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In re Prosecution of Crawley

August 20, 2009

IN RE PROSECUTION OF EMERSON CRAWLEY.


On Certification from the Superior Court of the District of Columbia, (CDC 28795-07), (Hon. Geoffrey M. Alprin, Trial Judge).

The opinion of the court was delivered by: Oberly, Associate Judge

Argued June 2, 2009

Before GLICKMAN, KRAMER, and OBERLY, Associate Judges.

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]attorney for the District of Columbia or his assistants, except as otherwise provided by law."*fn1

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.));*fn2 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 ยง 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 ...


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