Shortly before Christmas, the state supreme court decided a littering case captioned State v. Rankin, __ N.C. __, __ S.E.2d __, 2018 WL 6714931 (Dec. 21, 2018). The majority ruled that because the indictment “failed to . . . allege all . . . elements of the offense . . . the trial court had no jurisdiction to enter a conviction . . . against defendant.” The rule that the omission of an element is a jurisdictional defect is long-standing law in North Carolina, but many other jurisdictions, including the federal courts, have abandoned it. Chief Justice Martin, in dissent, argued that North Carolina should follow suit. This post summarizes the North Carolina rule, explains the controversy in Rankin, discusses why other jurisdictions have left the rule behind, and considers whether the General Assembly might address the issue.
The North Carolina rule. The Chief Justice’s opinion in Rankin describes the rule that the omission of an element is a jurisdictional defect as being a “common law rule” with a lineage tracing back to English law. It is certainly a long-standing rule, dating at least to State v. Morgan, 226 N.C. 414 (1946). In that case, the court considered an indictment purporting to charge a defendant with nonsupport of a child, but neglecting to allege that the defendant’s failure to support was willful. The court stated:
It is a universal rule that no indictment, whether at common law or under a statute, can be good if it does not accurately and clearly allege all the constituent elements of the offense charged. . . . A valid warrant or indictment is an essential of jurisdiction.
I am not a legal historian, but from looking at early North Carolina cases, I am not certain that the rule can be traced directly back to English law. I don’t see that it was consistently recognized prior to the middle of the 20th century. See, e.g., State v. Colbert, 75 N.C. 368 (1876) (stating that a perjury indictment was “very informal,” due to a failure to allege essential matters, “and probably no judgment against the defendant could be pronounced [upon it]; but still the court had jurisdiction . . . and therefore the defendant ought to have been held and tried upon a sufficient indictment”); State v. Norman, 110 N.C. 484 (1892) (ruling that a warrant charging a defendant with fraud was properly amended, as“[e]ssential words . . . without which the warrant, treated as an indictment on the trial in superior court, would be fatally defective, can be supplied by amendment . . . [t]he court has jurisdiction by the arrest of the defendant”).
However far the rule dates back, it has been recited and applied repeatedly over the years, including very recently. See, e.g., State v. Mostafavi, 370 N.C. 681 (2018) (noting that the state supreme court has “consistently recognized” that “a valid bill of indictment is essential to the jurisdiction of the trial court” and that an indictment must therefore allege all the elements of the offense); State v. Langley, __ N.C. __, 817 S.E.2d 191 (2018) (similar).
The rule has a number of practical consequences. For example, because the omission of an element is deemed to be a jurisdictional defect, it may be raised at any time, including for the first time on appeal, even if the defendant pled guilty.
Rankin. In Rankin, the defendant dumped the contents of a metal oil tank into the front yard of a residence. She was charged with felony littering of hazardous waste under G.S. 14-399(e). The statute prohibits littering except, among other circumstances, “[w]hen the property is designated by the State . . . for the disposal of garbage . . . and the person is authorized to use the property.” The indictment didn’t allege that the front yard wasn’t a garbage dump, and the defendant argued on appeal that it therefore omitted an essential element.
A majority of justices on the state supreme court agreed, finding that the provision regarding garbage dumps is an element rather than an exception or a defense. In keeping with the traditional rule, the majority found that as a result of the omission of the element, “the trial court had no jurisdiction” over the offense.
Chief Justice Martin, joined by Justice Newby, dissented. The dissent would have found that the garbage dump provision was an “exception,” not an element. Furthermore, even if the provision were an element, the dissent argued that its omission should not create a jurisdictional problem. As noted above, the dissent contended that the common law was the source of the idea that a missing element is a jurisdictional defect. It further contended that this part of the common law was superseded when Chapter 15A was enacted in 1974. Chapter 15A does not explicitly address the traditional jurisdictional rule, but the dissent argued that the traditional rule is inconsistent with several provisions in Chapter 15A, such as the statement in G.S. 15A-924(e) that a court must dismiss a defective pleading “[u]pon motion of a defendant.” If the omission of an element were a jurisdictional defect, why would a defense motion be required for dismissal? More generally, the dissent viewed the failure to expressly preserve the jurisdictional rule as significant given that Chapter 15A “comprehensively overhauled every aspect of our criminal procedure.” Finally, as a practical matter, the dissent noted that the traditional rule “incentivizes conduct . . . that may undermine the proper administration of justice,” by “giving a defendant with a defective indictment a reason to ‘sandbag.’” Such a defendant “may proceed to trial hoping for a favorable verdict. If he is found guilty, he may then challenge the indictment on appeal . . . [effectively obtaining] a second bite at the apple.”
The dissent’s view is consistent with, or perhaps would be a culmination of, a general trend in recent decades towards liberalizing technical pleading rules. Several recent developments in that area have been addressed on the blog, including the decision in State v. Brawley, 306 N.C. 626 (2018) (discussed here, holding that “Belk’s Department Store” sufficiently described an entity capable of owning property, though it did not specify the nature of the entity), and the decision in State v. Jones, __ N.C. __, 819 S.E.2d 340 (2018) (discussed here, holding that a citation that omitted multiple elements was sufficient to confer jurisdiction). A good collection of recent cases allowing some leeway in the drafting of pleadings can be found in this post by Prosecutor Educator Jonathan Holbrook.
Other jurisdictions have abandoned the rule. Although at one time the jurisdictional rule was prevalent across the country, many other jurisdictions no longer view the omission of an element as a jurisdictional problem. The federal courts abandoned the jurisdictional rule in United States v. Cotton, 535 U.S. 625 (2002), and most states have also done so. See Wayne R. LaFave, et al., Criminal Procedure § 19.2(e) (4th ed. 2015). See also State v. Dunn, 375 P.3d 332 (Kan. 2016) (stating that the jurisdictional rule has “quickly become the minority view,” and abandoning it under Kansas law). The more prevalent view today is that a court has jurisdiction when the state alleges that the defendant has committed a crime, even if the allegation is imprecise or incomplete.
The move away from the jurisdictional rule is not uniform, and even jurisdictions that have renounced the traditional view for most indictment errors may still apply it in some cases. For example, in United States v. Brown, 752 F.3d 1344 (11th Cir. 2014), the Eleventh Circuit stated that some indictment defects remain jurisdictional after Cotton, including when an indictment charges a crime that does not exist by statute and when an indictment charges a violation of a non-criminal regulation.
Jurisdictions that have renounced the traditional rule have developed new frameworks for evaluating indictment defects. These may be complex, with different standards and remedies available depending on when the issue is raised, whether it is framed as a statutory defect or a constitutional one (pleading defects may implicate due process concerns under the Fifth Amendment and fair notice concerns under the Sixth Amendment), and whether the defendant entered a guilty plea or went to trial. Cotton applied the federal plain error standard to a defect that was not raised before the trial court, and the Rankin dissenters proposed a similar approach.
Could the General Assembly address the issue? In a word, yes. The Rankin dissent suggests that “the General Assembly may wish to consider revisions to our criminal code to lessen the detrimental impact of the . . . jurisdictional approach,” and the majority agreed that the legislature “retain[s] the right” to abrogate the traditional rule.
If the legislature were inclined to do so, there are several ways it could address the issue. One possibility would be to add to or revise G.S. 15-153 (Bill or warrant not quashed for informality) or G.S. 15-155 (Defects which do not vitiate). Both statutes are old efforts to prevent a hypertechnical approach to charging documents, and they could be expanded to provide that the omission of an element is not a jurisdictional defect.
However, it may be more natural to address the issue in G.S. 15A-924(e), which provides for dismissal of charges upon a defendant’s motion when the pleading is inadequate. There, too, a provision could be added providing that the omission of an element is not, in itself, a jurisdictional problem or stating that defects not timely raised by the defense are waived.
Finally, Article 2 of Chapter 15A is captioned “Jurisdiction,” but that that article currently contains no content. A section could be added there clarifying the source and extent of the courts’ jurisdiction over criminal cases, and providing that pleadings defects are not jurisdictional.
Conclusion. None of the above should be taken as an endorsement of any particular position or approach. The School of Government is institutionally neutral, and while the national trend is certainly in one direction, the traditional rule has clarity and simplicity to recommend it. In any event, the opinion of the Rankin majority is the law of the state unless and until the court revisits the issue or the General Assembly chooses to address it.