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Back to Video Lottery Terminal Gambling Initiative of 2006 main page

Dorothy Brizill, Thelma Jones, and Anthony Muhammad 
Amended motion for stay pending appeal
June 14, 2006

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D.C. COURT OF APPEALS

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

AMENDED MOTION FOR STAY PENDING APPEAL

Plaintiffs request expedited consideration by the Court of Appeals of their motion for stay pending appeal.

Plaintiffs hereby move that the order of the Superior Court of the District of Columbia in Civil Action No. 2006 CA 003939 B be stayed because it is being appealed to the D.C. Court of Appeals. A Motion to Stay was denied on June 13, 2006, by Judge Judith E. Retchin of the Superior Court, necessitating this motion. The plaintiffs are filing an amended motion in the Court of Appeals in order to answer arguments made by the defendant, D.C. Board of Elections and Ethics, in their Defendant’s Opposition to Plaintiffs’ Motion for Stay Pending Appeal, filed in Superior Court on June 13, 2006. Since the defendant plans to issue petitions to the intervenor/defendant on the morning of June 14, 2006, the plaintiffs had to file their emergency Motion for Stay with this court on the afternoon of June 13, 2006, and had not yet been served with a copy of the Board’s Opposition motion prior to preparing and filing their initial Motion with this court.

Respectfully submitted,

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

June 14, 2006


D.C. COURT OF APPEALS

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

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR AMENDED MOTION FOR STAY PENDING APPEAL

The plaintiffs herein set forth the points and authorities in support of their amended motion for stay pending appeal to the District of Columbia Court of Appeals, filed on June 14, 2006.

STATEMENT OF FACTS

1. 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.

2. 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.

3. 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.

4. At its hearing on May 3, 2006, the Board approved the initiative as a proper subject for an initiative.

5. 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. Plaintiffs filed a timely Complaint in the Superior Court of the District of Columbia on May 22, 2006, within 10 days of publication, under D.C. Code §11001.16(e)(1)(A).

6. The Superior Court received a Motion to Dismiss from the defendant, the DC Board of Elections and Ethics; a Motion to Intervene from the proponent of the initiative, Barry Jerrels; and a Motion to Dismiss from the Intervenor/Defendant. It granted the Motion to Intervene, and allowed plaintiffs to file an Amended Motion in Opposition to the Motions to Dismiss. Judge Judith E. Retchin did not hold a court hearing in the case.

7. On June 8, 2006, the Superior Court issued an order (Attachment A) granting the defendant’s and intervenor/defendant’s Motions to Dismiss and notified the parties by postal mail.

8. The plaintiffs are appealing that order as a matter of right under the Rules of the D.C. Court of Appeals, Title 2, "Appeals from Orders and Judgments of the Superior Court," Rule 3. A Notice of Appeal was filed in Superior Court on June 12, 2006, and a courtesy copy was provided to this court.

9. The D.C. Board of Elections and Ethics placed a classified advertisement in The Washington Times on June 11, 2006, and a notice on its web site (Attachment B), that it would hold a meeting on Wednesday, June 14, 2006, to issue petitions to the proponent of the initiative.

10. On June 12, 2006, plaintiffs filed a Motion for Stay of the order of the Superior Court under the Rules of the D.C. Court of Appeals, Title 2, "Appeals from Orders and Judgments of the Superior Court," Rule 8(a)(1), so that the D.C. Board of Elections and Ethics would not be able to issue the initiative petitions while the question of whether the initiative presents a proper subject for an initiative is under appeal. Under the D.C. Code, the D.C. Board of Elections and Ethics is authorized to issue petitions for an initiative only after the question of whether the initiative presents a proper subject for an initiative has been finally adjudicated. (D.C. Code §1-1001.16(a))

11. The Motion for Stay was denied by Judge Judith E. Retchin of the Superior Court on June 13, 2006 (Attachment C).

ARGUMENT

12. The defendant, in its Defendant’s Opposition to Plaintiffs’ Motion for Stay Pending Appeal, filed with the Superior Court on June 13, 2006 (Attachment D), propose as a standard for stay: "‘To prevail on a motion for stay, a movant must show that he or she is likely to succeed on the merits, that irreparable injury will result if the stay is denied, that opposing parties will not be harmed by a stay, and that the public interest favors the granting of a stay.’ Akassy v. William Penn Apts. Ltd. Partnerships, 891 A.2d 291, 309 (D.C. 2006) (citing Barry v. Washington Post Co., 529 A.2d 319, 320-21 (D.C. 1987)); see also In re Antioch Univ., 418 A.2d 105,109 (D.C. 1980)."

13. The defendant heaps scorn on the plaintiffs, arguing that they filed "a pleading that is completely devoid of supporting argument and analysis. . . ." However, the plaintiffs are appealing three findings of the Superior Court, and the plaintiffs believe that it is highly unlikely that they would not prevail on any of them. As the court found in Akassy, "a party seeking temporary equitable relief need not show a ‘mathematical probability of success on the merits’ . . . Rather, the level of probability of success that must be demonstrated will vary according to the court’s assessment of the other factors pertinent to the analysis."

14. The Superior Court found that, in the Home Rule Act, Congress granted to the City Council the right to amend or overturn federal legislation that applies specifically to the District of Columbia and is not national in scope, and thus a local initiative in the District of Columbia can overturn, amend, or repeal the Johnson Act, a federal law that bans gambling devices, including the Video Lottery Terminals described in the initiative, in the District of Columbia. While two decades ago two cases supported the contention, we believe the idea that Congress granted to the City Council of the District of Columbia the power to overturn or amend federal laws, a power that no state has, is not credible on its face, and deserves review by this court.

15. The Superior Court found that the initiative does not constitute an appropriation of funds, although it requires the Lottery Board to license at least one slots casino; 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); to "create and publish regulations setting forth a procedure by which Persons may apply for the Initial License" (Initiative §5(a)); to create regulations and supervise a licensing process for any additional gambling licenses (Initiative §6); to create a permitting form and process for manufacturers and service technicians dealing with the gambling machines (Initiative §9); to determine the suitability of licensees (Initiative §12); to adopt rules to regulate slots casinos; to regulate those casinos (Initiative §15); 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)). Plaintiffs believe that these mandates, none of which is qualified in any way by the caveat of being subject to the appropriation of funds by the City Council, do make the initiative an appropriation of funds.

16. The Superior Court agreed with the plaintiffs that the initiative does award a license for a slots casino to one individual, the sponsor of the initiative; it agreed that the awarding of that license is an administrative rather than a legislative matter; and it agreed that an initiative, like all legislation, must deal with legislative rather than administrative matters. However, the Superior Court found that the initiative also amends the law to authorize Video Lottery Terminals, and concludes, "Since Initiative 69 does more than merely address administrative concerns, it would be deemed to be ‘legislative.’" An initiative cannot deal with administrative matters or mandate administrative decisions, such as the awarding of a casino license to the initiative’s sponsor that is the purpose and core of this initiative. Surrounding that administrative core with other provisions that are legislative does not make it into a proper subject.

17. The plaintiffs would suffer irreparable harm if the Motion to Stay were not granted, and if the D.C. Board of Elections and Ethics were to issue petitions to the intervenor/defendant. Two of the plaintiffs, Thelma Jones and Anthony Muhammad, are community leaders in Anacostia. If these petitions are issued, the proponent will launch a public relations campaign and political debate touting the slots casino proposal as a vehicle for economic development and revitalization of the Anacostia community. At the same time, there is genuine interest by the city government and the development community in economic development in this area -- development opportunities that will be set back and perhaps even shut down by the prospect of locating a slots casino in center of the area. Since the plaintiffs believe that they can and should prevail in this court on the merits of their arguments, this damage can be prevented by not allowing petitions to be circulated until after, and unless, the initiative is found to be a proper subject for an initiative.

18. The opposing parties will not be harmed by a stay, and the defendant’s opposition to a stay filed with the Superior Court does not even attempt to argue that it would. The DC Board of Elections and Ethics will not be harmed by issuing petitions for the initiative only after the question of whether the initiative presents a proper subject for an initiative is adjudicated completely. The intervenor/defendant, likewise, will not be harmed should it finally prevail, since it would still be issued the petitions and be allowed the full 180-day period allowed by law to circulate them. The intervenor/defendant may prefer a speedier schedule, but it would suffer no loss from not receiving petitions until the question is fully and finally adjudicated.

19. The public interest is best served if this court grants a stay. In 2004, when petitions for a similar version of this initiative were circulated in the District of Columbia, by a predecessor initiative committee funded by the same sponsor in the Virgin Islands, the effort led to what the D.C. Board of Elections characterized as "significant and pervasive irregularities and improprieties of a magnitude never previously experienced in this jurisdiction. The illegal activities compromised, and made a mockery of, the integrity of the electoral process that the Board is charged with protecting." (D.C. Board of Elections and Ethics, Memorandum Opinion and Order, Administrative Hearing No. 05-002, 7) These irregularities and improprieties were so widespread and profound that the Board levied a record fine of $622,880 against the 2004 initiative committee. One of the primary excuses made by the initiative committee in 2004 for the "significant and pervasive irregularities and improprieties" is that they were caused by a rush to collect so many signatures (around 20,000) in such a short period of time. Now, two years later, this initiative committee has again submitted its initiative to the D.C. Board of Elections and Ethics so late that if petitions are issued it will have only an extremely short period of time (a little more than a month) in which to circulate them and collect signatures, if it seeks to place the initiative on the November general election ballot. (Petitions for initiatives to be placed on the November general ballot must be submitted to the Board of Elections by July 18, 2006.) Even should the intervenor/defendant ultimately prevail on the question of whether the initiative presents a proper subject for an initiative, the public interest will be served if the initiative committee is not again presented a short time period in which to gather its signatures, and if it is not again presented with the pressures that tempted its predecessor committee into committing these irregularities and improprieties.

CONCLUSION

20. The plaintiffs are appealing the question of whether the "Video Terminal Lottery Gambling Initiative of 2006" presents a proper subject for an initiative to the D.C. Court of Appeals. Accordingly, the plaintiff’s request for a Motion to Stay should be granted.


D.C. COURT OF APPEALS

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

PROPOSED ORDER

Upon consideration of the Plaintiff’s Motion to Stay Pending Appeal, it is hereby

ORDERED that the Motion is GRANTED, and the Order of Superior Court of the District of Columbia on the 8th day of June, 2006, is STAYED pending appeal to the D.C. Court of Appeals.

IT IS SO ORDERED.

Date:________________________________      __________________________________


CERTIFICATE OF SERVICE

I hereby certify that I did, this day, June 14, 2006, personally deliver a copy of this Motion for Stay Pending Appeal to:

Kenneth McGhie, General Counsel
District of Columbia Board of Elections and Ethics
441 4th Street, NW, Suite 250
Washington, DC 20001
(202) 727-2194

and to attorney for intervenor/defendant Barry Jerrels:

Jeffrey D. Robinson, Esq.
Baach Robinson & Lewis, PLLC
1201 F Street, NW, Suite 500
Washington, DC 20004-1225
(202) 833-8900

Dorothy Brizill

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