(concurring in part, dissenting in part).
I concur with the majority that the legislature intended to permit the chief judge of the district to assign this felony matter to a judicial officer under Minn.Stat. §§ 487.08 and 484.69. I respectfully dissent from the majority opinion as to the constitutional power of a judicial officer to preside over this felony case. Even if the statute under which the judicial officer exercised authority is held unconstitutional, we should follow our long held precedent regarding de facto courts and the defendant should not receive a new trial. Any error must be reviewed for plain error. Here, if there was error, it was harmless and the jury verdict surely cannot be attributed to this alleged error. Furthermore, the objection should have been raised at any of the number of proceedings held by this judicial officer; that was not done and any objection was waived. The appellant received a fair trial and the jury verdict should be affirmed.
The majority incorrectly concludes that Minn.Stat. § 487.08, subd. 5, violates Article VI, § 1 of the Minnesota Constitution, because it runs afoul of the constitutional mandate that a judicial officer’s jurisdiction be inferior to that of the district court. I cannot agree with the majority’s assertion that where the judicial officer’s jurisdiction in any given case is completely dependent on the assignment power of the chief judge of the district, the jurisdiction of the judicial officer is not inferior to that of the district court. Where the judicial officer’s jurisdiction is coextensive, but entirely dependent upon the chief judge of the judicial district, the judicial officer’s jurisdiction is necessarily inferior. As such, contrary to the holding of the majority, Minn.Stat. § 487.08, subd. 5, does not operate in violation of the Minnesota Constitution.
The majority states, “If judicial officers are allowed to preside over one of the weightiest matters within the district court’s jurisdiction — a first-degree murder trial — then there is no effective limit to the judicial officer’s jurisdiction.” The majority ignores the obvious “effective limit” on the judicial officer’s jurisdiction, the fact that the chief judge of the judicial district completely controls the jurisdictional limits of the judicial officer pursuant to Minn. Stat. § 487.08, subd. 5. Minnesota Statutes § 487.08, subd. 5, provides that a judicial officer “shall hear and try matters as assigned to them by the chief judge.” Although a chief judge “may assign any judge of any court within the judicial district to hear any matter,” Minn.Stat. § 484.69, subd. 3, a district judge is not dependent on that assignment power. Minn.Stat. § 484.01, subd. 1. In contrast to a judicial officer, “district courts shall have original jurisdiction in all civil actions within their respective districts, in all cases of crime committed or triable therein, in all special proceedings not exclusively cognizable by some other court or tribunal.” Minn.Stat. § 484.01, subd. 1.
The majority also states, “Granting judicial officers the power to hear and try all civil and criminal cases may improperly infringe on the district court’s original jurisdiction.” Again, the majority has ignored that the legislature provided that the judicial officer can only have jurisdiction over cases the chief judge of the judi*923cial district has assigned to him. The majority, then, must be concerned that the district court will infringe on its own jurisdiction, but declines to describe how this could result. Such an unfounded and illogical worry cannot support overruling an act of the legislature and nullifying an otherwise fair trial.
The majority’s mistaken premise may stem from an improper reliance on Holmberg v. Holmberg, 588 N.W.2d 720, 724 (Minn.1999), which the majority quotes to support its conclusion that the judicial officer’s jurisdiction may infringe on the district court’s jurisdiction. In Holmberg, the legislature had created an administrative hearing process that infringed on the district court’s original jurisdiction. We stated that “the administrative child support process raises grave separation of powers concerns.” Id. at 725. Under the child support adjudication scheme challenged in Holmberg, matters previously handled by the judiciary were improperly assigned for hearing by administrative law judges in the executive branch. Id. at 722. And it allowed non-attorneys (child support officers) to engage in the practice of law. Id. at 722 and 726. Here, there is no evidence of any improper infringement by the executive or legislative branches on the district court’s power in any sense of the imagination. Rather, the authority to assign this case was vested with the judiciary. Minn. Stat. § 487.08, subd. 5. The legislature merely allowed the chief judge of the district court to exercise discretion to assign cases to a judicial officer, also a member of the judiciary. Minnesota Statutes § 487.08, subd. 5, does not infringe on the original jurisdiction of the district court and should not be held unconstitutional.
The majority states, “we decline to define the outer limits of a judicial officer’s jurisdiction because that is a legislative function.” Unfortunately, under the majority’s rationale the outer limit of the judicial officer’s jurisdiction remains a mystery, regardless of any action taken by the legislature. Nor does the majority address the inconstancy arising from this ruling, which prohibits the judicial officer from presiding over a felony trial, but leaves intact his power to handle important parts of felony cases, including the first appearance, bail setting and conditions, probable cause determinations, taking oaths and testimony, appointing public defenders, handling Rule 8 appearances, establishing release without bail, holding hearings for violation of conditional release and accepting pleas.1 Thus, the legislature and the chief judge of the district court are left to guess what matters, if any, can be assigned to the judicial officer, so as to assure that his jurisdiction is sufficiently “inferior,” such that this court will not overturn the result.
Even if Minn.Stat. § 487.08, subd. 5, is held to be unconstitutional, at a minimum, we should follow the de facto court precedent that has been well-settled law in this state since 1884. This court has held:
But we may go so far as to lay down this proposition, that where a court or office has been established by an act of the legislature apparently valid, and the court has gone into operation, or the office is filled and exercised under such act, it is to be regarded as a de facto court or office. In other words, that the people shall not be made to suffer because misled by the apparent legality of such public institutions.
*924Burt v. Winona & St. Peter Railroad Co., 31 Minn. 472, 477, 18 N.W. 285, 287-88 (1884).
Sixty years following the decision in Burt, establishing the law of de facto courts, we reiterated our adherence to the principle that the acts of a judge acting under authority of an apparently valid statute are final and binding. “The theory that there may be a defacto court antecedent to the time the law creating the court is declared unconstitutional has become settled policy in this state since the issue first came before the court in Burt v. Winona & St. P.R. Co.” Marckel Co. v. Zitzow, 218 Minn. 305, 306, 15 N.W.2d 777, 778 (1944) (citation omitted) (second emphasis added). This judicial officer’s position has been established by an apparently valid act of the legislature and has operated for a number of years. This case was assigned to this judicial officer by the chief judge of the district and our rules of court have added to his responsibility. As such, “it is to be regarded as a de facto court.” Burt, 31 Minn. at 477, 18 N.W. at 287. There is nothing to distinguish the legal principle we clearly articulated in Burt from the one involved here, “antecedent to the time the law creating the court is declared unconstitutional” the court’s actions are final and binding. Zitzow, 218 Minn. at 306, 15 N.W.2d at 778.
The majority’s decision to overrule the 119-year-old precedent on de facto courts by ignoring it, however, still should not result in overturning the appellant’s first-degree murder conviction had the majority also not chosen to abandon our traditional plain error analysis. The majority looks to Nguyen v. United States, - U.S. -, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003), which is distinguishable from this case. Nguyen involved appointing a non-Article III judge as a member of a Ninth Circuit appellate panel in violation of a federal statute. Id. at 2133-34. In contrast to the congressional limitation, our legislature has left it up to the court to assign appropriate cases to this judicial officer, which our rules of criminal procedure have only further expanded. In fact, our Rules have empowered this judicial officer to perform many of the significant felony-level responsibilities that are carried out by the district court, which we now find to be unconstitutional.2 If some of the felony-level judicial responsibility assumed by this court official is unconstitutional because his jurisdiction is not inferior to the district court, why would not this same rationale render all of his efforts exercised under our rules unconstitutional? Rather than follow our precedent, the majority creates a new standard to bypass plain error review “in a case involving a fundamental question of judicial authority.”
The majority may have bypassed over our traditional plain error analysis in part because even if there was error, it was not plain, nor one that affected substantial rights.3 A number of factors indicate that if any error occurred in this trial, it was *925not plain error: the appellant’s two defense lawyers did not raise an objection at trial; the state allowed the case to proceed through a lengthy trial; the chief judge of the district assigned this case to this judicial officer; and the court of appeals did not sua sponte raise the issue in the two felony cases presided over by this officer that have been reviewed by that court in the past 3 years. State v. Bauer, 642 N.W.2d 760 (Minn.App.2002); State v. Barnes, 618 N.W.2d 805 (Minn.App.2000).
It is important in this analysis to remember the constitutional requirements of a judge. Although this judicial branch employee was appointed to this position, he meets the constitutional requirements of a judge. The constitutional requirements of our judges are that they be learned in the law, and that they be a resident of the district where they are presiding. Minn. Const, art VI, §§ 4, 5. The judicial officer who tried this case meets the constitutional and statutory requirements: he is learned in the law and a resident of the district and is employed by the judicial branch. Furthermore, this officer is under the jurisdiction of the Board on Judicial Standards. See Rules of Board of Judicial Standards, Definitions (defining judge as “any judge, judicial officer * * ⅜ employed in the judicial branch.”). He is also governed by the code of judicial conduct. Minn.Code Jud. Conduct. He has for many years exercised the powers of a district court judge in a wide variety of cases with the approval of the court of appeals and this court. This fact is demonstrated by the number of this judge’s cases that have been decided by both the court of appeals and this court.4
The other constitutional requirements for a felony trial have also been met. This case was venued in the proper county, the trial was held in the appropriate courthouse and was tried to a jury with no objections as to the jury or the jury panel. See Minn. Const, art I, § 6. The trial appears to have been in full compliance with the Rules of Criminal Procedure relating to notices, time limits, scheduling, and the actual conduct of the trial.
If there was an error, it surely was not an error that could be classified as a traditional structural error. There was no allegation that this judicial officer was not learned in the law, was incompetent, was biased, or made any procedural errors in handling pretrial issues, voir dire, jury selection or instructions. The judicial officer in this case handled at least 7 separate days of pretrial issues, plus a 9 day jury trial covering 2 weeks, which resulted in the jury rendering a guilty verdict, all without objection. There were also two presumably competent defense lawyers present at all hearings representing the appellant and at no time was there ever any objection or even question about the *926proceedings being handled by this duly sworn judicial officer. In fact, it appears that the judicial officer handled all of the pretrial and trial proceedings except the initial arraignment, which was handled by a district court judge. Indeed, on appeal, other than the jurisdiction of this judicial officer, there was only one issue raised by appellant’s counsel in the midst of many other rulings and proceedings that occurred in the pretrial and trial context. The only other issue raised on appeal relates to whether this judicial officer abused his discretion when he excluded an out-of-court statement by an allegedly critical defense witness who refused to testify because he feared retaliation by the victims’ families. Importantly, this issue has been preserved for appeal and has been presented to this court for review based on the full transcript of what transpired at trial. This ruling by the judicial officer is of course subordinate to this court if we decided there was an abuse of discretion. We can review that issue on its full merits.
In terms of best practices, prospectively, a defendant should be informed that he may elect to have a district court judge try his case as opposed to this judicial officer. The record should include an explanation of the differences in appointed or elected positions and case assignments. This explanation should be placed on the record and include a defendant’s waiver. However, the absence of this record in the present case does not mean appellant’s trial was defective.
Finally, if there was an objection to having this qualified judicial officer hear this case, the objection should have been made known prior to the commencement of the trial. An objection is deemed waived if raised for the first time on appeal. State v. Glowacki, 630 N.W.2d 392, 398 (Minn.2001). There is no support for the assertion that the work of this judicial officer has undermined the trust or confidence of the practitioners aiid citizens of St. Louis County in our system of justice. In fact, two defense lawyers sat on their hands through trial knowing well of this issue that was presented only on appeal. Ironically, the article relating to judicial officers authored by John M. Stuart and cited by the majority pointed out this constitutional issue nearly 25 years ago, stating “it may be inappropriate for non-elected officials to exercise identical powers to that of the county court judges.” Marlene Johnson & John M. Stuart, Minnesota’s Judicial Officers: A Short History of an Endangered Species, Bench & Bar of Minn. 23, 28 (Dec.1979).
Stuart is the State Public Defender and the attorney of record for appellant. Stuart was of the opinion in 1979 that there were “very few complaints, if any, about constitutional problems arising from the appointive nature of the office.” Id. Rather, he pointed out, “a possible problem by the appointive process is that judicial officers are not subject to the assignment power of the chief judges of the districts in which they serve.” Id. Now, after the possible assignment problem has been corrected by the legislature and appellant is saddled with an unsatisfactory trial result, the appellant and his counsel, who were from the same office throughout this proceeding (at the district court and on appeal), are requesting a second bite at the judicial apple. Contrary to what the majority concludes, the interests of justice require that we affirm this conviction. “[T]he people shall not be made to suffer because misled by the apparent legality of such public institutions.” Burt, 31 Minn. at 477, 18 N.W. at 288.
. See Minn. R.Crim. P. 4.01; 4.02, subd. 5(1), (2); 4.03, subd. 1; 4.03, subd. 2; 5.01; 5.02, subd. 1(2); 5.03; 5.05; 5.06; 6.02; 6.03; 8.01.
. See Minn. R.Crim. P. 4.01; 4.02, subd. 5(1), (2); 4.03; 4.03, subd. 2; 5.01; 5.02, subd. 1(2); 5.03; 5.05; 5.06; 6.02; 6.03; 8.01.
. The majority quotes a portion of the Restatement (Second) of Judgments § 12 cmt. d, in the concluding paragraph. The majority would be well served by looking to the sentence immediately following the language quoted from comment d. The sentence states, "[t]he public interest is of that strength [requiring reversal of conviction] only if the tribunal's excess of authority was plain or has seriously disturbed the distribution of governmental powers or has infringed a fundamental constitutional protection.” Thus, the very section of the Restatement cited by the majority supports undertaking a plain error analy*925sis, which the majority has abandoned. Restatement (Second) of Judgments § 12 cmt. d.
. See, e.g., Bauer, 642 N.W.2d 760; State v. Cyrette, 636 N.W.2d 343 (Minn.App.2001); Myers v. Hearth Technologies, Inc., 621 N.W.2d 787 (Minn.App.2001); State v. Barnes, 618 N.W.2d 805; Minnesota Teamsters Public & Law Enforcement Employees' Union, Local No. 320 v. County of St. Louis, 611 N.W.2d 355 (Minn.App.2000); St. Louis County v. S.D.S., 610 N.W.2d 644 (Minn.App.2000); Demolition Landfill Services, LLC v. City of Duluth, 609 N.W.2d 278 (Minn.App.2000); Baker v. State, 590 N.W.2d 636 (Minn.1999); Follmer v. Duluth, Missabe and Iron Range Ry. Co., 585 N.W.2d 87 (Minn.App.1998); In re Matter of Welfare of C.A.W., 579 N.W.2d 494 (Minn.App.1998); Nat'l Audubon Soc. v. Minnesota Pollution Control Agency, 569 N.W.2d 211 (Minn.App.1997); State v. Brodie, 532 N.W.2d 557 (Minn.1995); State v. Brodie, 529 N.W.2d 395 (Minn.App.1995).