Tulsa Attorney BlogLumpkin: “Subject Matter Jurisdiction May — Indeed, Must — Be Raised at Any Time.”

McGirt has Impacted Oklahoma

Video Transcribed: Lumpkin: “Subject Matter Jurisdiction May — Indeed, Must — Be Raised at Any Time.” I’m an attorney for McGirt cases, James Wirth, but those are not my words. Those are the words of conservative Judge Lumpkin on the Oklahoma Court of Criminal Appeals in a decision that came out. And that is the James Chandler Ryder versus the State of Oklahoma, And it’s another McGirt case, and it’s regarding defenses brought up by the State of Oklahoma.

In that case, it’s an older case where the defendant had already previously filed for post-conviction relief once, and the state is trying to say because they previously filed for post-conviction relief and they didn’t raise this issue of lack of subject matter jurisdiction under McGirt then that they should be barred now.

And the Oklahoma Court of Criminal Appeals has some language regarding that, and essentially, it notes the general rule, which is that if a subsequent application for post-conviction relief is filed after an original application, the Oklahoma Court of Criminal Appeals may not consider the merits of grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that the current claims and issues have not been and could not have been brought or presented previously and considered under an application of that section.

Yeah, so essentially what it provides that if you have a subsequent application for post-conviction relief, you have to prove that you could not and did not raise it in a previous one. And that is a defense the state is raising.

But as I’ve asserted previously, and it should be pretty clear cut by now, if we’re talking about a McGirt claim, and that is that the defendant or the victim is Native American and that the site of the crime is in what is now considered to be tribal territory based under McGirt and its progeny, then the state of Oklahoma lacks jurisdiction, and that is subject matter jurisdiction, and subject matter jurisdiction cannot ever be waived. And therefore, all of these procedural bars do not apply.

And that was the decision that came down in Bosse a few weeks back. But the mandate in Bosse has not been entered yet because the state requested additional time on that, filed some additional appeals related to that, and request a stay.

Ultimately, that’s been denied, and the Bosse mandate’s going to come out on May 30th. But a lot of trial courts are still holding off their decisions on this issue because they’re waiting for the mandate in Bosse. However, Bosse is already precedent.

It’s already a filed case that has been published, and the Oklahoma Court of Criminal Appeals itself is using it as precedent, including in this case that came down today, the Ryder case. And the language in Ryder’s a little bit stronger than it was in Bosse, hopefully, to send a message to trial judges and to state prosecutors that these waiver defenses are not going to work. There’s no reason to hold up these cases.

And so let me get to that language that the very conservative Lumpkin even is saying in this opinion he drafted. And what he says in that opinion is, “Subject matter jurisdiction may, indeed, must be raised at any time.” And what that means is that it can be raised at any time.

It can be attacked collaterally. And actually, it’s on not only the defendant to bring it up, but it’s also on the judge. If it’s a subject matter jurisdiction issue, the judge has an obligation to make sure that it has subject matter jurisdiction and should bring that issue up.

And then he goes on further, and he says, “No procedural bar applies, and thus, this issue is properly before us.” The language is now even more clear-cut than in Bosse. Also, in the footnote, he acknowledges the United States Supreme Court in McGirt and what was said in the opinion, in the dissenting opinion. And I’ll quote that here, as well. It says, “While the majority in McGirt alluded to the availability of procedural bars, Chief Justice Roberts correctly noted in his dissent at footnote nine that subject matter jurisdiction is never waived under Oklahoma law.”

I think it’s been made pretty clear at this point. Subject matter jurisdiction is never waived. McGirt issues are an issue of subject matter jurisdiction. They can be brought up at any time. It is incumbent on the court itself to determine whether it has subject matter jurisdiction.

And we have another published case now that says that, so there’s no reason for trial courts to continue these cases any longer hoping that they’re going to get a different decision. It’s already been decided in Bosse. Now we’ve got the descendant decision in Ryder, as well. If you have a case that is being held up on this or have questions on how it may apply to your circumstances, you’re going to want to talk to an Oklahoma attorney about that privately. To get that scheduled, you can go to MakeLawEasy.com.

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