Joseph Chapo, Sherry Chapo, and Deputy Big Shot, LLC v. Jefferson County Plan Commission ( 2021 )

FILED
Jan 22 2021, 9:10 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Charles E. McFarland R. Patrick Magrath
New Castle, Kentucky Alcorn Sage Schwartz &
Magrath, LLP
John R. Vissing
Madison, Indiana
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph Chapo, Sherry Chapo, January 22, 2021
and Deputy Big Shot, LLC, Court of Appeals Case No.
Appellants-Defendants, 20A-CT-1197
Appeal from the
v. Jefferson Circuit Court
The Honorable Sally A.
Jefferson County Plan McLaughlin, Special Judge
Commission, Trial Court Cause No.
Appellee-Plaintiff 39C01-1605-CT-380
Vaidik, Judge.
Case Summary
[1] In 2016, the Jefferson County Planning Commission (“JCPC”) sued Joseph
and Sherry Chapo and Deputy Bigshot, LLC (hereinafter “the Chapos”),
alleging they were violating a zoning ordinance. The trial court granted a
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preliminary injunction against the Chapos and later found them in contempt for
violating the preliminary injunction. Thereafter, the Chapos discovered the
JCPC members had not taken an oath before assuming office and moved for
relief from judgment based on Indiana Code section 5-4-1-1, which requires
“officers” to take an oath to support the United States and Indiana
Constitutions before entering office. The Chapos asserted the JCPC members
were officers required by Section 5-4-1-1 to take an oath and their failure to do
so made the office vacant, which in turn meant the JCPC lacked standing to
sue, the preliminary injunction and contempt orders were void, and the case
should be dismissed. The trial court denied the motion, and the Chapos appeal.
[2] We affirm, concluding while the JCPC members are officers required to take an
oath under Section 5-4-1-1, their failure to do so here did not invalidate the
JCPC’s actions because the members acted as de facto officers.
Facts and Procedural History
[3] In May 2016, the JCPC filed a complaint against the Chapos, alleging they
were violating a zoning ordinance by maintaining a shooting range on their
property. In January 2017, the trial court granted the JCPC’s request for a
preliminary injunction against the Chapos. Later that month, the Chapos filed
an interlocutory appeal of the preliminary injunction. In October, while the
appeal was still pending, the trial court found the Chapos in contempt for
continuing to operate the shooting range despite the preliminary injunction.
The trial-court proceedings were then stayed pending the outcome of the
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appeal. In May 2018, this Court affirmed the grant of the preliminary
injunction, and in November the Indiana Supreme Court denied transfer.
Proceedings began again in the trial court, with the Chapos moving for
judgment on the pleadings in February 2019.
[4] In April, while that motion was still pending, the Chapos discovered the JCPC
members had not taken and filed oaths of office. The Chapos then moved for
relief from judgment under Indiana Trial Rule 60(B)(6), arguing the JCPC
members’ failure to take and file oaths violated Section 5-4-1-1 and made the
offices vacant under Indiana Code section 5-4-1-1.2, which meant the JCPC
lacked standing to file the original suit, the trial court’s January and October
2017 orders are void, and the entire case should be dismissed.1 A hearing on all
pending motions—including the motion for relief—was held in July 2019. In
November, the trial court issued an order which, in part, denied the Chapos’
motion for relief.
[5] The Chapos now appeal.
Discussion and Decision
[6] The Chapos argue the JCPC members’ failure to take and file the required oath
means the JCPC lacked standing to sue and therefore the trial court lacked
1
While the Chapos’ Rule 60(B) motion requests relief only from the October 2017 order, at the hearing the
Chapos clarified they were also requesting relief from the January 2017 order.
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authority to act, the January and October 2017 orders are void, and the case
must be dismissed. Under Rule 60(B)(6), the trial court may relieve a party from
a judgment if “the judgment is void[.]” A Rule 60(B) motion alleging a
judgment is void requires no discretion by the trial court because the judgment
is void or valid and, thus, our review is de novo. Koonce v. Finney, 68 N.E.3d
1086, 1090 (Ind. Ct. App. 2017), trans. denied.
[7] The Chapos first contend the oath required by Section 5-4-1-1 applies to
members of the JCPC. We agree. Title 5 governs state and local administration,
and Article 4 governs officers’ bonds and oaths. The statute provides, in
relevant part:
(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.
Ind. Code § 5-4-1-1(a) (emphasis added). No definition of the term “officer” is
included in the statute. When the legislature has not defined a word, we give
the word its common and ordinary meaning. Vanderburgh Cnty. Election Bd. v.
Vanderburgh Cnty. Democratic Cent. Comm., 833 N.E.2d 508, 510 (Ind. Ct. App.
2005). Black’s Law Dictionary defines “officer” as one “who holds an office of
2
The exception provided for in subsection (c) applies to “a deputy of a political subdivision.” Ind. Code § 5-
4-1-1(c). As the JCPC members are not deputies, the exception is not relevant here.
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trust, authority, or command.” Black’s Law Dictionary 1257 (10th ed. 2019). And
“office” is defined as a “position of duty, trust, or authority, especially one
conferred by a governmental authority for a public purpose.” Id at 1254. This
definition follows the few prior holdings on the statute. We have held law-
enforcement officers are “officers” under Section 5-4-1-1 because they “hold
positions of substantial public responsibility.” State v. Oddi-Smith, 878 N.E.2d
1245, 1248 (Ind. 2008); see also Fields v. State, 91 N.E.3d 597, 600 (Ind. Ct. App.
2017), trans. denied.
[8] However, the JCPC argues this definition sweeps too “broadly” and we should
apply the statute to only “officials recognized by Indiana’s Constitution and/or
statute, and deputies appointed or hired by those elected officials.” Appellee’s
Br. p. 24. However, we see no indication the legislature intended the term
“officer” to be limited in this way. As such, we give the term its ordinary—
albeit broad—meaning. And under that meaning, the JCPC members are
officers. The JCPC is a plan commission established by Indiana law, see Ind.
Code § 36-7-4-208, whose members “exercise planning and zoning powers” for
the purpose of “improv[ing] the health, safety, convenience, and welfare of their
citizens and to plan for the future development of their communities,” Ind.
Code § 36-7-4-201. Therefore, members of the JCPC are officers under the
statute—and required to take the oath—because they hold positions of
authority and exercise governmental powers to benefit the public.
[9] Nonetheless, the JCPC contends their failure to take and file the required oath
does not mean they lacked standing because “the JCPC members qualified as
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‘de facto’ officers, thereby the JCPC’s decision to pursue injunctive relief was
legally valid and not subject to collateral attack.” Appellee’s Br. p. 11. We
agree. “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.”
Ryder v. United States, 515 U.S. 177, 180 (1995). “This 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 title to office.” Fields,
91 N.E.3d at 600 (quotation omitted). In Indiana, 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. Carty v. State,
421 N.E.2d 1151, 1154 (Ind. Ct. App. 1981). “The authority of a de facto
official cannot be collaterally attacked.” Id.[10] Failing to take the oath required by Section 5-4-1-1 is a “technical defect.”
Fields, 91 N.E.3d at 600. Therefore, to determine if the JCPC members acted as
de facto officers, we apply the three-pronged Carty test—whether the JCPC
members (1) claimed the offices, (2) were in possession of the offices, and (3)
performed the duties under color of title. The JCPC members each claimed the
offices on the date of their appointment. See Appellee’s App. Vol. IV pp. 178-83.
They thereafter possessed the offices. Each performed the duties of a JCPC
member by publicly attending meetings, voting on issues, and holding
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themselves out as members of the JCPC. See Appellee’s App. Vol. III pp. 179,
198. And the JCPC members had color of title. “‘Color’ legally means an
appearance, semblance or an apparent right.” Hendrickson v. State, 253 Ind. 396,
254 N.E.2d 311, 333 (1970). JCPC members are appointed under Indiana Code
section 36-7-4-208. And notably, the Chapos make no argument the JCPC
members here were not properly appointed. See Appellant’s Br. p. 26. As such,
they had an apparent right to the offices. See City of Terre Haute v. Burns, 69 Ind.
App. 7, 116 N.E. 604, 607 (1917) (“Where one is actually in possession of a
public office, and discharging the duties thereof, the color of right which
constitutes him a de facto officer may consist in an election or appointment . . .
.”). Accordingly, we conclude they were acting as de facto officers when the
lawsuit against the Chapos was filed.
[11] The Chapos argue the JCPC members “were usurpers and not entitled to the
status of de facto officers[.]” Appellant’s Reply Br. p. 9. To be sure, a usurper
cannot be a de facto officer. Morten v. City of Aurora, 96 Ind. App. 203, 182 N.E.
259, 262 (1932). But a usurper is “one who intrudes himself into an office which
is vacant, or ousts the incumbent, without any color of title[.]” Id. (citation
omitted). And here, the JCPC members were appointees with color of title, as
explained above. They are not usurpers.
[12] The Chapos also assert the JCPC members are not de facto officers because
their failure to take and file the required oath made the offices vacant. See Ind.
Code § 5-4-1-1.2 (stating if an individual appointed or elected to an office of a
political subdivision does not comply with the oath requirement within thirty
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days of taking office, the office becomes vacant). But a vacancy in an office
does not preclude de facto status. See United States v. Royer, 268 U.S. 394, 397-98
(1925) (finding claimant a de facto officer of a vacant office).
[13] 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.” Fields, 91 N.E.3d at 601.
[14] We therefore affirm the trial court’s denial of the Chapos’ motion for relief from
judgment.
[15] Affirmed.
Bailey, J., and Weissmann, J., concur.
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