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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION District of Columbia Board of Elections and Ethics, Petitioner, v. Civil Action No. 0007439-05 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR ENTRY OF JUDGMENT OF FINAL ORDER OF THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS Petitioner, District of Columbia Board of Elections and Ethics ("the Board"), seeks entry of a judgment against the Respondents, the Citizens Committee for the D.C. Video Lottery Terminal Initiative of 2004 ("the Citizens Committee"), and Pedro Alfonso, former Chairman of the Citizens Committee, Vickey Wilcher, former Treasurer of the Citizens Committee, and Margaret Gentry, former Custodian of Records of the Citizens Committee, in their official capacities, in the amount of Six Hundred and Twenty-Two Thousand Eight Hundred and Eighty Dollars ($622,880.00), pursuant to a finding by the Board that the Respondents conducted an initiative petition circulation process that was fraught with numerous improprieties and irregularities in violation of the District of Columbia Elections Act ("the Act"), D.C. Official Code § 1-1001. et. seq.The Board found that the Respondents were: (1) vicariously liable for the wrongful acts of certain circulators; and (2) directly liable for their own failures to properly oversee the petition circulation process and to respond with reasonable diligence to allegations of wrongful conduct under both common law negligence and negligent. supervision theories of liability. For the. violations, the Board imposed a fine in the amount of $622,880.00, in accordance with the Act and pursuant to D.C. Official Code § 1.1103-05(b)(2). Respondents have failed to pay the fine by the September 12, 2005 deadline prescribed in the Order. Because the prerequisites for the entry of judgment, have been met, the Board's request for enforcement of its July 29, 2005 Order should be granted. ARGUMENTThe Court is authorized, pursuant to SCR- Civil Rule 12-I(b)(i), to enter as judgments the final Orders of administrative agencies. In the instant case, in July 2004, the District of Columbia Board of Elections and Ethics conducted a hearing pursuant to D.C. Official, Code §1-1001.16(0)(1), to address challenges to a petition submitted in support of initiative Measure No. 68, the "Video Lottery Terminal Initiative of 2004 ("Initiative Measure No. 68"). See Board Exhibit No. 1. (Transcripts of Initiative 68 Challenge). Based on the evidence presented, the Board concluded that a significant component of the petition circulation process was so fraught with improprieties and irregularities that such violations of the election laws compelled the rejection of thousands of petition signatures.1 As a result of this rejection and other findings by the Board's staff in its review of the petition sheets, the Initiative Measure No. 68 petition did not meet the qualification standards necessary to achieve ballot access due to an insufficient number of valid signatures. See Board Exhibit No. 2. (Board's August 13, 2004 Memorandum). In March 2005, the Board convened the penalty phase of the July 2004 proceeding, during which the Board focused on the issues of culpability for the violations previously found to have existed, and the amount of civil penalties, if any, to be assessed. See Board Exhibit No. 5. ( Transcript of Board Penalty Hearings ). Following a full round of briefing by the parties, an eight-day hearing, pursuant to D.C. Official Code §11103.05 (b)(2), at which testimonial evidence, documentary evidence, and oral argument were presented on the issue of penalties, and careful consideration by the Board of the entire record, the Board issued a 44 page Memorandum Opinion and Order on July 29, 2005 ("the Board's Order"), assessing a fine in the amount' of $622,880.00 against the Respondents. See Board Exhibit No. 24. (Board's Penalty Order). The Respondents were served with the Board's Order by hand-delivery on July 29, 2005. The Board's Order, and the attendant fine, were based upon the Board's findings that the Respondents were both vicariously liable for the wrongful acts of the circulators acting under the auspices of Stars & Stripes, Inc. ("Stars & Stripes"),2 and directly liable for their own failures to properly oversee the petition circulation process and to respond with reasonable diligence to allegations of wrongful conduct by the circulators: See Board Exhibit No. 24. The Board's Order is Final and Non-Appealable And Thus Ripe For the Entry of JudgmentThe Respondents did not seek reconsideration of the Board's July 29, 2005 Order. pursuant to the Board's Regulations, nor did they appeal the Board's Order to the Court of Appeals pursuant to the District of Columbia Administrative Procedures Act. Accordingly, the Board's Order is final and non-appealable and ripe for the entry of judgment by this Court. Pursuant to 3 DCMR § 429.1, any party in a contested proceeding before the Board may file a motion for reconsideration, rehearing, or re-argument of a final decision of the Board within ten days of the Board's rendering of its final decision. See D.C. MUN. REGS. tit. 3, § 429.1 (1998). The Respondents, therefore, had until August 8, 2005 within which to file with the Board a motion for reconsideration, rehearing, or reargument of the Board's July 29, 2005 decision. No motion for reconsideration, rehearing, or re-argument of the Board's decision was filed by any Respondent. Further, pursuant to the District of Columbia Administrative Procedures Act, D.C. Official Code § 2-510(a), "[a]ny person suffering a legal wrong, or adversely affected or aggrieved, by an Order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof ... upon filing in the District of Columbia Court of Appeals a written petition for review."3 D.C. Official Code §2-510(a) also provides that such "petition for review shall be filed in such Court within such time as such Court may by rule prescribe[.]" Rule 15(a) of the District of Columbia Court of Appeals provides that judicial review must be sought within thirty days following notice to a party of an agency's decision. Moreover, because "the time limits of Rule 15 are mandatory and jurisdictional... once the time prescribed by the rule has passed, [the D.C. Court of Appeals is] without power to hear the case." Flores v. District of Columbia Rental Housing Commission, 547 A.2d 1000, 1003 (D.C. 1988). Pursuant to D.C. App. R. 15(a), the Respondents had until Monday, August 29, 2005 within which to file a petition for judicial review in the District of Columbia Court of Appeals. No petition for review of the Board's Order was filed by any Respondent. The Court of Appeals is thus without power to entertain a challenge to the Board's Order by the Respondents. See Flores, supra. The Respondents have, therefore, waived their right to seek judicial review of the Board's Order. The Petitioner recognizes, of course, that pursuant to D.C. Official Code § 11103.05(b)(4), this Court has the power to review the Board's Order in the context of the entry of a judgment. However, § 1-1103.05(b)(4) cannot be read so as to negate the specific statutory mandate regarding appeal rights under the District of Columbia Administrative Procedures Act by permitting Respondents to challenge the merits of the Board's Order under the guise of responding to an application for enforcement of the Order. As noted in Cheek v. Washington, 333 F.Supp. 481 (D.D.C. 1971):
Id. at 4844 Commissioner of Banking v. Gloria Haynes, 821 A.2d 843 (Conn.App. 2003), is instructive. In that case, a banking commissioner sought enforcement of an agency Order assessing a penalty. The defendant, as in the instant case, failed to request reconsideration, failed to appeal the agency Order under the State's Uniform Administrative Procedure Act, and failed to pay. The Appellate Court of Connecticut appropriately held that, "[t]he trial Court had jurisdiction only to assess the merits of the commissioner's complaint requesting enforcement of his Order and the levy of additional statutory penalties and did not have jurisdiction to consider the merits of the underlying Order." Id. at 846. As in Haynes, this Court's review should be limited to assessing the merits of the Board's application for enforcement of its July 29, 2005 Order. Having waived their right to appeal, the Respondents here, like the defendant in Haynes, should be precluded from challenging the merits of the Board's underlying Order. Respondents Have Failed To Comply With The Board's OrderPursuant to the Board's Order, payment of the fine was due no later than the close of business on Monday, September 12, 2005, two weeks after the deadline by which the Respondents had to file a petition for judicial review of the Board's Order. As of the filing of this Application for Entry of Judgment, September 13, 2005, the Respondents have not paid the fine assessed in the Board's Order. D.C. Official Code §1-1 103.05(b)(4) provides that: "[i]f the person against whom a civil penalty is assessed fails to pay the penalty, the Board shall file a petition for the enforcement of its Order assessing the penalty in the Superior Court of the District of Columbia." Accordingly, this Court has jurisdiction to enter a judgment in this matter. WHEREFORE, the Petitioner, the District of Columbia Board of Elections and Ethics, requests that this Court enter an Order enforcing its July 29, 2005 Order assessing a fine against the Respondents in the amount of $622,880.00, and requiring the Respondents to comply therewith and remit forthwith the sum due under said Order. Petitioner further requests that the Court award interest allowable by law on the sum due, payable from the date of judgment until payment is made. Respectfully submitted, Kenneth J. McGhie, Terri Stroud, D.C. Bar No. 465884 Date: September 13, 2005 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION District of Columbia Board of Elections and Ethics, Petitioner, v. Civil Action No. 0007439-05 ORDER This matter having come before the Court upon the Petitioner's Request for an order enforcing its July 29, 2005 Order and requiring the Respondents to comply therewith and remit the sum of $ 622,880 due under said Order, it is by this Court this ___ day of ____, 2005; ORDERED, that the Respondents remit forthwith the sum of $622,880. due under the Board's July 29, 2005 Order; and it is FURTHER ORDERED that interest on the sum due is hereby awarded at the rate of _____, from the date of this Order until payment is made. Judge CERTIFICATE OF SERVICE I hereby certify that on this 13th day of September 2005, a copy of the foregoing Application for Entry of Judgment and Designation of the Record were sent by hand delivery and certified mail to George Jones, Esq., Sidley Austin Brown & Wood, 1501 K Street, N.W., Washington, D.C. 20001; Johnny Clinton Hyatt, 1701 16th Street, N.W., #848, Washington, D.C. 20009; Pedro Alfonso, 1809 Parkside Drive, N.W., Washington, D.C. 20012; Margaret Gentry, 907 6th Street, S.W., #415, Washington, D.C. 20024; and Vickey M. Wilcher, 18 Quincy Place, N.W., Washington, D.C. 20001. Rudolph M.D. McCann Jr. 1. The Board's decision in this regard was subsequently affirmed by the District of Columbia Court of Appeals. See Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, 860 A.2d 813 (D.C. 2004). 2. The Board found in July 2004 that, in addition to specific deficiencies, pervasive irregularities and improprieties in the petition circulation process so polluted the portion of the signature gathering operation conducted by Stars & Stripes, a Florida-based. petition circulation company which had been hired to participate in the Initiative Measure No. 68 petition drive, as to require invalidation of all petition sheets circulated and signatures gathered by the Stars & Stripes circulators. See Board Exhibit No. 2. 3. Pursuant to § 1-1103.05(b)(2), penalty proceedings by the Board must be conducted in accordance with the District-of Columbia Administrative Procedures Act. 4. In addition to the problem of multiple tribunals, allowing a challenge by Respondents to the merits of the Board's Order in this Court-which would then be subject to appeal to the D.C. Court of Appeals -- would result in the anomalous situation that the Court of Appeals, which has been divested of jurisdiction to entertain an appeal of the Board's Order because of the absence of a timely direct appeal to that Court; would inappropriately regain jurisdiction by means of a back door indirect appeal. |
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