Senator Maynard And The Oath

Questions abound about what will happen if State Senator Andrew Maynard, who suffered serious injuries during a fall last August but was nonetheless reelected earlier this month, cannot take the oath of office when the General Assembly convenes in January.  This post explores some of the legal issues surrounding those questions.  The post is by no means definitive.  It is the beginning of my legal exploration of the issue, not the end.  I welcome comments.

Let’s consider the relevant provisions of the Connecticut Constitution.  Article third, § 8 states:

A general election for members of the general assembly shall be held on the Tuesday after the first Monday of November, biennially, in the even-numbered years. The general assembly shall have power to enact laws regulating and prescribing the order and manner of voting for such members, for filling vacancies in either the house of representatives or the senate, and providing for the election of representatives or senators at some time subsequent to the Tuesday after the first Monday of November in all cases when it shall so happen that the electors in any district shall fail on that day to elect a representative or senator.

I don’t think there is any reasonable debate that Senator Maynard was reelected on Tuesday, November 4, 2014.  He was on the ballot and received a majority of votes.  (Whether he should have been on the ballot is another question.)

Now let’s look at article first, § 10, which provides, “The members of the general assembly shall hold their offices from the Wednesday following the first Monday of the January next succeeding their election until the Wednesday after the first Monday of the third January next succeeding their election, and until their successors are duly qualified.”  (My emphasis.)

So, Senator Maynard continues to hold the office to which he was elected in 2012 until January 7, 2015, when his current term ends.  The question is, what happens next?

Article eleventh, § 1 states, “Members of the general assembly, and all officers, executive and judicial, shall, before they enter on the duties of their respective offices, take the following oath or affirmation. . . .”

What happens of Senator Maynard is unable to take this oath?  Is the taking of the oath a prerequisite to actually serving in the legislature?  Is it a condition for receiving legislative pay and benefits, or is it only a condition-precedent to exercising the powers of the office, including voting on legislation?  And, what is the significance of the fact that he is an incumbent who has already taken the oath of office?  Does he need to take it again, or does the previous oath relieve him of the obligation to take it again in order to continue as a member in good standing? 

These are interesting questions. Here is my attempt at some answers.

With respect to the question whether he must take the oath again, General Statutes § 2-1 suggests that the answer is “yes.”  It provides in relevant part:

There shall be a regular session of the General Assembly held at Hartford in each year. In the odd-numbered years, such session shall commence on the Wednesday following the first Monday of January. The Senate and House of Representatives, when any such session is to be held, shall convene at their respective chambers in the Capitol on the day named, at ten o’clock in the forenoon, when the secretary shall call the Senate to order and administer the official oath to the senators present.

Section 2-1 does not expressly state what happens if an elected official fails to take the oath, but I think the fair implication is that he/she may not execute the powers of the office.  This implication finds support in the text of article eleventh, § 1 of the state constitution, which, as noted above, says that elected officials shall take the oath “before they enter on the duties of their respective offices.”

I am not aware of any case law in Connecticut that interprets the oath requirement of section 2-1.  There is a first time for everything, and this case may be that first time.  There is, however, some rather old case law that mentions, but offers little in the way of elaboration upon, the oath requirement in article eleventh, § 1.  See Burger v. Town of Guilford, 136 Conn. 71 (1949) (“A state referee is an officer of the state and must take an oath before entering upon the performance of his duties. Conn.Const. Art. 10 § 1.”) ; State ex rel. Runbaken v. Watrous, 135 Conn. 638 (1949) (judicial officers must take oath under Art. 10  § 1 before performing duties of office).

To summarize my analysis thus far, an elected official who fails to take the oath of office at the beginning of each legislative session cannot perform the duties of the office.  Thus, if Senator Maynard is unable to take the oath on January 7, 2015, he cannot perform his duties.

Or can he?  Let’s back up a minute.  Recall that article third, § 10 provides that “[t]he members of the general assembly shall hold their offices from the Wednesday following the first Monday of the January next succeeding their election until the Wednesday after the first Monday of the third January next succeeding their election, and until their successors are duly qualified.”   If Senator Maynard cannot take the oath of office this January, and if that means that there is no duly qualified successor for his office, does he continue to hold office by virtue of his election in 2012 until a special election is held and a duly qualified successor takes office?  I think he does.

To support my answer, consider the following situation.  Suppose a state senator is defeated in an election, but his opponent is unable to take the office of oath due to some disability.  I think the law is clear that the defeated senator would continue to hold office pending a special election and the seating of the winner of that election.  By analogy, Senator Maynard should continue to hold office until the winner of a special election is seated.

Is Senator Maynard entitled to his legislative compensation if his unable to take the oath, but continues to serve until a successor is seated?  Yes.  General Statutes § 2-8 addresses  compensation of members of the General Assembly.  Subsection (a) provides:

Each member of the General Assembly shall receive twenty-eight thousand dollars for each year of the term for which such member is elected, to be paid as follows: In each year of the term, one-fifth within the first ten days of February and thereafter one-fifth within the first ten days of each succeeding month until total compensation for the year is paid. Any member may elect to receive one-twelfth of the total compensation to which such member is entitled under the provisions of this section in any year, payable in equal monthly installments during such year commencing in the month of January. If any such member resigns for reasons of health or dies before receiving the full compensation to which such member is entitled for such year, the balance of such compensation shall be immediately payable to such member or to such member’s estate.

This section does not condition payment of salary upon taking the oath, unless taking an oath is an essential condition of being a “member” of the General Assembly.  One might interpret “member” that way, but even accepting that interpretation, pursuant to article  third, § 10 Senator Maynard will continue to hold office until a special election produces someone to take his seat.  Further, if Senator Maynard voluntarily resigns, he is entitled to full compensation for 2015.

Let me stress again that this analysis is not definitive.  Ultimately, the Attorney General will probably have to weigh in on this issue.  As I said, I welcome comments, suggestions and vociferous disagreements with my analysis.