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              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 19-SP-553

                       IN RE PROSECUTION OF NICCO SETTLES.

                      On Certification from the Superior Court
                            of the District of Columbia
                                  (CMD-3451-19)

                      (Hon. Patricia A. Broderick, Trial Judge)

(Argued September 18, 2019                               Decided October 24, 2019)

      Mitchell Schwartz for defendant Settles.

      Anne Y. Park, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman and Jeffrey A. Wojcik, Assistant
United States Attorneys, were on the brief, for the United States.

       John D. Martorana, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General,
and Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief for the
District of Columbia.

      Before EASTERLY and MCLEESE, Associate Judges, and OKUN, Associate
Judge of the Superior Court of the District of Columbia. *

      MCLEESE, Associate Judge: The United States Attorney for the District of

Columbia charged defendant Nicco Settles with violating a D.C. Code provision


      *
          Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
                                          2

prohibiting unauthorized disposal of solid waste. D.C. Code § 8-902(a) (2013

Repl.). Mr. Settles argues that he can be prosecuted for that offense only by the

Office of the Attorney General (OAG) on behalf of the District of Columbia. The

United States and the District of Columbia both take the position that the offense is

properly prosecuted by the United States. The trial court properly certified that issue

to this court. D.C. Code § 23-101(f) (2012 Repl.). This court must “hear and

determine the question in a summary way.” Id. We conclude that the offense is

properly prosecuted by the District of Columbia.



                                   I. Background



      For over a hundred years, the authority to conduct criminal prosecutions in

the District of Columbia has been divided between the United States and the local

government of the District of Columbia. In re Crawley, 978 A.2d 608, 610 (D.C.

2009) (citing An Act To establish a code of law for the District of Columbia, ch.

854, § 932, 31 Stat. 1189, 1340-41 (1901)). The boundaries of that division are

established by D.C. Code § 23-101. Id. That section has a number of provisions

allocating prosecutorial authority between the United States and the District of

Columbia. Id. This case requires us to focus primarily on one: a provision that
                                         3

grants the District of Columbia authority to prosecute violations of “police or

municipal ordinances or regulations.” D.C. Code § 23-101(a).



      The provision under which Mr. Settles has been charged, D.C. Code § 8-

902(a), was originally enacted by the Council of the District of Columbia in 1994.

Illegal Dumping Enforcement Act of 1994, D.C. Law 10-117, § 3, 41 D.C. Reg. 524,

525 (1994). In its current form, § 8-902(a) reads as follows:

            It shall be unlawful for any person to dispose or cause or
            permit the disposal of solid waste, hazardous waste, or
            medical waste in or upon any street, lot, park, public place,
            or any other public or private area, whether or not for a
            commercial purpose, unless the site is authorized for the
            disposal of solid waste, hazardous waste[,] or medical
            waste by the Mayor.


      Violations of § 8-902 for a commercial purpose or involving knowing

disposal of hazardous or medical waste are felonies carrying a maximum penalty of

a fine of $40,000 and imprisonment for five years. D.C. Code § 8-902(b)(2)-(4).

All of the participants in this case agree that such felony prosecutions must be

brought by the United States. See, e.g., In re Crawley, 978 A.2d at 614 (discussing

statement in legislative history of Congress’s 1970 amendments to D.C. Code § 23-

101 that “the United States Attorney would continue to prosecute all felonies and

the more serious misdemeanors”) (internal quotation marks omitted).
                                          4

      Mr. Settles has not been charged with committing the offense for a

commercial purpose or with knowingly disposing hazardous or medical waste,

however, and it appears to be undisputed that this would be Mr. Settles’s first

violation of § 8-902. The offense charged in this case therefore is a misdemeanor

carrying a maximum penalty of a fine of $5,000 and imprisonment for ninety days.

D.C. Code § 8-902(b)(2). Our holding in this case is limited to such violations.



                                   II. Discussion



      Whether this misdemeanor prosecution is for a violation of a police or

municipal ordinance or regulation within the meaning of § 23-101(a) is a question

of statutory interpretation. We decide that question de novo. Williams v. Kennedy,

211 A.3d 1108, 1110 (D.C. 2019). “The first step in construing a statute is to read

the language of the statute and construe its words according to their ordinary sense

and plain meaning.” Chase Plaza Condo. Ass’n v. JPMorgan Chase Bank, N.A., 98

A.3d 166, 172 (D.C. 2014) (internal quotation marks omitted).            We interpret

statutory language in light of the historical context in which the statute was enacted.

See, e.g., Perrin v. United States, 444 U.S. 37, 42 (1979) (in interpreting statutory

term, Court looks to meaning of term at time statute was enacted). “We also consider

statutory context and structure, evident legislative purpose, and the potential
                                           5

consequences of adopting a given interpretation.” Williams, 211 A.3d at 1110. “We

may also look to the legislative history to ensure that our interpretation is consistent

with legislative intent.” Id. (internal quotation marks omitted). In interpreting a

statute, we are bound by the holdings of our prior decisions interpreting the statute.

Doe by Fein v. District of Columbia, 697 A.2d 23, 30-31 (D.C. 1997).




                               A. Ordinary Meaning



      We turn first to the ordinary meaning of the phrase “police or municipal

ordinances or regulations.” To a modern ear, “police” most immediately suggests

law-enforcement officers. See, e.g., Black’s Law Dictionary 1344 (10th ed. 2004)

(defining “police” to mean “1. The governmental department charged with the

preservation of public order, the promotion of public safety, and the prevention and

detection of crime. 2. The officers or members of this department.”). “Police” can

have a far broader scope, however. For example, in phrases such as “police power”

it can refer to “[t]he inherent and plenary power of a sovereign to make all laws

necessary and proper to preserve the public security, order, health, morality, and

justice.” See, e.g., id. at 1345. “Municipal” is generally understood to mean “[o]f,

relating to, or involving a city, town, or local government unit.” See, e.g., id. at

1175. “Ordinance” is defined as “[a]n authoritative law or decree; specif., a
                                           6

municipal regulation, esp. one that forbids or restricts an activity. • Municipal

governments can pass ordinances on matters that the state government allows to be

regulated at the local level.” See, e.g., id. at 1273. Finally, “regulation” nowadays

naturally brings to mind rules promulgated by administrative agencies. See, e.g., id.

at 1475 (defining “regulation” to mean, inter alia, “[a]n official rule or order, having

legal force, usu. issued by an administrative agency”). Nevertheless, the term is in

some contexts understood to include legislative enactments. See, e.g., D.C. Code

§ 47-802(6) (2015 Repl.) (defining “regulation” to include certain acts “enacted” by

Council of District of Columbia); Olson v. Molacek Bros. of Calloway, Minn., 341

N.W.2d 375, 378 (N.D. 1983) (“The term ‘state and federal regulations’ necessarily

includes statutes in addition to any rules.”).



      Considered in isolation, the phrase “police or municipal ordinances or

regulations” thus could potentially include all legislative acts and administrative

rules of the District of Columbia local government. Both the structure of § 23-101

and our case law interpreting that provision indicate, however, that the phrase must

be read more narrowly.
                                          7

                              B. Statutory Structure



      Section 23-101(b) specifies the appropriate prosecutor for certain particular

offenses.   Otherwise, § 23-101 divides criminal offenses into three general

categories: violations of “police or municipal ordinances or regulations,” which are

prosecuted by the District of Columbia, § 23-101(a); violations of “penal statutes in

the nature of police or municipal regulations,” which are prosecuted by the District

of Columbia as long as the “maximum punishment is a fine only, or imprisonment

not exceeding one year,” but not both, id.; District of Columbia v. Moody, 304 F.2d

943 (D.C. Cir. 1962) (per curiam); and all others, which (subject to specific statutory

exceptions) are prosecuted by the United States, D.C. Code § 23-101(c). Thus,

determining the appropriate prosecutor for an offense often requires distinguishing

between “police or municipal ordinances or regulations” and “penal statutes.”



      Drawing that distinction is not a simple task, because the phrase “penal

statutes” considered in isolation could also be understood very broadly, to reach all

provisions imposing criminal penalties. See, e.g., Black’s Law Dictionary 1313

(defining “penal” to mean “[o]f, relating to, or being a penalty or punishment, esp.

for a crime”), 1633 (defining “statute” to mean “[a] law passed by a legislative body;

specif., legislation enacted by any lawmaking body, such as a legislature,
                                         8

administrative board, or municipal court”); Brady v. Ralph M. Parsons Co., 609

A.2d 297, 305 (Md. 1992) (for purposes of certain sections in Restatement (Second)

of Torts, term “statute” “is intended to include ordinances and administrative

regulations”).



      On the other hand, the term “statute” is more typically understood to exclude

administrative regulations. See, e.g., United States v. Mersky, 361 U.S. 431, 437

(1960) (“An administrative regulation, of course, is not a statute.”) (internal

quotation marks omitted). Moreover, courts -- including this court -- have in some

contexts distinguished between statutes and municipal ordinances.          See, e.g.,

Newspapers, Inc. v. Metro. Police Dep’t, 546 A.2d 990, 990-1001 (D.C. 1988)

(provision adopted by Board of Commissioners of District of Columbia was

ordinance rather than statute, for purposes of District of Columbia Freedom of

Information Act, because Board of Commissioners had “regulatory powers,” rather

than statutory powers later conferred on Council of the District of Columbia pursuant

to Home Rule Act (now codified at D.C. Code § 1-201.01 et seq. (2016 Repl.))).



      Because § 23-101 distinguishes between “police or municipal ordinances or

regulations” and “penal statutes,” neither of those phrases can reasonably be read so

expansively as to swallow up the other. Beyond that, the structure of § 23-101
                                           9

provides limited guidance about the scope of either phrase. Fortunately, we do not

write on a blank slate, because the courts of this jurisdiction have in several prior

cases decided whether particular provisions were or were not “police or municipal

ordinances or regulations” for purposes of § 23-101(a). E.g., In re Hall, 31 A.3d

453 (D.C. 2011). Those cases have not formulated a unitary conceptual test for

distinguishing between police or municipal ordinances or regulations and penal

statutes. Rather, we have identified a number of relevant but not necessarily

dispositive factors to be considered in determining which category applies to a given

offense. We address those factors in turn.



                   C. Local Regulation or General Prohibition



      In construing § 23-101(a), we have said that “[a] municipal ordinance or

police regulation is peculiarly applicable to the inhabitants of a particular place.” In

re Monaghan, 690 A.2d 476, 478 (D.C. 1997) (ellipsis and internal quotation marks

omitted).   We have contrasted such provisions, “designed to regulate . . . in

accordance with the requirements of local conditions,” with provisions that “deal[]

with a subject matter general in character” and are “designed absolutely to prohibit.”

Id. (emphasis and internal quotation marks omitted). This consideration points in
                                         10

favor of a conclusion that the offense charged in this case is a violation of a police

or municipal ordinance or regulation.



      District of Columbia law does not absolutely prohibit the disposal of solid

waste but rather regulates such disposal, specifying how, where, and by whom such

waste is to be collected, transported, stored, and processed. 21 DCMR § 700 et seq.

(2019). D.C. Code § 8-902(a) makes it an offense to dispose of solid waste at a

location that has not been authorized by the Mayor. Violation of that provision can

be the basis for criminal prosecution or for imposition of civil penalties. D.C. Code

§ 8-902(b), (c).



      Section 8-902 thus fits comfortably in the category of provisions that “regulate

. . . in accordance with the requirements of local conditions.” In re Monaghan, 690

A.2d at 478. The District of Columbia argued to the contrary in its brief but appeared

to agree at oral argument that § 8-902 operates as a local regulation rather than an

absolute prohibition. In any event, we are not persuaded by the argument in the

District of Columbia’s brief. It is true that § 8-902(a) absolutely prohibits illegal

disposal of solid waste. That is at bottom a circular point, however, because criminal

provisions by definition prohibit whatever they make illegal. The relevant point is

that § 8-902 prohibits solid-waste disposal at certain locations in the District of
                                           11

Columbia (those not authorized by the Mayor) and permits solid-waste disposal at

other locations in the District of Columbia (those authorized by the Mayor). Section

8-902 is thus explicitly tied to local conditions.



                   D. History of Regulation and Enforcement



      In construing § 23-101, we have also considered whether the District of

Columbia or the United States has historically regulated and prosecuted the conduct

at issue. See, e.g., In re Hall, 31 A.3d at 457 (in holding that offenses of possession

of unregistered firearm (UF) and unlawful possession of ammunition (UA) are under

prosecutorial authority of District of Columbia, court relies on “the District’s long

history of firearms regulation”); In re Monaghan, 690 A.2d at 479 (in holding that

solicitation for purpose of prostitution is under prosecutorial authority of United

States, court relies on fact that United States had prosecuted such conduct since

1935). This consideration also points in favor of a conclusion that the offense

charged in this case is a violation of a police or municipal ordinance or regulation.



      The history of waste regulation by the local government of the District of

Columbia traces back at least to the early 1800s. See, e.g., Andrew Rothwell, Laws

of the Corporation of the City of Washington 29 (1833) (1803 provision enacted by
                                           12

the City Council of Washington imposing penalties for failure to remove “all fish or

other offensive substances, or nuisances or obstructions”); Corporation Laws of the

City of Washington 159-60 (James W. Sheahan comp., 1853) (1853 provision

enacted by Board of Aldermen and Board of Common Council of city of Washington

imposing penalties for violations of rules relating to rubbish); 1 Supplement to the

Revised Statutes of the United States 304 (William A. Richardson ed., 1891) (1875

ordinance imposing penalties for violations of rules relating to filth and other

offensive substances detrimental to health).



      In 1887, Congress authorized the Commissioners of the District of Columbia

to “make . . . usual and reasonable police regulations” on various topics, including

litter on streets or sidewalks. 24 Stat. 368, 368-69, ch. 49, § 1 (1887) (now codified

as amended at D.C. Code § 1-303.01 (2016 Repl.)). In 1892, Congress more

generally authorized the Commissioners of the District of Columbia to “make . . .

usual and reasonable police regulations” as deemed “necessary for the protection of

lives, limbs, health, comfort and quiet of all persons and the protection of all property

within the District of Columbia.” 27 Stat. 394, Res. No. 4, § 2 (1892) (now codified

as amended at D.C. Code § 1-303.03 (2016 Repl.)). Finally, in 1895, Congress

authorized the Commissioners of the District of Columbia to “make necessary

regulations for the collection and disposition of garbage in the District of Columbia,
                                         13

and to annex to said regulations such penalties as will secure the enforcement

thereof.” 28 Stat. 744, 758, ch. 176 (1895) (codified as amended at D.C. Code § 6-

501 (1995 Repl.); repealed by Sustainable Solid Waste Management Amendment

Act of 2014, D.C. Law 20-154, § 301(a), 61 D.C. Reg. 9971, 9988 (2014), 62 D.C.

Reg. 3600 (2015)).



      At some point before 1902, the Commissioners of the District of Columbia

adopted “[e]laborate regulations” governing the treatment of waste. Dupont v.

District of Columbia, 20 App. D.C. 477, 479 (D.C. Cir. 1902). By 1906, the District

of Columbia’s waste regulations had been made part of the “Police Regulations of

the District of Columbia,” which was an extensive collection of local regulations

promulgated by the Commissioners of the District of Columbia. Police Regulations

of the District of Columbia 66-69 (Gibson Bros. 1906). Those regulations provided

for a criminal penalty of a fine of up to $40. Id at 69. It appears to be undisputed

that the substantial role of the District of Columbia local government in the

regulation of waste has continued without interruption to the present day. See, e.g.,

Police Regulations of the District of Columbia 108-12 (1940); 6A DCRR § 8:3-601

et seq. (1971); 21 DCMR § 700 et seq. (2019).
                                         14

      In 1986, the Council of the District of Columbia eliminated the criminal

penalties that had been applicable to violations of the waste regulations. Litter

Control Administration Act of 1985, D.C. Law 6-100, § 2, 33 D.C. Reg. 781 (1986)

(codified at D.C. Code § 6-2901 et seq. (1989 Repl.)). The Council retained civil

penalties for such violations. D.C. Law 6-100, § 3, 33 D.C. Reg. at 781-82 (codified

at D.C. Code § 6-2902(a)(2) (1989 Repl.)). In 1994, however, the Council enacted

the provision at issue in this case, which as previously noted provides civil and

criminal penalties for unauthorized disposal of waste. Illegal Dumping Enforcement

Act, 41 D.C. Reg. at 525 (now codified as amended at D.C. Code § 8-902). As

originally enacted, § 8-902 provided for a maximum penalty, for first offenses, of a

fine of $1,000 and imprisonment for sixty days. Id. The maximum penalty

applicable to first offenses was subsequently increased to a fine of $5,000 and

imprisonment for ninety days. Illegal Dumping Enforcement Amendment Act of

1998, D.C. Law 12-90, § 2(b)(2), 45 D.C. Reg. 1308, 1310 (1998); Illegal Dumping

Enforcement Amendment Act of 2006, D.C. Law 16-96, § 2(a)(1), 53 D.C. Reg.

1661, 4229 (2006).



      In contrast to the abundant evidence of local government regulation of solid-

waste disposal in the District of Columbia, information about criminal prosecution

is relatively scanty. In 1902, a defendant was convicted of violating the District of
                                         15

Columbia’s waste regulations, in a prosecution conducted by the District of

Columbia, and was fined thirty dollars. Dupont, 20 App. D.C. at 478-82. We have

found three other reported decisions involving criminal prosecutions based on

violations of local District of Columbia regulations governing the treatment of waste,

and all of those prosecutions were conducted by the District of Columbia. Darling

Del. Corp. v. District of Columbia, 380 A.2d 596 (D.C. 1977); Nash v. District of

Columbia, 28 App. D.C. 598 (D.C. Cir. 1907); Mann v. District of Columbia, 22

App. D.C. 138 (D.C. Cir. 1903). We have not found any reported decisions

involving a criminal prosecution for violating § 8-902.



      In sum, the local government of the District of Columbia has regulated solid-

waste disposal in the District of Columbia for over 200 years. As far as we have

been able to determine from the reported cases, criminal prosecutions for offenses

involving solid-waste disposal have historically been conducted by the District of

Columbia. These considerations weigh in favor of concluding that the District of

Columbia has prosecutorial authority over the instant offense. In re Hall, 31 A.3d

at 457.
                                          16

                            E. Placement in D.C. Code



      The provision at issue in this case was originally codified in Title 6 of the D.C.

Code, which at the time was entitled “Health and Safety.” D.C. Code § 6-2912 (1995

Repl.). The provision was subsequently recodified in Title 8 of the Code, which is

entitled “Environmental and Animal Control and Protection.” D.C. Code § 8-902

(2013 Repl.). Codification of the provision in those titles of the Code, rather than in

Title 22, which is entitled “Criminal Offenses and Penalties” (2012 Repl.), tends to

suggest that the provision is a police or municipal ordinance or regulation rather than

a penal statute. See, e.g., In re Hall, 31 A.3d at 457 (“Consistent with the treatment

of firearms regulations as regulatory rather than penal, the UF and UA provisions

are codified in Title 7 of the D.C.[ ]Code, which relates to Human Health Care and

Safety, rather than in the titles related to criminal law or procedure.”); cf. also

McNeely v. United States, 874 A.2d 371, 390 n.26 (D.C. 2005) (“While not

controlling, the Act’s codification under Title 6 dealing with Health and Safety is

some indication that it is considered regulatory in nature.”).
                                         17

                         F. Legislative History of § 8-902



      The legislative history of § 8-902 indicates that the District of Columbia

Department of Public Works advised the Council of the District of Columbia that

criminal prosecutions under § 8-902 would be conducted by the District of

Columbia. D.C. Council, Report on Bill 10-249, Attach. F at 3 (June 11, 1993) (“The

Corporation Counsel will represent the District before the Superior Court . . . in

criminal prosecutions.”). The committee report reflects that understanding. Report

at 14 (explaining that District of Columbia could arrest violators and enforce

provisions of bill). This consideration also supports the conclusion that the charged

offense is within the prosecutorial authority of the District of Columbia.



      The United States argues, however, that “in deciding questions of

prosecutorial authority the Council’s intent is irrelevant.” We disagree. We held in

In re Crawley that the Council of the District of Columbia lacks authority to change

the criteria established by Congress under § 23-101 to govern the division of

prosecutorial authority. 978 A.2d at 620. That does not mean, however, that the

Council’s intent is irrelevant when we are trying to decide whether a given enactment

should be understood as a police or municipal ordinance or regulation or instead
                                          18

should be understood as a penal statute. We see no reason to ignore such legislative

intent in the current context.



                   G. Dual Prosecutors under Single Provision



      As previously noted, it is undisputed that the United States has prosecutorial

authority over felony violations of § 8-902.       If the District of Columbia has

prosecutorial authority over violations of § 8-902 such as the misdemeanor offense

charged in this case, then two different prosecutors will have prosecutorial authority

under a single provision. This court has been reluctant to interpret § 23-101 to

establish divided prosecutorial authority over a single provision, because of the

practical problems such a division of authority can create. See, e.g., In re Monaghan,

690 A.2d at 478-79 (where United States concededly had prosecutorial authority

over repeat offenses for soliciting for purpose of prostitution, treating prosecution

for first offenses as within prosecutorial authority of District could create problems,

such as uncertainty as to proper prosecutor based on uncertainty as to whether

offense was first offense or repeat offense). This consideration is not dispositive,

however. See In re Hall, 31 A.3d at 457 n.3 (holding that District of Columbia had

prosecutorial authority over first violations of UF and UA statutes even though

District of Columbia concededly did not have prosecutorial authority over
                                           19

prosecution under those provisions for repeat offenses, as to which penalty of over

one year of imprisonment was authorized).



                                     H. Penalties



      As this court explained in In re Hall, “an offense traditionally enforced by the

District as a police regulation may be converted into a penal statute . . . if the Council

sufficiently increases the penalty for its violation.” 31 A.3d at 456 n.2. The court

went on to hold in In re Hall that the penalties then applicable to first offenses under

the UF and UA provisions -- a fine of up to $1,000, imprisonment of up to one year,

or both -- were “not so great as to render these provisions inappropriate for

enforcement by the OAG.” Id.; see also id. at 455. In contrast, the court stated in

dicta in In re Crawley that a statute imposing penalties of a fine of up to $100,000,

imprisonment for up to one year, or both, was not “a punishment in the nature of one

that would flow from a violation of something akin to a police or municipal

ordinance.” 978 A.2d at 611 n.3.



      The maximum penalty applicable to the instant offense is a fine of up to

$5,000 and imprisonment of up to ninety days. D.C. Code § 8-902(b)(2). Although

the maximum fine for first offenders thus is $4,000 greater under § 8-902 than under
                                           20

the UF and UA statutes, the maximum term of imprisonment for first offenders is

about nine months less under § 8-902 than under the UF and UA statutes.

Considered as a whole, the maximum penalty for first offenses under the UF and UA

statutes is significantly harsher than the maximum penalty for the offense alleged in

this case. As the Supreme Court explained in a different legal context, “[p]enalties

such as probation or a fine may engender a significant infringement of personal

freedom . . . , but they cannot approximate in severity the loss of liberty that a prison

term entails.” Blanton v. City of N. Las Vegas, 489 U.S. 538, 542 (1989) (internal

quotation marks omitted); see United States v. Nachtigal, 507 U.S. 1, 5 (1993) (per

curiam) (“While the maximum fine in this case is $4,000 greater than the one in

Blanton, this monetary penalty cannot approximate in severity the loss of liberty that

a prison term entails.”) (internal quotation marks omitted).



      We therefore conclude that the penalties potentially applicable to the violation

of § 8-902 charged in this case are “not so great as to render the[] provision[]

inappropriate for enforcement by the OAG.” In re Hall, 31 A.3d at 456 n.2.
                                          21

                      I. Balancing Relevant Considerations



      We conclude that the balance of relevant considerations supports the

conclusion that the District of Columbia has prosecutorial authority over the offense

charged in this case. Specifically, § 8-902 is tied to local conditions rather than an

absolute general prohibition; there is a long history of local regulation of solid-waste

disposal; prior criminal prosecutions involving such disposal appear to have

historically been conducted by the District of Columbia; the offense at issue was not

codified in the Title of the D.C. Code devoted to criminal offenses; and the

applicable penalties in this case do not exceed those appropriate for enforcement by

the District of Columbia. The only consideration pointing toward the opposite

conclusion is the undesirability of having dual prosecutors responsible for

prosecutions arising under a single provision. This overall balance of considerations

is in our view not meaningfully distinguishable from the balance of considerations

in In re Hall, 31 A.3d at 456-58. We therefore conclude, as we did in In re Hall,

that the offense at issue is under the prosecutorial authority of the District of

Columbia.



      We are not persuaded by the remaining arguments to the contrary pressed by

the United States. First, the United States argues that this case is distinguishable
                                         22

from In re Hall, because the UF and UA statutes at issue in In re Hall were “direct

descendants of,” and “substantially similar to,” prior police regulations. In re Hall,

31 A.3d at 454-55. We did use those phrases in In re Hall to describe the relationship

of the UF and UA statutes to the prior police regulations, but we did not suggest that

those phrases established categorical prerequisites. To the contrary, our emphasis

was more broadly on the long history of criminal regulation of firearms and

ammunition by the District of Columbia. See id. at 453-54 (“Because the District of

Columbia long has possessed the authority to regulate the possession of firearms and

ammunition, including the authority to punish violations of these regulations with

both fines and imprisonment, we hold . . . that the OAG is the proper authority to

prosecute the possession of unregistered firearms and unlawful possession of

ammunition.”), 457 (“The treatment of the UF and UA provisions as regulatory

rather than penal in nature comports with the District’s long history of firearms

regulation.”).



      Second, the United States points out that, for an eight-year period from 1986

to 1994, no criminal penalties applied to violations of the regulations relating to

solid-waste disposal. See supra p. 13-14. We do not view that fact as supporting

the United States’s position. During that eight-year period, solid-waste violations

were regulated by the District of Columbia exclusively through civil fines. The
                                          23

choice of the District of Columbia to experiment for a time with purely civil

regulation supports rather than undermines the conclusion that solid-waste disposal

has historically been a matter of local regulation rather than general penal

prohibition.



      Third, the United States argues that § 8-902 is not properly viewed as a police

regulation because § 8-902 was enacted by the Council of the District of Columbia

and placed in the D.C. Code, rather than being promulgated through the

administrative rulemaking process and placed in the D.C. Municipal Regulations.

The United States’s argument on this point finds some support in dicta from In re

Perrow, 172 A.3d 894, 901 n.14 (D.C. 2017) (although parties did not raise issue,

court indicates in dicta that voyeurism statute “is not a police ordinance or regulation

because voyeurism is a D.C. Council enactment, not a pronouncement from the

police department”).      The United States’s argument, however, is squarely

contradicted by our holding in In re Hall that the UF and UA statutes were “police

regulations” within the meaning of § 23-101(a), even though they were enacted as

legislation by the Council of the District of Columbia and placed in the D.C. Code.

31 A.3d at 456-57. More generally, the term “regulation” has long and often been

applied in the District of Columbia to refer to local enactments by legislative and

quasi-legislative entities. See, e.g., In re Crawley, 978 A.2d at 612 (“With time, the
                                         24

Board of Commissioners became more than a mere administrative agency,

possessing significant legislative authority obtained by a broad delegation of police

power from Congress to promulgate reasonable and usual police regulations.”)

(internal quotation marks omitted); cf., e.g., D.C. Code §§ 1-206.02(a)(8) (2016

Repl.) (prohibiting Council of District of Columbia from “[e]nact[ing] any . . .

regulation” on particular topic), 1-303.03 (Council of District of Columbia may

“make” regulations), 47-802(6) (2015 Repl.) (defining “regulation” to include

certain acts “enacted” by Council of District of Columbia). Thus, the Council of the

District of Columbia has on numerous occasions enacted legislation with provisions

to be placed among the District of Columbia Municipal Regulations. See, e.g.,

Comprehensive Plan Amendment Act of 2006, D.C. Act 16-637, 54 D.C. Reg. 924

(2007) (amending Title 10 of DCMR); Solid Waste Regulations Amendments Act

of 1983, D.C. Act 5-37, 30 D.C. Reg. 3331 (1983) (amending, inter alia, 21 DCMR

§ 703).



      In other words, the governmental history of the District of Columbia is

inconsistent with applying in the current context a categorical formal distinction

between (1) statutes enacted by a legislature and placed in the District of Columbia

Code and (2) regulations adopted by administrative agencies and placed in the

District of Columbia Municipal Regulations. We do not go so far as to say that such
                                         25

formal characteristics are irrelevant. We do conclude, however, as we did with

respect to the UF and UA provisions at issue in In re Hall, that § 8-902’s enactment

by the Council of the District of Columbia and codification in the D.C. Code does

not preclude § 8-902 from being a police or municipal ordinance or regulation within

the meaning of § 23-101(a).



      Finally, no one in this case has briefed the question whether the applicable

penalties under § 8-902 in this case exceed the maximum penalties that the Council

of the District of Columbia may impose for violations of regulations. See D.C. Code

§ 1-303.05 (2016 Repl.) (Council of District of Columbia may “prescribe reasonable

penalties of a fine not to exceed $300 or imprisonment not to exceed 10 days, in lieu

of or in addition to any fine” for violations of regulations promulgated pursuant to

D.C. Code §§ 1-303.01, .03, and .04 (2016 Repl.)). We express no view on that

question, because we conclude in any event that with respect to the offense charged

in this case, § 8-902 could properly be viewed as an ordinance for purposes of § 23-

101(a). We do note, however, that § 1-303.05’s limitation applies by its terms only

to regulations promulgated under certain grants of authority, and the Council of the

District of Columbia has had other sources of authority for making regulations. See,

e.g., D.C. Code § 1-303.43 (2016 Repl.) (authority to make firearms regulations);

D.C. Code § 6-501 (1995 Repl.) (authority to make regulations relating to garbage
                                         26

and “to annex to said regulations such penalties as will secure the enforcement

thereof”) (repealed by Sustainable Solid Waste Management Amendment Act of

2014, D.C. Law 20-154, § 301(a), 61 D.C. Reg. 9971, 9988 (2014), 62 D.C. Reg.

3600 (2015)).



      For the foregoing reasons, we hold that the offense charged in this case is

subject to the prosecutorial authority of the District of Columbia. We therefore

remand the case to the Superior Court for further proceedings. See In re Crawley,

978 A.2d at 620 n.14 (after court concludes that prosecution had been brought by

incorrect prosecutor, court remands case “to allow the trial court to determine in the

first instance what should happen next”).



                                 So ordered.
