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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
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
and
BARRY JERRELS, et al., Intervenor/Defendant
Civil Action No. 2006 CA 003939 B
Calendar 14
Next Event: Initial Conference
(9/15/06)
Judge Judith E. Retchin
PLAINTIFFS’ AMENDED MOTION IN OPPOSITION TO DEFENDANT’S
AND INTERVENOR’S MOTIONS TO DISMISS
1. Plaintiffs object to the defendant’s and the intervenor/defendant’s
motions to dismiss their complaint. 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. D.C. Code § 1-1001.16(e)(1)(A) stipulates that,
"If any registered qualified elector of the District of Columbia
objects to the summary statement, short title, or legislative form of the
initiative measure formulated by the Board [of Elections and Ethics]
pursuant to subsections (c) and (d) of this section, that person may seek
review in the Superior Court of the District of Columbia within 10
calendar days from the date the Board publishes the summary statement,
short title, and legislative form in the District of Columbia Register
stating objections and requesting appropriate changes. The Superior Court
of the District of Columbia shall expedite the consideration of this
matter."
2. Since 1978, numerous Superior Court and Court of Appeals cases have
held that the Court’s power to review includes its authority to
determine whether the proposed initiative is a proper subject for an
initiative.
3. Furthermore, Hessey v. Burden, 1992, 615 A.2d 562, held that
the Superior Court, once it has acquired jurisdiction, has the power to
conduct its own independent, de novo examination of the proposed
initiative, and is not limited to reviewing the factors considered by the
Board of Elections and Ethics.
4. The text of the initiative, including the summary statement, short
title, and legislative form, was published in the May 12, 2006, edition of
the DC Register, and the plaintiffs timely filed their complaint in
Superior Court on May 22, 2006.
5. The defendant’s and the intervenor’s motions to dismiss the
plaintiffs’ complaint fail to refute the plaintiffs’ contentions that
the Video Lottery Terminal Gambling Initiative of 2006 is not a proper
subject for an initiative, and they do not demonstrate that those
contentions are so baseless as to warrant dismissal.
STATEMENT OF FACTS
6. On March 14, 2006, Barry E. Jerrels, the proponent of the
initiative, submitted two different versions of the "Video Lottery
Terminal Initiative of 2006" to the DC Board of Elections and Ethics.
The Board transmitted copies of those two proposed initiatives to the DC
Office of the Attorney General and to the General Counsel of the City
Counsel for their review of the legislative texts, and scheduled a public
hearing on them for April 5, 2006. However, at the public hearing on April
5, 2006, the proponent withdrew both initiatives in response to concerns
raised by the General Counsel (Attachment 1).
7. On April 10, 2006, the proponent resubmitted a single version of the
"Video Lottery Terminal Initiative of 2006," which had been
revised to respond to the General Counsel’s concerns about the
legislative texts of the first two versions, to the Board. (The title of
the initiative was subsequently 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.
8. 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 DC Register, the official legal bulletin of the
District of Columbia, on April 21, 2006. In the same issue of the DC
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.
9. At the Board’s hearing on May 3, 2006, Antar C. Johnson, Assistant
General Counsel of the Lottery Board, presented to the Board a letter from
Jerry L. Malone, General Counsel of the Office of the Chief Financial
Officer, and Ridgely C. Bennett, Associate General Counsel, Office of the
Chief Financial Officer, DC Lottery Board. This letter stated that the
initiative would mandate additional regulatory costs that would be imposed
on the Lottery Board, and thus would have a budgetary impact. It said,
"Specifically, 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 regulatory functions." (Attachment 2). Aubrey
Thagard, Ward 8 Neighborhood Planning Coordinator in the District’s
Office of Planning, presented testimony that detailed the negative
financial impact of the proposed initiative and the slots casino on the
city’s plans to revitalize the Good Hope Road/Martin Luther King Avenue
neighborhood, as well on the District’s Anacostia Gateway Project, which
is currently underway (Attachment 3). Stanley Jackson, Deputy Mayor for
Planning and Economic Development, sent the Board a letter that also
raised concerns about the casino’s impact upon a $75 million investment
that the city has already allocated for the area (Attachment 4).
10. 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. At the May
3, 2006, hearing, the Board distributed an information sheet entitled
"Proper Subject Matter Determination," that briefly summarizes
eight grounds on which it must reject a proposed initiative (Attachment
5).
ARGUMENT
STANDARD OF REVIEW
11. As stated in Paragraphs 1-4 above, this court has jurisdiction to
determine whether the Board of Elections and Ethics has correctly found
that an initiative presents a proper subject for a ballot initiative.
Judicial review of the Board’s determinations has been affirmed by a
lengthy series of cases, including, among others, Dorsey v. District of
Columbia Bd. Of Elections & Ethics, 648 A.2d 675 (D.C. 1994); Hessey
V. District of Columbia Bd. Of Elections & Ethics, 601 A.2d 3
(D.C. 1991) (Hessey II); District of Columbia Bd. of Elections &
Ethics v. District of Columbia, 520 A.2d 671 (D.C. 1986); Hazel v.
United States, 516 A.2d (D.C. 1986) (per curiam); District of
Columbia Bd. Of Elections & Ethics v. Jones, 481 A.2d 456 (D.C.
1984); Convention Center Referendum Committee v. District of Columbia
Bd. Of Elections & Ethics, 441 A.2d 889 (D.C. 1981) (en banc) (Convention
Center II), and District of Columbia Board of Elections &
Ethics v. D.C., 866 A.2d 788 (D.C. 2005).
THE BOARD’S HEARING ON THE SHORT TITLE AND SUMMARY STATEMENT OF THE
INITIATIVE WAS NOT PROPERLY ADVERTISED AND HELD
12. 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 initiative’s 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.
13. The Code clearly envisions that the Board will hold two distinct
public hearings, separated by a period of days or weeks, the first on
whether the initiative is a proper subject for an initiative, and the
second on the Short Title, Summary Statement, and Legislative Text for the
initiative that it, the Board, has prepared. However, the Board argues
that, since the Code does not explicitly state that these hearings must be
separate, it can at its own discretion consider both matters at a single,
consolidated hearing if the initiative proponent makes such a request.
That misinterprets the requirements of the Code. So that it can fulfill
the steps required by the Code in the order specified, the Board is
mandated to hold two separate hearings. The Board must first find that the
initiative is a proper subject for an initiative. Only after this finding
is made can it formulate its own Short Title, Summary Statement, and
Legislative Text for the initiative. It is this Short Title, Summary
Statement, and Legislative Text, the one formulated by the Board, that it
must then adopt at a second hearing; and all such actions, to be taken by
the Board, must be previously advertised in the DC Register.
14. In this instance, the Board never published the Short Title and
Summary Statement it had prepared in the DC Register as the subject of the
May 3, 2006, hearing, as it is required to do. Instead, it published a
proposed Short Title and Summary Statement that had been prepared by the
proponent of the initiative, and held a hearing on that Short Title and
Summary Statement, contrary to the specific requirements of D.C. Official
Code §§1-1001.16(c) and (d). Near the conclusion of the hearing that it
held on May 3, 2006, on the Short Title and Summary Statement, the Board
recessed its meeting and formulated its own Short Title and Summary
Statement. It then reconvened to announce the Short Title and Summary
Statement that it had formulated, and then adjourned. Therefore, the Board
failed to fulfill its legislative mandate.
15. The Board and the Intervenor argue that, even if the Board failed
to hold two separate hearings, and failed to advertise the Short Title and
Summary Statement that it prepared, the plaintiffs were not harmed, and
suffered no injury. The harm is that the Board did not give proper notice
of the Short Title and Summary Statement that it had formulated, and in
fact it did not hold a public hearing on its own Short Title and Summary
Statement, instead holding a hearing on the proponent’s draft for a
Short Title and Summary Statement.
16. In addition, because it held a single hearing to consider both the
proper subject matter question and the proponent’s Short Title and
Summary Statement, the Board’s hearing lasted from 10:50 a.m. to 7:30
p.m. Several members of the public and governmental representatives who
attended the hearing were not able to remain throughout the nine-hour
hearing, which lasted throughout the entire working day and the evening
hours, and they were forced to leave before the hearing was concluded. In
fact, one plaintiff, Mr. Muhammad, was among those who had to leave the
hearing well before its conclusion.
THE BOARD IMPROPERLY DECLINED TO ENTERTAIN SUBSTANTIVE DISCUSSION OF
THE LEGISLATIVE TEXT
17. 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.
18. The defendant argues that "legislative form" is a very
restricted topic, and that, "In fact, the Board is precluded from
making all but technical changes to an initiative measure prior to its
circulation." (Defendant’s Memorandum at 7). However, when the
Board received the two initial versions of the legislative texts of the
initiative, it sent them to the Office of the Attorney General and the
General Counsel of the City Council in order to receive their substantive
comments on their texts. In response to the comments received from these
two offices, the proponent withdrew the two initial initiatives, revised
the legislative text of the initiative substantially, and subsequently
submitted a single revised version to the Board. The Board then sent the
revised version of this initiative to both the Office of the Attorney
General and the General Counsel of the City Council for any further
comments on the text. However, at the May 3, 2006, public hearing the
Board did not afford citizens any opportunity to comment on the
legislative text or on any substantive legislative flaws that they
perceived within the text. Since not being in proper legislative form is
one of the grounds on which the Board is required to reject an initiative,
the Board should allow a free and full discussion of whether the
legislative text submitted by the proponent is in proper legislative form.
"Proper legislative form" is not restricted simply to the proper
numbering of paragraphs; it includes any flaws in the substance of the
text that would make the initiative an improper law. At the initial
hearing on whether an initiative is a proper subject for an initiative,
the proponent and any opponents should be able to debate any matters
within the text of the initiative, and the proponent should be free to
make any alterations necessary to put the initiative in proper legislative
form, whether they are suggested by the Board, by experts consulted by the
Board, or by opponents. The initial draft of the initiative should not be
considered final, or beyond the Board’s or opponents' consideration or
inspection.
19. The Defendant quotes Convention Center Referendum Committee v.
District of Columbia Board of Elections and Ethics (441 A.2d 889, 900)
(D.C. 1981) as saying that, "The Initiative Procedures Act interprets
this provision to permit the Board to make technical, but not substantive
changes before circulation to assure ‘proper legislative form’"
(Defendant’s Motion to Dismiss at 7), but it fails to note that the
Convention Center Referendum Committee was attempting to revise the text
of its initiative after petitions had already been circulated, and that
the court was speaking about the Board’s ability to revise the
initiative after its petitions had already been circulated: "The
responsibility of the Board, as well as its duty to screen the bill for
subject matter propriety after circulation of petitions . . . may
encourage the Board to give proposers some substantive guidance before
circulation, at the time the Board approves the summary statement; but it
does not give the Board authority to revise the substance of a bill after
circulation, even on the request of the proposer." (Convention
Center Referendum Committee v. District of Columbia Board of Elections and
Ethics (441 A.2d 889, 900-901) (D.C. 1981). In fact, that very case
affirms the Board’s ability to scrutinize the text of an initiative:
"To ascertain the scope of an initiative, the Initiative Procedures
Act directs attention to the initiative bill itself. This focus is not
only sensible but also necessary. Because the initiative may establish a
law, it must include a bill; thus, neither the Board nor the court truly
can determine whether an initiative conforms to the limitations on the
initiative right unless it scrutinizes the very bill that would become
law." (Convention Center Referendum Committee v. District of
Columbia Board of Elections and Ethics (441 A.2d 889, 898) (D.C.
1981).
20. Nevertheless, the Board refused to entertain any substantive
discussion of the legislative text of the initiative, and several times
cut off attempts by plaintiffs Brizill and Jones to discuss provisions of
the initiative (Transcript at 230-248; the transcript of the May 3, 2006,
Board meeting was submitted by the intervenor as its Exhibit A5).
THE BOARD OF ELECTIONS AND ETHICS SHOULD HAVE REJECTED THE PROPOSED
INITIATIVE
21. 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 (the "Johnson
Act"), 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.
A. THE INITIATIVE SEEKS TO REPEAL THE JOHNSON ACT
22. 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. 601 (D.C. Code §1-206.01), reserves to the Congress of the
United States "the right, at any time, to exercise its constitutional
authority as legislature for the District, by enacting legislation for the
District on any subject, whether within or without the scope of
legislative power granted to the Council by this chapter, including
legislation to amend or repeal any act in force in the District prior to
or after enactment of this chapter and any act passed by the
Council." The Home Rule Act Sec. 602(a)(3) (D.C. Code
§1-206.02(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 or
which is not restricted in its application exclusively in or to the
District." The initiative process is subject to the same legislative
restrictions that are imposed on the D.C. Council when it deliberates and
adopts laws.
23. 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)). Washington
Coin Mach. Ass’n v. Callahan, 1944, 142 F.2d 97,79 U.S.App.D.C. 41,
found that, "The purpose of Congress in enacting statute of District
of Columbia making it unlawful to set up or keep in the District any kind
of gambling device designed for the public of playing any game of chance
for money or property was to make criminal the use of all contrivances by
which money or property is bet or wagered or risked on the chance of some
material reward." That intention, and that power of Congress, remain
unchanged.
24. The Defendant and the Intervenor, in their motions to dismiss, rely
upon 15 U.S.C. §1172(a). This section of the Johnson Act 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. . . ." If that
section were the only provision in the Johnson Act that applied to the
District of Columbia, plaintiffs agree that the City Council would be able
to pass a law legalizing the transportation, possession, and use of
gambling devices, and an initiative could also legalize them.
25. However, the District of Columbia is not treated by the Johnson Act
exactly the same as the states. The District of Columbia is separately
covered by 15 U.S.C. §1175(a), the section of the Johnson Act that cites
specific jurisdictions within which manufacturing, repairing, selling,
possessing, and using gambling machines is prohibited absolutely. This
section of the Act does not contain any provision for the jurisdictions it
covers, including the District of Columbia, to opt out of its
requirements. There is no parallel "opt-out" provision in
§1175(a) similar to that given to the states in §1172(a).
26. The defendant and the intervenor argue that, since the Johnson Act
was amended in 1962 to include the District of Columbia within the
definition of a state (§1171(b)), it should be included under the
provisions of §1172(a), and should not be included under §1175(a). In
other words, they argue that they believe that in 1962 Congress intended
to exclude or drop the District of Columbia from the absolute prohibition
of §1175(a). They argue that the retention of the second provision
separately and explicitly covering the District of Columbia, and giving
the District of Columbia no opportunity to opt out of its restrictions, is
a mere drafting error, and that the court should therefore disregard the
absolute prohibition of gambling devices in the District of Columbia in
§1175(a). However, the court must deal with the law as it is actually
written, not as the defendant and intervenor wish it were written. However
unlikely it is that the retention of §1175(a) is a mere drafting error,
even if it were it would be the responsibility of Congress to change it,
not the prerogative of District voters through an initiative.
27. The defendant and the intervenor also assert that Congress can only
legislate for the District of Columbia through legislation that is
national in scope; and that if Congress passes legislation 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. This novel assertion appears to stem
from a misreading of Home Rule Act Sec. 602(a)(3) (D.C. Code
§1-206.02(a)(3)). That section restricts the powers of the City Council
in two ways: first, it says that the Council 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. . . ."
Second, it says that the Council cannot enact any legislation "which
is not restricted in its application exclusively in or to the
District." The defendant and intervenor appear to misapprehend that
this second restriction on the Council is instead a restriction on the
power of Congress, granting the City Council the power to overturn or
amend any Congressional legislation that is restricted in its application
exclusively in or to the District. The intervenor made this argument in
the May 3, 2006, hearing (Transcript at 111-112); while the Board did not
rely on it when it announced its decision, it appears to adopt it in its
motion to dismiss (Defendant’s motion to dismiss at 11).
28. Notwithstanding the contentions of the defendant and intervenor,
"Federal statutes prevail over local regulations when the two collide
or are otherwise inconsistent in their effect and, correlatively,
constitutionally grounded federal operations may not, absent congressional
consent, be thwarted by local fiat." (Don’t Tear It Down, Inc.
v. Pennsylvania Ave. Development Corp., C.A.D.C.1980, 642 F.2d 527,
206 U.S.App.D.C. 122). "Congress’ plenary power over the District
of Columbia means no more than that Congress is akin to a state
legislature, and not that government thereof is not legislative in
character." (McClough v. U.S., 1987, 520 A.2d 285). And,
"Neither the Council nor the electors of the District of Columbia can
overrule acts of Congress." (Hessey v. Board of Elections &
Ethics, 601 A.2d 3, 16). The contention that the City Council, and
thus an initiative, has the power to repeal §1175(a) also runs contrary
to the U.S. Circuit Court of Appeals recent decision in Marijuana
Policy Project, et al. v. United States of America and District of
Columbia Board of Elections and Ethics, 304 F.3d 82: "First,
through the Home Rule Act, Congress delegated some, but not all, of its
Article I ‘exclusive’ legislative authority over the District of
Columbia to the D.C. Council. For instance, only Congress, not the D.C.
Council, may impose a commuter tax or permit buildings above a certain
height. The Barr Amendment’s ban on expenditures ‘to enact . . . any
law . . . to . . . reduce penalties associated with’ marijuana adds
another item to this list of matters that, in the words of the Home Rule
Act, are not ‘rightful subjects of legislation.’" The Johnson Act
has added gambling devices to that list, and it is up to Congress, not the
City Council, whether or not the federal legislation absolutely
prohibiting them in the District of Columbia should be repealed.
29. The intervenor, though not the defendant, also argues that the
"video lottery terminals" envisioned in the initiative are not
gambling devices as defined in the Johnson Act (Intervenor’s motion at
8, footnote 6). However, the definition of gambling devices in the Johnson
Act is very broad, and obviously written to encompass the widest possible
range of devices that could be used for gambling. This court has
previously found that "video lottery terminals" are very similar
to slot machines (which are specifically enumerated in the Johnson Act as
gambling devices), and required them to be described in that way (See
Argo v. D.C. Board of Elections and Ethics, Civil Action No. 04-4740
(June 29, 2004). And the Board recognized that video lottery terminals are
gambling devices by formulating its version of the Short Title of this
initiative as the "Video Lottery Terminal Gambling Initiative of
2006."
B. THE INITIATIVE APPROPRIATES FUNDS
30. 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))
31. 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 stated
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." (Attachment 2) The duties mandated,
required, and imposed by this initiative to establish a gambling
regulatory regime 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. Moreover, both Stanley Jackson,
Deputy Mayor for Planning and Economic Development, and Aubrey Thagard,
Ward 8 Planner in the Office of Planning, submitted statements to the
Board also raising concerns about the slots initiative and the casino’s
impact on the city’s $75 million investment in the historic Anacostia
community. (Attachments 3 and 4).
32. The intervenor attributes to the plaintiffs, and then refutes, two
arguments that they did not make in their complaint (Intervenor’s motion
to dismiss at 12-13). The initiative makes two nonbinding recommendations:
that a 25 percent usage fee be collected from casino proceeds and that
these proceeds be apportioned among the DC general fund, DC public
schools, and a new fund to provide prescription drug benefits for DC
senior citizens. The plaintiffs recognize that these two recommendations
are nonbinding and that they will have no legal effect, and understand
that they are included in the initiative simply as selling points to
convince voters to vote for it. Because they are nonbinding, however, they
do not constitute an appropriation of funds, and the plaintiffs have never
argued that they do.
33. Both the defendant and intervenor claim that the initiative merely
authorizes a program, and does not require the government to appropriate
funds to implement that program. They both cite Convention Center
Referendum Committee v. D.C. Board of Elections, 441 A.2d 889 (D.C.
1981) as support for the proposition that an initiative does not violate
the prohibition against appropriating funds if it merely authorizes a
program, without funding it. The defendant allows that, "It may very
well be the case that Initiative Measure No. 69 would require funding in
order to effectively achieve its purposes, i.e., have a ‘prospective
fiscal effect,’ but that fact is not sufficient to render it an improper
subject of initiative." (Defendant’s motion to dismiss at 13)
However, the initiative does not just authorize a program that could go
into effect were the Council to write enabling legislation to fund it; it
mandates and requires the Lottery Board to carry out all the duties
enumerated in ¶30 above. While the Lottery Board could perhaps postpone
writing regulations to license additional slots casinos if the City
Council did not fund it to do so, under the terms of the initiative the
Lottery Board could not postpone or refuse to license the initial casino
to the initiative’s sponsor. If the slots casino were licensed, the
Lottery Board would not have the option of allowing it to operate without
any regulations or oversight. Since the Lottery Board does not have the
staff, funding, or expertise to regulate or oversee a full-scale gambling
casino, passage of the initiative would force the City Council to allocate
funds for the Lottery Board to fulfill these functions. Thus, the
initiative does not merely authorize a program that could go into effect
were the City Council to appropriate funds for it; it puts a program into
operation that the Council would then be forced to fund.
34. While the defendant and intervenor both cite only Convention
Center in support of their interpretation of the prohibition against
an initiative’s appropriating funds, they ignore several subsequent
applicable cases that expand upon and broaden the prohibition. For
example, Hessey v. District of Columbia Bd. of Elections and Ethics, 1991,
601 A.2d 3 found both that the "power of the purse which Congress
delegated to the District of Columbia government in the Self-Government
and Governmental Reorganization Act remains with elected officials of the
District government and is not subject to control by the electorate
through initiative," and that the "Limitation in the District of
Columbia initiative statute prohibiting electors from proposing laws
appropriating funds applies to more than the Budget Request Act; the
language of limitation must refer to the council’s role in the District
government’s budget process." Restaurant Association of
Metropolitan Washington v. D.C. Board of Elections and Ethics, 132 WLR
1301 (Supr. Ct. 204) found that an initiative to prohibit smoking in
indoor working places and indoor public places would have negated or
limited restaurant tax revenue relied on by the District of Columbia
Council, and thus was not a proper subject matter for an initiative. And D.C.
v. D.C. Board of Elections, 131 WLR 885 (Super. Ct. 2003) found that
an initiative that made certain defendants eligible for court-ordered drug
treatment was an improper intrusion upon the discretion of the mayor and
the District of Columbia Council to allocate the amount of funding for
drug treatment that they determined could be provided within the fiscal
limitations facing the District government and, as such, violated the
"laws appropriating funds" exception to the right of initiative,
even if the coerced spending constituted only a very small portion of the
District’s total budget.
35. Most on point, D.C. Bd. of Elections and Ethics v. D.C., 866
A.2d 788 (D.C. 2005) addresses the very theory advanced by the defendant
and intervenor, that this initiative only authorizes a program and does
not allocate or appropriate funds. In that case, the Board also argued
that the proposed initiative, the "Treatment Instead of Jail for
Certain Non-Violent Drug Offenders Initiative," did not appropriate
funds because it simply proposed a program, but did not contain a specific
provision allocating funds for the program. The court, however, found that
the "Treatment Instead of Jail" initiative contained mandatory
language, including the use of the word "shall" to describe the
actions that trial courts would have to take in certain drug cases. This
mandatory language is exactly parallel to the mandate to license the
initial casino in the "Video Lottery Terminal Gambling Initiative of
2006." The court found in D C. Bd. of Elections and Ethics v. D.C.
That,
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.
Here, again, the defendant would have the court read the words
"subject to the appropriation of funds" into an initiative when
they are not present in the initiative, and where the initiative mandates
and requires a program that would require the expenditure of funds.
C. THE INITIATIVE ENCROACHES UPON MAYORAL AUTHORITY AND THEREFORE
CONFLICTS WITH THE HOME RULE ACT
36. 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. It seeks to issue a license by
legislation, and the issuing of such a license falls within the regulatory
executive authority of the mayor. 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
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.
37. This initiative clearly goes far beyond the policy authorization of
Video Lottery Terminals or slot machines; it goes into the area of
executive administrative issues and powers. The initiative does not simply
set up a legislative scheme for licensing slots casinos. Such a
legislative scheme would be within the Council’s powers, but the
initiative goes far beyond that. The primary purpose of the initiative is
to require the Lottery Board to issue the initial license for a slots
casino to the sponsor of the initiative, who owns or controls the property
specified in the initiative as the site of the initial casino, who has
hired the initiative’s proponent, and who has financed the initiative.
The defendant and intervenor argue that legislatively directing,
requiring, and mandating that the initial license must be granted to this
individual, without discretion, does not undermine the mayor’s licensing
authority, impinge upon his administrative prerogatives, or usurp or
hamper his sole ability to determine whom he will license. Plaintiffs
disagree.
38. While establishing a scheme of licensing is a proper legislative
matter, the actual granting of a license, or mandating the granting of a
license to a particular individual (however that individual is specified,
whether by name or by location) is not a proper subject for the
legislature. "Since the system of government vesting
executive/administrative, legislative, and judicial functions in separate
entities has been established in the District of Columbia, nonlegislative
matters cannot properly be submitted for initiative without violating the
sanctity of that division of responsibility, and thus the power of the
electorate to propose laws through the initiative is coextensive with the
power of the legislative branch of government to pass legislative acts,
ordinances and resolutions, and to make policy decisions, and does not
extend to executive/administrative decisions." (Convention Center
Referendum Committee v. District of Columbia Bd. Of Elections and Ethics,
1980, 441 A.2d 871, on rehearing 441 A.2d 889.)
38. The proposed initiative should have been rejected because it is not
otherwise a proper subject for an initiative in the District of Columbia.
CONCLUSION
WHEREFORE, plaintiffs ask the court to deny the Defendant’s and
Intervenor’s motions to dismiss their complaint; to find that the Board
should have held a separate and distinct public 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.
Respectfully submitted,
Dorothy Brizill, pro se
Thelma Jones, pro se
Anthony Muhammad, pro se
June 5, 2006
CERTIFICATE OF SERVICE
I hereby certify that I did, this day, June 5, 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
and to
Jeffrey D. Robinson, Esq.
Baach Robinson & Lewis, PLLC
1201 F Street, NW, Suite 500
Washington, DC 20004-1225
Dorothy Brizill |
