Dorothy Brizill, Thelma Jones, Anthony Muhammad v. DC Board of Elections and Ethics
Complaint, petition for review and writ of mandamus
May 22, 2006

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DOROTHY BRIZILL, 1327 Girard Street, NW, Washington, D.C. 20009, (202) 234-6982,
THELMA JONES, 2217 T Place, SE, Washington, D.C. 20020, (202) 678-8194,
ANTHONY MUHAMMAD, 1609 21st Place, SE, Washington, D.C. 20020, (202) 359-3517

Plaintiffs

V.

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS
441 4th Street, N.W., Suite 250,
Washington, DC 20001
Serve: KENNETH J. McGHIE, General Counsel, Defendant

Civil Action No. 2006 CA 003939 B

COMPLAINT
(Petition for Review and Writ of Mandamus)

Parties and Jurisdiction

1. Plaintiff, Dorothy Brizill, (BRIZILL) is a registered qualified elector of the District of Columbia. She is executive director of DCWatch, a civic good government watchdog organization in Washington, DC.

2. Plaintiff, Thelma Jones (JONES) is a registered qualified elector of the District of Columbia. She is president of the Fairlawn Citizens Association, Inc., the local civic organization in the Anacostia-Fairlawn community.

3. Plaintiff, Anthony Muhammad (MUHAMMAD) is a registered qualified elector of the District of Columbia. He is the Advisory Neighborhood Commissioner (ANC) for ANC 8A01 and chairs ANC8A, which includes the Anacostia community.

4. Defendant, District of Columbia Board of Elections and Ethics ("the Board"), is an independent agency of the District of Columbia, composed of three members appointed by the Mayor of the District of Columbia, to impartially regulate and conduct elections in the District of Columbia. Among its duties and responsibilities, the Board serves as the gatekeeper for the initiative process in the District of Columbia under DC Code §1-1001.16 and DC Municipal Regulations, Volume 3, Chapter 10.

5. This court has jurisdiction over this case under D.C. Official Code § 1-1001.16(e)(1)(A) and this court’s general equitable powers.

THE PROPOSED INITIATIVE

6. On April 10, 2006, Barry E. Jerrels (the initiative’s proponent) submitted a proposed initiative to the Board entitled the "Video Lottery Terminal Initiative of 2006." (The title of the initiative was amended by the Board to the "Video Lottery Terminal Gambling Initiative of 2006.") As proposed, the initiative would amend the "Law to Legalize Lotteries, Daily Numbers Games, and Bingo and Raffles for Charitable Purposes," (D.C. Official Code §3-1301 et seq.) to authorize the licensing of video lottery terminals (more commonly called "slot machines" and hereinafter also called "slot machines"). The initiative would mandate that the Lottery Board of the District of Columbia issue the initial license for a slot machine casino to the person who owns or controls three specified lots in Square 5770 at the intersection of Good Hope Road and Martin Luther King Avenue in the historic Anacostia neighborhood of the District of Columbia. The initiative also provides for a procedure to license additional casinos throughout the District of Columbia.

7. The Board of Elections and Ethics advertised notice of a public hearing to determine whether the initiative would be a proper subject for an initiative in the D.C. Register, the official legal bulletin of the District of Columbia, on April 21, 2006. In the same issue of the D.C. Register, it published the Short Title Summary Statement, and Legislative Text of the initiative and gave notice that it would hold a hearing on the Short Title, Summary Statement, and Legislative Text immediately following its approval of the initiative as a proper subject for an initiative.

8. Under District law, the Board is charged with determining whether a proposed measure is a proper subject for a voter initiative pursuant to criteria prescribed by statute. To that end, the Board must reject any proposed initiative that is contrary to the terms of the Home Rule Act, seeks to amend the Home Rule Act, would appropriate funds, would violate the U.S. Constitution, is not in compliance with the Office of Campaign Finance filing requirements, is not in the proper legislative form, would unlawfully discriminate, or would negate or limit a budget act.

9. At its hearing on May 3, 2006, the Board approved the initiative as a proper subject for an initiative. Despite objections, the Board then immediately moved into the examination of the proposed Short Title and Summary Statement.

10. The Board did not allow any discussion of the Legislative Text of the proposed initiative, and said that examination of Legislative Text was beyond its purview and powers.

11. After hearing testimony regarding the Short Title and Summary Statement, the Board adjourned. During its adjournment, it drafted a substantially revised Short Title and Summary Statement, after which it delivered the final language to the open hearing.

12. Public notice of the Board’s actions at the May 3, 2006, meeting was subsequently published in the D.C. Register on May 12, 2006. The D.C. Code allows for the filing of a complaint within 10 days of publication. This action is therefore a timely challenge to the proposed initiative under D.C. Code §§11001.16(e)(1)(A).

THE BOARD’S HEARING ON THE SHORT TITLE AND SUMMARY STATEMENT OF THE INITIATIVE WAS NOT PROPERLY ADVERTISED AND HELD AND THE BOARD DID NOT ALLOW ANY DISCUSSION OF THE LEGISLATIVE TEXT

13. The Board improperly held a single hearing on the same day to consider both whether the initiative were a proper subject for an initiative and to consider the Short Title, Summary Statement, and Legislative Text that had been prepared by the proponent. However, D.C. Official Code §§1-1001.16(c) and (d) clearly requires a two-step process in which, after the Board approves an initiative as a proper subject, it prepares its own Short Title, Summary Statement, and Legislative Text. Only then can it advertise the Short Title, Summary Statement, and Legislative Text that it has prepared and hold a separate public hearing on them.

14. The Board’s hearing on the Short Title, Summary Statement, and Legislative Text of the initiative was incomplete and improperly restricted. The Board improperly refused to hear any testimony on the Legislative Text of the initiative, and said that examination of the Legislative Text was beyond its purview and powers, even though §§1-1001.16(c)(3) specifically directs it to prepare the text of an initiative in proper legislative form, and authorizes it to consult legislative experts to assist it to ensure that the initiative is in proper legislative form.

THE BOARD OF ELECTIONS AND ETHICS SHOULD HAVE REJECTED THE PROPOSED INITIATIVE

15. The Board of Elections and Ethics should have found that the "Video Lottery Terminal Gambling Initiative of 2006" was not a proper subject for a voter initiative under District law because the initiative (a) seeks to amend or overturn a federal law, which is contrary both to the Home Rule Act and the U.S. Constitution; (b) requires the appropriation of funds; and (c) seeks to exercise mayoral authority, which violates the Home Rule Act.

16. The proposed initiative should have been rejected because it attempts to amend or overturn a federal law, which conflicts both with the District of Columbia Home Rule Act and the U.S. Constitution. Article I, Section 8, Clause 17 of the Constitution gives Congress exclusive power to define the District of Columbia’s legislative authority. The Home Rule Act, Sec. 602(a)(3), says that the City Council of the District of Columbia cannot "enact any act, or enact any act to amend or repeal any Act of Congress, which concerns the functions or property of the United States. . . ." The initiative process is subject to the same legislative restrictions that are imposed on the D.C. Council when it deliberate and adopts laws. This initiative attempts to enact District of Columbia legislation that would overturn the "Johnson Act," a federal law. By enacting expressly preemptive statutes, Congress preempts state authority to legislate on the same subject, and the "Johnson Act," 15 U.S.C. 1171-1178, makes it "unlawful to manufacture, recondition, repair, sell, transport, possess, or use any gambling device in the District of Columbia. . . ." (15 U.S.C. 1175(a)).

17. The proposed initiative should have been rejected because it is a "law appropriating funds," which is not a proper subject of an initiative under D.C. Law. The initiative mandates the Lottery Board of the District of Columbia to license at least one slots casino. It requires the Lottery Board to account for and manage "All funds, fees, fines, or other revenues collected by the Board with respect to the licensing, operation, administration, or regulation of VLTs, including but not limited to any VLT usage fees. . . ." (Initiative §2) It requires the Board to "create and publish regulations setting forth a procedure by which Persons may apply for the Initial License." (Initiative §5(a)) It makes the Board responsible for creating regulations and supervising a licensing process for any additional gambling licenses. (Initiative §6) It requires the Board to create a permitting form and process for manufacturers and service technicians dealing with the gambling machines. (Initiative §9) It requires the Board to determine the suitability of licensees (Initiative §12), to adopt rules to regulate slots casinos, and to regulate those casinos (Initiative §15). It requires the Executive Director of the Lottery Board to investigate and inspect slots casinos and to enforce its regulations (Initiative §15) and to "Engage, train, supervise and direct such staff, as the Executive Director and the Board shall deem necessary or appropriate to enable the Executive Director to perform his duties and obligations under this chapter." (Initiative §15(5))

18. The District of Columbia Lottery Board is a District agency that is within the Office of the Chief Financial Officer (CFO) of the District of Columbia, and operates under the direction of the CFO. The General Counsel of the Office of the Chief Financial Officer, Jerry L. Malone, submitted a letter to the DC Board of Elections and Ethics on May 3, 2006, that said that "the Initiative, if passed, would establish a regulatory scheme under which the DC Lottery and Charitable Games Control Board (‘DCLB’) would be mandated to assume additional regulatory functions. There are costs, as yet undefined, inherently associated with undertaking such additional regulatory functions." 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. Thus, the initiative imposes costs and expenses on the District of Columbia, and would require an appropriation of funds.

19. The proposed initiative should have been rejected because it is not a proper legislative subject, but instead impinges upon and usurps what are mayoral powers under the Home Rule Act. The initiative mandates and requires the awarding of a license to the person who owns or controls lots that are specified in the initiative. The decision of whether or not to award a license is an executive or administrative prerogative, and falls under the powers and authority of the mayor. The City Council cannot legislatively award a license or direct the mayor to award a license to any individual. Just as the Council cannot require the Lottery Board to award a license to operate a lottery terminal to the person who operates a business at a specific address, an 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.

20. The proposed initiative should have been rejected because it is not otherwise a proper subject for an initiative in the District of Columbia.

WHEREFORE, plaintiffs ask the court to find that the Board should have held a separate and separately advertised hearing to review the Short Title, Summary Statement, and Legislative Text of the initiative that it prepared; and to find that the initiative is not a proper subject for an initiative; and that it direct the Board to reject the proposed initiative, and to grant further appropriate relief.

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

May 22, 2006

CERTIFICATE OF SERVICE

I hereby certify that I did, this day, May 22, 2006, personally deliver a copy of this complaint and Writ of Mandamus to Kenneth McGhie, General Counsel, District of Columbia Board of Elections and Ethics, 441 4th Street, NW, Suite 250, Washington, DC 20001.

Gary Imhoff