ARRINGTON v. U.S.

• Decision Date: 28 January 1991
• Docket Number: No. 89-737,No. 89-638,No. 89-736,No. 89-637,89-637,89-638,89-736,89-737
• Citation: 585 A.2d 1342
• Parties: Jesse J. ARRINGTON, Appellant, v. UNITED STATES, Appellee. and Anthony BURNETTE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

585 A.2d 1342

Jesse J. ARRINGTON, Appellant, v. UNITED STATES, Appellee. andAnthony BURNETTE, Appellant, v. UNITED STATES, Appellee.

Nos. 89-637, 89-638, 89-736 and 89-737.

District of Columbia Court of Appeals.

Argued November 6, 1990.

Decided January 28, 1991.

Appeal from the Superior Court, Joseph M. Hannon, Robert M. Scott, George Herbert Goodrich and Henry H. Kennedy, Jr., JJ.

James J. Fishel, appointed by this court, for appellants.

Diane M. Munson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Thomas J. Tourish, Jr., Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and FERREN and TERRY, Associate Judges.

ROGERS, Chief Judge:

These appeals challenge the validity of the District of Columbia Controlled Substances Act, D.C.Code §§ 33-501 et seq. (1988) (the Act), on the grounds that the Act became invalid when the Mayor failed to republish the schedules of controlled substances as required by D.C.Code § 33-523 (1988), and is unconstitutionally vague. Appellant Arrington also contends that the trial judge erred in denying his motion to withdraw his guilty plea since the judge failed to ask individual questions about each of the constitutional rights that would be waived by his plea.

We hold that appellants' statutory challenge fails in view of the intent of the Council of the District of Columbia to require republication only when revisions are made to the schedules. Finding the other claims meritless, we affirm their convictions.¹

I

D.C.Code § 33-523 (1988) provides:

The Mayor shall revise and republish the schedules semiannually for 2 years from August 5, 1981, and thereafter annually. The published schedules may include the brand or trade names of the substances controlled.

Appellants contend that the plain language of the Act is unambiguous, and, consequently, the Mayor's failure to republish the schedules semiannually and annually as required caused the schedules to become invalid. They maintain, moreover, that the absence from Schedule II of thephrase "unless and until amended," or similar language as appears in the other schedules and in the federal statute, also makes clear that the failure to republish, even in the absence of any revision, caused the listed substances in the previously published schedules to cease to be "controlled substances," D.C.Code § 33-501(4), and hence their convictions must be reversed.²

In interpreting a statute, the court has often indicated that reliance on the "plain language" of the statute may not suffice when to do so would produce a result that is contrary to the intent of the legislature. Thus, in Carpenter v. United States, 475 A.2d 369 (D.C. 1984), the court, in examining the same statute at issue here, looked beyond the literal language of the Act to the "shape of the statute as well as to its legislative history." Id. at 373.³ The same approach was taken in Corbin v. United States, 481 A.2d 1301 (D.C. 1984), in determining the meaning of the Act.⁴ In view of the court's determination that the meaning of the word "shall" is not always a mandatory command, but may be directory,⁵ it is appropriate for the court to follow a similar analysis here. See Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc) (although words in statute may be superficially clear, the court "may refuse to adhere strictly to the plain wording of a statute in order 'to effectuate the legislative purpose,' as determined by a reading of the legislative history or by an examination of the statute as a whole") (citations omitted).

The Act, which became effective August 5, 1981, was designed "to achieve a greater degree of uniformity between federal laws, District laws and the laws of those states which have enacted uniform controlled substance laws" and to "clearly identify those substances which are to be subject to control." COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 4-123, THE DISTRICT OF COLUMBIA UNIFORM CONTROLLED SUBSTANCES ACT OF 1981, at 1 (1981) (REPORT). Unlike prior statutes, which had employed cumbersome procedures for altering the lists of controlled substances, the Act authorized the Mayor to add or delete controlled substances from the various schedules in the Act so that the District of Columbia could respond promptly to outlaw newly identified dangeroussubstances.⁶ REPORT at 5. Since its enactment, contrary to the statements in the briefs of the parties on appeal, the Mayor has republished portions of the schedules on five occasions, beginning in February 1985.⁷

The legislative history makes clear that the republication requirement was designed to keep the public apprised whenever changes were made to the listings of controlled substances in the schedules. The Report of the Judiciary Committee states that "[t]he results of these changes in the scheduling of substances would be published semi-annually for two years and thereafter annually." Id. This could be read to suggest that republication was required regardless of whether the schedules were changed in any way. In its analysis of the provision enacted and codified as D.C.Code § 33-523, however, the Report explained that:

[This section] provides for the publication by the Mayor of revised schedules twice a year for 2 years and thereafter annually. These revised schedules shall contain all the administrative changes made by the Mayor within each period and may also include the trade or brand names of the substances controlled. The use of brand names is to be encouraged since it will enable both law enforcement officials and the general public to identify the substances controlled more easily.

Id. at 23 (emphasis added).

The D.C. Council apparently contemplated that the Mayor would revise the schedules within a fairly short time after the Act became effective. Under such circumstances, the Council called for prompt publication. Appellants have not suggested, much less proffered, and we have not found any indication, that the Mayor revised any of the schedules before 1985. Nothing in the legislative history remotely suggests that the failure of the Mayor to republish unrevised schedules, much less revised schedules, would have the effect of legalizing or making lawful the possession, use, manufacture, distribution, and the like, of controlled substances in previously published schedules.⁸ Moreover, appellants have not suggested that they were not on notice at the time of their offenses that the drugs involved were controlled substances under the Act.⁹

Appellants contend, however, that because language in the federal act,¹⁰ providingthat the schedules shall remain in effect "unless and until amended," does not appear in Schedule II of the Act, the D.C. Council must have intended that the failure to republish Schedule II would result in its invalidation. We disagree.

Six federal circuit courts of appeal have rejected republication arguments similar to that advanced by appellants.¹¹ The "unless and until" language was relied upon by the Fifth Circuit in Thor, supra note 11, 554 F.2d at 763, as a signal that Congress did not intend automatic repeal in the event of non-publication. But the language was not the touchstone of the court's analysis, which focused instead on the statute as a whole:

[w]hen one examines the Act's overall scheme with respect to the content of the controlled substances schedules, then the purpose of section 812(a)'s republication requirement becomes clear. The Congress was aware of the possibility that the schedules could be substantially restructured as a result of the delegation of amendment authority to the Attorney General. Consequently, a periodic, updated compilation of the content of the schedules was provided for in order to ensure a public awareness of any alterations. As we construe the Act, this was all that section 812(a) was intended to do.

554 F.2d at 763. This interpretation is no less applicable to the local statute. See REPORT at 1, 3 (a key goal of the legislation involved "achiev[ing] a greater degree of uniformity between federal laws, [and] District laws" and enactment "would bring the law of the District of Columbia into substantial conformity with the federal law in this area").

"Unless and until" language appears in Schedules I, III, IV and V of the Act,¹² and the government has suggested that the absence of such language in Schedule II, not mentioned in the legislative history, appears to have been an oversight. This seems a likely explanation since there is nothing to suggest that the D.C. Council intended the failure to republish Schedule II to cause the listed substances to cease to be "controlled substances" under the Act.

Accordingly, we hold that under D.C.Code § 33-523, the Mayor is required to republish a schedule of controlled substances whenever the Mayor revises it by adding or subtracting a controlled substance,¹³ and that since appellants' convictions involve controlled substances in Schedule II, which was published in 1981 and in 1985 when it was revised, their convictions were not invalidated pursuant to the republication requirement.¹⁴

We further hold that appellants' vagueness contention is meritless. Appellants provide no analysis for their claim that the Act is void for vagueness. Since Schedule II was published listing the controlled substances underlying appellants' convictions, there is no risk of lack of notice of violative conduct; nor does the Act vest the police with unreasonable discretion. See Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Grayned v. City of Rockford, 408 U.S. 104, 107-08, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The Act, therefore, lacks the flaws which underlie the successful vagueness claims in the cases relied on by appellants. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Lanzetta v. New Jersey, 306...