Arizona Court of Appeals Division One Holds De Facto Officer Doctrine Applies to Judicial Officers Acting Under Color of Defective Appointment.

A commissioner acting as a judge pro tempore in the superior court entered a judgment and order in a contested probate matter. Appellant appealed, contending that the judgment and order were void for lack of jurisdiction because the commissioner’s appointment as a judge pro tempore had not been timely approved by the Maricopa County Board of Supervisors, as required by A.R.S. § 12-141. The Estate, in response, claimed that the challenge to the commissioner’s service was waived because it was not raised before the superior court hearing commenced.

The Court of Appeals affirmed the judgment and order. It held that the challenge of the commissioner’s authority, because not timely raised, had been waived. Resolving a question of first impression in Arizona, the Court extended the “de facto officer” doctrine, see Rogers v. Frohmiller, 59 Ariz. 513 (1942), to judicial officers. The doctrine gives validity to actions taken by an officer under color of election or appointment that would otherwise be void because of an unknown defect or irregularity regarding the power of the officer to act. Because the commissioner otherwise met the constitutional requirements of a judge pro tempore, the failure of the statutorily required approval did not result in a jurisdictional error and, thus, appellant could not raise his challenge for the first time on appeal.

Presiding Judge Hall wrote the opinion and was joined by Judges Timmer and Brown.