APPENDIX A, District of Columbia Board of Elections and Ethics, BOEE Order No. 96-03, In Re: "Abolition of the Control Board as an Entity of the District of Columbia Act of 1996" Proposed Initiative

APPENDIX B, Operating Budget for the DC Lottery and Charitable Games Control Board, FY 2007

TABLE OF AUTHORITIES

Cases

Biodiversity Associates v. Gables, 357 F.3d 1152 (10th Cir. 2004), cert. Denied, 543 U.S. 817 (2004)
*District of Columbia v. Greater Washington Central Labor Council, 442 A.2d (1983)
*District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005)
Hessey v. Board of Elections & Ethics, 601 A.2d 3
*McConnel v. United States, 537 A.2d (D.C. 1988)
U.S. v. Two Hollycrane Slot Machines, C.C.Mass. 1955, 136 F.Supp.550
United States v. 46 Gambling Devices (1956 DC Md) 138 F Supp 896

Laws

D.C. Code §§1-206.01 - 1-206.02 (the Home Rule Act, Sec. 601-602)
D.C. Code §1-1001.16(b)(1), 3 DCMR 1001.3
15 USC 1171-1178 (the Johnson Act)
25 U.S.C. §2701, et seq., (the Indian Gaming Regulatory Act)
U.S. Constitution. Article I, Section 8, Clause 17

Agency Order

*District of Columbia Board of Elections and Ethics, BOEE Order No. 96-03 In Re: "Abolition of the Control Board as an Entity of the District of Columbia Act of 1996" Proposed Initiative

STATEMENT OF ISSUES

1. Does the District of Columbia City Council, or do the voters of the District through an initiative, have the power and authority to overturn, amend, or repeal a federal law, passed by the Congress of the United States and codified in the U.S. Code?

2. Is an initiative a proper subject for an initiative if it violates the U.S. Constitution or is contrary to the Home Rule Act?

3. Can an initiative establish a government program and place mandatory obligations on District government departments and agencies without conditioning the establishment of those programs and obligations on funding that would be authorized by the City Council?

4. Can an initiative usurp the executive powers of the Mayor by mandating that a license be granted to a specific individual entity, or must initiatives, like laws of the District of Columbia City Council, be limited to legislative, rather than executive, matters?

ARGUMENT

5. In our reply brief, Brizill, Jones, and Muhammad adopt and incorporate the arguments made in our appeal brief of July 17, 2006.

AN INITIATIVE IN THE DISTRICT OF COLUMBIA CANNOT OVERTURN A FEDERAL LAW

6. As Brizill, Jones, and Muhammad argued in our brief to this court on July 17, 2006, the Johnson Act (15 USC 1171-1178), a federal law regulating gambling devices, preempts any attempt to legalize slot machines or any slot-like gambling devices in the District of Columbia through local law. Three sections of the Johnson Act have been raised in previous briefs: Section 1171, "Definitions," defines terms. It defines the term "state" to include the District of Columbia; Section 1172, which prohibits the transportation of gambling devices, but which allows states to exempt themselves from this provision — and this provision only — of the act; and Section 1175, which prohibits gambling devices entirely in the District of Columbia and other specified territories and which does not allow the localities covered under it to exempt themselves.

7. The BOEE and Jerrels, in their response briefs, rely upon 15 U.S.C. §1172(a), the section of the Johnson Act that makes it illegal to transport gambling devices. That section of the Johnson Act relates only to the transportation of gambling devices, and it sets forth the general rule that makes the transportation of gambling devices illegal except where a state "has enacted a law providing for the exemption of such State from the provisions of this section. . . " (emphasis added). Jerrels, in his response brief, details the legislative history of the Johnson Act, the 1950 debates on its passage, and the 1962 revisions to the Act that included the District of Columbia as a state for the purposes of Section 1172(a) of the Act. This history is interesting, but the argument is irrelevant. If that section were the only provision in the Johnson Act that applied to the District of Columbia, Brizill, et al., have agreed from the beginning that the Johnson Act itself would give the City Council or an initiative the ability to pass a law exempting itself from the provisions in this section.

8. However, 15 U.S.C. §1172(a) states the "General Rule" regarding the transportation of gambling devices, and it applies only to the transportation of those devices. Another section, 15 U.S.C. §1175, states the exceptions to the General Rule. This section applies specifically to the District of Columbia, possessions of the United States, any "Indian country as defined in section 1151 of Title 18," the maritime and territorial jurisdictions of the United States, and certain vessels. With regard to the District of Columbia, this section is much broader than the General Rule of 15 U.S.C. §1172(a). It does not forbid just the transportation of gambling devices; it makes it "unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device" in the District.

9. The history of the Johnson Act shows that 15 U.S.C. §1175(a), if it is to be amended, must be amended by Congress. Gambling devices were allowed in Indian country (if gambling is conducted under a tribal-state compact that is entered into by a state in which such devices are legal) by the Indian Gaming Regulatory Act, 25 U.S.C. §2701, et seq., which was passed by Congress in 1988. If gambling devices were to be legalized in the District of Columbia, Guam, or any other locations mentioned in 15 U.S.C. §1175(a), it would have to be done by Congress’ passing a similar federal law. Jerrels submitted voluminous documents relating to the passage of the Johnson Act as an appendix to his response brief, including three selections from the Congressional Record in 1950 detailing debate over the Johnson Act, two records of the House of Representatives’ hearings on the Johnson Act in 1950 and on the amendments to that Act in 1962, and two House of Representatives’ committee reports on the Johnson Act in 1950 and on its amendment in 1962. In none of these documents is there any indication that the territories covered by 15 U.S.C. §1175(a) can exempt themselves from its provisions without the action of Congress. If there were even a hint that they could, Jerrels would have highlighted it in his brief.

10. However, the BOEE and Jerrels also assert that if Congress passes federal legislation, codified within the U.S. Code, that applies solely or specifically to the District of Columbia, such as §1175(a), that legislation can be overturned by the City Council of the District of Columbia, and thus by an initiative. Only federal legislation that applies to the entire nation, they argue, is immune to the power of the City Council to overrule Congressional legislation that applies to the District of Columbia. They base this assertion on District of Columbia v. Greater Washington Central Labor Council, 442 A.2d (1983) and McConnel v. United States, 537 A.2d 211,214 (D.C. 1988).

11. Brizill, the BOEE, and Jerrels have fully presented their varying interpretations of the provision of the Home Rule Act, Sec. 602(a)(3) (D.C. Code §1-206.01), and these positions do not need to be reargued. However, it has not been clarified what "national in scope" meant when the Court used it in Central Labor Council. BOEE and Jerrels argue that the Home Rule Act gave the District of Columbia the power to overturn, amend, or repeal any provision of the U.S. Code that applies specifically to the District. However, Jerrels makes a concession about DC v. Greater Washington Central Labor Council that is key — that the case applied to a law that, while passed by Congress, was codified as a provision of the D.C. Code (Jerrels response brief at 11). Brizill has always acknowledged that the D.C. City Council, and thus the voters through an initiative, have the power and authority to amend the D.C. Code, including provisions in that code that were passed by the U.S. Congress prior to Home Rule.

12. It defies belief that Congress would offhandedly subordinate its legislative power to the City Council of the District of Columbia, and grant to the City Council the startling power to overturn federal laws — a power that no other state, city, or locality has been given. If Congress had intended to do so, it would have been so momentous that it have done so clearly and explicitly, and not in an ambiguous section of the Home Rule Act that enumerates restrictions upon the power of the Council. But Central Labor Council does not have to be read as making a distinction between federal laws, provisions of the U.S. Code that are national in scope and those that are specific to the District of Columbia and therefore local in scope. A better reading of the distinction made by Central Labor Council allows this Court to maintain the Constitutional structure of our government and affirm the supremacy of Congress and federal laws over the local legislature without, as Jerrels contends, requiring it to overturn the decision made in that case. The correct distinction is between laws that are local in scope because they are codified in the D.C. Code and laws that are national in scope because they are codified in the U.S. Code. The D.C. City Council and its voters through initiative have the power and authority to overturn, amend, or repeal laws that have been codified in the D.C. Code, even if they were originally passed by Congress, but they do not have the power to overturn laws referring to the District of Columbia that were passed by Congress and codified in the U.S. Code. Brizill cited numerous court cases in support of that contention; the briefest, clearest, and least ambiguous statement of the precept was in Hessey v. Board of Elections & Ethics, 601 A.2d 3, 16: "Neither the Council nor the electors of the District of Columbia can overrule acts of Congress."

13. If the Court were to adopt the distinction proposed by the BOEE and Jerrels, it would lead to tremendous Constitutional questions and practical problems. In our appeal brief, we said that, "If the lower court ruling were to be affirmed by this court, the consequences would be staggering. For example, the City Council or the voters through initiative could repeal the Congressional prohibition on the use of District funds and taxpayer dollars to lobby for statehood; the limitation on building heights in the District; the prohibition against imposing a commuter tax; the federal legislation that established school vouchers in the District of Columbia; the Congressional prohibition against District funding of needle exchange programs; the Congressional legislation that established the Control Board, the Office of the Chief Financial Officer, and the Office of the Inspector General; and a host of federal budget riders that have been adopted by Congress over the years. If this court were to uphold the lower court’s ruling, then the U.S. Circuit Court of Appeals decided Marijuana Policy Project wrongly, because the initiative had the power to simply overturn the Barr Amendment, a rider to the District of Columbia Appropriations Act that was purely local and not national in scope." (Appellants’ brief at 9-10)

14. The BOEE, in its response brief, does not address what the consequences would be of this Court’s holding that Congress’ legislative powers are subordinate to those of the DC City Council with regard to federal legislation concerning the District of Columbia. By implication, the BOEE accepts that these are the results of its logic in this case. However, in his response brief, Jerrels invents an argument that would limit the effect of his interpretation to federal legislation in the U.S. Code that was passed before the passage of the Home Rule Act, but that would not apply itto federal legislation that was passed subsequently (Jerrels response brief at 11). Jerrels is unable to cite a single authority for this rule. If the BOEE’s and Jerrels’ arguments with regards to the DC City Council’s power to overturn federal laws were correct, there would be no basis in law to limit the City Council’s power to federal laws passed prior to the Home Rule Act; this argument and limitation are invented purely to escape the consequences of its logic.

15. The Board of Elections and Ethics has previously addressed the issue of whether a local voter initiative that attempts to overturn a federal law is a proper subject for an initiative. It has ruled unequivocally and persuasively, contrary to its argument in this case, that a voter initiative cannot overturn or repeal a federal law, and that an initiative that attempts to do so cannot be a proper subject for an initiative. In 1996, the "Abolition of the Control Board as an Entity of the District of Columbia Government Act of 1996" initiative was proposed. Coincidentally, Brizill testified at the BOEE hearing on the issue of whether that initiative was a proper subject for an initiative. She argued that it was not a "proper subject" because it sought to overturn a federal law, and that it was therefore unconstitutional and violated the Home Rule Act. The Board adopted her arguments and prevailing case authority, and on May 9, 1996, BOEE Chairman Benjamin F. Wilson issued a tightly reasoned and definitive order [Appendix A] rejecting the initiative. The order was not appealed by the initiative’s proponent. Brief excerpts from the Board’s order summarize its conclusions of fact and law:

The Board finds that the electorate does not have the power to overturn an act of Congress. [At 6]

It is clear that the proposed initiative measure is contrary to the U.S. Constitution and the Self-Government Act of the District of Columbia. The Constitution provides in unequivocal terms that Congress is granted the ultimate legislative authority over the District of Columbia. Clearly, the people by initiative cannot alter what has been mandated by the U.S. Constitution. Further, the Self-Government Act restricts the Council from certain areas of legislation. Congress has been granted a reservation of authority over the District of Columbia and the Council is restricted from acting contrary to its authority granted in the Charter. [At 7]

There is no provision within the initiative process which authorizes the electorate to override the constitutionally mandated ability of Congress to exercise its ultimate legislative authority over the District of Columbia. This power, as previously stated, was granted by Article I, Section 8, Clause 17 of the U.S. Constitution and it incorporated in the D.C. Code §1-201(a) which states:

"Subject to the retention by Congress of the ultimate legislative authority over the nation’s capitol granted by article I, §8, of the Constitution, the intent of Congress is to delegate certain legislative powers to the government of the District of Columbia. . ." (Emphasis added)

This is a hurdle that the Board cannot overcome as it relates to this or any proposed initiative. [At 8]

The Board’s reasoning was correct with regard to the "Abolition of the Control Board as an Entity of the District of Columbia Government Act of 1996" initiative. The legal principles and authorities that it cited in its order rejecting that initiative remain valid, and they should have led to a decision to reject the current slots initiative.

THE INITIATIVE APPROPRIATES FUNDS

16. The BOEE should have rejected the proposed initiative because it is a "law appropriating funds," which is not a proper subject of an initiative under D.C. Law (D.C. Code §1-1001.16(b)(1), 3 DCMR 1001.3). In our brief (Brizill appeal at 12), we detailed the many mandatory regulatory duties and programs that the initiative places upon the Lottery Board of the District of Columbia. Contrary to what the BOEE and Jerrels argue, the initiative does not merely authorize the establishment of such programs and duties and make them optional, to be established only upon their funding by the City Council; it mandates them.

17. These programs and duties clearly cannot be accomplished with the current staffing and funding level of the Lottery Board. The operating budget of the Lottery Board, which also details its staffing and organizational structure, is attached at Appendix B. The Board has an FY2007 operating budget of $256 million, and a staffing level of 77 full-time equivalent employees, all of whom have very specific duties and obligations with regards to overseeing, managing, and implementing the current activities of the Lottery Board. In addition, the Board’s office space is completely filled, and cannot be expanded at its current location. Adding the duties and obligations required by the initiative would require adding additional staffers and office space, and the appropriation of additional funds.

18. Both the BOEE and Jerrels argue that the Lottery Board could either attempt to fulfill the mandates of the initiative with its current funding and staffing or that it could simply not regulate or oversee the operation of the slots casino that the sponsors of the initiative would be licensed to operate. It is indeed conceivable that the owners and operators of a gambling casino would look forward with glee to the prospect of running their casino without government regulation and oversight, or under the purview of an inadequately funded and staffed regulatory agency. However, it is also conceivable that the Lottery Board would license the casino to the initiative’s sponsors as required, but refuse to allow that casino to open if it could not regulate and oversee its operations adequately. In that case, individuals as litigious as the initiative’s sponsors would be certain to sue to force the Lottery Board to fulfill its legal responsibilities so that the casino could open. That suit would entail requiring the District government to fund the Lottery Board to fulfill its statutorily mandated duties, and thus it would entail appropriating funds. The initiative, as it is written, opens the door to and invites such a lawsuit.

19. That is where the findings in District of Columbia Board of Elections and Ethics v. District of Columbia, 866 A.2d 788 (D.C. 2005) are most on point. In that case, the Court pointed the way for any future proposers of initiatives to word their initiatives so that they could escape the prohibition against initiatives’ allocating funds. It is a very simple wording that the proposers of this initiative chose not to use. In that case, the court found:

Appellants’ [the D.C. Board of Elections and Ethics] theory would have us read "subject to the allocation of funds" into every initiative and would mean that no initiative would ever be invalid for "appropriating funds" regardless of its language or the intent of the voters. . . . In any event, appellants’ argument has no basis in section 1-204.101 [of the Home Rule Act], which provides that the voters may propose laws except those "appropriating funds." Contrary to appellants’ argument, a law appropriating funds does not lose that characteristic when it is introduced by the voters, but is improper for the initiative process precisely because it both triggers an appropriation of funds and has been proffered by the voters. Whether a law is proposed by the people or the Council does not alter the nature of that law. A law appropriating funds, thus, is not cleansed of its "appropriating" function when it is introduced or enacted by the voters.

All that the proposers had to do to with regard to this restriction on initiatives was to use the formulation "subject to the appropriation of funds" when they proposed that a program be established or that a department or agency assume new duties that would necessitate the expenditure of funds. This simple formulation ensures that an initiative that proposes new programs and government duties will not appropriate or allocate funds, and it makes it easy to write such an initiative so that it does not encroach upon the City Council’s authority to allocate and appropriate funds. Contrary to the arguments made by the BOEE and Jerrels, this does not cripple the initiative process; instead, it gives proponents a clear guideline for how to write an initiative properly. The proponent of this initiative chose instead to use mandatory language establishing government programs and duties, without ensuring that the Council’s legislative role in funding these programs and duties would be respected.

THE INITIATIVE ENCROACHES UPON MAYORAL AUTHORITY AND THEREFORE CONFLICTS WITH THE HOME RULE ACT

20. The purpose of the initiative is to compel the District of Columbia to issue a license to the sponsors of the initiative to operate a slots casino, and to legalize slots gambling in the District of Columbia. In our appellant brief, at 18-19, we stated the problem that specifying the recipient of the license poses: "The BOEE should have rejected the proposed initiative because it impinges upon and usurps what are mayoral powers under the Home Rule Act, and therefore is not a proper subject for an initiative (D.C. Code 1-1001-16(b)(1) and 3 DCMR 1001.3). The initiative mandates and requires the awarding of a slots casino license to the person who owns or controls lots that are specified in the initiative. That is the heart and substance of the initiative, and the sole reason that its sponsor is willing to fund it. It seeks to issue a license by legislation, and the issuing of such a license falls within the regulatory executive authority of the mayor. Licensing and the decision of whether or not to award a license — for example, licenses to establishments that serve alcoholic beverages, licenses to barbers and beauty operators, and licenses to operations that have terminals that issue lottery tickets — is an executive or administrative prerogative, and falls under the powers and authority of the mayor. The City Council’s role is to approve a licensing policy; it cannot legislatively award a license or direct the mayor to award a license to any individual. Just as the Council cannot enact legislation to require the Lottery Board to award a license to operate a lottery terminal to the person who operates a business at a specific address, a voter initiative cannot require the Lottery Board to issue a license to operate a slots casino to the person who owns or controls property at a specific address."

21. The BOEE argues against this in two ways. First, it argues that the initiative "actually addresses the awarding of the initial license as opposed to the temporary initial license." (BOEE response brief at 12) However, a reading of the initiative clearly shows that the "initial license" and the "temporary initial license" are one and the same thing. There are not two different licenses; there is only one. More substantively, the BOEE argues that the initiative simply sets up a licensing scheme and describes licensing standards, albeit that the "class created by the standards in Initiative Measure No. 69 is narrower than the one established by Initiative Measure No. 6." (BOEE response brief at 13) The BOEE further argues that, "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." (BOEE response brief at 14) Indeed, the class created by the standards is so narrow and the standards are so strict that only the sponsors of the initiative themselves fit into it. This is disingenuous, and a transparent guise for usurping the Mayor’s executive authority to issue licenses. To say that the Mayor has discretion to issue the license to anyone who is within a class that consists of only one party is to admit that the Mayor has no discretion, and that the law has shackled him in the exercise of his discretion.

22. In his response brief, Jerrels argues, much as the BOEE does, that the initiative merely sets forth a legislative scheme for licensing, conceding only that the requirements in the initiative for licensing are specific and detailed (Jerrels response brief at 23-24). However, Jerrels attempts, but fails, to find authority for the assertion that the initiative can force the Mayor to issue a casino license to the sponsors of the initiative. To do so he cites Biodiversity Associates v. Gables, 357 F.3d 1152 (10th Cir. 2004), cert. denied, 543 U.S. 817 (2004).

23. The background of Biodiversity Associates is that forest managers in South Dakota wanted to harvest deadwood and trees that had been infested by mountain pine needles to guard against the spread of the infestation and against forest fires, but that harvesting was forbidden by a voluntary settlement agreement between the Forest Service and several environmental groups. The Forest Service was able to reach an agreement with all the environmental groups except for Biodiversity Associates, so Congress passed a rider to an unrelated appropriations bill that enacted into law the terms of the modified agreement that the Forest Service had reached with the other environmental groups. Biodiversity Associates sued to enforce the terms of the original settlement agreement; it lost in the lower court and in the U.S. Court of Appeals. The legal principles involved in that case cannot reasonably be stretched to cover the claim that the City Council or an initiative has the legal authority to direct the Mayor to grant a license to one particular individual.

CONCLUSION

24. The BOEE should have rejected the proposed initiative because it is not a proper subject for an initiative in the District of Columbia for three reasons: 1) it seeks to overturn, amend, or repeal a federal law, which is contrary both to the Home Rule Act and the Constitution; 2) it seeks to appropriate funds by mandating governmental programs and not making those programs subject to appropriations; and 3) it encroaches upon and usurps mayoral authority, contrary to the provisions of the Home Rule Act, by mandating an administrative action — the licensing of a gambling casino — that is a mayoral prerogative and is not within the purview and powers of legislation.

25. The appellants request the Court to find that the proposed initiative is not a proper subject for an initiative; to reverse the decision of the lower court; to direct the Board to reject the proposed initiative, and to grant further appropriate relief.

Respectfully submitted,

Dorothy Brizill, pro se
Thelma Jones, pro se
Anthony Muhammad, pro se

September 6, 2006

CERTIFICATE OF SERVICE

I hereby certify that I did, this day, September 6, 2006, personally deliver a copy of this reply brief of appellant to

Kenneth McGhie, General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, NW, Suite 250
Washington, DC 20001

and to

Jeffrey D. Robinson, Esq. (legal counsel to Barry Jerrels)
Baach Robinson & Lewis, PLLC
1201 F Street, NW, Suite 500
Washington, DC 20004-1225

Dorothy Brizill

Barry Jerrels and Citizens for the VLT Initiative of 2006 Brizill v. District of Columbia Board of Elections and Ethics, et al. Brief of Intervenor/Defendant, D.C. Court of Appeals August 16, 2006

REPLY BRIEF OF APPELLANT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF ISSUES

ARGUMENT

AN INITIATIVE IN THE DISTRICT OF COLUMBIA CANNOT OVERTURN A FEDERAL LAW

THE INITIATIVE APPROPRIATES FUNDS

THE INITIATIVE ENCROACHES UPON MAYORAL AUTHORITY AND THEREFORE CONFLICTS WITH THE HOME RULE ACT

CONCLUSION

CERTIFICATE OF SERVICE

Barry Jerrels and Citizens for the VLT Initiative of 2006
Brizill v. District of Columbia Board of Elections and Ethics, et al.
Brief of Intervenor/Defendant, D.C. Court of Appeals
August 16, 2006