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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 FOUNDED 1866
WRITER'S DIRECT NUMBER September 27, 2005 By Hand
The Honorable Bruce D. Beaudin
Dear Judge Beaudin: Enclosed for the convenience of the Judge in Chambers is a courtesy copy of Respondents' Memorandum of Points and Authorities in Opposition to the Application for Entry of Judgment of Final Order of the District of Columbia Board of Elections and Ethics in the . referenced matter, which is also being filed in the Clerk's Office today and served on counsel for the Board of Elections and Ethics. I understand that the application is scheduled for hearing on October 11, 2005 before the Judge in Chambers. I presume you will not be the Judge in Chambers on October 11. If it is not too much trouble, however, I would appreciate it if you could have the opposition forwarded to your colleague who will be the Judge in Chambers at that time. Very truly yours, Enclosure cc: Kenneth J. McGhie, Esq. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION District of Columbia Board of Elections and Ethics, Petitioner, v. Civil Action No. 0007439-05 Next event: RESPONDENTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR ENTRY OF JUDGMENT ORDER OF THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS FINAL AND ETHICS The Citizens Committee for the D.C. Video Lottery Terminal Initiative of 2004 and its former officers (collectively the "Committee'), by and through undersigned counsel, submit this memorandum of points and authorities in opposition to the application of the District of Columbia Board of Elections and Ethics ("Board') for entry of final entry of final judgment. In this case, the Board assessed a penalty of $622,880, and now seeks to avoid judicial review of its decision. The Board's application for summary entry of final judgment should be denied. D.C. Official. Code §1-1103.05(b)(4). In accordance with the plain language of the statute which the Board purports to act, this case should be transferred to the regular Superior Court civil calendar to permit the Court to establish a briefing schedule that will permit full and fair consideration by the Court of the substantial legal and factual issues presented. At the outset, the Board contends that the general District of Columbia Administrative Procedure Act ("DCAPA") which was intended to expand judicial review of arbitrary agency action, see Cheek v. Washington, 333 F.Supp. 481, 484 (D.D.C. 1971) (three-judge panel), somehow operates to render meaningless the plain language of D.C. Official Code 1-11.03.05(b)(4), which specifically provides for judicial review on the merits in this Court (emphasis added):
The Board's jurisdictional argument is untenable. In the first place, D.C. Official Code §1-1103.05(b)(4) was enacted after the DCAPA. The DCAPA could not have implicitly repealed the provisions of §1-1103.05(b)(4), as the Board apparently suggests. To the extent there is any conflict between the DCAPA and the initiative statute, the later enacted, specific provisions of §1-1103.05(b)(4) would be controlling. See, e.g., Hellon & Associates. Inc. v. Phoenix Resort Corporation, 958 F. 2d 295, 297 (9th Cir. 1992) ("to the extent that statutes can be harmonized, they should be, but in case of an irreconcilable inconsistency between them the later and more specific statute usually controls the earlier and more general one"). Under §1-1103.05(b)(4), the Committee is specifically entitled to de nova review of legal issues on the merits and review of :he Board's factual findings to determine whether those findings are supported by substantial evidence in the record. The Board fails to cite any authority in this jurisdiction to support the proposition that the role of this Court on review of a Board penalty decision is merely the ministerial function of entering judgment. The only authority cited by the Board is a landlord-tenant case from Connecticut, Commissioner of Banking v. Haynes, 821 A.2d 843 (Conn. App. 2003), which involved a completely different statutory scheme. Moreover, as far as can be determined from the decision of the Connecticut court, Haynes did not involve a statute that specifically provides for judicial review on the merits in accordance with explicit standards of judicial review, as does the controlling statute in this case. Accordingly, Haynes provides no support for the Board's position in this case. II.The Board's decision on the merits is also indefensible. The Board purports to hold the Committee responsible for 3,893 election law violations, involving 25 named initiative petition circulators, and assesses the largest civil penalty of any kind ever assessed by the Board . under the laws of the District of Columbia. The decision raises important and substantial questions concerning both the nature and the scope of the Board's authority to assess civil penalties for violations of the election laws of the District of Columbia, and warrants careful consideration by this Court, after full briefing and argument. First, for example, for reasons more fully set out in the Committee's Statement in Mitigation and other submissions to the Board in connection with the penalty proceedings, all of which are incorporated herein by reference as if fully stated,, the Board has no authority to assess any penalty against the Committee on any theory of respondeat superior for unlawful acts committed (1) without the knowledge or participation of the Committee or its former officers 2) by individuals who were not hired, paid, or supervised in their day-to-day activities during the petition circulation campaign by the Committee, or its officers.1 Each of the District of Columbia residents and the non-resident managers affiliated with Stars and Stripes, Inc. ("Stars and Stripes") and whom the Board found had engaged in unlawful conduct was an independent contractor, as was Stars and Stripes, an Progressive Campaigns,. Inc. ("PCI"). It is undisputed that the Committee retained PCI to manage the day-to-day operations of the initiative petition circulation campaign precisely because the Committee and its former officers did not have the required experience, expertise, logistical resources, or practical ability to undertake supervision of the day-to-day work of literally hundreds of individuals throughout the city. Second, the Board's authority to assess civil penalties under D.C. Official Code 1-1103(b)(1), is limited to assessing penalties for violations of election law: "[a]ny person. who violates any provision of [Chapter 11 ] or of Chapter 10 of this title may be assessed a civil penalty by the District of Columbia Board of Elections and Ethics .... of not more than $200.... for each violation." Yet, in this case, the Board relies on a new common law duty of the Committee to supervise the activities of everyone involved in the petition process, as an alternative basis for assessing a penalty. Even if the Committee had violated a common law duty to exercise reasonable diligence in overseeing the signature gathering process to collect "valid signatures,'' see Order at 23:36, 43, the Board may assess a civil penalty only for a violation of District election law. The plain language of §1-1103(b) denies the Board any authority to rely on any breach of common law duty as an "independent," see Order at 8 n. 10, 43, or alternative basis for assessing penalties against the Committee.2 Third, the $622,880 penalty is excessive and beyond the Board's authority, as a matter of law. The Board states that "[f]or purposes of the assessment of penalties, the Board has determined that fines should be imposed for the violations that constitute false attestations on the circulator affidavits, and that. specifically fall into one or more of the following four categories: 1) failure of circulator to be in the presence of petition signatories; 2) false declaration of residence address; 3) alteration of affidavit signatures; and 4) signatory forgeries." Order at 40 (emphasis added). In assessing a penalty of $160 for each of 3893 separate violations of the election laws, however, the Order disregards the nature of the violations at issue. See Order at 41-42. Instead of focusing on the false attestations in the circulator's affidavit on each petition sheet, the Order incorrectly treats each signature of a registered District of Columbia voter on a petition sheet submitted by any of 25 named Stars & Stripes circulators as if the signature itself constituted a violation of the election laws. For example, the Board assesses a penalty of $198,720 for 1242 signatures of registered voters submitted by circulators who admitted they had falsely attested that they were "in the presence .of each person" who signed a petition sheet they submitted (i.e. Danielle Campbell (267), Tenisha Colbert (212), Melissa Darnell (193), Evelyn Gerst (264), Antoine Jeffries (128), and Andre Rempson (178)). In pertinent part, the "Circulator's Affidavit of Certification" at the bottom of each petition sheet requires each circulator to fill in his or her name and address, and "swear or affirm, under penalties of perjury, (1) that. I have circulated the attached petition for initiative Measure No. 68; and (2) that I was in. the presence of each person who signed the attached petition at the time the appended signature was written; and (3) that, . according to the best information available to me, each signature is the genuine signature of the person whose name it purports to be..." (emphasis added). None of the registered District of Columbia voters who signed petitions submitted - by Campbell, Colbert, Darnell, Gerst, Jeffries, or Rempson violated any law of the District of Columbia. As the Order correctly recognizes, the only conceivable violation of District of Columbia election law suggested by the record before the Board with respect to these circulators is the false attestation by the circulators that they were "in the presence of each person who signed the petition" when the petition was signed. Instead of counting the false statement that the circulator was "in the presence of each person who signed" the petition as a single violation, however, the Board treats each signature of a registered voter on the petition as if it were a separate violation. Whether the circulator was, as a matter of fact, in the presence of some or none of the registered voters who signed the petition, the wording of the circulator's affidavit makes it plain that there was only one false statement per petition sheet and only one violation of District of Columbia election law for which the Board may assess a civil penalty. Similarly, the Board assesses a penalty of $66,400 for 415 signatures of registered voters submitted by individuals the Board believed had given false addresses on petition sheets they submitted (i.e., Antoine Walker (198), Lionell Butler (205), and Alan Clipper (12)). Again, none of the signatures of registered voters on the petition sheets submitted by Walker, Butler, or Clipper was unlawful simply because the circulator's address was incorrectly stated in the circulator's affidavit. The voters who signed the petition sheets submitted by Walker, Butler, and Clipper violated no District law. The violation, if there was any, could only be the false statement of the circulator's address, not the signature of the registered District of Columbia voter. In this context, there was no more than one violation of election law per petition sheet, not 415. By treating each signature of a registered District of Columbia voter as if it were a separate violation of District law, the Board erroneously increases the number of election law violations from a few hundred to nearly four thousand, and increases the assessed penalty by hundreds of thousands of dollars. Thus, the $622,880 assessed penalty exceeds the statutory maximum of $200 per election law violation by a substantial amount. Fourth, the penalty assessed by the Board includes $110,560 for 691 signatures of registered District of Columbia voters submitted, by two other circulators as to whom there was no admission of any wrongdoing, no "evidence" of any wrongdoing, and no finding of any wrongdoing (i.e., Tanica Hunter and Gwendolyn Squirewell). The Board treats each of the signatures of registered District of Columbia voters collected by Hunter (355) and Squirewell (336) as if they were violations of District election law, apparently because Hunter and Squirewell asserted their constitutional right not to testify in the proceedings before the Board. There is no evidence in the record of the proceedings before the Board that could support any finding that any of the registered voters who signed the petitions submitted by Hunter and Squirewell violated any District election law. There is certainly no "substantial evidence" to support the Board's implicit findings of fact width respect to Hunter and Squirewell. It is clear beyond any reasonable dispute that the Board could not assess any penalty against either Hunter or Squirewell for assertion of her constitutional riots. It is no. less clear that substantial questions of constitutional law are raised by any attempt to assess civil penalties against the Committee and its former officers solely on the ground that Hunter and Squirewell asserted their constitutional right against being compelled to testify. In any event, in the absence of substantial evidence sufficient to support a finding that there was a violation of District of Columbia election law, the Board has no authority to assess any civil penalty. Fifth, the penalty assessed by the Board includes $145,600 for 910 signatures of registered District of Columbia voters submitted by 10 circulators whose petition sheets contained "alterations of circulator signatures" (i.e., Daryl Bowman (294), James Knight (4), Thomas Robinson (112), Andre Smith (8), Larry Fisher (19), Tyrone Hodges (13), Robert Howard (114), Antoine Walker (198), Rickey Satterwaite (76), Jumhariyah Latanrang (72)). The Board's Order contains no explanation of what violation of District of Columbia election law could be found with respect to any of the signatures collected by these circulators. Nor is it clear what violation of District election law the Board believes was committed by these circulators. The theory of the Order appears to be that each "altered" circulator's affidavit was false in some unspecified way. For reasons already discussed, however, that theory would provide no basis for counting each. signature of a registered voter as a separate violation of election law. Each "altered" affidavit that was, in fact, "false" could only constitute a single violation. For example, Bowman apparently was served with a subpoena to testify in the proceedings before the Board, but failed to respond. Nonetheless, the challenge to the signatures he collected rested principally on the assertion that he -. not the registered District of Columbia voters who signed his petition sheets - was incompetent. The Board makes no finding with respect to Bowman's competence. It is at least doubtful that the Board has any authority to inquire into the competence of circulators or signatories. In any event, however, the Board clearly has no authority to assess penalties against the Committee on the ground that any circulator was incompetent. If the alterations of the circulator affidavits signed by Bowman contained any false statement, there would be one violation per petition sheet - not a separate violation of law for each signature on the petition sheet. As noted at the outset, under §1-1103(b), the Board can assess a civil penalty only for a violation of District election law. Similarly, although there was considerable testimony about Latanrang during the March penalty hearings, the Board Order cites no evidence that any of the registered voters who signed Latanrang's petitions violated any election law, that Latanrang violated any District of Columbia law, or that Latanrang was guilty of anything, except appearing somewhat disheveled and disorganized. The Order does not purport to find that Latanrang violated any District law. In the absence of such a finding and substantial evidence in the record to support it, there is no basis for assessing any civil penalty against the Committee for any of the signatures collected by Latanrang. If there was substantial evidence in the record to support a finding that the alterations on the petition sheets submitted by Latanrang, in fact, contain false statements, the Board would have been authorized to assess a civil penalty for those violations of election law, but again there is no basis for assessing a separate penalty for each of the signatures collected by Latanrang. Sixth, the Board includes the signatures collected by Antoine Walker in two separate categories (i.e. (1) false circulator address and (2) altered circulator. affidavit), and assesses a penalty of $31,680 for the 198 signatures he submitted in both categories. See Order at 41-42. By including the signatures Walker collected in two categories and assessing a penalty for each signature in both categories, the Board effectively assessed a penalty of $320 for each of the 198 signatures of registered voters submitted by Walker. Whatever offense the Order assumes Walker may have committed, there is no basis for treating each of the signatures he collected as if the signature itself violated District election law. In any event, the Board has no authority to assess a civil penalty of more than $200 for each violation of District election law. D.C. Official Code § 1-1103(b). CONCLUSIONFor the foregoing reasons, the Board's application for summary entry of final judgment should be denied, and this case should be transferred to the regular civil calendar for full briefing and argument on the merits of the Board's decision in accordance with D.C. Official. Code § 1-1103.05(b)(4). Respectfully submitted, George W. Jones, Jr. (DC Bar No. 323139) Counsel for Respondents CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Respondents' Memorandum Of Points. And Authorities In Opposition To Application For Entry Of Judgment Of Final Order Of The District Of Columbia Board Of Elections And Ethics was served this 27th day of September, 2005 upon the following:
BY HAND George W. Jones 1. See, e.g., Judah v. Reiner, 744 A.2d 1037, 1040 (DC 2000); Safeway v. Kelly, 448 A.2d 856, 860 n.9 (DC 1982), quoting Restatement (Second) of Agency 2(1) & (2) (emphasis added) ("(1) A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. (2) "A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to control by the master"). 2. In addition, If the Board had any authority to assess civil penalties for breach of a common law duty to exercise reasonable care in the supervision of the signature gathering process, the Committee could only be responsible for violations of law caused by the. breach of duty. Only if there was some reasonable action the Committee could have taken that would have prevented the violations of law could the Committee and Its former officers fairly be held responsible for the violations of law committed by others. With the benefit of hindsight, of course It Is possible to identify ways in which the Committee might have done a better job in one respect or ate, but the Order fails to explain how either. (1) reviewing the petition sheets before they were submitted to the Board or (2) visiting the Red Roof Inn during the campaign would have identified or prevented the false statements that the Board was able to Identify only after days of hearings and grants of Immunity to essential witnesses. Nor does the Order explain how, consistent with their other responsibilities, the three former officers practically could have overseen the work of dozens. of circulators hired directly by Stars &.Stripes and operating from the Red Roof Inn. |
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