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/Defendants.
Civil
Action No. 0003939-06
[PROPOSED] MOTION TO DISMISS
Pursuant to Rule 12 of the District of Columbia Rules of Civil
Procedure, Intervenors/Defendants Barry Jewels and the Citizens for the
VLT Initiative of 2006, by counsel, hereby move this Honorable Court to
dismiss the Complaint in this action with prejudice. The grounds for the
motion are set forth in the accompanying memorandum and in the authorities
contained in the Appendix being filed herewith.
WHEREFORE, Movants respectfully request that their motion to dismiss be
granted.
Rule 12-I (a) Certification
Undersigned counsel for Intervenors has asked Plaintiff, Dorothy
Brizill, to consent to the elief sought herein. The request was refused,
necessitating the filing of this motion.1
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. The District of Columbia Board of Elections and
Ethics, however, 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/Defendants.
Civil
Action No. 0003939-06
INTERVENOR/DEFENDANTS' MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
Intervenor/defendants Barry Jerrels and the Citizens Committee for the
VLT Initiative of 2006 ("the Committee") submit this memorandum
in support of their motion to dismiss the challenges filed by Plaintiffs
Dorothy Brizill, Thelma Jones and Anthony Muhammad to the decisions of the
Board of Elections and Ethics (the "Board") finding that (1) the
Video Lottery Terminal Gambling Initiative of 2006 ("Initiative
69"), is a "proper subject of initiative" and (2) drafting
and approving Initiative 69's Short Title and Summary Statement. At its
May 3, 2006 hearing, the Board acted properly and consistently with the
law of the District of Columbia and applicable precedent in certifying
Initiative 69 as a "proper subject" and preparing its Short
Title and Summary Statement. None of the arguments advanced by challengers
justify overturning the Board's actions. This Court should promptly
dismiss the challengers' suit and allow the democratic process to continue
as contemplated by District of Columbia law.1
Statement of Facts
On April 10, 2006 Mr. Jerrels filed the Video Lottery Terminal
Initiative of 2006 with the Board complying with all the requirements of
D.C. Code § 1-1001.16.2 The Board published
the proposed initiative in the District of Columbia Register dated April
21, 2006 and stated its intention to consider the initiative at its
regularly scheduled meeting on May 3, 2006. (A2) In the published notice,
the Board stated its intention to consider both whether the proposed
initiative was a "proper subject" and the initiative s Short
Title and Summary Statement at the May 3 meeting.
The Board met on May 3 to first consider the question of whether the
proposed initiative was a "proper subject" of an initiative.
After hearing from the proponent, each of the challengers, and other
public and governmental witnesses and considering the written submission
of the District of Columbia Attorney General and the General Counsel of
the District of Columbia Chief Financial Officer, the Board concluded that
the proposed initiative was a proper subject.3
The Board carefully considered and addressed each of the contentions that
the initiative was not a proper subject. Specifically the Board found
that:
1. It would not consider issues relating to the merits of the proposed
law as those issues were not for the Board's consideration;
2. It would not review whether the initiative was consistent with
proposals under consideration for the use of the site designated for the
initial VLT facility because such a review was not appropriate in the
"proper subject" context and the initiative itself made it clear
that any facility must comply with zoning and other District of Columbia
law;
3. The proposed initiative did not violate the Home Rule Act by
purporting to overturn a federal law of general applicability - the
Johnson Act 15 U.S.C. 1171 et. .seq.;
4. The proposed initiative did not run afoul of the prohibition against
appropriating funds because it contained non-binding recommendations
concerning how any funds should be distributed;
5. The fact that, if passed, the proposed initiative would increase the
duties of the Lottery and Charitable Games Board and might require it to
need additional resources or forego other duties and might require
infrastructure improvements near the initial VLT facility, did not violate
the prohibition on appropriating funds or invade the Budget Authority of
the Mayor and Council; and
6. The proposed initiative did not violate the separation of powers
inherent in the District's governmental structure by improperly limiting
the authority of the Executive by prescribing the granting of the
temporary initial VLT license.
Transcript of Board of Elections and Ethics' May 3 Hearing at pp. 144 -
52. (A5).4
As indicated in the Notice of Meeting, the Board then went on to
consider and prepare the Short Title and Summary Statement of the
initiative it had approved as a proper subject. The Board first rejected
the contention that it was improper for it to consider and prepare an
initiative's Short Title and Summary Statement at the same meeting in
which it approved the initiative as a "proper subject." (A5 at
pp. 156 - 66.) The Board then heard from the proponent, each of the
challengers, and other public witnesses regarding the proposed Short Title
and Summary Statement. After considering the testimony presented, the
Board prepared and approved a Short Title and Summary Statement that were
substantially different from that submitted by the proponent. Ms. Brizill
expressed agreement with the Short Title and Summary Statement prepared by
the Board. (A5 at pp. 254.)
As required by the statute, the Board published its decision approving
the proposed initiative as a proper subject and approving a Short Title
and Summary Statement in the District of Columbia Register on May 12,
2006. (A6)
The suit that is the subject of this motion to dismiss was filed by
challengers on May 22, 2006 - the last day of the statutorily provided
challenge period. In their suit, Ms. Brizill, Ms. Jones and Mr.
Muhammad allege that the Board's decisions should be overturned for four
reasons:
1. Plaintiffs contend that the Board violated D.C. Code §§
1-1001.16(c) and 1-1001.16(d) by conducting a single hearing to consider
both whether the initiative was a proper subject for an initiative and to
consider the Short Title, Summary Statement and Legislative Form;
2. Plaintiffs contend the Board should have found the initiative to be
an improper subject because, in alleged contravention of D.C. Code §
1-206.02(a)(3), the initiative allegedly would overturn the federal
Johnson Act, 15 U.S.C. §§ 1171 et seq.;
3. Plaintiffs contend the Board should have found the initiative to be
an improper subject because, in alleged contravention of D.C. Code §
1-206.02(a)(3), the initiative allegedly would constitute a "law
appropriating funds"; and
4. Plaintiffs contend the Board should have found the initiative to be
an improper subject because, in alleged contravention of D.C. Code §
1-206.02(a)(3), the initiative improperly usurps the executive power of
the Mayor of the District of Columbia.
On May 23, 2006, Mr. Jerrels and the Committee filed a motion to
intervene in this suit as defendants, a motion to expedite the Court's
consideration of the suit, and this motion to dismiss the complaint.
Argument
The Board carefully and correctly performed its duties when it found
that Initiative 69 was a proper subject of an initiative and when it
prepared the initiative's Short Title and Summary Statement. In performing
its duties, the Board complied with all of the procedural requirements of
the relevant statutes, going out of its way to ensure that all parties had
notice and ample opportunity to be heard. The Board also carefully
considered each of the arguments challengers now make and rejected them
for proper reasons. There is absolutely no merit to the arguments advanced
by challengers to the Board's actions and this Court should promptly
dismiss these suits so that the democratic process can continue and the
voters of the District of Columbia given an opportunity to express their
will concerning this Initiative.
A. The Decisions of the Board Are Entitled to
Deference From This Court.
It is a basic principle of administrative law that courts defer to
administrative agencies with respect to matters in the agencies'
jurisdiction and with respect to interpretations of the agencies governing
statute, rules and regulations. See Franklin v. District of Columbia
Dept of Employment Servs., 709 A.2d 1175, 1176 (D.C.1998) (A7); District
of Columbia v. Davis, 685 A.2d 389, 393 (D.C.1996) (A8). The Court of
Appeals has recognized that such deference is appropriate with respect to
the decisions of the Board. See Pendleton v. D. C. Board of Elections
and Ethics, 449 A.2d 301, 307 (D.C. 1982) (A8). Thus, this court
"must defer to the Board and may not substitute [its] own
interpretation unless the [Board's] construction is clearly
erroneous." Id. (citing Goto v. D.C. Board of Zoning, 423 A.2d
917 (1980)).
In the present case, the Board has carefully considered and rejected
challengers' complaints regarding its interpretation of the rules
governing its hearing procedures. The Board has also carefully considered
and rejected challengers' contentions with respect to the "proper
subject" determination. The Board's determinations with respect to
these matters are entitled to deference from this Court, just as was
afforded in dismissing a prior challenge to a similar video lottery
terminal initiative in 2004. See Argo v. D.C. Board of Elections &
Ethics, Civil Action No. 04-4740 (June 29, 2004) (A9). As shown below,
those determinations are also clearly correct.
B. The Board Properly Consolidated at a Single Meeting
Consideration of Whether the Proposed Initiative was a "Proper
Subject" and Preparation of the Short Title and Summary Statement.
Plaintiffs assert that the Board should be ordered to go back to square
one in considering the Initiative Measure because, consistent with
longstanding practice, it granted Intervenors' routine request to
consolidate the "proper subject" issue with the summary
statement, short title and legislative form issues for public hearing
purposes. Plaintiffs advance this position despite their full
participation in the hearing of May 3, 2006, and despite their inability
to show lack of proper notice or any effect on the Board's determinations
concerning the substantive issues raised and considered under D.C. Code §
1-1001.16. The Board considered and rejected Plaintiff's procedural
objections for reasons fully explained during the hearing - to generalize,
that as a factual matter, the proper subject determination was made before
the Board's other determinations, that proper notice was afforded in any
event and that the right to challenge the Board's determination in court
was not prejudiced in any way. See A5 (Hearing Transcript), pp.
163-65. Without repeating the details of the Board's reasoning,
Intervenors simply state that they fully agree with it and urge this Court
to affirm.5
Intervenors do wish to stress that Plaintiffs' reliance on Hessy v.
District of Columbia Board of Elections and Ethics, 615 A.2d 562
(1992) (A10) is misplaced because that decision was driven by concerns
with the Board's failure to decide all of the various "proper
subject" challenges that had been raised before moving on to decide
issues as to the short title, summary statement and legislative form. By
contrast, this case presents a record in which the Board has fully
resolved all "proper subject" challenges, such that this Court
has a complete record, rather than a piecemeal record as was the Court of
Appeals' stated concern in Hessy.
It is also noteworthy that this Court previously rejected a similar
challenge to the Board's procedures in Argo v. D.C. Board of Elections
& Ethics, Civil Action No. 04-4740, Transcript of Proceedings,
June 29, 2004, at pp. 163-65 (rejecting challenge to adequacy of Board's
notice of hearing to consider a prior VLT initiative measure because Board
was entitled to deference and no prejudice was alleged) (All) .
In short, Plaintiffs suffered absolutely no injury as result of the
Board's consolidation. The Board's adherence to its longstanding practice
promotes efficiency and is in no way contrary to the procedures outlined
in the D.C. Code §1-1001.16, which only require that a determination as
to the proper subject issue be made prior to determinations on the Short
Title, Summary Statement and Legislative Form, and which do not require
separate meetings on those two sets of issues.
C. The Board's Determination that the Initiative Measure is
Consistent with the Johnson Act and Therefore Complies with the
"Proper Subject" Requirement was Correct and
Should Be Affirmed.
The Board duly considered and properly rejected Plaintiffs' theory that
the proposed Initiative Measure would act as a repeal of the Johnson Act,
and therefore, contravene the District of Columbia Home Rule Act. In
reaching this determination, the Board relied on the plain meaning of the
Johnson Act, 15 U.S.C. § 1171 et seq., which expressly authorizes
the District and the states to legalize gambling within their borders, and
thereby, create an exemption from the Act's other provisions. See A5,
at pp. 66-73,110-114, 125-132 and 147-149. Thus, the fundamental premise
of Plaintiffs' argument - that the Initiative Measure would
"repeal" the Johnson Act by seeking to enact an exemption that
statute expressly authorizes - is facially untenable. This Court need only
consider the statutory language in question in order to satisfy itself
that the Board should be summarily affirmed.
A threshold question in determining whether an initiative measure would
"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" within the meaning of
the D.C. Home Rule Act, D.C. Code § 1-206.02(a)(3), is whether the
proposed District legislation would actually conflict with any federal
law. The answer is plainly "no" in this case. It is correct that
Section 1172 of the Johnson Act generally proscribes the interstate
transport of "gambling devices" as that term in defined in the
statute.6 The Johnson Act also contains a
separate provision that specifically prohibits, inter alia, the
possession or use of gambling devices in the District. See 15 U.S.C.
§ 1175.7 As previously noted, however, the
Johnson Act expressly authorizes any state to legalize gambling within its
borders. See 15 U.S.C. § 1172. Congress amended the Johnson Act in
1962 to include the District within the definition of "state,"
see P.L. 87-840, Gambling Devices Act of 1962, H.R. Rep. No. 1828, 87th
Cong., 2d Sess. 1962, 1962 U.S.C.A.N. 3809, 3813, and thereby confirmed
the District's right to pass legislation to legalize gambling within its
borders, subject to the plenary power of Congress, as always, to
disapprove legislation before it becomes law in the District. See
generally Marijuana Policy Project v. United States, 304 F.3d 82 (D.C.
Cir. 2002) (A13) (Explaining Congress's plenary legislative powers in the
District under the United States Constitution and the D.C. Home Rule Act,
D.C. Code §1-206.01 and §1-206.02.). Accordingly, the inescapable
conclusion is that the Initiative Measure would not "amend" or
"repeal" the Johnson Act within the meaning of the Home Rule
Act. A fortiori, no serious issue is presented as to the Initiative
Measure's compliance with the "proper subject" requirements of
D.C. Code § 1001.16 (b).
For the same reason, Plaintiffs' reliance on McConnell v. United
States, 537 A.2d 211 (D.C. 1988) (A14) is totally misplaced. Unlike
the present case, McConnell considered legislation that did repeal
federal law. Specifically, McConnell involved the District's
Uniform Controlled Substances Act which imposed mandatory minimum
sentences that directly conflicted with treatment options allowed under
the federal Narcotic Addicts Rehabilitation Act. McConnell lends no
support to the Plaintiffs here because the Initiative Measure, if enacted,
would not "repeal" the Johnson Act but would instead merely
adopt an exemption Congress specifically authorized. Even if it were
correct, in a semantic sense, is say that the Initiative Measure would
"repeal" the specific portion of the Johnson Act that prohibits
gambling devices in the District (15 U.S.C. § 1175), the Johnson Act,
construed in it entirety as it must be, expressly contemplates that
possibility.
Furthermore, even if the Initiative Measure's interaction with Section
1175 of the Johnson Act could be considered in isolation, the Board's
determination was still correct because no repeal of legislation of national
scope would be presented. See D.C. Code § 1-206.02(a)(3).
While the Johnson Act's general prohibition on interstate transport of
gambling devices applies nationwide except as to states that have exempted
themselves, Section 1175 applies only to the District, U.S.
possessions and Indian Territories. Congress was clearly acting as a local
legislature as to each of these jurisdictions in view of its unique
relationship with each of them. Accordingly, any "repeal" of
Section 1175 would not implicate national law or interests. Cf.,
McConnell, supra, 537 A.2d 211 (in determining whether proposed
legislation would contravene D.C. Code § 1-206.02 (3), courts consider
whether, in enacting the federal law in question, Congress was acting as
the national legislature or as the local legislative body for the
District). This common sense approach has been consistently followed
applied in previous cases upholding proposed legislative measures against
challenge under the Home Rule Act. See District of Columbia v. The
Greater Washington Central Labor Council, et al., 442 A.2d 110 (1982)
(A15) (federal Workers' Compensation Act of 1928, which extended coverage
under the Longshoremen's Act to private employees in the' District, was a
purely local law despite being administered by the U.S. Labor
Department.); American Council of Life Insurance v. District of
Columbia, 643 F. Supp. 84 (D.D.C. 1986) (A16) (District's Prohibition
of Discrimination in the Provision of Insurance Act, which banned
discrimination on the basis of AIDS, did not violate the D.C. Home Rule
Act because it only applied to insurers doing business in the District); Techworld
Development Corp. v. D.C. Preservation League, 648 F. Supp. 106 (D.D.C.
1986) (A17) (Council did not violate the Home Rule Act when it closed a
street and transferred title to federal government property to a
developer); Dimond v. District of Columbia, 618 F. Supp. 519 (D.D.C.
1984), aff'd in part and rev'd in part on other grounds, 792 F.2d
179 (D.Cir. Cir. 1986) (A18) (District law requiring residents to obtain
out-of-state insurance coverage did not violate Home Rule Act). The result
should be no different here.
In sum, the Board properly considered Plaintiff's argument and was on
solid ground in concluding that the Initiative Measure does not involve
improper subject matter simply because it would do what the Johnson Act
authorizes. The Board's determination should be affirmed.
D. Initiative 69 Does Not Violate the Prohibition Against
Initiatives Appropriating Funds or Invading the Budget Authority of the
Mayor and Council.
One of the most important, and most litigated, requirements for
accepting an initiative is that it is does not invade the authority of the
Mayor or the Council with respect to the District of Columbia budget
either by appropriating funds or affecting an existing budget act.
Initiative 69 does not run afoul of those prohibitions. The initiative
states that VLT revenues "shall be accounted for and managed in
accordance with applicable laws and regulations of the District of
Columbia." Initiative 69 does not interfere with or in any way
encroach upon the appropriation and budget authority of the District of
Columbia Council and the Congress. Indeed, Initiative 69 is substantially
identical to the 2004 VLT initiative measure that the Board determined to
be a proper subject despite the assertion - essentially identical to what
is being asserted here -- that it would constitute an improper
appropriation of funds. This Court in Argo v. D.C. Board of Elections
& Ethics, Civil Action No. 04-4740 (June 29, 2004) (A9) upheld the
Board's rejection of that challenge, and stare decisis should mandate the
same result as to the Board's determination regarding Initiative Measure
69.
Challengers make two arguments that Initiative 69 violates the
longstanding prohibition against initiatives appropriating funds or
invading the budget authority of the Mayor and Council. First they
challenge the initiative's non-binding recommendations with respect to the
VLT usage fee to be charged and the manner in which any funds raised
should be spent. Second, challengers complain that the initiative would
require the expenditure of funds by the Lottery and Charitable Games Board
and for infrastructure improvements. Neither of these arguments is grounds
to reject the initiative as not being a "proper subject."
1. Non-binding recommendations regarding the raising and
expenditure of funds are entirely proper in initiatives.
The fact that Initiative 69 contains a non-binding
recommendation that a twenty-five percent usage fee be collected and VLT
proceeds should be apportioned equally among the D.C. General Fund, the
D.C. Public Schools, and a recommended new fund to provide prescription
drug benefits for D.C. senior citizens does not violate the prohibition
against appropriating funds or negating a budget act. The District of
Columbia Court of Appeals has explicitly recognized that such a
recommendation is entirely consistent with the statutory and Charter
scheme allowing for initiatives. In Hessey v. D.C. Board of Elections
and Ethics, 601 A.2nd 3, 19-20 (D.C., 1991) (A19) the
Court stated:
The right of initiative nevertheless remains `broad' under the
allocation interpretation. The initiative right to propose authorizing
legislation that the Council could enact is essentially unfettered. In
addition, as the Board of Elections noted in the appeal involving the
`Housing Now! Act of 1990' initiative, measures may be proper
subjects for initiative where the proposal contains a
`non-binding policy statement' that revenues should be allocated
for specified purposes. While the Mayor and Councilmember's, like
any elected officials, may take a potential risk in allocating
initiative-raised revenues for a purpose other than that suggested by
initiative, the risk is necessarily overshadowed by the financial
responsibilities placed by Congress in the District government's elected
officials, and the Mayor and Council have acted accordingly. (Citations
and footnotes omitted. Emphasis added.)
In other words, the Court of Appeals embraced the Board's analysis that
a "non-binding policy statement" regarding the use of
initiative-generated revenues is perfectly permissible under the law.
Initiative 69 complies with the criteria the Court of Appeals has
provided. It contains recommendations - "a non-binding policy
statement" - regarding the use of the revenues generated by VLT
operations. It does not, however, contain any directive or mandate that
would encroach upon the authority of the Council and the Congress to
appropriate and allocate District revenues. As such, it is entirely proper
and challengers' claims that it is not must be rejected.
2. Initiative 69 is not invalid because it establishes a
program that would require future funding to support its operations.
If passed, the initiative authorizes a new program to be run by the
Lottery Board. However, the Court of Appeals has long recognized that the
fact that an initiative authorizes government actions or programs that may
subsequently lead the Council and Congress to appropriate funds for
implementation does not render the initiative an improper subject. Any
other interpretation would eviscerate the right of initiative. When
governments act, it requires the expenditure of money; directly, through
grants or the purchasing of goods and services, indirectly through the
employment of personnel and facilities to carry out a program, or even
more distantly through the cost of enforcing prohibitions.
If adopted, challengers' position would essentially preclude all
initiatives because the citizens would be forbidden to require the
government to do anything. Fortunately, the courts have rejected this
extreme position. For example, in Convention Center Referendum
Committee v. D.C. Board of Elections, 441 A.2d 889, 914 (D.C. 1981)
(A20) the Court of Appeals wrote:
"We further conclude that the `laws appropriating funds'
exception does not preclude initiatives (1) to establish substantive
authorization for a new project. . . ." That common sense and
settled principle is fully applicable in this case.
E. The Licensing Provisions Do Not Violate the Separation of
Powers Principles Inherent in the District of Columbia Charter.
Challengers raise a "separation of powers" attack on
Initiative 69, claiming that the provisions regarding the award of the
temporary initial VLT license are an improper legislative restriction of
the Executive's authority to administer the law. This attack is based upon
an improper understanding of the requirements of separation of power.
Initiative 69 in no way limits the appropriate exercise of the executive's
discretion. Rather, the initiative, like all legislation, sets forth
requirements that the executive must follow but does not prescribe the
actions the executive must take in applying those guidelines.
In Wilson v. Kelly, 615 A.2d. 229 (D.C. 1992) (A21), the Court
of Appeals recognized that separation of powers principles, like those
that govern the federal government apply to the District of Columbia
("[w]hile always giving due recognition to differences between a
national constitution and the governance of a single urban component, it
is reasonable to infer from this tripartite structure and the vesting of
the respective "power" in each branch that the same general
principles should govern the exercise of such power in the District
Charter as are applicable to the three branches of government at the
federal level.") 615 A.2d. at 231.
The critical question for separation of powers analysis is whether the
provisions in the initiative are legislative or administrative. In Convention
Center Referendum Committee v. District of Columbia Board of Elections and
Ethics, supra, 441 A.2d. at 874, the Court of Appeals identified the
test as to whether a matter is legislative or administrative is
"whether the proposition is one to make new law or execute a law
already in existence." In later discussing that very question in the
course of holding that an initiative would not impermissibly intrude on
administrative discretion, the Court of Appeals has stressed that the
courts "are required to construe the right of initiative liberally
and may impose on the right `only those limitations expressed in the law
or clearly and compellingly implied."' Hessy v. Burden, 584
A.2d 1, 5-6 (D.C. 1990) (A22) (citations omitted) (holding that the
Board's erred in determining that an initiative that created an
administrative body to challenge valuations used for property taxes
improperly intruded on the administrative authority of the Mayor to make
such valuations). If the subject of the Initiative is a "new
plan" it is legislative in character. Id.
The provisions in Initiative 69 plaintiffs challenge clearly fall on
the legislative side of this divide. The provisions regarding the
temporary initial VLT facility license set forth the standards to be
applied in awarding that license. While those standards are admittedly
strict, they are standards. The initiative does not purport to direct the
executive with respect to how it should exercise its authority under an
existing law.
Conclusion
Intervenors/Defendants' motion to dismiss should be granted because the
allegations of Plaintiffs' complaint must fail as a matter of law. The
Board followed appropriate procedure and properly discharged its statutory
duties in approving Initiative Measure 69 as a Proper Subject and in
formulating its Short Title, Summary Statement and Legislative Form. It is
up to the Electorate to decide whether of not the initiative is a good or
bad idea 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. References herein to "(A _)" are to the
Appendix being filed along with this Memorandum. For the convenience of
the Court and the parties, Intervenors/Defendants have attempted to
include in the Appendix all record materials, cases and statutes discussed
herein. The Appendix will reproduce all statutes and regulations cited
herein at A12.
2. An earlier version of the initiative was filed on
March 14, 2006. That version was withdrawn by Mr. Jerrels prior to the
hearing scheduled for April 5, 2006 to address concerns expressed by the
General Counsel of the District of Columbia Council. The General Counsel
raised three substantive concerns with the proposed initiative: (a) it
mandated the collection of a 25% usage fee, (b) it required a two-thirds
vote of the Council to approve additional VLT Facilities, and (c) it did
not clearly provide that the initial VLT Facility was subject to the
zoning and other laws of the District of Columbia. Letter from the General
Counsel of the District of Columbia Council dated April 4, 2006 (Al). Each
of these concerns was addressed in the revised Initiative filed April 10.
3. The Attorney General had previously submitted
comments regarding the March 14 filed proposed initiative (A3) and
supplemented those comments in a letter filed April 18, 2006 with respect
to the revised Initiative filed April 10 (A4). In each of his letters, the
Attorney General concluded that the proposed initiative satisfied the
"proper subject" requirement.
4. The Board also rejected the suggestion by challenger
Drake that it impose extra legal conditions on the proponent of the
initiative as a condition of approving the initiative as a proper subject.
(A5 at p. 153).
5. Plaintiffs also assert that the Board
"improperly refused to hear any testimony on the Legislative Text of
the initiative and said that examination of Legislative Text was beyond
its purview and powers...." To the extent Plaintiffs intend to plead
this assertion as a separate basis to overturn the Board's decision, it
should be dismissed as well. The transcript of the May 3 hearing shows
that Ms. Brizill and others testified at length concerning the legislative
form, or as Plaintiffs refer to it, the legislative "text." See
A5, pp. 230 - 235. What the Board declined to do was decide the
merits of whether or not allowing VLTs is a good of bad legislative
proposal. Id., pp., 235-26. The Board correctly observed that,
under the Home Rule Act, it is for the Electorate to decide that question.
6. Intervenors do not concede that Video Lottery
Terminals would fall within the Johnson Act's definition of "gambling
devices." However, it is unnecessary to consider that mixed question
of fact and law on the present motion.
7. As pertinent here, 15 U.S.C. § 1175 (a) provides
"General Rule. It 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 ... or within special maritime and territorial jurisdiction
of the United States
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 Defendant/Intervenors' Motion to Dismiss, any opposition thereto and the entire record in this
matter, it is hereby
ORDERED that the Motion is GRANTED, and the case is hereby DISMISSED
with prejudice.
IT IS SO ORDERED.
Date:
________________
Honorable 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
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