William Cason v. George Little

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS DECEMBER 14, 2007

WILLIAM CASON v. GEORGE LITTLE, ET AL.

Direct Appeal from the Chancery Court for Lake County

No. 5314 J. Steven Stafford, Chancellor

No. W2007-01910-COA-R3-CV - Filed May 15, 2008

Appellant, a prisoner in the custody of the Tennessee Department of Correction, filed a pro se

petition for common law writ of certiorari, seeking review of the prison disciplinary board’s findings.

Appellees filed a motion to dismiss for lack of subject matter jurisdiction based upon Appellant’s

alleged failure to execute his petition in compliance with the statutory requirements found at T.C.A.

§§ 27-8-104 and 27-8-106. Finding that Appellant had failed to have his petition notarized, the trial

court granted the motion to dismiss. Appellant appeals. Finding no error, we affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and

HOLLY M. KIRBY , J., joined.

William Cason, Henning, TN, pro se

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, Kellena

R. Baker, Assistant Attorney General, Nashville, TN, for Appellees

OPINION

On June 5, 2006, William Cason (“Appellant”), an inmate housed at Northwest Correctional

Complex in Tiptonville, filed a “Petition for a Common Law Writ of Certiorari” in the Chancery

Court of Lake County against George M. Little, Warden Tommy Mills, Holly Butler, Sergeant Lloyd

Moore, and William Lovell (together, “Appellees).1 By his Petition, Mr. Cason sought review of the

actions of the Northwest Correctional Complex Disciplinary Board (the “Board”) in finding him

guilty of the prison disciplinary offenses of assault and participation in security threat group activity

(i.e., gang activity). Mr. Cason alleges that the Board acted arbitrarily, capriciously, and illegally in

convicting him of these offenses, and specifically asserts that there was no evidence to support the

charges, that he was given no notice of the charges, that the reliability of the confidential informant

was never verified, and that the Board refused to allow him to call witnesses. Mr. Cason also asserts

that the Board violated his due process rights.

On July 24, 2006, the Appellees filed a Motion to Dismiss. Specifically, Appellees assert

that Mr. Cason’s Petition was not verified as required by Article 6, Section 10 of the Tennessee

Constitution and T.C.A. §§ 27-8-104 and 27-8-106. Appellees also assert that Mr. Cason failed to

comply with the requirements of T.C.A. § 41-21-805 because he did not file an affidavit concerning

his history of prior lawsuits or a certified copy of his inmate trust account statement. On November

15, 2006, the trial court entered a scheduling order, giving the parties until December 15, 2006 to

file pleadings addressing whether the Petition was properly verified.

Appellees withdrew their Motion to Dismiss and, on December 7, 2006, filed a “Notice of

No Opposition to Granting Petition for Writ of Certiorari.” On January 8, 2007, the trial court

entered an Order, granting the writ of certiorari and ordering Appellees to file a certified copy of the

administrative record associated with the disciplinary infractions. By separate Order of January 8,

2007, the trial court ordered Appellees to file a responsive pleading addressing the question of

whether the trial court had obtained subject-matter jurisdiction over Mr. Cason’s Petition. On

January 29, 2007, Appellees filed their response, asserting that Mr. Cason had failed to properly

“swear to” the allegations set forth in his Petition because the law does not allow for a separate

affidavit to verify the contents of a petition for writ of certiorari. On February 1, 2007, Appellees

filed a certified copy of the administrative record for Mr. Cason’s disciplinary offenses. And, on

March 1, 2007, Appellees filed a “Motion for Judgment on the Record.”

On April 2, 2007, the trial court entered a Scheduling Order, giving Mr. Cason additional

time in which to provide the court with an affidavit concerning any prior litigation history as required

under T.C.A. § 41-21-805. On April 12, 2007, Mr. Cason filed a “Motion in Response to Scheduling

Order,” asserting, inter alia, that he has no prior litigation history and that the requested information

is not applicable. On June 11, 2007, the trial court entered an “Order on Response to Scheduling

Order,” in which it held that Mr. Cason’s “Motion in Response to Scheduling Order” did not satisfy

the statutory requirements. The trial court gave Mr. Cason until June 26, 2007 to provide the

required information. On June 21, 2007, Mr. Cason filed a second “Motion in Response to

1

The Appellees herein were sued in their official capacities only.

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Scheduling Order,” in which he again asserts that he has no prior litigation history, and that the

requested information is not applicable.

On July 24, 2007, the trial court entered an “Order Dismissing Case” because the Petition

was neither sworn to, nor verified. On September 5, 2007, Mr. Cason filed a motion for relief from

judgment, which motion was subsequently denied by Order of September 24, 2007.

Mr. Cason appeals. The relevant issues are succinctly set out in the Appellees’ brief, and we

adopt the issues as stated therein, to wit:

1. Whether the trial court properly dismissed the petition because the

court never obtained subject matter jurisdiction over the petition?

2. Whether the Disciplinary Board acted illegally, arbitrarily,

capriciously, or outside the scope of its jurisdiction in convicting the

petitioner of assault and participation in security threat group activity?

3. Whether the petitioner’s due process rights were violated when the

Board recommended an extension to release eligibility date?

Subject matter jurisdiction involves a court's authority to entertain a particular controversy.

Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.1996) (citing Landers

v. Jones, 872 S.W.2d 674, 675 (Tenn.1994)); Wilson v. Tenn. Dep't of Correction, No.

W2005-00910-COA-R3-CV, 2006 WL 325933, at *2 (Tenn.Ct.App. Feb. 13, 2006). Whether a court

has properly dismissed a case due to lack of subject matter jurisdiction is purely a question of law.

Id. (citing Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999)). As such, we review

the trial court’s dismissal of Mr. Cason’s petition for writ of certiorari de novo upon the record, with

no presumption of correctness afforded to that decision. See id.; Tenn. R. App. P. 13(d).

T.C.A. § 27-8-104 (2000) provides, in relevant part, as follows:

(a) The judges of the inferior courts of law have the power, in all civil

cases, to issue writs of certiorari to remove any cause or transcript

thereof from any inferior jurisdiction, on sufficient cause, supported

by oath or affirmation.2

2

This statutory language tracks Article 6, Section 10 of the Tennessee Constitution, which states that:

The Judges or Justices of the Inferior Courts of Law and Equity, shall have power

in all civil cases, to issue writs of certiorari to remove any cause or the transcript

of the record thereof, from any inferior jurisdiction, into such court of law, on

sufficient cause, supported by oath or affirmation.

(continued...)

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(Emphasis added).

Moreover, T.C.A. § 27-8-106 (2000) provides:

The petition for certiorari may be sworn to before the clerk of the

circuit court, the judge, any judge of the court of general sessions, or

a notary public, and shall state that it is the first application for the

writ.

(Emphasis added).

In the instant case, Mr. Cason filed three documents with the trial court on June 5, 2006. The

first document is the “Petition for Common Law Writ of Certiorari.” In this Petition, Mr. Cason

states, in relevant part, that, “[i]n accordance with T.C.A. §27-8-106[,] Petitioner[] avers that this

is the ‘first application for the writ.’” Mr. Cason states that the petition is “[r]espectfully prayed and

submitted,” and he signs same; however, the petition is not sworn to before a clerk, judge, or a notary

public. The Petition also references the second document filed by Mr. Cason, that being the

“Uniform Civil Affidavit of Indigency; and Inmate Affidavit Pursuant to T.C.A. §41-21-805 et seq.

And Inmate Affidavit Pursuant to Art. 6 Sec. 10, Tenn. Const., (mandatory oath or affirmation), and

T.C.A. 27-8-106 (“The petition for certiorari may be sworn to before...a notary public).” This

document contains three sections. In the first section, Mr. Cason states that “the Application for the

Common Law Writ of Certiorari[,] to which this Affidavit is attached, is the first application made

for the Writ of Certiorari and that it is true, accurate and complete to the best of [Mr. Cason’s]

knowledge.” Section two of this document is a pauper’s oath. At the end of the document, Mr.

Cason states: “I hereby swear that all three parts of the foregoing affidavit are true and accurate,” and

he signs the document. Finally, Mr. Cason filed a separate “Uniform Civil Affidavit of Indigency,”

in which he declares, “under penality [sic] of perjury[,] that the foregoing answers are true, correct,

and complete to the best of my knowledge.” This document bears Mr. Cason’s signature, and was

sworn to before a notary public on April 24, 2006.

On appeal, Mr. Cason contends that, because his Petition for writ of certiorari incorporates

by reference the “Uniform Civil Affidavit of Indigency; and Inmate Affidavit...,” the Petition is, in

fact, sworn to and verified. Despite Mr. Cason’s argument that this three-part affidavit was sworn

to before a notary public, our review of this document indicates that it does not bear the signature

and/or seal of a notary public.

As discussed above, the Tennessee Constitution mandates that a writ of certiorari be

supported by an oath or affirmation, see infra fn. 2. Tenn. Const. art. VI, § 10; T.C.A.§27-8- 104(a),

supra. Tennessee law further provides that this "oath or affirmation" in a petition for certiorari "may

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(...continued)

(Emphasis added).

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be sworn to before the clerk of the circuit court, the judge, any judge of the court of general sessions,

or a notary public, and shall state that it is the first application for the writ." T.C.A. § 27-8-106.

There is an important distinction between verifying a petition and notarizing a petition. Verification

helps demonstrate the truth of the petitioner's allegations. See Jackson v. Tenn. Dep't of Correction,

No. W2005-02239-COA-R3-CV, 2006 WL 1491445, at *3 (Tenn.Ct.App. May 4, 2006) ("There is

no doubt that the essence of a verification is truthfulness of the document's contents."); D.T. McCall

& Sons v. Seagraves, 796 S.W.2d 457, 463 (Tenn.Ct.App.1990). Notarization, sometimes referred

to as the acknowledgment, helps demonstrate the petition's proper execution. Id. A petition for a

common law writ of certiorari must not only be verified, but must also be sworn to under oath,

typically through the use of a notary public. Wilson v. Tenn. Dep't of Correction, No.

W2005-00910-COA-R3-CV, 2006 WL 325933, at *3-4 (Tenn.Ct.App. Jan.6, 2006). This sworn and

notarized statement accompanying the petition must declare that the petition's allegations are true

to the best of the petitioner's knowledge. Adams v. Tenn. Dep't of Corrections, No.

M2005-00471-COA-R3-CV, 2007 WL 1574277, at *2 (Tenn.Ct.App. Apr.13, 2007) (citing Bowling

v. Tenn. Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at *3 (Tenn.Ct.App.

Apr.30, 2002)). But on that point, the Court of Criminal Appeals has held, in a similar context, that

"merely swearing to having knowledge of the allegations contained in the petition [for

post-conviction relief] is insufficient to qualify as verification under oath." Montague v. State, No.

E2000-01330-CCA-R3-PC, 2001 WL 1011464, at *2 (Tenn.Crim.App. Sept.4, 2001).3

It is well settled that the "sworn to" language found at T.C.A. § 27-8-106 requires all

petitions for writs of certiorari be verified by an affidavit; otherwise, neither the lower court, nor the

appellate court would obtain jurisdiction over the petition. Depew v. King's, Inc., 276 S.W.2d 728,

728-729 (Tenn.1955) (citing Drainage Dist. No. 4 of Madison County v. Askew, 355 Mo. 349, 196

S.W.2d 147, 148 (Tenn.1917)). Courts have consistently held that the failure of the petitioner to

verify the petition as required by the Tennessee Constitution and the Tennessee Code is proper

grounds for dismissal. Depew v. King's, Inc., 276 S.W.2d 728, 729 (Tenn.1955); Jackson v. Tenn.

Dep't of Correction, No. W2005-02239-COA-R3- CV, 2006 WL 1491445, at *4 (Tenn.Ct.App. May

4, 2006); Bowling v. Tenn. Bd. of Paroles, No. M2001-00138-COA-R3-CV, 2002 WL 772695, at

*3 (Tenn.Ct.App. Apr.30, 2002); Montague, 2001 WL 1011464, at * 2; see also Northland Ins. Co.

v. State, 33 S.W.3d 727, 729 (Tenn.2000) (pointing out that a court only obtains subject-matter

jurisdiction through constitutional or legislative act).

In Wilson v. Tennessee Department of Correction, No. W2005-00910-COA-R3-CV, 2006

WL 325933 (Tenn.Ct.App. Jan.6, 2006), this Court addressed the same issue presented before us in

the present case. In Wilson, we held that the failure of the petitioner to notarize the petition for writ

of certiorari constituted sufficient grounds for dismissal. Id. at *4. In that case, the petitioner also

filed a notarized affidavit of indigency along with the petition. Id. at *4, n. 1. We pointed out that

the accompanying notarized affidavit of indigency was not enough to save a deficient petition: "The

3

Similar to the oath requirement in sections 27-8-104 and 27-8-106 of the Tennessee Code, a petition for

post-conviction relief requires that the petition "shall be verified under oath." T.C.A. § 40-30-104(d) (2006).

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notarization of the affidavit of indigency only indicates that Wilson swore to the facts alleged in that

document." Id.

Likewise, in the case now before us, Mr. Cason has not met the constitutional and statutory

requirements of a common law petition for writ of certiorari because his Petition is not notarized.

Although Mr. Cason does state that he is swearing to the petition's truthfulness by way of the

affidavit of indigency, the Petition itself is not notarized. That the second affidavit of indigency (i.e.

the third document filed by Mr. Cason, see supra) was notarized does not change the fact that the

Petition itself was not notarized. The notarization of the affidavit of indigency only indicates that

Mr. Cason swears to the facts pertaining to his indigent status. Nothing is mentioned as to the

truthfulness of the Petition itself, nor is there any way to know if the notary public even saw the

Petition. Consequently, the Chancery Court did not err in granting the motion to dismiss.

While we are sensitive to the fact that the Appellant filed the petition himself and is also

representing himself in this appeal, those that proceed pro se must nevertheless comply with the

procedural law that those with counsel must follow. Hodges v. Tenn. Att'y Gen., 43 S.W.3d 918,

920 (Tenn.Ct.App.2000); Bowling v. Tenn. Bd. of Paroles, No. M2001-00138-COA-R3- CV, 2002

WL 772695, at * 3, n. 6 (Tenn.Ct.App. Apr.30, 2002). Regardless of whether an individual is

representing himself, this Court lacks the power to waive a jurisdictional requirement. See Depew

v. King's, Inc., 276 S.W.2d 728, 729 (Tenn.1955).

For the foregoing reasons, we affirm the trial court’s dismissal of Mr. Cason’s Petition for

common law writ of certiorari. Costs of this appeal are assessed to the Appellant, William Cason,

for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, P.J., W.S.

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