In re Estate of De Escandon

• Decision Date: 07 June 2007
• Docket Number: No. 1 CA-CV 06-0258.,1 CA-CV 06-0258.
• Citation: 215 Ariz. 247,159 P.3d 557
• Parties: In re the Matter of the ESTATE OF Irene Roth DE ESCANDON, Deceased. Estate of Greta Garner, Petitioner-Appellee, v. Kurt Schindler, personally and as the former Personal Representative of the Estate of Irene Roth de Escandon, Respondent-Appellant.
• Court: Arizona Court of Appeals

159 P.3d 557

215 Ariz. 247

In re the Matter of the ESTATE OF Irene Roth DE ESCANDON, Deceased.

Estate of Greta Garner, Petitioner-Appellee, v. Kurt Schindler, personally and as the former Personal Representative of the Estate of Irene Roth de Escandon, Respondent-Appellant.

No. 1 CA-CV 06-0258.

Court of Appeals of Arizona, Division 1, Department E.

June 7, 2007.

Lewis and Roca LLP By Foster Robberson, Karen L. Killion, Susan M. Freeman, Phoenix, Attorneys for Petitioner-Appellee.

Porter Law Firm By Robert S. Porter, Phoenix, Attorneys for Respondent-Appellant.

OPINION

HALL, Judge.

¶ 1 Commissioner Lindsay Ellis acting as a judge pro tempore of the superior court entered a judgment and order in this contested probate matter. Kurt Schindler contends that the judgment and order are void for lack of jurisdiction because the Maricopa County Board of Supervisors did not approve Commissioner Ellis's appointment as a judge pro tempore as required by Arizona Revised Statutes (A.R.S.) section 12-141 (2003). We conclude that the defect in the appointment process was a procedural error that Schindler waived by not raising before the probate hearing commenced. Therefore, we affirm the judgment and order.

BACKGROUND

¶ 2 The appointment of judges pro tempore is governed by Article 6, Section 31, of the Arizona Constitution, which states in part:

The Legislature may provide for the appointment of members of the bar having the qualifications provided in § 22 of this article as judges pro tempore of courts inferior to the Supreme Court. When serving, any such person shall have all the judicial powers of a regular elected judge of the court to which he is appointed.

¶ 3 The Legislature provided for appointments by enacting A.R.S. §§ 12-141 through — 147 (2003). Section 12-141 provides:

Upon request of the presiding judge of the superior court in any county the chief justice of the state supreme court may appoint judges pro tempore of the superior court for such county in the manner provided by this article and subject to the approval of the board of supervisors of the county.

¶ 4 On December 16, 2004, Chief Justice Charles E. Jones signed an administrative order acknowledging a request from the presiding judge of the Superior Court of Maricopa County for the appointment of court commissioners to serve as judges pro tempore in that court. The order appoints an attached list of commissioners, including Lindsay Ellis, as judges pro tempore "conditioned upon the approval of the Maricopa County Board of Supervisors" (the Board) for the term beginning January 1, 2005 and ending December 31, 2005.

¶ 5 Minutes of the Board's December 15, 2004 meeting state that the Board unanimously approved "the appointment of the attached list of Court Commissioners as Pro Tempore Justice [sic] of the Peace for the period from January 1, 2005 through December 31, 2005 to serve in the various programs in the Justice Courts to reduce trial delay," but do not refer to the approval of the appointment of court commissioners as judges pro tempore in the superior court. Subsequently, at its October 5, 2005 meeting, the Board unanimously "amend[ed] the action taken on December 15, 2004, Nunc Pro Tunc, to approve the appointment of the Court Commissioners as Superior Court Judges Pro Tempore, as well as, Pro Tempore Justices of the Peace for the period from January 1, 2005 through December 31, 2005, to serve in the various programs in the Superior Courts and Justice Courts to reduce trial delay."

¶ 6 The case from which this appeal is taken was tried before Judge Ellis in August 2005 and her decision was rendered by minute entry order on December 2, 2005. The formal judgment against Kurt Schindler and Order re Administration of Estate were entered on March 7, 2006. Schindler timely appealed from the judgment and order. We have jurisdiction over this appeal pursuant to A.R.S. § 12-2101(B) and (J) (2003).

DISCUSSION

¶ 7 Schindler does not claim error as to the merits of the underlying judgment and order. Instead, he asserts that Judge Ellis lacked authority to adjudicate this matter and the judgment must therefore be vacated as void. Schindler's assertion presents an issue of law that we review de novo. Am. Fed'n of State, County and Mun. Employees, AFL-CIO Local 2384 v. City of Phoenix, 213 Ariz. 358, 363, ¶ 15, 142 P.3d 234, 239 (App. 2006).

¶ 8 A commissioner is not authorized to hear a contested probate matter. Ariz. R. Sup.Ct. 96(a)(5). Therefore, Judge Ellis was only authorized to determine the matter if acting in the capacity of a judge pro tempore. Schindler did not object to Judge Ellis's authority to hear and determine this matter before the hearing commenced in August 2005. Indeed, Schindler's counsel (who also represented him in the superior court) acknowledged during oral argument that he first became aware of the issue as he was preparing the appellate brief. Accordingly, the Estate contends that Schindler's appellate objection to Judge Ellis's authority is untimely and therefore waived. See State v. White, 160 Ariz. 24, 32, 770 P.2d 328, 336 (1989) (finding that defendant waived his claim that he was entitled to be tried before "a regularly seated superior court judge" rather than a judge pro tempore by failing to make a timely objection). Schindler, on the other hand, asserts that his objection that Judge Ellis acted outside her authority is "jurisdictional" in nature and, accordingly, can be raised for the first time on appeal. See Cooper v. Commonwealth Title, 15 Ariz. App. 560, 562-63, 489 P.2d 1262, 1264-65 (1971) (lack of jurisdiction to render particular judgment can be raised at any time). We construe Schindler's claim as being that, as a result of the irregularities in her appointment to act as a judge pro tempore, Judge Ellis did not have the power to hear and determine contested probate matters.

¶ 9 Whether a party may attack a judgment on direct appeal by contending that the judge before whom the case proceeded was not properly appointed to her position and, if so, under what circumstances, is a question of first impression in Arizona. However, our supreme court has 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 leading case in Arizona on de facto public officers is Rogers v. Frohmiller, 59 Ariz. 513, 130 P.2d 271 (1942), in which the supreme court adopted the test for a de facto officer from State v. Carroll, 38 Conn. 449 (1871). Insofar as relevant here, an officer de facto is:

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.

Frohmiller, 59 Ariz. at 521, 130 P.2d at 274 (quoting Carroll, 38 Conn. at 471-72).¹ The

rationale for the doctrine has been aptly explained by the Second Circuit:

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.

Equal Employment Opportunity Comm'n v. Sears, Roebuck and Co., 650 F.2d 14, 17 (2d Cir.1981) (internal citations omitted).

¶ 10 We do not perceive any reason why the doctrine of de facto officers as explained in Frohmiller 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. We agree with the observations of the Supreme Court of Alaska that it makes little sense to waste "valuable judicial and private resources" by "[r]equiring relitigation of matters decided by a competent, unbiased judge." Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038 (Alaska 1998) (applying de facto officer doctrine to pro tempore judge who did not meet statutory residency requirement). This is particularly so when, as here, the "procedural defects in a judge's qualifications do not affect the fairness of the proceedings." Id. (citing People v. Bowen, 231 Cal.App.3d 783, 283 Cal.Rptr. 35, 39 (1991)). Furthermore, applying the de facto officer doctrine in the context of judicial officers is appropriate because doing so advances the purpose of the doctrine by "protect[ing] third parties and the public in their dealings with the judicial system." Id. at 1038-39. Accordingly, we conclude that the de facto officer doctrine is applicable to judicial officers.

¶ 11 We now address the Estate's claim that Schindler has waived the issue of procedural defects in Judge Ellis's appointment to act as a judge pro tempore by not objecting to her authority to do so in the trial court. The majority of jurisdictions do not permit a party to first raise issues regarding the title or authority of a trial judge on appeal from the judgment entered:

Where there is original constitutional or statutory authority for an election or appointment of a special, substitute, or pro tem judge, and the record does not affirmatively show that the person in question could not, in any event, legally perform the functions of such a judgeship, it is the general rule that objections to the title or authority of such a judge cannot be first made on appeal.

See H.D. Warren, Annotation, Right of Party, in Course of Litigation, to Challenge Title or Authority of Judge or...