Dep't of Human Servs. v. J. H. (In re E. H.)

320 Or.App. 85

513 P.3d 61

In the MATTER OF E. H., a Child.

Department of Human Services, Petitioner-Respondent,

v.J. H., Appellant.

A177299

Court of Appeals of Oregon.

Argued and submitted April 1, 2022.

June 8, 2022

Joel Duran, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.

Jon Zunkel-deCoursey, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, Inge D. Wells, Assistant Attorney General, and Derek Olson, Certified Law Student.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

SHORR, P. J.

After the juvenile court asserted jurisdiction over father's child, E, father moved to set the judgment aside on the ground that the judge pro tempore who presided over the hearing and who signed and entered the judgment lacked authority to do so because his pro tempore appointment had expired several months earlier. The trial court denied father's motion, concluding that the "de facto judge" doctrine operated to validate the judgment. Father appeals the order denying his set-aside motion, contending that the de facto judge doctrine does not apply in these circumstances. We affirm.

For purposes of this appeal, the facts are undisputed. On September 1, 2020, the Department of Human Services (DHS) petitioned for juvenile court jurisdiction over E based on allegations that father had sexually abused E and that mother was unwilling or unable to protect E from sexual abuse.¹ Judge Thomas, who was sworn in as a judge pro tempore in the Douglas County Circuit Court on April 12, 2018, presided over the jurisdictional hearing on May 7, 2021. Thomas found that DHS had proved the allegations in the petition and, subsequently, on May 11, 2021, conducted a disposition hearing. On that same date, Thomas signed and caused to be entered in the register a "Judgment of Jurisdiction and Disposition" asserting dependency jurisdiction over E under ORS 419B.100 and making her a ward of the court under ORS 419B.328. On June 10, father timely appealed that judgment.

On July 16, 2021, while father's appeal of the jurisdictional judgment was pending, the presiding judge of the Douglas County Circuit Court at the time notified members of the Douglas County Bar Association by email that Thomas's pro tempore status had expired on April 11, 2021.² On September 3, 2021, father moved the juvenile court to set aside the jurisdictional judgment under ORS 419B.923,³ on the ground that Thomas lacked authority to preside over the matter and to sign the judgment and, therefore, the judgment was without legal authority. On November 8, 2021, the court denied the motion, reasoning that the de facto judge doctrine applied to validate Thomas's actions.⁴ Among other things, the court reasoned that "this is an issue that, had it been raised at trial when the parties could have and, well, might have and, well, should have been aware, based upon the status of the Judge, that they needed to raise it at the time ." (Emphasis added.) Father appeals the order denying the motion.⁵

We review the juvenile court's denial of a motion to set aside a judgment under ORS 419B.923 for abuse of discretion. Dept. of Human Services v. A. D. G. , 260 Or. App. 525, 534, 317 P.3d 950 (2014). We review the legal questions underlying the court's ruling for legal error. Id. If the ruling is "within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the court did not abuse its discretion." Id. (internal quotation marks omitted).

As noted, Thomas had been appointed judge pro tempore in the Douglas County Circuit Court in April 2018. Under ORS 1.635,

"[t]he Supreme Court may appoint any eligible person to serve as judge pro tempore of the * * * circuit court in any county or judicial district, whenever the Supreme Court determines that the appointment is reasonably necessary and will promote the more efficient administration of justice. A person is eligible for appointment if the person is a resident of this state and has been a member in good standing of the Oregon State Bar for a period of at least three years next preceding the appointment."

In turn, "[e]ach judge pro tempore appointed and qualified as provided in ORS 1.635 has all the judicial powers, duties, jurisdiction and authority, while serving under the appointment, of a regularly elected and qualified judge of the court to which the judge pro tempore is appointed or assigned." ORS 1.645(2).

It is undisputed that Thomas's pro tempore judge appointment expired on April 11, 2021, by operation of statute. Thus, father contends, Thomas lacked the "judicial powers, duties, jurisdiction and authority" to preside over the matter and enter the jurisdictional judgment, and the judgment is therefore void. In father's view, Thomas was not a de facto judge, because he was not acting "under color of any law that purported to confer authority upon him to do so." Alternatively, father asserts that, even if the judgment is "merely voidable, rather than void," he has permissibly raised a cognizable challenge to it under ORS 419B.923.

The state responds that the judgment is not void, because Thomas was a de facto judge—that is, acting under color of authority—at the time he entered the judgment. Consequently, according to the state, father cannot collaterally attack the judgment by way of motion under ORS 419B.923. As explained below, we agree with the state.

A void judgment is one "that has no legal force or effect," and it thus may "be attacked at any time and any place, whether directly or collaterally." PGE v. Ebasco Services, Inc. , 353 Or. 849, 856, 306 P.3d 628 (2013) (internal quotation marks omitted). A voidable judgment, on the other hand, although "irregular or erroneous," nonetheless has legal force because it was "rendered by a court having jurisdiction," and it is "subject only to direct attack." State v. McDonnell , 343 Or. 557, 562, 176 P.3d 1236 (2007), cert. den. , 555 U.S. 904, 129 S.Ct. 235, 172 L.Ed.2d 180 (2008) (internal quotation marks omitted). As we observed in Mann v. DeCamp , 280 Or. App. 427, 431, 380 P.3d 1080, rev. den. , 360 Or. 697, 388 P.3d 713 (2016), "Oregon courts have consistently recognized that an action taken by a judge who lacks the authority to take the action is voidable rather than void if the court had subject matter jurisdiction over the case in which the judge acted." See McDonnell , 343 Or. at 570, 176 P.3d 1236 (judgment rendered by judge who had been disqualified from presiding in the case voidable but not void, because the error did not deprive the trial court of subject matter jurisdiction and defendant was therefore required to preserve the error).

That principle applies with equal force to actions taken by a de facto judge. See Mann , 280 Or. App. at 431, 380 P.3d 1080 (so stating, based on, for example, State ex rel Madden v. Crawford , 207 Or. 76, 295 P.2d 174 (1956) (discussed below)). See also McDonnell , 343 Or. at 568-70, 176 P.3d 1236 (relying on court's reasoning in cases concerning the acts of de facto judges to bolster its conclusion that judgment entered by judge who had been disqualified was merely voidable but not void). Thus, the first—and, as it turns out—dispositive question in this case is whether Thomas was a de facto judge when he presided over the case and rendered the judgment at issue here.

We begin with the pertinent case law. The first reported case on the subject of the de facto judge doctrine in Oregon appears to be Hamlin v. Kassafer , 15 Or. 456, 15 P. 778 (1887). There, the issue was the validity of a judgment rendered by an official, Foudroy, who previously had held the office of justice of the peace, but, at the time of the judgment, had been defeated in his reelection bid by another official, Hubbel. Id. at 457, 15 P. 778. Foudroy refused to surrender the "office, its docket, and books," to Hubbel and "continued to exercise and perform the functions" of the office. Id. Hubbel also acted as, and performed the duties and functions of, a justice of the peace; however, "the evidence indicate[d] that these acts were performed in [Hubbel's] official character as a city recorder, by virtue of which he was ex officio justice of the peace." Id. The plaintiff requested the court to instruct the jury that Foudroy "was a mere usurper" when he issued the judgment, which, according to the court, would render his acts "utterly void." Id. at 458, 460, 15 P. 778.

Surveying cases from various jurisdictions, the court distilled the following:

"The distinction, then, which the law recognizes, is that an officer de jure is one who has the lawful right or title, without the possession, of the office, while an officer de facto has the possession, and performs the duties under the color of right, without being actually qualified in law so to act , both being distinguished from the mere usurper, who has neither lawful title nor color of right. The mere claim to be a public officer is not enough to constitute one an officer de facto. There must be some color to the claim of right to the office, or without such color, a performance of official duties, with the acquiescence of the public, for such a length of time as to raise a presumption of colorable right ."

Id. at 459, 15 P. 778 (emphases added). The policy underlying the de facto judge doctrine, the court explained, is that it would be

"unjust a[nd] unreasonable to require every individual doing business with such officer to investigate and determine at his peril the title of such officer. Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to say that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising

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