OPINION
BRYNER, Chief Judge.
In this case, we are called upon to decide the validity of indictments issued by a grand jury when an appropriate oath was not administered to several of its members before those indictments were issued. We conclude that, under the circumstances of this case, individuals serving on the grand jury who had not taken the oath of office were nonetheless
de facto
members of the jury and that, therefore, their participation in the grand jury proceedings was not improper.
FACTS
A grand jury was convened in Anchorage on May 31, 1984, and sat during the months of July, August and September. During this time, the jury returned a number of indictments, nine of which are directly involved in this appeal. Apparently be
cause the presiding superior court judge in Anchorage was unavailable when the grand jury was first convened, the task of qualifying grand jurors was delegated to Superior Court Judge Karl Johnstone, who was not familiar with the procedure. Judge Johnstone first determined that all but one of the venirepersons present met the statutory qualifications for grand jurors;
the nonqualifying juror was excused. From the remaining group of venireper-sons, thirty-six jurors were selected at random to form two eighteen-member grand jury panels. At this point the entire ve-nire — including prospective jurors who were not among the thirty-six selected for the two panels but continued to be potential alternates — should have been given the oath prescribed by Criminal Rule 6(e).
Judge Johnstone, however, directed that the oath be administered only to the thirty-six individuals who had been selected to serve on the two panels. The potential alternates whose names had not been called did not receive the oath.
During grand jury sessions occurring over the following months, a number of the unsworn alternates were called upon to sit as members of the grand jury, replacing jurors who, for one reason or another, had been excused. On September 6, 1984, the district attorney’s office in Anchorage discovered that the prescribed oath of office had not been administered to these alternate grand jury members. The district attorney’s office subsequently filed with the superior court a motion for an
in camera
inspection of grand jury records, seeking permission to examine the “concurrence sheets” filed by the two grand jury panels in connection with indictments they had issued. Concurrence sheets are documents in which the grand jury is to record the number of jurors voting for and against indictment in individual cases. The sheets are routinely filed with the presiding judge of the superior court but cannot be made public except by order of the court. Alaska R.Crim.P. 6(g). By moving for examination of the concurrence sheets, the district attorney’s office sought to ascertain whether, discounting the votes of unsworn alternates, the number of votes cast by sworn grand jurors was sufficient to support the indictments issued by the two panels.
The state’s motion for an
in camera
inspection was granted by Superior Court Judge Ralph E. Moody.
When the grand jury’s concurrence sheets were opened, however, it was discovered that one of the panels had not recorded the number of jurors voting for
and against indictment in individual cases. Rather, the panel foreman had simply marked “X” next to the preprinted words “a true bill” on the concurrence sheet in each of the cases in which an indictment was issued.
Upon discovery of this irregularity, the district attorney’s office requested Judge Moody to extend the term of the grand jury panel, so that the panel could reconvene. The motion was granted, and the grand jury reconvened on October 8-10, 1984. During this special session, the grand jury, in an attempt to reconstruct its original votes, examined each of the forty-two cases in which it had issued indictments. The panel then filed with the superior court a special report, accompanied by sealed envelopes containing supplemental concurrence sheets for each case considered.
Subsequently, a number of individual defendants moved for dismissal, alleging that inclusion of unsworn jurors on the grand jury had tainted their indictments. The defendants further alleged that the grand jury’s failure to submit properly completed concurrence sheets in the first instance precluded later attempts to reconstruct grand jury voting patterns in individual cases. Judge Moody, in several separate cases raising the same issue, granted the motions to dismiss.
After moving unsuccessfully for reconsideration, the state filed this appeal.
ANALYSIS
On appeal, the state’s primary argument is that the alternate grand jurors who did not receive the oath required under Criminal Rule 6(e) were
de facto
grand jurors and that, therefore, their participation in deliberations and voting could not invalidate any indictment issued by the grand jury-
The defendants respond, first, that the
de facto
grand juror issue is not properly before this court, since the state failed to present it in a timely manner to the superi- or court. Second, the defendants claim that the
de facto
grand juror doctrine is inapplicable in this situation.
We reject at the outset the defendants’ claim that the
de facto
grand juror issue should not be considered by this court. Although the defendants are correct in pointing out that the argument was not raised by the state until it moved for reconsideration of Judge Moody’s original dismissal order and that Judge Moody declined to consider the argument because it was untimely, the question presented is purely one of law and not of fact; this court’s ability to review the issue on appeal is in no manner hampered by the trial court’s failure to address it. In this case, the state’s reliance on the
de facto
grand jury argument does not work an unfair surprise on the defendants, nor do we perceive any other prejudice that might result from consideration of the question. Under these circumstances we are not precluded from considering the state’s argument on its merits.
The principal question to be resolved, then, is whether the alternate grand jurors who had not been sworn were, nevertheless,
de facto
grand jurors. Generally, a
de facto
officer is one who:
[h]as the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. More particularly, a
de facto
officer is a person who is surrounded by the insignia of office and seems to act with authority or one who is exercising the duties of an officer under
a color of title, right, or authority, or under color of an appointment or election.
The
de facto
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OPINION
BRYNER, Chief Judge.
In this case, we are called upon to decide the validity of indictments issued by a grand jury when an appropriate oath was not administered to several of its members before those indictments were issued. We conclude that, under the circumstances of this case, individuals serving on the grand jury who had not taken the oath of office were nonetheless
de facto
members of the jury and that, therefore, their participation in the grand jury proceedings was not improper.
FACTS
A grand jury was convened in Anchorage on May 31, 1984, and sat during the months of July, August and September. During this time, the jury returned a number of indictments, nine of which are directly involved in this appeal. Apparently be
cause the presiding superior court judge in Anchorage was unavailable when the grand jury was first convened, the task of qualifying grand jurors was delegated to Superior Court Judge Karl Johnstone, who was not familiar with the procedure. Judge Johnstone first determined that all but one of the venirepersons present met the statutory qualifications for grand jurors;
the nonqualifying juror was excused. From the remaining group of venireper-sons, thirty-six jurors were selected at random to form two eighteen-member grand jury panels. At this point the entire ve-nire — including prospective jurors who were not among the thirty-six selected for the two panels but continued to be potential alternates — should have been given the oath prescribed by Criminal Rule 6(e).
Judge Johnstone, however, directed that the oath be administered only to the thirty-six individuals who had been selected to serve on the two panels. The potential alternates whose names had not been called did not receive the oath.
During grand jury sessions occurring over the following months, a number of the unsworn alternates were called upon to sit as members of the grand jury, replacing jurors who, for one reason or another, had been excused. On September 6, 1984, the district attorney’s office in Anchorage discovered that the prescribed oath of office had not been administered to these alternate grand jury members. The district attorney’s office subsequently filed with the superior court a motion for an
in camera
inspection of grand jury records, seeking permission to examine the “concurrence sheets” filed by the two grand jury panels in connection with indictments they had issued. Concurrence sheets are documents in which the grand jury is to record the number of jurors voting for and against indictment in individual cases. The sheets are routinely filed with the presiding judge of the superior court but cannot be made public except by order of the court. Alaska R.Crim.P. 6(g). By moving for examination of the concurrence sheets, the district attorney’s office sought to ascertain whether, discounting the votes of unsworn alternates, the number of votes cast by sworn grand jurors was sufficient to support the indictments issued by the two panels.
The state’s motion for an
in camera
inspection was granted by Superior Court Judge Ralph E. Moody.
When the grand jury’s concurrence sheets were opened, however, it was discovered that one of the panels had not recorded the number of jurors voting for
and against indictment in individual cases. Rather, the panel foreman had simply marked “X” next to the preprinted words “a true bill” on the concurrence sheet in each of the cases in which an indictment was issued.
Upon discovery of this irregularity, the district attorney’s office requested Judge Moody to extend the term of the grand jury panel, so that the panel could reconvene. The motion was granted, and the grand jury reconvened on October 8-10, 1984. During this special session, the grand jury, in an attempt to reconstruct its original votes, examined each of the forty-two cases in which it had issued indictments. The panel then filed with the superior court a special report, accompanied by sealed envelopes containing supplemental concurrence sheets for each case considered.
Subsequently, a number of individual defendants moved for dismissal, alleging that inclusion of unsworn jurors on the grand jury had tainted their indictments. The defendants further alleged that the grand jury’s failure to submit properly completed concurrence sheets in the first instance precluded later attempts to reconstruct grand jury voting patterns in individual cases. Judge Moody, in several separate cases raising the same issue, granted the motions to dismiss.
After moving unsuccessfully for reconsideration, the state filed this appeal.
ANALYSIS
On appeal, the state’s primary argument is that the alternate grand jurors who did not receive the oath required under Criminal Rule 6(e) were
de facto
grand jurors and that, therefore, their participation in deliberations and voting could not invalidate any indictment issued by the grand jury-
The defendants respond, first, that the
de facto
grand juror issue is not properly before this court, since the state failed to present it in a timely manner to the superi- or court. Second, the defendants claim that the
de facto
grand juror doctrine is inapplicable in this situation.
We reject at the outset the defendants’ claim that the
de facto
grand juror issue should not be considered by this court. Although the defendants are correct in pointing out that the argument was not raised by the state until it moved for reconsideration of Judge Moody’s original dismissal order and that Judge Moody declined to consider the argument because it was untimely, the question presented is purely one of law and not of fact; this court’s ability to review the issue on appeal is in no manner hampered by the trial court’s failure to address it. In this case, the state’s reliance on the
de facto
grand jury argument does not work an unfair surprise on the defendants, nor do we perceive any other prejudice that might result from consideration of the question. Under these circumstances we are not precluded from considering the state’s argument on its merits.
The principal question to be resolved, then, is whether the alternate grand jurors who had not been sworn were, nevertheless,
de facto
grand jurors. Generally, a
de facto
officer is one who:
[h]as the reputation of being the officer he assumes to be, and yet is not a good officer in point of law. More particularly, a
de facto
officer is a person who is surrounded by the insignia of office and seems to act with authority or one who is exercising the duties of an officer under
a color of title, right, or authority, or under color of an appointment or election.
The
de facto
officer doctrine has traditionally been based on considerations of public policy and necessity: the doctrine serves to validate official acts “on grounds of public policy and prevention of a failure of public justice.”
People v. Davis,
86 Mich.App. 514, 272 N.W.2d 707, 710 (1979).
Courts have long relied on the
de facto
officer doctrine to uphold acts performed by public officials in connection with the operation of the judicial branch of government.
In particular, the doctrine has been applied to validate the acts of irregularly constituted grand juries and improperly appointed grand jurors. In an early New York case, for example, the New York Court of Appeals found a grand jury selected under a void statute to be a
de facto
grand jury.
People v. Petrea,
92 N.Y. 128 (N.Y.1883).
Petrea
and the
de facto
grand jury doctrine has moré recently been relied on by the New York courts to validate the actions of grand juries when individual grand jurors were improperly appointed.
People v. Colebut,
86 Misc.2d 729, 383 N.Y.S.2d 985 (N.Y.Sup.Ct.1976), applied the
de facto
grand juror doctrine where a grand jury foreman who had been discharged before voting and was technically disqualified. Similarly, in
People v. Whalen,
26 Misc.2d 714, 208 N.Y.S.2d 130 (N.Y.Sup.Ct.1960), the court upheld the actions of a grand jury foreman who was not qualified to serve, finding that the foreman was a
de facto
grand juror.
It is notable that
People v. Whalen
was specifically mentioned by the Alaska Supreme Court in
Miller v. State,
462 P.2d 421 (Alaska 1969). In
Miller,
the defendant moved to dismiss an indictment on grounds that the grand jury had been extended beyond the five-month limitation prescribed by Criminal Rule 6, that the foreman and another grand juror were disqualified because they had served more than five months, that a witness sworn by the foreman was not properly sworn because the foreman was not qualified to administer the oath, and that the foreman’s endorsement of the indictment was defective. Although rejecting Miller’s arguments on other legal grounds, the Alaska Supreme Court discussed with approval the
de facto
grand juror concept as applied by
the New York case of
People v. Whalen,
208 N.Y.S. 130. After discussing
Whalen,
the Alaska court concluded:
Thus, even if the foreman was found not qualified, it would require a greater showing of prejudice to appellant before we would be willing to invalidate the indictment on the ground that the foreman was disqualified and that he had no power to administer oaths or sign indictments.
Miller v. State,
462 P.2d at 424. Although the Alaska Supreme Court’s discussion of the
de facto
grand juror doctrine in
Miller
may technically be dictum, we nevertheless find it to be significant and conclude that it foreshadows the correct result in the present case.
The defendants argue, however, that the oath required by Criminal Rule 6(e) is an essential promise by the grand jurors to carry out an important duty, which should not be done away with under the
de facto
doctrine. We recognize that the taking of the oath must be regarded as more than a mere formality. Nothing we say here is to the contrary. Yet the
de facto
officer doctrine has not traditionally been restricted to cases involving purely technical or formalistic irregularities.
Indeed, in at least two cases, courts have applied the
de facto
officer doctrine to uphold acts of public officials who did not receive proper oaths.
See Malone v. State,
406 So.2d 1060 (Ala.App.1981) (deputy sheriff who had been given an oath orally but not in writing as required was found to be a
de facto
officer);
Huff v. Sauer,
243 Minn. 426, 68 N.W.2d 252 (1955) (applying
de facto
officer doctrine to uphold actions of police civil service commissioners who had not taken the required oath). Accordingly, we reject the defendants’ argument against extension of the
de facto
officer doctrine and hold that, in the present case, votes cast by alternate grand jurors who had not formally received an oath were valid, because the jurors were
de facto
members of the grand jury.
One subsidiary claim raised by the defendants requires brief attention at this juncture. The defendants maintain that the grand jury’s failure to keep a contemporaneous record of the number of jurors voting for and against indictment in individual cases constitutes a separate violation, which merits dismissal.
Under the circumstances of this case, the defendants’ argument must be rejected. The defend
ants have challenged the propriety of the grand jury’s substantive decision to issue indictments solely on the ground that some members of the grand jury had not received the required oaths. The defendants have not alleged or shown that the grand jury’s failure to keep a contemporaneous voting record might have resulted in any prejudice, except to the extent that it precluded an accurate determination of the number of sworn grand jurors who voted for an indictment in each ease.
Since our holding that unsworn alternate jurors were
de facto
grand jury members obviates the need to determine the number of sworn jurors voting in individual cases, and since no other showing of potential prejudice has been made, we find that any error in the recording of grand jury votes does not warrant dismissal in these cases. In reaching this conclusion, we find the following language from Criminal Rule 7(c) to be particularly relevant:
No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.
The record in this case does not support a conclusion that the grand jury’s failure to keep an accurate record of its votes resulted in prejudice to any substantial right of the defendants.
The orders of dismissal entered by the superior court are REVERSED.