U.S. v. Jones, 74 M.J. 95

First Principles: Constitutional Matters: Generally

1. 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 the office is deficient; the doctrine does not apply when the officer’s deficiency is fundamental
2. in this case, a judge on the CCA was purportedly appointed as an appellate military judge first by the Judge Advocate General of the Air Force, and then by the Secretary of Defense; these appointments were invalid under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2; because the defect in this appointment was not merely technical, but fundamental, the de facto officer doctrine cannot apply; defects that are “merely technical” and may be forfeited if not timely raised; however, those defects that embody a strong policy concerning the proper administration of judicial business are not forfeited if not timely raised; here, the error was of constitutional dimensions - certainly “fundamental” by any reckoning
3. where the purported appointment of an appellate military judge by the Secretary of Defense was wholly without statutory authority because such an appointment was required to be made by the President, with Senate advice and consent, as provided in the Appointments Clause, the appointment was in fundamental constitutional error; as such, neither forfeiture nor the de facto officer doctrine applied

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. 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 doctrine does not apply when the officer’s deficiency is fundamental
2. in this case, a judge on the CCA was purportedly appointed as an appellate military judge first by the Judge Advocate General of the Air Force, and then by the Secretary of Defense; these appointments were invalid under the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2; because the defect in this appointment was not merely technical, but fundamental, the de facto officer doctrine cannot apply; defects that are “merely technical” and may be forfeited if not timely raised; however, those defects that embody a strong policy concerning the proper administration of judicial business are not forfeited if not timely raised; here, the error was of constitutional dimensions - certainly “fundamental” by any reckoning
3. where the purported appointment of an appellate military judge by the Secretary of Defense was wholly without statutory authority because such an appointment was required to be made by the President, with Senate advice and consent, as provided in the Appointments Clause, the appointment was in fundamental constitutional error; as such, neither forfeiture nor the de facto officer doctrine applied