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No. 04-AA-957
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL
INITIATIVE, Petitioner Oral Argument Scheduled for September 8, 2004 On Petition for Review of the District of Columbia Board of Elections and Ethics Reply Brief for Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal InitiativeJohn Ray (Bar No. 214353) George W. Jones, Jr. (Bar No. 323139)* Erik S. Jaffe (Bar No. 440112) *Counsel of Record TABLE OF CONTENTS
TABLE OF CONTENTS II. AS APPLIED, THE BOARD'S
REGULATION REQUIRING CIRCULATORS TO ATTEST TO THE TRUTH OF THEIR ADVOCACY IS
UNCONSTITUTIONAL A. The Board Improperly Interpreted the
Duties of Circulators IV. THE BOARD'S REMEDY WAS OVERBROAD AND UNCONSTITUTIONAL A. The Board Improperly Rejected
Specific Circulators and Petition Sheets CONCLUSION TABLE OF AUTHORITIESCASESBrown v. Hartlage, 456 U.S. 45 (1982) STATUTESD.C. Code § 1-1001.16 Petitioner (the "Committee") submits this reply brief in support of its petition for review of the Board's August 13, 2004 decision, rejecting the Video Lottery Terminal Initiative of 2004 ("Initiative 68").1 I. THE BOARD IMPROPERLY RELIED ON CONSTITUTIONALLY PROTECTED POLITICAL SPEECH TO DISENFRANCHISE THOUSANDS OF DISTRICT VOTERS.In disregarding the signatures of several thousand District voters who signed petitions supporting Initiative 68 circulated by other District residents "associated with" the Stars & Stripes organization, the Board explicitly relied on (1) statements Ross Williams made during training sessions for circulators and (2) the slogan "Sign Up! For Jobs, Schools, & Health Care" printed on T-shirts worn by some circulators on the first day of the campaign. The apparent premise of the Board's extraordinary assertion of power to regulate political speech is that invariably, voters simply do not take the time to inform themselves adequately about the precise nature and effect of proposed measures, or to even read the summary statements contained on initiative petition sheets. Board Br. at 41 (emphasis added). The Board's assertion is not only patronizing and insulting to the District of Columbia electorate, but demonstrably false. The enormous expenditure of time and effort by Intervenors Ronald Drake, DC Watch, and DC Against Slots to marshal opposition against Initiative 68, the brief filed in this Court by proposed Intervenors Baxley et al. in support of Initiative 68, and Dewayne Smith's complaint to the Board, Board Br. at 40, demonstrate that at least some District voters took "the time to inform themselves" about Initiative 68. So, the premise of the Board's unprecedented assertion of power to regulate political speech is just false. Moreover, contrary to the Board's premise, the tremendous media coverage about the Initiative before and during the campaign as well as the efforts of Intervenors Drake, DC Watch, and DC Against Slots make it unlikely that the electorate was not aware that Initiative 68 involved gambling. For reasons fully stated in the Committee's opening brief and the brief filed by the American Civil Liberties Union ("ACLU"), both Williams' statements and the T-shirt slogan are core political speech protected by the First Amendment. The Board's decision to disenfranchise District voters on the basis of constitutionally protected political speech must be reversed. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. For speech concerning public affairs is more than selfexpression; it is the essence of self-government." Burson v. Freeman, 504 U.S. 191, 196 (1992) (citations and quotation marks omitted). Because this case implicates serious First Amendment concerns, the Court must "make an independent examination of the whole record" to make sure there is no "forbidden intrusion on the field of free expression." Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580, 592 (D.C. 2000) (citations and quotation marks omitted). A. Williams' Statements.At bottom, the Board's criticism of Williams is that while he did not actually tell circulators they should guarantee or promise anything, he implied, suggested or "conveyed the impression" to circulators that education and healthcare benefits were "guarantee[d]." Board Br. 38-39. The Board cites three fragments of Williams' testimony in support of that conclusion. According to the Board, Williams said: (1) the initiative "`was about health care"'; (2) "`that health care would be part of the package"'; and (3) "`that there would be monies isolated out of the process that would go towards education."' Id. at 37.2 None of the three statements guarantees or promises anything. In context, what Williams actually said to the circulators fell well within the bounds of acceptable advocacy about Initiative 68. For that reason, the Board is forced to rely on the absence of evidence that Williams told circulators that Initiative 68 "would not guarantee the benefits he instructed them to rely on," id. at 38, and hypertechnical, strained mischaracterizations of what Williams actually said to defend its decision to strike the signatures of thousands of District voters. Specifically, the Board asserts that Williams' statements "clearly misrepresent" the Initiative, because "[t]he legislative portion of the measure" is not about healthcare, does not include healthcare as part of its package, and does not isolate monies that will go toward education. Id. at 37-38 (emphasis added). Unlike the Board's counsel, however, Williams is not a lawyer and did not purport to offer the circulators a detailed analysis of the legal effect of the implementing legislation. The circulators certainly did not think they were receiving such an analysis. There is no reason to think Williams, any circulator, or any potential signatory distinguished between the "Findings and Purposes" in § 2 of the legislation and what the Board apparently refers to as the "legislative portion" in §§ 3 and 4.3 In context, the circulators and potential signatories more likely understood they were hearing a necessarily short and general example of advocacy regarding the effects - direct, indirect, and hoped-for - of the Initiative. Williams' failure to make the Board's fine distinction between the Findings and Purposes set out in § 2 of the legislation and the "legislative portion" in talking to non-lawyer petition circulators cannot render his speech false, misleading, or beyond the protection of the First Amendment. In Guilford Transportation v. Wilner this Court affirmed then Superior Court Judge Huvelle's summary judgment for the defendant Op-Ed column writer in a defamation case. In rejecting each of the plaintiffs' implied libel claims, the Court carefully examined both the asserted implication and the context in which it was presented. 760 A.2d at 597-603. As the Court explained, "[i]t is not impossible that some readers would read the column as suggesting what the plaintiffs say that it suggests, but to hold [the writer] responsible for every inference a reader might reasonably draw from his article would undermine the uninhibited discussion of matters of public concern." Id. at 601. Similarly, the Committee cannot be held responsible for every conceivable inference that might be drawn from its advocacy. In sharp contrast to this Court's approach in Guilford Transportation, the Board terminated its analysis of Williams' statements after concluding that his statements could be understood as suggesting that Initiative 68 guaranteed education and healthcare benefits. No reasonable person could have understood Williams as suggesting that education and healthcare benefits were guaranteed by the Initiative. Petitioner's Opening Brief ("Pet.") at 22-25. The Board fails to give sufficient consideration to the impact of its holding on "the uninhibited discussion of matters of public concern" that the First Amendment was intended to foster or the rights of District voters to participate in the Council follow the strong recommendation of the voters of the District, however, the funds will be created and funded. In support of its implicit conclusion that some unspecified, but significant, number of voters may have signed the petition because circulators understood Williams' remarks as suggesting they should guarantee or promise education and healthcare benefits to potential signers and then followed that advice, the Board cites the testimony of Danielle Campbell. Campbell testified that "she heard several [unidentified] circulators tell potential signers that Initiative Measure No. 68 would lower the prices of medicine for senior citizens." - Board Br. at 40. Inexplicably, the Board also cites the complaint from Dwayne L. Smith that makes it quite plain he was not misled in the slightest. Id. ("'I read the petition twice and did not find any reference to health care but saw references to a video lottery terminal initiative."'). Campbell's testimony is no evidence that any voters were misled because of anything Williams said to the circulators he trained; it certainly is no evidence that any substantial number of voters was misled. For what it is worth, even accepting Campbell's testimony establishes only that "several" of more than 300 circulators exaggerated the effect of the Initiative. The testimony sheds no light at all on whether anyone who heard these statements signed on that basis or, like Dwayne Smith, read the summary statement approved by the Board and the Superior Court or the tremendous amount of other available information, understood precisely what the Initiative was about, and signed or not on that basis. B. T-Shirts.Tellingly, the Board makes virtually no attempt to defend the substance of its conclusions that the T-shirt slogan "Sign Up! For Jobs, Schools & Health Care" was false or misleading, that it expressed a guarantee of jobs, education, and healthcare, or that it was reasonably likely to be understood by voters as a guarantee. Instead, the Board labors mightily to support the assertion that counsel conceded the point.4 The Board attempts to find support for its assertion in a May 27, 2004 letter from the District of Columbia Attorney General, which is not part of the record on appeal, is not attached to the Board's brief, and is wholly irrelevant to any issue in this case in any event.5 The May 27, 2004 letter provides no support for the Board's suggestion that counsel conceded that the T-shirt slogan guaranteed or promised jobs, education, and healthcare or the more remarkable suggestion that the May 27 letter is evidence that the Committee understood and agreed that any reference to "Jobs, Schools, and Healthcare" was false and misleading. Rather, the letter expresses the Attorney General's view as to what the summary statement should include given the Board's responsibility for preparing a "true and impartial summary statement" "expressing the purpose of the measure" and avoiding any "intentional[] prejudice for or against the measure" as well as his view of an appropriate "short title ... to permit the voters to identify readily the initiative ... and to distinguish it from other measures which may appear on the ballot...." See DC Code § 1-1001.16(c), (d). Like Judge Boasberg, the Attorney General did not purport to define what proponents and opponents could say about the Initiative.6 Further, although the Committee revised the Initiative to meet objections that, as originally drafted, it improperly interfered with the appropriations authority of the Mayor, the City Council, and Congress, the Committee neither believed nor agreed that the Attorney General's letter was even relevant to what might be said for or against the Initiative. Counsel conceded only the obvious point that the T-shirts should have referred also to VLTs. Pet. 25-28.7 The Board's attempt to read into counsel's acknowledgement of that point a concession that the words "Sign Up! For Jobs, Schools, & Health Care" guaranteed anything is both unfair and unavailing. In any event, the First Amendment denies the Board any authority to regulate or punish political speech. II. AS APPLIED, THE BOARD'S REGULATION REQUIRING CIRCULATORS TO ATTEST TO THE TRUTH OF THEIR ADVOCACY IS UNCONSTITUTIONAL.The initiative statutes do not require circulators to attest to the truth of their advocacy. Pet. at 31-33. That requirement is imposed only by the Board's regulation. The Board relied on that regulation in striking the petitions from all circulators "associated with" the Stars & Stripes operation, without inquiry as to whether any of the circulators knowingly or recklessly guaranteed healthcare and education benefits to any signatory. As amicus ACLU points out, the Board's statutory authority to require circulators to attest to the truth of their political advocacy is at best doubtful. ACLU Br. at 17-20. Of course a government may adopt content-neutral, reasonable, time, place, and manner regulations to avoid chaos in its elections and to prevent fraud. See, e.g., Burson v. Freeman, 504 U.S. at 197-99. But that unexceptionable proposition has nothing to do with what is at issue in this case. As applied in this case, the Board's regulation is not content-neutral, but purports to authorize the Board to directly regulate political speech that the Board finds "false" or "misleading." On the basis of its strained and wholly implausible characterization of what Williams said and the Tshirt slogans the Board erroneously concluded that both Williams' statements and the T-shirt slogan were not protected speech. The Board then presumed that every circulator "associated with" the Stars & Stripes operation falsely stated to voters that Initiative 68 guaranteed education and healthcare, and for that reason alone falsely stated in his or her circulator's affidavit that no false statements had been made. Putting to one side the question of whether the Board could have found on the record before it that any of Williams' statements or the T-shirt slogan was knowingly false or uttered in reckless disregard of the truth, there is no conceivable basis on which the Board could have found that the 57 circulators about whom the Board had no evidence - except that they were associated with Stars & Stripes - knowingly or in reckless disregard of the truth "guaranteed" voters that Initiative 68 would provide education and healthcare benefits. As construed by the Board, its regulation does not require any such proof. Upon inferring that all the Stars & Stripes circulators made the supposedly false statements suggested to them by Williams or by wearing the T-shirt, the Board struck all the signatures collected by them. In that regard, this case is indistinguishable from Brown v. Hartlage, 456 U.S. 45 (1982), in which the Court struck down a Kentucky statute that purported to authorize the invalidation of an election on the basis of an innocent, but false, statement by one of the candidates. The "breathing room" the First Amendment affords political speech or other speech about matters of public concern prohibits the Board from punishing speech absent clear and convincing evidence that it is actually false and uttered with knowledge of falsity or in reckless disregard of the truth. III. THE BOARD IMPOSED IMPROPER LEGAL DUTIES ON CIRCULATORS AND IGNORED THE SAFEGUARDS ESTABLISHED BY THE COMMITTEE.A. The Board Improperly Interpreted the Duties of Circulators.The Committee's opening brief, at 38, explained that the duties of a circulator are narrowly and exclusively defined by the affidavit requirement as essentially those of an accountable witness, that such a narrow definition was required by this Court's cases and the First Amendment, and that the Board had improperly imposed the additional responsibilities and duties that resident circulators play the predominant role and be in charge of non-residents working with them. Pet. 33-38. The Board, Br. at 14-18, now concedes the Committee's narrow construction, concedes that requiring more would violate the First Amendment, but denies that it had required more in its Decision. The Board's current concessions on the law are welcome; its denial of prior error in its Decision is unavailing. Its recap of the Decision's early discussion of a circulator's presence and awareness duties merely repeats the baseline on which the parties agree. Id. at 14. But it is the Board, not the Committee, that plays "`fast and loose"' and "mischaracteriz[es]" its Decision when it claims that its subsequent discussion of a circulator's duties of predominance and control merely refers to those witnessing responsibilities and nothing more. Id. at 14, 16-17. The salient paragraphs of the Decision appear on pages 27-28 and explain the Board's view of the proper "roles" of circulators and non-residents and the supposedly improper "reversal" of those roles [App. 125-26]. Quoting a substantially redacted portion of those paragraphs, the Board now claims that its discussion of who must have the "`predominant role"' was merely referring to the circulators' duty to be "`responsible and accountable"' in their witnessing functions. Board Br. at 16-17. But the portions of the discussion elided by the Board rebut such revisionism. For example, the Board chastises non-residents for being viewed as the "the `experts' or `professionals' in the field" to whom the managers looked and as the "`coaches"' and "`primary' individuals." Decision at 27 [App. 125]. The accompanying footnote 27, also elided from the Board's brief, describes - as an adverse example - Board counsel asking if non-residents "were supervising the circulators" and being told that the non-residents are "in the field with a circulator. ... And ultimately, the responsibility - the essence of the responsibility has to be there. I don't see how it could be any other way." Id. at 27 n.27 [App. 125]; July 27 Tr. at 29192. That the Board found fault with what it now concedes to be the perfectly lawful behavior of non-residents acting as experts, coaches, primary individuals, and responsible supervisors - none of which is inconsistent with the residents' witnessing duties - illustrates how the Board viewed the responsibilities of residents as involving more than the faithful execution of their affidavits. The Board's broader imposition on circulators likewise is evident in its description of any Category 3 resident circulator as a "purported circulator (but mere `witness')," and its complaints that non-residents recruited and field-trained circulators, that non-residents had custody of the sheets, and that residents were not obliged to accompany their associated non-residents in turning in sheets at the end of the day.8 The Board's view that "mere" witnesses were not genuine circulators again illustrates that it expected and required more than just the responsibility and accountability of a witness.9 It is apparent that the Board's overbroad view of the law was a significant factor in rejecting the 57 additional circulators. Apart from their protected advocacy, the Board's only criticism of those circulators was the general complaint that they were "mere" witnesses, that they looked to the more experienced non-residents as coaches and supervisors, and thus they were - here is the leap - inherently suspect and unqualified to sign their affidavits. When the Board's erroneous expectations of circulators were not satisfied, it interpreted that as a taint on the process. However, it was only the Board's decision-making that was tainted by its mistaken view. Its conclusion that non-residents overstepped their supposedly restricted roles as "assistants," and improperly possessed "control," "discretion," and an "air of authority," Decision at 27-28 [App. 125-26], condemns all non-residents who were in a position of control, and all resident circulators content to perform only their narrow witnessing duties, merely because they were in a "position" to manipulate the process, even though they had not been shown to have done so. Notwithstanding the Board's current retreat, its erroneous view of the "role" of resident circulators tainted its Decision and tainted its result. B. The Training and Supervision of Circulators Was Significant.The Board, Br. at 28-33, repeats the claim in its Decision that there was no training or supervision but simply ignores the evidence to the contrary. For example, the Board never disputes that the purging process caught and eliminated various suspect sheets and even resulted in a referral to the Board's General Counsel when evidence of fraud was found. Pet. at 43; July 26 Tr. at 58. The yellow T-shirt issue triggered a prompt response and comprehensive field verification. July 23 Tr. at 413; July 26 Tr. at 34; July 27 Tr. at 136. Accusations of nonresidents unaccompanied by resident circulators likewise triggered immediate meetings, instruction to remind non-residents of their obligations, and subsequent spot-checks to ensure procedures were being followed. July 23 Tr. at 313-14 (response to charges concerning nonresidents circulating); July 28 Tr. at 118 (same); July 26 Tr. at 367 (Darnell testimony of daily spot checks by supervisors to ensure circulators and non-residents remained together); July 27 Tr. 431-32 (Grocholski drove around city to observe circulators).10 The Board, however, unrealistically expected every upper manager to be in the field, oblivious to the fact that in an operation of this size the use of second- and third-tier supervisors is inevitable and entirely appropriate. See, e.g., July 26 Tr. at 443 (non-residents with Inabinet ensured accuracy of advocacy). 11 The Board, at 32, also cites the concession of 467 petition sheets and an alleged overall validity rate of 39 % as supposed evidence of faulty safeguards and accuses the Committee of trying to deceive the Board by having submitting those signatures at all. Once again, it is the Board that is being deceitful. The 89 sheets eliminated at the beginning of the hearing involved no concession of wrongdoing, but rather technical deficiencies that were identified in the sheetby-sheet reviews. Given the short time between the collection of the sheets, their submission, and the beginning of the hearings, it is hardly surprising that it took time to review the technical sufficiency of 3,869 sheets and 56,044 signatures. As for the 378 sheets conceded toward the end of the hearing, the overwhelming majority were withdrawn because the few signatures they contained were not of registered voters, a common problem in all petition drives that has nothing to do with misconduct or the integrity of the process. 12 The remainder of the sheets withdrawn primarily involved circulators who, based on the hearing testimony, had not complied with their obligations. But such withdrawals add nothing to the Board's criticism of the process, as opposed to the individual wrongdoers involved, and there is no suggestion that the Committee knew, ex ante, that those circulators had engaged in wrongdoing. The overall validity rate likewise offers no indication of faulty procedures or wrongdoing. Contrary to the Board's calculations, the total number of valid signatures - i.e., registered voters - submitted was over 26,000, for a rate of 48%, which is quite respectable for a petition circulated in a large urban area with low voter registration in general. July 28 Tr. 93, 355, 358. The eventual number of signatures drops to 21,000 not because they were from invalid signatories, but because of purely technical errors that disqualified otherwise valid signatures during the Board's line-by-line review. Over the five-day period of the petition drive, therefore, there were numerous examples of the Committee quickly reacting to the inevitable problems that arose, and the fact that not every problem was resolved during the five days of the campaign and before the petition sheets were submitted is hardly an indictment of the process as a whole. IV. THE BOARD'S REMEDY WAS OVERBROAD AND UNCONSTITUTIONAL.A. The Board Improperly Rejected Specific Circulators and Petition Sheets.The Board does not dispute its favorable evaluation of circulators Diggs and Inabinet, yet offers no defense of their exclusion. The Board likewise silently concedes that the absence of circulation dates on 61 sheets is a harmless technical flaw that should not have disqualified such sheets in light of their indisputable timeliness. And, as noted by intervenors, circulator Shamika Mack was wrongfully condemned based on testimony that in fact demonstrated the opposite - that she remained with her non-resident and appropriately signed the affidavits for those sheets.13 B. Extrapolating Malfeasance Beyond Individual Violators Is Inappropriate.In the end, the Board's decision depends upon its attempt to extrapolate from limited individual wrongdoing to a sweeping rejection of all resident circulators associated with Stars & Stripes. But when the double-counting and chaff is removed, the Board's broader inference and remedy are inappropriate and unconstitutional. As for identified wrongdoing, the Board, at 16, notes only six circulators who testified to non-compliance with their duties, an additional three it claims were implicated by others,14 and two who took the Fifth. With no evidence to condemn any of the other 57 Stars & Stripes circulators, the Board resorts to recycling of the same individual wrongdoing to give the false impression that more individuals were involved and that the few bad apples were somehow representative of all the circulators associated with Stars & Stripes.15 The Board's attempt, Br. at 25, to draw a sweeping inference from the 10 Stars & Stripes circulators who asserted their Fifth Amendment Privilege is especially unfair. For days surrounding the hearings the papers had been printing false charges of illegality claiming that a resident who accompanied and witnessed signatures gathered by non-residents was violating the law.16 Board Counsel exacerbated the problem through the fifth day of the hearings by falsely instructing witnesses that they could go to jail if they did not personally gather the signatures, as required for nominating petitions - but not for initiatives.17 Thus, throughout the petition drive and most of the hearing, challengers and the Board had essentially - and falsely - maintained that any Category 2 or Category 3 circulator (see Pet. Br. at 6 & n.5) was a criminal, undoubtedly terrorizing completely innocent circulators who had done absolutely nothing wrong. No wonder several took the Fifth or simply declined to appear. For the Board to now impute wrongdoing to those circulators given its contribution to the confusion and fear is staggering. Furthermore, when eight of the witnesses who took the Fifth were given immunity, two - Diggs and Inabinet - were found to have complied with the law. Pet. at 45-46; see, e.g., July 26 Tr. at 423-33 (Inabinet badgered into taking Fifth, immunized, and exonerated). Two who appeared to testify on July 22 and 23 had not been given immunity by the time the hearing ended for the day and did not return to testify on July 26 like the others. But precious little can be inferred from that. In any event, what this has to do with the remaining circulators who did not take the Fifth but were excluded anyway is a mystery. If the Board is simply assuming that they too would have taken the Fifth if called to testify, it is compounding its error with condescension. If properly advised of the law and their rights, there is no reason to believe that they would have refused to testify and no basis for condemning them on pure speculation. The Board next attempts to extrapolate broader wrongdoing from a complaint by John Capozzi alleging that non-residents were circulating petitions in Southeast and testimony by Colbert that Antoine Jeffries was recruited by Mike Jones to sign sheets circulated by 2 nonresidents that he had not witnessed. Board Br. at 25-26. The Capozzi testimony certainly is not proof that resident circulators other than those already identified signed the sheets of such nonresidents and is just as likely double counting of the few instances of wrongdoing the Board can demonstrate. There is no basis to assume that the non-residents observed by Capozzi had their sheets signed by any of the 57 other circulators for whom there was no evidence of wrongdoing. The discussion of Jeffries is a clear example of double counting - he was already individually excluded and hence does not expand the scope of the limited wrongdoing found. As for the attempt to impute the wrongdoing up the chain to Mike Jones - and implicitly back down the chain to other circulators not identified - Mr. Jones vehemently denies that he encouraged or ratified such wrongdoing, yet his affidavit to that effect was excluded and his proffered appearance rejected because it did not fit the Board's schedule.18 As for the Board's claims of widespread forgeries, once again the Board recycles from the same evidence and individuals in order to suggest that more circulators were involved. Board Br. at 26. Forrest Jackson and Steven Atkins already were among the 6 who testified and had their sheets excluded, and hence do not add anything justifying further extrapolation.19 The alleged forgery of a voter signature for Robert Price and allegations of a "` signing party"' likewise offer little basis for casting a broad net. Id. Mr. Price's allegedly forged signature is one of only two specific examples that the Board can glean from the tens of thousands of signatures submitted, and his signature appeared on a sheet from Andre Rempson, who was already identified and excluded. July 23 Tr. at 201-05.20 As for the supposed "signing party," the only evidence of any such behavior again circles back to Mr. Rempson, who admits to copying only two names from a phone book on the evening of July 6, after the final petition sheets had been submitted to the Board at 4:45 p.m. July 26 Tr. at 419-21. Rempson further testified that he did not see anyone else copying names. Id. at 402-05, 417. Ms. Campbell's testimony that she "heard" someone mention a signing party is at best double or triple hearsay. Likewise, Ms. Darnell, when asked to comment on Campbell's testimony replied that she didn't "know nothing about that," didn't "hear nothing about that," and noted that her non-resident "stressed to us `Don't write it out the phone book."' Id. at 3 82. In the end, therefore, any forged voter signatures in this case were a miniscule fraction of those found in Williams, the remedy of excluding the sheets from the individual proven-wrong doers was already applied, and there is nothing in Williams that suggests the far more drastic remedy of excluding the sheets from all other circulators associated with Stars & Stripes. The Board's final two justifications for imputing the wrongs of the few to the many are both as thin as they are outrageous. The claim that 9 witnesses the Board attempted to subpoena were listed at non-existent or abandoned addresses, Board Br. at 27, conveniently elides that the addresses were given to the Board by the challengers, such addresses so provided were often wrong, the Board made no effort to confirm them from the circulator affidavits or government I.D.s copied by Stars &Stripes and provided to the Board, and reed the Committee's offer of assistance in locating the witnesses.21 It is thus startling that the Board would lay its own failings at the feet of the Committee and Stars & Stripes, which went to extraordinary lengths to ensure that all circulators were legitimate D.C. residents and could be located if questions arose.22 Finally, the Board observes that the Committee conceded 467 petition sheets, suggesting that those sheets involved wrongdoing by 113 circulators. Board Br. at 27. That suggestion is breathtaking in its disingenuousness. The overwhelming majority were conceded for technical deficiencies, not any wrongdoing by the circulators. Page 13, supra. And the ones that were conceded due to circulator wrongdoing are the same ones, involving some of the same few individuals, that the Board keeps recycling as if they demonstrated something more.23 C. The Board's Overbroad Remedy Violated the First Amendment.The petition in this case faced extensive scrutiny. Challengers turned over every stone, videotaped and audiotaped the circulation process, sent out teams of opponents to seek dirt from circulators, and beat the bushes through the press at every opportunity. Yet when the hearings were over, the only wrongdoing the Board had established was 3 forged signatures of voters, two instances of supposed forgery of circulator affidavits, and 8 circulators who had not fully complied with the "in the presence" requirement. That's it. The narrowly tailored remedy applied in Williams, and the proper remedy here is to reject only the petition sheets of individual circulators who have been shown to have committed significant wrongdoing. To reject the sheets of numerous others based on mere supposition and amorphous invocations of "integrity" and "pollution" burdens far too much core First Amendment activity and simply cannot be tolerated under our Constitution. CONCLUSIONFor the foregoing reasons and the reasons stated in the Committee's opening brief, this Court should reverse the decision of the Board and order the Board to place Initiative 68 on the November 2004 ballot for consideration by the voters of the District of Columbia. John Ray (Bar No. 214353) George W. Jones, Jr. (Bar No. 323139)* Erik S. Jaffe (Bar No. 440112) Counsel for Citizens Committee for the D.C. Video Lottery Terminal Initiative APPENDICES [Not available on-line]Appendix A: Public Hearing on Challenges Filed to Initiative Measure No. 68, "The Video Lottery Terminal Initiative of 2004, July 27, 2004 Transcript (Testimony of Ross Williams) pages 21-27. Appendix B: Public Hearing on Challenges Filed to Initiative Measure No. 68, "The Video Lottery Terminal Initiative of 2004, August 2, 2004 Transcript (Closing Argument of John Ray) pages 223-242. CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Reply Brief for Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative and appendix was served this 31st day of August, 2004 upon the following: BY TELECOPY BY TELECOPY
BY ELECTRONIC MAIL D.C. Watch BY ELECTRONIC MAIL BY ELECTRONIC MAIL BY ELECTRONIC MAIL 1. The Board's brief was due on Friday, August 27, 2004. The statement in the certificate of service to the Board's brief that any of the counsel for the Committee was served on August 27 is false. At the request of Alice Miller, then acting general counsel for the Board, counsel for the Committee agreed to accept service by e-mail or telecopy. After midnight, the Board faxed an unsigned copy of its brief to John Ray. On Saturday afternoon, at 5:45 pin, William O'Field, the Board's Public Information Officer, e-mailed an unsigned, electronic copy of the brief. 2. Williams' testimony on this point is attached as Appendix A. 3. According to the Board, the "falsity of Mr. Williams' instructions" is revealed because the two funds recommended in the Initiative do not exist today and "can not be created pursuant to Initiative Measure No. 68." Board Br. at 38 (emphasis omitted). Of course the funds recommended in the initiative do not exist today; neither do the proposed entertainment complex and VLTs. Passage of the Initiative "can not ... create[]" anything beyond authority to install and operate VLTs. If the measure is passed by the voters, if it is not vetoed by Congress, if the proponents secure adequate financing and go forward with the project, and if the Mayor and City political process and to decide for themselves the merits of the arguments for and against the Initiative. 4. The transcript of the discussion on the point is attached as Appendix B. 5. Contrary to the false representation in the Board's brief (at 36), the extra-record material relied on in the text of its brief is not attached as an appendix to the Board's brief The June 3, 2004 letter from the District of Columbia Attorney General, attached to the Board's brief, is also not part of the record and should be stricken., 6. Intervenors DC Watch and DC Against Slots completely mischaracterize Judge Boasberg's opinion and misrepresent the basis for it. DCW/DCAG Br. at 26-27. See Pet. at 3 & n.4; Exhibits 56 & 57. 7. When DC Watch first complained about the T-shirts, counsel for the Committee explained: "[T]he reference to `Jobs, Schools, and Health Care' is not false and clearly was not `deliberately misleading and false.' If District voters pass Initiative 68 and the Capital Horizon Entertainment Complex ... is built, common sense dictates that it will create jobs during the construction stage and permanent jobs following construction. Regarding the words `Schools' and `Health Care,' it is estimated that the Complex will generate $214 million that will be available to the District to help fund important City services such as health care, schools, police, fire etc. More importantly, Section 2 (7) of Initiative 68" strongly recommends that 33 1/3% of the revenues be allocated to the District of Columbia Public Schools Fund, 33 1/3% to the District of Columbia Senior Citizen Prescription Drug Benefits Fund, and 33 1/3% to the District of Columbia General Fund. Exhibit 7, Tab 1, Letter from John Ray to Board 2 (July 6, 2004). 8. Curiously, both footnote 27 and the text regarding field recruitment and training refer to John Michael of Initiatives Plus, not Stars & Stripes. July 27 Tr. at 293-95, 351-52. But Stars & Stripes required residents to appear and present I.D.s when turning in their sheets and had copies of I.D.s from virtually all of their resident circulators with which they could and did verify the signatures on the circulator affidavits. Pet. at 43; July 27 Tr. at 51, 406; July 28 Tr. at 48, 52. 9. The Board's August 3 oral announcement of its decision likewise confirms that it was imposing additional requirements, not merely describing the witnessing duties of circulators. Aug. 3 Tr. at 15-16 ("resident must maintain the primary responsibility for that signature-gathering process, and that D.C. resident must be in the presence of what is going on so as to be able to vouch for the integrity of the process") (emphasis added); id. at 21 (complaining about the lower pay for a "resident who only witnessed a signature," "notwithstanding the fact that that D.C. resident was supposed to be in control of the process.") (emphasis added); id. at 21-22 (while assistants are allowed "in the signature-gathering process, we emphasized at the time that the D.C. resident and that person's role must remain primary. ... [Here] the roles appeared to be reversed.") (emphasis added). 10. That Ms. Darnell and her non-resident took affirmative steps to deceive the spot-checkers undoubtedly is an indictment of them, but it hardly establishes that numerous others were similarly deceitful or that the supervision itself was lacking. 11. The Board's criticism of Ms. Wilcher as having only spent an hour or so in the field is disinegenuous as she was the Treasurer and engaged in petition-sheet verification tasks, not one of the field Managers. And even then she got out from behind her desk and surveyed the field when the need arose. The Managers tasked as Mr. Alfonso's eye's and ears, however, were Messrs. Newell, Neverson, Swain, King, Robertson, and Hughes. July 28 Tr. at 262-64. 12. Indeed, such sheets were withdrawn based on the suggestion of Board Counsel McGhie, who noted that withdrawing them would improve the results of any subsequent random sampling. McGhie's suggestion amply demonstrates that the Committee gained no advantage from initially submitting those sheets and could not possibly have been intended to deceive the Board. 13. Contrary to the Board's assertions, the testimony states that Ms. Mack was in the presence of her associated non-resident and not once suggests that she engaged in any of the conduct that Ms. Campbell admits to for herself. July 26 Tr. at 288, 297-99, 314 (Mack always in presence of Ray Kingsford); id. at 289-91 (Mack occasionally let Kingsford take payment credit for some sheets she personally circulated and signed and only took payment as a witness on those sheets). At a minimum, the 27 excluded sheets from Ms. Mack should be reinstated. 14. The Board originally condemned four circulators as implicated by others but eventually conceded error in labeling Scott Smith a wrongdoer. Decision at 32 n.33 [App. 130]. And Shamika Mack was not implicated by the testimony, she was exonerated. Supra at 14 & n.14. 15. The Board, at 23-24, objects that circulators were not "cherry-picked," but ignores that the witnesses were chosen by the challengers, who opposed bringing in circulators that would testify favorably. July 23 Tr. at 463-65. Furthermore, challengers admit that they sent teams to speak with as many witnesses as possible, Aug. 2 Tr. at 178, undoubtedly influencing the ones who showed up and perhaps scaring off many innocent circulators with accusations of illegal behavior based on a flawed understanding of a circulator's obligations. Such a warped process hardly provides a random sample and is quite fairly described as cherry-picking. 16. Exhibit 3, DCW/DCAS Challenge at 6, July 19, 2004 (alleging circulators must "personally" obtain the signatures); Washington Post, July 8, 2004, at B 1 (Board General Counsel saying circulator must handle the form); Washington Post, July 7, 2004, at A9 (alleging violations); Washington Post, July 18, 2004, at A15 (same). 17 July 22 Tr. at 119 (Board counsel incorrectly instructing witness); July 23 Tr. at 177-78 (protest regarding circulator definition); July 26 Tr. at 188 (finally offering an improved, but still flawed, definition); Aug 2 Tr. at 285 (explaining how innocents mislead into believing they had violated law). 18. Mr. Jones was in Ohio working on another petition for a different company at the time the hearings began. When he was located he offered to appear in D.C. as soon as his Ohio job ended but the Board rejected that offer because he would have come in on August 3. Aug. 2 Tr. at 7, 10, 44. But the fact that the Board's tight schedule precluded it from accommodating the reasonable scheduling conflicts of persons not under the Committee's control, and hence prevented it from hearing favorable testimony, cannot be a basis for imputing wrongdoing from his temporary unavailability, accusing the Committee of remaining mum, or extrapolating wrongdoing to other circulators two or more steps removed. 19. The Board's lopsided view of the evidence leaves the impression of clear wrongdoing rather than the more ambiguous situation that existed even as to the worst examples. Jackson's story, for example, that his I.D. was stolen from him and his signature forged, July 23 Tr. at 137-48, strains credulity given that he did not call the police to report the supposed theft and the signatures on his petition sheets and circulators declaration appear to match his actual signatures. 20. As for the Board's post hoc scatological example from sheet 2765, line 7, see Board Br. at 21 n.10, there is no cogent reason to attribute that single example to the wrongdoing of the circulators rather than the juvenile humor of a signatory or spite of an opponent of the Initiative. 21. See July 28 tr. at 400 (Ray offering to help locate witnesses); Aug. 2 Tr. at 109, 131 (Board Counsel Stroud describing challengers as source of addresses and lack of Board verification); id. at 133-34, 248 (Ray discussing copies of I.D.s for witnesses and offering to help get proper addresses); id. at 114-15, 126, 141-44 (wrong addresses on service list for circulators Afolayan, Howell, and Allen). Furthermore, many of the persons the Board was unable to serve were confirmed as registered voters, id. at 126-29, yet the Board still could not locate them, suggesting a problem with their service, not with the addresses given. That the Board used a single staffer, Aug. 2 Tr. at 110, 113, rather than a professional process serving company, to serve over 100 subpoenas likely explains much of the problem. 22. Intervenor Drake's suggested missing-witness inference is especially inappropriate in a case like this given that the witnesses in question were not missing - the Board merely did a poor job locating them in a timely manner - and such witnesses were not under the Committee's unique control. Cf. Aug. 2 Tr. at 15-16 (discussing rule in connection with witness Mike Jones). In any event, such an inference is discretionary with the trier of fact, was not adopted by the Board, and should not be imposed by this Court as a reason for restricting First Amendment activity. Such an inference is hardly clear and convincing proof of anything. Katkish v. District of Columbia, 763 A.2d 703, 707 (D.C. 2000) ("trial court must exercise discretion [whether to instruct] on the missing witness inference and be `constantly mindful of the dangers inherent in creating evidence from nonevidence."') (citations omitted) (emphasis added); Thomas v. United States, 447 A.2d 52, 58 (D.C. 1982) ("discretion to refuse the [missing witness] instruction and argument even when the prerequisites of elucidation and peculiar availability are satisfied"); Dent v. United States, 404 A.2d 165, 171 (D.C. 1979) (missing witness inference "need not be applied broadly or rigidly"). 23. While 32 sheets involved alterations to the circulators' signatures, that is a far cry from evidence of impropriety. Corrections like that readily arise from ordinary mistakes and ostentatiously crossing out a name is hardly indicative of fraud. See July 22 Tr. at 281-82 (noting that electors inadvertently signed in the circulator affidavit requiring crossouts.) |
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