In re Crawley, No. 09-SP-245.

Decision Date20 August 2009
Docket NumberNo. 09-SP-245.
Citation978 A.2d 608
PartiesIn Re Prosecution of Emerson CRAWLEY.
CourtD.C. Court of Appeals

Roy W. McLeese III, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, was on the brief, for the United States.

Before GLICKMAN, KRAMER, and Oberly, Associate Judges.

OBERLY, Associate Judge:

The Procurement Reform Amendment Act of 1998 ("the false claims statute") provides that anyone who submits a false claim to the District of Columbia shall be imprisoned not more than a year and fined not more than $100,000 for each violation. D.C.Code § 2-308.21 (except as otherwise indicated, we refer to the 2001 edition of the Code). The false claims statute vests the responsibility to enforce violations of this statute with the Office of the Attorney General for the District of Columbia ("the OAG"). The court must decide whether this assignment of prosecutorial authority is valid. We hold that it is not.

I. Facts and Procedural History

Emerson Crawley, an employee of the District of Columbia Public Schools, allegedly sought to have the District reimburse as business expenses thousands of dollars that Crawley spent for his personal purposes. The District investigated Crawley, and referred the matter to the United States Attorney's Office for the District of Columbia ("the USAO"), which declined to prosecute him. The District, acting through the OAG, then charged Crawley by information with seventeen counts of violating the false claims statute. Pursuant to D.C.Code § 23-101(f), the trial court certified to this court the question whether the OAG has the authority to prosecute alleged violations of the false claims statute. We expedited briefing and argument. See D.C.Code § 23-101(f).

II. Discussion
A. Statutory Overview.
1. Division of Prosecutorial Authority.

Title 23, Section 101 of the D.C.Code "bifurcate[s]" the "prosecuting authority for crimes committed in the District." United States v. Bailey, 495 A.2d 756, 760 n. 10 (D.C.1985). As a general matter, the OAG "prosecutes only certain minor crimes, such as violations of municipal ordinances." Id. Specifically, D.C.Code § 23-101(a) provides:

Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia by the Corporation Counsel for the District of Columbia [now known as the OAG], except as otherwise provided in such ordinance, regulation, or statute, or in this section.

Section 23-101(b) empowers the OAG to prosecute, in addition to the crimes specified in Section 23-101(a), additional minor crimes—that is, violations "relating to disorderly conduct" and "lewd, indecent, or obscene acts."

"All other criminal prosecutions," Section 23-101(c) instructs, "shall be conducted in the name of the United States by the United States [A]ttorney for the District of Columbia or his assistants, except as otherwise provided by law."1

This division of prosecutorial authority—roughly speaking, minor crimes to the OAG, and more serious matters to the USAO—is consistent with longstanding practice. More than 100 years ago, Congress provided:

Prosecutions for violations of all police or municipal ordinances or regulations and for violations of all penal statutes in the nature of police or municipal regulations, where the maximum punishment is a fine only, or imprisonment not exceeding one year, shall be conducted in the name of the District of Columbia and by the city solicitor [predecessor of the OAG] or his assistants. All other criminal prosecutions shall be conducted in the name of the United States and by the attorney of the United States for the District of Columbia or his assistants.

Act to Establish a Code of Law for the District of Columbia, ch. 854, § 932, 31 Stat. 1189, 1340-41 (1901).

The phrasing of the current version of Section 23-101 can be traced to the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473 (1970) ("the Court Reform Act"). The Court Reform Act refined the division of prosecutorial authority that had been made at the beginning of the century by breaking up the single paragraph above into the three subsections currently found at Sections 23-101(a) through (c). 84 Stat. at 604-05. In addition, the Court Reform Act established in Section 23-101(a) and (c) how deviations from those subsections could be made by adding the "except as otherwise provided" clauses. Thus, Section 23-101(a) says that exceptions to that subsection could be made by "ordinance, regulation, or statute," and Section 23-101(c) says that the rule of that section could be altered only by "law."

2. The False Claims Statute.

The District's false claims statute, passed by the D.C. Council in 1998, makes it unlawful to "present[ ] to any officer or employee of the District of Columbia government, or to any department or agency thereof, any claim upon or against the District of Columbia, or any department or agency thereof, knowing such claim to be false, fictitious or fraudulent." D.C.Code § 2-308.21. The statute requires that "each violation" of Section 2-308.21 be punished by imprisonment of "not more than one year" and "a fine of not more than $100,000." Id. The statute assigns to the Corporation Counsel, the predecessor of the OAG, the duty to "prosecute violations of this section." Id.

3. The Home Rule Act and Its Limitations.

In 1973, more than seventy years after passage of the first statute dividing prosecutorial authority in the District, see 31 Stat. 1189, 1340-41 (1901), Congress passed the District of Columbia Home Rule Act ("the HRA"), 87 Stat. 777, Pub.L. 93-198, D.C.Code §§ 1-201.01 et seq. "[T]he core and primary purpose" of the HRA "was to relieve Congress of the burden of legislating upon essentially local maters `to the greatest extent possible, consistent with the constitutional mandate.'" McIntosh v. Washington, 395 A.2d 744, 753 (D.C.1978) (quoting D.C.Code § 1-121(a) (1978 Supp.));2 accord District of Columbia v. Washington Home Ownership Council, Inc., 415 A.2d 1349, 1351 (D.C.1980) (en banc). To further this purpose, the HRA "extend[ed]" the "legislative power of the District ... to all rightful subjects of legislation within the District consistent with the Constitution of the United States." D.C.Code § 1-203.02. The HRA expressly grants the Council subject to a sixty-day period when Congress can nullify such legislation, the authority to enact "act[s], resolution[s], or rule[s] with respect to" Titles 22-24 of the Code—the titles pertaining to the District's substantive and procedural criminal law. D.C.Code § 1-206.02(a)(9), (c)(2). The HRA precludes the Council from "[e]nact[ing] any act or regulation ... relating to the duties or powers of the United States Attorney ... for the District of Columbia." D.C.Code § 1-206.02(a)(8).

B. Analysis.

As described above, prosecutorial authority for crimes occurring in the District must be exercised in accordance with D.C.Code § 23-101(a) through (c). It is common ground among the parties that Section 23-101(a) cannot provide authority for the Council's purported assignment of the prosecutorial duty to the OAG.3 Section 23-101(b) grants to the OAG the power to prosecute violations "relating to disorderly conduct" and "lewd, indecent, or obscene acts," and thus also cannot justify the false claims statute. The question, therefore, is what Congress meant in Section 23-101(c) when it assigned prosecutorial responsibility for crimes not specified in Section 23-101(a) and (b) to the USAO "except as otherwise provided by law." The text, of course, is our main guide on this question of statutory construction. Veney v. United States, 936 A.2d 811, 822 (D.C.2007). But Justice Holmes' famous aphorism that "a page of history is worth a volume of logic," New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921), rings especially true in this case, so we begin with an overview of history that, as we shall see, helps to elucidate the meaning of the text that we consider.4

1. A Brief History of the Evolution of the District's Government.
a. Background: District Government Pre-1970.

"Between 1800 and 1871, the government in the District of Columbia was strictly municipal in its character." Newspapers, Inc. v. Metropolitan Police Dep't, 546 A.2d 990, 994 (D.C.1988) (internal quotation marks omitted). In 1871, Congress delegated its legislative authority over the District to the Legislative Assembly, which exercised "full legislative powers" similar to those currently exercised by the D.C. Council. Id. But three years later, the District's "corrupt and debt-ridden"5 government was "head[ing] down the road to bankruptcy," and the Legislative Assembly experiment came to an end. Mize, supra note 4, at 7. Thus, in 1874, Congress repealed the Act creating the Legislative Assembly and established in its stead "a temporary three-member Board of Commissioners form of government for the District," which form was made "permanent in 1878." Newspapers, Inc., 546 A.2d at 994.

With the repeal of the Act creating the Legislative Assembly, the "legislative powers" of the District had "ceased." Newspapers, Inc., 546 A.2d at 994 (internal quotation marks omitted). The Board of Commissioners that assumed the Legislative Assembly's role was composed of "`administrative officers with...

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    ...to the U.S. Attorney's Office to prosecute District violations, id. at 10 (citing D.C.Code § 23–101(c) ; In re Prosecution of Crawley, 978 A.2d 608, 609–10 (D.C.2009) ), which means that “the United States ... acts as an arm of the District, the role that local district attorneys play in ot......
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