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George Jones, Counsel for the Citizens Committee for the DC Video Lottery Terminal Initiative
Statement in Mitigation
February 14, 2005




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Before the District of Columbia Board of Elections and Ethics

In re: Challenge to Initiative No. 68, "Video Lottery Terminal Initiative of 2004"

Administrative Hearing No. 04-020 


Pursuant to the January 3, 2005 letter from the General Counsel of the Board of Elections and Ethics (the "Board") to Johnny Clinton Hyatt, treasurer of the Citizens Committee for the D.C. Video Lottery Terminal Initiative (the "Committee"), advising Mr. Hyatt that the Board had initiated this proceeding to determine who "should be held responsible for the determined violations [in connection with the Video Lottery Terminal Initiative of 2004 ("Initiative 68")] and how the Board should determine the amount of the fines to be assessed for such violations," and 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, the Committee and Mr. Hyatt submit this statement in mitigation.



On April 22, 2004, Pedro Alfonso, Vickey Wilcher, and Margaret Gentry (collectively the "Proponents") submitted a proposed initiative entitled "Jobs, Education, and Health Care Expansion Initiative of 2004" to the Board.1 The proposed initiative sought to legalize "Video Lottery Terminals" or "VI-Ts" in the District of Columbia. Supporters of the initiative hope to build an entertainment complex, including a hotel, banquet facility, underground parking, retail shops, restaurants, multiplex movie theater, bowling alley, "kid zone," 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, the "District of Columbia Video Lottery Terminal Initiative of 2004." After a hearing, the Board determined that the proposal was a proper subject for an initiative, D.C. Code § 1-1001.16, and adopted a Short Title, Summary Statement, and legislative form.

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. Judge Boasberg dismissed the Complaint, but ordered the Board to delete "D.C." from the Short Title and insert the words "very similar to slot machines" to describe VLTs in the first bullet point of the Summary Statement. To avoid any suggestion of advocacy for or against Initiative 68 in the official Summary Statement, Judge Boasberg struck the final bullet point, which noted that the Initiative also would "make nonbinding recommendations to the City Council that the fee paid to the District be used, in part, to improve public schools and to help senior citizens obtain prescription drugs."2

Finally, on July 1, 2004, the Board issued the official petition sheet for Initiative 68, which contained included the following description of the Initiative: 



SUMMARY STATEMENT This initiative, if passed, will:

  • expand the lottery by allowing "Video Lottery Terminals" ("VLTs"), which are very similar to slot machines, in the District of Columbia;
  • provide a fee of 25% of the net revenue from each VLT to the District;
  • establish the initial VLT facility at Montana Avenue/New York Avenue/Bladensburg Road, NE;
  • permit one licensee to operate VLTs for the first ten years;
  • establish application requirements for additional licensees after the first ten years.

Because of the time consumed by the litigation, the Proponents of 68 had a total of just six days - until July 6, 2004 - to collect the 17,599 valid signatures of registered District of Columbia voters necessary to have Initiative 68 placed on the November 2004 ballot.


To obtain the required number of signatures in the short time available, the Committee hired Progressive Campaign Incorporated ("PCI"), the largest petition circulation firm in the country and one with prior experience in the District of Columbia. July 28 Tr. at 88, 91, 98-100, 361. PCI is owned and managed by Angelo Paparella, who has over sixteen years of experience with initiatives. July 28 Tr. at 292.

Paparella sought "the very best managers that could organize this drive" and selected three petition circulation firms - Stars & Stripes, Inc. ("Stars & Stripes"), Initiatives Plus, and Burkett Petition Management Company (collectively, the "Subcontractors") - each of which he had worked with on prior campaigns. July 28 Tr. at 303-304. Stars & Stripes in particular had worked with PCI on another D.C. initiative, and Carl Towe, the principal of Stars & Stripes, had seventeen years of experience circulating petitions throughout the country. July 26 Tr. at 10, 29, 33; July 28 Tr. at 300. Mr. Paparella also dispatched Robert Grocholski, a veteran PCI employee, to the District to supervise and manage the process. July 28 Tr. at 304. Grocholski acted as the "eyes and ears for Angelo [Paparella], on-the-ground, to report on many days on an hourly basis ... [and] also to give instruction to some of the other [subcontractors] and assist with the petition effort." July 27 Tr. at 391-92.

The three Subcontractors in turn retained managers to recruit and coordinate both non-resident professionals for their expertise and District residents who would serve as "circulators." July 27 Tr. at 289, 292. Carl Towe of Stars & Stripes hired Ross Williams, Grant Sawyer, Chad Towe, and Charles Snow as his managers. The Stars & Stripes group arrived on or about June 21st, before the petition was approved by the Board, and set up operations at the Red Roof Inn. July 26 Tr. at 13. The other subcontractors arrived on the third day of the petition drive and set up at the Days Inn, and another group met at 1501 M Street. July 27 Tr. at 332.

A. Training of Circulators.

Paparella of PC] testified that his first action after being hired was to contact the Board to ask whether there had been any changes in the governing law and regulations since 2002, when he last managed an initiative campaign in the District. July 28 Tr. at 300-301. After multiple conversations between PCI staff and the Board, July Tr. at 301-02, Paparella instructed the Subcontractors and Grocholski on D.C. election law. July 27 Tr. at 393-94. Paparella briefed his subcontractors, and the subcontractors briefed their managers. July 26 Tr. at 31; July 27 Tr. at 292-93, 302. For example, Towe of Stars & Stripes explained to all his managers the importance of D.C. election law and instructed them "to abide by all those laws" "especially on a petition that is being challenged ... before the petition is ... released to circulate." July 26 Tr. at 32.

The Subcontractors hired non-resident professionals and resident circulators to perform distinct functions in the actual signature-gathering. Those persons were to be paid on a variable per-signature scale. Resident circulators would either go out on their own (Category 1); team with non-residents, both gathering their own signatures and witnessing the efforts of their non-resident co-workers (Category 2); or team with non-residents and witness their efforts, but not personally take signatures themselves (Category 3). July 26 Tr. at 39-41, 44-45, 53-55; July 27 Tr. at 74-77, 144-45, 295-303.3 Circulator training sessions for Stars & Stripes were conducted by Ross Williams, who had approximately twenty years of petitioning experience in several states and has worked with "each and every petition facilitator there is in the United States." July 27 Tr. at 15, 16, 67. Williams' training sessions started on June 30th (a day before the petition was issued) and lasted until Sunday, July 4th. July 27 Tr. at 212. In those training sessions, Williams asked circulators to read the petition and specifically went over the 'synopsis part" and the "affidavit portion," the latter of which he believed to be "important, just as the petition itself is important." July 27 Tr. at 221. Williams told his circulators that the Initiative was a "Gambling Initiative" or about "slots" or "slot machines" because VLT was not a commonly known term. July 27 Tr. at 22-23, 26, 35, 38-39, 163-64, 214-16, 249-50. Williams also trained the circulators on the governing law, telling them to collect valid signatures, that the circulator must be a D.C. resident who must "watch" the non-residents or "be in the presence of them," and that they should not commit fraud, forgery, or lie or misrepresent the Initiative otherwise they could face jail time. July 27 Tr, at 27-28, 213-18.

Most, if not all, circulator witnesses testified that they told signors that the initiative was about "VLTs," "gambling," "DC Slots," or "a casino." Esc., July 27 Tr. at 242 (Cowan); July 26 Tr. at 312 (Campbell); July 28 Tr. at 14-15 (Colbert) and July 26 Tr. at 444 (Inabinet). Williams of Stars & Stripes, Michael of Initiatives Plus, and Paparella of PCI all testified that the tactic of a circulator should be to frankly ask people if they support "slots" or gambling and, if not, to move on and not waste time trying to convince them otherwise. July 27 Tr. at 29, 282; July 28 Tr. at 337. The video tape submitted by Challenger DC Watch (Brizill) also shows circulators talking primarily about VLTs, slots, and gambling. Exhibit 63.

Circulators also received a brochure that described the proposed development project if Initiative 68 was approved and the benefits that the Initiative would "help create." Exhibits 5 and 23. In his training, Williams borrowed directly from the brochure, which the Board found to be a "legitimate promotional piece." Aug. 3 Tr. at 20; see Decision at 44-45.

B. Additional Measures To Assure Compliance with the Law.

To safeguard the integrity of the process, the Committee and PCI required petition circulators to provide appropriate identification proving age and D.C. residency. See Exhibit 53 (file of circulator identification and agreements); see also Exhibit 17 (Independent Contractor Agreement, which required the identification of the circulator's residence). The Committee also required circulators to sign a supplemental Declaration of Witness in which each circulator attests under penalty of perjury that he/she witnessed the signatures appended to the petition. Exhibit 18 (Declaration of Witness).

Circulators also received a handout entitled "Notice to Petition Circulators" that restated the governing law and reminded the circulators to witness signatures and not to falsely certify that they witnessed signatures. Letter from John Ray to the Board (July 6, 2004), Tab 5. The Notice to Petition Circulators was particularly pointed and unequivocal (emphasis in original):

YOU MUST PERSONALLY WITNESS, the signature of each person on the petitions you circulate. You cannot let your husband, wife, cousin, or friend circulate your petition while you take a break. You must actually see every person sign the sheet you circulate.

REMEMBER: These are requirements of law, and you must certify that you have complied with these requirements by signing each petition sheet you circulate. Our opponents will check every signature on our petitions to try to catch us in a mistake. This is what happened with the challenge to Mayor Williams' petitions - some of his petition circulators were not D.C. residents, and some circulators falsely certified that they witnessed signatures they did not. We can't let the same mistakes happen to us!

In addition, Stars & Stripes required its circulators to agree, among other things, that: "I must be present while information and signatures are obtained." Exhibit 17. Stars & Stripes also required its circulators to acknowledge that if "even one forgery was found," that circulator would "not be paid for any of my signatures." Exhibit 17.4

The petition collection system required the circulators to provide identification upon turning in petition sheets - so their signatures on the petition affidavits could be matched against signatures on their IDs. It also required a review of the petition sheets before paying circulators - the so-called "purging process" - to look for errors and any detectable signs of fraud or forgery. In several instances, petition sheets were discarded because they looked suspicious. Following the "purging process," each circulator's petitions were grouped and given a "batch sheet" indicating the name of the circulator and manager. July 27 Tr. at 88-90, 134, 363-430; July 26 Tr. at 61-62. The petitions were then copied and shipped to PCI in California for "quality assurance" to assess validity rates, accuracy, and ward distribution goals. July 27 Tr. at 425-27; July 28 Tr. 187, 310-311, 320. PCI had a staff of 26 in California, working double shifts to run daily validity checks on petition sheets turned in the night before. July 28 Tr. at 310.

C. Coordination and Supervision.

The overall circulating process at the various locations was overseen by the Chairman of the Committee, Mr. Alfonso. His field managers helped "manage the process" and "were the eyes and ears out in the field" to report back to Alfonso daily on circulation activities or issues. July 28 Tr. at 263-264. Alfonso also directed Robert Newell to coordinate between PCPs subcontractors and manage activities between all the subcontractor locations. July 28 Tr. at 209. Alfonso and the other Proponents met each night with Newell to discuss the daily activities. July 28 Tr. at 272. Paparella of PCI also was in daily contact with Grocholski and talked several times a day with all of his subcontractors to monitor their performance and assure that their operations were carried out properly. July 28 Tr. at 331.

Grocholski drove around the city to observe circulators in action, to give instructions to other coordinators, and to assist with the petition effort and the signature campaign in any way that [he could]." July 27 Tr. at 432. Because, as Paparella explained, the managers "were responsible to make sure that the circulators were working, producing signatures, complying with all the applicable laws, and making sure that they had all their paperwork properly done," July 28 Tr. at 311, Grocholski met each night with the managers to review the activities of the day. July 27 Tr. at 397.


Excluding the petition sheets that the Proponents withdrew or acknowledged contained some deficiency, the Proponents submitted 21,664 valid signatures, distributed throughout the city, and sufficient to meet the requirements for inclusion on the November ballot. Aug. 5 Tr. at 6; see Memorandum from Alice Miller to Board at 2 (August 5, 2004).

Addressing the numerous challenges to the petition, the Board first analyzed each of the challenges that contested specific signatures and/or petition sheets based on missing or illegible information. See D.C. Code § 1-1001.16(o).5 For example, the Board rejected 120114 challenged petition sheets due to an illegible circulator name. Decision at 19-20. The Board invalidated a handful of other sheets based on similar grounds, but also rejected many of those challenges. Id. at 19-25; 2834.

Excluding the signatures that the Board struck in connection with the challenges raised by Intervenes Drake, the Committee had 21,279 valid signatures, with ward distribution sufficient to qualify initiative 68 for inclusion on the November ballot. Aug. 5 Tr. at 6; Miller Memorandum at 3. The Board next turned to the Committee's petition circulation "process, examining the organizational structure of the professional companies assisting in the petition drive, their payments to non-resident professionals and resident circulators, and the various "categories" of resident circulators, who sometimes functioned as observers and witnesses for non-residents in addition to, or instead of, directly gathering signatures themselves. Decision at 25-27. The Board concluded that the use of resident circulators as witnesses to solicitation by nonresidents tainted the petition drive by "encourag[ing] a system in which the non-resident assistants were viewed by PCI and its affiliates as the 'experts' ... [or] the `primary' individuals." Id. at 27-28.

The Board also criticized the "environment" and "process" of the petition drive based on supposedly false advocacy from some of the training and promotional materials given to petition circulators. Discussing T-shirts briefly used by some circulators that bore the slogan "Sign Up! For Jobs, Schools, & Healthcare" and training that suggested circulators mention the Initiative's support for using VLT revenues for healthcare and education programs, id. at 37-39, the Board concluded that such statements by petition circulators regarding education or healthcare, whether made orally or as part of a T-shirt slogan, were false or misleading misrepresentations, because they expressed a "guarantee" of education and healthcare benefits. Id. at 3942. The Board concluded that such statements would be acceptable only if the circulators included a disclaimer noting that the City Council could choose to ignore the initiative's "strong recommendations" for the use of funds created from VLT operations.

Finally, the Board examined certain isolated alleged incidents of deliberate misinformation about the initiative and the alleged "lack of oversight" over the Stars & Stripes portion of the petition drive. The evidence of deliberate misinformation was taken from a handful of written complaints received by the Board about alleged misstatements made by petition circulators about the Initiative. The Board criticized the management and oversight by Stars & Stripes with respect to the petition drive, stating that it was improper for that company to (1) allow non-residents to recruit D.C. residents to circulate petitions without supervision from their managers, Decision at 48, (2) fail to study D.C. election laws sufficiently, id. at 45-46, and (3) not display the requisite "coordination" or management skills the Board believed necessary for managing a petition drive. Id. at 47-48.

Based on its critique of the "predominant" role of non-residents, its disapproval of the speech used in the petition drive, a number of identified instances of individual malfeasance, and its dissatisfaction with the process and oversight, particularly with respect to the subcontractor Stars & Stripes, the Board concluded that the part of the petition drive organized by Stars & Stripes had been "managed - from the top - in a manner that created an environment fraught with opportunities for abuse of process, system, and laws." Decision at 50. On that basis, the Board rejected all petition sheets signed by circulators who were "associated" with Stars & Stripes. Id. at 50-52.

The Board's decision to reject all the petitions circulated by individuals associated with Stars & Stripes reduced the total number of signatures from 21,279 to 14,687 - 2,912 short of the statutory minimum necessary to qualify for the November ballot. Aug. 5 Tr. at 8.


On appeal to the District of Columbia Court of Appeals, after briefing and oral argument, the court remanded the record 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). The Clarification Memorandum explained that the Board believed its findings with respect to wrongdoing by circulators and non-residents associated with Stars & Stripes were sufficient to support the result in this case "independent" of its concerns about the T-shirts and Mr. Williams' advice as to the most effective arguments for persuading potential supporters. Largely on the basis of the Clarification Memorandum, 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).



The Board should not assess any civil penalty against the Proponents or the Committee in this case. First, assessing civil penalties in the absence of any evidence of blameworthy conduct by the Proponents or the Committee would impermissibly burden constitutionally protected conduct and improperly discourage District voters from participating in the initiative process. Second, the Proponents and the Committee took reasonable steps to assure compliance with District law. Third, when the Proponents learned of improper conduct, they acted promptly to remedy the situation to the extent practicable under the circumstances. Fourth, while the evidence in this case shows that some number of individuals disregarded their obligations under the law and their contractual obligations to follow the law, there is no evidence and the Board did not find that the other several hundred participants did not do precisely what they were supposed to do in accordance with District law. Fifth, under the circumstances, the Proponents and the Committee could not, as a practical matter, identify the false certifications in advance of the July 6, 2004 submission to the Board.

A. The Board Should Not Assess Civil Penalties That Would Impermissibly Burden Constitutionally Protected Conduct.

Absent evidence that the Proponents or the Committee directed or approved improper conduct or that the Proponents or the Committee were guilty of other blameworthy conduct, assessing civil penalties would impermissibly burden constitutionally protected conduct and unreasonably discourage District of Columbia voters from participating in the initiative process as proponents or officers of a political committee. The prospect of the assessment of civil penalties, notwithstanding reasonable, good faith efforts to assure compliance with applicable law would discourage all but the most resolute or the most irresponsible potential proponents or committee officers. Unlike candidates for high public office, potential initiative proponents or committee officers cannot reasonably be expected to bear responsibility without fault.

The proponents of an initiative or officers of a political committee cannot reasonably be held to be insurers against improper conduct by independent contractors who participate in the signature gathering or other aspects of the effort. As in this case, literally hundreds of individuals may participate, some motivated by their support of the policy objective others motivated only by the desire to earn money. Prior to the campaign, the vast majority of the participants may be unknown to the proponents, the officers of a political committee, or to each other. After the campaign, each of them will go his own way -- on to another initiative campaign or back to his or her regular job. So long as the proponents or officers take reasonable good faith steps to assure that the campaign is properly run, they should not have to fear assessment of civil penalties.

In exercising its discretion to assess civil penalties, therefore, the Board should be careful not to assess penalties against proponents or committee officers who reasonably attempted to carry out their responsibilities in good faith. In this case, none of the conduct the Board found improper was directed or approved by the Proponents or the Committee. On the contrary, the evidence shows that the Proponents and the Committee took reasonable steps to assure compliance with District law and to remedy any improper conduct of which they became aware during the course of the campaign.

The fact that those efforts were not completely effective to prevent the false certification of signatures is no basis for assessing penalties against the Proponents or the Committee on the facts of this case.
Nor are civil penalties necessary in any sense to protect the integrity of the District of Columbia electoral process. The principal problem identified by the Board in this case was that presumptively legitimate signatures of District voters were not properly witnessed by District residents in some number of cases. Since the Board rejected all the petitions submitted by circulators associated with Stars & Stripes - not just the signatures submitted by those circulators as to whom there was reliable evidence of improper conduct - all the signatures that might not have been properly witnessed have been rejected. As a consequence, Initiative 68 failed to qualify for inclusion on the November, 2004 ballot. If warranted, criminal prosecution of District residents who falsely swore they had witnessed signatures remains an available option to address the most egregious cases of misconduct.

Further, supporters of Initiative 68 already have incurred substantial and completely unnecessary additional expense because of the false certification of signatures. Because of that conduct, the prospect for successful consideration of a video lottery terminal initiative in the District of Columbia has been seriously damaged, perhaps irretrievably. At a minimum, the effort has been made much more difficult and much more expensive because of the false certification of signatures.

B. The Proponents and the Committee Attempted to Comply with Applicable Laws.

Notwithstanding the extraordinarily thorough review of everything connected with Initiative 68, there is no evidence that the Proponents or the Committee directed or approved any of the improper conduct found by the Board in this case. See Decision at 3 ("the Board found no evidence in the context of these proceedings that the Proponents set out to intentionally flout the Districts's election laws, or that they encouraged Stars and Stripes to do so"). On the contrary, the evidence shows that the Proponents and the Committee took reasonably appropriate steps to assure that the campaign was conducted properly in accordance with applicable District of Columbia law. In other words, the false certifications occurred despite the best efforts of the Proponents and the Committee to assure that the campaign was conducted in compliance with District law.

None of the Proponents was in the business of gathering signatures for initiatives. Because of the delay caused by the litigation contesting the Board's conclusion that the initiative was an appropriate subject and the text of the Board's short summary, final approval of the initiative petition was delayed until July 1, 2004.

Consequently, the Proponents had only six days to collect more than 17,000 signatures to qualify for the November ballot. That proved to be an impossible task. See generally Aug. 3 Tr. at 5 (describing the effort as a "monumental task"); id. (noting that representatives of the circulation companies testified that they had never attempted to gather such a large number of signatures in such a short time).

The Proponents and the Committee recognized that if they were to have any hope of collecting the required signatures in just six days - over the July 4th holiday weekend -- they would need professional help and the effort would require the assistance of non-residents. Accordingly, the Committee hired PCI, a well-established and experienced petition circulation outfit that had managed successful initiative campaigns in the District of Columbia without incident in the past. As described above, PCI then hired experienced subcontractors to assist in the effort. In turn, the subcontractors hired experienced managers to participate in the effort.

Given the magnitude of the task, the participation of non-resident professionals was essential. The Board now has clarified that non-residents may participate in the circulation process. During the campaign there was some considerable uncertainty about the precise scope of the permissible role that nonresidents could play. Nonetheless, there was never any question about the role that DC residents were required to play: only DC residents could witness signatures and DC residents were required to witness all signatures.

Under the supervision of the Proponents, PCI and the subcontractors established reasonable procedures to assure that all of the circulators were properly trained and understood the requirements of District law. Whatever deficiencies there may have been in the training, Ross Williams testified that he went over the requirements of District law and emphasized the requirement that District residents had to witness each signature by reviewing the circulator's affidavit on the petition.

The "Circulator's Affidavit of Certification" on each of the petition sheets unambiguously stated the requirements of District law. Specifically, each District resident signing as a circulator swore or affirmed "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; and (4) that I am a resident of the District of Columbia and at least eighteen (18) years of age; (6) that the signatures on this petition were obtained [between specified dates] and (6) that I have been advised by the originator of Initiative Measure No. 68 of the law set forth in D.C. Official Code § 1-1001.16; 2001 Edition, and as such have not tendered any form of compensation to anyone in consideration of their signature; and (7) that I have not made, any false statements to the Board of Elections and Ethics regarding Initiative Measure No. 68; and (8) that I have not made any false statements to anyone whose signature is appended hereto regarding Initiative Measure No. 68." See also Notice to Petition Circulators, page 8, ante.

At the outset of the campaign, neither the Proponents nor the Committee had any reason to assume that any District resident would risk criminal prosecution for perjury for a few dollars per signature by falsely stating that he had witnessed signatures when that was not the case. In light of the clearly stated requirements of law, the Proponents reasonably presumed that each District resident would attempt to comply in good faith with the requirements as he committed to do when he was hired, no matter what he or she might have been told by any non-resident and whatever the position of the non-resident, if for no other reason than to avoid the prospect of criminal prosecution. Having taken steps to assure that all participants understood the legal requirements, the Proponents and the Committee could not reasonably be expected to follow each of the several hundred participants around the city to assure that each of them did what he was being paid to do and in accordance with applicable D.C. law.

C. The Proponents Responded Promptly to Address Problems.

During the course of the whirlwind 6-day campaign, the Proponents responded appropriately and promptly when allegations of potential improper conduct came to their attention. For example, in one instance, a batch of suspect petitions was reported to the General Counsel of the Board for further investigation and appropriate action. See July 26 Tr. at 64 or 58. Similarly, when the Proponents concluded that the T-shirts were inappropriate, they acted promptly to collect all the T-shirts and make sure the circulators did not wear them. When allegations of improper certification of signatures came to their attention, the Proponents met to determine whether the allegations were true, the extent of the problem, and what remedial action was called for. Finally, the memorandum from Clint Hyatt to "All Petitioners" specifically reiterated that "In order for our petitions to be valid, only DC residents can gather signatures" and reminded petitioners that "To ensure our success ... ALWAYS follow this rule." Exhibit 16 (emphasis in original).6

Given the pace of the whirlwind six-day campaign, however, it seems likely that much of the damage had been done by the time the Proponents became aware of the allegations of false certifications. Even if the July 2 Hyatt memorandum had been sufficient to stop any improper conduct, the Proponents could not practically check all the 56,060 signatures collected before they were turned in by the July 6 deadline.

D. The Vast Majority of the Several Hundred Participants Did What They Were Supposed to Do in Accordance with Applicable District Law.

There is no substantial evidence in the extensive record of this proceeding that the wrongdoing extended beyond the Stars & Stripes operation. The Board recognized that the circulators who operated from 1501 M Street proceeded in accordance with District law and the procedural guidance given by the Proponents, PCI and the Subcontractors. See, e.g., Aug. 3 Tr. at 15 ("Based on the testimony presented, the Board concluded that there were two distinct signature-gathering operations -- one conducted ... at 1501 M Street, N.W., and the other conducted out of certain hotel operations, most principally the Red Roof Inn ...."); id. at 15-16 ("The Board found that there was a striking contrast between the operation at 1501 M Street and the operation at the hotels, and most principally the Red Roof Inn....)." As the Board explained (Aug. 3 Tr. at 15-17):

The Board concluded that the 1501 operation ... was essentially comprised of D.C. residents, D.C. residents who circulated the petitions on their own, D.C. residents who were paid more than their counterparts who operated out of the hotel operations, and D.C. residents who, based on the testimony presented, appeared to be more carefully trained than their counterparts in the hotel operation.

One of the striking differences between the two operations at 1501 M Street and the Red Roof Inn and the other hotels was that the operation - the hotel operations appeared to be focused heavily on the use of assistants, non-resident assistants, in the signature-gathering process.

As explained above, however, the participation of non-residents was essential if the Proponents were to have any hope of meeting the deadline.

The wrongdoing found by the Board related almost exclusively to the Stars & Stripes operation at the Red Roof Inn. The evidence before the Board demonstrated that some number of circulators affiliated with the Stars & Stripes operation improperly signed petition sheets they had not witnessed. Although the evidence related to only a fraction of the 79 circulators associated with Stars & Stripes, the Board found and the court of appeals agreed that all of the Stars & Stripes petitions should be rejected. Nonetheless, there was no evidence that the vast majority of circulators affiliated with Stars & Stripes did not do precisely what they were supposed to do in accordance with District law, as the circulators at 1501 M Street did. In fact, the Board specifically found that two of the twelve Stars & Stripes circulators who testified at the hearing had complied with their responsibilities under District law. See Decision at 29 n. 28 (Diggs and Inabinet).

E. The False Certification Was Not Apparent on the Face of the Petitions.

In contrast to the fraudulent signatures identified in the Williams case, the false certifications at issue in this case were not evident on the face of the petitions.7 The Proponents here could not practically investigate all the petitions before submission to the Board to remove those that had been falsely certified by District residents. Only after hearing the witnesses did the potential scope and magnitude of the problem become evident.

As far as we can determine, the vast majority of the signatures submitted were legitimate. There were no obvious forgeries of the signatures of celebrities or television characters. At the hearings, there was clear evidence of only one forgery of a signatory. Decision at 35 (Robert Price). Andre Rempson testified that he copied two signatures out of the telephone book, but his testimony suggests that he may have done this after the petitions were submitted to the Board. The Board correctly concluded that the evidence of any so-called "signing party" was too vague to determine how widespread this activity may have been, if it occurred at all. Decision at 36.

Neither the Proponents nor the Committee can reasonably be held responsible for failing to identify the false certifications in advance of the submission on July 6, 2004. In summary, as the Board correctly perceived, the situation that existed here resulted principally from the fact that 17,699 signatures were being gathered within a six-day period, and it appeared from the evidence to the Board that because of the need to collect signatures quickly, many of the details that needed to be attended to were not attended to sufficiently or well." Aug. 3 Tr. at 25 (emphasis added). Although the Proponents and the Committee might have done some things better, there is absolutely no evidence of any deliberate wrongdoing by the Proponents or the Committee.


Although not evident at the outset of the campaign, in retrospect there are two important lessons that have been learned from the initial campaign in support of Initiative 68 and that will guide any future efforts. First, there is a real, non-negligible risk that individual participants will attempt to cut corners in an effort to earn a few dollars more, even in the face of potential criminal penalties and even though cutting corners will undermine the ultimate objective. The proponents of an initiative cannot presume that everyone will, in conformance with their contractual obligations, do what they are being paid to do and follow the law.

Second, especially where there are unusual time pressures, successful management of an initiative campaign requires rigorous procedures to assure that the rules and procedures adopted at the outset of a campaign by its managers are followed in the field. Checks and double checks are essential. Even if experienced professionals are hired, the proponents cannot prudently simply rely on their good faith and professionalism to get the job done right. To the extent possible, the proponents must insist that the people hired to manage the campaign adopt and implement follow up procedures satisfactory to the proponents to assure that the campaign is conducted properly in the field and not merely on paper.


For the foregoing reasons, the Board should dismiss the penalty proceeding and not assess any penalties against either the Proponents or the Committee.

George W. Jones, Jr.
Sidley Austin Wood LLP 
15 K Street, NW
Washington, D.C. 20005 
(202) 736-8158 (tel.) 
(202) 736-8711 (fax) 

Counsel for the Citizens Committee for the D.C. Video Lottery Terminal Initiative and Johnny Clinton Hyatt, Treasurer

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I hereby certify that a copy of the foregoing Statement in Mitigation of the Citizens Committee for the D.C. Video Lottery Terminal Initiative and Johnny Clinton Hyatt was served this 14t'' day of February, 2005 upon the following:


Kenneth J. McGhie, General Counsel D.C. Board of Elections and Ethics 441 4th Street, NW., Suite 270 Washington, D.C. 20001


Ronald L. Drake, Esq.
Attorney at Law
5 P Street, S.W.
Washington, D.C. 20024


Reverend Dean J. Snyder 
DC Against Slots
333 A Street, N.E.
Washington, D.C. 20002


Francis D. Carter 
Zuckerman Spaeder, LLP 
1201 Connecticut Avenue, N.W. Twelfth Floor
Washington, D.C. 20036-2638


Dorothy A. Brizill
Gary Imhoff 
DC Watch
1327 Girard Street, N.W. 
Washington, D.C. 20009-4915


Carol Colbeth
DC Against Slots 
208 Franklin Avenue 
Silver Spring, MD 20901

1. During the relevant period, Mr. Alfonso, Ms. Wilcher, and Ms. Gentry were the chairman, treasurer, and custodian of the books and records, respectively, of the Citizens Committee for the D.C. Video Lottery Terminal Initiative. For that reason, "Proponents" and the "Committee" have been used interchangeably, if imprecisely, throughout these proceedings. Mr. Alfonso, Ms. Wilcher, and Ms. Gentry resigned as officers of the Committee and as proponents of Initiative 68 near the end of 2004. Mr. Hyatt replaced Ms. Wilcher as the treasurer, and currently is the only officer of the Committee.

2. David Argo v. D.C. Board of Elections & Ethics ("BOEE"), Civil Action No. 4740-04, Transcript of Hearing (June 29, 2004) at 172-173 ("While I agree that the law does ... permit the initiative to contain a nonbinding policy statement, the law does not require that that policy statement be a part of the summary statement"; "[T]he board's responsibility is to prepare a true and impartial summary statement ... and I believe that [the final bullet point] creates prejudice in favor of the measure.").

3. Category 3 circulators included individuals who may be "shy" about approaching people or who get tired. July 27 Tr. at 302. Williams estimated that approximately 10% of his circulators fell into Category 3, but circulators changed categories daily. July 27 Tr. at 144-45.

4. The circulators' affidavit that was part of the petition also clearly provided a "NOTICE TO CIRCULATORS," warning circulators that "[a]ny person who shall tender any form of compensation to anyone in consideration of their signature upon any initiative or referendum petition; and/or make false statements or representation shall, upon conviction, thereof, be fined not more than $10,000 or be imprisoned for not more than one (1) year, or both."

5. The Board considered challenges in each of the following categories: (1) challenges to sheets which allegedly contained more than one name and address for the petition circulator, Decision at 20; (2) challenges to sheets on which the circulator's name, address, or signature was missing or incomplete or was alleged to have been altered, id. at 20-21, 23-24; (3) challenges to sheets which did not state the dates of circulation or the date on which the circulator's affidavit was signed, id. at 21-23; (4) challenges to sheets which allegedly contained "marks" for signatures without a supporting affidavit from the circulator, id. at 24-25; and (5) challenges to sheets for which there were specific allegations or testimony that materially false statements had been made on the circulator's affidavit (primarily involving testimony from a limited number of circulators that they were not personally present for the circulation of sheets for which they signed the supporting affidavits), id. at 28-34.

6. Mr. Hyatt's memorandum also incorrectly stated that "[n]on-residents must not participate in the signature-gathering process in any way"! The memorandum thus reflects the confusion concerning the appropriate role of non-residents that hampered the campaign throughout, it also clearly reflects the desire to have all the circulators comply with the clear requirement that only D.C. residents could witness signatures.

7. In Williams v. BOEE, the court of appeals explained that "[e]ven a cursory examination of petition sheets contained in the record reveals signatures casting doubt on the validity and accuracy of the affidavits signed by the Mayor's circulators.... Among the purported signatures are those of actors, television (or cartoon) characters, politicians, and sports figures - including Robert DeNiro, Wing Woo, Kelsey Grammer, Carroll O'Connor, Dudley Moore, Rosa Parks, George W., Tony Blair, Jack Kemp, Donald Rumsfeld, Kofi Annan, Martha Stewart, Stanley Marsh, George Allen, Brian Cox, Terre(a)nce Allen (listed twice), Ray Lewis, Joe Smith, and Reggie Lewis, to name just some." 804 A.2d at 818 n. 2.

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