In Re Prosecution of Nicco Settles ( 2019 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-SP-553
IN RE PROSECUTION OF NICCO SETTLES.
On Certification from the Superior Court
of the District of Columbia
(CMD-3451-19)
(Hon. Patricia A. Broderick, Trial Judge)
(Argued September 18, 2019 Decided October 24, 2019)
Mitchell Schwartz for defendant Settles.
Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman and Jeffrey A. Wojcik, Assistant
United States Attorneys, were on the brief, for the United States.
John D. Martorana, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief for the
District of Columbia.
Before EASTERLY and MCLEESE, Associate Judges, and OKUN, Associate
Judge of the Superior Court of the District of Columbia. *
MCLEESE, Associate Judge: The United States Attorney for the District of
Columbia charged defendant Nicco Settles with violating a D.C. Code provision
*
Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
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prohibiting unauthorized disposal of solid waste. D.C. Code § 8-902(a) (2013
Repl.). Mr. Settles argues that he can be prosecuted for that offense only by the
Office of the Attorney General (OAG) on behalf of the District of Columbia. The
United States and the District of Columbia both take the position that the offense is
properly prosecuted by the United States. The trial court properly certified that issue
to this court. D.C. Code § 23-101(f) (2012 Repl.). This court must “hear and
determine the question in a summary way.” Id. We conclude that the offense is
properly prosecuted by the District of Columbia.
I. Background
For over a hundred years, the authority to conduct criminal prosecutions in
the District of Columbia has been divided between the United States and the local
government of the District of Columbia. In re Crawley, 978 A.2d 608, 610 (D.C.
2009) (citing An Act To establish a code of law for the District of Columbia, ch.
854, § 932, 31 Stat. 1189, 1340-41 (1901)). The boundaries of that division are
established by D.C. Code § 23-101. Id. That section has a number of provisions
allocating prosecutorial authority between the United States and the District of
Columbia. Id. This case requires us to focus primarily on one: a provision that
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grants the District of Columbia authority to prosecute violations of “police or
municipal ordinances or regulations.” D.C. Code § 23-101(a).
The provision under which Mr. Settles has been charged, D.C. Code § 8-
902(a), was originally enacted by the Council of the District of Columbia in 1994.
Illegal Dumping Enforcement Act of 1994, D.C. Law 10-117, § 3, 41 D.C. Reg. 524,
525 (1994). In its current form, § 8-902(a) reads as follows:
It shall be unlawful for any person to dispose or cause or
permit the disposal of solid waste, hazardous waste, or
medical waste in or upon any street, lot, park, public place,
or any other public or private area, whether or not for a
commercial purpose, unless the site is authorized for the
disposal of solid waste, hazardous waste[,] or medical
waste by the Mayor.
Violations of § 8-902 for a commercial purpose or involving knowing
disposal of hazardous or medical waste are felonies carrying a maximum penalty of
a fine of $40,000 and imprisonment for five years. D.C. Code § 8-902(b)(2)-(4).
All of the participants in this case agree that such felony prosecutions must be
brought by the United States. See, e.g., In re Crawley, 978 A.2d at 614 (discussing
statement in legislative history of Congress’s 1970 amendments to D.C. Code § 23-
101 that “the United States Attorney would continue to prosecute all felonies and
the more serious misdemeanors”) (internal quotation marks omitted).
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Mr. Settles has not been charged with committing the offense for a
commercial purpose or with knowingly disposing hazardous or medical waste,
however, and it appears to be undisputed that this would be Mr. Settles’s first
violation of § 8-902. The offense charged in this case therefore is a misdemeanor
carrying a maximum penalty of a fine of $5,000 and imprisonment for ninety days.
D.C. Code § 8-902(b)(2). Our holding in this case is limited to such violations.
II. Discussion
Whether this misdemeanor prosecution is for a violation of a police or
municipal ordinance or regulation within the meaning of § 23-101(a) is a question
of statutory interpretation. We decide that question de novo. Williams v. Kennedy,
211 A.3d 1108, 1110 (D.C. 2019). “The first step in construing a statute is to read
the language of the statute and construe its words according to their ordinary sense
and plain meaning.” Chase Plaza Condo. Ass’n v. JPMorgan Chase Bank, N.A., 98
A.3d 166, 172 (D.C. 2014) (internal quotation marks omitted). We interpret
statutory language in light of the historical context in which the statute was enacted.
See, e.g., Perrin v. United States, 444 U.S. 37, 42 (1979) (in interpreting statutory
term, Court looks to meaning of term at time statute was enacted). “We also consider
statutory context and structure, evident legislative purpose, and the potential
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consequences of adopting a given interpretation.” Williams, 211 A.3d at 1110. “We
may also look to the legislative history to ensure that our interpretation is consistent
with legislative intent.” Id. (internal quotation marks omitted). In interpreting a
statute, we are bound by the holdings of our prior decisions interpreting the statute.
Doe by Fein v. District of Columbia, 697 A.2d 23, 30-31 (D.C. 1997).
A. Ordinary Meaning
We turn first to the ordinary meaning of the phrase “police or municipal
ordinances or regulations.” To a modern ear, “police” most immediately suggests
law-enforcement officers. See, e.g., Black’s Law Dictionary 1344 (10th ed. 2004)
(defining “police” to mean “1. The governmental department charged with the
preservation of public order, the promotion of public safety, and the prevention and
detection of crime. 2. The officers or members of this department.”). “Police” can
have a far broader scope, however. For example, in phrases such as “police power”
it can refer to “[t]he inherent and plenary power of a sovereign to make all laws
necessary and proper to preserve the public security, order, health, morality, and
justice.” See, e.g., id. at 1345. “Municipal” is generally understood to mean “[o]f,
relating to, or involving a city, town, or local government unit.” See, e.g., id. at
1175. “Ordinance” is defined as “[a]n authoritative law or decree; specif., a
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municipal regulation, esp. one that forbids or restricts an activity. • Municipal
governments can pass ordinances on matters that the state government allows to be
regulated at the local level.” See, e.g., id. at 1273. Finally, “regulation” nowadays
naturally brings to mind rules promulgated by administrative agencies. See, e.g., id.
at 1475 (defining “regulation” to mean, inter alia, “[a]n official rule or order, having
legal force, usu. issued by an administrative agency”). Nevertheless, the term is in
some contexts understood to include legislative enactments. See, e.g., D.C. Code
§ 47-802(6) (2015 Repl.) (defining “regulation” to include certain acts “enacted” by
Council of District of Columbia); Olson v. Molacek Bros. of Calloway, Minn., 341
N.W.2d 375, 378 (N.D. 1983) (“The term ‘state and federal regulations’ necessarily
includes statutes in addition to any rules.”).
Considered in isolation, the phrase “police or municipal ordinances or
regulations” thus could potentially include all legislative acts and administrative
rules of the District of Columbia local government. Both the structure of § 23-101
and our case law interpreting that provision indicate, however, that the phrase must
be read more narrowly.
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B. Statutory Structure
Section 23-101(b) specifies the appropriate prosecutor for certain particular
offenses. Otherwise, § 23-101 divides criminal offenses into three general
categories: violations of “police or municipal ordinances or regulations,” which are
prosecuted by the District of Columbia, § 23-101(a); violations of “penal statutes in
the nature of police or municipal regulations,” which are prosecuted by the District
of Columbia as long as the “maximum punishment is a fine only, or imprisonment
not exceeding one year,” but not both, id.; District of Columbia v. Moody, 304 F.2d
943 (D.C. Cir. 1962) (per curiam); and all others, which (subject to specific statutory
exceptions) are prosecuted by the United States, D.C. Code § 23-101(c). Thus,
determining the appropriate prosecutor for an offense often requires distinguishing
between “police or municipal ordinances or regulations” and “penal statutes.”
Drawing that distinction is not a simple task, because the phrase “penal
statutes” considered in isolation could also be understood very broadly, to reach all
provisions imposing criminal penalties. See, e.g., Black’s Law Dictionary 1313
(defining “penal” to mean “[o]f, relating to, or being a penalty or punishment, esp.
for a crime”), 1633 (defining “statute” to mean “[a] law passed by a legislative body;
specif., legislation enacted by any lawmaking body, such as a legislature,
8
administrative board, or municipal court”); Brady v. Ralph M. Parsons Co., 609
A.2d 297, 305 (Md. 1992) (for purposes of certain sections in Restatement (Second)
of Torts, term “statute” “is intended to include ordinances and administrative
regulations”).
On the other hand, the term “statute” is more typically understood to exclude
administrative regulations. See, e.g., United States v. Mersky, 361 U.S. 431, 437
(1960) (“An administrative regulation, of course, is not a statute.”) (internal
quotation marks omitted). Moreover, courts -- including this court -- have in some
contexts distinguished between statutes and municipal ordinances. See, e.g.,
Newspapers, Inc. v. Metro. Police Dep’t, 546 A.2d 990, 990-1001 (D.C. 1988)
(provision adopted by Board of Commissioners of District of Columbia was
ordinance rather than statute, for purposes of District of Columbia Freedom of
Information Act, because Board of Commissioners had “regulatory powers,” rather
than statutory powers later conferred on Council of the District of Columbia pursuant
to Home Rule Act (now codified at D.C. Code § 1-201.01 et seq. (2016 Repl.))).
Because § 23-101 distinguishes between “police or municipal ordinances or
regulations” and “penal statutes,” neither of those phrases can reasonably be read so
expansively as to swallow up the other. Beyond that, the structure of § 23-101
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provides limited guidance about the scope of either phrase. Fortunately, we do not
write on a blank slate, because the courts of this jurisdiction have in several prior
cases decided whether particular provisions were or were not “police or municipal
ordinances or regulations” for purposes of § 23-101(a). E.g., In re Hall, 31 A.3d
453 (D.C. 2011). Those cases have not formulated a unitary conceptual test for
distinguishing between police or municipal ordinances or regulations and penal
statutes. Rather, we have identified a number of relevant but not necessarily
dispositive factors to be considered in determining which category applies to a given
offense. We address those factors in turn.
C. Local Regulation or General Prohibition
In construing § 23-101(a), we have said that “[a] municipal ordinance or
police regulation is peculiarly applicable to the inhabitants of a particular place.” In
re Monaghan, 690 A.2d 476, 478 (D.C. 1997) (ellipsis and internal quotation marks
omitted). We have contrasted such provisions, “designed to regulate . . . in
accordance with the requirements of local conditions,” with provisions that “deal[]
with a subject matter general in character” and are “designed absolutely to prohibit.”
Id. (emphasis and internal quotation marks omitted). This consideration points in
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favor of a conclusion that the offense charged in this case is a violation of a police
or municipal ordinance or regulation.
District of Columbia law does not absolutely prohibit the disposal of solid
waste but rather regulates such disposal, specifying how, where, and by whom such
waste is to be collected, transported, stored, and processed. 21 DCMR § 700 et seq.
(2019). D.C. Code § 8-902(a) makes it an offense to dispose of solid waste at a
location that has not been authorized by the Mayor. Violation of that provision can
be the basis for criminal prosecution or for imposition of civil penalties. D.C. Code
§ 8-902(b), (c).
Section 8-902 thus fits comfortably in the category of provisions that “regulate
. . . in accordance with the requirements of local conditions.” In re Monaghan, 690
A.2d at 478. The District of Columbia argued to the contrary in its brief but appeared
to agree at oral argument that § 8-902 operates as a local regulation rather than an
absolute prohibition. In any event, we are not persuaded by the argument in the
District of Columbia’s brief. It is true that § 8-902(a) absolutely prohibits illegal
disposal of solid waste. That is at bottom a circular point, however, because criminal
provisions by definition prohibit whatever they make illegal. The relevant point is
that § 8-902 prohibits solid-waste disposal at certain locations in the District of
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Columbia (those not authorized by the Mayor) and permits solid-waste disposal at
other locations in the District of Columbia (those authorized by the Mayor). Section
8-902 is thus explicitly tied to local conditions.
D. History of Regulation and Enforcement
In construing § 23-101, we have also considered whether the District of
Columbia or the United States has historically regulated and prosecuted the conduct
at issue. See, e.g., In re Hall, 31 A.3d at 457 (in holding that offenses of possession
of unregistered firearm (UF) and unlawful possession of ammunition (UA) are under
prosecutorial authority of District of Columbia, court relies on “the District’s long
history of firearms regulation”); In re Monaghan, 690 A.2d at 479 (in holding that
solicitation for purpose of prostitution is under prosecutorial authority of United
States, court relies on fact that United States had prosecuted such conduct since
1935). This consideration also points in favor of a conclusion that the offense
charged in this case is a violation of a police or municipal ordinance or regulation.
The history of waste regulation by the local government of the District of
Columbia traces back at least to the early 1800s. See, e.g., Andrew Rothwell, Laws
of the Corporation of the City of Washington 29 (1833) (1803 provision enacted by
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the City Council of Washington imposing penalties for failure to remove “all fish or
other offensive substances, or nuisances or obstructions”); Corporation Laws of the
City of Washington 159-60 (James W. Sheahan comp., 1853) (1853 provision
enacted by Board of Aldermen and Board of Common Council of city of Washington
imposing penalties for violations of rules relating to rubbish); 1 Supplement to the
Revised Statutes of the United States 304 (William A. Richardson ed., 1891) (1875
ordinance imposing penalties for violations of rules relating to filth and other
offensive substances detrimental to health).
In 1887, Congress authorized the Commissioners of the District of Columbia
to “make . . . usual and reasonable police regulations” on various topics, including
litter on streets or sidewalks. 24 Stat. 368, 368-69, ch. 49, § 1 (1887) (now codified
as amended at D.C. Code § 1-303.01 (2016 Repl.)). In 1892, Congress more
generally authorized the Commissioners of the District of Columbia to “make . . .
usual and reasonable police regulations” as deemed “necessary for the protection of
lives, limbs, health, comfort and quiet of all persons and the protection of all property
within the District of Columbia.” 27 Stat. 394, Res. No. 4, § 2 (1892) (now codified
as amended at D.C. Code § 1-303.03 (2016 Repl.)). Finally, in 1895, Congress
authorized the Commissioners of the District of Columbia to “make necessary
regulations for the collection and disposition of garbage in the District of Columbia,
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and to annex to said regulations such penalties as will secure the enforcement
thereof.” 28 Stat. 744, 758, ch. 176 (1895) (codified as amended at D.C. Code § 6-
501 (1995 Repl.); repealed by Sustainable Solid Waste Management Amendment
Act of 2014, D.C. Law 20-154, § 301(a), 61 D.C. Reg. 9971, 9988 (2014), 62 D.C.
Reg. 3600 (2015)).
At some point before 1902, the Commissioners of the District of Columbia
adopted “[e]laborate regulations” governing the treatment of waste. Dupont v.
District of Columbia, 20 App. D.C. 477, 479 (D.C. Cir. 1902). By 1906, the District
of Columbia’s waste regulations had been made part of the “Police Regulations of
the District of Columbia,” which was an extensive collection of local regulations
promulgated by the Commissioners of the District of Columbia. Police Regulations
of the District of Columbia 66-69 (Gibson Bros. 1906). Those regulations provided
for a criminal penalty of a fine of up to $40. Id at 69. It appears to be undisputed
that the substantial role of the District of Columbia local government in the
regulation of waste has continued without interruption to the present day. See, e.g.,
Police Regulations of the District of Columbia 108-12 (1940); 6A DCRR § 8:3-601
et seq. (1971); 21 DCMR § 700 et seq. (2019).
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In 1986, the Council of the District of Columbia eliminated the criminal
penalties that had been applicable to violations of the waste regulations. Litter
Control Administration Act of 1985, D.C. Law 6-100, § 2, 33 D.C. Reg. 781 (1986)
(codified at D.C. Code § 6-2901 et seq. (1989 Repl.)). The Council retained civil
penalties for such violations. D.C. Law 6-100, § 3, 33 D.C. Reg. at 781-82 (codified
at D.C. Code § 6-2902(a)(2) (1989 Repl.)). In 1994, however, the Council enacted
the provision at issue in this case, which as previously noted provides civil and
criminal penalties for unauthorized disposal of waste. Illegal Dumping Enforcement
Act, 41 D.C. Reg. at 525 (now codified as amended at D.C. Code § 8-902). As
originally enacted, § 8-902 provided for a maximum penalty, for first offenses, of a
fine of $1,000 and imprisonment for sixty days. Id. The maximum penalty
applicable to first offenses was subsequently increased to a fine of $5,000 and
imprisonment for ninety days. Illegal Dumping Enforcement Amendment Act of
1998, D.C. Law 12-90, § 2(b)(2), 45 D.C. Reg. 1308, 1310 (1998); Illegal Dumping
Enforcement Amendment Act of 2006, D.C. Law 16-96, § 2(a)(1), 53 D.C. Reg.
1661, 4229 (2006).
In contrast to the abundant evidence of local government regulation of solid-
waste disposal in the District of Columbia, information about criminal prosecution
is relatively scanty. In 1902, a defendant was convicted of violating the District of
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Columbia’s waste regulations, in a prosecution conducted by the District of
Columbia, and was fined thirty dollars. Dupont, 20 App. D.C. at 478-82. We have
found three other reported decisions involving criminal prosecutions based on
violations of local District of Columbia regulations governing the treatment of waste,
and all of those prosecutions were conducted by the District of Columbia. Darling
Del. Corp. v. District of Columbia, 380 A.2d 596 (D.C. 1977); Nash v. District of
Columbia, 28 App. D.C. 598 (D.C. Cir. 1907); Mann v. District of Columbia, 22
App. D.C. 138 (D.C. Cir. 1903). We have not found any reported decisions
involving a criminal prosecution for violating § 8-902.
In sum, the local government of the District of Columbia has regulated solid-
waste disposal in the District of Columbia for over 200 years. As far as we have
been able to determine from the reported cases, criminal prosecutions for offenses
involving solid-waste disposal have historically been conducted by the District of
Columbia. These considerations weigh in favor of concluding that the District of
Columbia has prosecutorial authority over the instant offense. In re Hall, 31 A.3d
at 457.
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E. Placement in D.C. Code
The provision at issue in this case was originally codified in Title 6 of the D.C.
Code, which at the time was entitled “Health and Safety.” D.C. Code § 6-2912 (1995
Repl.). The provision was subsequently recodified in Title 8 of the Code, which is
entitled “Environmental and Animal Control and Protection.” D.C. Code § 8-902
(2013 Repl.). Codification of the provision in those titles of the Code, rather than in
Title 22, which is entitled “Criminal Offenses and Penalties” (2012 Repl.), tends to
suggest that the provision is a police or municipal ordinance or regulation rather than
a penal statute. See, e.g., In re Hall, 31 A.3d at 457 (“Consistent with the treatment
of firearms regulations as regulatory rather than penal, the UF and UA provisions
are codified in Title 7 of the D.C.[ ]Code, which relates to Human Health Care and
Safety, rather than in the titles related to criminal law or procedure.”); cf. also
McNeely v. United States, 874 A.2d 371, 390 n.26 (D.C. 2005) (“While not
controlling, the Act’s codification under Title 6 dealing with Health and Safety is
some indication that it is considered regulatory in nature.”).
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F. Legislative History of § 8-902
The legislative history of § 8-902 indicates that the District of Columbia
Department of Public Works advised the Council of the District of Columbia that
criminal prosecutions under § 8-902 would be conducted by the District of
Columbia. D.C. Council, Report on Bill 10-249, Attach. F at 3 (June 11, 1993) (“The
Corporation Counsel will represent the District before the Superior Court . . . in
criminal prosecutions.”). The committee report reflects that understanding. Report
at 14 (explaining that District of Columbia could arrest violators and enforce
provisions of bill). This consideration also supports the conclusion that the charged
offense is within the prosecutorial authority of the District of Columbia.
The United States argues, however, that “in deciding questions of
prosecutorial authority the Council’s intent is irrelevant.” We disagree. We held in
In re Crawley that the Council of the District of Columbia lacks authority to change
the criteria established by Congress under § 23-101 to govern the division of
prosecutorial authority. 978 A.2d at 620. That does not mean, however, that the
Council’s intent is irrelevant when we are trying to decide whether a given enactment
should be understood as a police or municipal ordinance or regulation or instead
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should be understood as a penal statute. We see no reason to ignore such legislative
intent in the current context.
G. Dual Prosecutors under Single Provision
As previously noted, it is undisputed that the United States has prosecutorial
authority over felony violations of § 8-902. If the District of Columbia has
prosecutorial authority over violations of § 8-902 such as the misdemeanor offense
charged in this case, then two different prosecutors will have prosecutorial authority
under a single provision. This court has been reluctant to interpret § 23-101 to
establish divided prosecutorial authority over a single provision, because of the
practical problems such a division of authority can create. See, e.g., In re Monaghan,
690 A.2d at 478-79 (where United States concededly had prosecutorial authority
over repeat offenses for soliciting for purpose of prostitution, treating prosecution
for first offenses as within prosecutorial authority of District could create problems,
such as uncertainty as to proper prosecutor based on uncertainty as to whether
offense was first offense or repeat offense). This consideration is not dispositive,
however. See In re Hall, 31 A.3d at 457 n.3 (holding that District of Columbia had
prosecutorial authority over first violations of UF and UA statutes even though
District of Columbia concededly did not have prosecutorial authority over
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prosecution under those provisions for repeat offenses, as to which penalty of over
one year of imprisonment was authorized).
H. Penalties
As this court explained in In re Hall, “an offense traditionally enforced by the
District as a police regulation may be converted into a penal statute . . . if the Council
sufficiently increases the penalty for its violation.” 31 A.3d at 456 n.2. The court
went on to hold in In re Hall that the penalties then applicable to first offenses under
the UF and UA provisions -- a fine of up to $1,000, imprisonment of up to one year,
or both -- were “not so great as to render these provisions inappropriate for
enforcement by the OAG.” Id.; see also id. at 455. In contrast, the court stated in
dicta in In re Crawley that a statute imposing penalties of a fine of up to $100,000,
imprisonment for up to one year, or both, was not “a punishment in the nature of one
that would flow from a violation of something akin to a police or municipal
ordinance.” 978 A.2d at 611 n.3.
The maximum penalty applicable to the instant offense is a fine of up to
$5,000 and imprisonment of up to ninety days. D.C. Code § 8-902(b)(2). Although
the maximum fine for first offenders thus is $4,000 greater under § 8-902 than under
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the UF and UA statutes, the maximum term of imprisonment for first offenders is
about nine months less under § 8-902 than under the UF and UA statutes.
Considered as a whole, the maximum penalty for first offenses under the UF and UA
statutes is significantly harsher than the maximum penalty for the offense alleged in
this case. As the Supreme Court explained in a different legal context, “[p]enalties
such as probation or a fine may engender a significant infringement of personal
freedom . . . , but they cannot approximate in severity the loss of liberty that a prison
term entails.” Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989) (internal
quotation marks omitted); see United States v. Nachtigal, 507 U.S. 1, 5 (1993) (per
curiam) (“While the maximum fine in this case is $4,000 greater than the one in
Blanton, this monetary penalty cannot approximate in severity the loss of liberty that
a prison term entails.”) (internal quotation marks omitted).
We therefore conclude that the penalties potentially applicable to the violation
of § 8-902 charged in this case are “not so great as to render the[] provision[]
inappropriate for enforcement by the OAG.” In re Hall, 31 A.3d at 456 n.2.
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I. Balancing Relevant Considerations
We conclude that the balance of relevant considerations supports the
conclusion that the District of Columbia has prosecutorial authority over the offense
charged in this case. Specifically, § 8-902 is tied to local conditions rather than an
absolute general prohibition; there is a long history of local regulation of solid-waste
disposal; prior criminal prosecutions involving such disposal appear to have
historically been conducted by the District of Columbia; the offense at issue was not
codified in the Title of the D.C. Code devoted to criminal offenses; and the
applicable penalties in this case do not exceed those appropriate for enforcement by
the District of Columbia. The only consideration pointing toward the opposite
conclusion is the undesirability of having dual prosecutors responsible for
prosecutions arising under a single provision. This overall balance of considerations
is in our view not meaningfully distinguishable from the balance of considerations
in In re Hall, 31 A.3d at 456-58. We therefore conclude, as we did in In re Hall,
that the offense at issue is under the prosecutorial authority of the District of
Columbia.
We are not persuaded by the remaining arguments to the contrary pressed by
the United States. First, the United States argues that this case is distinguishable
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from In re Hall, because the UF and UA statutes at issue in In re Hall were “direct
descendants of,” and “substantially similar to,” prior police regulations. In re Hall,
31 A.3d at 454-55. We did use those phrases in In re Hall to describe the relationship
of the UF and UA statutes to the prior police regulations, but we did not suggest that
those phrases established categorical prerequisites. To the contrary, our emphasis
was more broadly on the long history of criminal regulation of firearms and
ammunition by the District of Columbia. See id. at 453-54 (“Because the District of
Columbia long has possessed the authority to regulate the possession of firearms and
ammunition, including the authority to punish violations of these regulations with
both fines and imprisonment, we hold . . . that the OAG is the proper authority to
prosecute the possession of unregistered firearms and unlawful possession of
ammunition.”), 457 (“The treatment of the UF and UA provisions as regulatory
rather than penal in nature comports with the District’s long history of firearms
regulation.”).
Second, the United States points out that, for an eight-year period from 1986
to 1994, no criminal penalties applied to violations of the regulations relating to
solid-waste disposal. See supra p. 13-14. We do not view that fact as supporting
the United States’s position. During that eight-year period, solid-waste violations
were regulated by the District of Columbia exclusively through civil fines. The
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choice of the District of Columbia to experiment for a time with purely civil
regulation supports rather than undermines the conclusion that solid-waste disposal
has historically been a matter of local regulation rather than general penal
prohibition.
Third, the United States argues that § 8-902 is not properly viewed as a police
regulation because § 8-902 was enacted by the Council of the District of Columbia
and placed in the D.C. Code, rather than being promulgated through the
administrative rulemaking process and placed in the D.C. Municipal Regulations.
The United States’s argument on this point finds some support in dicta from In re
Perrow, 172 A.3d 894, 901 n.14 (D.C. 2017) (although parties did not raise issue,
court indicates in dicta that voyeurism statute “is not a police ordinance or regulation
because voyeurism is a D.C. Council enactment, not a pronouncement from the
police department”). The United States’s argument, however, is squarely
contradicted by our holding in In re Hall that the UF and UA statutes were “police
regulations” within the meaning of § 23-101(a), even though they were enacted as
legislation by the Council of the District of Columbia and placed in the D.C. Code.
31 A.3d at 456-57. More generally, the term “regulation” has long and often been
applied in the District of Columbia to refer to local enactments by legislative and
quasi-legislative entities. See, e.g., In re Crawley, 978 A.2d at 612 (“With time, the
24
Board of Commissioners became more than a mere administrative agency,
possessing significant legislative authority obtained by a broad delegation of police
power from Congress to promulgate reasonable and usual police regulations.”)
(internal quotation marks omitted); cf., e.g., D.C. Code §§ 1-206.02(a)(8) (2016
Repl.) (prohibiting Council of District of Columbia from “[e]nact[ing] any . . .
regulation” on particular topic), 1-303.03 (Council of District of Columbia may
“make” regulations), 47-802(6) (2015 Repl.) (defining “regulation” to include
certain acts “enacted” by Council of District of Columbia). Thus, the Council of the
District of Columbia has on numerous occasions enacted legislation with provisions
to be placed among the District of Columbia Municipal Regulations. See, e.g.,
Comprehensive Plan Amendment Act of 2006, D.C. Act 16-637, 54 D.C. Reg. 924
(2007) (amending Title 10 of DCMR); Solid Waste Regulations Amendments Act
of 1983, D.C. Act 5-37, 30 D.C. Reg. 3331 (1983) (amending, inter alia, 21 DCMR
§ 703).
In other words, the governmental history of the District of Columbia is
inconsistent with applying in the current context a categorical formal distinction
between (1) statutes enacted by a legislature and placed in the District of Columbia
Code and (2) regulations adopted by administrative agencies and placed in the
District of Columbia Municipal Regulations. We do not go so far as to say that such
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formal characteristics are irrelevant. We do conclude, however, as we did with
respect to the UF and UA provisions at issue in In re Hall, that § 8-902’s enactment
by the Council of the District of Columbia and codification in the D.C. Code does
not preclude § 8-902 from being a police or municipal ordinance or regulation within
the meaning of § 23-101(a).
Finally, no one in this case has briefed the question whether the applicable
penalties under § 8-902 in this case exceed the maximum penalties that the Council
of the District of Columbia may impose for violations of regulations. See D.C. Code
§ 1-303.05 (2016 Repl.) (Council of District of Columbia may “prescribe reasonable
penalties of a fine not to exceed $300 or imprisonment not to exceed 10 days, in lieu
of or in addition to any fine” for violations of regulations promulgated pursuant to
D.C. Code §§ 1-303.01, .03, and .04 (2016 Repl.)). We express no view on that
question, because we conclude in any event that with respect to the offense charged
in this case, § 8-902 could properly be viewed as an ordinance for purposes of § 23-
101(a). We do note, however, that § 1-303.05’s limitation applies by its terms only
to regulations promulgated under certain grants of authority, and the Council of the
District of Columbia has had other sources of authority for making regulations. See,
e.g., D.C. Code § 1-303.43 (2016 Repl.) (authority to make firearms regulations);
D.C. Code § 6-501 (1995 Repl.) (authority to make regulations relating to garbage
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and “to annex to said regulations such penalties as will secure the enforcement
thereof”) (repealed by Sustainable Solid Waste Management Amendment Act of
2014, D.C. Law 20-154, § 301(a), 61 D.C. Reg. 9971, 9988 (2014), 62 D.C. Reg.
3600 (2015)).
For the foregoing reasons, we hold that the offense charged in this case is
subject to the prosecutorial authority of the District of Columbia. We therefore
remand the case to the Superior Court for further proceedings. See In re Crawley,
978 A.2d at 620 n.14 (after court concludes that prosecution had been brought by
incorrect prosecutor, court remands case “to allow the trial court to determine in the
first instance what should happen next”).
So ordered.