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04-AA-957
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner, On Petition for Review of Decision of District of Columbia Oral Argument Scheduled for: September 8, 2004 Brief for Intervener Ronald L. Drake, EsquireRonald L. Drake, Esquire LIST OF PARTIES1. Counsel for Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative: Mr. John L. Ray, Esquire Mr. George W. Jones, Jr., Esquire Mr. Erik S. Jaffe, Esquire 2. Counsel for District of Columbia Board of Elections
and Ethics: 3. Intervener Ronald L. Drake, Esquire, Pro Se 4. Intervener DCWatch: 5. Intervener DC Against Slots: TABLE OF CONTENTSLIST OF PARTIES IV. THE BOARD'S DECISION A. STANDARD OF REVIEW TABLE OF AUTHORITIESCASESBartnicki v. Vopper, 121 S.Ct. 1753 (2001)
STATUTESD.C. Code, Sec. 1-1001.16 OTHER AUTHORITIES2 McCormick on Evidence, 4th Edition (1992) No. 04-AA-957 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY
TERMINAL INITIATIVE, Petitioner, On Petition for Review of Decision of District of Columbia Oral Argument Scheduled for: September 8, 2004 Brief for Intervener Ronald L. Drake, EsquireI. ISSUE PRESENTED1. Whether the District of Columbia Board of Elections and Ethics (Board) acted reasonably in rejecting the initiative petition where there was substantial evidence of pervasive misrepresentation and where the initiative proponent submitted approximately more than 30000 invalid signatures, knew at the time of submission of that invalidity, and failed to disclose that invalidity to the BOEE. II. STATEMENT OF THE CASEOn July 6, 2004, after five days of circulating the petition, the Proponent, Citizens Committee for the D.C. Video Lottery Terminal Initiative (Proponent), filed with the District of Columbia Board of Elections and Ethics (Board) a petition. That petition consisted of 3869 sheets, which contained approximately 56000 signatures. The purpose of the petition was to place Initiative 68 on the November 2004 ballot. III. STATEMENT OF FACTSA. THE INITIATIVEInitiative 68, if adopted, will authorize the issuance of a ten years' monopoly license to operate 3500 video slots to one licensee who must have a controlling interest in a specific tract of land bounded by New York Avenue, Bladensburg Road and Montana Avenue, Northeast. [Exhibit 45]. At the end of the ten years, the monopoly may be broken only upon approval by a super majority of the Council of the District of Columbia. [Exhibit 45]. The District of Columbia will not be permitted to determine the suitability of the licensee applicant, so long as that applicant submits an affidavit attesting to that applicant's good character. [Exhibit 66]. The identity of the licensee's principals would be hidden. [Exhibit 66]. Initiative 68 has been characterized by a former chairman of the Nevada Gaming Control Board as an open invitation to "Mafia Bank Inc." [Exhibit 66]. B. PROCEDURAL HISTORYIn April, 2004, Las Vegas entrepreneurs proposed a video slots initiative for D.C. to a former D.C. city councilman. [Exhibit 66]. As of August 1, 2004, nearly $700,000.00 from those Las Vegas entrepreneurs has flowed into the District to advance the initiative. [Exhibit 66]. On April 22, 2004, the Proponents submitted to the Board the proposed initiative measure, entitled "Jobs, Education, and Heathcare Lottery Expansion Initiative of 2004" (Initiative 68). [Exhibit 441. Adverse comments were provided the Board by the District of Columbia Attorney General and the General Counsel for the District of Columbia City Council. [Exhibit 69, p.4]. On May 28, 2004, the Proponents submitted a revised
version of Initiative 68, redesignated as the Lottery Expansion
Initiative of 2004. [Exhibit 45]. On the afternoon of July 1, 2004, the Board issued the original petition sheet to the Proponents. [Exhibit 41]. The Proponents had 180 days within which to circulate their petition sheets and then submit to the Board. [Exhibit 69]. The Proponents opted to seek ballot access for the November 2004 election. Thus, the self-imposed deadline for submission to the Board was July 6, 2004. (Exhibit 69]. On the afternoon of July 6, 2004, the Proponents filed their petition with the Board. [Exhibit 1]. That petition consisted of 3869 sheets, which contained approximately 56000 signatures. [Exhibit 1]. Of those 56000 signatures, the Proponents had already identified at least 52% (30000) of them as invalid signatures. [TR. 7/26/04 p. 63]. The Proponents did not disclose to the Board the fact of that invalidity nor the identity of those 30000 invalid signatures, even though the Proponents had already done a validity check for purposes of payment of circulators, and had identified the invalid signatures. [TR. 7/23/04 pp. 403-404]. The Proponents were instructed by their non-Proponent, offshore financier, Rob Newell, that "we're turning in all these petitions". [TR. 7/27/04 p.419]. The Proponents did not disclose to the Board that the Proponents had a quota of 50 signatures per day that must be met by circulators. [TR. 7/27/04 p. 1481. From July 21, 2004 to July 28, 2004, and then again on August 2, 2004, the Board conducted hearings on the Drake and Brizill/James consolidated challenges. [TR. 7/21-28/04; 8/2/04]. On August 3, 2004, the Board issued its oral ruling on the challenges. [Exhibit 67]. That ruling was reduced to writing on August 13, 2004. (Exhibit 69]. On August 5, 2004, the Executive Director issued her Report on the Sufficiency of Initiative Measure 68. [Exhibit 68a]. On that same day the Board adopted the Executive Director's recommendation and denied ballot access to Initiative 68. [Exhibit 68b]. On August 13, 2004, the Board issued a written order memorializing its August 3, 2004 oral ruling on the challenges [Exhibit 691. IV. THE BOARD'S DECISIONIn its August 13, 2004 Memorandum Opinion and Order (hereinafter ORDER), the Board found-that a significant component of the circulation process was fatally flawed, especially that associated with the Stars and stripes, Inc. operation. [Exhibit 69, pp. 2]. Those flaws were monumental when considered collectively. [Exhibit 69, pp. 2]. The Proponents turned the law of the District of Columbia on its head. They unlawfully used non-residents as de facto circulators. They falsified circulator affidavits. They forged signatures of both signatories and circulators. They were uninformed about the District's election laws and Initiative 68. They mischaracterized the substance of Initiative 68. They falsely advertised the purpose of the initiative. They engaged in faulty training. They recruited District resident circulators in a haphazard and uncoordinated way. They lacked effective oversight in the field. Proponents did not rebut evidence of the foregoing irregularities. Such conduct polluted the Stars and Stripes operation. It compelled rejection of the signatures gathered by that organization. [Exhibit 69, pp. 2-3]. V. SUMMARY OF ARGUMENTThe Board's decision rationally flows from the facts presented at the administrative hearing and is reasonable. The facts and findings are substantially supported by the evidence of record. This, the Court should defer to that decision. There was widespread pollution of the petition process as it pertains to the petition sheets circulated by Stars and Stripes, Inc.. The Board had no realistic alternative but to strike those petition sheets. The Board was unable to serve 53 of the Proponents' circulators. Accordingly, the missing witness rule applies, and it was appropriate to strike all petitions sheets of all circulators who could not be served. The Court may uphold the Board's decision on grounds other than that relied on by the Board in its decision. The misconduct of the circulators from Stars and Stripes casts doubt on the signatures themselves. The Proponents' own validation process showed more than 30000 signatures were invalid on their face and the Proponents knew it at the time they submitted the petition sheets to the Board. the Proponents viewed the circulator's affidavit at the bottom of each petition sheet as simply a legal technicality. The fact that criminal sanctions are available does not in anyway diminish the Board's right to punish the Proponents by rejecting the signatures. The Proponents call for an investigation of the Challengers chills the proceedings. The Proponents had no intention of engaging in core political speech. Rather, there intention was to thwart that speech and to simply obtain signatures on petition sheets. The Board gave the Proponents every possible benefit of
the doubt in ruling on the individual challenges. Further, the Board
denied the challenge to the false representations contained in a
brochure distributed by the Proponents. The Proponents now call on the
Board to punish the wrongdoers to the fullest extent of the law, so long
as the Board allows the Proponents the fruits of that wrongdoing, the
signatures. The controlling law in this jurisdiction is the Williams case. That case makes clear that where the process has been compromised by the actions of circulators, the Board may disallow all of the signatures affected by the wrongdoing. The term circulator in clear on its face. It requires no review of legislative history. Further, the Proponents viewed the circulator's affidavit on the petition sheet was just a legal technicality. The Proponents' request to reinstate the Stars and Stripes signatures by-passes testing those signatures from the 53 unserved circulators. It also avoid the statutorily required statistical analysis test. At most the Proponents are entitled to no more than remand to hear from those 53 unserved circulators, or the invocation of the missing witness rule if the Proponents fail to produce them, and a determination of the results of the statistical analysis. VI. ARGUMENTA. STANDARD OF REVIEWThe Court's review is limited. The Court should not disturb a decision if it rationally flows from the facts relied upon and those facts or findings are substantially supported by the evidence of record. The Court should defer to an agency's reasonable construction of a controlling statute or regulation. Selk v. District of Columbia Department of Employment Services, D.C.App., 497 A.2d 1056 1058 (1985). The Court is not to undertake an independent evaluation of the evidence, if the Board findings are support by substantial evidence. When the Board defines and applies its own regulations the Court must apply the reasonableness standard. The Court cannot substitute a different judgment for reasonable Board action. Pendleton v. District of Columbia Board of Elections and Ethics, D.C.App., 433 A.2d 1102, 1104 (1981); In Re Haworth, 258 A.2d 447, 448-449, (D.C. 1969). Further, unless plainly erroneous, an agency's interpretation of its own regulation will be accorded deference. The Court's review of the Board's application of its regulations is governed by a standard of reasonableness. When the Board attempts to apply its own regulations, the Court cannot substitute its judgment, if the Board's application is reasonable. Dankman v. District of Columbia Board of Elections and Ethics, D.C.App. 443 A.2d 507, 514 (1981). The Board's action was supported by substantial evidence. Its application of its own regulations was reasonable. The Challenger requests the Court to adhere to those foregoing standards in its review of the Board's decision. In so doing, the Court will find substantial evidence to support the Board's decision. The record also discloses that, given the Board's finding of widespread pollution of the petition process as it pertains to the petition--sheets-circulated by Stars and Stripes, Inc., the Board had no realistic alternative but to strike those petition sheets. Finally, the fact that the Board could not serve 53 of the Proponents' circulators, with no help from Proponents, ruled any realistic examination of the circumstances under which those 53 circulators obtained their signatures. [Exhibit 43]. Thus, Proponents' pending motion for invocation of the missing witness rule, and the pending motion to strike all petitions sheets of all circulators who could not be served on which the Board did not rule, give ample grounds for the Court to affirm striking of all petition sheets submitted by those 53 circulators. [TR. 8/2/04, pp. 91-96]. B. THE COURT MAY AFFIRM THE BOARD'S DECISION ON GROUNDS OTHER THAN THOSE RELIED ON BY THE BOARDThe Court may affirm the Board's decision on any grounds for Chandler v. City of Arvada, Colorado, 292 F.3rd 1236, 1242 (10th Cir. 2002). For example, Challengers contended that the brochure [Exhibit 1] was a false representation of Initiative 68. The Board disagreed. [Exhibit 69, p.44]. The Challengers contended that procedural defects in the circulators' affidavits, such as missing/incomplete dates, incomplete names, incorrect addresses, and the use of what appeared to be a mark instead of a signature was fatal to a petition sheet. The Board disagreed. [Exhibit 69, pp. 19-24]. However, if this Court agrees with Challengers and disagrees with the Board, then the Court can affirm the Board's decision on those alternative grounds. C. THE BOARD'S DECISION WAS WITHIN THE BOARD'S LAWFUL AUTHORITYThe District has a legitimate interest in preventing election fraud. Orange v. Board of Elections and Ethics, 629 A.2d 575, 579 (D.C.App. 1993). The Board has wide discretion when implementing legislation pursuant to statute. Mitchell v. District of Columbia, 741 A.2d 1049, 1055 (D.C.App. 1999). The very purpose of the statute and regulations is to regulate the petition process so as to deter fraud and diminish corruption, such as even the Proponents admit occurred here. Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 204205, 119 S.Ct. 636 (1999). Where the very misconduct of the circulators cases doubt on the signatures themselves, then the Board's rejection of the Stars and Stripes petition sheets does not elevate form over substance. The issue of disenfranchisement does not arise. Citizens Aqainst Legalized Gambling v. District of Columbia Board of Elections and Ethics, 501 F.Supp 786, 790-791 (D.D.C. 1980). And therein lies the answer. It is the very misconduct of the circulators from Stars and Stripes, as well as others, that casts doubt on the signatures themselves. The Proponents' own validation process showed more than 30000 signatures were invalid on their face. That was just an initial validity check, without further checking the signatures, without evaluating circulator fraud, and without the Board's completion of the required statistical analysis. To compound the insult to the electoral process, the Proponents constructed perjury traps for unsuspecting circulators. The witness and circulator affidavits, [Exhibit 18 and 22], designed by or on behalf of the Proponents, were nothing more than an effort by the Proponents to bind the D.C. circulators ever more tightly to the Proponents. Once the circulators signed those false affidavits, the damage was done. The Proponents could demand and extract silence. Otherwise, the Proponents risked the threat of exposure of their own wrongdoing if they talked. How many took the Fifth Amendment? How many of those who did not appear or could not be served would have found it necessary to take the Fifth Amendment, had they appeared? As Carl Towe, the president of Stars and Stripes intoned, it is apparent that the Proponents viewed the circulator's affidavit at the bottom of each petition sheet as simply a legal technicality. He contended that a defective circulator's affidavit should not invalidate the signatures on the petition sheet. [TR. 7/26/04 pp. 69-70]. The Board responded to that assertion by finding that "such a lackadaisical attitude about a critical component of the circulation process - coming from the top- may help to explain the genesis of the problems that resulted." [Exhibit 69, p.45]. If the circulator's affidavit were such a mere legal technicality to the Proponents, then how was the Board to learn the truth? Only through the intervention of the U.S. Attorney and the Attorney General for the District of Columbia was the Proponents' well-enforced code of silence overcome. But now that wall has been breached. And what do the Proponents say? Punish, punish, punish those self-same circulators that the Proponents induced into perjury, just let the Proponents have the signatures. [TR. 8/2/04 pp. 253, 266-267]. But that's not the law according to Williams v. District of Columbia, Board of Elections and Ethics, 804 A.2d 316 (D.C.App. 2002). Williams says that the fact that there are criminal sanctions available, does not in anyway gainsay the Board's right to punish the Proponents who induced this wrongdoing in the first place. And that punishment is to take away the signatures. And that's not all. The Proponents also referred to the Challengers as living in the Soviet Union. The Proponents demanded that the Board institute an investigation of the Challengers. [TR. 8/2/04 p.258]. That issue is more fully addressed infra. D. THE PROPONENTS' DISDAINED THE INTEGRITY OF THE ELECTORAL PROCESSThe Proponents knew that something had gone badly wrong on the ground. However, when questioned about this matter, Proponents' chairman Pedro Alfonso expressed his disregard for District election law in the following statement reported in the July 22, 2004 edition of the Washington Post:
In response to questions about petition circulators finding it necessary to plead the Fifth Amendment to avoid selfincrimination, Proponents' Committee Chairman Alfonso expressed a cavalier attitude toward the Board in yet another statement reported in the July 23, 2004 edition of the Washington Post:
In response to an inquiry about the troubled history of Initiative 68's financiers, Proponents' Committee Chairman Alfonso in yet another statement reported in the August 1, 2004 edition of the Washington Post, was reported as follows:
Talk about being disengaged. As the Board noted, there was an overall lack of oversight of activity in the field. [Exhibit 69, p. 31. It ultimately led to fatal consequences to the petition drive. But, finally, the Proponents acknowledged that the out-of-town people were in fact circulators. [TR. 7/27/04 p.293]. That, of course, is against the law that requires circulators to be residents of D.C. E. THE PROPONENTS HAD NO INTENTION OF ENGAGING IN CORE POLITICAL SPEECHA critical ingredient of the electorate's ability to vote effectively is choice among the candidates with demonstrated support. Lawrence v. Board of Elections and Ethics, 611 A.2d 529, 532 (D.C.App. 1992). No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. To the extent that a citizen's right to vote is debased, he is that much less a citizen. It is a fundamental political right because it is preservative of all rights. Kamins v. Board of Elections for the District of Columbia, 324 A.2d 187, 191 (D.C.App. 1974). But, the intentional use of invalid signatures on petitions may constitute a fraud on the entire democratic process and warrants the strongest possible condemnation. Board of Elections v. Democratic Central Committee, 300 A.2d 725, 727 (D.C.App. 1973). By injecting massive fraud into the process, the Proponents diminished a critical ingredient. They hampered the electorate's ability to determine effectively its choice on whether or not to sign a petition to bring video slots to the District of Columbia, and to show whether Initiative 68 had a demonstrated support in the community. And therein lies further support for the Board's decision to bar Initiative 68 from the November 2004 ballot. It turns on the unreliability of the circulators' affidavits. Thwarted at every turn by the Proponents's conduct, the Board turned to the evidence least likely to have been polluted by the Proponents. That evidence was the immunized testimony of D.C. residents who had been pulled into the Proponents' web of fraud and deceit. It is passing strange that the Proponents made no effort to refute the facts stated by those immunized witnesses. Rather, that testimony was met with deafening silence for the Proponents. [Exhibit 69, p.48]. Circulators were trained to talk quickly, just get the signatures, use short phrases to manipulate people into the position of signing. Do not get into other conversations. [TR. 7/22/04 p.69-70]. Keep the message short, get to the next person. "If they start asking a bunch of questions, just say, "I don't know," run to the next person. You're not trying to win an election. You're not trying to convert- people." Do not get into a detailed discussion about the issue- "that's not what we're there for." [TR. 7/28/04 pp.331, 335, 337]. "We're not here for the petition or against the petition. We are not promoting it." [TR. 7/26/04 p.26-27]. F. THE BOARD GAVE THE PROPONENTS THE BENEFIT OF THE DOUBT ON NUMEROUS CHALLENGED PETITION SHEETSAt every turn the Board sought to be expansive and gave every possible benefit of the doubt in favor of validating signatures, not disallowing signatures. The Board sought at every turn to avoid even the appearance of infringing on core political speech. For example, the circulator's affidavit is supposed to have the full name printed. The Board denied challenges based on that defect. The beginning and ending dates during which the petition sheet was circulated are mandated. The Board denied challenges based on that defect. The circulator's affidavit is required to be dated. The Board denied challenges based on that defect. A mark used as a signature requires an accompanying affidavit. The Board denied challenges based on that defect. [Exhibit 69, pp. 19-25]. G. THE BOARD GAVE THE PROPONENTS EXPANSIVE BREATHING SPACE FOR CORE POLITICAL SPEECH WITH THE BROCHUREThe Proponents created and distributed a brochure. [Exhibit 1]. That brochure represented that as a result of Initiative 68 there would be a 600-800 room hotel and spa, restaurants and retail shops, multiplex movie theater, bowling alley, banquet facility, dinner theater and entertainment center, food court, kids entertainment zone, and ample underground parking. [Exhibit 1]. The brochure represented that Initiative 68 would help create a charitable trust with an equity interest to fund a literacy program for DC public school children. [Exhibit 1]. Initiative 68 is solely about allowing certain persons a ten years monopoly for a 3500 slots emporium at New York, Montana and Bladensburg Road. Nothing more, nothing less. Those other representations are not a part of Initiative 68. Those representations are false. Notwithstanding, the Board denied the challenge based on that brochure. [Exhibit 69, pp. 44-45]. Having been the beneficiary of the Board's expansive reading of their right to communicate the foregoing, Proponents should not now be permitted to complain that their right to core political speech was impaired or restricted by the Board in any manner. H. THE PROPONENTS HAVE NOW CALLED ON THE BOARD TO INVESTIGATE THE CHALLENGERSRather than assist the Board by making the circulators available, the Proponents said: "when you look at all this, you get the impression that you're in the Soviet Union." [TR. 8/2/04, p. 258]. That charge is hurtful, it is wrong, but it is free speech. No Challenger suggested that there should be prior restraint on such intemperate attacks. Yet, what did the Proponents do? They urged the Board to unleash an investigation of the Challengers. [TR. 8/2/04, p. 258]. Without one scintilla of evidence, and without one citation to law, the Proponents asserted that the Challengers had interfered with the circulators' First Amendment rights by
The Proponents put on not one fragment of evidence to support the foregoing unsupportable assertion. Listen to the Drake audio tapes. [Exhibit 64]. They are the real time evidence of what was going on out there on the ground. They may even disclose evidence of the lengths to which the Proponents' Red Roof Inn contingent were willing to go to thwart the Challengers as they gathered evidence for their challenge. Talk of chilling the rights of free speech, of association and even of physical safety. It's okay for the Proponents, they say, for them to use false representations and false affidavits in their exercise of their First Amendment right to circulate petitions. Somehow, however, it is criminal for the Challengers to investigate, obtain evidence and inform the Board of the criminality of the Proponents. That encapsulates the essence of what has occurred. In addition to calling for an investigation of the Challengers, the Proponents, when they can no longer hide behind the Hyatt memo [Exhibit 16], urge the Board to prosecute, prosecute, prosecute the very vulnerable people the Proponents ensnared in their perjury trap. The Court can listen to the Drake audiotapes and readily expose the falsity of the assertions. [Exhibit 64]. What did the Proponents produce to show that they had clean hands? In fact, is it not likely that the Hyatt memo was generated and then placed strategically, in order to be fortuitously found by the Board? If so, it is reminiscent of another time and another era. It was not the Challengers who induced vulnerable unemployed homeless local people to commit fraud. Remember the witness who said, "I didn't get myself in this mess. Somebody else did." [TR. 7/26/04 p.428]. Or remember the person who said: "I don't want to go to jail." [TR. 7/23/04 p.121]. It was not the Challengers who said punish, punish, punish them to the fullest extent of the law - just let us have the tainted fruit (the signatures) from that poisoned tree. [TR. [TR. 8/2/04 pp. 253, 266-267]. It was not the Challengers who submitted more than 30000 names known at the time to be invalid. [Exhibit 1; TR. 7/26/04, p.63]. It was not the Challengers who brought in out-of-state professional circulators who gathered signatures and then sought to pass themselves off as assistants. [TR. 7/26/04, p. 49]. It was not the Challengers who said, in effect, do not engage in core political speech, just get the signatures, or run to the next person. [TR. 7/28/04, pp. 331-337, 345]. It was not the Challengers who-had been well paid, and then attacked Andre Jeffries, because he "did it for the money." [TR. 7/28/04, p. 81]. Investigate the Challengers? For what? It is as though, having been given every benefit of the doubt by the Board, the Proponents now wish to crush and silence the Challengers. Even the thought of such request for an investigation chills core political speech. Are Challengers now to slink away in fear? Of what are they guilty? Exercising their right to challenge a petition drive that turned the District's law on its head? [Exhibit 69, p.27]. How many other will now be willing to come forward in future fraudulent petition drives, given such an attack on the Challengers? I. THE CHALLENGER'S MOTION TO INVOKE THE MISSING WITNESS RULE AND THE MOTION TO STRIKE ALL PETITION SHEETS OF THOSE CIRCULATORS WHO COULD NOT BE SERVED REMAINED BEFORE THE BOARD AT THE CONCLUSION OF THE HEARINGWhere as here the Proponents had it peculiarly within their power to produce witnesses whose testimony would help elucidate what happened in the petition drive,- the fact that they did not do so creates the presumption that the testimony, if produced, would be unfavorable to the Proponents, then the rule should be invoked. 2 McCormick on Evidence, Fourth Edition (1992), Sec. 264; 2 Wigmore, Evidence (3rd Ed.), Sec. 285; Bufco Corp. v. National Labor Relations Board, 147 F.3rd, 964 (D.C. Cir 1998). In the case at bar at least 53 circulators, who acted on behalf of the Proponents, cannot now be found by the Board to be served with subpoenas. Absent those circulators, how can the Board now test the validity of the circulator affidavits, the validity of the signature gathering process, and the validity of the signatures themselves. Thus, since the Proponents chose not to make those witnesses available, the only reasonable alternative is to invoke the missing witness rule-and infer that the absent circulators' testimony would have been adverse to the Proponents. At that point, given the lack of rebuttal by the Proponents, the Board's only alternative was and remains to strike all petition sheets signed by those absent circulators. The most that the Proponents are willing to acknowledge is that, as in Watergate, "mistakes were made." [Exhibit 69, p.41). No taking of personal responsibility. But then the Proponents continue to urge criminal prosecution of their own people, only let the Proponents have the rewards of the circulators' Proponent-induced perjury. The process has now been so tainted and polluted with
criminal conduct, there can be no assurance that any of the petitions
sought to be reinstated by the Proponents have any authenticity or
validity. Proponents admit that wrongdoing occurred. However, Proponents
can tell the Court nothing whatsoever about the petitions sheets for the
53 missing who could not be served. Thus, Proponents cannot reasonably
tell this Court which among those petition sheets are valid and which
are false. Since the Proponents are unable to do so, how can this Court
possibly ratify this travesty? Where there is a wrong, there must be a remedy. It is a
settled and invariable principle, that every right, when withheld, must
have a remedy, and every injury its proper redress. Marbury v. Madison,
1 Cranch 137, 147 (1803). The very essence of civil liberty certainly
consists in the right of every individual to claim the protection of
the law, whenever he receives an injury. It is a general and
indisputable rule, that where there is a legal right, there is also a
legal remedy by suit or action at law, whenever that right is invaded. Id., at page 163, citing 3 Blackstone, pages 23, 109.
United States v. Lee, 106 U.S. 196, 220 (1882) When the Proponents received the original petition sheet from the Board, they assumed a responsibility. They were in possession of a document that by law must be completed in a certain manner. It included an affidavit form to be signed by the circulator. Having assumed that responsibility, Proponents were not at liberty to then subvert the law, as they did in this case. Thus, the appropriate remedy is to deny the Proponents the benefit of their wrongdoing. That remedy is rejection of the tainted petition sheets. J. PROPONENTS' CITED CASES DO NOT SUPPORT THE PROPONENTS' CONTENTIONSThe Proponents have cited a number of cases in an effort to support their unsupportable contentions. In large part those cases are either inapposite or inapplicable to the events as they happened on the ground in the case at bar. Public discussion is a political duty. It should be a fundamental principle of the American government. New York Times, Sullivan, 376 U.S. 254, 270 (1964). However, not all utterances are entitled to First Amendment protection. Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485, 504 (1984). There can be some regulation, so long as it is tailored narrowly in a manner that accomplishes legitimate objectives, and focuses on abuses and deals evenhandedly. Police Department of the City of Chicaqo v. Mosley, 408 U.S. 92, 101-102 (1972). For example, a regulation of expressive activity is deemed content neutral so long as it is justified without reference to the content of the regulated speech. Bartnicki v. Vopper, 121 S.Ct. 1753, 1760 (2001). When it comes to initiatives, states have considerable leeway to protect the integrity and reliability of the initiative process, in the same manner as they have with respect to election processes generally. Buckley v. American Constitutional Law Foundation, Inc., supra, at 191. Preserving the integrity of the electoral process, preventing corruption, and sustaining the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government are interests of the highest importance. Preservation of the individual citizen's confidence in government is equally important. First National Bank of Boston v. Bellotti, 435 U.S. 765, 788-789 (1978). The state has every right to uphold the integrity of the electoral process itself. Brown v. Hartlage, 456 U.S. 45, 52 (1982). There must be a substantial regulation of elections if there are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process. Chandler v. City of Arvada, Colorado, supra, at 1241-1242. In fact, a significant interference with protected rights of political association may be sustained if the state demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Buckley v. Valeo, 424 U.S. 1, 25 (1976). Circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. Although a petition circulator may not have to persuade potential signatories that a particular proposal should prevail to capture their signatures, he or she will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole electorate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Meyer v. Grant, 486 U.S. 414, 421 (1988). In the case at bar, the circulators and their trainer Ross Williams made clear to that the circulators were not to engage in core political speech. Rather, it was get the signature and move on. If a potential signer does not show immediate interest. Do not engage a potential signer in conversation. Move on. [TR. 7/28/04, pp.331, 334, 337, 345]. And now Proponents insist that the Board infringed on their right to core political dialogue, when that was the last thing they wanted. The Proponents assert that the false representations made by Ross Williams in the training sessions, and the false statements contained on the tee shirt were protected speech. That is not true. There is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in uninhibited robust, and wide-open debate on public issues. They belong to that category of utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, (1974). Cases in several jurisdictions support the proposition that fraud by the circulator voids the petitions associated with the fraud. Those states include New, York, New Jersey, Illinois, Ohio, and Pennsylvania. Statutory circulation procedures are designed to reduce the number of erroneous signatures, guard against misrepresentations, and confirm that signatures were obtained according to law. Brousseau v. Fitzgerald, 675 P.2d 713, 715-716 (Ariz. 1984). 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. Citizens Against Leqalized Gamblinq, supra, at 789790 K. THE ANTHONY WILLIAMS CASEThe controlling law in this jurisdiction is Williams v. District of Columbia Board of Elections and Ethics, supra. In that case this Court found that it must accept the Board's findings of fact so long as they are supported by substantial evidence on the record as a whole. Further, as to the Board's legal conclusions, the Court must defer to its interpretation of the statute which it administers - so long as that interpretation is not plainly wrong or inconsistent with the legislative purpose. In the circumstances of Williams, as here, where the Board found, with the support of substantial evidence in the record, that the integrity of the electoral process has been seriously compromised by the actions of circulators, it is within the Board's authority to disallow all of the signatures affected by the wrongdoing. Further, an inference properly drawn from fabrication of evidence does not necessarily apply to any specific fact in the cause, but operates indefinitely, though strongly, against the whole mass of alleged facts constituting a party's cause. Finally, the fact that a circulator's wrongdoing can be dealt with through criminal penalties need not be considered by the Board in deciding whether to accept individual signatures. Evidence of fraud by circulators relates directly to the Board's duty to resolve challenges. L. STATUTES ARE CONSTRUED TO EFFECT THEIR PLAIN MEANINGTo determine the meaning of a statute the court looks
first to the language of that statute. If the language makes the meaning
plain, and it admits of no more than one meaning, and it is
constitutional, then the court must enforce the statute according to its
terms. Under those circumstances the court has no duty of
interpretation, and the rules which are to aid doubtful meanings need no
discussion. Caminetti v. United States, 37 S.Ct. 192, 194 (1917). Only where the words of a statute are doubtful or obscure is the intention of the legislature to be resorted to find the meaning of the words. United States v. Freeman, 44 (3 How) U.S. 556, 564-565 (1845). But, a law is the best expositor of itself. Id. If the statute is clear and unambiguous on its face, the motivation of the legislature that enacted it, or of individual legislators, is of no concern to a court that is called upon to enforce it. Burgess v. U.S., 681 A.2d 1090, 1095 (D.C.App. 1996). So has spoken the courts in this jurisdiction. In the context of the controlling case law in this jurisdiction, the language of D.C. Code, Sec. 1-1001.16, makes the meaning plain. It admits of no more than one meaning. It is constitutional. Accordingly, the BOEE must enforce the statute according to its terms. The BOEE has no duty of interpretation. The term "circulator", contained in D.C. Code, Sec. 11001.16, must be construed according to its ordinary sense and with the meaning commonly attributed to it. Since its meaning is plain on its face, the BOEE must look no further, The BOEE's sole function is to enforce the statute according to its terms. The term "circulator" is plain. It admits of no more than one meaning. It permits of no interpretation. It is not doubtful. It is not obscure. It is clear. It is unambiguous on its face. The term "witness" is no-where to be found in the statute. The term "witness" is no-where to be found in the regulations. It is a fictional term. It was created by the Proponents. It was then ascribed a fanciful meaning like Alice in Wonderland. In the context of this case it has no meaning. It has no existence. It is a fantasy that springs from a illegitimate wish that cannot be granted. And we all were nearly subsumed by that non-existent term. M. PROPONENTS IN THEIR OWN WORDS AND CIRCUMSTANCES AND OF THOSE REPRESENTING PROPONENTS IN THE FIELD GATHERING SIGNATURESThe testimony of the witnesses at the Board hearing places in sharp relief the contempt for the electoral process shown by the Proponents, and the angst they caused to the vulnerable D.C. people that they used for their own advantage. Ross Williams just kind of chuckled and when he spoke about the possibility of jail. [TR. 7/22/04 p.67]. When asked what agriculture had to do with Initiative 68, Ross Williams just kind of chuckled and said, "agriculture can be anything, you know, food." [TR. 7/22/04 p.115]. One person was pulled from an unemployment line with the. enticement that she could make $5000.00 in one week. [TR. 7/22/04 p.1371. One person taken advantage of by the Proponents was on oxycontin, oxycardone, neuronton, percoset, aquifin, fosomex, ambien, and neurotripoline. [TR. 7/22/04 p.345]. Another pleaded to the Board: "I don't want to go to jail." [TR. 7/23/04 p.1211. Even though one manager had a 21% validity rate, 100% of the petition sheets were turned in to the Board. The Proponents' validation procedure was for purposes of payment to the circulators, not for purposes of determining what would be turned into the Board. [TR. 7/23/04 p.403-404]. When the Proponents sent the petitions to the Board, they did not separate out the signatures that were deemed not to be valid. They just sent all of the signatures, no matter whether they had been determined to be valid or invalid [TR. 7/23/04 p.427].
The Proponents acknowledged that they could have done a very, very much better job. Further, they admitted that mistakes were made. [TR. 7/26/04 p.57]. However, so far as the Proponents were concerned, the circulator's affidavit on the petition sheet was just a legal technicality. [TR. 7/26/04 p.70]. In that context, Proponents persuaded a person to sign the petitions of another, but told her to not mention it. [TR. 7/26/04 p.208]. The out-of-town circulators had a quota of 50 signatures per day. [TR. 7/27/04 p 148]. That led to the following exchange:
N. THE PROPONENTS' DEMAND TO REINSTATE PETITION SHEETS FOR STARS AND STRIPES CIRCULATORS, INCLUDING THOSE WHO COULD NOT BE SERVED, IS WITHOUT MERITThe Proponents have proposed to this Court that the petition sheets generated by 57 Stars and Stripes circulators simply be reinstated, with what the Proponents identify as 4415 signatures The Proponents also demand that the Court order that the Initiative 68 be placed on the November 2004 ballot. [Pet.Br, at page 50]. Nothing could do more to undermined the Board's continuing efforts to protect the electoral process.1 First of all, because the number of valid signatures did not reach the required threshold, the statutorily required random sample could not proceed. Now the Proponents insist on ignoring and by-passing the random sample test and simply place Initiative 68 on the ballot. By so doing, the Proponents have avoided the very random sample test that they most likely could not pass. Second, the Board issued subpoenas and requests for appearances to a total of 130 individuals. The Board heard from 38 witnesses. [Exhibit 69, pp. 8-9]. The Board was unable to serve 53 of those persons. (Exhibit 43]. Included in that list of 53 were the 17 Stars and Stripes circulators.The Proponents cannot reasonably suggest that they should have the benefit of the signatures from the foregoing petition sheets, when the Board cannot serve and the Board and Challengers cannot examine the circulators. VII. CONCLUSIONFor all the foregoing reasons, intervener urges the Court to uphold the order of the District of Columbia Board of Elections and Ethics, and deny ballot access to Initiative 68. In the alternative, if the Court finds the Board's actions defective in any manner, then the .Court should remand the matter for further consideration of the petition sheets produced by the 53 missing witnesses, and for completion of the required statistical analysis, if warranted. Respectfully submitted; CERTIFICATE OF SERVICEI hereby certify that I caused to be served by fax and by U.S. Mail, First Class, postage prepaid, a copy of the foregoing Brief for Intervener Ronald L. Drake, Esquire, on all other parties and/or their counsel, by hand, this August 27, 2004, addressed as follows: Mr. John L. Ray, Esquire Mr. George W. Jones, Jr., Esquire Mr. Erik S. Jaffe, Esquire Mr. Kenneth McGhie, Esquire Ms. Dorothy A. Brizill Rev. Dean L. Snyder Ronald L. D rake 1. The following is a list of those 57 unserved circulators, along with the Board's stated reason for non-service, along with a listing of the-page numbers of each circulator's petitions sheets: Vanessa Afolayan Cynthia Allen Douglas Avery Jade Beckett Paul D. Belt Patrisha Boggs Michael Brown Oscar Brown Renee Brown Teresa Buchanan Penta Burgess, Jr. Lionell Butler Doris Jean Clark Alan Clipper Robert Contee Alvina Edwards Angelo Farrell Larry Fisher Desi Gatling Thomas Green Cassandra Harris Darrell Hartley James Hawkins Tyrone Hodges Robert Howard Steven Howell Angela Jackson Jessie Ryan Jones Jumhariyah Latanrang Michele Lee Shamika Mack Gregory Marsh Charles Massenberg Rommell McBride Arlene Ng No apartment number 1283 1493 2033 2765 3057 Gilbert Petty Dave Rowel Nicole Scott Gregory Sims Delores Smith Scott Smith Edward Swails No apartment number 747 1391 1606 1696 1697 1742 1743 1749 1974 2025 2087 2088 2199 2203 2204 2227 2310 2337 2338- 2363 2396 2630 2631 2781 2783 2830 2973 3020 3085 3086 3206 3226 3286 3315 James Taylor Antoine Walker Tracy Washington Anthony Wiggins Hewitt Williams Hope Williams Montrell Williams Shelter [Exhibit 43; TR. 8/2/04 pp. 113-132) |
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