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No. 06-CV-686
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS DOROTHY BRIZILL, ET AL., APPELLANTS, V. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, ET AL., APPELLEES. APPEAL FROM AN ORDER OF THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, CIVIL DIVISION BRIEF OF APPELLEE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICSKenneth J. McGhie, D.C. Bar No. 385313 Tern D. Stroud, D.C. Bar No. 465884* August 16, 2006 TABLE OF CONTENTSTABLE OF AUTHORITIES
CONCLUSION TABLE OF AUTHORITIESCasesCASCO Marina Dev., L.L. C. v. Dist. of Columbia Redev. Land Agency, 834 A.2d 77 (D.C. 2003)
U.S. Code Provisions15 U.S.C. § 1171
D.C. Code ProvisionsD.C. Code § 1-201.01 (2001) STATEMENT OF ISSUE(S) PRESENTED FOR REVIEWWhether an initiative measure that is consistent with federal law, does not appropriate funds, and does not facilitate an encroachment upon mayoral powers under the Home Rule Act is a proper subject of initiative in the District of Columbia? STATEMENT OF THE CASEPlaintiffs-Appellants Dorothy Brizill, Thelma Jones, and Anthony Muhammad (hereinafter "Brizill") filed an action in the D.C. Superior Court ("Superior Court") on May 22, 2006, asserting that the Defendant-Appellee District of Columbia Board of Elections and Ethics ("the Board") improperly accepted and processed the Video Lottery Terminal Initiative of 2006 ("Initiative Measure No. 69"). On May 24, 2006, Defendants-Appellees Barry Jerrels and the Citizens for the Video Lottery Terminal Initiative of 2006 ("Jerrels") moved to intervene and also moved to dismiss the complaint. On May 25, 2006, the Board moved to dismiss the complaint. On May 30, 2006, the Superior Court granted Jerrels' motion to intervene. On June 5, 2006, Brizill filed an amended opposition to the motions to dismiss.1 On June 6, 2006, Jerrels filed a reply to Brizill's amended opposition, and the Board filed its reply on the subsequent date. On June 8, 2006, the Superior Court granted the motions to dismiss. On June 12, 2006, Brizill filed a notice of appeal. On June 13, 2006, Brizill filed with this Court an emergency motion for a stay of the Superior Court's order pending appeal, which was followed on June 14, 2006 by an amended motion for stay. On June 14, 2006, the Board and Jerrels filed oppositions to Brizill's motion for stay. By order dated June 15, 2006, this Court denied Brizill's motion for stay, and established a briefing scheduled for the parties. STATEMENT OF FACTSOn April 10, 2006, Jerrels submitted Initiative Measure No. 692 to the Board.3 On April 12, 2006, the Board sent copies of Initiative Measure No. 69 and notice of the proper subject hearing concerning the same to, inter alia, all members of the D.C. Council, the Office of the D.C. Attorney General, and the Office of the General Counsel for the D.C. Council for comments on the validity of the measure. On April 18, 2006, the D.C. Attorney General sent correspondence to the Board indicating his opinion that "[Initiative Measure No. 69] is a proper subject for an initiative in the District." The General Counsel for the D.C. Council submitted no comments regarding the validity of the measure.4 On Wednesday, May 3, 2006, the Board conducted a proper subject hearing on Initiative Measure No. 69. At that time, the Board heard statements from interested parties, including Brizill, as to whether Initiative Measure No. 69 was a proper subject of initiative. After entertaining various objections to Initiative Measure No. 69 on proper subject grounds, the Board accepted the measure as a proper subject on that date. ARGUMENTI. STANDARD OF REVIEW"The standard by which [this Court] reviews the grant of a 12 (b)(6) motion to dismiss for failure to state a claim upon which relief can be granted is well settled: like the trial court, [it] must construe the complaint in the light most favorable to the plaintiff, while taking the facts alleged in the complaint as true. Cauman v. George Washington Univ., 630 A.2d 1104, 1005 (D.C. 1993). [This court] will affirm a dismissal only " `when "it appears, beyond doubt, that the plaintiff[] can prove no set of facts in support of [its] claim which would entitle it to relief.""' Id. (quoting Klahr v. District of Columbia, 576 A.2d 718, 721 (D.C. 1990) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)))." CASCO Marina Development, L.L.C. v. District of Columbia Redevelopment Land Agency, 834 A.2d 77, 81 (D.C. 2003). Even under this generous standard, this Court should conclude that the dismissal of Brizill's complaint was proper because District of Columbia law does not provide any basis upon which to grant to Brizill the relief that she seeks in this matter. II. INITIATIVE MEASURE NO. 69 IS A PROPER SUBJECT OF INITIATIVEVoters in the District of Columbia were granted the right of initiative with the passage of the "Initiative, Referendum and Recall Charter Amendments Act of 1977." While expansive, this right is not limitless in scope; the Board, as the governmental body charged with administering the initiative process, is not authorized to accept those measures that: 1) conflict with or seek to amend the D.C. Self-Government and Governmental Reorganization Act ("Home Rule Act ")5; 2) would appropriate funds; 3) would violate the U.S. constitution; 4) are not in compliance with D.C. Office of Campaign Finance filing requirements; 5) are not in the proper legislative form; 6) would unlawfully discriminate in violation of the D.C. Human Rights Act; or 7) would negate or limit a budgetary act of the D.C. council. See D.C. Code § 1-1001.16 (b)(1) (2001); D.C. Code § 1-204.101 (a) (2001). When confronted with cases involving the validity of initiative measures, courts in this jurisdiction "are required to construe the right of initiative liberally, and may impose on the right only those limitations expressed in the law or clear[ly] and compelling[ly] implied." Hessey v. Burden, 584 A.2d 1, 3 (D.C. 1990) ("Hessey 1"). See also Convention Ctr. Referendum Comm. v. Dist. of Columbia Bd. of Elections and Ethics, 441 A.2d, 889, 926 (D.C. 1981) ("Convention Center")(Gallagher, J., dissenting)(providing that the "charter grants of authority for the exercise of the initiative and referendum are to be liberally construed;" "[b]eing reservations of the power to the people, the court should strive to effect their purpose"). Brizill would have this Court ignore legislative history, as well as established precedent, and impose unintended limits upon the initiative right by declaring invalid a measure that, contrary to her assertions, neither appropriates funds nor conflicts with the Home Rule Act. As will be demonstrated in this brief, Initiative Measure No. 69 is a proper subject of initiative, and the Superior Court's decision to that effect should be affirmed. A. Initiative Measure No. 69 does not violate the Home Rule Act
Brizill argues that Initiative Measure No. 69 is not a proper subject of initiative because it violates the Home Rule Act by attempting to amend or overturn a federal law, specifically, the Johnson Act, 15 U.S.C. § 1171 et seq. Contrary to Brizill's assertions, Initiative Measure No. 69 does not amend or repeal the Johnson Act, but is consistent with that statute. The Johnson Act provides that "[i]t shall be unlawful knowingly to transport any gambling device to any place in a State or a possession of the United States from any place outside of such State or possession[.]" 15 U.S.C. § 1172(a). It exempts from its operation, however, the transportation of gambling devices into states where such gambling devices are specifically enumerated as lawful in a state statute; it provides that 15 U.S.C. § 1172
Id. The Johnson Act includes the District of Columbia in the definition of the term "state." See 15 U.S.C. § 1171 (b). Therefore, the Johnson Act makes clear that it permits the various states, as well as the District of Columbia, to enact laws that legalize gambling and permit the use of gambling devices. See Casino Ventures v. Stewart, 183 F.3d 307 (4th Cir. 1999)(noting that, with the Johnson Act, "Congress has ... delegate[ed] to the states significant authority to shape applicable federal law. For example it is a federal crime to `transport any gambling device to any place in a State.' ... But such activity is not a federal crime if a state so chooses: each state may change the content of this federal law simply by `enact[ing] a law providing for the exemption of such State from the provisions of [15 U.S.C. § 1172(a)]."). Initiative Measure No. 69 is precisely the kind of "state" statute that is contemplated by the exemption provision of the Johnson Act. It would amend the District's current gaming law to authorize the licensing of VLTs. If enacted, entities that are awarded licenses under Initiative Measure No. 69 would be authorized to acquire and own certain VLTs, and would further be allowed to install, maintain, and operate VLTs and conduct VLT operations in the District of Columbia. With the passage of Initiative Measure No. 69, there would be a District statute which legalizes and permits the use of a particular gambling device, and the District would thus be on par with other states that have legalized gambling and that are, therefore, exempt from the application of the Johnson Act.
Brizill argues that Initiative Measure No. 69's consistency with 15 U.S.C. § 1172 is of no import because another provision, 15 U.S.C. § 1175, specifically prohibits the manufacture, possession, and/or use of gambling devices in the District6, and neither the Council nor the electorate may enact legislation that would amend or repeal this provision. This argument reflects a misunderstanding of the Council's, and the electorate's, powers as granted by the Home Rule Act, as well as a failure to recognize the essentially "local" nature of the above-referenced provision of the Johnson Act that Brizill claims invalidates Initiative Measure No. 69. Contrary to Brizill's assertions, both the Council and the electorate are authorized to amend those federal laws that are limited in application to the District. 15 U.S.C. § 1175 is, in effect, such a law, and could therefore be amended by Initiative Measure No. 69, even though the Board maintains that the initiative measure does not purport to do so. "Absent express or implied limitation, the power of the electorate to act by initiative is coextensive with the power of the legislature to adopt legislative measures," Convention Center, 441 A.2d at 897 (D.C. 1981). Because the Home Rule Act precludes the D.C. Council from legislating in certain areas, the electorate, too, is barred from enacting laws in those areas. See D.C. Code § 1-206.02 (a) (2001). Thus, neither the D.C. Council nor the electorate may "[e]nact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States or which is not restricted in its application exclusively in or to the District[.]" D.C. Code § 1-206.02 (a)(3) (2001). Consequently, the Council and the electorate may enact acts that would amend or repeal congressional legislation that is concerned exclusively with the District.7 In fact, because Congress was the District's sole legislative body prior to the passage Home Rule Act, which formally established the Council, all laws enacted prior to that time that pertained exclusively to the District were congressionally-enacted, and the Council has made amendments to several of them. Two recent examples of Council legislation amending congressionally-enacted statutes are the Police and Firemen's Service Longevity Amendment Act of 20048, and the School Modernization Financing Act of 20069. Both of these acts are currently in effect, having survived the 30-day Congressional review period to which all legislation emanating from the District is subjected. See D.C. Code § 1-206.02 (c)(1) (2001). It is clear, then, that both the Council and the Congress view D.C. Code § 1-206.02 (a)(3) (2001) as permitting the former, in particular instances, to enact laws amending those that have been passed by the latter. This Court adheres to the same interpretation of D.C. Code § 1-206.02(a)(3) (2001) shared by the Council and Congress. In McConnell v. United States, 537 A.2d 211 (D.C. 1988), this Court observed that both the Council and the electorate may amend or "repeal a congressionally-enacted statute limited in application to the District of Columbia," but may not amend or "repeal a federal statute of broader application." Id. at 215. In light of its understanding of the import of D.C. Code § 1-206.02 (a)(3) (2001), this Court found that an initiative that attempted to repeal or amend the federal Narcotics Addicts Rehabilitation Act, an act applicable to federal drug offenders nationwide, was invalid. The Board recognizes that, in McConnell, this Court distinguished between the repeal of a "statute enacted by Congress, codified in the District of Columbia Code, and applicable ... only in the District[,]" which would likely be permissible, and the repeal of a "federal ... statute codified in the United States Code and applicable ... both in the District of Columbia and in other jurisdictions[,]" which would not be. Id. (citations omitted). At first glance, the Johnson Act might appear to fit precisely into the second category. However, it must be noted that the Johnson Act provision at issue, 15 U.S.C. § 1175, singles out only those jurisdictions that, unlike the states, are subject to a very particular brand of federal authority. Each of these jurisdictions - the District, federal possessions such as Guam and the United States Virgin Islands, and Indian country - is one over which the federal government maintains ultimate legislative authority. It is precisely this fact that dictates that the provision making it unlawful to use or possess certain gambling devices in the District is not national in its reach, but is essentially a local law, and can therefore properly be amended. Unlike the federal drug rehabilitation statute at issue in McConnell that was applicable to federal defendants in every jurisdiction in the United States, and therefore unsusceptible to amendment or repeal via initiative, 15 U.S.C. § 1175 is limited to those jurisdictions for whom the United States retains ultimate legislative authority. It is not a congressional provision that is national in scope, i.e., applicable in each and every United States jurisdiction, and its amendment or repeal by the electorate is therefore proper under the Home Rule Act, subject, of course, to Congress' retention of the ultimate legislative authority over the District. See D.C. Code § 1-201.02 (a) (2001).
Finally, it must be noted that courts in this jurisdiction have recognized that "[preelection constitutional] review [of proposed initiatives] is imprudent," Hessey v. Burden, 615 A.2d 562, 574 (D.C. 1997) ("Hessey III"), and that initiatives need not be "held constitutional by either the Board or the Superior Court before [they] may be classified as a `proper subject."' Id. It is further recognized that "the court's jurisdiction should be very sparingly exercised, and that in the great majority of cases the court in its discretion should decline to consider pre-election challenges to the constitutionality or legality of an initiative." Id.; see also Committee for Volun. Prayer v. Wimberly, 704 A.2d 1199 (D.C. 1997). This matter does not present the "extreme case" in which a court would be acting appropriately and efficiently by engaging in a pre-election constitutional review, such as one in which an initiative proposed to establish a particular religion as the District's official religion. Initiative Measure No. 69 is devoid of such an obvious and extreme affront to established constitutional principles. Accordingly, this Court should decline at this juncture to entertain Brizill's challenge to its legality.
Brizill mounts a "separation of powers" attack on the Board's acceptance of Initiative Measure No. 69, claiming that it usurps the licensing authority granted to the executive branch under the Home Rule Act.10 The unlawful encroachment comes, Brizill argues, as a result of the measure's requirement that "a slots casino license [be awarded] to the person who owns or controls lots that are specified [therein]." Appellant's Brief at 18. Both Brizill and the Superior Court interpret Initiative Measure No. 69 to mean that the Lottery Board is required to issue a temporary initial license to the entity that meets particular requirements or standards: the submission of an application demonstrating that the entity is not disqualified from being a licensee and that the entity possesses a more than fifty percent interest in the property that is eligible to become the site housing the video lottery terminal facility established by the measure.11 While the Superior Court was ultimately correct in ruling that Initiative Measure No. 69's licensing scheme did not violate separation of powers principles and thereby render Initiative Measure No. 69 invalid, both that court and Brizill mistakenly interpret the measure as requiring that a temporary initial license be granted. The Superior Court cites Section 5(d) of Initiative Measure No. 69 and states that while that provision "contemplates that the Board may deny a temporary license if it finds that no person satisfies the criteria, that scenario is extremely remote given that [Initiative Measure No. 69] presumably would not be worded as it is unless a person intended to satisfy the unique criteria specified in the proposal." Appendix 1 at 11. However, this provision actually addresses the awarding of the initial license as opposed to the temporary initial license. It is Section 4 of Initiative Measure No. 69 that speaks to the granting of the temporary initial license, and that section makes clear that the Lottery Board may either grant or deny an entity's application for a temporary initial license.12 Moreover, as the Superior Court correctly noted, the question that must be resolved as a result of the. particular separation of powers challenge raised by Brizill is whether or not Initiative Measure No. 69 is legislative or administrative in nature. See Convention Center, 441 A.2d at 907 ("[A]n initiative cannot extend to administrative matters.") Whether or not an initiative is legislative or administrative depends upon "whether the proposition is one to make new law or to execute law already in existence." Id. at 908. Measures of the former characteristic are legislative, and therefore appropriate, while those that "address merely administrative concerns or impermissibly interfere with the execution of existing law" are administrative and inappropriate. Id. (emphasis added). Initiative Measure No. 69 neither addresses merely administrative concerns nor impermissibly interferes with the execution of existing law. Initiative Measure No. 69 constitutes a new law that would expand the District's lottery to include VLTs. It further establishes the standards or criteria that must be met in order for entities to acquire the licenses necessary to acquire, own, install, maintain, and operate these VLTs. It is not unusual - nor is it unlawful - for legislative acts, including initiative measures, to establish standards for the acquisition of licenses. In fact, a previous initiative measure concerning lottery, the Law to Legalize Lotteries, Daily Numbers Games, and Bingo and Raffles for Charitable Purposes in the District of Columbia ("Initiative Measure No. 6") did exactly that. Section 2-2523 of Initiative Measure No. 6 prescribed that
The standards for licensing as set forth in Initiative Measure No. 6 clearly establish a class of entities to which licenses to conduct bingo and raffles in the District may be issued, and necessarily exclude those entities that do not meet them. There is no significant difference, for purposes of the issue at hand, between those standards and the ones outlined for the issuance of the temporary initial license in Initiative Measure No. 69. It may be said in truth that the class created by the standards in Initiative Measure No. 69 is narrower than the one established by Initiative Measure No. 6, but this fact does not necessitate a finding that the former measure is primarily administrative in nature and, therefore, unacceptable. In Hessey v. Burden, 584 A.2d 1 (D.C. 1990), this Court resolved the question of whether or not an initiative that created an administrative agency with the authority to appeal .tax assessments by the Mayor impermissibly infringed upon the Mayor's responsibility, under the Home Rule Act, for the assessment of taxable property and accordingly an improper subject of initiative. In doing so, this Court engaged in separation of powers analysis, and noted that "the question [of whether a violation of the separation of powers principle has occurred] was always whether a particular measure impermissibly undermine[s]' the powers of the Executive Branch, or disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions[.]" Id. at 5 (citations omitted). Initiative Measure No. 69 does not undermine the Mayor's licensing authority; he is still authorized to grant licenses - via the Lottery Board -- according to the standards specified in that measure, which have appropriately been established by its proponent. The fact that those standards are likely stricter than most licensing criteria does not mean that Initiative Measure No. 69 unlawfully upsets the balance between the coordinate branches.
While the citizens of the District may, through the initiative process, enact authorizing legislation and influence the legislative priorities of the Council, they may not intrude upon the responsibilities of the Council to manage the finances of the District by enacting an appropriation. This consequence was the intended result of the inclusion of the "law appropriating funds" exception to the right of initiative granted to the District's electorate through the "Initiative, Referendum and Recall Charter Amendments Act of 1977."14 This jurisdiction has had several opportunities to consider the impact of the "laws appropriating funds" exception to the District's initiative right. In the first case involving this issue, this Court noted that the Council adopted the exception out of a concern that "the electorate not use the initiative to launch the appropriations process." Convention Center, 441 A.2d at 912 (D.C. 1981). This Court fully recognized that the Council intended that the initiative right be used as a means by which the electorate could authorize substantive programs, but that it did not intend for it to also confer the authority to require the Council to seek funding for such programs. Accordingly, this Court concluded that the exception serves to prohibit "the electorate from using the initiative to: 1) adopt a budget request act or make some other affirmative effort to appropriate funds[.]" Id. at 913-914 (emphasis added). This Court also concluded, however, that the exception was not intended to bar "initiatives that would authorize (but not fund) a new project, ... or prohibit future budget requests, id. at 893, and that it did "not appear to proscribe initiatives with a prospective fiscal effect only." Id. at 915. In Hessey v. Board of Elections and Ethics, 601 A.2d 3 (D.C. 1991) ("Hessey If'), this Court again undertook to clarify the limitation on the electorate's right to propose measures. After an exhaustive review of what that court called D.C.'s "unique" budgetary process and financial management policies, it held that a law which appropriates funds is one which allocates revenues. See id. at 19. In so doing, this Court recognized that, to the extent that the District's elected officials engage in the appropriations process, they are engaging in "the discretionary process by which revenues are identified and allocated among competing programs and activities[.]" Id. Concluding that it was this process from which the drafters of the exception sought to exclude the electorate, this Court held that "a measure which would intrude upon the discretion of the Council to allocate District government revenues in the budget process is not a proper subject of initiative." Id. The question that this Court must decide, then, is whether or not Initiative Measure No. 69 affirmatively seeks to interfere with or limit the authority of the District's elected officials to identify and allocate revenues, and otherwise act as the guarantors of responsible fiscal management in the District. The Board argues that it does not. Brizill contends that Initiative Measure No. 69 is a law appropriating funds because "[it] imposes costs and expenses on the District of Columbia and the Lottery Board [, because the] duties mandated, required, and imposed by this initiative could clearly not be accomplished by the Lottery Board with its present staff, expertise, equipment, and resources." Appellant's Brief at 13. Initiative Measure No. 69 in no way imposes costs on either the District or the Lottery Board. Instead, it merely proposes a particular substantive program and leaves to those responsible for managing the District's financial resources the task of deciding whether or not to fund it. It is the case that the substantive program established by Initiative Measure No. 69 would, if passed, prescribe specific duties for the Lottery Board, but the District's electorate is authorized to establish such programs. This Court recognized as much through the use of its language in Hessey II, when it discussed the legislative history of the "laws appropriating funds" provision, and noted that those involved with the passage of the provision intended to "[d]istinguish[] between the right by initiative to authorize the establishment of a new office with specific duties and the authorization of appropriations for the office to carry out its duties[.]" Hessey II, 601 A.2d at 12 (emphasis added). The Court noted Councilmember Barry's acknowledgment that the citizens could use the initiative process to create an Office of Latino Affairs - one that would presumably have specific duties to perform - but could not also fund it. Thus, both the legislative history of the "law appropriating funds" provision and cases which have construed the same indicate that Initiative Measure No. 69 does not run afoul of that express limitation on the right of initiative. Brizill looks to District of Columbia Board of Elections and Ethics v. District of Columbia, $66 A.2d 788 (D.C. 2005)("District II'), as support for her position. In that case, this Court affirmed the decision of the Superior Court to invalidate a measure containing mandatory language that would require courts to order drug treatment instead of incarceration for specific offenders. Brizill maintains that the measure here should be struck down as well because it contains mandatory language that would prescribe specific duties for the Lottery Board. Brizill asserts that the fact that the measure in District II imposed duties upon the courts as opposed to an entity such as the Lottery Board is of no consequence, but she is mistaken. As this Court noted in District II, the mandatory language in the measure at issue there
Id. at 796. The District II court determined that, in the absence of funding to create and sustain the drug treatment called for by the orders mandated by the measure at issue there, the courts would be required to issue pursuant to the drug treatment measure, the courts would be placed in a precarious position in which their "role in sentencing would become merely advisory and ... would lose the judicial power to enforce [their] orders." Id. at 796, n. 13 (citations omitted). Given this specific circumstance involving the role of the courts, the court found no way to interpret the drug treatment measure at issue as not compelling an appropriation of funds. That situation is not presented here. The Lottery Board is not a court that would find itself being forced to choose between noncompliance with the mandates of a measure and issuing hollow orders in the event that the Council did not appropriate funds to substantiate those orders. As the District of Columbia Attorney General recognized,
Appendix 7. Brizill would have this Court believe that there is no important difference between mandatory language requiring courts to issue particular orders, and mandatory language prescribing that an agency perform specific duties, but the significance of this distinction can not be stressed enough. In light of District II and Hessey II, it may well be the case that initiatives that either permit or mandate court orders that carry a fiscal impact are not permitted. Hessey II overturned District of Columbia Bd. Of Elections & Ethics v. District of Columbia, 520 A.2d 671 (D.C. 1986) ("District 1"), in which this Court held that an initiative creating an entitlement, enforceable by a private right of action, to a certain type of overnight shelter was permissible. The Hessey II court found that such an initiative does constitute a law appropriating funds because the "interference with the Council's allocation power results from the fact that by obtaining a money judgment against the District government, a litigant would force the Council to allocate funds to pay the judgment."15 Hessey II, 601 A. 2d at 20 n.34. In both cases where the District saw fit to sue the Board on "law appropriating funds" grounds, the initiative measures at issue dictated that courts were either able or required to impose judgments or orders that would clearly have fiscal impacts. Again, that is simply not true of this case. To buttress her claim that Initiative Measure No. 69 appropriates funds, Brizill claims that the letter sent to the Board by the General Counsel and the Associate General Counsel of the Office of the Chief Financial Officer regarding Initiative Measure No. 69 "inform[ed] [the Board] that [the measure] would impose costs on [the Lottery Board] that would amount to an appropriation of funds." This is a blatant misrepresentation of that correspondence16, which actually stated that Initiative Measure No. 69 "if passed, would establish a regulatory scheme under which [the Lottery Board] would be mandated to assume additional regulatory functions," and that "[t]here are costs, as yet undefined, inherently associated with undertaking such additional regulatory functions." Appendix 4. The authors of the correspondence merely asked that the Board "consider whether the additional regulatory costs mandated by the Initiative constitute an appropriation or allocation of funds[]"; they did not in any way conclude that Initiative Measure No. 69 did, in fact, appropriate funds. At any rate, it appears that what the representatives of the Office of the Chief Financial Officer are really concerned with, judging from their correspondence is the fiscal impact that Initiative Measure No. 69 could have if enacted. To be sure, Initiative Measure No. 69, if enacted, may very well have a prospective fiscal impact. If so, this characteristic puts this measure in the company of several others which have been enacted since the right of initiative was granted to the District's electorate in 1978. More importantly, this feature does not render it an improper subject for initiative. The legislative history of the "law appropriating funds" provision makes clear that initiative measures that have prospective fiscal impacts were not intended to be excluded from the right of initiative. The following exchange between several councilmembers in office at the time the provision was under consideration illustrates this point:
District I, 520 A.2d at 674-75 (citing Council of the District of Columbia, Eighth Legislative Meeting, Council Period Two, First Sess. 18-13 (April 5, 1977)). Moreover, and as noted above, Convention Center instructs that the "law appropriating funds" exception was not intended to bar measures such as Initiative Measure No. 69 - measures that "would authorize (but not fund) a new project," Convention Center, 441 A.2d at 893, and that may have " a prospective fiscal effect only." Convention Center, 441 A.2d at 915. CONCLUSIONFor all of the foregoing reasons, the order of the Superior Court declaring that the Board properly accepted and processed Initiative Measure No. 69 should be affirmed. August 16, 2006 Respectfully
submitted, Terri Stroud, D.C. Bar No. 465884 CERTIFICATE OF SERVICEI hereby certify that on August 16, 2006, copies of the foregoing Appellee's Brief were delivered by hand to:
1. On May 26, 2006, Brizill filed an opposition to the Board's motion to dismiss that did not address any of the arguments set forth by the Board in its motion to dismiss. By order dated May 30, 2006, the Superior Court directed Brizill to file any additional opposition by no later than June 5, 2006. 2. Initiative Measure No. 69 is a measure that, if enacted would expand the lottery by allowing Video Lottery Terminals ("VLTs") in the District of Columbia; establish the initial VLT facility at the intersection of Martin Luther King, Jr. Avenue and Good Hope Road in the historic Anacostia section of Ward Eight; limit the granting of the temporary initial license to operate the initial VLT facility to an applicant possessing a more than fifty percent interest in the Anacostia site; and create a procedure to permit additional VLT facilities to be established throughout the District of Columbia. 3. Jerrels had previously submitted another draft of Initiative Measure No. 69. Jerrels withdrew this version when it was brought to his attention that the General Counsel for the D.C. Council had concerns that the measure contained provisions that would render the measure a "law appropriating funds" in violation of District law governing initiatives. The current version of Initiative Measure No. 69 no longer contains the provisions of the original measure that were found to potentially represent violations of initiative law. 4. See note 2, supra. 5. The D.C. Home Rule Act is codified in the D.C. Code at D.C. Code § 1-201.01 (2001) et seq. 6. 15 U.S.C. § 1175 provides that "[i]t shall be unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device in the District of Columbia, in any possession of the United States, within Indian country as defined in section 1151 of title 18 or within the special maritime and territorial jurisdiction of the United States as defined in section 7 of title 18, including on a vessel documented under chapter 121 of title 46 or documented under the laws of a foreign country." 7. This interpretation of D.C. Code § 1-206.02 (a)(3) (2001) is supported by this Court's determination in District of Columbia v. Greater Washington Central Labor Council, 442 A.2d 110 (D.C. 1982), that "Congress intended in [D.C, Code § 1-206.02(a)(3)] to withhold from local officials the authority to affect or to control decisions made by federal officials in administering federal laws that are national in scope as opposed to laws that relate solely to the District of Columbia." Id. at 116. 8. This act amended the District of Columbia Police and Firemen's Salary Act of 1958 (72 Stat. 484). 9. This act amended the District of Columbia Deed Recordation Tax Act (76 Stat. 12). 10. The Board is prohibited from accepting initiative measures that, inter alia, conflict with the terms of the District's charter as contained in the Home Rule Act. See D.C. Code § 1-1001.16 (b)(1) (2001) ("Upon receipt of each proposed initiative or referendum measure, the Board shall refuse to accept the measure if the Board finds that it is not a proper subject of initiative ... under the terms of title IV of the District of Columbia Home Rule Act.") Although Brizill contends that Initiative Measure No. 69 is unlawful "because it impinges upon and usurps what are mayoral powers under the Home Rule Act," Appellant's Brief at 18, she has yet to identify the provision of the District's charter with which Initiative Measure No. 69 conflicts. 11. See Appellant's Brief at 20 ("[The Superior Court] agreed with Brizill ... that the initiative does require the awarding of a [temporary initial license] to the person described in footnote 11 [of the Superior Court's order issued June 8, 2006]." 12. See Appendix 14 at § 4(c) ("The Board shall issue a decision granting or denying a Person's application for the Temporary Initial License within fourteen (14) days of the Board's receipt of the application.") 13. This provision of Initiative Measure No. 6 is codified at D.C. Code § 3-123 (a),(b) (2001) in virtually the same form. 14. The exception is codified at D.C. Code § 1-204.101 (2001), which provides that "the electors of the District of Columbia may propose laws (except laws appropriating funds)[.]" 15. While the Hessey II court focused on the fact that monies would have to be allocated to pay any judgments that resulted from the failure to provide shelter, members of the court in the 1986 case recognized that the provision was problematic primarily because it "include[d] the mechanism of court judgments to obtain funding to carry out its purposes." District I, supra 520 A.2d at 677 (D.C. 1986) (Nebeker, J., writing separate opinion in favor of granting petition for rehearing en banc). The inclusion of this provision, then, was viewed as a means by which to force the Council to appropriate funds for the program at issue. 16. While the Board focuses here on the correspondence from the Office of the Chief Financial Officer, it is actually the case that none of the materials referred to by Brizill in 133 state that Initiative Measure No. 69 would impose costs that would amount to an appropriation of funds. |
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