Posted by: Patricia Salkin | January 28, 2021

IN Court of Appeals Hold Planning Commission Members Never Sworn In Under Oath Had Color of Title to Act as Officers

This post was authored by Georgia Reid of Touro Law Center

In January of 2021, a Court of Appeals (the Court) in Indiana examined whether members of the Jefferson County Planning Commission (“JCPC”), though not officially sworn in under oath as required by statute, were de facto officers.  In 2016, the JCPC had sued the Chapos for violating a zoning ordinance by maintaining a shooting range on their property.  Appellants Joseph and Sherry Chapo and Deputy Bigshot, LLC (the “Chapos”) brought the appeal after a trial court granted a preliminary injunction to the JCPC in 2018.  When the Chapos discovered that the JCPC members had not taken an oath before assuming office, the Chapos moved to dismiss the injunction for lack of standing.  The issue before the Court was whether by not being sworn in, the members lacked standing to sue the Chapos over the zoning violation. 

The Chapos argued that by not being sworn in, the JCPC’s decision to pursue injunctive relieve was potentially invalid and subject to collateral attack.   The Chapos asserted the JCPC members were officers required by Section 5-4-1-1 to take an oath.  The Court agreed.  The Chapos then asserted that JCPC’s failure to do so made the office vacant, which in turn meant the JCPC lacked standing to sue, and that the preliminary injunction and contempt orders were void, and the case should therefore be dismissed. The trial court had denied the Chapo’s motion, and the Chapos appealed.   

First, the Court analyzed the definition of the term “officer” under the statute. The statute in question, Ind. Code § 5-4-1-1, states: (a) Except as provided in subsection (c) [ 2 ], every officer and every deputy, before entering on the officer’s or deputy’s official duties, shall take an oath to support the Constitution of the United States and the Constitution of the State of Indiana, and that the officer or deputy will faithfully discharge the duties of such office.  The Court noted that no definition of the term “officer” was included in the statute, so the Court gave the word its common and ordinary meaning, per Indiana case law. Using Black’s Law Dictionary, the court defined “officer” as one “who holds an office of trust, authority, or command,” and defined “office” as a “position of duty, trust, or authority, especially one conferred by a governmental authority for a public purpose.” Under that meaning, because they hold positions of authority and exercise governmental powers to benefit the public, the JCPC members were indeed officers, and therefore required to take the oath.  On this, the Court agreed with the Chapos.  

The JCPC contended that their failure to take and file the required oath did not mean they lacked standing because “the JCPC members qualified as ‘de facto’ officers, thereby the JCPC’s decision to pursue injunctive relief was legally valid and not subject to collateral attack.”  The Court agreed, holding that the JCPC members were officers under color of title because they met all three prongs of the following test:  all that is required to make an officer de facto is that they (1) claim the office, (2) be in possession of it, and (3) perform its duties under the color of election or appointment.  Accordingly, the Court concluded the JCPC members were acting as de facto officers when the lawsuit against the Chapos was filed.

The Chapos argue the JCPC members “were usurpers and not entitled to the status of de facto officers.” The Court did not agree, because a usurper is “one who intrudes himself into an office which is vacant, or ousts the incumbent, without any color of title.”  However, the Court held that the JCPC did have color of title under the law, citing many cases.  The Chapos also asserted the JCPC members were not de facto officers because “their failure to take and file the required oath made the offices vacant.” This argument also failed.  The Court held that a vacancy in an office does not preclude de facto status, citing United States v. Royer, 268 U.S. 394, 397-98, 45 S.Ct. 519, 69 L.Ed. 1011 (1925) (finding claimant a de facto officer of a vacant office). The Court agreed that the JCPC members were required to take and file the oath set out in Section 5-4-1-1. However, invalidating the actions of the JCPC based on this technical defect would undermine the exact purpose of the de facto officer doctrine—“to insure the orderly functioning of the government despite technical defects in title to office.”

Chapo v. Jefferson County Plan Commission, 164 N.E.3d 131 (2021)

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