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Letter to DC Court of Appeals replying to petitionersí submission of September 23, 2004
September 24, 2004




Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars


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September 24, 2004


The Honorable Michael W. Farrell
The Honorable Vanessa Ruiz
The Honorable Theodore R. Newman, Jr. 
District of Columbia Court of Appeals 
500 Indiana Avenue, Sixth Floor 
Washington, D.C. 20001-2131

Re: Citizens Committee for the Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, No. 04-AA-957

Dear Judges Farrell, Ruiz, and Newman:

In the Petitionerís letter to this Court of September 21, 2004, the Petitioner requested "leave to file a memorandum no later than close of business on Thursday, September 23, 2004" in response to the Clarification Memorandum Opinion requested by this Court and filed by the DC Board of Elections and Ethics on September 20, 2004.

Although there is no indication that the Court did grant such leave to the Petitioner, the Petitioner filed that memorandum with the Court yesterday. The cover letter attached to the Petitionerís response memorandum asked the Courtís Clerk, Garland Pinkston, to circulate the response "to the panel as promptly as possible on Friday morning." However, the Petitionerís memorandum was served by electronic mail on the Intervenors at 11:13 p.m. yesterday, September 23rd. This late service is a clear attempt to make any reply difficult.

In addition, this eleventh hour filing by Petitioners seeks to introduce into the record new declarations by Petitionerís counsel, John Ray, and by Daryl Bonner, a petition circulator and manager for Stars and Stripes. It also attempts to introduce new "facts" and arguments that are not substantiated by the existing record of the case.

Page 2 of the Petitionerís response memorandum refers to the "Boardís failure to serve and enforce its subpoenas on circulators." However, it is obvious from the record of the hearings that the Board placed immense importance on the affidavits signed by circulators and on the Boardís ability to question challenged circulators so that they could affirm their affidavits. Indeed, the Board deferred to circulatorsí affirmation of their affidavits, even when such affirmations could have been viewed as highly questionable. The Board relied upon its ability to locate, question, and, if need be, subpoena the circulators, as it detailed in its original order at 11-12. The Boardís failure to locate so many circulators stems primarily from the false, bad, and/or incomplete addresses provided by those circulators.

The Intervenors object to the Declaration of John Ray (Exhibit A of the response memorandum as an attempt by Petitioners to introduce new evidence into the case that was not offered during the course of the Board hearing or mentioned in any previous brief by the Petitioner. In addition, the Declaration contains many factual inaccuracies that should be noted. Prior to the start of the Boardís hearing, the challengers submitted lists of witnesses, totaling more than one hundred, that they requested the Board to subpoena. Challenger Ronald Drake submitted his list at his pre-hearing conference on July 20, 2004, and challengers DCWatch and DC Against Slots submitted their list on July 21, 2004. At the same time, the legal counsel for the Citizens Committee for the Video Lottery Terminal of 2004 also requested that the board issue subpoenas for witnesses that he wished called, such as Martha Ward.

Several times a day throughout the course of the nine days of hearings, the Boardís staff attorneys would respond to individual inquiries by the various parties and would give updates on how the service of subpoenas was progressing. In addition, on several days during the hearing, witness lists were distributed to all parties detailing those individuals whom the Board had successfully served and those whom it had not been located.

It is simply not true that the Petitioner was somehow ambushed by finding out at the last moment that many circulatorsí addresses were false or that many subpoenas could not be served. On or about July 25, 2004, midway through the Boardís hearing, all parties were asked to identify for the Board those witnesses who were critical to their case. The Board indicated that it would make a special concerted effort to serve those individuals. The Board indicated that it was doing so in an effort directed at budgeting the Boardís time.

The Boardís hearing began on Wednesday, July 21, 2004, and went through Wednesday, July 28, 2004. The record was officially closed after the July 28, 2004, meeting, with the exception of closing statements and the testimony of Stars and Stripes manager Mike Jones, scheduled for Monday, August 2, 2004. Mr. Ray now proffers in paragraphs 5 and 6 of his declaration that he offered "at the conclusion of the July 28, 2004, hearing" to assist the Board "locate the unservable circulators" and hire a professional server. He neglects to mention that he claims to have made this offer only after the hearings were concluded and the record was closed. It further fails to acknowledge that for eight days Mr. Ray did not offer to assist the Board in any way. Thus, any supposed offer of assistance that he made after the close of the hearing on July 28, 2004, or on July 30, 2004 (as stated in paragraph 7 of the Declaration), could only have been self-serving.

Moreover, Mr. Ray had the ability to produce witnesses, if he chose to do so, without a subpoena from the Board. During numerous on- and off-the-record discussions with the Boardís staff and challengers, Mr. Ray never offered to assist the Board in locating witnesses or serving subpoenas.

The response memorandum, on page 3, argues that "the Board refused to make time to hear from two of the alleged wrongdoers," Daryl Bonner and Mike Jones. The Petitionerís response memorandum fails to acknowledge that Mr. Bonner arrived unexpectedly at the BOEE on August 2, 2004, after the hearings had been concluded and the record had been officially closed. And now the Petitioner attempts to insert in the record a self-serving declaration by Mr. Bonner, just as it attempted to introduce an affidavit by Mr. Jones in lieu of his testimony during the hearing. Neither the Board nor the intervenors will have an opportunity to question or to cross-examine Mr. Bonner.

The Petitioner also suggests that the Board erred in not allowing Mike Jones to testify on August 3, 2004. The Petitioner fails to note or acknowledge that the Citizens Committee had nine days of hearing in which it could have produced Mr. Jones for testimony, and fails to note that August 3, 2004, was the statutorily mandated deadline for resolving challenges under Section 1011.3 of the Districtís Municipal Regulations. To have allowed Mr. Jones to testify on that day would not have allowed the Board the necessary time it needed to deliberate, review the record, and write the oral decision it issued on August 3, 2004.

Finally, the Petitionerís response memorandum continues to argue that the Board of Elections should not be able to exclude petitions on the basis that a circulator gave a false address, cannot be located, or did not response to a subpoena. It argues that petition affidavits must be presumed valid in the absence of testimony by the circulator, even if the circulator cannot be located at the address provided or refuses to obey a subpoena. As the Court noted in its hearing, were that the rule adopted by the Board of Elections, it would give petition circulators every incentive to submit false affidavits, with false names and false addresses, since then their affidavits could not be challenged. On the contrary, the Board of Elections and Ethics recognized that when the validity of a petitionersí affidavit has been properly challenged those affidavit must be defended, and that when it has been overwhelmingly demonstrated that affidavits have been systematically and routinely falsified the Board must act to protect the integrity of the petition gathering process and the election process generally. In the Boardís Clarification Memorandum Opinion, it has demonstrated that it reached their opinion on the operations of Stars and Stripes and on the presumptive validity of affidavits submitted by them on the basis of ample and unrebutted evidence, and that its opinion was not only reasonable, but also measured and restrained.


Dorothy Brizill

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I hereby certify that a copy of the foregoing letter to the DC Court of Appeals by DCWatch was hereby delivered by facsimile or by E-mail (by permission of the receivers) this 24th day of September 2004 upon the following:

George W. Jones, Jr.
Sidley Austin Brown & Wood LLP
1501 K Street, NW
Washington, DC 20005

Erik S. Jaffe
Law Office of Erik S. Jaffe, P.C.
5101 34th Street, NW
Washington, DC 20008

John Ray
Manatt, Phelps & Phillips, LLP
700 12th Street, NW, Suite 1100
Washington, DC 20005-4075
FAX: 202-585-6600

Kenneth J. McGhie, General Counsel
Alice Miller, Acting General Counsel
Terri Stroud, Staff Attorney
DC Board of Elections and Ethics
441 4th Street, NW, Suite 270
Washington, DC 20001
FAX: 202-628-5952

Ronald L. Drake, Pro Se
5 P Street, SW
Washington, DC 20024
FAX: 202-554-3313

Arthur B. Spitzer
American Civil Liberties Union of the National Capital Area
1400 20th Street, NW, #119
Washington, DC 20036
FAX: 202-452-1868

Dorothy A. Brizill

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