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January 28, 1991


Appeals from the Superior Court of the District of Columbia; Hon. Joseph M. Hannon, Trial Judge, Hon. Robert M. Scott, Trial Judge, Hon. George Herbert Goodrich, Trial Judge, Hon. Henry H. Kennedy, Jr., Trial Judge

Rogers, Chief Judge, and Ferren and Terry, Associate Judges.

The opinion of the court was delivered by: Rogers

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. *fn1

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 the phrase "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. *fn2

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. *fn3 The same approach was taken in Corbin v. United States, 481 A.2d 1301 (D.C. 1984), in determining the meaning of the Act. *fn4 In view of the court's determination that the meaning of the word "shall" is not always a mandatory command, but may be directory, *fn5 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 dangerous substances. *fn6 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. *fn7

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 "the 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. *fn8 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. *fn9

Appellants contend, however, that because language in the federal act, *fn10 providing that 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 ...

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