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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 the District of Columbia Board of Elections and Ethics Motion in Opposition to the Motion to Intervene of Ester Baxley, et al. by DCWatch and DC Against SlotsDorothy Brizill, pro se Carol Colbeth (D.C. Bar No. 439198) LIST OF PARTIES1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by: George W. Jones, Jr. Erik S. Jaffe John Ray 2. Respondent District of Columbia Board of Elections and Ethics, represented by: Kenneth J. McGhie, General Counsel 3. Intervenor Ronald L. Drake, Pro Se 4. Intervenor DCWatch, Pro Se 5. Intervenor DC Against Slots Carol Colbeth (Bar No. 439198) 6. Proposed Intervenor Ester Baxley, et al. 7. Proposed amicus curiae Intervenors DCWatch and DC Against Slots oppose the motion to intervene by Ester Baxley, et al., on four grounds. First, although attorneys for the proposed intervenors were fully aware of the issue and were on notice of the case, they chose to intervene at the last minute and then failed to serve opposing parties properly and in a timely manner. Second, we object to the unrepresentativeness of the class of individuals the motion purports to represent. Third, we object to the attempt by the proposed intervenor to introduce new evidence into the record. Fourth, we object to the form of the declarations attached to the motion to intervene. Failure to serve parties properly and in a timely mannerThe rules of intervention of the DC Court of Appeals state that, "A copy of the motion must be served on all parties" (Rule 15(b)). The certificate of service filed with the Motion to Intervene of Ester Baxley, et al., states that a copy of the motion and its accompanying brief were hand-delivered to the parties on Thursday, August 26, 2004, the date that the motion and brief were filed with the Court. In actuality, service on the parties was accomplished by first-class mail. DCWatch and DC Against Slots received their copies of the motion and brief by mail on Saturday, August 28, 2004. The District of Columbia Board of Elections and Ethics did not receive its copy of the motion and brief by mail until Monday, August 30, 2004. This occurrence is especially troubling, since parties have subsequently learned that the attorney for the intervenors issued a press release on Thursday, August 26, and had copies of that press release and its motion and brief hand delivered to at least some media outlets on that day. In its order dated August 17, 2004, the Court set an expedited briefing schedule and directed all parties to hand serve copies of all pleadings on each other. Moreover, in the August 17, 2004, order, the DC Board of Elections and Ethics and intervenors DCWatch, DC Against Slots, and attorney Ronald Drake were directed to file their briefs no later than August 27, 2004. It should also be noted that attorneys for the proposed intervenors did not, as a courtesy, inform DCWatch, DC Against Slots, attorney Drake, or the DC Board of Elections and Ethics of their intention to intervene prior to their filing their motion and brief. The proposed intervenor's failure to serve opposing parties in a timely manner prevented us from being able to address the issues they raised. It is reasonable to conclude that the attorney for the proposed intervenors deliberately chose not to serve the opposing parties prior to August 27, 2004, so that we would not be aware of the proposed intervention and would not be able to address any of the issues raised in the proposed brief of the intervenors in our briefs that were due on August 27, 2004. Opposition to class of individualsThe motion to intervene by Ester Baxley, et al., is filed on behalf of two petition circulators, Bobbie Diggs and Charles Thornton, as well as of sixteen individuals who signed petition sheets for Initiative 68. The motion and the brief present no reason to believe that the two named individuals who circulated petitions while in the employ of Stars and Stripes are representative of the sixty-seven DC resident circulators who circulated petitions on behalf of Stars and Stripes, and whose petitions were stricken by the DC Board of Elections and Ethics. In addition, the motion and the brief present no reason to believe that the sixteen individuals who signed petitions circulated by Stars and Stripes were representative of the DC registered voters who signed those petitions. Indeed, out of the thousands of registered voters who signed petitions circulated by Stars and Stripes, the attorneys have been able to locate only sixteen registered voters who signed those petitions who believe that the petition was fairly and accurately presented to them, and who believe that they are being disenfranchised because petitions attributed to Stars and Stripes were stricken because of widespread and pervasive false circulator affidavits, fraud, forgery, and misrepresentation. That in itself is evidence that the class is not representative. Opposition to the Introduction of New EvidenceThe motion to intervene and the accompanying brief attempt to introduce new evidence and testimony through declarations into the record. With the exception of Bobbie Diggs, none of the proposed intervenors testified or requested to testify at the Board of Elections and Ethics hearing. None was called as a witness by the Citizens Committee for Video Lottery Terminals. The proposed intervenors are attempting to retry the case on the basis of declarations; the parties will have no opportunity to cross examine the individuals who make these declarations or to introduce new evidence themselves to refute them. Opposition to the DeclarationsThe declarations attached to the motion to intervene are deficient, in that they are neither sworn affidavits nor are they notarized. DCWatch and DC Against Slots will not at this time make a substantive reply to the brief of the proposed intervenors; however, should the Court grant the proposed intervenor's motion to intervene or allow them to file an amicus curiae brief, we request that the Court grant us adequate time to reply. Respectfully submitted, Carol Colbeth (Bar No. 439198) CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Motion in Opposition to the Motion to Intervene of Ester Baxley, et al., by DCWatch and DC Against Slots was hereby delivered by facsimile or by E-mail (by permission of the receivers) this 31st day of August 2004 upon the following: George W. Jones, Jr. Erik S. Jaffe John Ray Kenneth J. McGhie, General Counsel Ronald L. Drake, Pro Se Jeffrey D. Robinson, Esq. (D.C. Bar No. 376037) Arthur B. Spitzer Dorothy A. Brizill |
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