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Defective Citation and SMJ question

PM
Phillip Morton
Fri, Jan 28, 2022 4:17 PM

Traffic citation was issued by officer that did not contain a statement of
fact supporting the charge as required by 11 O.S. 27-115.1. At court, the
municipal judge indicated he would dismiss the citations based on this
defect, which I get, but he has nonetheless given me time to research and
respond if I desire to do so.  I don't dispute the citation is defective on
its face, but looking into the matter raised two questions that I wanted to
ask the great minds collected on this listserv:

  1. Can the lack of a statement of fact be corrected after the ticket is
    issued?

  2. A citation which is fatally defective on its face divests the municipal
    court of SMJ, which as we all know is not waivable. Is this a matter that
    must be raised by the defendant or can the municipal judge make this
    finding sua sponte?

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.

Traffic citation was issued by officer that did not contain a statement of fact supporting the charge as required by 11 O.S. 27-115.1. At court, the municipal judge indicated he would dismiss the citations based on this defect, which I get, but he has nonetheless given me time to research and respond if I desire to do so. I don't dispute the citation is defective on its face, but looking into the matter raised two questions that I wanted to ask the great minds collected on this listserv: 1. Can the lack of a statement of fact be corrected after the ticket is issued? 2. A citation which is fatally defective on its face divests the municipal court of SMJ, which as we all know is not waivable. Is this a matter that must be raised by the defendant or can the municipal judge make this finding sua sponte? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling *580-759-0049*.
JM
Jon Miller
Fri, Jan 28, 2022 4:50 PM

Taking lead from the Oklahoma Court of Criminal Appeals’ decision that McGirt is only a “procedural rule” and not an issue of jurisdiction, I would ask whether the recitation of the fact required under 11 O.S. §27-115.1 is a procedural requirement as opposed to a jurisdictional matter.  I would argue that failure to include the “fact” does not deprive the court of jurisdiction, and the complaint can be cured with an amendment.  After all, if the ticket is dismissed, could not the officer simply issue a new one?

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 28, 2022 10:18 AM
To: oama@lists.imla.org
Subject: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question

Traffic citation was issued by officer that did not contain a statement of fact supporting the charge as required by 11 O.S. 27-115.1. At court, the municipal judge indicated he would dismiss the citations based on this defect, which I get, but he has nonetheless given me time to research and respond if I desire to do so.  I don't dispute the citation is defective on its face, but looking into the matter raised two questions that I wanted to ask the great minds collected on this listserv:

  1. Can the lack of a statement of fact be corrected after the ticket is issued?

  2. A citation which is fatally defective on its face divests the municipal court of SMJ, which as we all know is not waivable. Is this a matter that must be raised by the defendant or can the municipal judge make this finding sua sponte?

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.

Taking lead from the Oklahoma Court of Criminal Appeals’ decision that McGirt is only a “procedural rule” and not an issue of jurisdiction, I would ask whether the recitation of the fact required under 11 O.S. §27-115.1 is a procedural requirement as opposed to a jurisdictional matter. I would argue that failure to include the “fact” does not deprive the court of jurisdiction, and the complaint can be cured with an amendment. After all, if the ticket is dismissed, could not the officer simply issue a new one? Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Friday, January 28, 2022 10:18 AM To: oama@lists.imla.org Subject: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question Traffic citation was issued by officer that did not contain a statement of fact supporting the charge as required by 11 O.S. 27-115.1. At court, the municipal judge indicated he would dismiss the citations based on this defect, which I get, but he has nonetheless given me time to research and respond if I desire to do so. I don't dispute the citation is defective on its face, but looking into the matter raised two questions that I wanted to ask the great minds collected on this listserv: 1. Can the lack of a statement of fact be corrected after the ticket is issued? 2. A citation which is fatally defective on its face divests the municipal court of SMJ, which as we all know is not waivable. Is this a matter that must be raised by the defendant or can the municipal judge make this finding sua sponte? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com<mailto:MortonLawOffice@gmail.com> CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.
PM
Phillip Morton
Fri, Jan 28, 2022 5:01 PM

As far as McGirt is concerned, Ex parte Drake, 2 P.2d 978 provides that
the filing of a verified complaint is jurisdictional and may not be waived,
and where a municipal judge assesses a fine against an accused for
violation of a municipal ordinance without a written verified complaint
having been filed, the judge is without jurisdiction. Ex parte Drake is
the case that led to my questions. You think it might be possible to argue
that McGirt overruled Drake?

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.

On Fri, Jan 28, 2022 at 10:50 AM Jon Miller JMiller@cityofmustang.org
wrote:

Taking lead from the Oklahoma Court of Criminal Appeals’ decision that
McGirt is only a “procedural rule” and not an issue of jurisdiction, I
would ask whether the recitation of the fact required under 11 O.S.
§27-115.1 is a procedural requirement as opposed to a jurisdictional
matter.  I would argue that failure to include the “fact” does not deprive
the court of jurisdiction, and the complaint can be cured with an
amendment.  After all, if the ticket is dismissed, could not the officer
simply issue a new one?

Jonathan E. Miller

City Attorney

City of Mustang

1501 N. Mustang Road

Mustang, Oklahoma 73064

Telephone: (405) 376-7746

Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that
is privileged or confidential. If you received this email in error, please
notify the sender by reply email and delete the email and any attachments.
If you are a and officer, employee or agent of the City of Mustang, you
should not share this email with others.  Sharing this email may result in
a loss of the attorney-client privilege.

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 28, 2022 10:18 AM
To: oama@lists.imla.org
Subject: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ
question

Traffic citation was issued by officer that did not contain a statement of
fact supporting the charge as required by 11 O.S. 27-115.1. At court, the
municipal judge indicated he would dismiss the citations based on this
defect, which I get, but he has nonetheless given me time to research and
respond if I desire to do so.  I don't dispute the citation is defective on
its face, but looking into the matter raised two questions that I wanted to
ask the great minds collected on this listserv:

  1. Can the lack of a statement of fact be corrected after the ticket is
    issued?

  2. A citation which is fatally defective on its face divests the municipal
    court of SMJ, which as we all know is not waivable. Is this a matter that
    must be raised by the defendant or can the municipal judge make this
    finding sua sponte?

Phillip N. Morton, J.D.

P.O. Box 1886

Ada, OK 74820

Phone: 580-759-0049

Fax: 580-759-2177

Email: MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail
transmission, as well as any attachments, may contain confidential
information that is legally privileged. If you are not the intended
recipient, any disclosure, copying, distribution, or use of any of the
information contained in or attached to this message is STRICTLY PROHIBITED
by law. If you have received this message in error, please immediately
notify us by replying to this email or by calling 580-759-0049.

As far as McGirt is concerned, *Ex parte Drake*, 2 P.2d 978 provides that the filing of a verified complaint is jurisdictional and may not be waived, and where a municipal judge assesses a fine against an accused for violation of a municipal ordinance without a written verified complaint having been filed, the judge is without jurisdiction. *Ex parte Drake* is the case that led to my questions. You think it might be possible to argue that McGirt overruled *Drake?* Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling *580-759-0049*. On Fri, Jan 28, 2022 at 10:50 AM Jon Miller <JMiller@cityofmustang.org> wrote: > Taking lead from the Oklahoma Court of Criminal Appeals’ decision that > *McGirt* is only a “procedural rule” and not an issue of jurisdiction, I > would ask whether the recitation of the fact required under 11 O.S. > §27-115.1 is a procedural requirement as opposed to a jurisdictional > matter. I would argue that failure to include the “fact” does not deprive > the court of jurisdiction, and the complaint can be cured with an > amendment. After all, if the ticket is dismissed, could not the officer > simply issue a new one? > > > > Jonathan E. Miller > > City Attorney > > City of Mustang > > 1501 N. Mustang Road > > Mustang, Oklahoma 73064 > > Telephone: (405) 376-7746 > > Facsimile: (405) 376-7721 > > > > > > This email is sent by the City Attorney and may contain information that > is privileged or confidential. If you received this email in error, please > notify the sender by reply email and delete the email and any attachments. > If you are a and officer, employee or agent of the City of Mustang, you > should not share this email with others. Sharing this email may result in > a loss of the attorney-client privilege. > > > > > > > > > > *From:* Phillip Morton <mortonlawoffice@gmail.com> > *Sent:* Friday, January 28, 2022 10:18 AM > *To:* oama@lists.imla.org > *Subject:* [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ > question > > > > Traffic citation was issued by officer that did not contain a statement of > fact supporting the charge as required by 11 O.S. 27-115.1. At court, the > municipal judge indicated he would dismiss the citations based on this > defect, which I get, but he has nonetheless given me time to research and > respond if I desire to do so. I don't dispute the citation is defective on > its face, but looking into the matter raised two questions that I wanted to > ask the great minds collected on this listserv: > > > > 1. Can the lack of a statement of fact be corrected after the ticket is > issued? > > > > 2. A citation which is fatally defective on its face divests the municipal > court of SMJ, which as we all know is not waivable. Is this a matter that > must be raised by the defendant or can the municipal judge make this > finding sua sponte? > > > Phillip N. Morton, J.D. > > P.O. Box 1886 > > Ada, OK 74820 > > Phone: 580-759-0049 > > Fax: 580-759-2177 > > Email: MortonLawOffice@gmail.com > > > > CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail > transmission, as well as any attachments, may contain confidential > information that is legally privileged. If you are not the intended > recipient, any disclosure, copying, distribution, or use of any of the > information contained in or attached to this message is STRICTLY PROHIBITED > by law. If you have received this message in error, please immediately > notify us by replying to this email or by calling *580-759-0049*. >
JM
Jon Miller
Fri, Jan 28, 2022 5:21 PM

I think the CCA’s decision on McGirt, ignoring applicable precedent, was done to keep from having to release previously convicted felons.  That said, as I read Drake, the city never filed a complaint and the court held that one must be filed to invoke the court’s jurisdiction.  The language in Drake that speaks of the court being required to have a verified complaint before it can impose any fine or sentence indicates that filing the written complaint in court would have sufficed.  That indicates to me that the city could amend the complaint and add the missing factual statement as a matter of procedure.  I think the CCA decision could be used to point out that a procedural rule is different from jurisdictional facts.

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Phillip Morton mortonlawoffice@gmail.com
Sent: Friday, January 28, 2022 11:02 AM
To: Jon Miller JMiller@cityofmustang.org
Cc: oama@lists.imla.org
Subject: Re: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question

As far as McGirt is concerned, Ex parte Drake, 2 P.2d 978 provides that the filing of a verified complaint is jurisdictional and may not be waived, and where a municipal judge assesses a fine against an accused for violation of a municipal ordinance without a written verified complaint having been filed, the judge is without jurisdiction. Ex parte Drake is the case that led to my questions. You think it might be possible to argue that McGirt overruled Drake?

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.

On Fri, Jan 28, 2022 at 10:50 AM Jon Miller <JMiller@cityofmustang.orgmailto:JMiller@cityofmustang.org> wrote:
Taking lead from the Oklahoma Court of Criminal Appeals’ decision that McGirt is only a “procedural rule” and not an issue of jurisdiction, I would ask whether the recitation of the fact required under 11 O.S. §27-115.1 is a procedural requirement as opposed to a jurisdictional matter.  I would argue that failure to include the “fact” does not deprive the court of jurisdiction, and the complaint can be cured with an amendment.  After all, if the ticket is dismissed, could not the officer simply issue a new one?

Jonathan E. Miller
City Attorney
City of Mustang
1501 N. Mustang Road
Mustang, Oklahoma 73064
Telephone: (405) 376-7746
Facsimile: (405) 376-7721

This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments.  If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others.  Sharing this email may result in a loss of the attorney-client privilege.

From: Phillip Morton <mortonlawoffice@gmail.commailto:mortonlawoffice@gmail.com>
Sent: Friday, January 28, 2022 10:18 AM
To: oama@lists.imla.orgmailto:oama@lists.imla.org
Subject: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question

Traffic citation was issued by officer that did not contain a statement of fact supporting the charge as required by 11 O.S. 27-115.1. At court, the municipal judge indicated he would dismiss the citations based on this defect, which I get, but he has nonetheless given me time to research and respond if I desire to do so.  I don't dispute the citation is defective on its face, but looking into the matter raised two questions that I wanted to ask the great minds collected on this listserv:

  1. Can the lack of a statement of fact be corrected after the ticket is issued?

  2. A citation which is fatally defective on its face divests the municipal court of SMJ, which as we all know is not waivable. Is this a matter that must be raised by the defendant or can the municipal judge make this finding sua sponte?

Phillip N. Morton, J.D.
P.O. Box 1886
Ada, OK 74820
Phone: 580-759-0049
Fax: 580-759-2177
Email: MortonLawOffice@gmail.commailto:MortonLawOffice@gmail.com

CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.

I think the CCA’s decision on McGirt, ignoring applicable precedent, was done to keep from having to release previously convicted felons. That said, as I read Drake, the city never filed a complaint and the court held that one must be filed to invoke the court’s jurisdiction. The language in Drake that speaks of the court being required to have a verified complaint before it can impose any fine or sentence indicates that filing the written complaint in court would have sufficed. That indicates to me that the city could amend the complaint and add the missing factual statement as a matter of procedure. I think the CCA decision could be used to point out that a procedural rule is different from jurisdictional facts. Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Phillip Morton <mortonlawoffice@gmail.com> Sent: Friday, January 28, 2022 11:02 AM To: Jon Miller <JMiller@cityofmustang.org> Cc: oama@lists.imla.org Subject: Re: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question As far as McGirt is concerned, Ex parte Drake, 2 P.2d 978 provides that the filing of a verified complaint is jurisdictional and may not be waived, and where a municipal judge assesses a fine against an accused for violation of a municipal ordinance without a written verified complaint having been filed, the judge is without jurisdiction. Ex parte Drake is the case that led to my questions. You think it might be possible to argue that McGirt overruled Drake? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com<mailto:MortonLawOffice@gmail.com> CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049. On Fri, Jan 28, 2022 at 10:50 AM Jon Miller <JMiller@cityofmustang.org<mailto:JMiller@cityofmustang.org>> wrote: Taking lead from the Oklahoma Court of Criminal Appeals’ decision that McGirt is only a “procedural rule” and not an issue of jurisdiction, I would ask whether the recitation of the fact required under 11 O.S. §27-115.1 is a procedural requirement as opposed to a jurisdictional matter. I would argue that failure to include the “fact” does not deprive the court of jurisdiction, and the complaint can be cured with an amendment. After all, if the ticket is dismissed, could not the officer simply issue a new one? Jonathan E. Miller City Attorney City of Mustang 1501 N. Mustang Road Mustang, Oklahoma 73064 Telephone: (405) 376-7746 Facsimile: (405) 376-7721 This email is sent by the City Attorney and may contain information that is privileged or confidential. If you received this email in error, please notify the sender by reply email and delete the email and any attachments. If you are a and officer, employee or agent of the City of Mustang, you should not share this email with others. Sharing this email may result in a loss of the attorney-client privilege. From: Phillip Morton <mortonlawoffice@gmail.com<mailto:mortonlawoffice@gmail.com>> Sent: Friday, January 28, 2022 10:18 AM To: oama@lists.imla.org<mailto:oama@lists.imla.org> Subject: [CAUTION: SUSPECT SENDER] [Oama] Defective Citation and SMJ question Traffic citation was issued by officer that did not contain a statement of fact supporting the charge as required by 11 O.S. 27-115.1. At court, the municipal judge indicated he would dismiss the citations based on this defect, which I get, but he has nonetheless given me time to research and respond if I desire to do so. I don't dispute the citation is defective on its face, but looking into the matter raised two questions that I wanted to ask the great minds collected on this listserv: 1. Can the lack of a statement of fact be corrected after the ticket is issued? 2. A citation which is fatally defective on its face divests the municipal court of SMJ, which as we all know is not waivable. Is this a matter that must be raised by the defendant or can the municipal judge make this finding sua sponte? Phillip N. Morton, J.D. P.O. Box 1886 Ada, OK 74820 Phone: 580-759-0049 Fax: 580-759-2177 Email: MortonLawOffice@gmail.com<mailto:MortonLawOffice@gmail.com> CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This electronic mail transmission, as well as any attachments, may contain confidential information that is legally privileged. If you are not the intended recipient, any disclosure, copying, distribution, or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED by law. If you have received this message in error, please immediately notify us by replying to this email or by calling 580-759-0049.