Bradley v. State

Rhonda Wood, Justice,

dissenting.

I dissent because the court should address the merits of Bradley’s appeal. The majority is dismissing the appeal for lack of compliance with the Rule 37 verification requirement. The court is doing this on its own initiative: neither party raised the issue to the circuit court or on appeal. Unless there is an issue as to |sthe court’s subject-matter jurisdiction, this court does not entertain issues not raised below. Because lack of verification does not impact our subject-matter jurisdiction, I dissent.

As the majority explained, Arkansas Rule of Criminal Procedure 37.1(c) (2014) requires that a “petition shall be accompanied by the petitioner’s affidavit, sworn to before a notary or other officer authorized by law to administer oaths.” This rule further provides a form in which the affidavit should read. The rule also requires us to dismiss a petition that fails to include this affidavit: “[A]ny appellate court shall dismiss any petition that fails to comply with subsection (c) of this rule.” Ark. R.Crim. P. 37.1(d). Here, Bradley has signed the petition, and the petition has been notarized. Yet the petition fails to include an affidavit, which Rule 37.1(c) requires.

“[A]bsent an issue of subject-matter jurisdiction, an appellate court will not address an issue if it was not presented to the trial court, ruled upon by the trial judge, and argued by the parties on appeal.” Edwards v. Edwards, 2009 Ark. 580, at 8, 357 S.W.3d 445, 450. Recently, in Brown v. State, 2015 Ark. 7, 2015 WL 222652, Justice Danielson’s concurrence detailed this court’s departure in 2005 from construing the verification requirement in Rule 37 as a procedural rule to construing it as a jurisdictional rule. Since 2005, this court has repeatedly stated that, without a properly verified Rule 37 petition, the circuit court and this court lack jurisdiction. E.g., Branning v. State, 2014 Ark. 256, 2014 WL 2463083 (per curiam). This is inaccurate — verification has no effect on the circuit court’s or this court’s subject-matter jurisdiction. We accordingly have no obligation to raise the issue sua sponte.

| (¡Subject-matter jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties. A court lacks subject-matter jurisdiction “if it cannot hear a matter ‘under any circumstances’ and is ‘wholly incompetent to grant the relief sought.’ ” Nance v. State, 2014 Ark. 201, at 15, 433 S.W.3d 872, 881 (quoting J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 352-53, 836 S.W.2d 853, 858 (1992)). In the present case, Bradley seeks postconviction relief under Rule 37, and this court is competent to grant or deny him the relief requested. E.g., State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830 (affirming the circuit court’s decision to grant the petitioner a new trial based on a Rule 37 petition).

Amendment 80, section 3, to the Arkansas Constitution provides the supreme court the authority “to prescribe the rules of pleading, practice and procedure.” Procedural rules are aptly defined as claim-processing rules. See Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). “Procedural law is defined as ‘[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.’ ” Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 420 (2007) (citing Black’s Law Dictionary 1221 (7th ed. 1999)). Our verification rule is a mandatory step in the process of having the right to effective assistance of counsel enforced. For this reason, it is a procedural rule that has nothing to do with jurisdiction. Bradley neglected to follow that mandatory procedural rule in this case when he failed to include an affidavit. However, Bradley’s neglecting to follow a procedural rule does not strip the circuit court and our court of subject-matter jurisdiction. But that is exactly, and erroneously, what this court has held |7through a series of per curiams. E.g., Stewart v. State, 2014 Ark. 85, 2014 WL 689043 (per curiam); Martin v. State, 2012 Ark. 312, 2012 WL 3372998 (per curiam); Williamson v. State, 2012 Ark. 170, 2012 WL 1353171 (per curiam); Stephenson v. State, 2011 Ark. 506, 2011 WL 5995557 (per curiam).

We are not the only court that has temporarily defined mandatory procedural rules as jurisdictional. As Justice Ginsburg explained,

Courts, including this Court, it is true, have been less than meticulous [in their use of the term jurisdictional]; they have more than occasionally used the term “jurisdictional” to describe emphatic time prescriptions in rules of court. “Jurisdiction,” the Court has aptly observed, “is a word of many, too many meanings.” Clarity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.

Kontrick, 540 U.S. at 454-55, 124 S.Ct. 906 (citations omitted).

Admittedly, our case is different from Kontrick. We are a state court hearing a criminal postconviction matter, but we likewise must acknowledge if we erred in labeling our verification rule as jurisdictional in the past. As a nonjurisdictional procedural rule, Rule 37 verification is deemed waived if not raised at the appropriate time. This court has become highly technical on this issue, and the result is that the petitioner’s appeal is not considered on the merits. The State has neither raised the issue below nor has it raised the issue on appeal. Cf. Bunch v. State, 370 Ark. 113, 115, 257 S.W.3d 533, 534 (2007) (dismissing a Rule 37 petition upon the State’s motion to dismiss for lack of verification). Therefore, I dissent on the basis that we should decline to dismiss the appeal and affirm on the merits. To the extent our past cases have held that Rule 37 verification is a jurisdictional requirement, we should overrule them.

Hannah, C.J., and Danielson, J., join.