De Jure, De Facto Officer Doctrine
In Latin, de jure means “of law” or lawful and de facto means “of fact” or in reality.
Sometimes, a public official may not be in full compliance with the law (de jure) regarding the qualifications or requirements of office or the correct procedure for a transaction. Under the de facto officer doctrine, the acts of the public official will still be held valid, if the official entered the office by appointment or election, and is in substantial compliance with the law.
According to the United States Supreme Court, the de facto officer doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in the title to office. Ryder, 515 U.S. at 180, 115 S.Ct. 2031.
“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.”
“The rule is well settled that where there is an office to be filled, and one, acting under color of authority, fills the office and discharges its duties, his actions are those of an officer de facto, and binding upon the public”.
See Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995); See also Norton v. Shelby County, 118 U.S. 425, 440 (1886), McDowell v. United States, 159 U.S. 596, 601-02, 16 S.Ct. Ill, 40 L.Ed. 271 (1895)
Usurper, Trespasser or Intruder of Office
A usurper in possession of office without appointment or election is a trespasser and not regarded as an officer de facto, unless he holds office for such length of time and under circumstances as to give him color of right by reputation, or acquiescence on the part of the public. Barring this exception, his acts are absolutely void.
In the absence of special remedies provided by statute, quo warranto is the appropriate, and generally the exclusive, method of determining disputed questions of title to office, and of ousting an unlawful incumbent.
If the incumbent is unable to establish a valid title to the office, a judgment of ouster is pronounced against him. The effect of such judgment is to legally exclude him at once from the office, and to render all acts done by him in an official capacity, subsequent to the rendition thereof, null and void.
The Colorado Supreme Court shall have power to issue writs of quo warranto. Colorado Constitution, Article VI, Section 3, Judicial Department, Supreme Court
Every district attorney shall appear in behalf of the state and the several counties of his or her district wherein the state or the people thereof or any county of his district may be a party. CRS 20-1-102
District attorney is proper officer to institute quo warranto proceedings in inferior courts. The district attorney, and not the attorney general, is the proper officer to institute proceedings in quo warranto in the inferior courts and he may also under this section follow the case into the supreme court, from which time the attorney general would at once be entitled to control its further progress. People ex rel. Jerome v. Regents of Univ. of Colo., 24 Colo. 175, 49 P. 286 (1897).
The district attorney may institute proceedings in the nature of quo warranto upon his own responsibility, and, if upon request he refuses so to do, a private person, as relator, may in a proper case institute them without leave of court. People ex rel. Jerome v. Regents of Univ. of Colo., 24 Colo. 175, 49 P. 286 (1897).
The Texas Attorney General wrote legal opinion 1996-056 on the proper procedure for Quo Warranto in Texas. The proper remedy to question the authority of a de facto public official is a quo warranto proceeding brought in the name of the state by the district attorney or the attorney general.
Willful Impersonation. Any person who acts as, or otherwise willfully impersonates, a notary public while not lawfully appointed and commissioned to perform notarial acts is guilty of a class 2 misdemeanor. CRS 12-55-117
Oaths Administered by De Facto Officer
An oath administered without authority is of no effect. multiple cases
An oath administered by a de facto holder of an office, the occupant of which is given the authority to administer oaths, is as binding and valid as that of the de jure holder of such office. Walker v. State, 107 Ala. 5, 18 So. 393 (1895); Izer v. State, 77 Md. 110, 26 Atl. 282
An oath administered by a deputy clerk, unauthorized to administer an oath, but done under the authority, direction, knowledge and assent, and in the presence of an officer duly authorized to administer an oath, is the act of the de jure authorized officer. Alabama Supreme Court Walker v. State, 107 Ala. 5, 18 So. 393 (1895) See State v. Knight, 84 N.C. 789, 793; Stephens v. State, 1 Swan, 157; Oaks v. Rodgers, 48 Cal. 197
De Facto Notary Doctrine
When a person is appointed to the office of notary, but in good faith, does not know or realize that the notary commission, notarial act or notarial certificate is not in full compliance with the law (de jure), the common law principle of de facto notary doctrine will usually allow the notarization to be held as valid by a court. The consumer is not required to know notary laws or investigate and verify the notary’s current commission status as de facto or de jure.
But, if the notary or the consumer knew, or should have known about the defect, error or compliance problem, the court probably would not allow the notarization. But, each case depends on its particular circumstances. The ultimate determination rests with the court to decide. See Michael L. Closen, The De Facto Notary Doctrine and How To Avoid Tardy Notarizations, The Notary newsletter, May/June 2001, Notary Law Institute.
The public may view a Certificate of Fact of Current Notary Status on the Colorado Secretary of State website in the section titled Verify a Notary. The official certificate includes a date and time stamp, the notary name, ID number, commission start and end date, a confirmation number, the Great Seal of the State of Colorado and the signature of the Secretary of State.
In Colorado, the first 4 digits of the notary ID number indicate the year of issue. So, a consumer can know how long a notary has been in office and can choose a notary with more years of service and experience, rather than a new notary still in the learning phase.
Collateral Attack versus Direct Attack
Under the doctrine of de facto officer status, a party may not make a collateral attack that an act done by an alleged disqualified officer is invalid by attacking official status. The act is generally presumed valid. Otherwise, an officer’s right to the office could be litigated and decided in a proceeding in which the officer was not a party.
A direct attack may be made in an action in the nature of quo warranto that the officer is not a de jure officer. Evidence is then presented by the officer and reviewed by due process to determine if the officer is in full compliance, de jure, or in substantial compliance, de facto, or an intruder or usurper of office, acting without authority, to be ousted by due course of law, and whose acts are not valid.
De Facto Corporate Officers and Directors
A person, although not a de jure corporate officer or director, who exercises some corporate office under some color of title is often treated as a de facto officer or director, giving legal effect to such person’s official acts and precluding collateral attack, but not direct attack, on such person’s official status.
A de facto officer is defined as one who, under color of authority, exercises a corporate office. H. Henn, Handbook of the Law of Corporations 222 (2d ed. 1970).
The underlying policy for the doctrine of de facto officers is the protection of the interests of the public and individuals dealing with such “officers.” W. Fletcher, Cyclopedia of the Law of Private Corporations 384 (Rev. ed. 1969)
A corporate officer who has not taken the oath required by the corporate charter is a de facto officer. Simpson v. Garland, 76 Me. 203; Schwab v. Frisco Mining & Milling Co., 21 Utah 258, 60 Pac. 940.
A corporation or LLC might also be de facto due to defective incorporation, organization, negligent reporting or other error or compliance issue.
Certificate of Incumbency
A notarized Certificate of Incumbency, listing the current officers or directors, signed and sworn to by a company official, may be used as a form of evidence of official status.
Disclaimer: Laws change and vary by state. This article is not legal advice. Contact an attorney for legal advice.
1. A Treatise on the De Facto Doctrine, Albert Constantineau, 1910
2. Handbook of the Law of Corporations, Harry G. Henn, 2d ed. 1970
3. Cyclopedia of the Law of Private Corporations, William Fletcher, Rev. ed. 1969
4. CRS, Colorado Revised Statutes and Colorado Constitution
5. Court cases, as cited
6. Van Alstyne’s Notary Public Encyclopedia, Peter J. Van Alstyne, 1st ed. 2001
7. Treatise on Law of Public Offices, Mechem, 1890