What Does it Mean When a Judge Fails to File His Oath?

Posted on: April 22, 2010 by: admin

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Defendant nevertheless argues that the trial court lacked jurisdiction and his convictions are void because, even if Judge Quinn presided under a current and valid oath of office, he failed to file his oath of office with the secretary of state. We disagree.

[115] District court judges are required by art. XII, ยง 9 of the Colorado Constitution to “file their oaths of office with the secretary of state.” See also Chief Justice Directive 85-25. Though the People argue that this requirement did not apply to Judge Quinn because he was a “senior” judge rather than a “district court” judge, we will assume that the requirement was applicable to Judge Quinn.

[116] However, even assuming such a filing requirement, when a public officer signs a valid oath of office but misses the deadline for filing the oath with the secretary of state, the officer still possesses the authority to carry out his or her duties as a de facto officer. People v. Scott, 116 P.3d 1231, 1232-33 (Colo. App. 2004); see also Nguyen v. United States, 539 U.S. 69, 77-78, 123 S.Ct. 2130, 2135-36, 156 L.Ed.2d 64 (2003) (when a legal deficiency in a judge’s appointment is merely technical, a properly appointed judge still acts under valid de facto authority); Relative Value Studies, Inc. v. McGraw-Hill Cos., 981 P.2d 687, 688 (Colo. App. 1999) (“a properly appointed judge, despite even a conceded violation of [a] constitutional . . . requirement, does not lose his or her authority to act as judge merely because of the violation”). Thus, any failure to file Judge Quinn’s oath of office with the secretary of state did not deprive the court of jurisdiction.

I suggest filing a quo warranto against your judge and then moving to disqualify him/her on the basis that he/she is a party to a pending proceeding that you will likely succeed at. My quo warranto package, including sample forms and authority is here.

From People v. Stanley, No. 04CA2164 (Colo.App. 04/05/2007)

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