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Geoff Trachtenberg
Geoff Trachtenberg
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Judicial Officers are Subject to the "De Facto Officer" Doctrine and Failure to Object to the Appointment of a Judge Pro Tempore is a Procedural Defect That Can Be Waived

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Division One just handed down Garner v. Schindler, a short and sweet opinion on the nature of judges pro tempore (I am a judge pro tempore, by the way). In sum, the appellant had a probate dispute litigated before a judge pro tempore and, after the case was over, decided to raise (for the first time) hyper-technical defects in the judge’s appointment.

The Court of Appeals, awknoweldged that there was a defect in the appointment of the judge pro tempore, but observed that the Supreme Court had previously applied the “de facto officer” doctrine in determining the validity of acts of other public officers whose appointment or election to the office was legally defective. The de facto officer doctrine applies as follows:

one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised . . . . under color of a known election or appointment [that would otherwise be] void by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public.

The Court recognized the sound policy behind the doctrie:

The de facto officer doctrine was developed to protect the public from the chaos and uncertainty that would ensue if actions taken by individuals apparently occupying government offices could later be invalidated by exposing defects in the officials’ titles. The doctrine has generally been applied to individuals who are in possession of an office, are performing the duties of the office, and who maintain an appearance of right to the office.

The Court held that “[w]e do not perceive any reason why the doctrine of de facto officers . . . should not be extended to judges — including judges pro tempore — who occupy office under color of a known appointment that suffers from a procedural defect or irregularity that is unknown to the public.” Indeed, “it makes little sense to waste ‘valuable judicial and private resources’ by ‘[r]equiring relitigation of matters decided by a competent, unbiased judge.'” “This is particularly so when, as here, the ‘procedural defects in a judge’s qualifications do not affect the fairness of the proceedings.'” Accordingly, the Court held that the de facto officer doctrine is applicable to judicial officers.

The Court then turned to whether the defect was “procedural” or “jurisdictional.” The significance being that the former is subject to waiver, unlike the latter. The Court held that “the defect in the appointment process was a procedural error that [was] waived by not raising [it] before the probate hearing commenced.”