De Facto Doctrine

The de facto doctrine (aka, “de facto officer doctrine”) validates, on grounds of public policy and prevention of a failure of public justice, the acts of an official who functions under color of law even though it is later discovered that the legality of that person’s appointment or election to office is deficient.  “The de facto 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.”  63A Am. Jur. 2d, Public Officers and Employees § 578, pp. 1080-1081 (1984).

“A person will be held to be de facto officer when, and only when, he is in possession, and is exercising the duties, of an office; his incumbency is illegal in some respect; he has at least a fair color of right or title to the office, or has acted as an officer for such a length of time, and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action; and, in some, although not all, jurisdictions, only when the office has a de jure existence.”  45 CJ, Officers § 366, p. 1053.

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