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SIDLEY AUSTIN BROWN & WOOD LLP 1501 K STREET, N.W. WASHINGTON, D.C. 20005 TELEPHONE 202 736 8000 FACSIMILE 202 736 8711 www.sidley.com
WRITER'S DIRECT NUMBER
WRITER'S E-MAIL
ADDRESS
September 10, 2004
Garland Pinkston Jr., Clerk Re: Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics and Ronald L. Drake, et al., D.C. No. 04-AA-957 Dear Mr. Pinkston: Enclosed for filing and circulation to the panel in the referenced case is an original and three copies of a supplemental letter brief responding to questions raised during oral argument on Wednesday. Please file-stamp and return a copy of the letter for my files. Best regards, SIDLEY AUSTIN BROWN & WOOD LLP 1501 K STREET, N.W. WASHINGTON, D.C. 20005 TELEPHONE 202 736 8000 FACSIMILE 202 736 8711 www.sidley.com
WRITER'S DIRECT NUMBER
WRITER'S E-MAIL
ADDRESS
September 9, 2004
The Honorable Michael W. Farrell Re: Citizens Committee for the Video Lottery Terminal Initiative v. District of Columbia Board of Elections & Ethics, No. 04-AA-957 Dear Judges Farrell, Ruiz, and Newman: In response to Judge Farrell's invitation at the close of oral argument in the referenced case, the Committee for the Video Terminal Initiative makes this supplemental submission. First, excluding only the signatures of presumptively valid registered voters (as opposed to the total number of signatures) on the petition sheets signed by (1) Steven Atkins, (2) Danielle Campbell, (3) Tenisha Colbert, (4) Melissa Darnell, (5) Evelyn Gerst, (6) Andre Rempson, (7) Shamika Mack, (8) Forrest Jackson, (9) Angelo Farrell, (10) Antoinette Pitter, (11) Antoine Jeffries, (12) Tanica Hunter, and (13) Gwendolyn Squirewell, Initiative No. 68 meets the signature requirements of the initiative statutes citywide and in Wards 4, 5, 6, 7, and 8.1 The Board of Elections and Ethics (the "Board") has confirmed that its records show that the petition sheets signed by these 13 individuals contain the signatures of just 1773 registered voters. The total number of registered voters subject to the random sampling procedure is therefore 19,506 (21,279-1773), well over the minimum requirement of 17,599. Thus, only because the Board also disregarded the signatures collected by Stars & Stripes circulators as to whom the Board had no evidence of wronqdoing was the Board able to conclude that Initiative 68 failed to meet the statutory signature requirements. Second, without speculation, this Court cannot determine how the Board would have exercised its discretion in this case if it had not improperly relied on constitutionally protected speech. In Bio-Medical Applications of the District of Columbia v. D.C. Board of Appeals and Review, 829 A.2d 208, 217 (DC 2003), this Court explained "an administrative order can only be sustained on the grounds relied on by the agency. The purpose of the ...rule is to preserve agency discretion; affirm[ing] on a basis containing any element of discretion ... that is not the basis the agency used ... would remove the discretionary judgment from the agency to the court") (internal citations and quotation marks omitted) (emphasis added). See NLRB v. Metropolitan Life Ins. Co, 380 U.S. 438, 444 (1965) ("[T]he integrity of the administrative process requires that 'courts may not accept appellate counsel's post hoc rationalizations for agency action....' For reviewing courts to substitute counsel's rationale or their discretion for that of the Board is incompatible with the orderly function of the process of judicial review. Such action would not vindicate, but would deprecate the administrative process ....") (citations omitted). Accordingly, where agency action is expressly based on multiple and interrelated factors, the Court cannot affirm on the ground that the agency might have reached the same result even if it had not improperly relied on one or more of those factors. Third, this Court's decision in Williams, v. District of Columbia of Board Elections and Ethics, 804 A.2d 316 (DC 2002), establishes an appropriate standard for drawing adverse inferences from a petition circulator's unavailability for cross examination with respect to signatures he collected. In Williams, the Board had clear and compelling evidence that three circulators whose petitions the Board rejected had engaged in widespread forgery of voter signatures. In those circumstances, the Court found that "the Board had firm grounds to doubt the veracity of the sworn representations by the Bishops as to the genuineness of the signatures they submitted, including --- ultimately --- their total refusal to be questioned about their conduct in the circulation process." Id. at 319 (emphasis added). Where the Board has clear and compelling evidence of individual, wrongdoing that would warrant rejection of a particular circulator's affidavit, whether on the face of the petition_ sheets, as in Williams, or based on other evidence in the record, and the circulator refuses to testify, the Board may infer that the circulator's testimony would not have rebutted the evidence of wrongdoing and accept the unrebuted evidence as a basis for rejecting the affidavits of the individual circulator.2 As this Court explained with respect to the so-called "missing witness" instruction, the Board must be "constantly mindful of the dangers inherent in creating evidence from non-evidence." Katkish v. District of Columbia, 763 A.2d. 703, 707 (DC 2000) (Ruiz, J.) (citations and internal quotation marks omitted). No inference of wrongdoing based on a witness' unavailability is permissible unless (1) there is some reliable evidence that the individual circulator was guilty of wrongdoing that would warrant rejection of his petition sheets absent rebuttal and (2) the circulator's unavailability is willful. For example, where a circulator as to whom there is evidence of perjury in the record appears before the Board and invokes his Fifth Amendment right against self-incrimination or a circulator who has been properly served fails to appear without good cause to rebut evidence that he engaged in illegal or other wrongful conduct, the unavailability of his testimony is willful, and an adverse inference as to his conduct may be appropriate, although certainly not required. On the other hand, however, if the circulator is not aware that his testimony is sought or the circulator is unavailable to testify on extremely short notice because of other commitments, the witness' unavailability is not "willful" and no adverse inference of any kind is warranted or permissible. For example, in this case, there is substantial reason to believe that many of the circulators were not served with subpoenas because the Board relied on a single staffer to serve over one hundred subpoenas in a relatively short time, instead of using a professional process server. Committee Reply Brief at 18-19 n.21. The fact that an individual lives in an apartment building generally would not prevent a professional from serving a subpoena. Yet, in this case, the only reason for failure to serve more than a dozen circulators is that the Board staffer could not. get access to the building or had, no apartment number for the circulator. See Exhibit 43. Similarly, in some instances, it is clear that the circulators were not served because the Board staffer went to the wrong address. For example, the Board attempted to serve Mr. Steven Howell at 7515 Gault Place, Northeast, because that is the address given to the Board for Mr. Howell by Intervenor Ronald Drake. See Aug. 2 Tr. at 141-43. Mr. Howell's address was in fact 4515 Gault Place, Northeast. Id. Nonetheless, Mr. Howell is listed as a circulator who could not be served because there was "[n]o such address." Exhibit 43; see also Intervenor Drake Brief at 33 n.1. Mr. Howell did not give a "false" or non-existent address. He was not served and did not testify about the circumstances under which he collected signatures, because Intervenor Drake copied the wrong address from the circulator affidavit and the Board simply relied on Mr. Drake. The error was not revealed until the final day of the hearings, preventing any effective remedy. Drawing any inference about Mr. Howell or the validity of the signatures he collected in these circumstances would be wholly inappropriate. Finally, although the Board has recognized that homeless people are entitled to participate in the political process, the fact that a circulator's residence was a shelter is the stated reason for failure to serve the subpoena for many circulators. See Exhibit 43. Because rejecting a circulator's affidavit has the effect of invalidating the signatures of registered voters who signed the petition in good faith and unnecessarily burdening the exercise of constitutionally protected rights, the Board should be especially reluctant to infer wrongdoing sufficient to reject a circulator's affidavit on the basis of "non-evidence." Very truly yours,
George W. Jones GWJ:gwj
cc: Kenneth J. McGhie (By telecopy) 1. Alice Miller's August 5, 2004 Memorandum to the Board of Elections & Ethics explained that. "[a]fter completing the procedures for verifying the voter registration status of petition circulators and signers ... including the removal of signatures where an initial determination was made on the challenges (Drake 1-7), and in those cases where signatures were conceded or withdrawn - the total number of registered voters listed in the petition was found to be 21,279 " (Pet. App. at 34) (emphasis added), as compared to the total of 56,044 signatures initially submitted in support of Initiative 68. 2. The Board's .regulations foreclose any suggestion that it is either necessary or appropriate to reject signatures collected by one circulator as invalid based solely on an inference from the misconduct of other circulators. See 3 DCMR §§ 1007.8 & 1009.7 ('When some but not all signatures on a petition have been signed outside the presence of the circulator, only those signatures signed outside the circulator's presence shall be invalid, and the remaining signatures on the sheet shall be deemed valid if there are no other defects in the signature") (emphasis added). |
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