Jurisdiction to Have Jurisdiction

I'm in the middle of prepping for a couple things right now. In the next couple weeks, I'm going to go to DC and talk about the devastation and dynamics of pill abuse and then turn around and come right back so that I can give a two hour presentation on all the criminal cases which have come down from the Virginia appellate courts and those cases relevant from the 4th Circuit and federal supreme court (for the local Bar's CLE). I spent the weekend prepping up the CLE stuff so that I could turn it in and have it sent out to all the attendees on a thumb drive. The stuff for the symposium at the law school in DC is still ongoing because of the current insanity that is ongoing in Florida (the governor is trying to kill anti-pill mill activities).

Anyway, in anticipation of the CLE, I've been breaking down the new criminal law cases every month. As you might expect, that means there are a few cases where I jotted down the major rule of the case and have spent no time thinking about the case for several months thereafter. For one in particular, I looked at the note I had taken and was stumped:

Mohamed v. Commonwealth, APR10, VaApp No. 1078-09-4: Although subject matter jurisdiction can be raised at any time, the judge's authority to exercise his subject matter jurisdiction must be raised at trial or it is waived.

I sat there, looking at this and could not, for the life of me, figure out how a judge could have subject matter jurisdiction, but not have the power to exercise it. In my defense, it was getting late and my synapses weren't all firing, but I can still usually figure these things out with a couple minutes thought. Nope, gonna hafta look this one up.

Ah, it's a probation violation case. The court did something after the defendant's probation was over to punish the probationer for something he did while under probation. Hence, the court had subject matter jurisdiction to handle probation violations. However, the appellate court is kind enough to explain to us that the ability to exercise jurisdiction is a totally separate kind of jurisdiction in and of itself. Thus, the defendant could object that the trial court had no subject matter jurisdiction and be wrong because the court has that jurisdiction. However, the failure to object to the “authority to use” jurisdiction waives it.

Wow, that's a mighty thin hair to split. One might even say that inherent in any jurisdictional ability of a court is the authority to use it and that challenging that authority ipso facto is a challenge of the jurisdiction. I think the court's reasoning goes like this:

Subject Matter = Jurisdiction

Authority to Use = Jurisdiction +

It's like splitting can and may. Can is the original jurisdiction. I “can” go to the office next door and punch the guy who works there (and run like heck). I “may” not go over and punch him (silly anti-battery laws). May includes can. If I can't do it whether I may is irrelevant. If I have no cake and someone grants me the right to eat cake it's cruel and may end badly for the grantor, but I still can't eat cake.

Mind you, any jurisdiction still includes within it the authority to exercise the jurisdiction. I think that this kind of analysis could only be used when there is an intervening factor (ending of probationary time) that could end the ability of the court to exercise its power. Perhaps the court would have been better off making the distinction between general subject matter jurisdiction and the trial court's personal jurisdiction over a probationer.