District of Columbia v. Mark Grimes

MeGOWAN, Circuit Judge

(dissenting) :

The question certified to us by the Court of General Sessions depends for its answer only upon an ascertainment of Congressional intent. That intent is admittedly murky, and has been so for several years because of an apparently in*1345attentive and casual approach to legislative drafting. The resulting problem has, however, been known to exist for quite a long time now to the persons most immediately affected, that is to say, the Corporation Counsel and the United States Attorney. I, therefore, share my colleagues’ impatience with the failure to seek clarification from the only source which can give a completely authoritative answer, namely, the Congress. As the courts struggle' to keep abreast of the rising tide of essential litigation, it is increasingly important that wholly unnecessary burdens of this kind not be imposed upon them.

The fact that I dissent on the merits does not in any way lessen my feeling that this ease, and its predecessors, ought not to be here. It emphasizes, if anything, the cloudy aspect of the problem and the peculiar appropriateness of a Congressional resolution of it.

Since the question is one of legislative intent, the way to approach this case is first to try to discover which government agency Congress probably intended to bring disorderly conduct prosecutions, and only then to consider whether prior decisions of this court support or obstruct the conclusion reached.

Legislative Intent

Section 22-1107 was originally enacted as Sections 5 and 61 of the 1892 “act for the preservation of the public peace and the protection of property within the District of Columbia,” and its violations then carried the penalty of a $25 fine. Section 18 of that 1892 Act, now Section 22-109, specifically provided — and still specifically provides — that

all prosecutions for violations of * * any of the provisions of any of the laws or ordinances provided for by this Act [of 1892] shall be conducted in the name of and for the benefit of the District of Columbia * * *.

In 1901, at the time of the general codification of D. C. law, Congress enacted Section 23-101, a general catchall provision to determine, in the absence of a more specific direction to the contrary elsewhere in the Code, whether prosecutions were to be brought in the name of the United States or in the name of the District of Columbia. Section 23-101 provided, and still provides, that all prosecutions for which the maximum penalty could exceed a fine only or imprisonment not exceeding one year should be conducted in the name bf the United States. Since violations of Section 22-1107 at that time still carried a maximum penalty of a $25 fine only, there was no conflict between Sections 22-109 and 23-101; and disorderly conduct prosecutions continued to be brought in the name of the District of Columbia.

In the District of Columbia Law Enforcement Act of 1953, Congress undertook a fairly extensive overhaul of the criminal provisions of the D. C. Code. One outcome of this revision was the enactment of 22 D.C.Code § 1121, which created new categories of disorderly conduct not already proscribed by Section 22-1107 or other sections of the Code. Congress’ reasons for expanding the crime of disorderly conduct was explained in the House Report:

This subsection [22-1121] is based on a provision of the New York Penal Law which has proved extremely useful in curbing disorderly conduct in that State. There is no similarly comprehensive provision of District law relating to disorderly conduct. Those parts of the New York provision which are satisfactorily covered by existing District law [i. e., section 22-1107] are not included in the new section [22-1121].

H.R.Rep. No. 514, 83d Cong., 1st Sess. 8-9 (1953) (bracketed material inserted). It is clear from this legislative history that Congress viewed the old Section 22-1107 and the new Section 22-1121 as parts of a comprehensive whole patterned *1346after New York law. Further evidence that the two sections were so regarded is found not only in the similarity of the conduct made unlawful in each but also in the equivalence of the penalties for violations of each. The new Section 22-1121 created maximum penalties of a $250 fine or 90 days in jail, or both-, the old Section 22-1107 was amended to carry identical penalties.

This increase in the penalty for disorderly conduct might have created an uncertainty as to which prosecutorial authority — the U. S. Attorney or the Corporation Counsel — should bring such actions. This potential ambiguity lay in the following circumstances: (1) Because a defendant could now receive both a fine and a jail sentence, Section 23-101, if it applied, would require the U. S. Attorney to conduct the prosecutions; (2) the more particular Section 22-109 apparently still applied to prosecutions under Section 22-1107, even though the penalty had been increased, because Section 22-1107 was originally enacted as part of the 1892 Act; but (3) since the new Section 22-1121 was not a part of the 1892 Act, Section 22-109 would apparently not bring its enforcement within the jurisdiction of the Corporation Counsel, and therefore, under the catchall Section 23-101, it would be enforced by the U. S. Attorney. Congress was, however, perhaps aware of this possible predicament, and particularly of the absurd possibility that one part of its comprehensive scheme (Section 22-1107) would be carried out in the name of the District of Columbia while another part (Section 22-1121) would be carried out in the name of the United States. Thus, Congress in 1953 amended the more specific provision — Section 22-109 — arguably to ensure that violations of both disorderly conduct sections would be prosecuted by the same authority, the Corporation Counsel. The italicized phrase, which would effect such an intent, was inserted in section 22-109:

All prosecutions for violations of section 22-1121 or any of the provisions of any of the laws or ordinances provided for by this Act [of 1892] shall be conducted in the name of and for the benefit of the District of Columbia * * *.

The reason why Congress did not refer by name to Section 22-1107 as it did to Section 22-1121 could be because it assumed that since Section 22-1107, unlike Section 22-1121, had been originally enacted as a provision of the 1892 Act, it was already explicitly covered by Section 22-109. This conclusion is again borne out by the legislative history. The same House Report, immediately after discussing the purpose of adding Section 22-1121 to Section 22-1107 to create a comprehensive program identical to that of New York, stated:

This subsection amends section 18 of the act of July 29, 1892 (D.C.Code, sec. 22-109), so as to provide that violations of the new section [22-1121] shall be prosecuted in the name of the District. * * *

H.R.Rep. No. 514, 83d Cong., 1st Sess. 9 (1953) (bracketed material inserted).

In the light of this legislative history — and of all common sense considerations relating to the uniform enforcement of disorderly conduct statutes in the District — it is not an inescapable necessity that we read the statutes as requiring that Sections 22-1107 and 22-1121 be enforced by different agencies. On the contrary, the legislative history and the structure of the Code suggest that violations of both sections were intended to be prosecuted by the Corporation Counsel. The Government has so read the Code, and all disorderly conduct prosecutions under both sections have for the 15 years since 1953 been brought in the name of the District of Columbia.

The Cases

The only question remaining is whether this panel can achieve the result intended by Congress consistently with the four prior decisions of this Court *1347discussed in the briefs, or whether parts of those decisions must be overruled to the extent that they are inconsistent with the instant decisions. My conclusion is that, while at least one of the prior decisions was perhaps incorrect, they can all be distinguished; and that an en banc court need not be convened to overrule any of them.

The most recent discussion of the problem occurred m the opinion m Smith v. District of Columbia, 128 U.S.App.D.C. 275, 387 F.2d 233 (1967). The holding in that case was that the appellants’ disorderly conduct convictions must be set aside because the information had failed to apprise the appellants “with certainty the offense with which they were charged and the possible penalty threatened.” In the course of discussing the network of possibly applicable statutes, Judge Prettyman did say that “so far as we are advised, there is no specific exemption of [Section 22-1107] from the , „ „ „„ , requirements of 23-101, such as was provided m respect to Section 1121.” This opinion did not say, however, much less hold, that Section 22 — 1107 prosecutions had to be brought by the United States. Moreover, the “so far as we are advised” language indicates that the panel did not itself undertake to investigate the question and was not aided by the parties, That observation, then, is far from disabling us from holding that the Corporation Counsel is the proper prosecutorial authority

The earliest decision bearing on this question was that of the Supreme Court of the District of Columbia in the District of Columbia v. Simpson, 40 App.D.C. 498 (1913). The defendant was being prosecuted for refilling used milk bottles in violation of what is now 48 D.C. Code § 303. Since that offense carried a possible maximum penalty of both fine and imprisonment, the court held that, under the catchall Section 23-101, the prosecution must be conducted in the name of the United States. That holding, however, is simply not relevant to the issue in the present case. There was never any question that the answer in Simpson was controlled by Section 23-101, because there was no other more particular statute to the contrary. Section 22-109 did not apply because the provision being enforced had not been a part of the 1892 Act; indeed, it was enacted in 1901, as part of the same act which created Section 23_101 at the time of the general codification of D.C. law.

The next pertinent decision by this court was United States v. Strothers, 97 U.S.App.D.C. 63, 228 F.2d 34 (1955). The certified question was whether the U. S. Attorney or the Corporation Counsel had the authority to prosecute violators of what is now 22 D.C. Code § 2701 (solicitation for prostitution). The court that Section 23-101 applied and that, since the maximum punishment could be botb a fine and a Jail sentence, ¡*e S. Attorney had jurisdiction over the offense. The court rejected the argument ^ gection 22_109 controlled. A1_ though the offenge had first been created by a provision of the 1892 Act, that provision had specifically been repealed in 1935 when Congress enacted the new “Act for the suppression of prostitution in the District of Columbia” and increased the penalty to permit both fine and punishment. The court emphasized that, while tbe original provision had been enforced the Corporation Counsel, after its repeal“ }985 Prosecutions under the new Prostitution statute had uniformly been conducted by the U. S. Attorney. That the court viewed the difference between repeal and amendment as the critical issue is evident from the following excerpt from the opinion:

If, therefore, Section 7 [of the 1892 Act] was in fact repealed, as we hold it was, as distinguished from amended, it is obvious that Section 23-101, D.C. Code, 1951, applies,

228 F.2d at 37. (Emphasis as in original; bracketed material supplied.) Since *1348Section 22-107 has never been repealed since its passage as part of the 1892 Act and was only amended in 1953 to increase the penalty, the Strothers decision affirmatively supports the conclusion that it is to be enforced by the Corporation Counsel.

District of Columbia v. Moody, 113 U.S.App.D.C. 67, 304 F.2d 943 (1962), presents the most difficulty. There the court, in a brief, single-paragraph, per curiam opinion, held that by reason of Section 23-101, prosecutions under 22 D.C. Code § 3112 (destroying property) must be brought in the name of the United States because the offense is punishable by both fine and imprisonment. The, opinion cited Strothers as authority for its holding. The decision seems, however, to be incompatible with the rationale of Strothers. Section 22-3112 was original3y enacted as part of the 1892 Act and was amended — but not repealed —in 1906 to increase the penalty; therefore, Section 22-109 was by its terms applicable, and the prosecution should have been by the Corporation Counsel in the name of the District of Columbia. The Moody result is arguably defensible on the basis of the uncertainty about legislative intent under the circumstances of that case: Sections 23-101 and 22-109 were in apparent conflict and there was no sure guide as to which Congress intended to control. In the instant case, on the other hand, the situation is not that of a bare confrontation between Sections 23-101 and 22-109. There is, rather, a ponderable indication in the legislative history, and in the structure of the statutes, that Congress wanted all disorderly conduct prosecutions to be in the name of the District of Columbia. Therefore, without the necessity of expressing any opinion about the rightness or wrongness of the result in Moody, the court can now hold that at least here Congress has provided some indication that Section 22-109, not Section 23-101, applies to prosecutions under Section 22-1107.

. Sections 5 and 6 were merged in 1898.