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Before the District of Columbia Board of Elections and Ethics
In re: December 28, 2004 Submission of Supplemental Petition Sheets In Support of The Video Lottery ) Terminal Initiative of 2004 RESPONDENTS: The Citizens Committee for the D.C. Video Lottery Terminal Initiative, Pedro Alfonso; Vickey Wilcher; Margaret Gentry; and Johnny Clinton Hyatt BOEE No. 05-01 WRITTEN STATEMENT OF THE CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE AND JOHNNY CLINTON HYATT IN RESPONSE TO THE ORDER TO SHOW CAUSEPursuant to the January 6, 2005 Order to Show Cause ("Order to Show Cause") of the Board of Elections and Ethics (the "Board"), the revised schedule prescribed by the Board and described in a January 12, 2005 letter from the Board's General Counsel to counsel for respondents, and the Board's January 26, 2005 Supplement to the Order to Show Cause ("Supplemental Order"), the Citizens Committee for the D.C. Video Lottery Terminal Initiative (the "Committee") and Johnny Clinton Hyatt, Committee Treasurer, by undersigned counsel, submit this written statement. STATEMENTInitiative 68. On April 22, 2004, Pedro Alfonso, Vickey M. Wilcher, and Margaret Gentry, the original proponents of what became Initiative 68 submitted a proposed initiative measure to the Board entitled "Jobs, Education, and Health Care Expansion Initiative of 2004." The proposed initiative sought to authorize the operation of "Video Lottery Terminals" or "VLTs" in the District of Columbia. Supporters of the initiative hope to build an entertainment complex that would include a hotel, banquet facility, underground parking, retail shops, restaurants, multiplex movie theater, bowling alley, special events showroom and a video lottery terminal area in Northeast Washington D.C. On May 28, 2004, the proponents submitted a revised version of the proposed initiative to the Board: "District of Columbia Video Lottery Terminal Initiative of 2004" ("Initiative 68"). Upon determining that the proposal was a "proper subject of initiative," D.C. Code § 1-1001.16(b)(1), the Board adopted the short title, summary statement and legislative form, all of which were published in the June 11, 2004 D.C. Register (Vol. 51, No. 24).1 On July 1, 2004, the Board approved and issued the official petition for Initiative 68 entitled "Video Lottery Terminal Initiative of 2004." See D.C. Code § 1-1001.16(g). The official summary statement described Initiative 68 as follows:
To qualify for the November 2004 ballot, the proponents had five days to collect the required 17,599 valid signatures by July 6, 2004. On July 6, 2004, the original proponents submitted to the Board approximately 56,000 signatures supporting the inclusion of Initiative 68 on the November 2004 ballot. After extended proceedings before the Board, some of the signatures initially submitted were withdrawn by the proponents and others were rejected by the Board on a variety of grounds. In the end, 14,687 potentially valid signatures remained - about 3000 signatures short of the statutory minimum. See Memorandum to the Board of Elections and Ethics from Alice P. Miller, Executive Director (Aug. 5, 2004). On August 13, 2004, the Board published its written decision rejecting Initiative 68 for inclusion on the November 2004 ballot. On appeal to the District of Columbia Court of Appeals, after briefing and oral argument, the court remanded the case to the Board for further explication of the basis of the Board's decision, but retained jurisdiction for further action by the court. Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, No. 04-AA-957, Order (Sept. 13, 2004). In due course, the Board submitted a Clarification Memorandum Opinion to the court of appeals. Drake,, et al., v. Citizens Committee for the D.C. Video Lottery Terminal Initiative of 2004, Administrative Hearing No. 04-020 re: Challenge to Initiative Measure No. 68, Clarification Memorandum Opinion (Sept. 20, 2004). Largely on the basis of the clarification memorandum opinion, the court of appeals affirmed the decision of the Board on September 28, 2004. Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, No. 04-AA-957 (DCCA Sept. 28, 2004). Supplemental Submission. The entire process, including collection and submission of the signatures, review by the Board, and review by the court of appeals, consumed a little less than three months. Thus, on September 28, 2004, when the court of appeals affirmed the decision of the Board rejecting Initiative 68 for inclusion on the November 2004 ballot, the 180 day statutory period for collection and submission of the required number of signatures had not expired. A few days before Christmas, 2004, Pedro Alfonso, Robert Newell, and Shawn Scott discussed collecting and submitting enough additional signatures in support of Initiative 68 to qualify for the ballot at the next election. Mr. Alfonso said it was essential to avoid any of the errors the Board found had marred the July, 2004 circulation effort. Mr. Newell and Mr. Scott agreed wholeheartedly. Mr. Alfonso also expressed concern that the Board might conclude the proponents of Initiative 68 would have to start the initiative process from the beginning because-they-had filed the initial petition in July, 2004. Based on the plain language of the initiative statute, which gave the proponents a full 180 days to collect the required signatures, Mr. Scott hoped to persuade the Board that its regulations should not be interpreted to shorten the statutory period and therefore thought it might be worthwhile to collect as many additional signatures as possible for submission to the Board before December 28, 2004. To preserve the point, however, it was essential to submit any additional signatures by December 28, 2004. On December 21, 2004, Mr. Alfonso spoke with Larry Ward and Michael Sanders of Interactive Political Media ("IPM") about the feasibility of collecting 6000 additional signatures over the Christmas holidays and whether IPM would be interested in undertaking the effort. Mr. Alfonso, Mr. Ward, and Mr. Sanders talked about the best locations for collecting the signatures over the Christmas holidays, including, for example, shopping malls that would be open late in the days leading up to Christmas and where circulators might expect to find large numbers of potential signatories. The following day, Mr. Alfonso telecopied to IPM a list of District residents who had been involved in the July circulation effort and whom IPM might want to consider recruiting for the supplemental circulation effort. Although the task was daunting, Mr. Ward was prepared to try. Over the next two days Mr. Ward and Mr. Newell negotiated the terms and conditions under which IPM would undertake the assignment. The negotiations concluded. on the morning of December 23, 2004. Between December 23 and December 28, IPM recruited approximately five dozen District residents to collect signatures. While the additional signatures were being collected, on December 27, 2004, Mr. Alfonso and Mr. Newell discussed an orderly transition in the composition of the Committee after the submission of any additional signatures collected, which Mr. Alfonso said Ms. Wilcher could make on December 28, 2004. Mr. Newell assumed Ms. Wilcher would make the filing on the 28th. Radio spot. Atlantic Northstar LLC, which financed the entire December 2004 signature gathering effort, purchased a 30-second radio spot to solicit additional District residents who might be interested in helping to collect signatures in the last two days of the campaign. See CL 1331, 1386. The radio spot ran on December 27 and 28, and directed District residents who were interested in helping to call a toll free 800 number.2 The radio spot incorrectly stated that it had been paid for by the Committee and Mr. Hyatt was the treasurer of the Committee. In fact, the radio spot was paid for directly by Atlantic Northstar, not the Committee. Mr. Hyatt did not become the treasurer until December 28, when Ms. Wilcher resigned, so he was not the treasurer on December 27, 2004, the first day the radio spot first aired. Gentry Resignation. Ms. Gentry, Ms. Wilcher, and Mr. Alfonso heard the radio spot on the evening of December 27, 2004. CC1361. In a letter to the Office of Campaign Finance ("OCF"), Ms. Gentry described hearing the radio spot as follows (id.):
The same evening she heard the radio spot, Ms. Gentry wrote to Mr. Alfonso and Ms. Wilcher formally advising them of her resignation as custodian of the books and records of the Committee, effective at "close of business" on December 27, 2004, and,. she added, "[t]o whatever extent I have been considered to be an Initiative 'proponent', I am withdrawing from that capacity as well." CC1363; see CC1362, 1370. For the record, in her letter to Mr. Alfonso and Ms. Wilcher, Ms. Gentry wrote: "I ... want it to be clear on the public record that, by my withdrawal effective today, I have no role in nor responsibility for any actions - specifically including but not limited to the receipt or expenditure of funds, whether actual or in-kind, and the maintenance of records thereof - that may be undertaken by the Committee or by anyone purporting to act for the Committee on. and after December 28, 2004." Wilcher Resignation. The next day, December 28, 2004, the last day for submission of the additional signatures within the 180-day statutory period, Ms. Wilcher also resigned. In a- letter to Mr. Alfonso, Ms. Wilcher formally advised him that she was resigning as treasurer of the Committee, effective immediately. CC1367.3 Like Ms. Gentry, for the record, Ms. Wilcher disclaimed any role in the December, 2004 signature gathering effort and wrote in her letter to Mr. Alfonso: "by my withdrawal I have no role in nor responsibility for any actions - specifically including but not limited to the receipt or expenditure of funds, whether actual or in-kind, and the maintenance of records thereof - that may be undertaken by the Committee or by anyone purporting to act for the Committee on and after December 28, 2004." CC 1367.4 The Supplemental Submission. Thus, on December 28, 2004, the last possible day for submission of the additional signatures, both Ms. Gentry and Ms. Wilcher had resigned from the Committee and terminated their involvement with Initiative 68. Mr. Alfonso was out of town and would not return until January 3, 2005. See CC1364. To preserve the opportunity to present the additional signatures to the Board within the 180 day statutory period, Mr. Hyatt requested the Board to recognize him as an additional proponent of Initiative 68. In support of his request. to be designated an additional proponent of Initiative 68, Mr. Hyatt submitted an affidavit stating that he was 18 years of age, a resident of the District of Columbia, and a registered qualified elector of the District of Columbia. Mr. -Hyatt also stated his willingness to be bound by and comply with all applicable statutory and regulatory duties imposed on proponents of an initiative. Simultaneous. with his request to be recognized as an additional proponent of Initiative 68, Mr. Hyatt submitted approximately 6000 additional signatures collected in support of the inclusion of Initiative 68 on the next election ballot for consideration by the voters of the District of Columbia. Mr. Hyatt's transmittal letter noted that (1) the District of Columbia initiative statute gave proponents of an initiative 180 days to collect the required signatures, (2) of the signatures submitted by the original proponents in July, 2004, approximately 14,687 had not been rejected by the Board previously, and (3) he was submitting approximately 6000 additional signatures, which, if considered by the Board along with the 14,687 previously submitted, would be sufficient to satisfy the numerical requirements for inclusion of Initiative 68 on the ballot. Mr. Hyatt concluded by requesting the Board to "undertake the computation and validation process" and, if there were sufficient valid signatures, to certify Initiative 68 for inclusion on the next ballot. Alfonso Resignation. The day after the submission of the additional signatures, Mr. Alfonso resigned as chairman of the Committee, effective December 29, 2004. See CC1364-66.5 Since he knew Ms. Wilcher and Ms. Gentry already had resigned, Mr. Alfonso addressed his letter of resignation to the "Committee" (at 18 Quincy Place, N.W. Washington, D.C. 20001, i.e., Ms. Wilcher's address), "as a general notice to the Committee." Like Ms. Gentry and Ms. Wilcher, for the record, Mr. Alfonso disclaimed all responsibility for the December 2004 circulation effort and submission (CC1364): "I also want it to be clear on the public record that I did not authorize or approve the petition-circulation effort and related broadcast advertising which was carried out by persons purporting to act for the Committee during a period beginning on or about December 24. I did not authorize or approve any receipt or expenditure of funds related to such efforts."6 The Withdrawal. On January 6, 2005, the Board responded to the supplemental submission by issuing an Order to Show Cause why the Committee, Mr. Hyatt, Mr. Alfonso, Ms. Gentry, and Ms. Wilcher should not be sanctioned pursuant to D.C. Code § 1-1103(b)(1). Once Mr. Hyatt received the Show Cause Order, he concluded that further attempts to persuade the Board that the additional signatures should be considered were not likely to be well received. Accordingly, by letter dated January 19, 2005, counsel for Mr. Hyatt withdrew the additional signatures and Mr. Hyatt's request to the Board to consider the additional .signatures with the 14,687 signatures that had not been rejected previously to determine whether there was sufficient support for inclusion of Initiative 68 on the next ballot. DISCUSSIONTHE DECEMBER, 2004 COLLECTION AND SUBMISSION OF ADDITIONAL SIGNATURES IN SUPPORT OF INITIATIVE 68 VIOLATED NO STATUTORY OR REGULATORY PROVISION THAT WOULD WARRANT ANY PENALTY.To preserve the opportunity to ask the Board to consider accepting additional signatures as a reasonable and efficient way to qualify Initiative 68 for the next ballot, consistent with the initiative statute and involving the least amount of duplication of effort and unnecessary expense for both the Board and the supporters of Initiative 68, it was essential to submit the additional signatures to the Board by December 28, 2004, before the statutory 180 day period expired. Collecting and submitting additional signatures in support of Initiative 68 after the court of appeals decision affirming the Board's initial rejection of Initiative 68 violated no statutory or regulatory provision that would warrant assessment of civil penalties or any criminal referral under the circumstances of this case. Accordingly, the Committee and Mr. Hyatt urge the Board to dismiss the Order to Show Cause without further action. A. Collection and Submission of Signatures in Support of Initiative 68 After the Initial Submission Violated No Provision of the Initiative Statute or the Board's Implementing Regulations. Under DC-Code § 1-1103.05(b)(1), "[a]ny person who violates ... [Chapter 10 or 11 of Title-1 of the DC Code] may be assessed a civil penalty by the ... [Board] of not more than $200, or three times the amount of an unlawful contribution, expenditure ... whichever is greater, for each such violation."7 No civil or criminal penalties are warranted on the facts presented. Under the initiative statute, a proposer of Initiative 68 had 180 days from July 1, 2004, when the Board approved the Initiative 68 petition form, to submit sufficient signatures to qualify Initiative 68 for. inclusion on the ballot: "A proposer of an initiative measure shall have 180 calendar days, beginning on the 1st calendar day immediately following the date upon which the Board certifies ... that the petition form of such initiative measure is in its final form to secure the proper number of valid signatures needed on the initiative petition to qualify such a measure for the ballot ... and to file such petition with the Board." DC Code § 1-1001.16(j)(1) (emphasis added). December 28, 2004 is 180 calendar days from July 1, 2004. Nothing in the text of the District of Columbia initiative statute prohibits either the collection or the submission to the Board of signatures in support of an initiative after an initial submission and within 180 days following the Board's approval of the initiative petition form. Nor do the Board regulations cited in the Order to Show Cause prohibit collection or submission of additional signatures after an initial submission. To be sure, the regulations might be interpreted to permit the Board to reject signatures submitted after an initial submission even if the signatures were collected and submitted within the statutory 180 day period. For example, the Board's regulations state that "[t]he proposer(s) of an initiative ... measure which failed to qualify for the ballot due to the numerical insufficiency of the petition must commence the ... process anew." 3 DCMR §1012.3.8 If the Board determined that a proponent's election to submit signatures before the expiration of the 180 day period effectively terminated the statutory period, then the regulations might support the Board's rejection of any supplemental submission of additional signatures as untimely after an initial submission "failed to qualify" due to "numerical insufficiency." Nonetheless, the initiative statute clearly gives the proponent 180 days to collect the requisite number of signatures, and, by its terms, § 1012.3 prohibits neither collection of signatures after an initial submission nor submission of those additional signatures to the Board. As drafted, the regulation raises the question whether, consistent with the statutory language, an initiative can be said to have "failed to qualify for the ballot due to the numerical insufficiency of the petition" at any time before the expiration of the statutory 180 day period. Since the Board has no authority to amend election statutes through implementing regulations, see, e.g., Best v. District of Columbia Board of Elections and Ethics, 2004 D.C. App. LEXIS 297 (DCCA June 4, 2004); Harvey v. District of Columbia Board of Elections and Ethics, 581 A.2d 757 (DCCA 1991), the Board might reasonably interpret its regulations to permit the submission of additional signatures at any time during the 180 day statutory period. Indeed, given the extraordinary time and expense for everyone involved in the collection and evaluation of signatures submitted in support of an initiative, it certainly would not be unreasonable for the Board to consider ways to streamline the process, consistent with the initiative statute. Moreover, since the initiative process involves political activity at the core of the protection afforded by the First Amendment to the United States Constitution, see, e.g., Meyer v. Grant, 486 U.S. 414, 421-22 (1988), the Board should be especially cognizant of and sensitive to avoiding any unnecessary obstacles to qualifying an initiative for inclusion on the ballot. As a practical matter, however, the Board's Order to Show Cause in response to the supplemental submission suggested that the Board might not find any of these considerations compelling. B. A Request to be Designated an Additional Proposer of an Initiative After Initial Submission Violates no Provision of the Initiative Statute or the Board's Regulations. Nothing in the initiative statute precludes the Board from considering additional or substitute proposers for an initiative at any time or for any reason the Board deems sufficient. See generally Stevenson v. District of Columbia Board of Elections & Ethics, 683 A.2d 1371, 1376-78 (DCCA 1996) (rejecting the argument that the Board could not add or substitute proponents for an initiative where the original proponent moved out of the District before the conclusion of the Board's consideration of the initiative). A Board regulation on substituting or adding proposers provides that "[i]n the event that any proposer of an initiative ... becomes unable or unwilling to act prior to submission of the petition for filing, the Board may, based on the evidence presented and for good cause shown consider another register[ed] qualified elector as a substitute or additional proposer for the measure." 3 DCMR § 1015.1. The regulation addresses one circumstance that might be presented and authorizes the Board to add or substitute a proposer for good cause prior to the submission of a petition. By its terms, however, the regulation does not prohibit any registered District voter from seeking to become an additional proposer for an initiative at any time or for any reason. Nor does the regulation purport to limit the Board's discretion to consider adding additional proposers at any time and for any reason the Board deems appropriate, which the court of appeals expressly recognized in Stevenson. Any registered voter of the District of Columbia can become a proponent of an initiative by simply filing an initiative proposal and demonstrating his or her qualifications. If a particular petition form recently has been approved by the Board, the Board is not likely to reject an identical petition form submitted by another qualified registered voter. If the subsequent proponent is willing to support a pending initiative and the time for circulation of the first initiative has not expired, it would not. be unreasonable for the Board to permit the second proponent to join the first effort, rather than having each putative proponent subsequent to the first file a separate, identical petition. In other words, rather than having multiple identical petitions presented to the Board for processing one after another, the Board might reasonably conclude that it would be preferable for all supporters of an initiative to join in supporting a single proposal, within the 180 calendar days following its approval of the first petition form. The original proponents of Initiative 68 became proponents by declaring their support for what became Initiative 68 and demonstrating that they were qualified electors. Mr. Hyatt submitted for the Board's consideration his request to become an additional proposer on the same basis as the original proponents. Simultaneous with his submission of the additional signatures collected in December, Mr. Hyatt sought to become an additional or substitute proponent of Initiative 68 by declaring his desire to become a proponent and noting his qualifications to serve. Nothing in the initiative statute or the Board's regulations prohibited Mr. Hyatt from asking the Board to recognize him as an additional proponent of Initiative 68 for the purpose of submitting the additional signatures.9 The actions taken in support of Initiative 68 in December, 2004 were fully transparent. If, as Mr. Hyatt suggested in his transmittal letter, the Board agreed that proponents of Initiative 68 had a full 180 calendar days to submit the required number of signatures, notwithstanding the July 6, 2004 submission, the Board could have considered all signatures and determined whether the numerical requirements of the statute had been satisfied. On the other hand, if the Board concluded (1) no additional signatures in support of Initiative 68 could be submitted after July 6, 2004, (2) only a proponent could submit additional signatures and either (a) no one could become a proponent of Initiative 68 after July 6, 2004, or (b) no one could become a proponent until after the Board had acted on a request to be recognized as an additional proponent, or (3) none of the signatures submitted by the original proponents on July 6, 2004 could be considered with the additional signatures submitted in December, then fully apprised of the facts the Board could reject the supplemental submission on the merits as insufficient to satisfy the statutory requirements for inclusion of Initiative 68 on the ballot. Even if the Board concluded that the additional signatures should not be considered for one or more of the reasons noted above or for some other reason, neither the Committee nor Mr. Hyatt violated, any statutory or regulatory provision that would warrant assessment of any penalty. Nothing in the statute or the Board's implementing regulations clearly prohibits anything that was done in connection with the December submission to the Board. The Committee and Mr. Hyatt proceeded in the good faith belief that Initiative 68 was viable until the statutory 180 day period had expired on December 28, 2004 and that it would be reasonable for the Board to consider the additional signatures submitted within the 180 day period. C. The Committee and Mr. Hyatt Did Not Violate the Campaign Finance Statute or Implementing Requlations. Neither the Committee nor Mr. Hyatt violated any campaign finance statutory or regulatory requirements that would warrant assessment of civil penalties or criminal referral. In accordance with applicable regulations, Mr. Hyatt filed with OCF notice of his acceptance of the office and responsibilities of the office of Treasurer of the Committee effective December 28, 2004. See CC1382-84. Since then, Mr. Hyatt has sought to carry out his responsibilities as treasurer faithfully in accordance with the statute and applicable regulations. The principal campaign finance violation suggested in the Order to Show Cause seems to be that the Committee collected and spent money in support of Initiative 68 after the court of appeals' September 28, 2004 decision affirming the Board's decision to reject Initiative 68. The Order to Show Cause identifies several statutory provisions and regulations that may have been violated by collecting and submitting signatures in support of Initiative 68 after the court of appeals decision affirming the Board's rejection of the initial submission in support of Initiative 68: DC Code §§ 1-1001.14, 1-1101.01(7), 1-1102.01, 1-1102.06; 3 DCMR §§ 3000, 3700, 1015.1. See Order to Show Cause at 3. None of the cited provisions purports to prohibit anything that was done by the Committee or Mr. Hyatt. Even if, contrary to Mr. Hyatt's submission to the Board, Initiative 68 died on September 28, 2004, neither the Committee nor Mr. Hyatt violated any of the cited provisions in connection with the collection and submission of additional signatures to the Board to preserve the opportunity to attempt to persuade the Board that it could and should consider all signatures submitted in support of Initiative 68 on or before December 28, 2004. D.C. Code § 1-1001.14 is a criminal statute. Only three aspects of the provision are even potentially implicated by the conduct described in the Order to Show Cause:
None of these provisions has any application on the facts of this case. The Order to Show Cause suggests no conceivable basis for any finding that Mr. Hyatt or the Committee "knowingly" violated any campaign finance statute requirement, made any "false" statement to the Board in connection with Initiative 68, or "wilfully" violated any provision of the initiative statute. More specifically, D.C. Code § 1-1102.01 (a) provides that "[n]o expenditure shall be made for or on behalf of a political committee without the authorization of its chairman or treasurer ... or their designated agents" (emphasis added). "Expenditure" is a defined term, and means "[a] purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of financing, directly or indirectly ... any operations of a political, committee ... to obtain signatures on any initiative ... petition ...." D.C. Code 1-1101(7). As described above, the entire December 2004 campaign was financed by Atlantic Northstar LLC.10 In his capacity as one of the original proponents of .Initiative 68, Mr. Alfonso was consulted about the proposed circulation effort, but no part of the December 2004 campaign was financed by any expenditure by the Committee of any funds raised by the Committee. Accordingly, there were no "expenditures" made "for or on behalf of the Committee that would have required the approval of Mr. Alfonso, Ms. Wilcher, or Ms. Gentry. The Order to Show Cause does not specify any false statement "to the Board" by either the Committee or Mr. Hyatt. Neither the Committee nor Mr. Hyatt is aware of any false statement to the Board in connection with the December submission or Initiative 68. As described in Section A, the collection and submission of signatures after the initial rejection of Initiative 68 violated no provision of the initiative statute, D.C. Code §1-1001.16 or the Board's implementing regulations. There certainly is no basis for any suggestion that there was any wilful violation of any aspect of the statute. D.C. Code §1-1102.06 and 3 DCMR §3000 prescribe the operating rules for political committees. D.C. Code § 1-1102.06 requires the treasurer of each political committee engaged in obtaining signatures on any initiative to file periodic reports with OCF and prescribes the content of such reports. As described above, no expenditures were made by the Committee from funds raised by the Committee or for or on behalf of the Committee in connection with the December campaign. Nonetheless, political committees organized under the laws of the District of Columbia to support or oppose an initiative must report receipts and expenditures periodically. In accordance with the guidance provided in the instructions for preparing Form 16, the "in kind contributions made by Atlantic Northstar in financing the December, 2004 campaign were reported in the Committee's January 31, 2005 report.11 D. The Misstatements in the Radio Spot Violated No Applicable Law. The radio spot included two inadvertent misstatements. The spot ran for the first time on December 27, 2004, and Mr. Hyatt was incorrectly identified as the treasurer of the Committee the day before he actually became the treasurer. Ms. Wilcher resigned effective December 28, 2004, and Mr. Hyatt assumed the duties of the Treasurer the same day. The radio spot also incorrectly stated that it had been paid for by the Committee, rather than by Atlantic Northstar. No one could have been injured by any misstatement in the radio spot or relied to his or her detriment on any such misstatement. The radio spot only sought District of Columbia residents to assist with the circulation effort;, it did not advocate the merits of the initiative. In any event, the inadvertent factual errors in the radio spot violated none of the statutory or regulatory provisions suggested in the Order to Show Cause or any other applicable law.12 CONCLUSIONFor the foregoing reasons, the Board should dismiss its Order to Show Cause without further action. Respectfully submitted, George W. Jones, Jr. Counsel for the Citizens Committee for the D.C. Video Lottery Terminal Initiative and Johnny Clinton Hyatt, Treasurer CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Written Statement of the Citizens Committee for the D.C. Video Lottery Terminal Initiative and Johnny Clinton Hyatt In Response to the Order to Show Cause was served by hand this 8"' day of February, 2005 upon the following: Kenneth J. McGhie, General Counsel Francis D. Carter 1. On June 21, 2004, David Argo, Dorothy Brizill, and Regina James filed a complaint in the District of Columbia Superior Court seeking an order directing the Board to reject Initiative 68. David Argo v. D.C. Board of Elections & Ethics, Case No. 04CA004740. Judge Boasberg dismissed the Complaint, but ordered several modifications to the Board's summary of Initiative 68. 2. About two dozens additional District residents were recruited to collect signatures through the radio appeal. 3. Ms. Wilcher formally notified OCF of her resignation, effective December 28, 2004, on December 29, 2004. CC1368-69. 4. Mr. Hyatt replaced Ms. Wilcher as treasurer, effective December 28, 2004. CC1382-84. 5. Apparently, Mr. Alfonso had been out of town for the holidays and did not return to the District until Monday, January 3, 2005. See, e.g., CC1364. He formally notified OCF of his resignation on January 4, 2005. CC1366. Mr. Alfonso appears to have delivered copies of his December 29, 2004 letter to the Committee to OCF on December 30, 2004, and on January 4, 2005. See CC1364 (file stamped January 4, 2005, 2:31 pm CC 1365 (file-stamped December 30, 2004, 3:23 pm). 6. The office of chairman of the Committee remains vacant. Not surprisingly, the pendency of this proceeding makes it difficult to recruit a responsible person willing to accept the position. 7. See also DC Code § 1-1001.14(b)(4) ("[a]ny proposer or circulator of an initiative ... petition who wilfully violates any provision of § 1-1001.16 ... shall, upon conviction thereof, be subject to a fine of not more than $10,000 or to imprisonment of not more than-6 months, or both.") 8. See also 3 DCMR § 1012.2 ("[v]alid signatures appearing on an insufficient petition shall not be resubmitted for filing in support of that initiative ... measure or submitted in support of another" Signatures submitted in support of Initiative No. 68 in July, 2004, which were not previously, rejected, arguably remained before the Board until the expiration of the 180 day period. Mr. Hyatt did not "resubmit" any previously collected signatures. Instead, as an applicant to be designated an additional "proposer" of Initiative. 68, he filed the additional signatures collected in December, 2004, and asked the Board to consider both the signatures submitted in July but not previously rejected and the supplemental submission. While the Board might reasonably cite § 1012.2 as a basis for refusing to consider any of the signatures collected in July, the regulation clearly does not prohibit Mr. Hyatt's request to the Board. 9. Contrary to the statement in the Order to Show Cause, Mr. Hyatt did not make or intend any "unilateral designation" of himself as "an additional initiative proposer." Instead, Mr. Hyatt simply requested the Board to recognize him as an additional or substitute proposer for purposes of submitting the additional signatures. 10. The District campaign finance statute does not limit the amount or type of contributions that may be made in support of an initiative. See D.C. Code § 1-1131.01(j); 3 DCMR § 3011.16. Supporters and opponents of an initiative are free to spend whatever they choose. 11. The other regulations cited in the Order to Show Cause are 3 DCMR §§ 3700 and 1015.1. Section 3700 prescribes the procedures for investigations of potential violations of the District campaign finance laws. As explained in Section A, Mr. Hyatt's request to be recognized as an additional proponent of Initiative 68 did not violate § 1015.1. 12. For example, D.C. Code § 1-1102.10 applies only to "newspaper or magazine advertising, posters, circulars, billboards, handbills, bumper stickers, sample ballots, initiative . . . petitions, and other printed matter. . . ." Similarly, federal campaign finance regulations are inapplicable to local initiative elections. See 2 U.S.C. §§ 441d (requiring disclaimers in broadcast political advertisements paid for by a "political committee"); 431(1) (defining "election"), (3) (defining "federal office" to mean the office of President, Vice President, Senator, Representative, and Delegate or Resident Commissioner to Congress), (4) (defining "political committee" to mean a committee that accepts "contributions" in excess of $1000), (8) (defining "contribution" to include money or anything else of value for the purpose of influencing any election to 'federal office"). |
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