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

• Court: Indiana Court of Appeals
• Decided: January 22, 2021
• Docket: 20A-CT-1197
• Status: Published

Opinion

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

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 1 of 8 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

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 2 of 8 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.

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 3 of 8 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.

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 4 of 8 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

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 5 of 8 ‘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

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 6 of 8 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

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 7 of 8 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.

Court of Appeals of Indiana | Opinion 20A-CT-1197 | January 22, 2021 Page 8 of 8