Anthony A. Williams, Democratic Candidate for
Mayor in the 
September 10, 2002, Primary Election
Board of Education Brief and Motion to the 
District of Columbia Court of Appeals
July 31, 2002

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DISTRICT OF COLUMBIA
COURT OF APPEALS

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent

No. 02-AA-854
Re: Petition for Review of Board Order

MOTION BY THE D.C. BOARD OF ELECTIONS AND ETHICS FOR SUMMARY AFFIRMANCE

WHEREFORE, the Respondent Board moves this honorable Court for an Order summarily affirming the Board's July 29, 2002 Order and for such other relief as the Court may find proper.

If the Court denies the Respondent's motion or defers consideration on the merits, Respondent, the Board, respectfully requests that, pursuant to Rule 27(g), this Motion be treated as its Brief.

Respectfully submitted,
Kenneth J. McGhie, Bar No. 385313
Terri Stroud, Bar No. 465884
Rudolph McGann, Bar No. 471731
D.C. Board of Elections and Ethics
One Judiciary Square
441 4th Street, NW, Suite 270N
Washington, DC 20001
202.727.2194
Counsel for Respondent

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DISTRICT OF COLUMBIA COURT OF APPEALS

APPEAL NO. 02-AA-854

ANTHONY A. WILLIAMS, Petitioner, v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent.

BRIEF IN SUPPORT OF RESPONDENT D.C. BOARD OF ELECTIONS AND ETHICS' MOTION FOR SUMMARY AFFIRMANCE

July 31, 2002

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TABLE OF CONTENTS

TABLE OF AUTHORITIES
STATEMENT OF FACTS AND NATURE OF PROCEEDINGS BELOW 
ARGUMENT
CONCLUSION 
CASE

TABLE OF AUTHORITIES

Allen v. District of Columbia Board of Elections and Ethics, 663 A.2d 489 (D.C. 1995) 
Citizens Against Legalized Gambling v. District of Columbia Board of Elections and Ethics, 501 F.Supp. 786 (D.D.C. 1980) 
Dankman v. District of Columbia Board of Elections and Ethics, 443 A.2d 507 (D.C. 1981) 
In re John Edmond, 934 F.2d 1304 (4th Cir. 1991) 
In re Vitamins Trust Litigation, 120 F.Supp.2d 58 (D.D.C. 2000)
Lim v. District of Columbia Taxicab Comm'n, 564 A2d 720, 724 (D.C. 1989) 
Pendleton v. D.C. Board of Elections and Ethics, 449 A.2d 301, 307 (D.C. 1982) 
Schiffman v. District of Columbia Alcoholic Beverage Control Board, 302 A.2d 235 (1973) 
Muir v. District of Columbia Alcoholic Beverage Control Board, 450 A.2d 412 (1982)
Selk v. District of Columbia Department of Employment Services 497 A.2d 1056 (1985)

STATUTES

D.C. CODE ANN. § 1-1001.08(b)(2)
D.C. CODE ANN. § 1-1001.08(b)(3)
D.C. CODE ANN. § 1-1001.08(b)(4)
D.C. CODE ANN. § 1-1001.08(i)(1)(B)

REGULATIONS

D.C. Mun. Regs. Tit. 3, § 410.3(d)
D.C. Mun. Regs. Tit. 3, § 1600.6

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STATEMENT OF FACTS AND NATURE OF PROCEEDINGS BELOW

On July 2, 2002¹, the Mayor submitted a nominating petition in support of his candidacy for Mayor of the District of Columbia. (Ex. 2-4) This petition contained a total of 512 pages, and a total of 10,102 signatures. The circulator's affidavits on the petition pages indicated that 345 of the pages (67%) were circulated either by Scott Bishop, Sr., Scott Bishop, Jr., or Crystal Bishop. (Ex. 2-4)

The petition was posted for review on July 6, 2002. On July 15, 2002, Dorothy Brizill, Gary Imhoff, Mark Sibley, and Shaun Snyder filed a joint challenge to the Mayor's petition. ("Brizill challenge"). (Ex. 5) The Brizill challenge alleged that approximately 9,250 of the signatures therein were defective. The grounds upon which the Brizill challenge sought to disqualify signatures in the Mayor's petition were: 1) that the signer, according to the Board's records, was not registered to vote at the address listed on the petition at the time it was signed; 2) that the signer was not a duly registered voter; 3) that the signer was not registered to vote in the same party as the candidate at the time the petition was signed; 4) that a signature was not the signature of the person it purported to be; 5) that a signature was listed more than once, and; 6) that a signature was not dated. (Ex. 5 at 5) The Brizill challenge also alleged that, in some instances, listed circulators were not registered qualified electors at the time the petition was circulated. (Ex. 5 at 5)

In addition to these specific grounds for challenge, Messrs. Mark Sibley and Shaun Snyder also submitted a statement of additional facts which they alleged constituted a petition defect, namely that pages submitted by Scott Bishop, Sr. contained the nonexistent date of June 31$`, and that Scott Bishop, Jr. collected what they allege to be an unlikely number of signatures, 540, in one 24-hour period. (Ex. 5 at 6) This implied that either Scott Bishop, Jr. had forged signatures or had not personally circulated the petition himself. Based upon these alleged defects and others, Messrs. Sibley and Snyder requested that the Board reject all petition pages attributed to the Bishops. (Ex. 5 at 6)

Consistent with the practice of the Board, the Office of the General Counsel for the Board scheduled a pre-hearing conference for Monday, July 22, 2002. (Ex. 7) On Friday, July 19, 2002, Vincent Mark Policy, counsel for the Mayor, filed a response to the Brizill challenge. (Ex. 6) In this response, Mr. Policy indicated that the Mayor would not defend 214 of the 512 pages submitted in his petition. (Ex. 6 at 3) (During the course of the hearing, on Wednesday, July 24, 2002, Mr. Policy, in response to a question from the Chairman as to why the Mayor would not defend these pages, stated "we do not defend forgeries.") (Ex. 13 at ) These pages contained approximately 4,240 signatures. Of these 214 pages, 167 (78%) were petition pages that were attributed to the Bishops. The pages that the Mayor requested be withdrawn from consideration also included 14 pages attributed to Ann Lewis, and 16 pages attributed to Franklin Wilds.² As a result of the Mayor's indication that he would not defend these 214 petition pages, the Registrar of Voters considered only 298 of the 512 petition pages submitted.

The Mayor's response, as submitted by Mr. Policy, argued: 1) that the Brizill challenge was not specific; 2) that all challenges filed on the grounds that a circulator was not a registered qualified elector at the time the particular petition was signed should be disregarded;³ 3) that all challenges based upon the fact that the date on the circulator's affidavit precedes the dates accompanying signatures on the petition page should be disregarded, and; 4) that the Board should require Brizill as complainant to prove by clear and convincing evidence that the signatures alleged to have been forged actually were.

At the pre-hearing conference, in an effort to demonstrate bias on behalf of the Board Chairman, Mr. Policy introduced into the record three newspaper articles, which addressed the issues surrounding the Mayor's petition. (Ex. 9-11) These articles contained public admissions by Scott Bishop, Sr. that the Bishops "signed as official circulators for petitions they did not collect."⁵

A Board hearing on the Brizill challenge was scheduled for Wednesday, July 24, 2002. (Ex. 13) In connection with this hearing, the Board issued subpoenas on its own behalf-as well as on behalf of the parties-to circulators Scott Bishop, Sr., Scott Bishop, Jr., Crystal Bishop, Wanda Alston, Ron Bitondo, Sam Bost⁶, Ann Lewis, Carlton Pressley, and Franklin Wilds. Gwen Hemphill and Charles Duncan, both of whom were high-ranking members of the Mayor's campaign, were also subpoenaed.

While Crystal Bishop apparently attended a portion of the hearing on Wednesday, July 24, 2002 — unbeknownst to the Board — she left before being called to testify. (Ex. 13 at) Later, the Board was informed on Friday, July 26, 2002 that she was hospitalized and would be unable to appear. (Ex. 13 at vol. III p 225 ln.9) Neither Scott Bishop, Sr. nor Scott Bishop, Jr. appeared until Friday, July 26, 2002, and then only after the Board had obtained orders from the Superior Court of the District of Columbia ordering them to comply with the Board's subpoena and appear before it. (Ex. 39) Both witnesses asserted their Fifth Amendment right against self-incrimination and refused to answer any questions posed by the challengers or the Board. (Ex. 13 vol. III pp. 213- 258) Accordingly, the Board was unable to make a determination as to the validity of the circulator's affidavits contained on the petition pages attributed to the Bishops. Charles Duncan, (Ex. 13 vol. I p. at) Senior Campaign Advisor, and Gwendolyn Hemphill, (Ex. 13 vol. I p. at) Co-Chair of the campaign to re-elect Mayor Anthony Williams, both testified that they had no responsibility for overseeing the nominating petition process, and indicated further that Scott Bishop, Sr. was responsible for overseeing the nominating petition process.

On Friday, July 26, 2002, the Registrar of Voters, Ms. Kathryn Fairley, rendered her preliminary determination report with respect to the Brizill challenge. (Ex. 13 vol. III p. 269) She reviewed the signatures of 298 pages still at issue. Ms. Fairley's report, which was based in part upon a consideration of 178 pages, including 945 signatures attributed to the Bishops, concluded that the Mayor submitted 2,235 presumptively valid signatures. This was 235 signatures more than the 2,000 signatures required for ballot access. Notwithstanding the Registrar's report, the Board, citing widespread obstruction and pollution of the nominating process, particularly as it pertained to petition sheets circulated by the Bishops, concluded that the Mayor did not have the requisite number of signatures for ballot access as the Democratic Party candidate for Mayor of the District of Columbia, and, accordingly, voted to deny him ballot access. (Ex. 13 vol. III p 283)

Petitioner now seeks review of the reasonableness of the Board's decision to deny Anthony A. Williams ballot access as a Democratic Party candidate for Mayor of the District of Columbia. The Petitioner filed this appeal with this Court on Tuesday, July 30, 2002.

ARGUMENT

A. STANDARD OF REVIEW

The scope of review for this honorable Court is limited. This Court should, consistent with the basic principles of administrative law, defer to the Board's expertise, and give great weight to the Board's interpretation of the statute and regulations unless the Board's rationale is not supported by substantial evidence and/or is unreasonable, arbitrary, or capricious. See Pendleton v. D. C. Board of Elections and Ethics, 449 A.2d 301, 307 (D.C. 1982).

This Court; notwithstanding the fact that it might have chosen or reached a different result, cannot substitute its judgment for the Board's, and disturb the Board's decision in the exercise of its statutory powers, unless convinced that such action was plainly wrong, or without support by substantial evidence in the administrative record. See Schiffman v. District of Columbia Alcoholic Beverage Control Board, 302 A.2d 235 (1973); Muir v. District of Columbia Alcoholic Beverage Control Board, 450 A.2d 412. Moreover, in Allen v. District of Columbia Board of Elections and Ethics, 663 A.2d 489 (D.C. 1995), this Court stated that "[i]nsofar as the Board's legal conclusions are concerned, we must defer to its interpretation of the statute which it administers, and, especially of the regulations which it has promulgated, so long as that interpretation is not plainly wrong or inconsistent with the legislative purpose." Allen, at 495. This analysis clearly applies to the instant case.

B. THE BRIZILL CHALLENGE CLEARLY ALLEGED A PETITION DEFECT INVOLVING CIRCULATOR IRREGULARITIES

Pursuant to Section 410.3(d) of the D.C. Municipal Regulations, a challenger to a candidate's nominating petition may offer, in addition to a line-by-line, signature-based challenge, "[a] clear and concise statement of any other facts which are alleged to constitute a petition defect." D.C. Mun. Regs. tit. 3, § 410.3(d). 1n a letter dated July 15, 2002, Messrs. Mark Sibley and Shaun Snyder did exactly that when they indicated to the Board that a defect in the Mayor's nominating petition lay in the fact that pages submitted by Scott Bishop, Sr. contained the nonexistent date of June 31st, and that Scott Bishop, Jr. collected what they allege to be an unlikely number of signatures, 540, in one 24-hour period. (Ex. 5 at 6) These allegations implied a belief that either Scott Bishop, Jr. had forged signatures or had not personally circulated the petition himself. Based upon these alleged defects and others, Messrs. Sibley and Snyder requested that the Board reject all petition pages attributed to the Bishops. (Ex. 5 at 6) Through the July 15, 2002 letter, the Board was on notice that the Mayor's nominating petition was being challenged, inter alia, on the grounds that a circulator had not actually circulated a nominating petition attributed to him.

The Board was further apprised of potential defects in the Mayor's nominating petition through the Mayor's own actions. Specifically, during a .pre-hearing conference held in connection with the Brizill challenge, the Mayor, through counsel, introduced into the record three newspaper articles, (Ex. 9-11) which addressed the issues surrounding the Mayor's petition. These articles contained public admissions by Scott Bishop, Sr. — the individual charged with coordinating the Mayor's nominating petition process — that he, his son, and his daughter-in-law "signed as official circulators for petitions they did not collect."⁷ In this manner, the Board was made exceedingly aware that the allegations levied by Messrs. Sibley and Snyder, as part of the Brizill challenge, were not without basis.

C. THE BOARD DOES NOT ENGAGE IN SIGNATURE-BY-SIGNATURE REVIEW WHERE A PETITION IS BEING CHALLENGED ON CIRCULATOR-RELATED GROUNDS

The Mayor argues that any challenge that was not based upon a particular signature must be denied, because "[u]nder the Board's long-standing practice, the specification of defects by the challenger is required to be tied to the individual signature under 3 DCMR § 1607.5[.]" This is simply not the case. Challenges which are based upon a circulator's voter registration status provide -a basis upon which to discount all signatures on a petition sheet, regardless of whether or not the signers on that sheet are in all ways qualified to sign. That is to say that, in cases where the Board has determined that a circulator was not a registered qualified elector, the signatures on that circulator's petition sheets have been rejected notwithstanding the fact that each and every signatory may have been a registered qualified elector in the District of Columbia. That practice has a long-standing history at the Board .and is also codified at D.C. Code § 11001.08(-)(2) (2001). It is also true, as the Mayor notes in his Brief, that in cases where the circulator's affidavit does not contain all of the information required, the Board throws out the entire petition sheet. See D. C. Mun. Regs. tit. 3, § 1600.6 (providing that "[s]ignatures appearing on nominating petition sheets shall not be counted as valid unless all required information is provided by the circulator in his or her signed affidavit."). It is clear, then, that the Board, in accordance with its rules and regulations, has and continues to reject presumably valid signatures on circulator-related grounds.

D. THE ADMINISTRATIVE RECORD SUPPORTS THE BOARD'S FINDINGS THAT THE VALIDITY OF THE BISHOP PETITIONS IS HIGHLY DOUBTFUL

The Board also noted the Mayor's refusal to defend 214 pages from the petition. In the Mayor's Response to the Brizill challenge, he stated that "[t]he first group of petition sheets, which is listed in Schedule A to this response is the set of 214 pages from the Nominating Petition which will not be defended by the Respondent." (Ex. 6 p. 3) He went on to suggest to the Board that it should further: "focus its attention on whether the petition pages other than those listed in Schedule A meet the requirements of the statute and the Regulations." (Ex. 6 p. 4). It did not escape the Board's attention that 167 sheets — the vast majority of withdrawn petition sheets — were attributed to the Bishops as circulators. This fact led the Board to reasonably believe that there were widespread irregularities associated with petition sheets the Bishops circulated.

Having been confronted with the issue of the highly questionable nature of the Bishops' petition sheets, the Board sought to communicate with them so as to determine the validity of their petitions and the circulator affidavits contained therein. Accordingly, the Board issued subpoenas to the Bishops, as well as to other circulators who were mentioned in the news articles introduced by the Mayor. In contrast to the several other circulators who appeared before the Board and testified as to their petition circulation activities, both Scott Bishop, Sr. and Scott Bishop, Jr. who appeared only after the Board obtained orders from the D.C. Superior Court compelling them to comply with the Board's order (Ex. 39) and appear before it, asserted their Fifth Amendment right against self-incrimination. Consequently, neither the Board nor any of the parties was able to question or cross-examine them with respect to the validity and veracity of their circulator affidavits.

It bears repeating that the record demonstrates that the insidious irregularities associated with the Mayor's nominating petition are most pronounced in the petition sheets circulated by Messrs. Scott Bishop, Sr., Scott Bishop, Jr., and Mrs. Crystal Bishop. According to the Registrar of Voters, the Bishops were responsible for a total of 345 of the 512 petition sheets submitted, and 167 of the 214 sheets the Mayor refused to defend that were attributed to the Bishops. The remaining 298 petition sheets in contention included 178 petition sheets with 3,552 signatures attributed to the Bishops as circulators. The fact that Scott Bishop, Sr. coordinated the petition process — coupled with the fact that he and his family members submitted the majority of petition sheets still at issue — raised concerns over the propriety of the entire nominating process. So, while there may not be a question as to the registration status of the Bishops⁸, it is most certainly true that there was a question as to whether or not they had, in fact, actually circulated the petitions attributed to them, and/or had attempted to validate with their own signatures petitions with forgeries contained therein.

The Mayor is apparently of the opinion that District law provides for no recourse in circumstances such as the one the Board was faced with-where circulators appear to have acted fraudulently with respect to petition circulation-other than to penalize the circulator for his or her own wrongdoing. This sentiment is expressed in the Mayor's assertion that "[t]he Board has no statutory authority to strike valid voters' signatures because of an inaccurate, or even false, affidavit of a circulator." Petitioner's Brief at 19. This perhaps explains why the Mayor's counsel was unable to stipulate during the prehearing conference that petition sheets with forged circulator signatures, or even no signatures at all, should be discarded. (Ex. 7 pp. 41-2) Apparently the Mayor would prefer to do away with affidavits altogether. The Board is of a contrary opinion.

The law is very clear that, in the contest at issue, the Mayor is to submit a nominating petition which contains the signatures of at least "2,000 registered qualified electors of the same political party as the nominee[.]" D.C. CODE § 1-1001.08(i)(1)(B) (2001 ed.). In contrast to its procedures with respect to initiative petitions, the Board does not verify nominating petitions to insure that the signatures which are collected therein are in fact those of duly registered electors in the same party as a candidate. Rather, with respect to nominating petitions, the Board relies heavily — and almost exclusively, save for the challenge process — on the circulator's affidavit. As the Mayor notes, District law requires that

[e]ach petition shall contain an affidavit, made under penalty of perjury, ... [which shall be] signed by the circulator of that petition which shall state that that the circulator is a registered voter and has: (A) Personally circulated the petition; (B) Personally witnessed each person sign the petition; and (C) Inquired from each signer whether he or she is a registered voter in the same party as the candidate and, where applicable, whether the signer is registered in and a resident of the ward from which the candidate seeks election.

D.C. CODE § 1-1001.08(b)(3).

The law governing nominating petitions further provides that 

[a]ny circulator who knowingly and willfully violates any provision of this section, or any regulations promulgated pursuant to this section, shall upon conviction be subject to a fine of not more than $10,000, or imprisonment for not more than 6 months, or both. Each occurrence of a violation of this section shall constitute a separate offense. Violations of this section shall be prosecuted in the name of the District of Columbia by the Corporation Counsel of the District of Columbia.

D.C. CODE § 1-1001.08(b)(4). It hardly seems logical that the law would assign such harsh penalties to a circulator who violated the District's laws on nominating petition circulation in the absence of an understanding of the monumental significance of the act of petition circulation and of the circulator's affidavit. Individuals who undertake to circulate nominating petitions are charged with a sobering task: that of insuring that only those individuals who have a proper role in determining ballot access for a potential elected official participate in that process. Circulators are also responsible for seeing to it that signatures are collected in a manner free from fraud or undue influence, which indicates that the way in which signatures are obtained is almost as important as the signatures themselves.

In performing their substantial duties, circulators assist the Board of Elections and Ethics in insuring that only rightful candidates-those who have made a true demonstration of legitimate public support-attain ballot access. Indeed, with respect to nominating petitions, circulators fulfill the very same role assumed by the Board itself with respect to initiative petitions.⁹ Simply put, circulators are the paramount reason that the Board is authorized-not compelled-to accept nominating petitions as bona fide. Accordingly, where an issue has been raised concerning a circulator's veracity with respect to the affidavit he or she signs, it is against the public interest for the Board to ignore the existence of such issue. Moreover, when the Board is in no way able to conclusively determine that particularly questionable affidavits are in fact valid, as was the case here, it is entirely reasonable for the Board to choose to reject such affidavits and their associated petitions. To allow a contrary result would severely undermine the Board's ability to insure the integrity of the nominating petition process.

Moreover, as the Mayor correctly notes, the Board's regulations provide that "[s]ignatures appearing on nominating petition sheets shall not be counted as valid unless all required information is provided by the circulator in his or her signed affidavit."). D.C. Mun. Regs. tit. 3, § 1600.6. In instances such as the one that the Board was faced with in the instant case, where there are strong questions as to the whether the circulators actually circulated the petition and witnessed each signature therein, there is no way to determine whether or not the required information-in this instance the signature of the individual who actually personally circulated the petition and who actually personally witnessed each listed individual sign the petition-has actually been provided. The Board made every effort to ascertain whether or not this essential required information was present, but was regretfully unable to do so. And, in light of the evidence contained in the administrative record which strongly indicated that particular petition sheets were severely tainted as a result of circulator irregularities, the Board reasonably decided not to afford such petition sheets the benefit of the doubt.

F. THE BOARD ACTED REASONABLY AND IN ACCORDANCE WITH ESTABLISHED LAW WHEN IT REJECTED THE BISHOPS CIRCULATORS AFFIDAVITS AND PETITIONS

There is precedent which justifies the Board's refusal to consider and credit the circulator's affidavits submitted by Messrs. Scott Bishop, Sr. and Scott Bishop, Jr., in light of their assertions of the Fifth Amendment. Numerous courts have held that when witnesses have "offer[ed] ... affidavit[s] to compel a certain result," but then invoked the Fifth Amendment and refused to answer the government's questions concerning material presented in those affidavits, the affidavits may be stricken. In re John Edmond, 934 F.2d 1304 (4th Cir. 1991); see also In re Vitamins Trust Litigation, 120 F.Supp.2d 58 (D.D.C. 2000).

There is no basis upon which to foreclose an application of the rationale utilized in these cases from the matter at hand. In the proceedings below, the Mayor attempted to stand on the Bishops' sworn circulator affidavits in an effort to gain ballot access; without these affidavits, it would be impossible for him to do so. Accordingly, in a very meaningful sense, the affidavits are his own. Yet, as has been previously noted, Messrs. Scott Bishop, Sr. and Scott Bishop, Jr. both asserted the Fifth Amendment with respect to each and every question posed to them during the Board's proceedings, including those involving the affidavits attributed to them. The Mayor should not be allowed to benefit from their silence - which is in effect his own — particularly in light of the administrative record's evidence of the irregularities inherent in the Bishops' petitions. It was entirely reasonable for the Board to discount these affidavits and their accompanying petitions.

G. THE MAYOR'S RELIANCE ON CITED PRECEDENT IS MISPLACED

The Mayor erroneously relies on inappropriate precedent to buttress his claim that the Board acted unreasonably when it refused to accept petition pages circulated by individuals whose circulator affidavits were drawn into question and, accordingly, denied him ballot access. One example of inapplicable precedent is Dankman v. District of Columbia Board of Elections and Ethics, 443 A.2d 507 (D.C. 1981). In this case, this court overruled the Board's order refusing to place an initiative measure on the ballot on the grounds that its supporting petition had been circulated by individuals who were not registered to vote in the District of Columbia. This case is inapposite. In Dankman, the court was faced with a Board which ignored its own regulation which explicitly provided that the failure of a circulator to be a registered qualified elector did not invalidate the signatures of valid petition signatories)¹⁰. The present case does not present a similar situation; here, the Board is in no way ignoring or violating any of its regulations. The Mayor can not point to any rule or regulation which explicitly precludes the Board from discarding signatures on petition pages where the circulator's affidavit is somehow inaccurate or outright false.

The Mayor is also off point with respect to his reference to Citizens Against Legalized Gambling v. District of Columbia Board of Elections and Ethics, 501 F.Supp. 786 (D.D.C. 1980). In ,that case, the court held that misconduct on the part of the circulator does not necessarily invalidate the signatures the circulator actually collected.

However, the court distinguished that case from a scenario, such as that presented here, where there is a true question as to whether the circulator, in-fact, circulated the petition.

Where petitions have been invalidated because of the failure of the person circulating the petition to comply with the laws, the reasoning generally seems to be that the omission raises doubts as to the validity of the signatures themselves. See, e. g., In re Levowitz, 221 N.Y.S.2d 703 (1961) (statement of witness to signatures false, casting doubt on authenticity of signatures); Clawson v. Wilgus, 107 Ohio App. 460, 160 N.E.2d 294 (1957) (person attesting to petition did so falsely; no way to determine actual circulator). That is not the situation here.

Citizens, at 90. Citizens, then, clearly supports a proposition which is .diametrically opposed to that suggested by the Mayor; it dictates that a circulator's failure to follow the law calls the signatures on his, or her petition sheets into question.

H. THE NEWSPAPER ARTICLES INTRODUCED AS EVIDENCE BY THE MAYOR ARE PART OF THE EXCLUSIVE RECORD

Contrary to the Mayor's assertion, Counsel for the Mayor specifically requested at the pre-hearing conference that the newspaper articles be included in the Record. (Ex. 7 pp. 26-31) As stated in the Board's Order, "in an attempt to establish bias on the part of the Board's Chairman" (Ex. 40 p. 8), the Mayor's Counsel stated "For purpose of an appeal, we wish to place this-these exhibits in the record at this point in time." (Ex. 7 p. 27) Counsel than proceeded to have each of the three newspaper articles marked as Respondents Exhibits 2-4. Challenger Brizill, who stated "I'm not an attorney" made no objection to the introduction of the exhibits, but instead appeared to welcome the exhibits by stating "wouldn't you also acknowledge in those very articles you have as exhibits that the Mayor and individuals from his campaign operations, you know, ... make statements regarding their observations of the whole process, as well?" (Ex. 7 p. 31) In addition, Counsel for the Mayor, on several occasions during the course of the proceedings on July 24 made reference to these very same exhibits. (Ex. 13 vol: I at)

At the pre-hearing conference, the parties also entered into the record stipulations. The parties stipulated, that Scott Bishop, Jr., Crystal Bishop, Ann Lewis, Franklin Wilds and Norman Neverson were registered qualified electors. (Ex. 7 p. 23) The Mayor would not argue that the stipulation entered into at the pre-hearing is not part of the record and neither should he argue that exhibits introduced, without objection are either. This Court requires — pursuant to D.C. App. R. 17a — that "the agency involved shall certify and file with the clerk the papers comprising the record of proceedings." Further, D.C. App. R. 17b provides, "If a stenographic transcript of testimony before the agency is available, one copy of the transcript, certified as correct by the secretary or other executive officer of the agency, shall be filed with the record." We have respectfully complied with this Court's own procedure and included all transcripts that were a part of the record. As demonstrated in the Board's Designation of Record, all exhibits, documents and papers submitted by either party for the Board's consideration are part of the "exclusive record".

I. THE MAYOR'S NEWS ARTICLES WERE CORROBORATED BY COMPETENT EVIDENCE

The Mayor does not deny that hearsay is admissible in administrative proceeding. Nor, does the Mayor deny that the newspaper articles were relevant, probative and material. Lim v. District of Columbia Taxicab Comm'n, 564 A2d 720, 724 (D.C. 1989). The Mayor does however, mistakenly believe that the Board based its decision, to discredit the affidavits of the Bishop family, solely on the hearsay statements in the newspaper. This clearly was not the case. First, the Board considered the public admissions of the Bishops as reported in two different newspapers by three different reporters as reliable. Second there was overwhelming evidence in the record to corroborate the hearsay statements in the articles.

1. Franklin Wilds testified that two names were added to his petition sheet without his knowledge whose signatures he did not observe. (Ex. 22)
2. Franklin Wilds testified that his name was forged on 17 petition sheets. (Ex. 23) The Mayor's Counsel however, objected to those sheets being entered into evidence as irrelevant.
3. Wanda Alston testified that three names were added to her petition sheet, without her knowledge whose signatures appeared to be forged. (Ex. 13 vol. II p. 19 In.12).
4. Ann Lewis testified that one of the Mayor's campaign officials had instructed her to sign as the circulator to a completed petition sheet although she had not witnessed any signatures. (Ex. 13 vol. III p. 481n.2)
5. Ann Lewis testified that her name was forged on 10 petition sheets (Ex. 37)
6. The Mayor conceded 214 petition sheets (presumably as forgery) of which 167 or 78% were attributable to the Bishops.
7. Charles Duncan, Senior Campaign Advisor to the Mayor, testified that circulators were paid one dollar per signature and that Scott Bishop Sr. was the unsupervised coordinator of the petition drive responsible for all field operations pertaining to the re-election effort. (Ex. 13 vol. I at )

The above is just a sample of the overwhelming evidence in the record that corroborated the hearsay statements of the news articles with respect to the Mayor's petition drive, coordinated by Scott Bishop Sr.

Even after hearing the above testimony the Board still did not simply dismiss the affidavit of the Bishops. As stated in the Board's order "The attendant circumstances in the record controverted each material aspect of the affidavit. However, rather than prejudge the actions of the Bishops based on forged signatures which eventually the Mayor declined to defend and on statements in newspaper articles, the Board wished to hear the circulators' testimony directly. The entire'' Bishop family refused for two days to honor the Board's subpoena and did not comply until the Board obtained a Court order for their appearance. (Ex. 39). Eventually, when Scott Bishop, Sr. and Scott Bishop, Jr. did appear, they both chose to exercise their Fifth Amendment privilege against self incrimination with respect to the statements in their affidavits. Therefore, it was not the hearsay news articles that were uncorroborated; rather, the hearsay affidavit-which had been called into question-that was uncorroborated.

J. THE BOARD DID NOT DRAW ANY INFERENCES FROM THE BISHOPS'S INVOCATION OF THE FIFTH AMENDMENT

Contrary, to the Mayor's assertion, the Board did not draw any improper and irrational inference from the invocation of the privilege against self incrimination by the witnesses Mr. Bishop, Sr. and Mr. Bishop, Jr. There is nothing in the Board's Order or in the Record which indicates that the Board drew any inferences at all from the Bishop's exercise of the privilege. The Board simply relied on a well founded principle of evidentiary law. "Testimony that is not subject to cross-examination generally cannot be considered reliable, probative or substantial evidence, Selk v. District of Columbia Department of Employment Services 497 A2d 1056 (1985)." (Ex. 40 p. 13). "Because both the Board and the opposing parties were denied and opportunity to cross-examine the witnesses on their statements, their affidavits should not be considered reliable." (Ex. 40 p. 13). There was overwhelming evidence in the record to rebut any presumption of validity the Bishops' affidavits may have had prior to the challenge. Therefore, it was not unreasonable for the Board to discredit, the, otherwise presumptively valid affidavit of the Bishops, as unreliable. In the Board's judgment the presumption of validity had been effectively rebutted and there was insufficient evidence in the record to corroborate the statements in the affidavit.

K. THE BOARD DID NOT END ITS PROCEEDINGS WITHOUT GIVING THE PARTIES THE OPPORTUNITY TO CHALLENGE ITS RULING

Rather, the record reflects that Chairman Wilson indicated to both parties that the Board was willing to reconvene to proceed with the challenge, and instructed both parties to contact the Board's General Counsel should they wish to proceed with a further examination of the petitions and signatures. Neither party did so. (See Ex. 13 vol. III p. 284).

CONCLUSION

The Petitioner has failed to assert any grounds upon which the Board's Order denying Anthony A. Williams ballot access as a Democratic Party candidate for Mayor of the District of Columbia should be viewed as unreasonable and set aside. In view of the foregoing, the Board's July 29, 2002 Order should be summarily affirmed.

Respectfully submitted,
Kenneth McGhie, Bar No. 385313
Terri D. Stroud, Bar No. 465884
Rudolph McGann, Bar No. 471731
D.C. Board of Elections and Ethics
One Judiciary Square
441 4th Street, NW, Suite 270N
Washington, DC 20001
202.727.2194

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1. On July 3, 2002, the Mayor filed with the Board two supplements to his nominating petition. (Ex. 3,4)

8. During the course of the pre-hearing conference, Ms. Brizill refused to stipulate that Mr. Scott Bishop, Sr. was a registered qualified elector because of a question as to whether he actually resided at the address listed on his voter registration record. (Ex. 7 pp. 23-4) 

9. Pursuant to D.C. Code §1-1001.16(o)(1), the Board subjects an initiative petition to a verification process to insure that the initiative has District-wide support. 

10. That provision is no longer in effect, and it has been replaced with D.C. Code § 1-1001.08(b)(2) (2001) raised supra