In re Monaghan

690 A.2d 476, 1997 D.C. App. LEXIS 31, 1997 WL 94652
CourtDistrict of Columbia Court of Appeals
DecidedMarch 6, 1997
DocketNos. 96-SP-852, 96-SP-853
StatusPublished
Cited by1 cases

This text of 690 A.2d 476 (In re Monaghan) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Monaghan, 690 A.2d 476, 1997 D.C. App. LEXIS 31, 1997 WL 94652 (D.C. 1997).

Opinions

FARRELL, Associate Judge:

In 1987, D.C.Code § 22-2701 was amended to provide that a first offense of soliciting for purposes of prostitution was punishable by a fine only, not (as previously) by a fine, imprisonment, or both. The statute was recently amended again to provide for a fine and imprisonment for a first offense [477]*477(D.C.Code § 22-2701(a) (1995)), but the defendants in these consolidated cases were charged while the 1987 amendment was in effect. On the basis of it, they moved to dismiss informations filed by the United States under § 22-2701 on the ground that authority to prosecute for the crimes charged had reverted to the Office of the Corporation Counsel under D.C.Code § 23-101 (1996). The trial court, pursuant to § 23 — 101(f),1 certified the issue of prosecutorial authority to us interloeutorally. We hold that the charges against the defendants have been properly brought in the name of the United States.

Section 23 — 101(f) declares that this court “shall hear and determine the question in a summary way.” We therefore expedited consideration of these cases, and set forth the reasons for our holding briefly.

D.C.Code § 23-101 states in relevant part: (a) 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 or his assistants, except as otherwise provided in such ordinance, regulation, or statute, or in this section.
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(e) All other criminal prosecutions shall be conducted in the name of the United States by the United States attorney for the District of Columbia or his assistants, except as otherwise provided by law. [Emphasis added.]

The defendants concede that D.C.Code § 22-2701 is a penal statute, not a police or municipal ordinance or regulation. See Pinkney v. United States, 124 U.S.App. D.C. 209, 212, 363 F.2d 696, 699 (1966) (soliciting prostitution stated to be a “District of Columbia offense[ ], as distinguished from [a] municipal ordinance[ ]”). The sole issue presented, therefore, is whether it is a “penal statute[ ] in the nature of [a] police or municipal regulation[]” for purposes of § 23-101(a). See District of Columbia v. Smith, 329 A.2d 128, 129-30 (D.C.1974) (correct reading of § 23-101(a) is that the “where maximum punishment” clause modifies only its last antecedent). The following considerations satisfy us that § 22-2701 is not a penal statute in the nature of a police or municipal regulation.

First, the 1987 enactment itself is strong evidence of the point. Section 22-2701(a), as amended, made it unlawful (among other things) “for any person to invite, entice, [or] persuade ... any person or persons in the District of Columbia for the purpose of prostitution....” It punished that conduct as follows:

The penalties for any violation of this section shall be a fine of $300 for the first offense, a fine of $300 and 10 days imprisonment for the second offense, and a fine of $300 and 90 days imprisonment for each subsequent offense. Any person convicted of a violation of this section may be sentenced to community service as an alternative to, but not in addition to, any term of imprisonment authorized by this section. [Emphasis added.]

The defendants have not cited, nor have we found, any penalty structure for a D.C. police or municipal regulation resembling the mandatory punishment imposed by § 22-2701(a), including specified fines and imprisonment for second and third offenses.2 That structure is entirely inconsistent with an intent of the legislature to treat the ban on soliciting prostitution as the equivalent of a municipal [478]*478ordinance.3 Section 22-2701, as amended, was designed to address “the proliferation of prostitutes in some District neighborhoods,” reflecting the legislature’s belief “that prostitution activities in the District of Columbia have grown so large as to require additional deterrents to bring such activities to an end.” REPORT OF THE COUNCIL OF THE DISTRICT OF Columbia Committee on the Judiciary on Bill 7-74, the Inoreased Penalty for Prostitution Act of 1987, at 2 (May 20, 1987) (emphasis added). We will not construe an offense and penalty structure having that purpose as quasi-regulatory rather than criminal in the full sense of the word.

Second, although the courts of this jurisdiction have had only rare occasion to interpret the phrase “penal statutes in the nature of police or municipal regulations,” a decision of the United States Court of Appeals many years ago still sheds valuable' light on the meaning of the phrase and its application to this ease. In United States v. Cella, 37 App.D.C. 433 (1911) (Celia II), the question was whether a statute that prohibited bucketing and bucket shopping 4 was in the nature of a police or municipal regulation. In deciding that it was not, the court explained as follows:

A municipal ordinance or police regulation is peculiarly applicable to the inhabitants of a particular place_ A statute making it an offense for a motor vehicle to exceed a certain limit of speed within the city limits would clearly be a penal statute in the nature of a police regulation. Such a statute would be designed to regulate the speed of motor vehicles in accordance with the requirements of local conditions. The bucket shop statute under consideration, however, is of a different character. We find that statute in the chapter of the Code devoted to crimes and punishments, and in a subchapter governing offenses against public policy. The commission of the offense would be as much against public policy in one place as in another; in other words, while the statute is local in its application, it deals with a subject matter general in character. Admittedly, a prosecution for the second offense under the act must be in the name of the United States, since the punishment for such an offense may be imprisonment for five years. No reason is apparent why a prosecution for a first offense should not also be in the name of the United States. Moreover, this statute does not purport to regulate the business of bucketing, but, on the contrary, is designed absolutely to prohibit it. While the authority to enact such a statute may be ascribed to the police power, as indeed may be the authority to enact all criminal statutes, we think, nevertheless, that the act is something more than one in the nature of a police or municipal regulation;

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Cite This Page — Counsel Stack

Bluebook (online)
690 A.2d 476, 1997 D.C. App. LEXIS 31, 1997 WL 94652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-monaghan-dc-1997.