Cass v. District of Columbia, 99-CT-969.

• Decision Date: 31 July 2003
• Docket Number: No. 99-CT-969.,99-CT-969.
• Parties: BRETT C. CASS, APPELLANT, v. DISTRICT OF COLUMBIA, APPELLEE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

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BRETT C. CASS, APPELLANT, v. DISTRICT OF COLUMBIA, APPELLEE.

No. 99-CT-969.

Court of Appeals of District of Columbia.

Argued October 12, 2000.

Decided July 31, 2003.

Appeal from the Superior Court of the District of Columbia, (D-4175-98), Hon. Tim Murphy, Trial Judge.

Thomas C. Willcox for appellant.

Sidney R. Bixler, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel at the time the brief was filed, Charlotte W. Parker, Acting Deputy Corporation Counsel, and Rosalyn Calbert Groce, Director, Policy and Appeals Branch, were on the brief for appellee.

Before WAGNER, Chief Judge, and FARRELL and RUIZ, Associate Judges.

RUIZ, Associate Judge:

Brett Cass was convicted of possessing an alcoholic beverage while he was under twenty-one years of age, see D.C. Code § 25-130 (a) (Supp. 2000), and sentenced to nine months of probation, under D.C. Code § 25-130 (b-1), a $300 fine under D.C. Code § 25-130 (b-2), and 40 hours of community service work.¹ While Cass does not dispute that he violated the Alcoholic Beverage Control Act ("ABC Act"), he contends that his infraction is not a crime punishable under D.C. Code § 25-130 (b-1) or any other provision of the ABC Act.² He claims that the only sanctions available for underage possession of alcohol are an administrative fine and a temporary suspension of driving privileges, which are civil in character and should not cause him to suffer the ancillary penalties associated with a misdemeanor, such as, for example, having to disclose the conviction on employment applications. In the alternative, he suggests that the ABC Act is ambiguous, and any doubts about its meaning should be resolved in his favor under the rule of lenity.

While the text of the Act is clear that the possession of alcohol by a person under twenty-one is prohibited, an array of cross-references among the penalty provisions lead the reader in a circle. The two penalties that clearly apply to possession imply the existence of other penalties: one sanction identifies itself as an "alternative" penalty, see D.C. Code § 25-130 (b-2), while another indicates on its face that it is an "addition[al]" sanction, see D.C Code § 25-130 (c). Yet the only two candidates for non-additional and non-alternative penalties are on their face inapplicable to underage possession of alcohol: one can be applied only when "no [other] specific penalty is provided," see D.C. Code § 25-132 (a) (1996), which is not the case here, while the other expressly applies to misrepresentation of age to obtain alcohol, but not to possession, see D.C. Code § 25-130 (b-1).

As we analyze in this opinion, however, we are able to conclude that the apparent confusion can be rendered intelligible upon a close reading of the Act's subsections in context. For example, the cross-references to other penalties — the words "alternative" in section 25-130 (b-2) and "in addition" in section 25-130 (c) — can be understood as applying only to the offense of misrepresentation of age, but not to the possession of alcohol. Read in such a manner, the confusing references to phantom penalties for alcohol possession disappear, but no words are rendered superfluous because they remain meaningful in the context of a different violation. Such a reading is also consistent with legislative history, which shows that the Council of the District of Columbia intended to repeal the harsh penalties for alcohol possession in the previous version of the statute and replace them with milder penalties following our decision in District of Columbia v. Morrissey, 668 A.2d 792, 800 (D.C. 1995). See D.C. Code § 25-132 (a).

We thus concur with Cass — albeit for very different reasons — that the only penalties available for the possession of alcohol by a person under twenty-one are civil: a fine pursuant to the Civil Infractions Act, D.C. Code §§ 6-2701 to 2723,³ see D.C. Code § 25-130 (b-2), and the suspension of driving privileges under D.C. Code § 25-130 (c). We therefore reverse the judgment of the trial court sentencing Cass to nine months probation under D.C. Code § 25-130 (b-1).

ANALYSIS

Because this is a pure question of statutory construction, our review is de novo. See Morrissey, 668 A.2d at 795-96. As always, we begin with the plain language of the statute. See People's Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983) (citation omitted). Next, because we find individual subsections to be capable of more than one reading, our task is to search for an interpretation that makes sense of the statute as a whole. See Carey v. Crane Serv. Co., 457 A.2d 1102, 1108 (D.C. 1983) (citations omitted). Lastly, we turn to legislative history to determine whether our interpretation is consistent with legislative intent. See People's Drug Store, Inc., 470 A.2d at 754 (citations omitted).

A. Plain Language of the Statute

Several sections of the statute are clear on their face. It is indisputable, and undisputed by the parties, that the possession of alcohol by a person under twenty-one is unlawful: "[n]o person who is under 21 years of age shall purchase, attempt to purchase possess, or drink any alcoholic beverage in the District . . . ." D.C. Code § 25-130 (a) (Supp. 2000).⁴ It is equally clear that a violation of this provision can result, at a minimum, in the imposition of a civil fine under D.C. Code § 25-130 (b-2) and the revocation of driving privileges under D.C. Code § 25-130 (c). See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 254 (1992) (holding that, when the words of a statute are clear, "`the judicial inquiry is complete'") (citation omitted).

What is not clear is whether other penalties are available as well. Both sections 25-130 (b-2) and 25-130 (c) imply that other sanctions exist. Section 25-130 (b-2) explicitly states that the civil fine may serve as an "alternative" sanction for any infraction of the ABC Act.⁵ Use of the word "alternative" implies that the fine is but one of two or more possible choices as sanctions, see WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 96 (1st ed. 1984), but those other choices are not identified. Section 25-130 (c) specifies that its penalties may be imposed "[i]n addition to the penalties provided in subsections (b-1) and (b-2)."⁶ The phrase "in addition to" suggests that the penalties described are "over and above" or "besides" other penalties. See WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 77 (1st ed. 1984).

There are only two provisions in the ABC Act that could provide those other sanctions, D.C. Code §§ 25-130 (b-1) and 25-132 (a); their plain language, however, makes them inapplicable to a charge of possession of alcohol by a minor. Section 25-130 (b-1) explicitly states that it applies to a misrepresentation of age for the purpose of procuring alcohol.⁷ Section 25-132 (a) states that it applies to any violation "for which no specific penalty is provided."⁸ The civil fine of section 25-130 (b-2) and the suspension of driving privileges under section 25-130 (c) are undoubtedly "specific" penalties, and therefore section 25-132 (a) is rendered inapplicable to a charge of possession. We are thus left at a seeming dead end: two provisions, D.C. Code §§ 25-130 (b-2) and (c), indicate that other "alternative" or primary sanctions are available for underage possession of alcohol, but none other in the ABC Act appears to be applicable.

B. Construing Subsections Together

Faced with this apparent contradiction, we move to the next stage of our analysis: deciding whether seemingly inconsistent provisions can be interpreted in a way that would harmonize them. See Carey, 457 A.2d at 1108 ("`[S]tatutory provisions are to be construed not in isolation, but together with other related provisions.'") (citation omitted).

Sections 25-130 (b-1) and 25-132 (a) both indicate on their face that they do not apply to the underage possession of alcohol. We should therefore construe section 25-130 (b-2) in light of this fact, and read the word "alternative" as not applying to underage possession. This would not make the word "alternative" superfluous, as it would still indicate that the civil penalties of section 25-130 (b-2) constitute an alternative to the criminal penalties of section 25-130 (b-1) for misrepresentation of age in order to obtain alcohol in violation of section 25-130 (b). The advantage of such a reading is that it would eliminate the seeming confusion surrounding the penalties available for possession of alcohol by a minor. Under that reading, a civil fine would be the primary penalty for possession, and the phrase "in addition to" in section 25-130 (c) would indicate that the suspension of driving privileges may be imposed as a supplement to that civil fine. There would be no references to other, nonexistent, sanctions.

The District of Columbia concurs with this approach, but reaches a different conclusion. It points to a general provision of the ABC Act which provides that "[p]rosecutions for violations of [the Act] . . . shall be on information filed in the Superior Court of the District of Columbia by the Corporation Counsel." D.C . Code § 25-132 (c). The Morrissey opinion commented that the references to "prosecution" and "information" in this subsection imply that violations of the Act are criminal in nature. See Morrissey, 668 A.2d at 796 (explaining that "prosecutions on information" is terminology commonly used in criminal proceedings). The government contends that, because the "alternative" civil fines of section 25-130 (b-2) and the "additional" license suspensions of section 25-130 (c) are not criminal penalties, the language of section 25-132 (c) compels that we apply some criminal sanction to underage possession of alcohol. Because the criminal sanction in section 25-132 (a) was expressly eliminated as a possible penalty by the Council for underage possession of alcohol (in response to this court's decision in Morrissey, as discussed...