IN
THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
DOROTHY BRIZILL, THELMA JONES, ANTHONY MUHAMMAD, Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant,
and
BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenors.
Civil
Action No. 0003939-06
AMENDED
MOTION TO INTERVENE
Pursuant to Rule 24 of the District of Columbia
Rules of Civil Procedure, Barry Jerrels and Citizens for the VLT
Initiative of 2006 ("Committee") (collectively "Movants"
or "Intervenors"), by counsel, hereby move this
Honorable Court to permit them to participate as intervenors/defendants
in all aspects of this proceeding1. The
Intervenors' Motion to
Dismiss is submitted herewith as required by Rule 24(c). The Board
of Elections and Ethics has consented to this Motion to Intervene.
The Committee and Mr. Jerrels unquestionably have
an interest in the Initiatives that are the subject of this
action, and the disposition of this action will impair their
ability to protect this interest. Consequently, the Movants should
be allowed to intervene as a matter of right pursuant to Rule
24(a). In the alternative, if the Court should find that the
Movants' interest in this matter is adequately protected by the
Board, the Movants should be allowed intervene pursuant to Rule
24(b) because their defense in this action rests on the same
question of law at issue in that action.
WHEREFORE, Movants respectfully request that their
motion to intervene be granted and that this Court permit them to
participate as Intervenors/defendants in all aspects of this
proceeding. Movants further request that this Court accept for
filing the Motion to Dismiss and Motion for Expedited
Consideration that Movants are submitting under separate cover to
present their arguments on the merits.
Rule 12-I (a) Certification
Undersigned counsel for Intervenors has asked
Plaintiff, Dorothy Brizill, to consent to the relief sought
herein. The request was refused, necessitating the filing of this
motion.2
Respectfully submitted,
BAACH ROBINSON & LEWIS PLLC
By: Jeffrey D. Robinson, Esq. (D.C. Bar No. 376037)
Duane K. Thompson, Esq. (D.C Bar No. 376180)
Sarah
L. Knapp, Esq. (D.C. Bar No. 470008)
Baach Robinson & Lewis
PLLC
1201 F Street, N.W., Suite 500
Washington, D.C. 20004-1225
(202) 833-8900
(202) 466-5738 (facsimile)
Dated: May 24, 2006
1. Movants'
original Motion to Intervene was also filed on May 24, 2006.
However, Movants' attempt to file separate motions to dismiss and
to expedite was rejected by the Court Clerk on the basis that the
Motion to Intervene would have to be granted before any other
motions could be filed. Movants had a good faith belief that they
were proceeding in accordance with Rule 24 (c) of this Court's
Rules of Civil Procedure and regret any inconvenience to the
Court. Movants' have served the parties to this case with both
their original Motion to Intervene and their Amended Motion to
Intervene, which is identical to the original motion except that
it attaches as exhibits and proposed motions the submission
Movants' would make as intervenors. In view of the statutory
requirement of expedited consideration of challenges to Board of
Elections and Ethics determinations regarding initiative measures,
Movants' respectfully request that the Court accept this amended
filing together with the proposed motions. Movants' have
denominated their proposed Motion to Dismiss as "Exhibit 1 to
Motion to Intervene." The proposed Motion to Expedite is
denominated as "Exhibit 2 to Motion to Intervene."
2. The District of
Columbia Board of Elections and Ethics, however, has consented to
both the intervention and expedited treatment of this proceeding.
IN
THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
DOROTHY BRIZILL, THELMA JONES, ANTHONY MUHAMMAD, Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant,
and
BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenors.
Civil
Action No. 0003939-06
[Proposed] ORDER
Upon consideration of the Motion to Intervene, any
objection thereto and the entire record in this matter, it is
hereby
ORDERED that the Motion is GRANTED, and Movants are
permitted to participate as defendants in all aspects of his
proceeding; it is further
ORDERED that the defendant/interveners' Motion to
Dismiss and Motion for Expedited Consideration be accepted for
filing by the clerks' office.
IT IS SO ORDERED.
Date:
____________________
Judge Judith E. Retchin
Copies to:
Kenneth
McGhie
General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street,
NW
Suite 250
Washington, D.C. 20001
Dorothy Brizill
DC Watch
1327 Girard Street, NW
Washington, D.C. 20009
Thelma Jones
2217 T Place, SE
Washington, D.C. 20020
Anthony Muhammad
1609 21st
Place, SE
Washington, D.C. 20020
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing
Motion to Intervene, Memorandum In Support of Motion to Intervene,
Appendix and Proposed Order of Petitioner Citizens for the VLT
Initiative of 2006 were served by hand delivery on this 24th day
of May, 2006 upon the following:
Kenneth J. McGhie, General Counsel
D.C. Board of
Elections and Ethics
441 4th Street, N.W., Suite 270
Washington,
D.C. 20001
Dorothy Brizill
1327 Girard Street, N.W.
Washington, D.C. 20009
Thelma Jones
2217 T Place, S.E.
Washington, D.C. 20020
Anthony Muhammad
1609 21st
Place, S.E.
Washington, D.C. 20020
James P. McNamara
IN
THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
DOROTHY BRIZILL, THELMA JONES, ANTHONY MUHAMMAD, Plaintiffs,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Defendant,
and
BARRY JERRELS and CITIZENS FOR THE VLT INITIATIVE OF 2006, Intervenors.
Civil
Action No. 0003939-06
[Proposed] ORDER
MEMORANDUM
OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO INTERVENE
Pursuant to Rule 24 of the District of Columbia
Rules of Civil Procedure, Barry Jerrels and Citizens for the VLT
Initiative of 2006 ("Movants" or
"Interveners"), by counsel, hereby move this Honorable
Court to permit them to participate as Interveners in all aspects
of this proceeding. The Interveners' Motion to Dismiss is
submitted herewith as required by Rule 24(c). As grounds, Movants
state as follows:
Introduction
Citizens for the VLT Initiative of 2006
("Committee") is an Initiative Committee supporting an
initiative known as the "Video Lottery Terminal Initiative of
2006" ("Initiative 69").1 Barry Jewels is the Initiative's
Proposer. Plaintiffs have brought this action seeking to overturn the determination of the District of
Columbia Board of Elections and Ethics ("Board") that
Initiative 69 is a "Proper Subject" of an initiative in
accordance with the Home Rule Act and/or to require the Board to
notice and conduct a new hearing concerning Initiative 69's Short
Title, Summary Statement and Legislative Form.
The Committee and Mr. Jerrels unquestionably have
an interest in this case and should be allowed to intervene as a
matter of right pursuant to Rule 24(a). In the alternative, if the
Court should find that the Movants' interest in this matter is
adequately protected by the Board, the Movants should be allowed
intervene pursuant to Rule 24(b) because their defense in this
action rests on the same question of law at issue in that action.
Argument2
I. Movants Should be Allowed to Intervene in
this Matter Pursuant to Rule 24(a).
In determining whether to grant or deny a motion to
intervene, the Court must consider: (1) whether the putative
intervener "has an interest in the transaction which is the
subject matter of the suit"; (2) whether "the
disposition of the suit may as a practical matter impair his [or
her] ability to protect that interest"; and (3) whether
"his [or her] interest is adequately represented by existing
parties." Calvin-Humphrey v. District of Columbia, 340 A.2d
795, 798 (D.C. 1975). The Movants meet each of these criteria.
Moreover, as applied by the D.C. Court of Appeals
"the 'interest' test is primarily a practical guide to
disposing of lawsuits by involving as many apparently concerned
persons as is compatible with efficiency and due process."
Id. at 799 (quoting Nuesse v. Camp, 128 U.S.App.D.C. 172, 178, 385
F.2d 694, 700 (1967)). Rule 24(a) "should be liberally
interpreted." Robinson v. First Nat'l Bank of Chicago, 765
A.2d 543, 544 (D.C.2001) (quoting Vale Props., Ltd. v. Canterbury
Tales, Inc.,, 431 A.2d 11, 14 (D.C. 1981) at 14). "Properly
applied, it should
promote judicial economy by facilitating the
resolution of related issues in a single lawsuit, while preventing
litigation from becoming unmanageably complex."
Calvin-Humphrey, supra at 799 (citing Smuck v. Hobson, 132 U.S.App.
D.C. 372, 376, 408 F.2d 175, 179 (1969)). These objectives are
served here.
It is beyond question that the Movants have an
interest in the subject of this action given that they proposed
the Initiative at issue.3
It is also clear that the disposition of this matter will impair
their ability to protect this interest, given that a decision by
this Court will determine whether the Initiative can proceed. See
D. C. Bd. of Elections and Ethics v. Jones, 481 A.2d 456, 461
(D.C. 1984). Consequently, the only issue the Court must decide in
order to grant the requested relief is whether these interests are
adequately protected by the existing parties. The fact that the
Movants and the Board seek the same ultimate result in this
proceeding -- the rejection of the plaintiffs' challenge to the
Boards determination -- is not determinative of this question. See
id.
Moreover granting this motion would promote
judicial economy by avoiding piecemeal litigation. The addition of
the Interveners will not in anyway impede the hearing of this
matter. Thus, pursuant to Rule 24(a), the Movants must be allowed
to intervene in this matter.
II. In the Alternative, Movants Should be
Allowed to Intervene Pursuant to Rule 24(b).
Even if this Court determines that the Movants do
not meet the criteria for intervention pursuant to Rule 24(a),
they should be allowed to intervene pursuant to Sub-part (b) of
the Rule. Rule 24(b) allows intervention "when an applicant's
claim or defense and the main action have a question of law or
fact in common." The Movants' motion to dismiss the
plaintiffs' complaint, filed herewith, depends only on the factual
premises and questions of law already at issue in this
proceeding. The Movants satisfy the preliminary
conditions for permissive intervention under Rule 24(b).
In exercising its discretion under Rule 24(b), the
Court must also "consider whether the intervention will
unduly delay or prejudice the adjudication of the rights of the
original parties." As noted above, allowing the Movants to
intervene in this proceeding will in no way delay or prejudice the
rights of the plaintiffs or the Board. The Committee and Mr.
Jerrels are prepared to proceed with this matter on an expedited
basis. Under these circumstances, the Court should exercise its
discretion in favor of intervention. See Jones, supra, 481 A.2d at
461 (reversing trial court's denial of motion for leave to
intervene where putative Interveners had an interest in the
proceeding and were prepared to proceed).
Conclusion
WHEREFORE, Movants respectfully request that their
motion to intervene be granted and that this Honorable Court
accept for filing the Motion to Dismiss and Motion for Expedited
Consideration that Movants are submitting under separate cover to
present their arguments on the merits.
Respectfully submitted,
BAACH ROBINSON & LEWIS PLLC
By: Jeffrey D. Robinson, Esq. (D.C. Bar No. 376037)
Duane K. Thompson, Esq. (D.C Bar No. 376180)
Sarah
L. Knapp, Esq. (D.C. Bar No. 470008)
Baach Robinson & Lewis
PLLC
1201 F Street, N.W., Suite 500
Washington, D.C. 20004-1225
(202) 833-8900
(202) 466-5738 (facsimile)
Dated: May 24, 2006
1. An earlier version of the initiative was filed
on March 14, 2006. That version was withdrawn to address concerns
expressed by the General Counsel of the District of Columbia
Council. These concerns were addressed in the revised Initiative
filed April 10.
2. The cases,
statutes, and rules cited herein are annexed hereto as Exhibit 1
in the order in which they are cited.
3. Had the Board
rejected the Initiatives, the Movants would have a clear right to
bring a proceeding challenging that ruling. See D.C. Code
1-1001.16 (e)(1)(A); see also Jones 481 A.2d at 461 n.5.
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