State v. Smejkal, 15266

• Decision Date: 05 November 1986
• Docket Number: No. 15266,15266
• Citation: 395 N.W.2d 588
• Parties: STATE of South Dakota, Plaintiff and Appellant, v. Keith D. SMEJKAL, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 588

395 N.W.2d 588

STATE of South Dakota, Plaintiff and Appellant, v. Keith D. SMEJKAL, Defendant and Appellee.

No. 15266.

Supreme Court of South Dakota.

Argued Sept. 16, 1986.

Decided Nov. 5, 1986.

Dennis R. Holmes, Chief Deputy Atty. Gen., Pierre, for plaintiff and appellant; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Sidney B. Strange, Sioux Falls, for defendant and appellee.

WUEST, Chief Justice.

This is an appeal by the State of South Dakota from an intermediate order of the trial court which granted defendant's motion to suppress evidence obtained with a search warrant. We reverse.

On May 11, 1984, law enforcement officers conducted a search of the Keith Smejkal (Smejkal) farm and discovered a large quantity of marijuana. Indictments were brought against Smejkal for possession of more than ten pounds of marijuana and distribution of more than one-half pound of marijuana. SDCL 22-42-6, 22-42-7.

The trial court granted Smejkal's motion to suppress the evidence by finding the search warrant used was not issued by an appointed magistrate, which made the warrant void from the beginning. The warrant was issued by Debbie Pfeffer (Pfeffer) as a reputed non-law trained magistrate. However, Pfeffer had not yet been appointed by the presiding circuit court judge and no certification of appointment had been made to the South Dakota Supreme Court. SDCL 16-12A-4; SDCL 16-12A-7.1.

The State concedes Pfeffer had not been appointed nor certified as a magistrate, but claims she was a "de facto magistrate," and therefore the search warrant was valid. We hold Pfeffer was a "de facto" judicial officer, and the search warrant she issued was valid.

A magistrate court is established in each judicial circuit in South Dakota. SDCL 16-12A-2. Subject to rules promulgated by the Supreme Court, the presiding judge in each judicial circuit appoints as many magistrates as are deemed necessary to provide adequate and qualified judicial personnel for each county and municipality in the circuit. SDCL 16-12A-3. A duly appointed clerk or deputy clerk who meets the qualifications of a magistrate may also be appointed and act as a magistrate. SDCL 12-12A-5.

Leona Mead (Mead) was clerk of courts for Charles Mix County from January 1, 1976, to May 18, 1984. Pfeffer served under Mead as deputy clerk of courts from May 1, 1976, to May 18, 1984. While deputy clerk of courts, Pfeffer was required to assume the duties of clerk of courts in Mead's absence. Mead was a duly appointed lay magistrate for Charles Mix County and in her absence, Pfeffer served as a lay magistrate. Mead's absence occurred more frequently as recurring health problems appeared, especially later in her term. Mead resigned for health reasons on May 18, 1984, and Pfeffer was appointed as the new clerk of courts and received her appointment as magistrate. Her appointment was, however, one week after the search warrant in this case was issued.

A magistrate may not take office for the first time as a magistrate until he or she has attended an institute on the duties and functioning of the magistrate's office. This training is under the supervision of the Supreme Court and is prerequisite for all magistrates "unless such attendance is waived by the Supreme Court." SDCL 16-12A-8. Pfeffer attended lay magistrate training in October, 1978, and every two years thereafter. Mead and Pfeffer attended this training together. Pfeffer was certified by the Supreme Court as having satisfied all lay magistrate training requirements. These certificates, signed by the Chief Justice, were hung prominently in the Clerk of Courts Office.

Not only was Pfeffer apparently qualified as a magistrate, she also functioned as one. Pfeffer signed arrest warrants and search warrants. She also performed marriage ceremonies. By virtue of such service, she was considered a judicial officer by all third persons having business before her and by judicial officers, law enforcement personnel, and private citizens otherwise involved with her. The parties involved in this case were attentive to these circumstances and Pfeffer's reputation as a magistrate.

During a recess in a circuit court trial, the state's attorney, Gary Conklin (Conklin), asked Circuit Judge Paul Kern whether he would be available later that evening at his home in the event a search warrant was requested in this case. Judge Kern recommended the search warrant be issued instead by Pfeffer, since he believed that at some point he would be called upon as circuit judge to rule on the sufficiency of the affidavit and application for search warrant. It is apparent that Judge Kern believed Pfeffer to be a lay magistrate and relied on her reputation as such.

Conklin believed Pfeffer was a duly qualified lay magistrate because of his conversation with Judge Kern, because he had seen Pfeffer's certificate of lay magistrate training on the wall in the clerk of courts' office for several years, and because he had seen Pfeffer issue arrest warrants and perform marriage ceremonies.

The doctrine of the "de facto officer" has a long history in common law and in this country. In State v. Carroll, 38 Conn. 449, 9 Amer.Reports 409 (1871), Chief Justice Butler reviewed extensively the law of English and American cases. Based on this review, he considered the following definition of an officer "de facto" as the most accurate and comprehensive definition under that theory.

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 interest of the public and third persons, where the duties of the office are exercised: first, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; second, under color of a known or valid appointment or election, but where the officer had failed to conform to some precedent, requirement, or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public; fourth, under color of an election or an appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.

Carroll, 9 Am.Rep. at 427.

The United States Supreme Court found this to be a comprehensive and discriminating definition. Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1885). This definition has been widely accepted by other courts, and many decisions following this definition are collected in Annot., 11A Words & Phrases (1971); 46 Am.Jur.2d, Judges Sec. 243 (1969); 63A Am.Jur.2d, Public Officers and Employees Sec. 579 (1984); 3 McQuillin, Municipal Corporations Sec. 12.102 (3d ed. 1982). North Dakota adopted Carroll's four-part definition in State v. Ely, 113 N.W. 711, 713 (1907), and we adopted it in Merchants' Nat. Bank v. McKinney, 2 S.D. 106, 48 N.W. 841, 845 (1891) and in State v. Ness, 75 S.D. 373, 65 N.W.2d 923, 924 (1954).

The de facto principle applies to judicial officers. Waters v. State ex rel. Schmutzer, 583 S.W.2d 756 (Tenn.1979). This court accepted the theory of de facto judges in a situation where there was a defective election. Bergh v. Gibbs, 57 S.D. 634, 234 N.W. 616 (1931). Given the facts of the present case, attention focuses on situations where the duties of an office are exercised "first, without known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be." Carroll, supra. Such circumstances of Pfeffer's reputation as a lay magistrate were present in this case and led everyone involved in the warrant process to invoke her authority.

The rationale for the de facto doctrine is that those who rely on the actions of an apparently qualified officer have a right to assume that she properly occupies her position. 63 Am.Jur.2d, Public Officers and Employees Sec. 590 (1984). In Carroll, supra, the court stated:

It should be remembered that amongst the earliest cases there was a distinct class entirely independent of color derived from any known appointment or election, where the law said to the public as a rule of policy: 'If you find a man executing the duties of an office, under such circumstances of continuance, reputation or otherwise, as reasonably authorize the presumption that he is the officer he...