Baker v. State

BELL, C.J. The issue in this case is whether, pursuant to a collateral attack, we should vacate as illegal, the sentence of a judge, who was appointed pursuant to the Maryland Constitution and duly elected to the Circuit Court for Harford County, but who ⁵⁶⁹ may have lived outside of Harford County for a period of time during his term, in contravention to the residency requirements for state judges enumerated in the Maryland Constitution. The Circuit Court for Harford County denied the petitioner’s motions attacking the of the Circuit Court judge in this case. We shall affirm. I. Neither the facts underlying the petitioner’s conviction, nor the procedural history of the case is relevant to the disposition of the case sub judiee, except to the extent that they elucidate the timing and measure of the involvement of the particular judge whose judicial acts are at issue in this case. 1 This issue at bar arose following the petitioner’s murder trial. ⁵⁷⁰ After a jury convicted the petitioner, Wesley Eugene Baker, Harford County Circuit Court Judge, Cypert 0.

Whitfill, sentenced him to death. 2 Following an unsuccessful direct appeal and unsuccessful collateral attacks on the judgment, Judge Whitfill signed a warrant of execution directing that the petitioner be executed during the week of May 13, 2002. Subsequently, the petitioner filed motions in the Circuit Court for Harford County to quash Judge Whitfill’s sentence and execution warrant. He alleged that the warrants had been issued without jurisdiction. 3 More particularly, he maintained ⁵⁷¹ that Judge Whitfíll was not constitutionally qualified to preside at the petitioner’s trial for first degree murder, or to sign the warrant for the petitioner’s execution because, although appointed to the Harford County bench pursuant to the Maryland Constitution and duly elected by the voters of that county, Judge Whitfíll lost his jurisdiction to preside over cases in Harford County when he changed his actual residence from Harford County to Baltimore County for some period during his term. Specifically, the petitioner alleged that, at some point prior to the petitioner’s trial, Judge Whitfíll ceased to meet the residency requirements imposed upon State judges by Article IV, Section 2 of the Maryland Constitution. 4 Thus, the petitioner maintained, the sentence Judge Whitfíll imposed on him was “illegal,” at the time of its imposition.

Although the petitioner conceded that Judge Whitfill’s alleged change in residence occurred prior to his trial and conviction, he argued nevertheless that the change “divested [Judge WTiitfill] of the judicial power and authority to preside over the Sentencing Hearing on October 26, 1992.” The matter was assigned to the Honorable John G. Turn-bull, II, of the Circuit Court for Baltimore County, who denied ⁵⁷² the petitioner’s motions without a hearing. The petitioner noted an appeal to the Court of Special Appeals. Prior to any proceedings in the intermediate appellate court, the case was transferred to this Court, pursuant to Md.Code (1973, 2002 Repl.Vol.) § 12-307 of the Courts and Judicial Proceedings Article 5 and Maryland Rule 8-132. 6 In this Court, the petitioner maintains that although Judge Whitfill was a resident of Harford County during his trial, his sentencing and all times thereafter, Judge Whitfíll’s earlier change of residence from Harford County to Baltimore County divested him of his judicial authority immediately upon its occurrence and by operation of law. The petitioner insists that the Judge’s judicial authority could not be regained by simply reestablishing a residence in Harford County.

In support of his position, the petitioner relies upon this Court’s precedents regarding challenges to the constitutional residency requirements of non-judicial elected officials. See generally, Oglesby v. Williams, 372 Md. 360 , 812 A.2d 1061 (2002); Stevenson v. Steele, 352 Md. 60 , 720 A.2d 1176 (1998); Blount ⁵⁷³ v. Boston, 351 Md. 360 , 718 A.2d 1111 (1998); Bainum v. Kalen, 272 Md. 490 , 325 A.2d 392 (1974). The respondent rejoins that there is no support for the petitioner’s argument, and that the fact that Judge Whitfill may have, temporarily maintained a residence in Baltimore County, rather than Harford County, did not evince any intent to abandon his Harford County domicile. The respondent also relies on the “de facto officer” doctrine.

Directing our attention to Nguyen v. U.S., — U.S. -, 123 S.Ct. 2130 , 156 L.Ed.2d 64 (2003), then under review, and, subsequently decided by the United States Supreme Court, the State argues that, under the de facto officer doctrine, the acts of public officials acting under color of title are presumed to be valid even if it is later discovered that there are deficiencies in the official’s appointment or election to office. Thus, the State asserts that a defect in Judge Whitfill’s judicial authority may not be challenged in post-conviction proceedings. Consequently, the State maintains that the petitioner has missed his opportunity to challenge the alleged defect.

II

Neither party disputes that Judge Whitfill was qualified for, and duly elected to the office of judge of the Circuit Court for Harford County when he presided and imposed sentence in the petitioner’s case. Therefore, the only question before this Court concerns how a fully qualified and validly elected judge may be removed from office, or be found to have vacated the office. Accordingly, we must decide whether Judge Whitfill’s exercise of judicial authority may be collaterally attacked in a post-conviction proceeding. The Maryland Constitution vests “[t]he judicial power of this State in a Court of Appeals, such intermediate courts of appeal as the General Assembly may create by law, Circuit Courts, Orphans’ Courts, and a District Court.” See Article IV, Section 1 of the Maryland Constitution.

Article IV also delineates the constitutional qualifications of judges. See Article IV, Section 2 of the Maryland Constitution, note 4 supra. ⁵⁷⁴ Moreover, the Constitution addresses the grounds and procedures for removal of judges. Article 33 of the Maryland Declaration of Rights of the Maryland Constitution expressly proscribes the removal of judges “except in the manner, and for the causes provided in this Constitution.” Article IV, Section 4 enumerates the grounds and procedures for said removal, providing: Section 4. Grounds and procedure for removal of judges “Any Judge shall be removed from office by the Governor, on conviction in a Court of Law, of incompetency, of wilful neglect of duty, misbehavior in office, or any other crime, or on impeachment, according to this Constitution, or the Laws of the State; or on the address of the General Assembly, two-thirds of each House concurring in such address, and the accused having been notified of the charges against him, and having had opportunity of making his defence.” Section 5 of the same article states, in relevant part, that a Circuit Court judge “shall hold the [office of Circuit Court judge] until the election and qualification of his successor.” Md. Const., Art. 4, § 5.

Significantly, there is no constitutional provision that provides that the judges of this State may be divested of judicial authority by operation of law or that permits collateral attack on the authority of a judge based solely on that judge’s change of residence. As early as 1886, the United States Supreme Court recognized that the acts of public officials acting under color of title are presumed to be valid, even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 441-42 , 6 S.Ct. 1121, 1125 , 30 L.Ed. 178, 186 (1886). As the Court explained: “[t]he doctrine which gives validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby.

Offices are created for the benefit of the public, and private ⁵⁷⁵ parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law, their title is investigated and determined. It is manifest that endless confusion would result if in every proceeding before such officers their title could be called in question.” Id. The Court also recognized, however, that the doctrine was not absolute, pointing out that “the idea of an officer implies the existence of an office which he holds.

It would be a misapplication of terms to call one an ‘officer’ who holds no office, and a public office can exist only by force of law.” Id. In Norton , the dispositive issue was whether the statutorily created Tennessee Board of Commissioners had the legal authority to issue bonds to finance a county subscription to the Mississippi River Railroad Company. Prior to the passage of the act empowering county commissioners to issue the bonds, that authority resided with the county court and the justices of the peace. The Supreme Court of Tennessee held that the act creating the Board of Commissioners and conferring on the commissioners the powers of the justices of the peace was unconstitutional and void.

The United States Supreme Court affirmed, holding that the commissioners could not appropriately carry out actions that were exclusively constitutionally reserved for justices of the peace. To that end, the Court reasoned: “[F]or the existence of a de facto officer, there must be an office de jure.... Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached; and such, in our judgment, was the position of the commissioners of Shelby County who undertook to act as the county court, which could be constitutionally held only by justices of the peace. Their right to discharge the duties of justices of the peace was never recognized by the justices, but from the outset was resisted by legal proceedings, which terminated in an adjudication ⁵⁷⁶ that they were usurpers, clothed with no authority or official function.” Id. at 449 , 6 S.Ct. at 1129 , 30 L.Ed. at 188 .

The Supreme Court applied the de facto officer doctrine it had enunciated in Norton , in Ball v. United States, 140 U.S. 118 , 11 S.Ct. 761 , 35 L.Ed. 377 (1891). The issue in that case was whether the official acts of a de facto judge can be collaterally attacked. In Ball , a federal district judge from the Western District of Louisiana was assigned to sit in the Eastern District of Texas for the resident judge, who had fallen ill and subsequently died. The circuit judge who appointed him duly filed with the court clerk the appointment certificate required by law, which enumerated that the federal District Judge would serve for the then-current November 1888 term and the pending 1889 terms.

Id. at 127 , 11 S.Ct. at 764 , 35 L.Ed. at 381-82 . After the 1888 and 1889 terms expired, however, the replacement judge continued to sit in the Eastern District of Texas without official written authority. Three defendants convicted of murder and sentenced to death after trials in the Eastern District of Texas challenged the authority of the judge, contending that he had not been officially appointed. The Supreme Court rejected the challenge.

The Court determined, as to the term for which there was no new appointment filed, that the assigned judge “was a judge defacto, if not de jure, and his acts as such are not open to collateral attack.” 140 U.S. at 128-129 , 11 S.Ct. at 765 , 35 L.Ed. at 382 . Similarly, in McDowell v. United States, 159 U.S. 596 , 16 S.Ct. 111 , 40 L.Ed. 271 (1895), the defacto officer doctrine was applied to resolve the issue of whether “the power of a Circuit Judge or Justice to call one District Judge from his own into another district ... extend[s] to cases in which there is a vacancy in the office of judge of the latter district.” Id. at 598 , 16 S.Ct. at 111 , 40 L.Ed. at 272 . In that case, a district judge from another district in the Fourth Circuit was temporarily assigned to fill a vacancy in the United States District Court for the District of South Carolina until the vacancy was permanently filled. The Court determined that the assign ⁵⁷⁷ ment of the one district judge to sit in another district involved no “trespass upon the executive power of appointment,” id. at 598 , 16 S.Ct. at 112 , 40 L.Ed. at 272 , and, in any event, the assigned judge was a “judge de facto,” whose “actions as such, so far as they affect third persons, are not open to question.” Id. at 601 , 16 S.Ct. at 112 , 40 L. Ed at 272.

The Court elucidated: The time and place of a regular term of the District Court were fixed by law at Greenville, on the first Monday of February. Judge Seymour was a judge of the United States District Court, having all the powers attached to such office. He appeared at the time and place fixed by law for the regular term, and actually held that term. The Circuit Judge had, generally speaking, the power of designating the judge of some other district to do the work of the District Judge in this district.

The order of designation was regular in form, and there was nothing on its face to suggest that there was any vacancy in the office of District Judge for the District of South Carolina. Any defect in the order, if defect there was, is shown only by matters dehors the record. While this may not be conclusive, it strongly sustains the contention of the government that Judge Seymour was, while holding that term, at least a judge de facto. Whatever doubt there may be as to the power of designation attaching in this particular emergency, the fact is that Judge Seymour was acting by virtue of an appointment, regular on its face, and 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.

Of course, if he was judge de facto his orders or the continuance of the term from day to day until February 12, when the regular judge took his place upon the bench, were orders which cannot be questioned, and the term was kept alive by such orders until Judge Brawley arrived. Id. at 601-602 , 16 S.Ct. at 113 , 40 L.Ed. at 273-74 . Along the same lines, in Ex Parte Ward, 173 U.S. 452 , 19 S.Ct. 459 , 43 L.Ed. 765 (1899), a petitioner sought habeas ⁵⁷⁸ corpus relief, challenging the authority of the judge that sentenced him on the grounds that the judge’s appointment during a Senate recess was improper. The Court denied relief, holding that “the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked.” Id. 173 U.S. at 456 , 19 S.Ct. at 460, 43 L.Ed. at 766.

The Court declined to address the petitioner’s constitutional arguments on the “well settled rule ... that where a court has jurisdiction of an offence, and of the accused, and the proceedings are otherwise regular, a conviction is lawful although the judge holding the court may be only an officer de facto; and that the validity of the title of such judge to the office, or his right to exercise the judicial functions, cannot be determined on a writ of habeas corpus.” Id. at 454, 19 S.Ct. at 460, 43 L.Ed. at 766. On the other hand, when the authority of the public official is raised before the official acts or on direct review, the Supreme Court has reached a different conclusion. Ryder v. United States, 515 U.S. 177 , 115 S.Ct. 2031 , 132 L.Ed.2d 136 (1995). Thus, in Ryder , where the defendant challenged, while his case was pending, the assignment of two civilian judges to his three-judge Coast Guard Court Military Review panel, the Court rejected the application of the de facto officer doctrine and entertained the challenge.

Acknowledging the Court’s reliance upon the doctrine “in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceeding leading to their conviction and sentence,” id. at 181 , 115 S.Ct. at 2034 , 132 L.Ed.2d at 142 , the Court determined that the doctrine was inapplicable because the defendant promptly objected to the composition of the Coast Guard Court of Military Review. Id. at 182 , 115 S.Ct. at 2035 , 132 L.Ed.2d at 143 . Unlike the defendants in Ball, McDowell and Ward, the Court explained, Ryder directly challenged the composition of the three judge panel while his case was pending before that very court. Id.

The Court then agreed with Ryder that the composition of the three-judge panel violated the Appointment Clause of Article ⁵⁷⁹ II of the United States Constitution. Id. at 187-88, 115 S.Ct. at 2038 , 132 L.Ed.2d at 146-47 . Most recently, the Supreme Court has stated that it will not apply the de facto officer doctrine when the error results not from an irregularity in an otherwise proper judicial designation, but from one that is statutorily impermissible. Nguyen v. United States, — U.S.-,-, 123 S.Ct. 2130, 2131 , 156 L.Ed.2d 64, 72 (2003).

Nguyen was an appeal from convictions for federal narcotic offenses. The petitioners in that case objected to the assignment of an Article IV territorial court judge to their Court of Appeals panel; however, unlike the petitioner in Ryder , the petitioners in Nguyen did not object to the composition of the panel while their case was pending in the Court of Appeals, but raised the issue in their Petitions for Certiorari filed with the Supreme Court. The Government argued that the de facto officer doctrine applied and, therefore, the convictions should be upheld. The Supreme Court disagreed.

Vacating the judgments of conviction, the Court acknowledged that “[t]ypically [it had] found a judge’s actions to be valid de facto when there is a merely ‘technical’ defect of statutory authority,” id., at-, 123 S.Ct. at 2136 , 156 L.Ed.2d at 76 , quoting Glidden Co. v. Zdanok, 370 U.S. 530, 535 , 82 S.Ct. 1459 , 8 L.Ed.2d 671 (1962), but contrasted that general proposition with its determination “to correct, at least on direct review, violations of a statutory provision that embodies a strong policy concerning the proper administration of judicial business’ even though the defect was not raised in a timely manner.” Id., (quoting Glidden, supra, 370 U.S. at 536 , 82 S.Ct. at 1459 , 8 L.Ed.2d at 671 ). The Court explained: “In American Constr. Co. v. Jacksonville, T & K W R Co., 148 U.S. 372 , 13 S.Ct. 758 , 37 L.Ed. 486 (1893), the case Justice Harlan cited for this proposition in Glidden, a judgment of the Circuit Court of Appeals was challenged because one member of that court had been prohibited by statute from taking part in the hearing and decision of the appeal. This Court succinctly observed: ‘If the statute made him incompetent to sit at the hearing, the decree in which he took part was unlawful, and perhaps absolutely ⁵⁸⁰ void, and should certainly be set aside or quashed by any court having authority to review it by appeal, error or certiorari.’ Id., at 387 , 13 S.Ct. 758 , 37 L.Ed. 486 .

The American Constr. Co. rule was again applied in William Cramp & Sons Ship & Engine Building Co. v. International Curtiss Marine Turbine Co., 228 U.S. 645 , 33 S.Ct. 722 , 57 L.Ed. 1003 (1913), even though the parties had consented in the Circuit Court of Appeals to the participation of a District Judge who was not permitted by statute to consider the appeal. Id., at 650 , 33 S.Ct. 722 . Rather than sift through the underlying merits, we remanded the case to the Circuit Court of Appeals ‘so that the case may be heard by a competent court, [organized] conformably to the requirements of the statute.’ Id., at 651 , 33 S.Ct. 722 , 57 L.Ed. 1003 .

See also Moran v. Dillingham, 174 U.S. 153, 158 , 19 S.Ct. 620 , 43 L.Ed. 930 (1899) (‘This court, without considering whether that decree was or was not erroneous in other respects, orders the Decree of the Circuit Court of Appeals be set aside and quashed, and the case remanded to that court to be there heard and determined according to law by a bench of competent judges.... ’).” Nguyen , — U.S. at-, 123 S.Ct. at 2136 , 156 L.Ed.2d at 76-77 . The Court drew a distinction between its decisions in McDowell and Ball and its decision in Nguyen reasoning that, in McDowell and Ball , the judges were constitutionally qualified to preside over the involved proceedings and the error in those cases were “technical” in nature. Id. at 2137, 156 L.Ed.2d at 77 . By contrast, the Court reasoned that because Congress did not contemplate the assigning of an Article IV judge to an Article III Appellate Panel, the inclusion of the Article IV judge in Nguyen was inherently improper and thus, the panel lacked jurisdiction to decide that appellant’s appeal.

To that end, the Court stated that “[t]he difference between the irregular judicial designations in McDowell and Ball and the impermissible panel designation in the instant cases is therefore a difference between an action which could have been taken, if properly pursued, and one which could never have been taken at all.” Id. ⁵⁸¹ This Court has also applied the de facto officer doctrine in connection with judicial and other government officials. In Izer v. State, 77 Md. 110 , 26 A. 282 (1893), at issue was the validity of the oath administered to the accused by the deputy clerk of the Allegany County Circuit Court. Particularly, the petitioner alleged that the clerk had neither been reappointed to the office, nor administered a new oath of office. Upholding the validity of the oath the clerk administered, we explained: “Of course, if Izer was never legally sworn to give testimony before the grand jury, no false statement made by him before that body could constitute indictable perjury; and if Williamson had no authority to administer to Izer the oath he did administer, Izer was not legally sworn.

But Wlliamson was then in the undisputed possession of the office of deputy clerk and since 1886 had openly and notoriously discharged the duties pertaining thereto. He was at least a de facto officer, filling a de jure office, and whatever defects or irregularities there may have been in the manner of his appointment or qualification, his acts, done under color of title, are, upon grounds of public policy and necessity, valid and binding.” Norton v. Shelby County, 118 U.S. 425 , 6 S.Ct. 1121 , 30 L.Ed. 178 . Or, as was said in Carleton v. The People, 10 Mich. 250 : “All that is required when there is an office, to make an officer de facto, is that the individual claiming the office is in possession of it, performing its duties and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary that his election or appointment be valid, for that would make him an officer de jure.

The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact.” See also, State v. Carroll, 38 Conn. 449 ; Clark v. Commonwealth, 29 Pa. 129 ; Sheehan’s Case, 122 Mass. 445 ; State v. Speaks, 95 N.C. 689 .” Id. 77 Md. at 115 , 26 A. at 283-84 . In 1938, this Court was asked to determine whether a writ of mandamus commanding a justice of the peace to vacate his ⁵⁸² office should issue. Kimble v. Bender, 173 Md. 608 , 196 A. 409 (1938). We concluded that, pursuant to Article 3, Section 17 of the Maryland Constitution, 7 Kimble was ineligible for appointment to the office of justice of the peace because he had been a member of the State Senate when the legislation creating the office was enacted.

Accordingly, this Court affirmed the trial court’s issuance of the writ. Id. at 622 , 196 A. at 415 . Nevertheless, the Court addressed the validity of Kimble’s official actions while acting as a justice of the peace: “The appointment of an ineligible person is a nullity, except that the official acts of such a person are regarded as the acts of an officer de facto. So the official acts of the ineligible respondent, who has acted as a justice of the peace at large under a valid act but under an invalid appointment, are the acts of a defacto officer, whose official acts, if otherwise lawful, and until the respondent’s title is adjudged insufficient, are as valid and effectual, where they concern the public or the rights of third persons, as though he were an officer de jure.

State v. Fahey, 108 Md. 533, 538, 539 , 70 A. 218 [, 220 (1908) ]; Koontz v. Burgess ad Commrs. of Hancock, 64 Md. 134, 136 , 20 A. 1039 [ (1885) ]; Izer v. State, 77 Md. 110, 115 , 26 A. 282 [, 283 (1893) ]; Claude v. Wayson, 118 Md. 477 , 84 A. 562 . [ (1912) ].” Id. at 622-23 , 196 A. at 415-16 . 8 See also, Hendershott v. Young, 209 Md. 257, 260-61 , 120 A.2d 915, 916-17 (1956), in which this Court observed: ⁵⁸³ “Open to very serious doubt is whether petitioner could challenge by habeas corpus the authority of the justice of the peace to act since he acted under color of title to a constitutional office and no court had declared that he was not legally able to do so, under the provisions of Chap. 321, § 5 of the Acts of 1927, codified as § 598 of the Code of Public Laws of Montgomery County (Flack, 1947), or otherwise. There are many decisions by able courts, holding that habeas corpus will not issue to challenge the effect or results of the action of a de facto judicial officer, including a justice of the peace. It may well be that the committing magistrate, who acted in the case before us, if not a de jure ⁵⁸⁴ officer — as to which we express no opinion — was, at least, a de facto officer. Constitution of Maryland, Art. 4, § 42.” Id.

See also Quenstedt v. Wilson, 173 Md. 11, 14-21 , 194 A. 354, 355-59 (1937) (habeas corpus relief proper where “police justice” was validly appointed, but the new court created by the Legislature was unconstitutional). In Ralph v. Brough, 248 F.Supp. 334 (D.Md.1965), the United States District Court for the District of Maryland recognized the de facto officer doctrine in the context of a Maryland Death penalty case. There, the petitioner, Ralph challenged the authority of his trial court on the basis that the jurors and judges had been required to declare a belief in God when they took their required oaths in contravention of Schowgurow v. State, 240 Md. 121 , 213 A.2d 475 (1965), and State v. Madison, 240 Md. 265 , 213 A.2d 880 (1965). Following Smith v. Brough, 248 F.Supp. 435 (D.Md.1965), the court held that refusal to apply Schowgurow and Madison “retroactively, except for convictions which had not become final before the rendition of the Schowgurow opinion, did not violate any provision of the Fourteenth Amendment or any other provision of the Federal Constitution,” id. at 335, and that the judges were de jure judges.

Id. at 336. The court went on to say that even if the oath raised questions as to the judges’ qualifications, the judges were nonetheless de facto judges. “Even if they were not de jure judges, they met all the tests of de facto judges. The general rule with respect to the validity of the official acts of de facto judges is set out in. 30A Am.Jur., Judges, § 234, as follows: ‘It is the general rule that acts performed by a de facto judge are not invalid. A judge de facto is, to all intents and purposes, a judge de jure as to all persons except the state.

Thus, the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned, and their validity may not be collaterally attacked.’ In McDowell v. United States, 159 U.S. 596 , 16 S.Ct. 111, 112 , 40 L.Ed. 271 (1895), the Supreme Court stated: ‘Judge Seymour must be ⁵⁸⁵ held to have been a judge de facto, if not a judge de jure, and his actions as such, so far as they affect third persons, are not open to question.’ ” Id. at 336. (Some citations omitted). Courts in other States that have addressed the issue have reached similar results. See e.g., Gates v. City of Tenakee Springs, 954 P.2d 1035, 1038-1039 (Alaska 1998) (de facto doctrine applies even when judge no longer a resident of State, a statutory requirement for Alaska judges); People v. Owers, 29 Colo. 535 , 69 P. 515 , 519 (1902) (although residency requirement is mandatory, judge should be removed from office only upon “substantial misconduct on his part”); State v. Carroll, 38 Conn. 449, 455 (1871) (where judge lawfully appointed becomes unqualified, “the defect, if it be one, is a defect of qualification in the officer, by reason of an omission of his, or of the clerk, and is not of a character to prevent his acts from being valid as the acts of an officer defacto, whether the law under which he was called in was constitutional or not.”); State v. Whelan, 103 Idaho 651 , 651 P.2d 916, 920 (1982) (“A de facto officer performs his duties under color of right of an actual officer qualified in law so to act, both being distinguished from the mere usurper who has neither lawful title nor color of right.”); Cleary v. Chicago Title and Trust Company, 4 Ill.2d 57 , 122 N.E.2d 227, 228 (1954) cert.