1939, As in enacted §25 Social Welfare Act provided: 430 Mich op Opinion the Court unnecessary to his claims that it consider makes perjury because must be reversed conviction his of to make determination trial court refused the report regarding owner- failure to whether his law ship material, to ade- or failed of tractor was the jury respect quately to the ele- the with instruct materiality, resen- or that he must be of ment its discretion the trial court abused tenced because perjury imposing sentence the in a consecutive remaining issues, to we As the other conviction. persuaded longer issues should that those no are by this be reviewed Court._ application af- in shall sworn to or All the be statements setting by applicant true forth that all facts are ñrmed the 280, Emphasis sup- point PA material .... [1939 §25. each plied.] by” language until it remained when "sworn to or affirmed The was replaced penalties perjury.” § of 1957 PA 25. "under the (new part language pertinent follows 25 read in as The amended § emphasized): signature application the shall be over All statements the applicant include a declara- mark of the and shall or witnessed penalties has that under the tion and, applicant, to to the best examined or read been knowledge, applicant’s in each all facts are true point material .... requires explicit applicants that submission amendment notice pre- applications may prosecuted of scribes change be fraudulent given. be It does not the manner such notice shall requirement by eliminating the elements RJA, requirements an Nor does eliminate the there be oath. 1432, prescribing the form of an oath. amending language, Legislature, by might argued It that the prescribing by-pass the elements of both the statute intended perjury so that oaths, administering prescribing the form for and the statute containing warning signing form perjury” signature penalties in itself constitutes was "under the argument analysis for the reasons cannot Such an withstand "oath.” discussed legislatures penalize part the false m. intend Where perjury,” they do signing explicitly perjury,” so "under of documents signs guilty falsely by stating person so "is of that a who felony,” guilty guilty of or "shall be quoted false "shall swearing.” in n discus- and 26 and 26 USC 7206 statutes See provide. does not so the Social Welfare Act in n 30. Section of sion People v Ramos Dissenting Opinion by Boyle, J. perjury conviction, We reverse Ramos’ affirm his welfare fraud conviction.

Riley, C.J., Brickley, Cavanagh, JJ., J. Archer, Levin, concurred with (dissenting). Boyle, Joel Ramos was convicted predicated jury swearing1 a on false filing and welfare fraud2 connection with the applications Michigan for assistance with the De- partment of conviction, Social Services.3 On prison defendant was sentenced to concurrent years, terms of ten to fifteen and to four two respectively, swearing on the false and welfare fraud convictions. challenges swearing

Ramos his false conviction ground on the that his false did not swearing constitute false "oath” because no was submitting taken, and that the trial court erred in "materiality” jury. issue to the Ramos also argues swearing that his on sentence the false conviction constitutes an abuse of discretion which should shock the conscience this Court.

Finding arguments, no merit in either of these I would affirm the defendant’s convictions and sen- tence. 750.423; MCL MSA 28.665. 400.60; MCL MSA 16.460. Since the issues raised defendant

regarding majority opinion, this are conviction not addressed them, and since I too find merit I no have not addressed them opinion. this 3 Specifically, charged having applica the defendant filed with ownership tions tractor and front end loader in violation the assistance in he failed to disclose of a farm precludes statute making false statement to obtain relief in an amount more $500, 400.60(1); 16.460(1), than material matter MCL MSA and false on required, 750.423; for which an oath is MCL MSA 28.665. 430 544 Mich Dissenting Opinion Boyle, J.

I PACTS 1980, 2, 1980, 29, April January October On 1981, 15, completed signed applications Ramos A of each portion with the dss. for assistance applicant list application required 1980 applications, motor vehicles. In the owned a 1970 Ford Econoline van only Ramos listed In the Ramos appliсation, at valued $300. 1976, motorcy- 250cc again listed van one that the motor- application specified cle. Miller. Miller was cycle by Marilyn was owned at living applica- with Ramos the time these Both Ramos and Miller received dss assis- tions. time during period.4 tance this 9, Hilton, Jr., Donald On November for a com- investigator criminal received dss, leaving was a doctor’s plaint that Ramos seen Hilton’s subsequent a 1977 Porsche. driving office investigation regis- the Porsche revealed was Hilton Miller. discovered Marilyn tered listed the Porsche as an asset Miller had not He discov- for dss assistance. also applications her that Miller was owner registered ered Rider motorcycle 1200cc Low Harley one Davison on listed as motor vehicle asset which was not for dss her assistance. revelations, unspeci- together

Those with some actually fied evidence that Miller was Hilton to fur- motorcycle, prompted owner Hilton ultimately ther investigate complaint. the registered Miller and Ramos were learned that tractor, 1980 Kubota nondisclo- owners one subject matter the instant of which is sure prosecution. receiving for assistance The record indicates that Miller had been years prior applications. these number of v Ramos Dissenting Opinion by Boyle, trial, Kain,

At Robert an employee of &S W Equipment Company, testified that Ramos and purchased Miller $5,232 the new tractor on October 1980. The tractor purchased awith $2,232 deposit cash and a bank note in the $3,000. amount of Faust,

Craig Christopher Vice President charge of Loan at Control Pacesetter Bank & Trust, testified the bank an applica- received tion for a loan from Ramos and Miller on October 9, 1980. A $3,012 loan in the amount was co-signed eventually by Ramоs and Miller for the purpose purchasing Kubota tractor.5 The bank’s records did not reveal encumbrance any tractor, other than on Pacesetter’s and there no was indication that the down had payment been borrowed by Ramos and Miller. The records did indicate that Ramos ‍‌‌​‌‌​​​​​‌​‌‌‌​‌‌​‌​​‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌​​​​‌‌‍Miller had a monthly $1,000 $2,000. income of to The records indi- also that cated no further credit check was undertaken because Miller had an excellent record of payment loans, on several other in including one 1979 for $8,423 on a 1977 Porsche. The loan on the Kubota tractor was uneventfully paid serviced and finally 19, April off on 1982.

Two dss social workers assisted Ramos in his applications for assistance. Ramos’ case as- was signed to Lola Verschoor April of because she had assigned been previously Mill- Marilyn er’s case. Verschoor testified that individual cases for members of the same household are normally assigned to same caseworker to facilitate accu- listing racy According assets. to Ver- schoor, all assets of the household must listed on each application. individual

Verschoor assisting appli- recalled Ramos his explained filing Faust the additional twelve dollars was for fees to secure the tractor. 430 Mich Boyle, Opinion Dissenting First, Miller Marilyn reasons. for several cation years. a number of client for had Verschoor’s been applica- his he filed Ramos when Miller was with wearing Second, was Ramos for assistance. tion his he entered when nice of boots pair particularly it is unusual explained Verschoor application. well as Ramos to dress as a dss client for Third, noted that Verschoor interview. during the ex- expenses were household the Ramos-Miller grant allowed the amount high for tremely the state. to un- appeared that Ramos testified

Verschoor to be appeared their conversations derstand Verschoor, Ramos According literate. fairly 1981, January, April, signed both being questioned after presence her applications other assets. Verschoor the existence of as to did she read an oath nor not administer did his Ramos, she did witness but form application January, signature. her own signature with affidavit included form prosecuted could be applicant "swearing” or false state- for omissions fraud or ments. his ill Ramos filed when

Since Verschoor was Husted, an- 29, 1980, Dealisa application, October interview. worker, conducted dss social other and also remembered Ramos Husted remembered inter- during the present Miller was Marilyn Husted, a spoke Ramos with According to view. accent, reasonably were his sentences but slight fairly a constructed, to be appeared and he well routinely she testified that Husted person. literate page page by through application each went errors or omis- any there were determine whether as applicants questioned routinely She also sions. in the listed any had assets they to whether on Ramos signed by The form form. application v Ramos Dissenting Opinion Boyle, 29, 1980, October also contained an affidavit "swearing” omission or false statement in prosecution could result for fraud or Verschoor, Like Husted did not administer an oath, merely signature but witnessed Ramos’ on signature. with her own

Ramos’ Miller’s assistance was terminated of 1981 January when the dss learned of the tractor.6 purchase Kubota Ramos declined to in the criminal testify subsequent procеedings. Hilton, However, Jr., that, Donald testified on 13, 1981, told him January Ramos that he had payment borrowed down for the tractor from his perform in-laws had intended to use it to contracting get work in order off welfare. The also prosecution given introduced a statement 15, 1981, in his Ramos administrative January appeal termination dss assistance. In the statement, latter Ramos admitted that he had purchased with a motorcycle borrowed down but payment, had lost it "to the man” he because make could not further payments. Ramos as- serted that property tractor was solely his in-laws use on their farm. dairy noted,

As previously Ramos was found guilty trial of both jury welfare fraud and perjury predicated swearing. on false of Appeals The Court unpublished per affirmed both convictions curiam 1985. opinion April dated 6According testimony, to the social as the testi workers’ well Hilton, Jr., mony policy dss Donald it was of limit $2,000 personal receiving assets to for households assistance. See 16.456(7) 400.56g; part MSA MCL and the discussion b. 430 Mich Dissenting Opinion by Boyle,

II THE PERJURY CONVICTION A. THE DOES LEGISLATURE INTEND THAT A FALSE A STATEMENT IN DSS ASSISTANCE BE APPLICATION PUNISHABLE AS PERJURY IF IT ONLY IS ACCOMPANIED BY THE TAKING OF OATH? AN ACTUAL Act,

Section 25 of the Social Welfare 1968 PA 232, provides pertinent part: in applicant An for assistance or party a third acting application social services in the manner and form responsibly his behalf shall deliver his writing county department to the prescribed department. All statements the state application signature shall be over the or wit applicant party nessed mark of the and shall or such third under the include declaration that the has been examined and, applicant party, or read to the or third applicant’s party’s the best of the or third knowl edge, point that all facts are true each material complete .... 400.25; and are MSA 16.425. [MCL Emphasis added.][7] Although legal implications appli- falsified clear, the Social Welfare appear cation would to be prescribe for this Act itself does the adminis- form of nor does authorize oath. tration of an actual convicted, and sen- charged,

Mr. Ramos was swearing perjury false Michigan’s tenced provides: statute which of this by any statute Any person authorized oath, person of whom an to take an

state 25, 95, by 1957 PA language PA § added to 1945 This changes. PA 401 with minor in 1965 and was reenacted People v Ramos Dissenting by Opinion Boyle, J. respecting which oath shall be swear quired, able than 28.665.] by imprisonment fifteen falsely, shall be guilty required by ^[15] in regard such years. in of oath the state to law, [MCL any is authorized or re- who shall matter or a prison 750.423; MSA felony, punish- not more wilfully thing, The dss signed forms by Ramos upon which his is perjury conviction based con- tained the following language appli- above the signature: cant’s I swear affirm I or ques- have answered all

tions on form completely this Ias was able and that all the information that I have written on this form know that told or to a is case worker true. I also may I proof be asked to any show given. information I have have for fraud I have I if I also know that if intentionally left information out or given information, prosecuted false I can perjury. Ramos raises two issues of statutory construc- tion his regarding perjury first, conviction: that a prosecution is not by authorized 25 of the and, Act, Social second, Welfare that no actual oath was authorized or administered his support conviction. view,

In my Social Act Welfare §25 that an oath or affir- a legislative indicates intent mation is contemplated truthfulness phrase "under perjury,” and that Penal penalizes Code false wilfully statements in made аn extrajudicial setting subject of these requires examination issues re- development view historical of perjury. origins courts, At its in the ecclesiastical Chamber, law, Star and English common the of- fense was limited false in oaths Mich Dissenting Opinion Boyle, However, commenta- proceedings.8 as one judicial explained: has tor time, required In statements came to be sworn judicial proceedings many matters other than problem growing importance of this and with the came integ- recognition of the social interest rity an oath. Hence the common law of such corrupt penalty for false provided a wilful nature, although the name of such a by Lord "perjury” employed. As said not, properly speak- case: "It is Denman such a consequences do not ing, perjury because same taking falsely But it is misdemeanour attach. an oath which a party required by Parliament magistrate.” Boyce, &

to take before [Perkins (3d ed), p Law Criminal 511.] there are two Thus, to Perkins & according Boyce, oath in is a false Perjury at common law. offenses mat- regard in to a material judicial proceeding a ex- perjury is what would be False ter. in but proceeding, not in a judicial it is cept oath matter in which an or proceeding other some law is A oath at common law. false required by made with- statement corrupt sworn wilful and a Id. truthfulness. its out sincere belief in American law crime of this The codification As the states. among diversity has reflected explain: Boyce & Perkins statutory in the variations There have been criminally group all plan has been

plan. One "perjury”; as offense known into one oaths false may take included distinctions has another degrees grades or different the form of of one schemе the common-law may retain or called and another "perjury” known as offense development found early can be interesting this discussion An 62; aff'd App 452 A2d 440 Maryland, 53 Md in Hourie v (1983). 50; A2d 1016 Md Ramos Dissenting Opinion Boyle, J. plan, as at the latter swearing.” Under "false law, swearing is in the nature false

common offense, charge convictable lesser included of cludes the convictions of both. greater in- say, since the Needless to perjury. less, support corrupt oath will not one plan is used there Whatever punish- enlarge the field of tendency has been falsehood, emphasized pres- will be able sworn required precision is not there is ently. And where throughout, "perjury” tendency a despite different to use word jurisdictions that some have the fact [Id., p part label for a thereof. 512.] in which Michigan follows variation offense, grades. higher into two is divided 750.422; 28.664, described in MCL MSA is the modern successor of the common-law crime of provision This entitled Commit "Perjury Courts,” who, being ted in penalizes "[a]ny person truth in required depose pro lawfully any justice a court of ceeding shall commit offense, . . . .” The other under which convicted, Ramos 750.423; is described MCL represents MSA 28.665 and the successor of com swearing. mon-law false This provision penalizes "[a]ny person authorized by any statute of this oath, state to take an person or of whom an any law, oath shall required wilfully who shall swear falsely regard to matter or thing, respecting which such oath is authorized required . . . .” It appear would undisputed inescapable that this latter statute is addressed to statements made in an extrajudicial setting. Per kins & Boyce, supra, p n 16.

This portion of the historical development perjury explains how a perjury prosecution may be by authorized the Soсial Welfare Act. It does not explain how Ramos could be convicted of perjury predicated on false swearing without the adminis- 430 Mich 544 576 Dissenting Opinion by Boyle, tration of an actual oath. This second question requires understanding an of the word "oath.”

There are two common meanings of the word "oath”: sense,

In its broadest the term is used to include all forms of party signifies attestation which a that he is faithfully perform bound conscience to the act sense, In truly. a more it restricted excludes all promise those forms of attestation or accompanied by imprecation. which are not (5th ed), Dictionary p Law [Black’s 966.] The broad sense of the word has often been held to include the signing of a statement "under penalties Thus, perjury.”9 has been held that phrase such a demonstrates intent Legislature phrase to have the serve as an oath or affirmation, Nimmo v Wyoming, 603 P2d 386 (Wy, 1979). One explained commentator also has the phrase is the legally recognized equivalent an oath: Recently an additional substitute for an oath appearance,

has being provided made its this one for the convenience of of the declarant. It is virtue legislation providing signed for certain state- (such ments return) as the declaration of an income tax to be expressly penalties made "under the perjury.” quoted of signed part are words of the the declaration, provides and the statute same if signer does not believe the statement true and correct as to every material matter. precision required

Where is not there is a ten- 9 Ed, Angeles See American Civil Liberties Union v Los Bd of 59 203; 700; (1963), Rptr Cal 2d (1963), 28 Cal 379 P2d 4 cert den 375 US 823 Laws, People App 1022; Rptr (1981), v 120 Cal App 3d 178 Cal Doss, 1026; 349; v 99 Ill 3d 55 Ill Dec NE2d (1981), State, 160; Valdez v 300 Md A2d and Nimmо 1979). Wyoming, (Wy, 603 P2d 386 Ramos 577 by Boyle, J. Dissenting Opinion dency employ "oath” to include a word equivalent legally-recognized as well as oath expressly itself, and at times this has been author- by Boyce,supra, p [Perkins 513.] ized & statute. Section of the Social Welfare Act utilizes precisely this oath substitute. As Perkins and Boyce observe: The most recent substitute for an oath is not "administered” strict sense It of the term. merely signed penal-

is ties of no of an a declaration "under the perjury.” declaration, however, Such a has legal significance authority unless made under appropriate pp [Id., 513-514.] statute. statutory language Thus, in the absence of the applicant § 25, of if an for welfare assistance vol- untarily penalties perjury” wrote "under over signature, statutory his there would be no authori- prosecution predicated perjury zation for a false on swearing. Similarly, agree I would that there liability phrase ap- could be no criminal if the peared printed prepared ‍‌‌​‌‌​​​​​‌​‌‌‌​‌‌​‌​​‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌​​​​‌‌‍by agency, form statutory authority. but its insertion was without perjury by Anno: Criminal offense of as affected upon fact that affidavit or statement under oath charge predicated was re- quirement statute, not of but of boards or officials statutes, administration of Here, ALR 1240. majority dispute, contrast, as the § does not of the statute authorizes the declaration to be penalties made under the and the decla- Legislature ration was in fact so made. The. has criminally cognizable thus made a declaration made under the legislative

Similar schemes can be found else- 3(a) Michigan ciga- where law. Under of the act, 205.503(3)(a); rette tax 1947 PA MCL 430 Mich Dissenting Opinion Boyle, 7.411(3)(3)(a), applications MSA license for the sale cigarettes signed penalty of must be "under 104(3)(c) Michigan perjury . . . Section partnership act, uniform limited MCL revised 449.1204(3)(c); 20.1204(3)(c), specifies MSA that partner- [of "The execution of a certificate limited ship] general partner by a constitutes an affirma- penalties tion under the stated do not authorize the administration of an actual the facts the certificate are true.” These statutes provide specific oath or affirmation and do penalty perjury.10 for this form of purposes entirely It is consistent with the under 11(and lying the Social Welfare Act similar admin regulations) away costly istrative and to do with the signa formality of a notarized burdensome purposes suggest Legis ture. Those lature do not that the liability criminal for intended eliminate applications, only, on false in the ture convenience of the declarant.” Perkins & assistance but Legisla Boyce, of Perkins & that the

words provide an alternative "for the intended

Boyce, supra, p statutory face, Indeed, 513. on its both the language language and the of the form liability perjury. Any create criminal for other reading §of 25 of the Social Welfare Act effec tively phrase penalties "under the renders surplusage perjury” or, mere in the words of de accept I fense counsel "disinformation.” ther can nei legislative purpose, since a assessment schemes, legislative Chapter In addition to these 53 of the Re Act, 236, addressing receiverships wage vised Judicature 1961 PA earners, requires that the debtor’s list of creditors be filed "in the petition pains form of a under oath and under the 600.5305; perjury . . . .” MSA 27A.5305. MCL primary purpose protection needy of adc assistance is children, although parent the needs of a or relative with whom living determining may the amount of aid. child is be considered Services, Dep’t App 638; of Social 22 Miсh 178 NW2d Evans v (1970). Ramos by Dissenting Opinion Boyle, phrase gives

reasonable construction Sands, 2A meaning and effect. See Sutherland (4th ed), 47.37, 258. Statutory p Construction § Assuming swearing perjury the false stat- ute renders criminal statements made in an extra- setting, phrase pen- and that "under judicial oath and an alty perjury” encompasses both an affirmation, responds this con- majority struction of of the Social Welfare Act is not § reasonable because it conflicts with 1432 of the Judicature Act: Revised administrating The usual mode of oaths now state, person

practiced holding up in this who swears hand, right shall be in all observed may cases law The oath should which an oath be administered provided. except in the cases herein otherwise commence, solemnly "You do 600.1432; affirm.” MSA swear [MCL 27A.1432][12] to the this section of the

According majority, Judicature Act does not authorize the use Revised Legislature oath substitutes and therefore not intend that defendant could convicted of did be swearing. perjury predicated upon false reading of this statute indicates My Legislature prescribe intended by only administering judicial proceed- method of oaths ings. early compilation by As as the Justice present Thomas M. Cooley, § 29, Of in tit appeared Revised Judicature Act Actions, 127, Proceedings in Personal Of Evi- ch Judicature Another oath substitute Act which provides: is contained in 1434 of the Revised opposed taking may, Every person conscientiously an oath affirm, swearing, sincerely solemnly and under the instead of pains 600.1434; MSA 27A.1434.] [MCL 430 Mich Dissenting Opinion by Boyle, compilation dence, § 4333. In the 1882 Andrew Howell, the same 30, statute can be found in tit Of Proceedings Actions, 262, Personal ch Of Evi compilation by dence, § 7537. In the 1897 Lewis appeared Miller, the 18, statute in ch Of Proceed ings Subchapter Actions, in Civil 282, Evidence, compilation, ap § 10136. In the 1915 this statute pears Department, 14, in tit 17, The Judicial ch compilation, Evidence, § 12568. In the 1929 appears Depart 27, same statute in tit Judicial part ment, 1, Procedure, 266, Courts and ch subchapter Act, Judicature 17, Evidence, Of compilation, again § 14234. In the 1948 the statute appears subchapter 17 of the Judicature Act, However, entitled "Of Evidence.” in the Re Act, vised 236, Judicature 1961 PA the method of taking oaths was moved to ch which contains general provisions for the conduct of court busi provision There, ness. compilation. remained in the 1979 every compila See 1979 CL 1432. In tion since the statute cited the dissent appeared compiled portions has in the laws in dealing judicial proceedings. Indeed, with for the part, specifically most this statute has been codi subchapters taking fied under addressed to the although exceptions may Moreover, evidence. found, the thrust of the Revised Judicature Act as judicial ancillary proceedings. a whole is Thus, preamble pro to the Revised Judicature Act vides: An act to revise and consolidate the statutes

relating organization jurisdiction to the of powers state; courts of this and duties of such judges courts, and of the thereof; and other officers the forms and attributes of civil claims and ac- tions; the time within which civil actions and proceedingsmay brought plead- courts; be in said ing, practice procedure evidence, and in civil and v Ramos Dissenting Opinion Boyle, J. courts; proceedings in said

criminal actions provide remedies and for the violation of act; repeal provisions certain and of this and to all acts with, parts of acts inconsistent or contraven- ing provisions of this act. any of the to the I believe that Contrary majority, only reasonable view of of the Revised Judica- § origi- to the conclusion that it has ture Act leads taking been limited to the nally consistently Furthermore, even judicial proceedings. of oaths govern if were read to an oath adminis- the statute proceedings, tered in defendant offers extrajudicial that it is the intent support no for the conclusion that on false Legislature perjury predicated not be the Penal Code punishable in the of an oath. Since the does majority absence not contest occur in perjury may extrajudicial settings, logical argument result of defendant’s all legislative is that schemes which refer- made under the penal- ence is made to statements Legislature intends that an ties of actual oath administered for the conduct to be punishable assume, if I contrary

Even were to to all indica- RJA, it applies tions in the history oaths, I not extrajudicial would be inclined to it thereby conclude that invalidates oath sub- Legislature. created subsequently stitutes rigid artificial impose To do so would be upon the contin- linguistic consistency standard As one commentator uing Legislature. acts has explained: legislature Experience indicates that a does provisions

deliberately enact inconsistent when both, expressly recog- cognizant is nizing of them without inconsistency. question The critical con- legisla- it is to cerns how reasonable assume 430 Mich Boyle, Dissenting Opinion tors and public provi- members of the know the sions of other acts on consider the Even subject they the same when meaning of the act to be construed. the case of an act prior which refers to а one, although the discovery reference makes of the prior possible, act one cannot be certain that discovery will occur. These are the considerations help determine if statutes should con- be together. strued It is unrealistic to assume that whenever legislature passes a statute it prior has mind all relating acts subject to the same matter. The legislature may have had mind some but not all of the relating statutes subject the same matter Perhaps when enacts a statute. in the case of a act, highly important man legislature, or the drafts- may have prior considered all statutes relat- ing subject, to the same but in the absence of some evidence legislators cognizant were of the presumption other statutes the and the act not so all other means of rejected should be pari construed in materia until determining the intent of the legislature have been exhausted. Then on the basis desirability of the law should the statutes such statutes maintaining certainty in the presumption be utilized and the together. construed principle This pari should be construed in materia is a presumption restatement against implied repeal Sands, of statutes. Sutherland [2A (4th Statutory ed), 51.01, Construction pp 450- 451.] previously recog noted, As other states have signing penal nized the ties of allowed of a document "under the perjury” as an oath substitute and have prosecutions for false statements majority carefully in these documents.13As the has pointed out, these other states also have enacted specifically authorizing prosecu statutes tions for falsification of these documents. Where Legislature statutes, has enacted such

13See n 9. v Ramos Dissenting Opinion Boyle, J. is clear. What false

intent to criminalize it should explain why fails majority provision the oath follow from logically legally phrase although uses in the §25 rja, the Penal Code penalty perjury” "under Legislature our extrajudicial criminalizes "under does not intend that a statement prosecuted perjury” essentials, formula- majority’s to its the

Stripped general provision The perjury tion is as follows: a state- person who verifies say any does not that made under that is ment a written declaration by The perjury. of is of penalties perjury, guilty the applica- provides only Social Welfare Act per- of penalties made "under tion shall be the form of oath. There- proscribes rja jury.” fore, reference in legislative the common despite statements made or verified regulatory statutes must conclude that under of we penalty intend to make such Legislature does not the Penal Code of punishable under statements formulation renders effectively this state. This in 25 of the language "penalties perjury” of § nugatory. Welfare Act Social 25 of the Social Welfare question by raised purpose and legislative Act is one of ultimately in the act itself. No due purpose is evident vagueness by of is raised process question that such defendant, nor we inclined to believe are Lines, Motor Boyce challenge prevail. See would States, 337; 329; 96 L Inc v United 342 US 72 S Ct (1952).14 Ed 367 14 Boyce, by scheme also Perkins & the modern federal As noted penalties perjury” phrase for "under the of as substitute

uses the the administration provides: expressly of an oath. Federal law

Whoever—

(2) certificate, verification, declaration, any or statement in 584 430 Mich 544 by Dissenting Opinion Boyle, reject sum, In I the defendant’s conten- would required perjury "oath,” tion that no as for a conviction,15 was administered. The Penal Code punishment extrajudicial authorizes swearing, false § 25 of the Social Welfare Act indi- signing cates that the of the assistance by penalties perjury Ramos under Legislature by intended as a for the substitute I administration of an actual oath. would also reject prosecutions defendant’s contention permitted under under section 1746 of ., willfully . . title United States Code subscribes as true true; material matter which he does not believe shall, guilty except expressly is provided as otherwise law, $2,000 imprisoned be fined not more than years, applicable not more than five or both. This section is subscription whether the statement or is within made or with- out the United States. USC [18 1621.] paragraph The second this statute was added PL 94- perjury prosecutions many 550 and now allows instances which See, signature provided e.g., Dickinson (CA 1980). Wainwright, impor- v 626 F2d 1184 This observation is reasoning majority upon tant because the relies Kasparis, App 294; 107 Mich NW2d turn (CA States, 5, 1967), cites Escobar v United F2d cert den 390 proposition purely phrase US 1024 penalties support for the "under perjury” significance is of historical and will not decision, however, a conviction of The Escobar was upon unique statutory history based Internal Revenue Code explains predecessor and 26 USC 7206. Escobar the Internal Revenue Code allowed statute of the Federal Criminal Code. that a statute within prosecutions perjury under the later of the A revision Internal provision Revenue Code added a criminal enforcement limited to tax violations, but retained a reference to documents subscribed "under Id., perjury.” p quite the ably provisions 664. The Escobar court reason- congressional express concluded that addition of criminal legislative within the code itself indicated a intent not to penalize perjury general perjury provision under the of the Criminal Code, only might but to reference those documents that create crimi- liability provi- nal sion. under the Internal Revenue Code’s own criminal Michigan’s history Social Welfare Act has no similar and there- legislative Indeed, purpose. fore evidences no similar Escobar is itself exception body within the of federal law. (14th Torcia, ed), 611, p 335; Wharton’s Criminal Law Perkins § Boyce, supra, p & 514. v Ramos Dissenting Opinion Boyle, predicated on false are not Act, authorized the Social Welfare since plain language of 25 of the act authorizes crimi- § in for false statements and liability nal short, In I omissions. would decline the defen- dant’s invitation to transform the mere waiver of formality grant statutory a burdensome into a immunity.

B. THE THE WAS FALSE STATEMENT IN DEFENDANT’S PROPERLY TO BE MATERIAL? APPLICATION FOUND Act, of the 56g Section Social Welfare MCL 16.456(7), 400.56g; provides part: MSA (1) dependent provided Aid may children who, dependent family child or addition to the requirements under section 56 meets the follow- ing: (a) tangible intangible prop- Does not own $1,500.00

erty having a market value excess of individual, single group, if family for a tangible or intangible property family of the $2,000.00. group following does not exceed making excluded in determination value (iv) tangible intangible property: prop- or . . . income, erty earning including used farm stock horses, cattle, implements, power or chinery equipment, ing poultry, ma- tools, powered and motor or vehicles necessary or automobile for attain- retaining employment remunerative having a fair market value of less than $750.00. dismiss, In pretrial motions the defendant argued exempt the Kubota tractor was 56g(l)(a)(iv) property because used to earn income. The defendant theorized that assistance if would therefore have not been denied even he had listed the tractor on the form and that his failure to list the tractor was therefore 430 Mich Boyle, Dissenting Opinion proceeding. immaterial to the administrative requi is a materiality out that pointed defendant see swearing, false of the crime of site element Kert, 304 Mich 154-155; 7 NW People v the that, the omission of since argued fact, not a material tractor was charges must be dismissed. motion, the defendant’s trial court denied pur- for which he

reasoning purposes of fact questions tractor were chased and held the trial court Specifically, the trial court. observed: extent, that in order you’re right I think to this prosecutor must show charges the

to sustain the that disclosure of the Kubota means outcome of ceive ownership purported material, which tractor would have been if would have effected such disclosure eligibility to re- the determination of there, benefits, right you’re probably but to dismiss this case without you when ask me so, you’re then giving him a chance to do law, you’re bringing motion as a matter fact; expect I a matter of bringing a motion as if you right you to do that deny I can’t even I’m put in front of me. here want to those facts them, any testimony on I don’t have listen to but any evidence on those facts. those facts or seeking Thus, it is clear that defendant the front a matter of law that determination income,” earning property loader was "used end could not be resolved without clearly an issue that a testimonial record. presenting rested without

The defendant instruction requested jury testimony statement, believed, if "could must find that is, if the Thаt grant affected the benefits. have grant of benefits.” material statement was told jury requested Defendant further People 587 Ramos v Opinion by Dissenting Boyle, J. that if it found that the tractor and loader "is used in earning used or intended property income, then must find that the is you property making excluded from determination properly owned and that the disclosure was not property in it material that would not have affected The trial court grant defendant’s assistance.”16 that must find that charged jury they if statement was one which believed could have public course or outcome of such affected the assistance, second give portion but declined to requested. of the instruction First, was regarding materiality instruction requested defendant essentially Second, initial of the instruction. the instruc- part properly materiality tion defined as material to a issue, matter in this case to the defendant’s Thus, eligibility for assistance. as this Court ob- v Almashy, 227; 229 Mich 201 served question 231 in a as to the sufficiency NW the Court’s determination as to what surety, the defendant was material since property owned the issue the Court concerned the financial before Likewise, of the defendant. while it responsibility produc- if the income property is correct ing exempt, have been disclosure that would property defendant owned the had to be made to eligi- determine that fact and thus the defendant’s for is not bility materiality assistance. test alleged falsity, the actual effect of the but capacity to influence "the tribunal” on the issue interpose objection 16 I note that the defendant failed to to the and has also failed to move for a new trial on the basis of instruction the 356, alleged People Handley, еrror. v 415 Mich instructional See 261, (1982); 271-272; 360; People Kelly, 423 Mich 329 NW2d 710 (1985). put I also note that the defendant forth no substan NW2d purposes disputing equity in or evidence his the tractor his tive tractor, acquiring prosecution evidence that while the submitted personal purchased by the defendant for the tractor was and owned use. 430 Mich Dissenting Opinion Boyle, Masters, it. before United States v 484 F2d 1251 (CA 1973); Molinares, United States v 700 F2d (CA 1983); Flowers, 647 F2d 1320 United States v 1987). (CA 4, The defendant’s contention that the instruction jury was erroneous because the could have found guilty guilty Ramos not perjury of welfare fraud and precisely the same act illustrates a misunderstanding in the elements of the two charges. requires Perjury only a wilful false state- being ment, considered; material to the issue wel- requires fare fraud a false in- statement applicant’s tended ing in the does result receiv- benefits excess of those to which he is (3d Boyce, entitled. See & Perkins Criminal Law ed), p 400.60; 511. Cf. MCL MSA 16.460. The first penalizes ‍‌‌​‌‌​​​​​‌​‌‌‌​‌‌​‌​​‌​​​​​‌‌​‌​‌‌‌‌​‌​​‌​​​​‌‌‍statute agency’s conduct that is material to the eligibility,

determination second agency’s the actual outcome of the action. The first question perjured could is a whether a statement outcome; second, affected the on this have record, question did, fact, effect is a whether the outcome. agree materiality

Finally, I were always question law, I would find no requested materiality in- Defendant error here. struction, ques- the trial court submitted jury. If it incorrect to submit this tion to the clearly jury, this is an error which issue to the defendant complain. People Kert, cannot See supra.

CONCLUSION remaining Finding issues, I merit no of the Court of and order the decision would affirm People v Ramos Dissenting Opinion Boyle, J. Appeals, upholding both of the defendant’s convic- tions and sentences.

Griffin, J., part took no in the decision of this case.

Case Details

Case Name: People v. Ramos

Court Name: Michigan Supreme Court

Date Published: Jun 7, 1988

Citation: 424 N.W.2d 509

Docket Number: 76612, (Calendar No. 19)

Court Abbreviation: Mich.